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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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I have filed a petition for joint custody both legal and physical

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I have filed a petition for joint custody both legal and physical in Washington County Domestic Court , State of Oregon, pro se. July 18, 2011. The mother and I are unmarried. I am the legal father per a filing of the voluntary paternity acknowledgement form and I am noted as the father on the birth certificate. I am waiting for the mother's attorney to respond to the petition, as it has not yet been 30 days. The baby is 3 months old. We had a falling out 3 weeks ago which resulted in my filing. She has been allowing me to see the baby, but only at her house and when she is there. She has been gradually reducing the amount of time I can see him . When I am there she harrasses me constantly about what happened to make the relationship fail and tells me that she is going to make it so I cannot see my son. She insists that I may not be allowed to take him for a few hours. Presently, she is back to work and takes my son to her mother's house every day for day care. I understand I can file for a temporary visitation hearing. Do I have to wait until after her attorney responds to the filing of my petition? What do I need to watch out for and what are my rights? I am thinking I can just contact the county clerk for the forms for filing, but I need to understand my rights if there is a process for me to at least get a temporary visitation until the case is settled.
Submitted: 3 years ago.
Category: Family Law
Expert:  socrateaser replied 3 years ago.
Under ORS 109.060, unless a parent who files a petition to establish custody requests temporary orders, then each parent has exactly identical rights to custody of the child pending hearing. In State v. West, 70 Ore. App. 167 (8/9/1984), the Oregon Court of Appeals held that as long as a custodial parent with joint custody does not act to interfere with the other parent's custodial rights, such as by concealing the child's whereabouts, there is no crime committed by exercising custody against the other parent's wishes.

Conversely, if one parent unreasonably withholds custody from the other joint custodian, then the parent commits the crime of custodial interference. ORS § 163.257.

The generally accepted practice in situations such as yours is to file a motion for the an immediate danger temporary order, so as to remove the potential for any physical altercation with the other parent concerning the child pending the hearing. See this link.

You don't have to request a visitation hearing, because legally you have joint custody right now.

Hope this helps.

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socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33868
Experience: Retired (mostly)
socrateaser and 5 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.

"Immediate danger" seems a bit extreme, but is that just a legal term to cover the circumstance? Do I have to wait until she answers the petition I filed before I can file this? or can I file this now? It appears I would file using packet 16A, is that correct?

Expert:  socrateaser replied 3 years ago.
"Immediate danger" seems a bit extreme, but is that just a legal term to cover the circumstance?

A: Term of art. But, in fact, the child is in immediate danger, because there is a continuing controversy over who can exercise custody, where and when. These types of disputes can quickly become hostile, and the child can be caught in the exchange. That's how one would generally characterize the situation, i.e., "Your honor, the situation is such that each parent has substantially equal rights, and the mother is using this situation to effectively cut me off from exercising my rights. In the hopes of preventing an encounter from escalating out of control, which could place the child in immediate danger, I request that the court make a temporary order that provides each parent with a reasonable opportunity to exercise custody without interference from the other parent."

Do I have to wait until she answers the petition I filed before I can file this?

A: You can walk into court tomorrow or Tuesday if you wish. You would generally want to call or fax the other attorney and give him/her notice that you intend to move for temporary orders. The attorney may attempt to stop you by suggesting a stipulated consent order concerning temporary custody. That will just waste more time, while you sit around waiting for the lawyer to draft something. So, it may be preferable to respectfully XXXXX XXXXX request and invite the attorney to meet you in court to resolve the matter, so that it's no longer at issue.

It appears I would file using packet 16A, is that correct?

A: Correct.

Hope this helps.
socrateaser, Lawyer
Category: Family Law
Satisfied Customers: 33868
Experience: Retired (mostly)
socrateaser and 5 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.
Does this apply even though we are unmarried?
Customer: replied 3 years ago.
Thank you for the added information. To date, she has not provided the name of her attorney, and seems to want to keep it a secret. I know we will have it as soon as her attorney answers the petition. In the meantime, can I file this and have it sent to her with a Certificate of Mailing and reference the open court case number?

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