How to Word an Emergency Order?

[Lyrael924]

Hello again, Soc.

My case is the one with the 8-year-old in Oregon with his mom, and the dad in Illinois.

My husband spoke to her tonight, and she and his son are still in Oregon. He told her that he'd like to have visitation, and she stated that she did not want anything through the courts, because she was scared that he would get partial custody, and then if he kidnapped his son (don't know where she got the idea that he would even WANT to do that) he would pay a less harsh penalty for kidnapping him. Just sharing her reasoning with you there, because it makes no sense to me. My husband said he wanted things made official through the courts, and she said if he tried to take anything to court, she would try to prove him an unfit parent, or not show up at all. She ended the conversation by telling him he wouldn't be talking to his son again unless he got a court order stating that he had a right to, and hung up on him.

My question is:

1) How would I word an emergency order asking that the status quo be preserved, and she not remove the child from Oregon? I just am not sure how to begin to word a motion without at least a little help.

2) How likely is it, given that the child is 8, and my husband did have a prior established relationship with the child that we would have a long period of "step-up" visits?

Thanks again, Soc for anything you can offer.

[socrateaser]

I need to know the current status:

1. Did you already register the HI order in Oregon?

2. Do you have the mother and child's residence address?

3. What county is the mother and child in?

4. Can you scan the current judgment w/custody orders and parenting plan and email it to me at [email protected]?

5. Briefly, tell me again, how the mother and child have come to live in Oregon, and the father in Illinois?

You realize that as soon as you file this petition you will be required to appear in the Oregon county court where you filed for the hearing, or have an attorney appear on your behalf. You cannot expect the judge to let you conduct this hearing via telephone, because it will destroy your credibility, i.e., if you care so much about your child, then why won't you show for the hearing?

[Lyrael924]

Okay, here are my best answers to your questions:

1) We are waiting to get back the affidavit of service from the sheriff's civil processing department. As far as I understand it, no further action can be filed until 21 days after the other party is served. That would be about 2 weeks from now.
2) We have it right now. Obviously at this point she isn't going to tell us if it changes, but she is still there right now.
3) They are in Clackamas County
4) Yes, although the original judgement is a default judgement of paternity, with no parenting plan. It was a case brought by the Hawaii CSEA against both the mom and dad, and dad had already moved to Illinois.
5) Son was born in Hawaii. Dad was there and living with mom throughout her entire pregnancy, birth, and mom, dad, and baby moved to Illinois (where DH's extended lives) when the son was 6 months old. When he was 9 months old, mom went on a "vacation" to Hawaii, and after informed Dad that she wasn't coming back.

He eventually moved back to Hawaii to be close to his son. She was inconsistent with letting him see son, and he was never allowed to be alone with him, because mom was so afraid he would "kidnap" son - no threats on his part of this EVER. He moved back to Illinois to finish college, so he could get a job that would enable him to afford a lawyer. He moved back once more to Hawaii to try to regularly see his son.

 He stayed for a year, and at that point, he understood that mother would be moving to southern California to get married to her current significant other, so he moved back to Illinois again to pursue his degree, thinking that visitation would be possible since she would be in the continental US again. She never moved, and he had at that point exhausted his savings for moving. It was shortly after that move that the case was brought by Hawaii CSEA, and my husband has been paying his child support faithfully ever since.

She has always been completely resistant to any sort of visitation, and absolutely refuses to let him visit without her presence.

When his son moved to Oregon, visitation was once again financially feasible, and that's where we are now. Ugly or not, those are the facts as I understand them.

[socrateaser]

OK, I've reviewed the judgment (you missed page 6, but I doubt that it's relevant).

I wish you hadn't already filed the registration. The reason for this is that the mother may "run" as soon as she's served. It would have been better to file the petition for modification of custody at the same time as the registration, that way the court would have jurisdiction over her to modify the HI order and if she ran off, you could, at least technically, get an order to return the child to Oregon. However, as it is now, she may simply leave the State, and you will have wasted your time.

There is no 21 day moratorium on further action in the case. As soon as you have the affidavit of service returned to the court, you can immediately file a petition to modify custody, if that's what you wish to do. However, be advised that your current child support order is extremely low, and you could find yourself with a MUCH higher support obligation going forward. Also, as I've already mentioned, you will have to appear at the hearing in Oregon, so if you think you're gonna get off cheap, you're not entirely correct. You could have some pretty big travel bills.

The current judgment grants you no custody or visitation -- as you said, visitation is suspended until further orders of the court, which basically means that you have no rights whatsoever to visit the child or exercise any decision making authority over issues concerning the child's long term health, education and welfare. In short, you pay, mom plays -- end of story.

What I'm getting at is that there is nothing in the current judgment to enforce. All you've done is give mom fair warning that you may be up to something in the court, and that it's time for her to move if she wants to avoid the legal issues.

So, having advised you of all the above, do you still wish to request a custody modification? If you do, then I can write a petition, but, as I said earlier, you will have to arrange to appear at the hearing, and there will be more than one, I can guarantee that (unless mom is willing to stipulate to a custody order).

What I'm saying is that this is gonna be quite spendy, regardless of whether or not you retain an attorney.

The choice is yours.

PS. You don't have grounds for any emergency order. There's no credible evidence that the mother will attempt to run if you petition for a modification, and if she does, you can get a warrant to have her arrested and the child returned to Oregon.

[Lyrael924]

I am curious - by our income and the current Oregon support guidelines, the child support wouldn't change that much - where would the huge change come from? My husband's income is not far above where it was, and even if they imputed 30 hours per week at minimum wage (what their guidelines state) it would be less than what we make. That said, if it goes up, it goes up. Per my husband - if that's what his son needs, that's what he gets. It his obligation to support him, and that is his feeling about it.

As for travel expenses, we would have a bit of notice for a hearing, correct? My husband would drive if he has two days to do it (still cheaper than airfare in his tiny dresser drawer of a car). He is willing to do whatever we need to do to see his son. Kids are worth the expense, know what I mean?

Cheapness is not the most important thing here, and saving money at the expense of ever seeing my stepson is not even a decision. Yes, we would still like to petition to modify custody. Right now, we have not filed that registration, so we could go ahead and file the petition to modify with it. I am actually getting ready to call the sheriff's office to find out if the affidavit has been mailed.

Does that all make sense?

Thanks again, Soc.

[socrateaser]

>I am curious - by our income and the current Oregon support
>guidelines, the child support wouldn't change that much -
>where would the huge change come from? My husband's income is
>not far above where it was, and even if they imputed 30 hours
>per week at minimum wage (what their guidelines state) it
>would be less than what we make. That said, if it goes up, it
>goes up. Per my husband - if that's what his son needs, that's
>what he gets. It his obligation to support him, and that is
>his feeling about it.

I haven't done the math, but the amount that you currently pay per month seems pretty low, even for someone earning minimum wage.

>As for travel expenses, we would have a bit of notice for a
>hearing, correct? My husband would drive if he has two days to
>do it (still cheaper than airfare in his tiny dresser drawer
>of a car). He is willing to do whatever we need to do to see
>his son. Kids are worth the expense, know what I mean?

Yes, you'd have notice, but driving 2,000 miles and then attempting to represent yourself at a court hearing in a State court is a pretty exhausting affair -- you're braver than you know. And, suppose that you breakdown along the way and you don't appear at the hearing. You will be screwed.

>
>Cheapness is not the most important thing here, and saving
>money at the expense of ever seeing my stepson is not even a
>decision. Yes, we would still like to petition to modify
>custody. Right now, we have not filed that registration, so we
>could go ahead and file the petition to modify with it. I am
>actually getting ready to call the sheriff's office to find
>out if the affidavit has been mailed.
>
>Does that all make sense?

No it doesn't. The sheriff's office cannot serve the registration notice on the other parent unless you have already filed the registration with the court, otherwise you would be notifying the parent of a registration that has not actually occured. I need to make certain that you have done whatever it is you've done correctly. The process for registering an out-of-state custody determination is provided below in this post. Please read through the statute and then tell me EXACTLY what it is that you have done so far, via the Oregon Court and Clackamas County Sheriff, so I know where things stand:

ORS 109.787 Registration of child custody determination; notice; hearing. (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 ORS 109.767, 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 ORS 109.741 to 109.771;

      (b) The child custody determination sought to be registered has been vacated, stayed or modified by a court having jurisdiction to do so under ORS 109.741 to 109.771; or

      (c) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of ORS 109.724, 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. [1999 c.649 §27]

[Lyrael924]

We served her with the notice that we intended to file a registration, and I only served her first because the *&^&* paperwork provided a place to say if you had already served the other parent with the necessary paperwork.

We sent her the required notice of her legal rights being affected, a certified copy of the affidavit in support of registration, and a true copy of the judgment.

I did this as per page 2 of the letter to court clerk requesting registration of the order. This was a form on the Oregon State Judiciary's Website. The exact wording is this:

Service of the notice of the right to contest registration will be handled as follows:

a) The other parent (or person acting as parent) has already been served with the:

-notice of the right to contest registration
-true copy of the judgment or order I am registering
-true copy of Affidavit in Support of Registration

A proof of service (x) is enclosed for filing ( ) has already been filed with the court.

The above option is the one I selected. The facilitator seemed to think it was okay with a registration to serve them with this in this manner. Was she wrong, and the paperwork jacked? These are just the supporting documents for registration. I believe a final notice of this registration will be mailed to both parties after all paperwork is filed by the court.

As for the support, I think it may go up to about $200-250 per month. I am of the understanding that support is calculated according to the income of the parents, and using both the Hawaii and Oregon guidelines, this is what it comes out to be. Is it really just an arbitrary amount?

And yes, I understand that it would be awful if the car broke down. But in the same way, planes get delayed, and flights get cancelled. There is no iron-clad guarantee that we could get there, short of moving there.

My husband will be staying with family members of mine that live in the area, so he could conceivably go early, to avoid in-court exhaustion or fears of a car breakdown. My uncle lives about a half-hour from the courthouse.

Have you talked to people that really decide the extra money isn't worth it to see their children? It seems like you expect me to see "oh, gosh, that's too expensive - we'll just let this go and not worry about it." We can't do that.

Thanks again, Soc.

[socrateaser]

>The above option is the one I selected. The facilitator seemed
>to think it was okay with a registration to serve them with
>this in this manner. Was she wrong, and the paperwork jacked?

Actually, it's pretty funny. I think that the Oregon Judicial forms are wrong. The statute is sort of gray, but due process would seem to indicate to me that notifying someone of your intent to start a legal action is not the same of notifying them that an action is filed and pending. I think I could probably get the whole case tossed, if there were actually something at stake, but at the moment, there isn't, so ignore my musings here.

>As for the support, I think it may go up to about $200-250 per
>month. I am of the understanding that support is calculated
>according to the income of the parents, and using both the
>Hawaii and Oregon guidelines, this is what it comes out to be.
>Is it really just an arbitrary amount?

The Oregon court will use Illinios support guidelines, unless you can get the other parent to stipulate to Oregon guidelines, which I seriously doubt will occur, once she finds out how much more she can get under IL law.

>Have you talked to people that really decide the extra money
>isn't worth it to see their children? It seems like you expect
>me to see "oh, gosh, that's too expensive - we'll just let
>this go and not worry about it." We can't do that.

The practical reality of life is that everything has an associated financial cost. In many circumstances that cost is so great that it doesn't matter what someone wants -- the first thing that a person must do is feed, cloth and house themselves, and sometimes that means that they cannot be with their child, because the system can be extremely oppressive and prevent both things from occuring because of the cost of paying support and the cost of trying to modify or exersize parenting time.

Now, you still haven't expressly answered my question:

1. Did you file the registration with the court (Y/N)?

[Lyrael924]

Soc,

No.

:)

[Lyrael924]

Soc -

20% of our income is $200, so plus the $20 in arrears (from birth, because we haven't been behind since the order), wouldn't it be about $220?

Does Illinois law take into account any other children the non-custodial parent has? I know some states do, and some states don't care unless they are paying child support for those kids. We have a 3-year-old son, and another child coming in September (our last).

As regards finances, we own our home and both of our cars. So our monthly expenses are a bit lower than they might be for others. It really helps.

On an amusing but unrelated note...I inadvertently found out that mom's husband was recently served with some sort of legal papers in the process of finding out about ours - they have a really uncommon hyphenated last name, so there was a bit of confusion. I don't think I am supposed to know that, though. Perhaps it means a court date they need to stick around OR for.

P.S. We just received the affidavit of service in the mail.

[socrateaser]

>Soc -
>
>20% of our income is $200, so plus the $20 in arrears (from
>birth, because we haven't been behind since the order),
>wouldn't it be about $220?

It will be whatever the guidelines say. IL is a more expensive jurisdiction, so its guidelines are higher. I don't know IL law in this area, so I'm not gonna be much help.

>
>Does Illinois law take into account any other children the
>non-custodial parent has? I know some states do, and some
>states don't care unless they are paying child support for
>those kids. We have a 3-year-old son, and another child coming
>in September (our last).

I don't know. Usually, only children who are subject to a support order can be considered. Your children don't count, unless the payor parent is ordered to pay support on your children.

>As regards finances, we own our home and both of our cars. So
>our monthly expenses are a bit lower than they might be for
>others. It really helps.

Depending on the state guidelines, these facts could actually work against you. In CA, for example, the more interest deduction that a person has on his or her tax return, the more money that's available to pay support, and conseqeuently, the support obligation is increased.

Sucks, don't it?

>
>On an amusing but unrelated note...I inadvertently found out
>that mom's husband was recently served with some sort of legal
>papers in the process of finding out about ours - they have a
>really uncommon hyphenated last name, so there was a bit of
>confusion. I don't think I am supposed to know that, though.
>Perhaps it means a court date they need to stick around OR
>for.
>
>P.S. We just received the affidavit of service in the mail.

OK, well, so the other parent has your notice. I will try to work up a motion for an order to show cause to modify custody this weekend, and then we will take it from there. In anticipation of this, I need you to give me a very precise chronology of all of the events that have led up to today. EX:

1. ??/??/?? met other person.
2. ??/??/?? child born.
3. ??/??/?? judgment entered.
4. ??/??/?? someone moves somewhere.
5. ??/??/?? child visited me at my home in ___.
etc.

Also, I need you tell me, in your own words, why you believe the child's circumstances are changed, such that you should be awarded more time with the child. This is critical. The things that have changed in your life may have been great, but that's not what the court is primarily interested in. The court will want to know how the child's life has changed and how being with you more will either remedy the negative changes or improve the positive changes.

Don't get caught talking about how what you have to offer will improve the child's life, unless you can connect what you're offerring to things that have already happened to the child.

email all of this to me. and think about it for a while before you sent it, because it needs to be deadly accurate, as you will be swearing to it under oath.

PS. If I do all of this, I will expect substantial a donation to my favorite charity...which is, of course -- me.

[Lyrael924]

And how substantial would that donation be?

[socrateaser]

Any donation amount (or whether to make a donation, at all) will be entirely left to your discretion. I expect no money for what I do here. however, if you choose to make a gift horse at some point, I'm certainly not gonna look it in the mouth.

[Lyrael924]

Soc-
I will get my husband's answers to all of those this weekend after some careful discussion and much thinking.

Although I am not sure how to prove that having his dad in his life would definitely positively affect him. I believe that it is important for children to know their dads, but how do you argue that in front of a judge? We decided to do this now because he will be able to leave his mom for visits without the trauma that a 3-year-old would go through. He also does not have to deal with flying alone, as he would have from Hawaii.

He can travel with his dad back and forth. If we were to see him again, regularly, he (meaning son) would not be experiencing the trauma of growing up without a dad, and feeling abandoned. He would have an opportunity to get to know his extended family, and his siblings. (Am I treading into what we have to offer him here?)

I guess I am just confused as to how to argue why kids need their dads. Especially after four years of not seeing him. And very little input from her except what he wants for Xmas and his birthday. Is him moving to the continental US not enough of a change in circumstances?

I also wondered...with custody being a separate matter from visitation, are you anticipating that son's mom will initiate a child support review, or that the judge will decide to? Son's mom said she won't show up in court for any hearings there might be, although that doesn't guarantee she won't.

[Lyrael924]

Oh, and, why did Hawaii not calculate child support based on Illinois guidelines in the original judgement? Husband lived in Illinois then, too.

Just a question out of curiosity, and now I will be quiet until I send you the things you asked for via e-mail.

P.S. How about we name a star for you, or adopt a whale in your name? ;)

[socrateaser]

>Oh, and, why did Hawaii not calculate child support based on
>Illinois guidelines in the original judgement? Husband lived
>in Illinois then, too.

Because, the mother and child lived in HI, and the child was conceived by the father in HI, so HI has jurisdiction over all the parties so as to impose its laws on the case.

But now, none of the parties lives in HI, and since the father doesn't live in Oregon, and the child and mother are not in Oregon as the result of any action of the father, it would be unfair to impose Oregon law on him for the purpose of paying support. So, IL law will be used, because that's where he lives, unles the father agrees to allow the court to use Oregon law, which I would do, because IL is far more costly.

As for custody, the mother and child are in Oregon, so it would be unfair to impose IL custody law on the child, because the child has never lived in IL, so Oregon law will prevail.

 

[Lyrael924]

Ah, now I understand. You are an extremely patient man, Soc, you know that?

I covered up this post with my earlier ramblings:

I will get my husband's answers to all of those this weekend after some careful discussion and much thinking.

Although I am not sure how to prove that having his dad in his life would definitely positively affect him. I believe that it is important for children to know their dads, but how do you argue that in front of a judge? We decided to do this now because he will be able to leave his mom for visits without the trauma that a 3-year-old would go through. He also does not have to deal with flying alone, as he would have from Hawaii.

He can travel with his dad back and forth. If we were to see him again, regularly, he (meaning son) would not be experiencing the trauma of growing up without a dad, and feeling abandoned. He would have an opportunity to get to know his extended family, and his siblings. (Am I treading into what we have to offer him here?)

I guess I am just confused as to how to argue why kids need their dads. Especially after four years of not seeing him. And very little input from her except what he wants for Xmas and his birthday. Is him moving to the continental US not enough of a change in circumstances?

I also wondered...with custody being a separate matter from visitation, are you anticipating that son's mom will initiate a child support review, or that the judge will decide to? Son's mom said she won't show up in court for any hearings there might be, although that doesn't guarantee she won't.

[socrateaser]

>I guess I am just confused as to how to argue why kids need
>their dads. Especially after four years of not seeing him. And
>very little input from her except what he wants for Xmas and
>his birthday. Is him moving to the continental US not enough
>of a change in circumstances?

I want you to think about it yourself and come up with reasons that you can swear to. I can give you reasons, but they would be mine, not yours.

>I also wondered...with custody being a separate matter from
>visitation, are you anticipating that son's mom will initiate
>a child support review, or that the judge will decide to?

It's a veritable certainty.

>Son's mom said she won't show up in court for any hearings
>there might be, although that doesn't guarantee she won't.

Pray that she doesn't show, because she will get her ass handed to her by the court.