Session Law
AN ACT
SB 789
Relating to child custody
jurisdiction; creating new provisions; amending ORS 21.325, 107.097, 107.138,
107.174, 107.431, 107.710, 107.718, 109.309 and 125.065; and repealing ORS
109.700, 109.710, 109.720, 109.730, 109.740, 109.750, 109.760, 109.770,
109.780, 109.790, 109.800, 109.810, 109.820, 109.830, 109.840, 109.850,
109.860, 109.870, 109.880, 109.890, 109.900, 109.910, 109.920 and 109.930.
Be It Enacted by the People of the State of Oregon:
GENERAL PROVISIONS
SECTION 1. Short Title. Sections 1 to 41 of this 1999 Act may be
cited as the Uniform Child Custody Jurisdiction and Enforcement Act.
SECTION 2. Definitions. As used in sections 1
to 41 of this 1999 Act:
(1) "Abandoned"
means left without provision for reasonable and necessary care or supervision.
(2) "Child" means
an individual who has not attained 18 years of age.
(3) "Child custody
determination" means a judgment, decree or other order of a court
providing for the legal custody, physical custody, parenting time or visitation
with respect to a child. "Child custody determination" includes a permanent,
temporary, initial and modification order. "Child custody
determination" does not include an order relating to child support or
other monetary obligation of an individual.
(4) "Child custody
proceeding" means a proceeding in which legal custody, physical custody,
parenting time or visitation with respect to a child is an issue. "Child
custody proceeding" includes a proceeding for divorce, separation, neglect,
abuse, dependency, guardianship, paternity, termination of parental rights and
protection from domestic violence in which the issue may appear. "Child
custody proceeding" does not include a proceeding involving juvenile
delinquency, contractual emancipation or enforcement under sections 23 to 39 of
this 1999 Act.
(5) "Commencement"
means the filing of the first pleading in a proceeding.
(6) "Court" means
an entity authorized under the law of a state to establish, enforce or modify a
child custody determination.
(7) "Home state"
means the state in which a child lived with a parent or a person acting as a
parent for at least six consecutive months immediately before the commencement
of a child custody proceeding. In the case of a child less than six months of
age, "home state" means the state in which the child lived from birth
with any of the persons mentioned. Any temporary absence of any of the
mentioned persons is part of the period.
(8) "Initial
determination" means the first child custody determination concerning a
particular child.
(9) "Issuing
court" means the court that makes a child custody determination for which
enforcement is sought under sections 1 to 41 of this 1999 Act.
(10) "Issuing
state" means the state in which a child custody determination is made.
(11)
"Modification" means a child custody determination that changes,
replaces, supersedes or is otherwise made after a previous determination
concerning the same child, whether or not it is made by the court that made the
previous determination.
(12) "Person"
means an individual, corporation, public corporation, business trust, estate,
trust, partnership, limited liability company, association, joint venture,
government or a governmental subdivision, agency or instrumentality, or any
other legal or commercial entity.
(13) "Person acting as
a parent" means a person, other than a parent, who:
(a) Has physical custody of
the child or has had physical custody for a period of six consecutive months,
including any temporary absence, within one year immediately before the
commencement of a child custody proceeding; and
(b) Has been awarded legal
custody by a court or claims a right to legal custody under the law of this
state.
(14) "Physical
custody" means the physical care and supervision of a child.
(15) "State" means
a state of the United States, the District of Columbia, Puerto Rico, the United
States Virgin Islands or any territory or insular possession subject to the
jurisdiction of the United States.
(16) "Tribe" means
an Indian tribe or band, or Alaskan Native village, that is recognized by
federal law or formally acknowledged by a state.
(17) "Warrant"
means an order issued by a court authorizing law enforcement officers to take
physical custody of a child.
SECTION 3. Proceedings Governed by Other Law.
Sections 1 to 41 of this 1999 Act do not govern a proceeding pertaining to the
authorization of emergency medical care for a child.
SECTION 4. Application to Indian Tribes. (1) A
child custody proceeding that pertains to an Indian child as defined in the
Indian Child Welfare Act (25 U.S.C. 1901 et seq.), is not subject to sections 1
to 41 of this 1999 Act to the extent that the proceeding is governed by the
Indian Child Welfare Act.
(2) A court of this state
shall treat a tribe as if it were a state of the United States for the purpose
of applying sections 1 to 22 of this 1999 Act.
(3) A child custody
determination made by a tribe under factual circumstances in substantial
conformity with the jurisdictional standards of sections 1 to 41 of this 1999
Act must be recognized and enforced under sections 23 to 39 of this 1999 Act.
SECTION 5. International Application of Sections 1
to 41 of This 1999 Act. (1) A court of this state shall treat a foreign
country as if it were a state of the United States for the purpose of applying
sections 1 to 22 of this 1999 Act.
(2) Except as otherwise
provided in subsection (3) of this section, a child custody determination made
in a foreign country under factual circumstances in substantial conformity with
the jurisdictional standards of sections 1 to 41 of this 1999 Act must be
recognized and enforced under sections 23 to 39 of this 1999 Act.
(3) A court of this state
need not apply sections 1 to 41 of this 1999 Act if the child custody law of a
foreign country violates fundamental principles of human rights.
SECTION 6. Effect of Child Custody Determination.
A child custody determination made by a court of this state that has
jurisdiction under sections 1 to 41 of this 1999 Act binds all persons who have
been served in accordance with the laws of this state or notified in accordance
with section 8 of this 1999 Act or who have submitted to the jurisdiction of
the court, and who have been given an opportunity to be heard. As to those
persons, the determination is conclusive as to all decided issues of law and
fact except to the extent the determination is modified.
SECTION 7. Priority. If a question of existence or exercise of jurisdiction under sections 1
to 41 of this 1999 Act is raised in a child custody proceeding, the question,
upon request of a party, must be given priority on the calendar and handled
expeditiously.
SECTION 8. Notice to Persons Outside State. (1)
Notice required for the exercise of jurisdiction when a person is outside this
state may be given in a manner prescribed by the law of this state for service
of process or by the law of the state in which the service is made. Notice must
be given in a manner reasonably calculated to give actual notice but may be by
publication if other means are not effective.
(2) Proof of service may be
made in the manner prescribed by the law of this state or by the law of the
state in which the service is made. If service is made by mail, proof of
service may be a receipt signed by the addressee or other evidence of delivery
to the addressee.
(3) Notice is not required
for the exercise of jurisdiction with respect to a person who submits to the
jurisdiction of the court.
SECTION 9. Appearance and Limited Immunity. (1)
A party to a child custody proceeding, including a modification proceeding, or
a petitioner or respondent in a proceeding to enforce or register a child
custody determination, is not subject to personal jurisdiction in this state
for another proceeding or purpose solely by reason of having participated, or
of having been physically present for the purpose of participating, in the
proceeding.
(2) A person who is subject
to personal jurisdiction in this state on a basis other than physical presence
is not immune from service of process in this state. A party present in this
state who is subject to the jurisdiction of another state is not immune from
service of process allowable under the laws of that state.
(3) The immunity granted by
subsection (1) of this section does not extend to civil litigation based on
acts unrelated to the participation in a proceeding under sections 1 to 41 of
this 1999 Act committed by an individual while present in this state.
SECTION 10. Communication Between Courts. (1) A
court of this state may communicate with a court in another state concerning a
proceeding arising under sections 1 to 41 of this 1999 Act.
(2) The court may allow the
parties to participate in the communication. If the parties are not able to
participate in the communication, they must be given the opportunity to present
facts and legal arguments before a decision on jurisdiction is made.
(3) Communication between
courts on schedules, calendars, court records and similar matters may occur
without informing the parties. A record need not be made of the communication.
(4) Except as otherwise
provided in subsection (3) of this section, a record must be made of a
communication under this section. The parties must be informed promptly of the
communication and granted access to the record.
(5) For the purposes of this
section, "record" means information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is retrievable in
perceivable form.
SECTION 11. Taking Testimony in Another State.
(1) In addition to other procedures available to a party, a party to a child
custody proceeding may offer testimony of witnesses who are located in another
state, including testimony of the parties and the child, by deposition or other
means allowable in this state for testimony taken in another state. The court
on its own motion may order that the testimony of a person be taken in another
state and may prescribe the manner in which and the terms upon which the
testimony is taken.
(2) A court of this state
may permit an individual residing in another state to be deposed or to testify
by telephone, audiovisual means or other electronic means before a designated
court or at another location in that state. A court of this state shall
cooperate with courts of other states in designating an appropriate location
for the deposition or testimony.
(3) Documentary evidence
transmitted from another state to a court of this state by technological means
that does not produce an original writing may not be excluded from evidence on
an objection based on the means of transmission.
SECTION 12. Cooperation Between Courts; Preservation
of Records. (1) A court of this state may request the appropriate court of
another state to:
(a) Hold an evidentiary
hearing;
(b) Order a person to
produce or give evidence pursuant to procedures of that state;
(c) Order that an evaluation
be made with respect to the custody of a child involved in a pending
proceeding;
(d) Forward to the court of
this state a certified copy of the transcript of the record of the hearing, the
evidence otherwise presented and any evaluation prepared in compliance with the
request; and
(e) Order a party to a child
custody proceeding or any person having physical custody of the child to appear
in the proceeding with or without the child.
(2) Upon request of a court
of another state, a court of this state may hold a hearing or enter an order
described in subsection (1) of this section.
(3) Travel and other
necessary and reasonable expenses incurred under subsections (1) and (2) of
this section may be assessed against the parties according to the law of this
state.
(4) A court of this state
shall preserve the pleadings, orders, decrees, records of hearings, evaluations
and other pertinent records with respect to a child custody proceeding for the
time required by the retention schedule adopted under ORS 8.125 (11). The
retention schedule shall require retention at least until the child attains 18
years of age. Upon appropriate request by a court or law enforcement official
of another state, the court shall forward a certified copy of those records.
JURISDICTION
SECTION 13. Initial Child Custody Jurisdiction.
(1) Except as otherwise provided in section 16 of this 1999 Act, a court of
this state has jurisdiction to make an initial child custody determination only
if:
(a) This state is the home
state of the child on the date of the commencement of the proceeding, or was
the home state of the child within six months before the commencement of the
proceeding and the child is absent from this state but a parent or person
acting as a parent continues to live in this state;
(b) A court of another state
does not have jurisdiction under subsection (1)(a) of this section, or a court
of the home state of the child has declined to exercise jurisdiction on the
ground that this state is the more appropriate forum under section 19 or 20 of
this 1999 Act, and:
(A) The child and the
child's parents, or the child and at least one parent or a person acting as a
parent, have a significant connection with this state other than mere physical
presence; and
(B) Substantial evidence is
available in this state concerning the child's care, protection, training and
personal relationships;
(c) All courts having
jurisdiction under subsection (1)(a) or (b) of this section have declined to
exercise jurisdiction on the ground that a court of this state is the more
appropriate forum to determine the custody of the child under section 19 or 20
of this 1999 Act; or
(d) No court of any other
state would have jurisdiction under the criteria specified in subsection
(1)(a), (b) or (c) of this section.
(2) Subsection (1) of this
section is the exclusive jurisdictional basis for making a child custody
determination by a court of this state.
(3) Physical presence of, or
personal jurisdiction over, a party or a child is not necessary or sufficient
to make a child custody determination.
SECTION 14. Exclusive, Continuing Jurisdiction.
(1) Except as otherwise provided in section 16 of this 1999 Act, a court of
this state that has made a child custody determination consistent with section
13 or 15 of this 1999 Act has exclusive, continuing jurisdiction over the
determination until:
(a) A court of this state
determines that neither the child, nor the child and one parent, nor the child
and a person acting as a parent have a significant connection with this state
and that substantial evidence is no longer available in this state concerning
the child's care, protection, training and personal relationships; or
(b) A court of this state or
a court of another state determines that the child, the child's parents and any
person acting as a parent do not presently reside in this state.
(2) A court of this state
that has made a child custody determination and does not have exclusive,
continuing jurisdiction under this section may modify that determination only
if the court has jurisdiction to make an initial determination under section 13
of this 1999 Act.
SECTION 15. Jurisdiction to Modify Determination.
Except as otherwise provided in section 16 of this 1999 Act, a court of this
state may not modify a child custody determination made by a court of another
state unless a court of this state has jurisdiction to make an initial
determination under section 13 (1)(a) or (b) of this 1999 Act and:
(1) The court of the other
state determines that it no longer has exclusive, continuing jurisdiction under
section 14 of this 1999 Act or that a court of this state would be a more
convenient forum under section 19 of this 1999 Act; or
(2) A court of this state or
a court of the other state determines that the child, the child's parents and
any person acting as a parent do not presently reside in the other state.
SECTION 16. Temporary Emergency Jurisdiction.
(1) A court of this state has temporary emergency jurisdiction if the child is
present in this state and the child has been abandoned or it is necessary in an
emergency to protect the child because the child, or a sibling or parent of the
child, is subjected to or threatened with mistreatment or abuse.
(2) If there is no previous
child custody determination that is entitled to be enforced under sections 1 to
41 of this 1999 Act and a child custody proceeding has not been commenced in a
court of a state having jurisdiction under sections 13 to 15 of this 1999 Act,
a child custody determination made under this section remains in effect until
an order is obtained from a court of a state having jurisdiction under sections
13 to 15 of this 1999 Act. If a child custody proceeding has not been or is not
commenced in a court of a state having jurisdiction under sections 13 to 15 of
this 1999 Act, a child custody determination made under this section becomes a
final determination if the determination so provides and this state becomes the
home state of the child.
(3) If there is a previous
child custody determination that is entitled to be enforced under sections 1 to
41 of this 1999 Act, or a child custody proceeding has been commenced in a
court of a state having jurisdiction under sections 13 to 15 of this 1999 Act,
any order issued by a court of this state under this section must specify in
the order a period that the court considers adequate to allow the person
seeking an order to obtain an order from the state having jurisdiction under
sections 13 to 15 of this 1999 Act. The order issued in this state remains in
effect until an order is obtained from the other state within the period
specified or the period expires.
(4) A court of this state
that has been asked to make a child custody determination under this section,
upon being informed that a child custody proceeding has been commenced in, or a
child custody determination has been made by, a court of a state having
jurisdiction under sections 13 to 15 of this 1999 Act, shall immediately
communicate with the other court. A court of this state that is exercising
jurisdiction under sections 13 to 15 of this 1999 Act, upon being informed that
a child custody proceeding has been commenced in, or a child custody
determination has been made by, a court of another state under a statute
similar to this section, shall immediately communicate with the court of that
state to resolve the emergency, protect the safety of the parties and the child
and determine a period for the duration of the temporary order.
SECTION 17. Notice; Opportunity to be Heard;
Joinder. (1) Before a child custody determination is made under sections 1
to 41 of this 1999 Act, notice and an opportunity to be heard in accordance
with the standards of section 8 of this 1999 Act must be given to all persons
entitled to notice under the law of this state as in child custody proceedings
between residents of this state, any parent whose parental rights have not been
previously terminated and any person having physical custody of the child.
(2) Sections 1 to 41 of this
1999 Act do not govern the enforceability of a child custody determination made
without notice or an opportunity to be heard.
(3) The obligation to join a
party and the right to intervene as a party in a child custody proceeding under
sections 1 to 41 of this 1999 Act are governed by the law of this state as in
child custody proceedings between residents of this state.
SECTION 18. Simultaneous Proceedings. (1) Except
as otherwise provided in section 16 of this 1999 Act, a court of this state may
not exercise its jurisdiction under sections 13 to 22 of this 1999 Act if, at
the time of the commencement of the proceeding, a proceeding concerning the
custody of the child has been commenced in a court of another state having
jurisdiction substantially in conformity with sections 1 to 41 of this 1999
Act, unless the proceeding has been terminated or is stayed by the court of the
other state because a court of this state is a more convenient forum under
section 19 of this 1999 Act.
(2) Except as otherwise
provided in section 16 of this 1999 Act, a court of this state, before hearing
a child custody proceeding, shall examine the court documents and other
information supplied by the parties under section 21 of this 1999 Act. If the court
determines that a child custody proceeding has been commenced in a court in
another state having jurisdiction substantially in accordance with sections 1
to 41 of this 1999 Act, the court of this state shall stay its proceeding and
communicate with the court of the other state. If the court of the state having
jurisdiction substantially in accordance with sections 1 to 41 of this 1999 Act
does not determine that the court of this state is a more appropriate forum,
the court of this state shall dismiss the proceeding.
(3) In a proceeding to
modify a child custody determination, a court of this state shall determine
whether a proceeding to enforce the determination has been commenced in another
state. If a proceeding to enforce a child custody determination has been
commenced in another state, the court may:
(a) Stay the proceeding for
modification pending the entry of an order of a court of the other state
enforcing, staying, denying or dismissing the proceeding for enforcement;
(b) Enjoin the parties from
continuing with the proceeding for enforcement; or
(c) Proceed with the
modification under conditions it considers appropriate.
SECTION 19. Inconvenient Forum. (1) A court of
this state that has jurisdiction under sections 1 to 41 of this 1999 Act to
make a child custody determination may decline to exercise its jurisdiction at
any time if the court determines that it is an inconvenient forum under the
circumstances and that a court of another state is a more appropriate forum.
The issue of inconvenient forum may be raised upon the motion of a party, the
court's own motion or the request of another court.
(2) Before determining
whether a court of this state is an inconvenient forum, the court shall
consider whether it is appropriate for a court of another state to exercise
jurisdiction. For this purpose, the court shall allow the parties to submit
information and shall consider all relevant factors, including:
(a) Whether domestic
violence has occurred and is likely to continue in the future and which state
could best protect the parties and the child;
(b) The length of time the
child has resided outside this state;
(c) The distance between the
court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial
circumstances of the parties;
(e) Any agreement of the
parties as to which state should assume jurisdiction;
(f) The nature and location
of the evidence required to resolve the pending litigation, including testimony
of the child;
(g) The ability of the court
of each state to decide the issue expeditiously and the procedures necessary to
present the evidence; and
(h) The familiarity of the
court of each state with the facts and issues in the pending litigation.
(3) If a court of this state
determines that it is an inconvenient forum and that a court of another state
is a more appropriate forum, it shall stay the proceedings upon condition that
a child custody proceeding be promptly commenced in another designated state
and may impose any other condition the court considers just and proper.
(4) A court of this state
may decline to exercise its jurisdiction under sections 1 to 41 of this 1999
Act if a child custody determination is incidental to an action for divorce or
another proceeding while still retaining jurisdiction over the divorce or other
proceeding.
SECTION 20. Jurisdiction Declined by Reason of
Conduct. (1) Except as otherwise provided in section 16 of this 1999 Act or
ORS 419B.100, if a court of this state has jurisdiction under sections 1 to 41
of this 1999 Act because a person seeking to invoke its jurisdiction has
engaged in unjustifiable conduct to so invoke the jurisdiction, the court shall
decline to exercise its jurisdiction unless:
(a) The parents and all
persons acting as parents have acquiesced in the exercise of jurisdiction;
(b) A court of the state
otherwise having jurisdiction under sections 13 to 15 of this 1999 Act
determines that this state is a more appropriate forum under section 19 of this
1999 Act; or
(c) No court of any other
state would have jurisdiction under the criteria specified in sections 13 to 15
of this 1999 Act.
(2) If a court of this state
declines to exercise its jurisdiction under subsection (1) of this section, it
may fashion an appropriate remedy to ensure the safety of the child and prevent
a repetition of the unjustifiable conduct, including staying the proceeding
until a child custody proceeding is commenced in a court having jurisdiction
under sections 13 to 15 of this 1999 Act.
(3) If a court dismisses a
petition or stays a proceeding because it declines to exercise its jurisdiction
under subsection (1) of this section, it shall assess against the party seeking
to invoke its jurisdiction necessary and reasonable expenses including costs,
communication expenses, attorney fees, investigative fees, expenses for
witnesses, travel expenses and child care expenses during the course of the
proceeding unless the party from whom necessary and reasonable expenses are
sought establishes that the assessment would be clearly inappropriate. The
court may not assess fees, costs or expenses against this state unless
authorized by law other than sections 1 to 41 of this 1999 Act.
SECTION 21. Information to be Submitted to Court.
(1) In a child custody proceeding, each party, in its first pleading or in an
attached affidavit, shall give information, if reasonably ascertainable, under
oath as to the child's present address or whereabouts, the places where the
child has lived during the last five years and the names and present addresses
of the persons with whom the child has lived during that period. The pleading
or affidavit must state whether the party:
(a) Has participated, as a
party or witness or in any other capacity, in any other proceeding concerning
the custody of or parenting time or visitation with the child and, if so,
identify the court, the case number and the date of the child custody
determination, if any;
(b) Knows of any proceeding
that could affect the current proceeding, including proceedings for enforcement
and proceedings relating to domestic violence, protective orders, termination
of parental rights and adoptions and, if so, identify the court, the case
number and the nature of the proceeding; and
(c) Knows the names and
addresses of any person not a party to the proceeding who has physical custody
of the child or claims rights of legal custody or physical custody of, or
parenting time or visitation with, the child and, if so, the names and
addresses of those persons.
(2) If the information
required by subsection (1) of this section is not furnished, the court, upon
motion of a party or its own motion, may stay the proceeding until the
information is furnished.
(3) If the declaration as to
any of the items described in subsection (1) of this section is in the
affirmative, the declarant shall give additional information under oath as
required by the court. The court may examine the parties under oath as to
details of the information furnished and other matters pertinent to the court's
jurisdiction and the disposition of the case.
(4) Each party has a
continuing duty to inform the court of any proceeding in this or any other
state that could affect the current proceeding.
(5) If a party alleges in an
affidavit or a pleading under oath that the health, safety or liberty of a
party or child would be jeopardized by disclosure of identifying information,
the information must be sealed and may not be disclosed to the other party or
the public unless the court orders the disclosure to be made after a hearing in
which the court takes into consideration the health, safety or liberty of the
party or child and determines that the disclosure is in the interest of
justice. Costs incurred by the court when special notice procedures are made
necessary by the nondisclosure of identifying information shall be paid by the
parties as deemed appropriate by the court.
SECTION 22. Appearance of Parties and Child. (1)
In a child custody proceeding in this state, the court may order a party to the
proceeding who is in this state to appear before the court in person with or
without the child. The court may order any person who is in this state and who
has physical custody or control of the child to appear in person with the
child.
(2) If a party to a child
custody proceeding whose presence is desired by the court is outside this
state, the court may order that a notice given under section 8 of this 1999 Act
include a statement directing the party to appear in person with or without the
child and informing the party that failure to appear may result in a decision
adverse to the party.
(3) The court may enter any
orders necessary to ensure the safety of the child and of any person ordered to
appear under this section.
(4) If a party to a child
custody proceeding who is outside this state is directed to appear under
subsection (2) of this section or desires to appear personally before the court
with or without the child, the court may require another party to pay
reasonable and necessary travel and other expenses of the party and the child
so appearing.
ENFORCEMENT
SECTION 23. Definitions. As used in sections 23
to 39 of this 1999 Act:
(1) "Petitioner"
means a person who seeks enforcement of an order for return of a child under
the Hague Convention on the Civil Aspects of International Child Abduction or
enforcement of a child custody determination.
(2) "Respondent"
means a person against whom a proceeding has been commenced for enforcement of
an order for return of a child under the Hague Convention on the Civil Aspects
of International Child Abduction or enforcement of a child custody determination.
SECTION 24. Enforcement Under Hague Convention.
Under sections 23 to 39 of this 1999 Act, a court of this state may also
enforce an order for the return of the child made under the Hague Convention on
the Civil Aspects of International Child Abduction as if the order were a child
custody determination.
SECTION 25. Duty to Enforce. (1) A court of this
state shall recognize and enforce a child custody determination of a court of
another state if the latter court exercised jurisdiction in substantial
conformity with sections 1 to 41 of this 1999 Act or the determination was made
under factual circumstances meeting the jurisdictional standards of sections 1
to 41 of this 1999 Act and the determination has not been modified in
accordance with sections 1 to 41 of this 1999 Act.
(2) A court of this state
may utilize any remedy available under other law of this state to enforce a
child custody determination made by a court of another state. The remedies
provided in sections 23 to 39 of this 1999 Act are cumulative and do not affect
the availability of other remedies to enforce a child custody determination.
SECTION 26. Temporary Parenting Time or Visitation.
In a child custody enforcement proceeding authorized by law:
(1) A court of this state
that does not have jurisdiction to modify a child custody determination may
issue a temporary order enforcing:
(a) A parenting time or
visitation schedule made by a court of another state; or
(b) The visitation or
parenting time provisions of a child custody determination of another state
that permit visitation or parenting time but do not provide for a specific
visitation or parenting time schedule.
(2) If a court of this state
makes an order under subsection (1)(b) of this section, the court shall specify
in the order a period that it considers adequate to allow the petitioner to
obtain an order from a court having jurisdiction under the criteria specified
in sections 13 to 22 of this 1999 Act. The order remains in effect until an
order is obtained from the other court or the period expires.
SECTION 27. Registration of Child Custody
Determination. (1) A child custody determination issued by a court of
another state may be registered in this state, with or without a simultaneous
request for enforcement, by sending to any circuit court in this state:
(a) A letter or other
document requesting registration;
(b) Two copies, including
one certified copy, of the determination sought to be registered and a
statement under penalty of perjury that to the best of the knowledge and belief
of the person seeking registration the order has not been modified; and
(c) Except as otherwise
provided in section 21 of this 1999 Act, the name and address of the person
seeking registration and any parent or person acting as a parent who has been
awarded custody, parenting time or visitation in the child custody
determination sought to be registered.
(2) On receipt of the
documents required by subsection (1) of this section, the registering court
shall cause the determination to be filed as a foreign judgment, together with
one copy of any accompanying documents and information, regardless of their form.
(3) The person seeking
registration of a child custody determination shall serve notice upon the
persons named under subsection (1)(c) of this section notifying them of the
opportunity to contest the registration in accordance with this section.
(4) The notice required by
subsection (3) of this section must state that:
(a) A registered
determination is enforceable as of the date of the registration in the same
manner as a determination issued by a court of this state;
(b) A hearing to contest the
validity of the registered determination must be requested within 21 days after
service of notice; and
(c) Failure to contest the
registration will result in confirmation of the child custody determination and
preclude further contest of that determination with respect to any matter that
could have been asserted.
(5) A person seeking to
contest the validity of a registered order must request a hearing within 21
days after service of the notice. At that hearing, the court shall confirm the
registered order unless the person contesting registration establishes that:
(a) The issuing court did
not have jurisdiction under sections 13 to 22 of this 1999 Act;
(b) The child custody
determination sought to be registered has been vacated, stayed or modified by a
court having jurisdiction to do so under sections 13 to 22 of this 1999 Act; or
(c) The person contesting
registration was entitled to notice, but notice was not given in accordance
with the standards of section 8 of this 1999 Act, in the proceedings before the
court that issued the order for which registration is sought.
(6) If a timely request for
a hearing to contest the validity of the registration is not made, the
registration is confirmed as a matter of law and the person requesting
registration and all persons served must be notified of the confirmation.
(7) Confirmation of a
registered order, whether by operation of law or after notice and hearing,
precludes further contest of the order with respect to any matter that could
have been asserted at the time of registration.
SECTION 28. Enforcement of Registered Determination.
(1) A court of this state may grant any relief normally available under the law
of this state to enforce a registered child custody determination made by a
court of another state.
(2) A court of this state
shall recognize and enforce, but may not modify, except in accordance with
sections 13 to 22 of this 1999 Act, a registered child custody determination of
a court of another state.
SECTION 29. Simultaneous Proceedings. If a
proceeding for enforcement under sections 23 to 39 of this 1999 Act is
commenced in a court of this state and the court determines that a proceeding
to modify the determination is pending in a court of another state having
jurisdiction to modify the determination under sections 13 to 22 of this 1999
Act, the enforcing court shall immediately communicate with the modifying
court. The proceeding for enforcement continues unless the enforcing court,
after consultation with the modifying court, stays or dismisses the proceeding.
SECTION 30. Expedited Enforcement of Child Custody
Determination. (1) A petition under sections 23 to 39 of this 1999 Act must
be verified. Certified copies of all orders sought to be enforced and of any
order confirming registration must be attached to the petition. A copy of a
certified copy of an order may be attached instead of the original.
(2) A petition for
enforcement of a child custody determination must state:
(a) Whether the court that
issued the determination identified the jurisdictional basis it relied upon in
exercising jurisdiction and, if so, what the basis was;
(b) Whether the
determination for which enforcement is sought has been vacated, stayed or
modified by a court whose decision must be enforced under sections 1 to 41 of
this 1999 Act and, if so, must identify the court, the case number and the
nature of the proceeding;
(c) Whether any proceeding
has been commenced that could affect the current proceeding, including
proceedings relating to domestic violence, protective orders, termination of
parental rights and adoptions and, if so, must identify the court, the case
number and the nature of the proceeding;
(d) The present physical
address of the child and the respondent, if known;
(e) Whether relief in
addition to the immediate physical custody of the child and attorney fees is
sought, including a request for assistance from law enforcement officials and,
if so, the relief sought; and
(f) If the child custody
determination has been registered and confirmed under section 27 of this 1999
Act, the date and place of registration.
(3) Upon the filing of a
petition, the court shall issue an order directing the respondent to appear in
person with or without the child at a hearing and may enter any order necessary
to ensure the safety of the parties and the child. If the court issues an
order, the order shall be served in the manner the court determines to be
appropriate under the circumstances of the case and may include service by the
sheriff. The person requesting the order shall pay the costs of service. The
court shall hold the hearing as soon as reasonably possible and shall expedite
the hearing if it finds an emergency is present.
(4) An order issued under
subsection (3) of this section must state the time and place of the hearing and
advise the respondent that at the hearing the court will order that the
petitioner may take immediate physical custody of the child and will order the
payment of fees, costs and expenses under section 34 of this 1999 Act, and may
schedule a hearing to determine whether further relief is appropriate, unless
the respondent appears and establishes that:
(a) The child custody
determination has not been registered and confirmed under section 27 of this
1999 Act and that:
(A) The issuing court did
not have jurisdiction under sections 13 to 22 of this 1999 Act;
(B) The child custody
determination for which enforcement is sought has been vacated, stayed or
modified by a court having jurisdiction to do so under sections 13 to 22 of
this 1999 Act; or
(C) The respondent was
entitled to notice, but notice was not given in accordance with the standards
of section 8 of this 1999 Act, in the proceedings before the court that issued
the order for which enforcement is sought; or
(b) The child custody
determination for which enforcement is sought was registered and confirmed
under section 27 of this 1999 Act, but has been vacated, stayed or modified by
a court of a state having jurisdiction to do so under sections 13 to 22 of this
1999 Act.
SECTION 31. Service of Petition and Order.
Except as otherwise provided in section 33 of this 1999 Act, the petition and
order for enforcement of a child custody determination must be served by the
petitioner, by any method authorized for service of process within this state,
upon the respondent and any person who has physical custody of the child.
SECTION 32. Hearing and Order. (1) Unless the
court issues a temporary emergency order under section 16 of this 1999 Act,
upon a finding that a petitioner is entitled to immediate physical custody of
the child under the controlling child custody determination, the court shall
order that the petitioner may take immediate physical custody of the child
unless the respondent establishes that:
(a) The child custody
determination has not been registered and confirmed under section 27 of this
1999 Act and that:
(A) The issuing court did
not have jurisdiction under sections 13 to 22 of this 1999 Act;
(B) The child custody
determination for which enforcement is sought has been vacated, stayed or
modified by a court of a state having jurisdiction to do so under sections 13
to 22 of this 1999 Act; or
(C) The respondent was
entitled to notice, but notice was not given in accordance with the standards
of section 8 of this 1999 Act, in the proceedings before the court that issued
the order for which enforcement is sought; or
(b) The child custody
determination for which enforcement is sought was registered and confirmed
under section 27 of this 1999 Act, but has been vacated, stayed or modified by
a court of a state having jurisdiction to do so under sections 13 to 22 of this
1999 Act.
(2) The court shall award
the fees, costs and expenses authorized under section 34 of this 1999 Act, may
grant additional relief, including a request for the assistance of law
enforcement officials, and may set further hearings, if necessary, to determine
whether additional relief is appropriate.
(3) A privilege against
disclosure of communications between spouses and a defense of immunity based on
the relationship of husband and wife or parent and child may not be invoked in
a proceeding under sections 23 to 39 of this 1999 Act.
SECTION 33. Warrant to Take Physical Custody of
Child. (1) Upon the filing of a petition seeking enforcement of a child
custody determination, the petitioner may file a verified application for the
issuance of a warrant to take physical custody of the child if the child is
immediately likely to suffer serious physical harm or be removed from this
state.
(2) If the court, upon the
testimony of the petitioner or other witness, is satisfied that there is
probable cause to believe that the child is imminently likely to suffer serious
physical harm or be removed from this state, it may issue a warrant to take
physical custody of the child. The petition must be heard on the next judicial
day after the warrant is executed unless that date is impossible. In that
event, the court shall hold the hearing on the first judicial day possible. The
application for the warrant must include the statements required by section 30
(2) of this 1999 Act.
(3) A warrant to take
physical custody of a child must:
(a) Recite the facts upon
which a conclusion of imminent serious physical harm or removal from the
jurisdiction is based;
(b) Direct law enforcement
officers to take physical custody of the child immediately; and
(c) Provide for the
placement of the child pending final relief.
(4) The respondent must be
served with the petition, warrant and order immediately after the child is
taken into physical custody.
(5) A warrant to take
physical custody of a child is enforceable throughout this state. If the court
finds on the basis of the testimony of the petitioner or other witness that a
less intrusive remedy is not effective, it may authorize law enforcement
officers to enter private property to take physical custody of the child. If
required by exigent circumstances of the case, the court may authorize law
enforcement officers to make a forcible entry at any hour.
(6) The court may impose
conditions upon placement of a child to ensure the appearance of the child and
the child's custodian.
SECTION 34. Costs, Fees and Expenses. (1) The
court shall award the prevailing party, including a state, necessary and
reasonable expenses incurred by or on behalf of the party, including costs,
communication expenses, attorney fees, investigative fees, expenses for
witnesses, travel expenses and child care expenses during the course of the
proceedings, unless the party from whom fees or expenses are sought establishes
that the award would be clearly inappropriate. An award may be inappropriate if
the award would cause the parent or child to seek public assistance.
(2) The court may not assess
fees, costs or expenses against a state unless authorized by law other than
sections 1 to 41 of this 1999 Act.
SECTION 35. Recognition and Enforcement. A court
of this state shall accord full faith and credit to an order issued by another
state and consistent with sections 1 to 41 of this 1999 Act that enforces a
child custody determination by a court of another state unless the order has
been vacated, stayed or modified by a court having jurisdiction to do so under
sections 13 to 22 of this 1999 Act.
SECTION 36. Appeals. An appeal may be taken from
a final order in a proceeding under sections 23 to 39 of this 1999 Act in
accordance with ORS chapter 19. Unless the court enters a temporary emergency
order under section 16 of this 1999 Act, the enforcing court may not stay an
order enforcing a child custody determination pending appeal.
SECTION 37. Role of District Attorney. (1) In a
case arising under sections 1 to 41 of this 1999 Act or involving the Hague
Convention on the Civil Aspects of International Child Abduction, the district
attorney may take any lawful action, including resort to a proceeding under
sections 23 to 39 of this 1999 Act or any other available civil proceeding, to
locate a child, obtain the return of a child or enforce a child custody
determination if there is:
(a) An existing child
custody determination;
(b) A request to do so from
a court in a pending child custody proceeding;
(c) A reasonable belief that
a criminal statute has been violated; or
(d) A reasonable belief that
the child has been wrongfully removed or retained in violation of the Hague
Convention on the Civil Aspects of International Child Abduction.
(2) A district attorney
acting under this section acts on behalf of the state to protect the state's
interest in the enforcement of sections 1 to 41 of this 1999 Act and may not
represent any party.
SECTION 38. Role of Law Enforcement. At the
request of a district attorney acting under section 37 of this 1999 Act, a law
enforcement officer may take any lawful action reasonably necessary to locate a
child or a party and assist a district attorney with responsibilities under
section 37 of this 1999 Act.
SECTION 39. Costs and Expenses. If the
respondent is not the prevailing party, the court may assess against the
respondent all direct expenses and costs incurred by the district attorney and
law enforcement officers under section 37 or 38 of this 1999 Act.
MISCELLANEOUS PROVISIONS
SECTION 40. Application and Construction. In
applying and construing sections 1 to 41 of this 1999 Act, consideration must
be given to the need to promote uniformity of the law with respect to its
subject matter among states that enact it.
SECTION 41. Severability Clause. If any
provision of sections 1 to 41 of this 1999 Act or its application to any person
or circumstance is held invalid, the invalidity does not affect other
provisions or applications of sections 1 to 41 of this 1999 Act that can be
given effect without the invalid provision or application, and to this end the
provisions of sections 1 to 41 of this 1999 Act are severable.
SECTION 42. Transitional Provision. A motion or
other request for relief made in a child custody proceeding or to enforce a
child custody determination that was commenced before the effective date of
this 1999 Act is governed by the law in effect at the time the motion or other
request was made.
SECTION 43.
ORS 21.325 is amended to read:
21.325. In the circuit court there shall be charged and
collected in advance by the clerk of the court the following fees for the
following purposes and services:
(1) Making transcription from judgment docket in the format
provided in ORCP 70 A, $6.
(2) Filing and docketing transcript of judgment in the format
provided in ORCP 70 A, $6.
(3) Filing and docketing copy of foreign judgment and affidavit
filed as provided in ORS 24.115 and 24.125 or copy of child custody [decree] determination of another state filed as
provided in [ORS 109.850] section 27 of this 1999 Act, $35.
(4) Issuing writs of execution or writs of garnishment, $4 for
each writ.
(5) Preparing clerk's certificate of satisfaction of judgment,
$5.
(6) Issuing an order [pursuant
to] under ORS 23.710 requiring a
judgment debtor to appear when the order is issued by any court other than the
court in which the original judgment was entered, $4.
(7) Issuing notices of restitution as provided in ORS 105.154,
$3 for each notice.
(8) For any service the clerk may be required or authorized to
perform and for which no fee is provided by law, such fees as the Chief Justice
of the Supreme Court may establish or authorize, except that [no] a
fee [shall] may not be charged for location or inspection of court records.
SECTION 44.
ORS 107.097 is amended to read:
107.097. (1) Except as otherwise provided in subsection (3) of
this section, a court may not enter ex parte a temporary order under ORS
107.095, 109.103 or 109.119 providing for the custody of, or parenting time
with, a child.
(2)(a) A party may apply to a court for a temporary protective
order of restraint by filing with the court an affidavit conforming to the
requirements of [ORS 109.790] section 21 of this 1999 Act.
(b) Upon receipt of an application under this subsection, the
court may issue a temporary protective order of restraint restraining and
enjoining each party from:
(A) Changing the child's usual place of residence;
(B) Interfering with the present placement and daily schedule
of the child;
(C) Hiding or secreting the child from the other party;
(D) Interfering with the other party's usual contact and
parenting time with the child;
(E) Leaving the state with the child without the written
permission of the other party or the permission of the court; or
(F) In any manner disturbing the current schedule and daily
routine of the child until custody or parenting time has been determined.
(c) A copy of the order and the supporting affidavit must be
served on the other party in the manner of service of a summons under ORCP 7.
The order must include the following statement:
___________________________________________________________________
Notice: You may request a hearing on this order as long as it
remains in effect by filing with the court a hearing request in the form
described in ORS 107.097 (5).
___________________________________________________________________
(3)(a) A court may enter ex parte a temporary order providing
for the custody of, or parenting time with, a child if:
(A) The party requesting an order is present in court and
presents an affidavit alleging that the child is in immediate danger; and
(B) The court finds, based on the facts presented in the
party's testimony and affidavit and in the testimony of the other party, if the
other party is present, that the child is in immediate danger.
(b) The party requesting an order under this subsection shall
provide the court with telephone numbers where the party can be reached at any
time during the day and a contact address.
(c) A copy of the order and the supporting affidavit must be
served on the other party in the manner of service of a summons under ORCP 7.
The order must include the following statement:
___________________________________________________________________
Notice: You may request a hearing on this order as long as it
remains in effect by filing with the court a hearing request in the form
described in ORS 107.097 (5).
___________________________________________________________________
(4)(a) A party against whom an order is entered under
subsection (2) or (3) of this section may request a hearing by filing with the
court a hearing request form described in subsection (5) of this section at any
time while the order is in effect.
(b) The court shall make reasonable efforts to hold a hearing
within 14 days and shall hold a hearing no later than 21 days after receipt of
the request for the hearing. The court shall notify each party of the time,
date and place of the hearing.
(c) An order issued under subsection (2) or (3) of this section
remains in effect through the date of the hearing. If the party against whom
the order was entered fails to appear at the hearing without good cause, the
court shall continue the order in effect. If the party who obtained the order
fails to appear at the hearing without good cause, the court shall vacate the
order.
(d) The issue at a hearing to contest:
(A) A temporary protective order of restraint is limited to a
determination of the status quo at the time the order was issued. If the
child's usual place of residence cannot be determined, the court may make any
further order the court finds appropriate in the best interests of the child.
(B) A temporary order for the custody of, or parenting time
with, a child is limited to whether the child was in immediate danger at the
time the order was issued.
(5) The hearing request form must be in substantially the
following form:
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
_______, )
PETITIONER, ) NO.____
)
) REQUEST
FOR
and ) HEARING
)
_______, )
Respondent. )
I
request a hearing.
___ I object to the Protective Order of Restraint
because I disagree with the representation of the
status quo in the following particulars:
________________________________
________________________________
________________________________
________________________________
________________________________.
___ I object to the Temporary Custody and Parenting
Time Order on the ground that the child was not in immediate danger at the time
the order was issued.
___________________
DATE:________________________
ADDRESS:________________________
________________________
TELEPHONE:________________________
___________________________________________________________________
(6) As used in this section:
(a) "Child's usual place of residence" has the
meaning given that term in ORS 107.138.
(b) "Party's usual contact and [visitation] parenting time,"
"present placement and daily schedule of the child" and "current
schedule and daily routine of the child" have the meanings given
"parent's usual contact and [visitation] parenting time," "present
placement and daily schedule of the child" and "current schedule and
daily routine of the child" in ORS 107.138.
NOTE:
Sections 45 and 46 were deleted by amendment. Subsequent sections were not
renumbered.
SECTION 47.
ORS 107.138 is amended to read:
107.138. (1)(a) A court, upon the motion of a party, may enter
a temporary status quo order to either party in a proceeding to modify a
judgment that awards custody of a child after:
(A) Notifying the other party; and
(B) Giving the other party an opportunity to contest issuance
of the order.
(b) The motion for a temporary status quo order must be
supported by an affidavit setting forth with specificity the information
required by [ORS 109.790] section 21 of this 1999 Act and the
person with whom the child has lived during the preceding year and the child's
current schedule, daily routine and usual place of residence.
(c) Notice to the party against whom the motion for the order
is sought must be served at least [20]
21 days before the date set for the
hearing. The issue at the hearing is limited to a determination of the status
quo at the time the motion for the order was filed.
(2) A temporary status quo order restrains and enjoins each
parent from:
(a) Changing the child's usual place of residence;
(b) Interfering with the present placement and daily schedule
of the child;
(c) Hiding or secreting the child from the other parent;
(d) Interfering with the other parent's usual contact and
parenting time with the child;
(e) Leaving the state with the child without the written
permission of the other parent or the permission of the court; or
(f) In any manner disturbing the current schedule and daily
routine of the child until the motion for modification has been granted or
denied.
(3) For purposes of this section:
(a) "Child's usual place of residence" means the place where the child is living at the time the motion for the temporary order is filed and has lived continuously for a period of three consecutive months, excluding any periods of time during which the noncustodial parent did exercise, or would otherwise have exercised, parenting time.
(b) "Parent's usual contact and parenting time,"
"present placement and daily schedule of the child" and "current
schedule and daily routine of the child" mean the contact, parenting time,
placement, schedule and routine at the time the motion for the temporary order
is filed.
SECTION 48.
ORS 107.174 is amended to read:
107.174. (1) Except as otherwise provided in this subsection,
the court shall order modification under ORS 107.135 of so much of a decree as
relates to the parenting time with a minor child, if the parents submit to the
court a notarized stipulation signed by both of the parents and requesting such
modification together with a form of order. The content and form of such
stipulation and order shall be as prescribed by the State Court Administrator.
At its discretion, the court may order the matter set for a hearing and require
the parties to appear personally before the court.
(2) This section shall not apply when the child to whom a duty
of support is owed is in another state which has enacted the Uniform Child
Custody Jurisdiction Act or the Uniform
Child Custody Jurisdiction and Enforcement Act and a court in that state
would have subject matter and personal jurisdiction under that Act to determine
custody and parenting time rights.
SECTION 49.
ORS 107.431 is amended to read:
107.431. (1) At any time after a decree of annulment or
dissolution of a marriage or a separation is granted, the court may set aside,
alter or modify so much of the decree relating to parenting time with a minor
child as it deems just and proper or may terminate or modify that part of the
order or decree requiring payment of money for the support of the minor child
with whom parenting time is being denied after:
(a) Motion to set aside, alter or modify is made by the parent
having parenting time rights;
(b) Service of notice on the parent or other person having
custody of the minor child is made in the manner provided by law for service of
a summons;
(c) Service of notice on the administrator of the Support
Enforcement Division of the Department of Justice when aid, as defined in ORS
418.035 (2), is being granted to or on behalf of any dependent child of the
parties. As an alternative to the service of notice on the administrator,
service may be made upon the branch office of the division which provides
service to the county in which the motion was filed. Service may be
accomplished by personal delivery or first class mail; and
(d) A showing that the parent or other person having custody of
the child or a person acting in that parent or other person's behalf has
interfered with or denied without good cause the exercise of the parent's
parenting time rights.
(2) The court may request the appearance of the district
attorney or the Support Enforcement Division in any proceeding under this
section in which it finds that the state may have a substantial interest.
(3) This section shall not apply when the child to whom a duty
of support is owed is in another state that has enacted the Uniform Child
Custody Jurisdiction Act or the Uniform
Child Custody Jurisdiction and Enforcement Act and a court in that state
would have subject matter and personal jurisdiction under that Act to determine
custody and parenting time rights.
SECTION 50.
ORS 107.710 is amended to read:
107.710. (1) Any person who has been the victim of abuse within
the preceding 180 days may petition the circuit court for relief under ORS
107.700 to 107.732, if the person is in immediate and present danger of further
abuse from the abuser. The person may seek relief by filing a petition with the
circuit court alleging that the person is in immediate and present danger of
abuse from the respondent, that the person has been the victim of abuse
committed by the respondent within the 180 days preceding the filing of the
petition and particularly describing the nature of the abuse and the dates
thereof. The abuse must have occurred not more than 180 days before the filing
of the petition. Allegations in the petition shall be made under oath or
affirmation. The circuit court shall have jurisdiction over all proceedings
under ORS 107.700 to 107.732.
(2) A person's right to relief under ORS 107.700 to 107.732
shall not be affected by the fact that the person left the residence or
household to avoid abuse.
(3) A petition filed under ORS 107.700 to 107.732 shall
disclose the existence of any custody, Family Abuse Prevention Act or Elder
Abuse Prevention Act proceedings, or any marital annulment, dissolution or
separation proceedings, or any filiation proceeding, pending between the
parties, and the existence of any other custody order affecting the children of
the parties.
(4) When the petitioner requests custody of any child, the
petition shall comply with [ORS 109.790]
section 21 of this 1999 Act and
disclose:
(a) The child's present residence and the length of time the
child has resided at the residence;
(b) The county and state where the child resided for the five
years immediately prior to the filing of the petition;
(c) The name and address of the party or other responsible
person with whom the child is presently residing;
(d) The name and current address of any party or other
responsible person with whom the child resided for the five years immediately
prior to the filing of the petition;
(e) Whether the party participated as a party, witness or in
any other capacity, in any other litigation concerning the custody of the child
in this or any other state;
(f) Whether the party has information of any custody proceeding
concerning the child pending in a court of this or any other state; and
(g) Whether the party knows of any person not a party to the
proceedings who has physical custody of the child or claims to have custody,
parenting time or visitation rights with respect to the child.
(5) For purposes of computing the 180-day period in this
section and ORS 107.718, any time during which the respondent is incarcerated
or has a principal residence more than 100 miles from the principal residence
of the petitioner shall not be counted as part of the 180-day period.
SECTION 51.
ORS 107.718 is amended to read:
107.718. (1) When a person files a petition under ORS 107.710,
the circuit court shall hold an ex parte hearing in person or by telephone on
the day the petition is filed or on the following judicial day. Upon a showing
that the petitioner has been the victim of abuse committed by the respondent
within 180 days preceding the filing of the petition and that there is an
immediate and present danger of further abuse to the petitioner, the court
shall, if requested by the petitioner, order, for a period of one year or until
the order is withdrawn or amended, or until the order is superseded as provided
in ORS 107.722, whichever is sooner:
(a) That temporary custody of the children of the parties be
awarded to the petitioner or, at the request of the petitioner, to the
respondent, subject to reasonable parenting time rights of the noncustodial
parent, which the court shall order, unless such parenting time is not in the
best interest of the child;
(b) That the respondent be required to move from the
petitioner's residence, if in the sole name of the petitioner or if it is
jointly owned or rented by the petitioner and the respondent, or if the parties
are married to each other;
(c) That the respondent be restrained from entering, or
attempting to enter, a reasonable area surrounding the petitioner's residence
if the respondent is required to move from petitioner's residence;
(d) That a peace officer accompany the party who is leaving or
has left the parties' residence to remove essential personal effects of the
party or the party's children, or both, including but not limited to clothing,
toiletries, diapers, medications, social security cards, birth certificates,
identification and tools of the trade;
(e) That the respondent be restrained from intimidating,
molesting, interfering with or menacing the petitioner, or attempting to
intimidate, molest, interfere with or menace the petitioner;
(f) That the respondent be restrained from intimidating,
molesting, interfering with or menacing any children in the custody of the
petitioner, or attempting to intimidate, molest, interfere with or menace any
children in the custody of the petitioner;
(g) That the respondent be restrained from entering, or
attempting to enter, on any premises and a reasonable area surrounding the
premises when it appears to the court that such restraint is necessary to
prevent the respondent from intimidating, molesting, interfering with or
menacing the petitioner or children whose custody is awarded to the petitioner;
or
(h) Other relief that the court considers necessary to provide
for the safety and welfare of the petitioner and the children in the custody of
the petitioner.
(2) If respondent is restrained from entering, or attempting to enter, an area surrounding petitioner's residence or any other premises, the order restraining respondent shall specifically describe the area.
(3) Immediate and present danger under this section includes
but is not limited to situations in which the respondent has recently
threatened petitioner with additional bodily harm.
(4) If the court awards parenting time to a parent who
committed abuse, the court shall make adequate provision for the safety of the
child and of the petitioner. The order of the court may include, but is not
limited to, the following:
(a) That exchange of a child between parents shall occur at a
protected location.
(b) That parenting time be supervised by another person or
agency.
(c) That the perpetrator of the abuse be required to attend and
complete, to the satisfaction of the court, a program of intervention for
perpetrators or any other counseling program designated by the court as a
condition of the parenting time.
(d) That the perpetrator of the abuse not possess or consume
alcohol or controlled substances during the parenting time and for 24 hours
preceding the parenting time.
(e) That the perpetrator of the abuse pay all or a portion of
the cost of supervised parenting time, and any program designated by the court
as a condition of parenting time.
(f) That no overnight parenting time occur.
(5) An instruction brochure shall be available from the clerk of the circuit court explaining the rights set forth under ORS 107.700 to 107.732. The petition, order and related forms shall be available from the clerk of the court and shall be in substantially the following form:
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF _________
_________, )
Petitioner ) PETITION FOR
(your name) ) RESTRAINING ORDER
) TO
PREVENT ABUSE
vs. )
) No.
______
_________, )
Respondent )
(person to be )
restrained) )
YOU MUST PROVIDE COMPLETE AND TRUTHFUL INFORMATION.
IF YOU DO NOT, THE COURT MAY DISMISS ANY RESTRAINING ORDER AND MAY ALSO HOLD
YOU IN CONTEMPT OF COURT.
If you wish to have your residential address or
telephone number withheld from respondent, use a contact address and telephone
number so the Court and the Sheriff can reach you if necessary.
ATTACH ADDITIONAL PAGES
IF NECESSARY.
I am the Petitioner and I state that the following
information is true:
I am a resident of ___________ County, Oregon.
Respondent is a resident of _____ County, Oregon.
I am _____ years of age and Respondent is _____
years of age.
1. CHECK AND FILL OUT THE SECTION(S) that apply to you and
respondent:
__ A. Respondent is my ____
spouse ____ former spouse. We were
married on ____________, 19___. We were divorced on
____________, 19___.
__ B. Respondent and I are adults
related by blood, marriage or adoption.
Respondent is my ____________ (type of relationship).
__ C. Respondent and I have been living together since _____, 19___.
__ D. Respondent and I lived together from _____, 19___, to _________,
19___.
__ E. Respondent and I have been involved in a sexually intimate
relationship within the last two years.
__ F. Respondent and I are the unmarried parents of a child.
__ G. I am a minor and have been involved in a sexually intimate
relationship with
respondent who
is 18 years of age or older.
2. To qualify for a restraining order,
respondent must have done one or more of the following:
Within the last 180 days,
respondent has:
__ A. Caused me bodily injury.
__ B. Attempted
to cause me bodily injury.
__ C. Placed
me in fear of immediate serious bodily injury.
__ D. Caused
me to engage in involuntary sexual relations by force or
threat of force.
3. Any period of time after the abuse occurred
during which respondent was incarcerated (in jail or prison) or lived more than
100 miles from your home is not counted as part of the 180-day period, and you
may still be eligible for a restraining order.
Respondent was incarcerated from _________, 19___, to _________, 19___.
Respondent lived more than
100 miles from my home from _________, 19___, to _________, 19___.
4. Did the abuse happen within the last 180 days
not including the times respondent was incarcerated (in jail or prison) or
lived more than 100 miles from your home? Yes No
Date and location of abuse:
________________________________
________________________________
How did respondent hurt or threaten you?
________________________________
________________________________
________________________________
5. Are there incidents other than those
described in question 4 above, in which respondent has hurt or threatened to
hurt you? If Yes, Explain:
________________________________
________________________________
________________________________
________________________________
6. I am in immediate and present danger of
further abuse by respondent because:
________________________________
________________________________
________________________________
7. In any of the above incidents:
Were drugs, alcohol or weapons involved?
Yes No
Did you need medical help? Yes No
Were the police or the courts involved?
Yes No
If you have circled yes to any of the
above questions, explain:
________________________________
________________________________
8. A. There
(is) (is not) another restraining order pending between
respondent and me. It is filed in
___ (County), ___ (State), and I am
(Petitioner) or (Respondent) in that
case.
The case number of the case is:
___________
B. There
(is) (is not) another lawsuit pending between respondent and me for divorce,
annulment, legal separation, filiation (paternity), custody, parenting time or
visitation.
If yes, type of lawsuit:
___________
It is filed in ______
(County), ______ (State).
C. If
you and respondent are unmarried, has legal paternity of your children been
established? Yes No
In what way? Birth certificate
Child support
proceeding
Paternity lawsuit
Other
Explain: ___________
9. A. The
children of respondent and me who are under 18 years of age are:
Name ___________ Age ___
Name ___________ Age ___
Name ___________ Age ___
Name ___________ Age ___
B. The children are now living
with ___________, at ________ (address).
For how long? ______
C. I
believe that I will need the assistance of a peace officer to regain custody of
my children from respondent. Yes No
D. Is
there a custody or any other order now in effect concerning any of these
children? Yes No
Type of order: ________
The case number is: ____ and
it is filed in ____ (County), ____ (State).
E. Where have the children listed in A. above lived for the last five years and with whom?
County/ Lived Present
Dates State With Address
From ____ to ____ _____ _____ _____
From ____ to ____ _____ _____ _____
From ____ to ____ _____ _____ _____
From ____ to ____ _____ _____ _____
F. I
have not been involved as a party, witness or in any other capacity in any
other custody, parenting time or visitation lawsuits concerning the children in
this or any other state except:
________________________________
________________________________
G. I
know of no other custody, parenting time or visitation lawsuits concerning the
children in this or any other state except:
________________________________
H. I
know of no one, other than respondent, who has physical custody of the children
or who claims custody, parenting time or visitation rights with the children,
except:
________________________________
________________________________
I. My
children have not lived in Oregon for the last six months but my children and I
are now present in Oregon and I want the court to award me custody because
(describe the emergency that makes this necessary or information that is in
Oregon that relates to the children):
________________________________
10. Respondent may be required to move from your
residence if it is in your sole name, or if it is jointly owned or rented by
you and respondent, or if you and respondent are married.
I (do) (do not) want respondent to move
from my residence.
My residence is:
Owned Leased Rented
By: ___________
PETITIONER ASKS THE COURT TO GRANT THE RELIEF
INDICATED IN THE "PETITIONER'S REQUEST" COLUMN OF THE PROPOSED
RESTRAINING ORDER, WHICH IS ATTACHED.
___________________________________________________________________
PETITIONER MUST NOTIFY THE
COURT
OF ANY CHANGE OF ADDRESS.
ALL NOTICES OF HEARING WILL
BE SENT TO THIS ADDRESS
AND DISMISSALS MAY BE
ENTERED IF YOU DO NOT APPEAR
AT A SCHEDULED HEARING.
If you wish to have your residential address or
telephone number withheld from respondent, use a contact address and telephone
number so the Court and the Sheriff can reach you if necessary.
___________
PETITIONER
STATE OF OREGON )
) ss.
County of ____ )
SUBSCRIBED
AND SWORN TO before me this ___ day of ______, 19___.
_____________________________
NOTARY PUBLIC FOR OREGON
RELEVANT DATA
RESPONDENT ___________
Sex ___ Telephone # ______
Residence Address
___________
City/State/Zip ___________
County ___________
Birthdate _____ Age ___
Race _____
Height ______ Weight ______
Eye Color ______
PETITIONER (you) _________
Sex ____ *Telephone # ______
*Residence Address _________
City/State/Zip ___________
County ___________
Birthdate ______ Age ____
Race ______
Height ______ Weight ______
Eye Color ______
*If you wish to have your
residential address or telephone number withheld from respondent, use a contact
address and telephone number so the Court and the Sheriff can reach you if
necessary.
PLEASE FILL OUT THIS
INFORMATION
TO AID IN SERVICE OF
THE RESTRAINING ORDER
Where is respondent most
likely to be located?
Residence Hours
______
Employment Hours
______
Address: _____
________
Employment Hours
______
Address: _____
________
Description of vehicle _________
Does respondent have any weapons or access to
weapons? Explain:
___________________________________________________________________
___________________________________________________________________
Has respondent ever been arrested for or convicted
of a violent crime? Explain:
___________________________________________________________________
___________________________________________________________________
Is there anything about respondent's character, past
behavior or the present situation that indicates that respondent may be a
danger to self or other? Explain:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
_____, )
Petitioner ) RESTRAINING
ORDER
(your name) ) TO
PREVENT ABUSE
)
vs. )
) No.
______
)
_____, )
Respondent )
(person to be )
restrained) )
TO THE RESPONDENT:
VIOLATION OF THIS RESTRAINING ORDER MAY RESULT IN
YOUR ARREST AND IN CIVIL AND/OR CRIMINAL PENALTIES. REVIEW THIS ORDER
CAREFULLY. EACH PROVISION MUST BE OBEYED. SEE YOUR RIGHTS TO A HEARING.
The Court, having reviewed the petition, makes the following findings:
[Judge's
Initials
__ Petitioner has been abused by respondent
as defined by ORS 107.705;
__ The
abuse of petitioner by respondent occurred within the last 180 days as provided
in ORS 107.710;
__ There is an immediate and present danger
of further abuse to petitioner;
and if there
are children, Oregon has jurisdiction over the issue of the custody of the
children under ORS 109.700 to 109.930 on the following grounds:
__ Oregon is home state of the children
under ORS 109.710 and 109.730.
__ It is
in the best interest of the children that Oregon assume jurisdiction based on
significant connection grounds under ORS 109.730 (1)(b).
__ Emergency grounds exist under ORS
109.730 (1)(c).
__ No other state has jurisdiction under
ORS 109.730 (1)(d).]
Judge's Initials
1. Petitioner has been
abused by respondent as defined by ____
ORS 107.705;
2. The abuse of petitioner
by respondent occurred within the last ____
180 days as provided
in ORS 107.710;
3. There is an immediate
and present danger of further abuse ____
to petitioner;
and if there are children, Oregon has jurisdiction over the issue of
the custody of the children under sections 1 to 41 of this 1999 Act on the
following grounds:
A. Oregon is the home state
of the child on the date this proceeding ____
was commenced; or
Oregon was the home
state within six months before this ____
proceeding was
commenced and the child is absent from
the state, but a
parent or person acting as a parent continues
to live in Oregon
under section 13 (1)(a) of this 1999 Act.
B. No other state has home
state jurisdiction under section 13 (1)(a) ____
of this 1999 Act; or
The home state of the
child ___________ (name) ____
has declined
jurisdiction and the child's parents have, or one of
the child's parents or
a person acting as a parent has, a significant
connection with Oregon
and substantial evidence is available here
concerning the child's
care, protection, training and personal
relationships under
section 13 (1)(b) of this 1999 Act.
C. All courts having
jurisdiction under home state grounds under ____
section 13 (1)(a) of
this 1999 Act or significant connections grounds
under section 13
(1)(b) of this 1999 Act have declined to exercise
jurisdiction under
section 13 (1)(c) of this 1999 Act.
D. No court of any other
state has jurisdiction under section 13 (1)(a), ____
(b) or (c) of this
1999 Act.
E. Emergency grounds exist
for the exercise of temporary emergency ____
jurisdiction because
the child is present in this state and has
been abandoned; or
Emergency grounds
exist for the exercise of temporary emergency ____
jurisdiction because
it is necessary to protect the child because the
child, or a sibling or
parent of the child, is subjected to or threatened
with mistreatment or
abuse under section 16 of this 1999 Act.
F. Because a previous
child custody, parenting time, guardianship ____
or juvenile dependency
determination has been made in
_________
(State/Tribe/Country), the custody
and parenting time
provisions in this order remain in effect for
one year or
until _________ (State/Tribe/Country)
issues an order,
whichever occurs first;
Because a child
custody, parenting time, guardianship or juvenile ____
dependency proceeding
has been commenced in _________
(State/Tribe/Country),
the custody and parenting time provisions
in this order remain
in effect for one year or until
_________
(State/Tribe/Country) issues an order,
whichever occurs
first; or
No child custody,
parenting time, guardianship or juvenile ____
dependency
determination has been issued or proceeding
commenced in another
state, tribe or country having jurisdiction
under sections 1 to 41
of this 1999 Act. The custody and parenting
time provisions in this order shall become a final determination for
purposes of sections 1 to 41 of this 1999 Act if Oregon becomes the home state
of the child.
IT IS HEREBY ORDERED that:
Petitioner's Request Judge's
Initials
[ ] 1. Respondent is
restrained (prohibited) from intimidating, ____
molesting, interfering with or menacing
petitioner, or
attempting to intimidate, molest, interfere with
or menace petitioner.
[ ] 2. Respondent is
restrained (prohibited) from intimidating, ____
molesting, interfering with or menacing any minor
children in
petitioner's custody, or attempting to
intimidate, molest,
interfere with or menace any minor children
in petitioner's custody:
_________________________
_________________________
[ ] 3. Respondent is
restrained (prohibited) from entering, or ____
attempting to enter:
(Include names and address unless withheld for safety
reasons.)
[ ] Petitioner's
residence. ____
[ ] Petitioner's
business or place of employment. ____
[ ] Petitioner's
school.
____
[ ] Other
locations.
____
[ ] The area
surrounding petitioner's residence, school ____
business, place of employment or other named
premises
described as follows (specifically describe
area):
_________________________
_________________________
[ ] 4. Respondent is
restrained (prohibited) from:
[ ] Contacting,
or attempting to contact, petitioner by telephone. ____
[ ] Contacting,
or attempting to contact, petitioner by mail. ____
[ ] 5. Respondent is
restrained (prohibited) from entering, or
attempting to enter:
[ ] The premises
of the children's day care provider. ____
[ ] The
children's school.
____
[ ] 6. Respondent shall
move from and not return to the re- ____
sidence located at _________ except with a
peace officer in order to remove essential
personal
effects of the respondent, and if the respondent
is the legal custodian, essential personal
effects
of respondent's children, including, but not
limited to: clothing, toiletries, diapers,
medica-
tions, social security cards, birth certificates,
identification and tools of the trade.
[ ] 7. A peace officer
shall accompany the petitioner to the ____
parties' residence in order to remove essential
personal
effects of petitioner, and if the petitioner is
the legal
custodian, essential personal effects of the
petitioner's
children, including, but not limited to:
clothing,
toiletries, diapers, medications, social security
cards,
birth certificates, identification and tools of
the trade.
[ ] 8. Petitioner is
awarded custody of the following children ____
of the parties, subject to the parenting time
terms set
forth below.
Name: ____________
Age: _______
Name: ____________
Age: _______
[ ] 9. Respondent is
awarded custody of the following child- ____
ren of the parties, subject to the parenting time
terms set
forth below.
Name: ____________
Age: _______
Name: ____________
Age: _______
[ ] 10. A peace officer
of the county or city in which the child- ____
ren are located shall assist in recovering the
custody of
the children of the above parties whose custody
has been
awarded to petitioner. The peace officer is
authorized to
use any reasonable force necessary to that end.
[ ] 11. Other relief:
-________________
____
_______________________
_______________________
IT
IS FURTHER ORDERED that the party not awarded custody shall be allowed
parenting time as set forth below:
Petitioner's Request
Judge's Initials
[ ] 12. NO PARENTING TIME
due to _________
____
_______________________
_______________________
[ ] 13. SUPERVISED
PARENTING TIME: Three hours per week, ____
Supervised by:
As follows:
(day of week, location, times)
[ ] 14. Once per week on
_______ (day) from ____ ____
a.m./p.m. to ____ a.m./p.m.
[ ] 15. On the FIRST and
THIRD weekends of each month ____
from 7:00 p.m. Saturday to 7:00 p.m. Sunday.
The first weekend is the one in which both
Saturday and Sunday are in the new month.
[ ] 16. On the FIRST and
THIRD weekends of each month ____
from 7:00 p.m. Friday to 7:00 p.m. Sunday.
The first weekend is the one in which both
Saturday and Sunday are in the new month.
[ ] 17. OTHER PARENTING
TIME AS FOLLOWS:
____
_______________________
_______________________
[ ] 18. Parenting time
details not provided for in this ORDER, ____
including the days or hours of parenting time, shall
be
arranged through _____________.
[ ] 19. The parent not
awarded custody will pick up and return ____
the children at the curb, or driveway if no curb,
of the
residence of the custodial parent or at ______
(name and address of different location) no more
than
15 minutes early nor 15 minutes late.
IF RESPONDENT IS NOT AWARDED CUSTODY AND
IF RESPONDENT IS OTHERWISE PROHIBITED
FROM BEING AT PETITIONER'S RESIDENCE,
RESPONDENT MAY BE AT THE CURB, OR DRIVE-
WAY IF NO CURB, OF PETITIONER'S RESIDENCE
FOR A MAXIMUM OF FIVE MINUTES AT THE
PARENTING TIME HOUR SPECIFIED IN THE ORDER
TO PICK UP OR RETURN THE CHILDREN OR AT ANY
OTHER TIME THE PARTIES AGREE TO.
[ ] 20. No further
service is necessary because respondent ____
appeared in person before the Court.
IT IS FURTHER ORDERED that:
SECURITY AMOUNT FOR
VIOLATION OF ANY PROVISION OF THIS ORDER IS $5,000 unless otherwise specified.
Other Amount ($
)
THE ABOVE
PROVISIONS OF THIS RESTRAINING ORDER ARE IN EFFECT FOR A PERIOD OF ONE YEAR OR
UNTIL THE ORDER IS VACATED, MODIFIED OR SUPERSEDED, WHICHEVER OCCURS FIRST.
DATED this ____ day of ___________, 19___.
______________________
CIRCUIT COURT JUDGE (signature)
______________________
CIRCUIT COURT JUDGE (printed)
___________________________________________________________________
THE STATE OF OREGON
FOR THE COUNTY OF _______
)
_____, ) No. ____
Petitioner, )
vs. ) AFFIDAVIT
OF PROOF
_____, ) OF SERVICE
Respondent. )
)
)
STATE OF )
OREGON )
) ss.
County of ____ )
I am a resident of the State of Oregon. I am a competent person
18 years of age or older. I am not an attorney for or a party to this case, or
an officer, director or employee of any party to this case.
On the ____ day of _____, 19___, I served the Restraining Order to Prevent Abuse and the Petition for Restraining Order to Prevent Abuse in this case personally upon the above-named respondent in _______ County by delivering to the respondent a copy of those papers, each of which was certified to be a true copy of each original.
______________
SUBSCRIBED AND SWORN TO before me this ____ day of _____, 19___.
_____________________________
NOTARY PUBLIC FOR OREGON
My Commission Expires:
________
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
)
_____, ) No. ____
Petitioner, )
vs. ) MOTION
AND ORDER
_____, ) OF DISMISSAL
Respondent. )
)
Comes now petitioner, ______, and moves this Court for an order allowing the voluntary withdrawal and dismissal of the Restraining Order on file herein.
_____________
Petitioner
SUBSCRIBED AND SWORN TO before me this ____ day of _____,
19___.
_____________________________
NOTARY
PUBLIC FOR OREGON
My
Commission Expires: ________
IT IS SO ORDERED this ___ day of ____, 19__.
_____________
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
_____, )
(D.O.B. ____) ) NOTICE
TO RESPONDENT
) (Family
Abuse
Petitioner, ) Prevention
Act)
)
and ) No.
_____
) _____,
_____, )
(D.O.B. ____) )
)
Respondent. )
THIS FORM MUST BE
ATTACHED TO SERVICE COPY
OF RESTRAINING ORDER
TO RESPONDENT: A TEMPORARY RESTRAINING ORDER HAS
BEEN ISSUED BY THE COURT WHICH AFFECTS YOUR RIGHTS AND IS NOW IN EFFECT. THIS
ORDER BECOMES EFFECTIVE IMMEDIATELY. IF YOU WISH TO CONTEST THE CONTINUATION OF
THIS ORDER, YOU MUST COMPLETE THIS FORM AND MAIL OR DELIVER IT TO:
REQUESTS FOR HEARING MUST BE MADE WITHIN 30 DAYS
AFTER YOU RECEIVE THE ORDER. YOU MUST INCLUDE YOUR ADDRESS AND TELEPHONE NUMBER
WITH YOUR REQUEST FOR A HEARING. THE HEARING WILL BE HELD WITHIN 21 DAYS, OR
WITHIN FIVE DAYS IF YOU ARE CONTESTING A CUSTODY PROVISION (NOT PARENTING
TIME). AT THE HEARING, A JUDGE WILL DECIDE WHETHER THE ORDER SHOULD BE CANCELED
OR CHANGED. THE ONLY PURPOSE OF THIS HEARING WILL BE TO DETERMINE IF THE TERMS
OF THE COURT'S TEMPORARY ORDER SHOULD BE CANCELED, CHANGED OR EXTENDED.
Keep in mind that this order remains in effect until
the court that issued the order modifies or dismisses it. It may also be
renewed upon a finding that a person in petitioner's situation would reasonably
fear further acts of abuse by you if the order is not renewed. If you are
arrested for violating this order, the security amount (bail) is $5,000, unless
a different amount is ordered by the court. Violation of this order constitutes
contempt of court and is punishable by a fine of up to $500 or one percent of
your annual gross income, whichever is greater, a jail term of up to six
months, or both. Other sanctions may be imposed. Under federal law, you may be
prohibited from purchasing or possessing a firearm if the order remains in
effect after the hearing.
___________________________________________________________________
REQUEST FOR HEARING
I am the Respondent in the above-referenced action
and I request a hearing to contest all or part of the order as follows (mark
one or more):
__ The
order restraining me from contacting or attempting to contact the
petitioner.
__ The
order granting child custody to the petitioner.
__ The
terms of the parenting time order.
__ Other
___________
I (will) (will not) be represented by an attorney at
the hearing.
Notice of the time and place of the hearing can be
mailed to me at the address below my signature.
Date: ___________
________________________________
SIGNATURE OF RESPONDENT
________________________________
________________________________
ADDRESS
________________________________
TELEPHONE NUMBER
___________________________________________________________________
(6) If the court orders relief:
(a) The clerk of the court shall provide without charge the number of certified true copies of the petition and order necessary to provide the petitioner with one copy and to effect service and shall have a true copy of the petition and order delivered to the county sheriff for service upon the respondent, unless the court finds that further service is unnecessary because the respondent appeared in person before the court.
(b) The county sheriff shall serve the respondent personally
unless the petitioner elects to have the respondent served personally by a
private party or by a peace officer who is called to the scene of a domestic
disturbance at which the respondent is present, and who is able to obtain a
copy of the order within a reasonable amount of time. Proof of service shall be
made in accordance with ORS 107.720.
(c) No filing fee, service fee or hearing fee shall be charged
for proceedings seeking only the relief provided under ORS 107.700 to 107.732.
(7) If the county sheriff:
(a) Determines that the order and petition are incomplete, the
order and petition shall be returned to the clerk of the court. The clerk of
the court shall notify the petitioner, at the address provided by the
petitioner, of the error or omission.
(b) After accepting the order and petition, cannot complete
service within 10 days, the sheriff shall notify the petitioner, at the address
provided by the petitioner, that the documents have not been served. If the
petitioner does not respond within 10 days, the county sheriff shall hold the
order and petition for future service and file a return to the clerk of the
court showing that service was not completed.
(8)(a) Within 30 days after a restraining order is served under this section, the respondent therein may request a court hearing upon any relief granted. The hearing request form shall be available from the clerk of the court and shall be in substantially the form provided in subsection (5) of this section.
(b) If the respondent requests a hearing under paragraph (a) of this subsection, the clerk of the court shall notify the petitioner of the date and time of such hearing, and shall supply the petitioner with a copy of the respondent's request for a hearing. The petitioner shall give to the clerk of the court information sufficient to allow such notification.
(c) The hearing shall not be limited to the issues raised in
the respondent's request for hearing form. If the respondent seeks to raise an
issue at the hearing not previously raised in the request for hearing form, the
petitioner shall be entitled to a reasonable continuance for the purpose of
preparing a response to the issue.
SECTION 51a. If Senate Bill 318 becomes law, section 51
of this 1999 Act is repealed and ORS 107.718, as amended by section 9, chapter
1052, Oregon Laws 1999 (Enrolled Senate Bill 318), is amended to read:
107.718. (1) When a person files a petition under ORS 107.710, the
circuit court shall hold an ex parte hearing in person or by telephone on the
day the petition is filed or on the following judicial day. Upon a showing that
the petitioner has been the victim of abuse committed by the respondent within
180 days preceding the filing of the petition, that there is an imminent danger
of further abuse to the petitioner and that the respondent represents a
credible threat to the physical safety of the petitioner or the petitioner's
child, the court shall, if requested by the petitioner, order, for a period of
one year or until the order is withdrawn or amended, or until the order is
superseded as provided in ORS 107.722, whichever is sooner:
(a) That temporary custody of the children of the parties be
awarded to the petitioner or, at the request of the petitioner, to the
respondent, subject to reasonable parenting time rights of the noncustodial
parent, which the court shall order, unless such parenting time is not in the
best interest of the child;
(b) That the respondent be required to move from the
petitioner's residence, if in the sole name of the petitioner or if it is
jointly owned or rented by the petitioner and the respondent, or if the parties
are married to each other;
(c) That the respondent be restrained from entering, or
attempting to enter, a reasonable area surrounding the petitioner's residence
if the respondent is required to move from petitioner's residence;
(d) That a peace officer accompany the party who is leaving or
has left the parties' residence to remove essential personal effects of the
party or the party's children, or both, including but not limited to clothing,
toiletries, diapers, medications, social security cards, birth certificates,
identification and tools of the trade;
(e) That the respondent be restrained from intimidating,
molesting, interfering with or menacing the petitioner, or attempting to
intimidate, molest, interfere with or menace the petitioner;
(f) That the respondent be restrained from intimidating,
molesting, interfering with or menacing any children in the custody of the
petitioner, or attempting to intimidate, molest, interfere with or menace any
children in the custody of the petitioner;
(g) That the respondent be restrained from entering, or
attempting to enter, on any premises and a reasonable area surrounding the
premises when it appears to the court that such restraint is necessary to
prevent the respondent from intimidating, molesting, interfering with or
menacing the petitioner or children whose custody is awarded to the petitioner;
or
(h) Other relief that the court considers necessary to provide
for the safety and welfare of the petitioner and the children in the custody of
the petitioner.
(2) If respondent is restrained from entering, or attempting to
enter, an area surrounding petitioner's residence or any other premises, the
order restraining respondent shall specifically describe the area.
(3) Imminent danger under this section includes but is not
limited to situations in which the respondent has recently threatened
petitioner with additional bodily harm.
(4) If the court awards parenting time to a parent who
committed abuse, the court shall make adequate provision for the safety of the
child and of the petitioner. The order of the court may include, but is not
limited to, the following:
(a) That exchange of a child between parents shall occur at a
protected location.
(b) That parenting time be supervised by another person or
agency.
(c) That the perpetrator of the abuse be required to attend and
complete, to the satisfaction of the court, a program of intervention for
perpetrators or any other counseling program designated by the court as a
condition of the parenting time.
(d) That the perpetrator of the abuse not possess or consume
alcohol or controlled substances during the parenting time and for 24 hours
preceding the parenting time.
(e) That the perpetrator of the abuse pay all or a portion of
the cost of supervised parenting time, and any program designated by the court
as a condition of parenting time.
(f) That no overnight parenting time occur.
(5) An instruction brochure shall be available from the clerk
of the circuit court explaining the rights set forth under ORS 107.700 to
107.732. The petition, order and related forms shall be available from the
clerk of the court and shall be in substantially the following form:
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON FOR
THE COUNTY OF _________
_________, )
Petitioner ) PETITION FOR
(your name) ) RESTRAINING ORDER
) TO
PREVENT ABUSE
vs. )
) No.
______
)
_________, )
Respondent )
(person to be )
restrained) )
YOU MUST PROVIDE COMPLETE AND TRUTHFUL INFORMATION.
IF YOU DO NOT, THE COURT MAY DISMISS ANY RESTRAINING ORDER AND MAY ALSO HOLD
YOU IN CONTEMPT OF COURT.
If you wish to have your residential address or
telephone number withheld from respondent, use a contact address and telephone
number so the Court and the Sheriff can reach you if necessary.
IF NECESSARY.
I am the Petitioner and I state that the following
information is true:
I am a resident of ___________ County, Oregon.
Respondent is a resident of _____ County, Oregon.
I am _____ years of age and Respondent is _____
years of age.
1. CHECK AND FILL OUT THE SECTION(S) that apply to you and respondent:
__ A. Respondent is my ____ spouse ____ former spouse. We were married on
____________, 19___. We were divorced on ____________, 19___.
__ B. Respondent and I are adults related by blood, marriage or adoption.
Respondent is my
____________ (type of relationship).
__ C. Respondent and I have been living together since _____, 19___.
__ D. Respondent and I lived together from _____, 19___, to _________,
19___.
__ E. Respondent and I have been involved in a sexually intimate
relationship within
the last two years.
__ F. Respondent and I are the unmarried parents of a child.
__ G. I am a minor and have been involved in a sexually intimate
relationship with
respondent who is 18 years of age or older.
2. To qualify for a restraining order, respondent must have done one or more of the following:
Within the last 180 days,
respondent has:
__ A. Caused me bodily injury.
__ B. Attempted to cause me bodily injury.
__ C. Placed me in fear of imminent bodily injury.
__ D. Caused me to engage in involuntary sexual relations by force or
threat of force.
3. Any period of time after the abuse occurred during which respondent was incarcerated (in jail or prison) or lived more than 100 miles from your home is not counted as part of the 180-day period, and you may still be eligible for a restraining order.
Respondent was incarcerated
from _________, 19___, to _________, 19___.
Respondent lived more than 100 miles from
my home from _________, 19___, to _________, 19___.
4. Did the abuse happen within the last 180 days not including the times respondent was incarcerated (in jail or prison) or lived more than 100 miles from your home? Yes No
Date and location of abuse:
________________________________
________________________________
How did respondent hurt or threaten you?
________________________________
________________________________
________________________________
5. Are there incidents other than those described in question 4 above, in which respondent has hurt or threatened to hurt you? If Yes, Explain:
________________________________
________________________________
________________________________
________________________________
6. I am in imminent danger of further abuse by respondent because:
________________________________
________________________________
________________________________
7. In any of the above incidents:
Were drugs, alcohol or weapons involved? Yes No
Did you need medical help? Yes No
Were the police or the courts involved? Yes No
If you have circled yes to any of the above questions, explain:
________________________________
________________________________
8. A. There (is) (is not) another restraining order pending between
respondent and me. It is filed in ___ (County), ___ (State), and I am
(Petitioner) or (Respondent) in that case.
The case number of the case is: ___________
B. There (is) (is not) another lawsuit pending between respondent and me for divorce, annulment, legal separation, filiation (paternity), custody, parenting time or visitation.
If yes, type of lawsuit: ___________
It is filed in ______ (County), ______ (State).
C. If you and respondent are unmarried, has legal paternity of your children been established? Yes No
In what way? Birth certificate
Child support proceeding
Paternity lawsuit
Other
Explain: ___________
9. A. The children of respondent and me who are under 18 years of age are:
Name: ____________
Age: _______
Age: _______
B. The children are now living with ___________, at ________ (address).
For how long? ______
C. I believe that I will need the assistance of a peace officer to regain custody of my children from respondent. Yes No
D. Is there a custody or any other order now in effect concerning any of these children? Yes No
Type of order: ________
The case number is: ____ and it is filed in ____ (County), ____ (State).
E. Where have the children listed in A. above lived for the last five years and with whom?
County/ Lived Present
Dates State With Address
From ____ to ____ _____ _____ _____
From ____ to ____ _____ _____ _____
From ____ to ____ _____ _____ _____
From ____ to ____ _____ _____ _____
F. I have not been involved as a party, witness or in any other capacity in any other custody, parenting time or visitation lawsuits concerning the children in this or any other state except:
__________________________
__________________________
G. I know of no other custody, parenting time or visitation lawsuits concerning the children in this or any other state except:
__________________________
H. I know of no one, other than respondent, who has physical custody of the children or who claims custody, parenting time or visitation rights with the children, except:
__________________________
I. My children have not lived in Oregon for the last six months but my children and I are now present in Oregon and I want the court to award me custody because (describe the emergency that makes this necessary or information that is in Oregon that relates to the children):
__________________________
10. Respondent may be required to move from your residence if it is in your sole name, or if it is jointly owned or rented by you and respondent, or if you and respondent are married. I (do) (do not) want respondent to move from my residence.
My residence is:
Owned Leased Rented
By: ___________
PETITIONER ASKS THE COURT TO GRANT THE RELIEF
INDICATED IN THE "PETITIONER'S REQUEST" COLUMN OF THE PROPOSED
RESTRAINING ORDER, WHICH IS ATTACHED.
___________________________________________________________________
PETITIONER MUST NOTIFY THE
COURT
OF ANY CHANGE OF ADDRESS.
ALL NOTICES OF HEARING WILL
BE SENT TO THIS ADDRESS
AND DISMISSALS MAY BE
ENTERED IF YOU DO NOT APPEAR
AT A SCHEDULED HEARING.
If you wish to have your residential address or
telephone number withheld from respondent, use a contact address and telephone
number so the Court and the Sheriff can reach you if necessary.
___________
PETITIONER
STATE OF OREGON )
) ss.
County of ____ )
SUBSCRIBED AND SWORN TO before me this ___ day of ______,
19___.
_____________________________
NOTARY PUBLIC FOR OREGON
My Commission Expires: _____
RESPONDENT ___________
Sex ___ Telephone # ______
Residence Address ___________
City/State/Zip ___________
County ___________
Birthdate _____ Age ___
Race _____
Height ______ Weight ______
Eye Color ______
PETITIONER (you) _________
Sex ____ *Telephone # ______
*Residence Address _________
City/State/Zip ___________
County ___________
Birthdate ______ Age ____
Race ______
Height ______ Weight ______
Eye Color ______
*If you wish to have your
residential address or telephone number withheld from respondent, use a contact
address and telephone number so the Court and the Sheriff can reach you if
necessary.
PLEASE FILL OUT THIS
INFORMATION
TO AID IN SERVICE OF
THE RESTRAINING ORDER
Where is respondent most
likely to be located?
Residence Hours
______
Employment Hours
______
Address: _____
________
Employment Hours
______
Address: _____
________
Description of vehicle _________
Does respondent have any weapons or access to
weapons? Explain:
___________________________________________________________________
___________________________________________________________________
Has respondent ever been arrested for or convicted
of a violent crime? Explain:
___________________________________________________________________
___________________________________________________________________
Is there anything about respondent's character, past
behavior or the present situation that indicates that respondent may be a
danger to self or other? Explain:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
_____, )
Petitioner ) RESTRAINING
ORDER
(your name) ) TO
PREVENT ABUSE
)
vs. )
) No.
______
)
_____, )
Respondent )
(person to be )
restrained) )
TO THE RESPONDENT:
VIOLATION OF THIS RESTRAINING ORDER MAY RESULT IN
YOUR ARREST AND IN CIVIL AND/OR CRIMINAL PENALTIES. THIS ORDER IS ENFORCEABLE
IN EVERY STATE. REVIEW THIS ORDER CAREFULLY. EACH PROVISION MUST BE OBEYED. SEE
YOUR RIGHTS TO A HEARING.
The
Court, having reviewed the petition, makes the following findings:
[Judge's
Initials
Petitioner and respondent are related as
follows (check all that apply):
__ Petitioner and respondent are spouses.
__ Petitioner and respondent are former
spouses.
__ Petitioner and respondent are adult
persons related by blood, marriage or
adoption.
__ Petitioner and respondent are cohabiting
or have cohabited with each
other.
__ Petitioner and respondent have been
involved in a sexually intimate
relationship with each other within the last two years.
__ Petitioner and respondent are unmarried
parents of a child.
__ Petitioner is a minor and has been
involved in a sexually intimate
relationship with respondent who is 18 years of age or older.
Additional findings:
__ Petitioner has been abused by respondent
as defined by ORS 107.705;
__ The abuse of petitioner by respondent
occurred within the last 180 days as
provided in ORS 107.710;
__ Respondent represents a credible threat
to the physical safety of petitioner
or petitioner's child and there is an imminent danger of further abuse
to
petitioner;
and if there
are children, Oregon has jurisdiction over the issue of the custody of the
children under ORS 109.700 to 109.930 on the following grounds:
__ Oregon is home state of the children
under ORS 109.710 and 109.730.
__ It is in the best interest of the
children that Oregon assume jurisdiction
based on significant connection grounds under ORS 109.730 (1)(b).
__ Emergency grounds exist under ORS
109.730 (1)(c).
__ No other state has jurisdiction under
ORS 109.730 (1)(d).]
Judge's
Initials
1. Petitioner and
respondent are related as follows (check all that apply):
A. Petitioner and
respondent are spouses. ____
B. Petitioner and
respondent are former spouses. ____
C. Petitioner and
respondent are adult persons related by blood, ____
marriage or adoption.
D. Petitioner and
respondent are cohabiting or have cohabited ____
with each other.
E. Petitioner and
respondent have been involved in a sexually ____
intimate relationship
with each other within the last two years.
F. Petitioner and
respondent are unmarried parents of a child. ____
G. Petitioner is a minor
and has been involved in a sexually ____
intimate relationship
with respondent who is 18 years of age or older.
2. Additional findings:
A. Petitioner has been
abused by respondent as defined by ____
ORS 107.705.
B. The abuse of petitioner
by respondent occurred within the last ____
180 days as provided
in ORS 107.710.
C. Respondent represents a
credible threat to the physical safety ____
of petitioner or
petitioner's child and there is an imminent danger of
further abuse to
petitioner.
D. If there are children,
Oregon has jurisdiction over the issue ____
of the custody of the
children under sections 1 to 41 of this 1999 Act
on the following
grounds:
a. Oregon is the home
state of the child on the date this proceeding ____
was commenced; or
Oregon was the home
state within six months before this ____
proceeding was
commenced and the child is absent from the
state, but a parent or person acting as a parent continues to live in
Oregon under section 13 (1)(a) of this 1999 Act.
b. No other state has home
state jurisdiction under section 13 (1)(a) ____
of this 1999 Act; or
The home state of the
child _________ (name) ____
has declined
jurisdiction and the child's parents have, or one of
the child's parents or
a person acting as a parent has, a significant
connection with Oregon
and substantial evidence is available here
concerning the child's
care, protection, training and personal
relationships under
section 13 (1)(b) of this 1999 Act.
c. All courts having
jurisdiction under home state grounds under ____
section 13 (1)(a) of
this 1999 Act or significant connections grounds
under section 13
(1)(b) of this 1999 Act have declined to exercise
jurisdiction under
section 13 (1)(c) of this 1999 Act.
d. No court of any other
state has jurisdiction under section 13 (1)(a), ____
(b) or (c) of this
1999 Act.
e. Emergency grounds exist
for the exercise of temporary emergency ____
jurisdiction because
the child is present in this state and has
been abandoned; or
Emergency grounds
exist for the exercise of temporary emergency ____
jurisdiction
because it is necessary to protect the child because the
child, or a sibling or
parent of the child, is subjected to or threatened
with mistreatment or
abuse under section 16 of this 1999 Act.
f. Because a previous
child custody, parenting time, guardianship ____
or juvenile dependency
determination has been made in
_________
(State/Tribe/Country), the custody
and parenting time
provisions in this order remain in effect for
one year or
until _________ (State/Tribe/Country)
issues an order,
whichever occurs first;
Because a child
custody, parenting time, guardianship or juvenile ____
dependency proceeding
has been commenced in _________
(State/Tribe/Country),
the custody and parenting time provisions
in this order remain
in effect for one year or until
_________ (State/Tribe/Country)
issues an order,
whichever occurs
first; or
No child custody,
parenting time, guardianship or juvenile ____
dependency determination has been issued or proceeding
commenced in another state, tribe or country having jurisdiction
under sections 1 to 41 of this 1999 Act. The custody and parenting time
provisions in this order shall become a final determination for purposes of
sections 1 to 41 of this 1999 Act if Oregon becomes the home state
of the child.
IT IS HEREBY ORDERED that:
Petitioner's Request Judge's Initials
[ ] 1. Respondent is
restrained (prohibited) from intimidating, ____
molesting, interfering with or menacing
petitioner, or
attempting to intimidate, molest, interfere with
or menace petitioner.
[ ] 2. Respondent is
restrained (prohibited) from intimidating, ____
molesting, interfering with or menacing any minor
children in
petitioner's custody, or attempting to
intimidate, molest,
interfere with or menace any minor children
in petitioner's custody:
_________________________
_________________________
[ ] 3. Respondent is
restrained (prohibited) from entering, or ____
attempting to enter:
(Include names and address unless withheld for safety
reasons.)
[ ] Petitioner's
residence. ____
[ ] Petitioner's
business or place of employment. ____
[ ] Petitioner's
school.
____
[ ] Other
locations.
____
[ ] The area
surrounding petitioner's residence, school ____
business, place of employment or other named
premises
described as follows (specifically describe
area):
_________________________
_________________________
[ ] 4. Respondent is
restrained (prohibited) from:
[ ] Contacting,
or attempting to contact, petitioner by telephone. ____
[ ] Contacting,
or attempting to contact, petitioner by mail. ____
[ ] 5. Respondent is
restrained (prohibited) from entering, or
attempting to enter:
[ ] The premises
of the children's day care provider. ____
[ ] The
children's school.
____
[ ] 6. Respondent shall
move from and not return to the re- ____
sidence located at _________ except with a
peace officer in order to remove essential
personal
effects of the respondent, and if the respondent
is the legal custodian, essential personal
effects
of respondent's children, including, but not
limited to: clothing, toiletries, diapers,
medica-
tions, social security cards, birth certificates,
identification and tools of the trade.
[ ] 7. A peace officer
shall accompany the petitioner to the ____
parties' residence in order to remove essential
personal
effects of petitioner, and if the petitioner is
the legal
custodian, essential personal effects of the
petitioner's
children, including, but not limited to:
clothing,
toiletries, diapers, medications, social security
cards,
birth certificates, identification and tools of
the trade.
[ ] 8. Petitioner is
awarded custody of the following children ____
of the parties, subject to the parenting time
terms set
forth below.
Name: ____________
Age: _______
Name: ____________
Age: _______
[ ] 9. Respondent is
awarded custody of the following child- ____
ren of the parties, subject to the parenting time
terms set
forth below.
Name: ____________
Age: _______
Name: ____________
Age: _______
[ ] 10. A peace officer
of the county or city in which the child- ____
ren are located shall assist in recovering the
custody of
the children of the above parties whose custody
has been
awarded to petitioner. The peace officer is
authorized to
use any reasonable force necessary to that end.
[ ] 11. Other relief:
-________________
____
_______________________
_______________________
IT
IS FURTHER ORDERED that the party not awarded custody shall be allowed
parenting time as set forth below:
Petitioner's Request
Judge's Initials
[ ] 12. NO PARENTING TIME
due to _________
____
_______________________
_______________________
[ ] 13. SUPERVISED
PARENTING TIME: Three hours per week, ____
Supervised by:
As follows:
(day of week, location, times)
[ ] 14. Once per week on
_______ (day) from ____ ____
a.m./p.m. to ____ a.m./p.m.
[ ] 15. On the FIRST and
THIRD weekends of each month ____
from 7:00 p.m. Saturday to 7:00 p.m. Sunday.
The first weekend is the one in which both
Saturday and Sunday are in the new month.
[ ] 16. On the FIRST and
THIRD weekends of each month ____
from 7:00 p.m. Friday to 7:00 p.m. Sunday.
The first weekend is the one in which both
Saturday and Sunday are in the new month.
[ ] 17. OTHER PARENTING
TIME AS FOLLOWS:
____
_______________________
_______________________
[ ] 18. Parenting time
details not provided for in this ORDER, ____
including the days or hours of parenting time,
shall be
arranged through _____________.
[ ] 19. The parent not
awarded custody will pick up and return ____
the children at the curb, or driveway if no curb,
of the
residence of the custodial parent or at ______
(name and address of different location) no more
than
15 minutes early nor 15 minutes late.
IF RESPONDENT IS NOT AWARDED CUSTODY AND
IF RESPONDENT IS OTHERWISE PROHIBITED
FROM BEING AT PETITIONER'S RESIDENCE,
RESPONDENT MAY BE AT THE CURB, OR DRIVE-
WAY IF NO CURB, OF PETITIONER'S RESIDENCE
FOR A MAXIMUM OF FIVE MINUTES AT THE
PARENTING TIME HOUR SPECIFIED IN THE ORDER
TO PICK UP OR RETURN THE CHILDREN OR AT ANY
OTHER TIME THE PARTIES AGREE TO.
[ ] 20. No further
service is necessary because respondent ____
appeared in person before the Court.
IT IS FURTHER ORDERED that:
SECURITY AMOUNT FOR
VIOLATION OF ANY PROVISION OF THIS ORDER IS $5,000 unless otherwise specified.
Other Amount ($
)
THE ABOVE PROVISIONS OF THIS
RESTRAINING ORDER ARE IN EFFECT FOR A PERIOD OF ONE YEAR OR UNTIL THE ORDER IS
VACATED, MODIFIED OR SUPERSEDED, WHICHEVER OCCURS FIRST.
DATED this ____ day of ___________, 19___.
______________________
CIRCUIT COURT JUDGE (signature)
______________________
CIRCUIT COURT JUDGE (printed)
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
)
_____, ) No. ____
Petitioner, )
vs. ) AFFIDAVIT
OF PROOF
_____, ) OF SERVICE
Respondent. )
)
)
STATE OF )
OREGON )
) ss.
County of ____ )
I am a resident of the State of Oregon. I am a competent person
18 years of age or older. I am not an attorney for or a party to this case, or
an officer, director or employee of any party to this case.
On the ____ day of _____, 19___, I served the Restraining Order
to Prevent Abuse and the Petition for Restraining Order to Prevent Abuse in
this case personally upon the above-named respondent in _______ County by
delivering to the respondent a copy of those papers, each of which was
certified to be a true copy of each original.
______________
Signature of _________
SUBSCRIBED AND SWORN TO before me this ____ day of _____,
19___.
_____________________________
NOTARY PUBLIC FOR OREGON
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
)
_____, ) No. ____
Petitioner, )
vs. ) MOTION
AND ORDER
_____, ) OF DISMISSAL
Respondent. )
)
Comes now petitioner, ______, and moves this Court for an order
allowing the voluntary withdrawal and dismissal of the Restraining Order on
file herein.
_____________
Petitioner
SUBSCRIBED AND SWORN TO before me this ____ day of _____,
19___.
_____________________________
My Commission Expires: _____
IT IS SO ORDERED this ___ day of ____, 19__.
_____________
JUDGE
___________________________________________________________________
IN THE CIRCUIT COURT OF
THE STATE OF OREGON
FOR THE COUNTY OF _______
_____, )
(D.O.B. ____) ) NOTICE
TO RESPONDENT
) (Family
Abuse
Petitioner, ) Prevention
Act)
)
and ) No.
_____
) _____,
_____, )
(D.O.B. ____) )
)
Respondent. )
THIS FORM MUST BE
ATTACHED TO SERVICE COPY
OF RESTRAINING ORDER
TO RESPONDENT: A RESTRAINING ORDER HAS BEEN ISSUED
BY THE COURT WHICH AFFECTS YOUR RIGHTS AND IS NOW IN EFFECT. THIS ORDER BECOMES
EFFECTIVE IMMEDIATELY. IF YOU WISH TO CONTEST THE CONTINUATION OF THIS ORDER,
YOU MUST COMPLETE THIS FORM AND MAIL OR DELIVER IT TO:
REQUESTS FOR HEARING MUST BE MADE WITHIN 30 DAYS
AFTER YOU RECEIVE THE ORDER. YOU MUST INCLUDE YOUR ADDRESS AND TELEPHONE NUMBER
WITH YOUR REQUEST FOR A HEARING. THE HEARING WILL BE HELD WITHIN 21 DAYS, OR
WITHIN FIVE DAYS IF YOU ARE CONTESTING A CUSTODY PROVISION (NOT PARENTING
TIME). AT THE HEARING, A JUDGE WILL DECIDE WHETHER THE ORDER SHOULD BE
CANCELED, CHANGED OR EXTENDED. THE ONLY PURPOSE OF THIS HEARING WILL BE TO
DETERMINE IF THE TERMS OF THE COURT'S ORDER SHOULD BE CANCELED, CHANGED OR
EXTENDED.
IF YOU DO NOT REQUEST A HEARING WITHIN THE TIME
ALLOWED BY LAW, THE COURT WILL HEAR THE MATTER BY REVIEWING THE PETITION AND
ORDER. AT THE REVIEW HEARING, THE COURT WILL ENTER AN ORDER CONTINUING THE SAME
TERMS AND CONDITIONS THAT ARE CONTAINED IN THIS ORIGINAL ORDER THAT IS BEING
SERVED ON YOU. THE CONTINUATION ORDER WILL BE IN EFFECT UNTIL IT EXPIRES BY ITS
OWN TERMS (ONE YEAR FROM THE DATE THE ORIGINAL ORDER WAS ISSUED) OR UNTIL
FURTHER COURT ORDER. YOU WILL NOT RECEIVE A COPY OF THE CONTINUATION ORDER.
KEEP IN MIND THAT THE RESTRAINING ORDER YOU HAVE RECEIVED IS IN EFFECT AND REMAINS IN EFFECT UNTIL THE COURT THAT ISSUED THE ORDER MODIFIES IT OR DISMISSES IT OR UNTIL IT EXPIRES. THE ORDER MAY ALSO BE RENEWED UPON A FINDING THAT A PERSON IN THE PETITIONER'S SITUATION WOULD REASONABLY FEAR FURTHER ACTS OF ABUSE BY YOU IF THE ORDER IS NOT RENEWED. IF YOU ARE ARRESTED FOR VIOLATING THIS ORDER, THE SECURITY AMOUNT (BAIL) IS $5,000, UNLESS A DIFFERENT AMOUNT IS ORDERED BY THE COURT.
This restraining order, or any order continuing or changing
this order, is enforceable in every county in Oregon. It is also enforceable in
all 50 states, the District of Columbia, tribal lands and territories of the
United States.
Violation of this restraining order, or any order continuing or
changing this order, constitutes contempt of court, punishable by a fine of up
to $500 or one percent of your annual gross income, whichever is greater, or a
jail term of up to six months, or both. Other sanctions may also be imposed for
contempt.
While this order, or any order continuing or changing this
order, is in effect, federal law may prohibit you from:
Traveling across state lines or tribal land lines with the
intent to violate this order and then violating this order.
Causing the petitioner to cross state lines or tribal land
lines for your purpose of violating the order.
Possessing, receiving, shipping or transporting any firearm or
firearm ammunition.
Whether or not a restraining order is in effect, federal law
may prohibit you from:
Traveling across state lines or tribal land lines with the
intent to injure the petitioner and then intentionally committing a crime of
violence causing bodily injury to the petitioner.
Causing the petitioner to travel across state lines or tribal
land lines if your intent is to cause bodily injury to the petitioner or if the
travel results in your causing bodily injury to the petitioner.
___________________________________________________________________
REQUEST FOR HEARING
I am the Respondent in the above-referenced action
and I request a hearing to contest all or part of the order as follows (mark
one or more):
__ The
order restraining me from contacting or attempting to contact the
petitioner.
__ The
order granting child custody to the petitioner.
__ The
terms of the parenting time order.
__ Other
___________
I (will) (will not) be represented by an attorney at
the hearing.
Notice of the time and place of the hearing can be
mailed to me at the address below my signature.
Date: ___________
____________________________
SIGNATURE OF RESPONDENT
____________________________
____________________________
____________________________
TELEPHONE NUMBER
___________________________________________________________________
(6) If the court orders relief:
(a) The clerk of the court shall provide without charge the
number of certified true copies of the petition and order necessary to provide
the petitioner with one copy and to effect service and shall have a true copy
of the petition and order delivered to the county sheriff for service upon the
respondent, unless the court finds that further service is unnecessary because
the respondent appeared in person before the court. In addition and upon
request by the petitioner, the clerk shall provide the petitioner, without
charge, two exemplified copies of the petition and order.
(b) The county sheriff shall serve the respondent personally
unless the petitioner elects to have the respondent served personally by a
private party or by a peace officer who is called to the scene of a domestic
disturbance at which the respondent is present, and who is able to obtain a copy
of the order within a reasonable amount of time. Proof of service shall be made
in accordance with ORS 107.720.
(c) No filing fee, service fee or hearing fee shall be charged
for proceedings seeking only the relief provided under ORS 107.700 to 107.732.
(7) If the county sheriff:
(a) Determines that the order and petition are incomplete, the
order and petition shall be returned to the clerk of the court. The clerk of
the court shall notify the petitioner, at the address provided by the
petitioner, of the error or omission.
(b) After accepting the order and petition, cannot complete
service within 10 days, the sheriff shall notify the petitioner, at the address
provided by the petitioner, that the documents have not been served. If the
petitioner does not respond within 10 days, the county sheriff shall hold the
order and petition for future service and file a return to the clerk of the
court showing that service was not completed.
(8)(a) Within 30 days after a restraining order is served under
this section, the respondent therein may request a court hearing upon any
relief granted. The hearing request form shall be available from the clerk of
the court and shall be in substantially the form provided in subsection (5) of
this section.
(b) If the respondent requests a hearing under paragraph (a) of
this subsection, the clerk of the court shall notify the petitioner of the date
and time of such hearing, and shall supply the petitioner with a copy of the
respondent's request for a hearing. The petitioner shall give to the clerk of
the court information sufficient to allow such notification.
(c) The hearing shall not be limited to the issues raised in
the respondent's request for hearing form. If the respondent seeks to raise an
issue at the hearing not previously raised in the request for hearing form, the
petitioner shall be entitled to a reasonable continuance for the purpose of
preparing a response to the issue.
(9)(a) If the respondent does not request a hearing under
subsection (8)(a) of this section, the court shall hear the matter by review of
the petition and order no later than 30 days after the period for requesting a
hearing has expired. If the court finds at the review hearing that the court
has jurisdiction over the subject matter and the parties, the court shall enter
an order continuing in effect all terms and conditions of the original order
until it expires by its own terms or by further order of the court. The court
shall include in the continuation order a certificate in substantially the following
form in a separate section immediately above the signature of the judge:
___________________________________________________________________
CERTIFICATE OF COMPLIANCE
WITH
THE VIOLENCE AGAINST WOMEN
ACT
This protective order meets all full faith and
credit requirements of the Violence Against Women Act, 18 U.S.C. 2265 (1994).
This court has jurisdiction over the parties and the subject matter. The
defendant was afforded notice and timely opportunity to be heard as provided by
the law of this jurisdiction. This order is valid and entitled to enforcement
in this and all other jurisdictions.
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(b) A continuation order issued at the review hearing need not
be served on the respondent to be effective.
(c) If the court finds at the review hearing that it does not
have jurisdiction over the subject matter or the parties, the court shall
dismiss the order. The clerk of the court shall immediately deliver a true copy
of the dismissal order to the county sheriff. Upon receipt of the dismissal
order, the sheriff shall promptly remove the original order from the Law
Enforcement Data System and the databases of the National Crime Information
Center of the United States Department of Justice.
SECTION 52.
ORS 109.309 is amended to read:
109.309. (1) Any person may petition the circuit court for
leave to adopt another person and, if desired, for a change of the other
person's name. One petitioner, the child or one birth parent must be a resident
of this state. As used in this subsection, "resident" means a person
who has resided in this state continuously for a period of six months prior to
the date of the petition.
(2)[(a)] Except as
provided in [paragraph (b) of this
subsection and] subsections (1) and (3) of this section as they relate to
residency, when the petition is for the adoption of a minor child, the adoption
shall be governed by the Uniform Child Custody Jurisdiction and Enforcement Act, [ORS 109.700 to 109.930] sections 1 to 41 of this 1999 Act.
[(b) The joinder
provision of the Uniform Child Custody Jurisdiction Act, ORS 109.800, does not
apply.]
(3) The petition to adopt a person 18 years of age or older may
be filed in the county where the petitioner, the person to be adopted or the
person who consents to the adoption resides.
(4) In a petition to adopt a minor child, venue shall lie in
the Oregon county with which the child has the most significant connection or
in the Oregon county in which the licensed adoption agency is located.
(5)(a) When the petition is for the adoption of a minor child,
the petitioner shall also file at the time of filing the petition:
(A) A written statement containing the full names and permanent
addresses of:
(i) The petitioners;
(ii) All persons whose consent to the adoption is required
under ORS 109.312 when such names are either known or may be readily
ascertained by the petitioners; and
(iii) The Oregon licensed adoption agency, if any, or the
relative or person that privately placed the child for adoption.
(B) The documents demonstrating consent under ORS 109.312 to
the adoption of the minor child.
(C) Written evidence documenting a current home study that has
been approved by either the State Office for Services to Children and Families
or an Oregon licensed adoption agency submitted for the purpose of
demonstrating that the petitioners meet the minimum standards for adoptive
homes as set forth in the office's administrative rules.
(b) A relative who qualifies under the State Office for
Services to Children and Families administrative rules for a waiver of the
office's home study requirements described in paragraph (a)(C) of this
subsection may file the request for waiver along with the petition for
adoption.
(c) The State Office for Services to Children and Families,
upon request by the petitioner, may waive the home study requirements described
in paragraph (a)(C) of this subsection in an adoption in which one of the
child's biological or adoptive parents retains parental rights. The office
shall waive post-placement reports in an adoption in which one of the child's
biological or adoptive parents retains parental rights.
(6)(a) The petitioner shall cause copies of the documents
required to be filed with the court under subsection (5) of this section to be
served upon the Assistant Director for Services to Children and Families, by
either registered or certified mail with return receipt or personal service,
within 30 days after the documents have been filed with the court.
(b) In the case of an adoption described in subsection (5)(c)
of this section, the petition shall also be served by either registered or
certified mail with return receipt or personal service:
(A) On all persons whose consent to the adoption is required
under ORS 109.312 unless the person's written consent is filed with the court;
and
(B) On the parents of the party whose parental rights would be
terminated, if the names and addresses are known or may be readily ascertained
by the petitioners. Service required by this subparagraph may be waived by the
court for good cause.
(c) The court shall not rule upon the petition until at least
90 days after the date that the documents were served upon the assistant
director. However, the office may waive the 90-day period.
(7)(a) Within 90 days of the service on the assistant director,
the State Office for Services to Children and Families shall investigate and
file for the consideration of the judge before whom the petition for adoption
is pending a placement report containing information regarding the status of
the child and evidence concerning the suitability of the proposed adoption. The
office may designate an Oregon licensed adoption agency to investigate and
report to the court. If the office designates an Oregon licensed adoption
agency to investigate and report to the court, the office shall make the
designation and provide all necessary information and materials to the Oregon
licensed adoption agency no later than 30 days after the service on the
assistant director. However, the office may waive the placement report
requirement.
(b) Upon receipt of a written request by the petitioner's
attorney, the office shall furnish to that attorney copies of any information
that the office has filed with the court.
(c) The office may charge the petitioner a fee for
investigating a proposed non-agency adoption and preparing the home study
report described in subsection (5)(a)(C) of this section and the placement
report described in paragraph (a) of this subsection. The petitioner shall report
the fee amount to the court. The court granting the adoption shall make a
finding as to whether the fee is necessary and reasonable. Any fee charged
shall not exceed reasonable costs for investigation, home study and placement
report preparation. The office shall prescribe by rule the procedure for
computing the investigation, home study and placement report preparation fee.
The rules shall provide a waiver of either part or all of the fee based upon
the petitioner's ability to pay.
(8) The amounts of any fees collected under subsection (7) of
this section are continuously appropriated to the State Office for Services to
Children and Families for use in preparing the home study and placement reports
required under subsections (5)(a)(C) and (7)(a) of this section.
(9)(a) Except as provided in paragraph (b) of this subsection,
a court shall not grant a decree for the adoption of a minor child unless the
petitioners have filed with the court the documents described in subsections
(5) and (7)(a) of this section.
(b) A person shall not be required to file a home study or a
placement report with the court when the State Office for Services to Children
and Families has granted the person a waiver under office rules.
(10) The adoption shall comply with the Indian Child Welfare
Act (25 U.S.C. 1901 et seq.), if applicable. Every adoption petition involving
the Indian Child Welfare Act shall include the following:
(a) A statement of the efforts to notify the appropriate Indian
tribe or tribes of the adoption; and
(b) A statement of the efforts to comply with the placement
preferences of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) or the
placement preferences of the appropriate Indian tribe.
SECTION 53.
ORS 125.065 is amended to read:
125.065. (1) Notice of the filing of a petition must be
personally served on any respondent who has attained 14 years of age. Notice of
a petition must be personally served on the parents of a respondent if the
petition is based on the fact that the respondent is a minor. The notice may
not be served on the respondent by the visitor appointed by the court. The
notice shall be written in language reasonably understandable by the
respondent. The notice must be printed in type size equal to at least 12-point
type.
(2) Except as provided in subsection (1) of this section, the
notices required under ORS 125.060 may be mailed to the last-known address of
the person. If the address or identity of any person is not known and cannot be
ascertained with reasonable diligence, notice of the filing of a petition may
be given by publishing at least once a week for three consecutive weeks a copy
of the notice in a newspaper having general circulation in the county where the
hearing is to be held. The last publication of the notice must be at least 15
days before the final date for the filing of objections.
(3) The date of personal service or mailing under this section
must be at least 15 days before the final date for the filing of objections to
the petition or motion. If the proceedings are subject to the Uniform Child
Custody Jurisdiction and Enforcement
Act provided for in [ORS 109.700 to
109.930] sections 1 to 41 of this
1999 Act, the date of service or mailing must be at least [20] 21
days before the final date for the filing of objections to the petition or
motion.
(4) The court for good cause shown may provide for a different
method or time of giving notice under this section.
(5) Proof of the giving of notice must be filed in the
proceeding before the court enters any order on a petition or motion.
SECTION 54. Captions. The unit and section
captions used in this 1999 Act are provided only for the convenience of the
reader and do not become part of the statutory law of this state or express any
legislative intent in the enactment of this 1999 Act.
SECTION 55. Repeals. ORS 109.700, 109.710, 109.720, 109.730, 109.740, 109.750, 109.760,
109.770, 109.780, 109.790, 109.800, 109.810, 109.820, 109.830, 109.840,
109.850, 109.860, 109.870, 109.880, 109.890, 109.900, 109.910, 109.920 and
109.930 are repealed.
Approved by the Governor
July 13, 1999
Filed in the office of
Secretary of State July 13, 1999
Effective date October 23,
1999
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