Legal Question in Family Law in Oregon

Regaining custody of your child.

YOUR POST:

My daughter has lived with her father for 1 year and 3 months but is ready to move back in with me. She is almost 12 years old. She has lived with me all of her life except for the last year. Her father will not let me have her back. There has never been any legal paperwork done other than child support. Can he stop me from taking her back? And what do I need to do to make everything legal?

ANSWER:

Yes, he can TRY to stop you. And if he does, you should then go to court and get an "Oder of Assistance." This will authorize the police to assist in recovering your child.

Here's what the statute says:

ORS 107.437. (1) A person entitled to physical custody of a child may make an ex parte application for an order of assistance to a court of any county:

(a) In which a child is located if the person is entitled to the physical custody of the child under a valid and current order issued in this state; or

(b) In which a valid and current foreign custody order has been filed with a petition as provided in subsection (3) of this section.

(2) The application must include a certified copy of the custody order. The order of assistance may direct a law enforcement agency having jurisdiction where the child is located to use any reasonable means and force to deliver the child as directed by the court. The court may issue an order of assistance upon the sworn affidavit of the applicant and a finding of the court that:

(a) The applicant is entitled to physical custody of the child under a valid and current custody order; and

(b) The child is being held by another person in substantial violation of the custody order.

(3) When the application for an order of assistance is made to a court in which the custody order has been entered or registered, the applicant shall make the application in the form of a motion. In all other cases, the applicant shall make the application in the form of a petition. The court may not charge a filing fee for a motion or petition filed under this section.

(4) The law enforcement agency to which an order of assistance is directed shall make a return to the court specifying whether the order was executed, and if so, a statement reflecting the date on which the order was executed and any other information required by the court in the order of assistance.

(5) A court may not issue an order of assistance for the purpose of enforcing parenting time or visitation rights.

(6) Except for intentional torts committed outside the scope of the peace officer�s duties, a peace officer is not civilly or criminally liable for any action taken in recovering the custody of a child pursuant to an order issued under this section.

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LAWRENCE D. GORIN

Phone: 503-224-8884 (afternoons, Pacific time)

Fax: 503-274-0818

E-mail: [email protected]