Chapter 569 Oregon Laws 1999

Session Law

AN ACT

SB 662

Relating to domestic relations; amending ORS 107.065, 107.095, 107.115, 107.425, 107.465, 109.119, 109.121, 109.175 and 419B.192.

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

SECTION 1. ORS 107.065 is amended to read:

107.065. (1) Except as provided in ORS 107.095 and in subsection (2) of this section, no trial or hearing on the merits in a suit for the dissolution of a marriage shall be had until after the expiration of 90 days from the date of:

(a) The service of the summons and petition upon the respondent; or

(b) The first publication of summons.

(2)(a) Upon written motion, the court may in its discretion[, on written motion supported by affidavit setting forth grounds of emergency or necessity and facts which satisfy the court that immediate action is warranted or required to protect the rights or interest of any party or person who might be affected by a final decree or order in the proceedings, hold a hearing and] grant a [decree] judgment dissolving the marriage prior to the expiration of the waiting period. [In such case] The written motion must be supported by an affidavit setting forth grounds of emergency or necessity and facts that satisfy the court that immediate action is warranted to protect the rights or interest of any party or person who might be affected by a final judgment in the proceedings.

(b) An affidavit stating that a stipulated judgment has been signed by the parties is adequate grounds of necessity for immediate action under this subsection.

(c) If the court grants a judgment before the expiration of the waiting period, the court shall find and recite in the judgment the grounds of emergency or necessity and the facts with respect thereto [shall be found and recited in the decree].

SECTION 2. ORS 107.095, as amended by section 41, chapter 704, Oregon Laws 1997, is amended to read:

107.095. (1) After the commencement of a suit for marital annulment, dissolution or separation and until a decree therein, the court may provide as follows:

(a) That a party pay to the clerk of the court such amount of money as may be necessary to enable the other party to prosecute or defend the suit, including costs of expert witnesses, and also such amount of money to the Department of Justice, court clerk or court administrator, whichever is appropriate, as may be necessary to support and maintain the other party.

(b) For the care, custody, support and maintenance, by one party or jointly, of the minor children as described in ORS 107.105 (1)(a) and for the parenting time rights as described in ORS 107.105 (1)(b) of the parent not having custody of such children.

(d) That if minor children reside in the family home and the court considers it necessary for their best interest to do so, the court may require either party to move out of the home for such period of time and under such conditions as the court may determine, whether the home is rented, owned or being purchased by one party or both parties.

(e) Restraining and enjoining either party or both from encumbering or disposing of any of [their property, real or personal] the real or personal property of either or both of the parties, except as ordered by the court.

(f) For the temporary use, possession and control of the real or personal property of the parties or either of them and the payment of installment liens and encumbrances thereon.

(g) That even if no minor children reside in the family home, the court may require one party to move out of the home for such period of time and under such conditions as the court determines, whether the home is rented, owned or being purchased by one party or both parties if that party assaults or threatens to assault the other.

(2) In case default is made in the payment of any moneys falling due under the terms of an order pending suit, any such delinquent amount shall be entered and docketed as a judgment, and execution or garnishment may issue thereon to enforce payment thereof in the same manner and with like effect as upon a final decree. The remedy provided in this subsection shall be deemed cumulative and not exclusive.

(3) The court shall not require an undertaking in case of the issuance of an order under subsection (1)(c), (d), (e), (f) or (g) of this section.

(4) In a suit for annulment or dissolution of marriage or for separation, wherein the parties are copetitioners or the respondent is found by the court to be in default or [where] the respondent having appeared has waived further appearance, the court may, when the cause is otherwise ready for hearing on the merits, in lieu of such hearing, enter a decree of annulment or dissolution or for separation based upon a current affidavit of the petitioner or copetitioners, setting forth a prima facie case, and covering such additional matters as the court may require. If child support or custody of minor children is involved, then the affidavit also shall include:

(a) The gross monthly income of each party, to the best of the affiant's knowledge; and

(b) The name of the party with whom the children currently reside and the length of time they have so resided.

SECTION 3. ORS 107.115 is amended to read:

107.115. (1) A decree of annulment or dissolution of a marriage restores the parties thereto to the status of unmarried persons, unless a party is married to another person. Such decree shall give the court jurisdiction to award, to be effective immediately, the relief provided by ORS 107.105. However, any judgment or award provided for in the decree shall become effective as a lien upon real property only upon docketing in the county where the decree is originally entered as provided in ORS 18.320 and 18.360. In all other counties, the judgment or award shall become a lien only upon recording a certified copy of the judgment or lien record abstract or a certified copy of the decree in the County Clerk Lien Record. The decree shall revoke a will pursuant to the provisions of ORS 112.315[, but the decree shall not be effective insofar as it affects the marital status of the parties until the expiration of 30 days from the date of the decree].

(2) [In case either party dies within the 30-day period specified in subsection (1) of this section, the decree shall be considered to have entirely terminated the marriage relationship immediately before such death.] The marriage relationship is terminated when the court signs the judgment of dissolution of marriage.

(3)(a) The Court of Appeals or Supreme Court shall continue to have jurisdiction of an appeal pending at the time of the death of either party. The appeal may be continued by the personal representative of the deceased party. The attorney of record on the appeal, for the deceased party, may be allowed a reasonable attorney fee, to be paid from the decedent's estate. However, costs on appeal may not be awarded to either party.

(b) The Court of Appeals or Supreme Court shall have the power to determine finally all matters presented on such appeal. Before making final disposition, the Court of Appeals or Supreme Court may refer the proceeding back to the trial court for such additional findings of fact as are required.

[(4) The marriage relationship is terminated in all respects at the expiration of the 30-day period specified in subsection (1) of this section without any further action by either party. However, at any time within the 30-day period, the court may set aside the decree upon motion of both parties. Reversal or modification of the decree on appeal does not restore the marriage relationship.]

[(5) A decree declaring a marriage void or dissolved shall specify the date on which the decree becomes finally effective to terminate the marriage relationship of the parties.]

[(6) The 30-day period specified in subsection (1) of this section does not apply when a decree declares a marriage void under ORS 107.005.]

SECTION 4. ORS 107.425 is amended to read:

107.425. (1) [Whenever a domestic relations suit, as defined in ORS 107.510, is filed, or whenever a habeas corpus proceeding or motion to modify an existing decree in a domestic relations suit is before the court, the court having jurisdiction may, in cases] In suits or proceedings described in subsection (2) of this section in which there are minor children involved, the court may cause an investigation to be made as to the character, family relations, past conduct, earning ability and financial worth of the parties [to the suit] for the purpose of protecting the children's future interest. The court may defer the entry of a final [decree] judgment until the court is satisfied that its [decree] judgment in such suit or proceeding will properly protect the welfare of such children. The investigative findings shall be offered as and subject to all rules of evidence. Costs of the investigation may be charged against [either or both] one or more of the parties or as a cost in the proceedings but shall not be charged against funds appropriated for indigent defense services.

(2) The provisions of subsection (1) of this section apply when:

(a) A person files a domestic relations suit, as defined in ORS 107.510;

(b) A motion to modify an existing decree in a domestic relations suit is before the court;

(c) A parent of a child born out of wedlock initiates a civil proceeding to determine custody or support under ORS 109.103;

(d) A person petitions or files a motion for intervention under ORS 109.119;

(e) A child's grandparent petitions for visitation rights under ORS 109.121;

(f) A person or state agency files a petition under ORS 109.125 to establish paternity and paternity is established; or

(g) A habeas corpus proceeding is before the court.

[(2)] (3) The court, on its own motion or on the motion of [either] a party, may order an independent physical, psychological, psychiatric or mental health examination of [either] a party or the children and may require [either or both parties] any party and the children to appear and to testify as witnesses during this investigation and to be interviewed, evaluated and tested by an expert. The court may also authorize the expert to interview other persons and to request other persons to make available to the expert records deemed by the court or the expert to be relevant to the evaluation. The court may order the parties to authorize the disclosure of such records. In the event the parties are unable to stipulate to the selection of the psychologist, psychiatrist or registered clinical social worker to conduct the investigation, the court shall choose such expert from a list of three submitted to the court by each party with a statement of the experts' qualifications and fees for the investigation. The court shall direct [either or both] one or more of the parties to pay for the investigation in the absence of an agreement between the parties as to the responsibility for payment but shall not direct that the expenses be charged against funds appropriated for indigent defense services. If [both parties are] more than one party is directed to pay, the court may determine the amount that each party will pay based on financial ability.

[(3)] (4) The court, on its own motion or the motion of [either] a party, may appoint counsel for the children. However, if requested to do so by one or more of the children, the court shall appoint counsel for the child or children. A reasonable fee for an attorney so appointed may be charged against [either or both] one or more of the parties or as a cost in the proceedings but shall not be charged against funds appropriated for indigent defense services.

[(4)] (5) Prior to the entry of an order, the court on its own motion or upon the motion of a party may take testimony from or confer with the child or children of the marriage and may exclude from the conference the parents and other persons if the court finds that such action would be likely to be in the best interests of the child or children. However, the court shall permit an attorney for each party to attend the conference and question the child, and the conference shall be reported.

SECTION 5. ORS 107.465 is amended to read:

107.465. (1) [The court has the power within two years after the entry of a decree of separation, upon motion of a party and after service of notice to the other party in the manner provided by law for service of summons, to allow supplemental proceedings for dissolution of the marriage; provided that] Upon motion of a party for an order to show cause why a decree of separation should not be converted to a decree of dissolution and after service of notice to the other party at least 30 days before the scheduled hearing, the court may, within two years after the entry of a decree of separation, convert a decree of separation into a decree of dissolution of the marriage. The other party may file a written consent to conversion and waiver of the hearing at any time before the hearing. Any supplemental decree of dissolution shall not set aside, alter or modify any part of the decree of separation [which] that has created or granted rights [which] that have vested.

(2) Nothing in this section is intended to prevent either party to a decree of separation from commencing at any time in the manner required by law a suit for dissolution of the marriage.

SECTION 6. ORS 109.119 is amended to read:

109.119. (1) Any person, including but not limited to a related or nonrelated foster parent, stepparent or relative by blood or marriage who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child, or any legal grandparent may petition or file a motion for intervention with the court having jurisdiction over the custody, placement, guardianship or wardship of that child, or if no such proceedings are pending, may petition the court for the county in which the minor child resides for an order providing for relief under subsection [(2)] (3) of this section.

(2) In any proceeding under this section, the court may cause an investigation to be made under ORS 107.425.

[(2)(a)] (3)(a) If the court determines that a child-parent relationship exists and if the court determines by a preponderance of the evidence that custody, guardianship, right of visitation, or other generally recognized right of a parent or person in loco parentis, is appropriate in the case, the court shall grant such custody, guardianship, right of visitation or other right to the person, if to do so is in the best interest of the child. The court may determine temporary custody of the child or temporary visitation rights under this paragraph pending a final order.

(b) If the court determines that an ongoing personal relationship exists and if the court determines by clear and convincing evidence that visitation or contact rights are appropriate in the case, the court shall grant visitation or contact rights to the person having the ongoing personal relationship if to do so is in the best interest of the child. The court may order temporary visitation rights under this paragraph pending a final order.

[(3)] (4) In addition to the rights granted under subsection (1) or [(2)] (3) of this section, a stepparent with a child-parent relationship who is a party in a dissolution proceeding may petition the court having jurisdiction for custody or visitation or may petition the court for the county in which the minor child resides for adoption of the child. The stepparent may also file for post decree modification of a decree relating to child custody.

[(4)(a)] (5)(a) A motion for intervention filed by a person other than a legal grandparent may be denied or a petition may be dismissed on the motion of any party or on the court's own motion if the petition does not state a prima facie case of emotional ties creating a child-parent relationship or ongoing personal relationship or does not allege facts that the intervention is in the best interests of the child.

(b) A motion for intervention filed by a legal grandparent may be granted upon a finding by clear and convincing evidence that the intervention is in the best interests of the child.

[(5)] (6) As used in this section:

(a) "Child-parent relationship" means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child's psychological needs for a parent as well as the child's physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 18 months.

(b) "Legal grandparent" means the legal parent of the child's legal parent.

(c) "Legal parent" means a parent as defined in ORS 419A.004 whose rights have not been terminated under ORS 419B.500 to 419B.524.

(d) "Ongoing personal relationship" means a relationship with substantial continuity for at least one year, through interaction, companionship, interplay and mutuality.

[(6)] (7) In no event shall costs for the representation of an intervenor under this section be charged against funds appropriated for indigent defense services.

[(7)] (8) In a proceeding under this section, the court may assess against any party a reasonable attorney fee and costs for the benefit of any other party.

SECTION 7. ORS 109.121 is amended to read:

109.121. (1)(a) A child's grandparent may, upon petition to the circuit court, be granted an order establishing reasonable rights of visitation between the grandparent and the child if:

(A) The grandparent has established or has attempted to establish ongoing personal contact with the child; and

(B) The custodian of the child has denied the grandparent reasonable opportunity to visit the child.

(b) After the commencement of a domestic relations suit, as defined in ORS 107.510, or a proceeding under ORS 108.110, 109.100, 109.103, 109.125, 419B.400 or 419C.590, and before a decree or final order dissolving the marriage of the parties, any grandparent of the minor children of the parties therein may petition the court for an order providing for reasonable rights of visitation between the grandparent and the child.

(c) After a decree or final order is entered dissolving the marriage of the child's parents, the grandparent may petition the court only if:

(A) The grandparent did not file a petition during the pendency of the dissolution proceedings; or

(B) There has been a change in circumstances relating to the custodial parent or the minor child such as is required to allow the court to reconsider the provisions of the decree that provide for the future custody, support and welfare of the minor child.

(2) A petition filed with a court under subsection (1) of this section shall state the following:

(a) The names of the petitioners.

(b) The names, addresses and dates of birth of all the minor children to whom the petitioners seek visitation rights.

(d) When the petition is filed under subsection (1)(b) or (c) of this section, the relationship of the petitioners to the parties in the proceeding.

(e) When the petition is filed under subsection (1)(c) of this section, if the petitioner is asserting a change in circumstances as justification for the petition, the facts constituting the asserted change in circumstances.

(3) When a petition is filed with a court under this section, notice of the filing and a copy of the petition shall be served on the parents or other custodians of the minor children named in the petition in the manner provided by law for service of a summons.

(4) When a petition is filed under this section, if it appears from the petition that the petitioners may seek visitation rights under this section, the court shall conduct a hearing to determine whether an order creating visitation rights will be issued. The court shall cause notice of the time and place of the hearing to be given to the parents or other custodians of the minor children named in the petition. The court may require the attendance of the parents or other custodians and of witnesses as in other civil cases. When the petition has been filed under subsection (1)(b) of this section, the court may conduct the hearing on the petition as part of the proceeding or as a separate proceeding, and the order creating visitation rights, if one is issued, may be incorporated in and made a part of the decree or final order. The court, prior to the entry of a decree or order and upon its own motion or upon the motion of a party, may cause an investigation to be made under ORS 107.425 and may take testimony from or confer with the child or children of the marriage and may exclude from the conference the parents, grandparents and other persons if the court finds that such action would be likely to be in the best interests of the child or children. However, the court shall permit an attorney for each party to attend the conference, and the conference shall be reported.

(5) Any order creating visitation rights under this section shall be according to the court's best judgment of the facts of the case and shall include such conditions and limitations as it deems reasonable. In making or modifying such an order, the court shall be guided by the best interests and welfare of the child.

(6) Filing fees for proceedings under this section shall be those set forth in ORS 21.110.

(7) As used in this section:

(a) "Grandparent" does not include a stepgrandparent.

(b) "Minor child" means a natural minor child, provided the paternity of such child has been established under ORS 109.070 or acknowledged under ORS 109.092.

(8) The provisions of this section shall not apply if paternity of the minor child is or has been denied throughout a contested proceeding.

SECTION 8. ORS 109.175 is amended to read:

109.175. (1) If paternity of a child born out of wedlock is established pursuant to a petition filed under ORS 109.125 or an order or judgment entered pursuant to ORS 109.124 to 109.230 or ORS 416.400 to 416.470, or if paternity is established by the filing of a [joint declaration] voluntary acknowledgment of paternity as provided by ORS 109.070 [(5)] (1)(e), the parent with physical custody at the time of filing of the petition or the notice under ORS 416.415, or the parent with physical custody at the time of the filing of the [joint declaration] voluntary acknowledgment of paternity, has sole legal custody until a court specifically orders otherwise. The first time the court determines who should have legal custody, neither parent shall have the burden of proving a change of circumstances. The court shall give primary consideration to the best interests and welfare of the child and shall consider all the standards set out in ORS 107.137.

(2) In any proceeding under this section, the court may cause an investigation to be made under ORS 107.425.

SECTION 9. ORS 419B.192 is amended to read:

419B.192. (1) If the court finds that a child is in need of placement or continuation in substitute care, there shall be a preference given to placement with relatives and persons who have a child-parent relationship with the child as defined in ORS 109.119 [(5)]. The State Office for Services to Children and Families shall make reasonable efforts to place the child with such persons and shall report to the court what efforts were made to effectuate such a placement.

(2) In attempting to place the child pursuant to subsection (1) of this section, the office shall consider, but not be limited to, the following:

(a) The ability of the person being considered to provide safety for the child, including a willingness to cooperate with any restrictions placed on contact between the child and others, and to prevent anyone from influencing the child in regard to the allegations of the case;

(b) The ability of the person being considered to support the efforts of the office to implement the permanent plan for the child;

(d) Which person has the closest existing personal relationship with the child if more than one person requests to have the child placed with them pursuant to this section.

(3) Notwithstanding subsections (1) and (2) of this section, in cases where the Indian Child Welfare Act applies, the placement preferences of the Indian Child Welfare Act shall be followed.

Approved by the Governor July 8, 1999

Filed in the office of Secretary of State July 8, 1999

Effective date October 23, 1999

__________