Chapter 79 Oregon Laws 2005

AN ACT

HB 2135

Relating to active members of military; creating new provisions; amending ORS 107.169, 109.056, 399.238 and 399.240; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 399.238 is amended to read:

399.238. (1) As used in this section, “[state] service member” means:

(a) A member of the organized militia who is called into active service of the state by the Governor under ORS 399.065 (1) for 30 or more consecutive days.

(b) A member of the Oregon National Guard who is called into active federal service under Title 10 of the United States Code.

(2) A [state] service member may, while in active service or within six months after that service ends, apply to a court:

(a) For relief with respect to any obligation or liability incurred by the member before the period of active [state] service began. The court, after appropriate notice and hearing, may grant relief unless the court determines that the ability of the member to comply with the terms of the obligation or liability has not been materially affected by active [state] service.

(b) For a stay of a civil judicial proceeding in which the [state] service member is a party. The court, after appropriate notice, shall grant the stay unless the court determines that the ability of the [state] service member to represent the interests of the [state] service member are not materially affected by active [state] service.

(3) The court may not charge or collect any fee from a [state] service member who applies to the court for relief under this section.

(4) An application filed under this section may not be deemed as consent to the jurisdiction of any court of this state.

SECTION 2. ORS 399.240 is amended to read:

399.240. (1) As used in this section:

(a) “Interest” includes service charges, renewal fees or other charges or fees associated with an obligation or liability.

(b) “[State] Service member” means:

(A) A member of the organized militia who is called into active service of the state by the Governor under ORS 399.065 (1) for 30 or more consecutive days.

(B) A member of the Oregon National Guard who is called into active federal service under Title 10 of the United States Code.

(2) Notwithstanding ORS 82.010, 83.095, 708A.255, 722.354, 723.502, 723.730 and 725.340, an obligation or liability bearing interest at a rate in excess of six percent per year incurred by a [state] service member before being called into active service may not, during any part of the period of active service, bear interest in excess of six percent per year except by court order.

(3) The [state] service member shall provide written notice to the creditor requesting that the rate of interest be reduced to six percent per year and shall include proof of the official orders showing that the [state] service member is being called into active service of the state by the Governor under ORS 399.065 (1) or into active federal service under Title 10 of the United States Code.

(4) A creditor that receives a request under subsection (3) of this section to reduce a rate of interest may apply to the court for a determination that the ability of a [state] service member to pay interest on an obligation or liability at a rate in excess of six percent per year is not materially affected because of the active service of the member. If a court determines that the ability of a [state] service member to pay interest on an obligation or liability at a rate in excess of six percent per year is not materially affected because of the active service of the member, the court may order an interest rate that is just.

(5) A creditor must recompute the payment schedule to amortize the balance of the obligation or liability over the remainder of the obligation or liability at a rate of interest determined under subsection (2) or (4) of this section.

SECTION 3. ORS 107.169 is amended to read:

107.169. (1) As used in this chapter, “joint custody” means an arrangement by which parents share rights and responsibilities for major decisions concerning the child, including, but not limited to, the child’s residence, education, health care and religious training. An order providing for joint custody may specify one home as the primary residence of the child and designate one parent to have sole power to make decisions about specific matters while both parents retain equal rights and responsibilities for other decisions.

(2) The existence of an order of joint custody shall not, by itself, determine the responsibility of each parent to provide for the support of the child.

(3) The court shall not order joint custody, unless both parents agree to the terms and conditions of the order.

(4) When parents have agreed to joint custody in an order or a judgment, the court may not overrule that agreement by ordering sole custody to one parent.

(5) Modification of a joint custody order shall require showing of changed circumstances and a showing that the modification is in the best interests of the child such as would support modification of a sole custody order. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order.

(6)(a) The inability of a parent to comply with the terms and conditions of a joint custody order due to the parent’s temporary absence does not constitute a change of circumstances if the parent’s temporary absence is caused by the parent being:

(A) Called into active state duty as defined in ORS 398.002; or

(B) Called into active federal service under Title 10 of the United States Code as a member of the Oregon National Guard.

(b) As used in this subsection, “temporary absence” means a period not exceeding 30 consecutive months.

SECTION 4. ORS 109.056 is amended to read:

109.056. (1) Except as provided in subsection (2) or (3) of this section, a parent or a guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six months, any of the powers of the parent or guardian regarding care, custody or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward.

(2) A parent or a guardian of a minor child may delegate the powers designated in subsection (1) of this section to a school administrator for a period not exceeding 12 months.

(3) A parent or guardian of a minor child may delegate the powers designated in subsection (1) of this section for a period not exceeding the term of active duty service plus 30 days when the parent or guardian is a member of the organized militia of this state or any other reserve component of the United States Armed Forces who is required to enter and serve in the active military service of the United States under a call or order by the President of the United States or to serve on active state duty as defined in ORS 398.002. If the minor child is living with the child’s other parent, delegation under this subsection must be to the parent with whom the minor child is living unless a court finds that such a delegation would not be in the best interests of the minor child.

SECTION 5. The amendments to ORS 399.238 and 399.240 by sections 1 and 2 of this 2005 Act apply to service members called into active federal service under Title 10 of the United States Code on or after the effective date of this 2005 Act.

SECTION 6. The amendments to ORS 107.169 by section 3 of this 2005 Act apply to modifications of joint custody filed on or after the effective date of this 2005 Act.

SECTION 7. This 2005 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2005 Act takes effect on its passage.

Approved by the Governor May 25, 2005

Filed in the office of Secretary of State May 25, 2005

Effective date May 25, 2005

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