Use, Misuse and Abuse of theTPOR and Status Quo Process

Bradford F. Miller

TAB 12 - 1

Definition of Terms• “Status Quo Order”

– Post-Judgment (ORS 107.138)

• “TPOR”– Pre-Judgment (ORS 107.097)

TAB 12 - 2

What we’re not Covering• Emergency Relief (Sub (3)); ORS 107.139• Interplay with Chapter 109

– Unmarried parents– Third party rights re: this relief

TAB 12 - 3

Pre-Judgment TPOR

TAB 12 - 4

TPOR - How do you Obtain Relief?• Motion• Affidavit

– Declaration?• Order

TAB 12 - 5

TPOR - Motion• What must be included?

– Not much!• Request

– Which relief are you requesting?• Points and authorities• Children affected• Name it correctly!

TAB 12 - 6

TPOR - Affidavit• What Must be included?

– ORS 109.767 Details• What Should be included?

– Who you are and what you want– Which relief you are requesting– Support for the relief you are requesting

TAB 12 - 7

TPOR - Order• What must be included

– The relief ordered– ORS 107.097(2)(c) Notice

• What should be included?– Names of the children affected

• What should NOT be included– Anything not authorized by statute!

TAB 12 - 8

TPOR – After Signing• Order and Affidavit MUST be served pursuant

to ORCP 7 (2)(c)– Relief is not immediate.– Presumably the motion as well?

TAB 12 - 9

TPOR – Order: Relief Available• “(b) - Upon receipt of an application under this subsection

the court may issue a temporary protective order of restraint restraining and enjoying each party from…”– “EACH”?

• “Both” – The two considered together…”the one as well as the other”• “Each” – The individual members of a group considered separately• All?• Every?• Either?

TAB 12 - 10

TPOR - Order• What it IS

– An order of restraint• What it is NOT

– A custody order– A parenting time order

• Distinguish from ORS 107.097(3)(a), “A court may enter ex parte a temporary order providing for the custody of or parenting time with, a child if…”

TAB 12 - 11

TPOR – Order: RELIEF• (A) Changing the Usual Place of Residence

– Defined in 107.138• “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 non-custodial parent did exercise or would otherwise have exercised parenting time”

– Not the “Place of Present Physical Location”TAB 12 - 12

TPOR – Order: RELIEF• (B) Interfering with the present placement and

daily schedule of the child– Defined in ORS 107.138

• “The contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed.”

TAB 12 - 13

TPOR – Order: RELIEF• (D) – Interfering with the other party’s usual

contact and parenting time with the child• (F) – In any manner disturbing the current

schedule and daily routine of the child until custody or parenting time has been determined

• Both also Defined in ORS 107.138• “The contact, parenting time, placement, schedule and

routine at the time the motion for the temporary order is filed.”

TAB 12 - 14

TPOR – Order: RELIEF• So are (B), (D), and (F) identical?

– Strictly, yes, they each have the same definition– If plain language, maybe different, but defined

• (F) contains the only difference:– “Interfering with…” versus “In any manner

disturbing…”

TAB 12 - 15

TPOR – Order: RELIEF• (C) Hiding or secreting the child from the other party

– Plain language; no definition• (E) – Leaving the state with the child without written

permission of the other party or permission of the court– How do you get permission?

• Affidavit? Motion? Order?• The Court may be authorized by statute to approve exceptions, if

spelled out in the motion/affidavit; but then they must be included in the order

TAB 12 - 16

TPOR – Order: Relief• (A) – (F)

– (E) “permission of the court; or”• It’s your motion, ask for what you want• Nothing precludes the other side from filing a

motion requesting this relief

TAB 12 - 17

TPOR - Response• Who can make?

– “A party against whom an order is entered under subsection (2)”

• Further confirmation this is an order of restraint (on a party) rather than an order of custody and parenting time

• When? – “At any time while the order is in effect”

TAB 12 - 18

TPOR - Response• What is the document?

– State Court administrator proscribes the content and form

– Notice in the Order says you must “tell the court and the other party that you object to the order and specifically why you disagree with the representation of the status quo described in the order”

• Who was required to make a representation about the status quo in the motion or affidavit?

TAB 12 - 19

TPOR - Hearing• When

– “’Reasonable Efforts’ to hold within 14 days and shall hold a hearing no later than 21 days after receipt of the request of the hearing”

• TPOR remains in place through the date of the hearing. (4)(c)– and continues or is vacated if someone fails to appear

TAB 12 - 20

TPOR – Hearing• ISSUE: “Limited to a determination of the

status quo at the time the order was issued.”– What is the status quo?

• Not defined in ORS 107.097 or 107.138• Is it the aggregate of the contents in the affidavit?

TAB 12 - 21

TPOR – Hearing: What is Status Quo?• ORS 107.138 – When you get a “temporary status quo order” you must

have an affidavit:– “Setting forth with specificity the information required by ORS 109.767”

• Contrast with 107.097 (“conforming to the requirements of ORS 109.767”)– “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”

• We know this means the ‘contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed’; and “the place where the child is living at the time the motion is filed and has lived continuously for a period of three consecutive months”

• Is this, in aggregate, the “status quo”?

TAB 12 - 22

TPOR – Hearing: Issue• If the issue is determining the status quo at

the time of the motion, what does that make the hearing about?– What is the prima facie case you must prove?

• Does the Court continue to only make orders of “restraint” akin to the additional application?

TAB 12 - 23

TPOR – Hearing: LOOPHOLE• (4)(d)(A) “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 interest of the child.”

• Does this contravene the prefatory paragraph? (“a court may not enter ex parte a temporary order…providing for the custody of or parenting time with, a child”)– You’ve now had a hearing…albeit on a “limited issue”.

TAB 12 - 24

TPOR – Hearing: Further Order• “ANY”?

– Custody order?– Parenting time Order?– Exclusive use?– Drug testing?– Supervision?– Contact restrictions?– Suit money? Child support?

TAB 12 - 25

TPOR – Hearing: Further Order• How is this record created?

– Both parties are limited to the sole issue of the status quo

– How does a party present “best interest” evidence to the Court with this limitation?

TAB 12 - 26

TPOR – Hearing: Further Order• Is this good practice?• Expedited hearing (14-21 days), then authorizing relief that

is otherwise reserved until after discovery– ORCP 43 doesn’t permit a Request for Production until 45 days

after service– “Reasonable Notice” for depositions– May not be enough time to send subpoenas, obtain mental

health or school records; substance abuse issues; domestic violence?

– Mediation? Parenting Education class?

TAB 12 - 27

TPOR - Hearing: Further Order• How do you prove a best interest case in 14

days• Does this create issue preclusion for further

pendente lite relief?

TAB 12 - 28

TPOR – Ethical Issues• Ex Parte Relief – What happened to notice?

– Not “Contested Relief”?– Relevant SLRs

TAB 12 - 29

TPOR – Ethical Issues• Contrast with Zealous Advocacy?

TAB 12 - 30

Status Quo

TAB 12 - 31

Status Quo – How do you Obtain Relief

• When?– “In a proceeding to modify a judgment that

awards custody of a child” (1)(a)

• What is required prior to entry of the order?– Notification of the other party (1)(a)(A)– Opportunity to Contest (1)(a)(B)

TAB 12 - 32

Status Quo - How do you Obtain Relief

• Motion• Affidavit• Order

TAB 12 - 33

Status Quo - Affidavit• Must include:

– “With specificity” the information required by ORS 109.767”; 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

• Defined in 107.138(3)(a) and (b)

TAB 12 - 34

Status Quo - Notice• To whom

– The party against whom the motion for the order is sought

• When– At least 21 days before the date set for the hearing

• How is notice given– Service

TAB 12 - 35

Status Quo – Differences from TPOR

• No “Best Interests” latitude• No application prior to hearing

TAB 12 - 36

TAB 12 - 37

TAB 12 - 38

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF CLACKAMAS

In the Matter of the Marriage of:

PAT DOE,

Petitioner,

and

JAMIE DOE Respondent.

) ) ) ) ) ) ) ) ) ) )

Case No. MOTION FOR TEMPORARY PROTECTIVE ORDER OF RESTRAINT

COMES NOW Petitioner, by and through his attorney, Bradford F. Miller of

Stahancyk, Kent & Hook P.C., respectfully moves the Court for a Temporary

Protective of Restraint granting the following relief:

THIS PROTECTIVE ORDER SHALL AFFECT THE FOLLOWING CHILDREN: Full Name DOB Residence Address Baby Doe 03/14/2009 123 ABC Street, Lake Oswego, OR

1. Restraining and enjoining each party from:

A. Changing the child’s usual place of residence;

TAB 12 - 39

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; and

F. In any manner disturbing the current schedule and daily routine of

the child until custody or parenting time has been determined.

Points and Authorities

In support of this Motion, Petitioner relies on the attached Affidavit of

Petitioner and ORS 107.097.

DATED this ______ day of _________________, 2014. STAHANCYK, KENT & HOOK, P.C.

______________________________

Bradford F. Miller, OSB No. 074675 Attorney for Petitioner Brad@Stahancyk.com

TAB 12 - 40

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF CLACKAMAS

In the Matter of the Marriage of:

PAT DOE,

Petitioner,

and

JAMIE DOE, Respondent.

) ) ) ) ) ) ) ) ) ) )

Case No. AFFIDAVIT IN SUPPORT OF MOTION FOR TEMPORARY PROTECTIVE ORDER OF RESTRAINT

STATE OF OREGON ) ) ss.

County of Multnomah )

I, Pat Doe, being duly sworn do depose and say the following is true to the

best of my knowledge and belief:

1. I am the Petitioner in the above-captioned matter.

2. The child born of this marriage is: Baby Doe, age 5. The child currently

lives with both Respondent and myself at 123 ABC Street, Lake Oswego, Oregon.

TAB 12 - 41

3. Baby’s life will be harmfully and unnecessarily disrupted if either

Respondent or myself are allowed to remove her from her usual environment or

disrupt her usual schedule. I therefore request that an immediate order be entered

which restrains both Respondent and myself from removing the child from her

current residence or disrupting her usual schedule while this case is pending.

4. Child’s Usual Residence. The child’s usual place of residence is the

home located at 123 ABC Street, Lake Oswego, Oregon, and she has lived there for

more than three consecutive months.

5. Present Placement and Daily Schedule. Baby currently lives at the

above-referenced address with both Respondent and myself. Her daily schedule is as

follows:

a.

b.

c.

d.

e.

7. The child has lived at the following addresses in the last five years,

which includes the present addresses of the persons with whom the child has lived

during this period:

Dates Address Parent(s) Address of other parent

TAB 12 - 42

June 2009 – May 2010

456 NW 1st Street, Portland, OR

Mother

May 2010 – May 2011

456 NW 1st St., Portland, OR

Both/Mother Father: 311 NW 12th Ave., Portland OR

May 2011 – May 2012

789, XYZ St., Portland, OR

Both

May 2012 - Present 123 ABC Street, Lake Oswego, OR

Both

TAB 12 - 43

8. I have not 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.

9. I do not know 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.

10. I do not know 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.

11. Oregon is the home state of the minor child and it appears that no other

state would have jurisdiction. It is in the best interest of the minor child that this

court assume jurisdiction.

I make this affidavit in support of my motion for an ex parte temporary

protective order of restraint.

Dated this ___ day of ______________, 2014.

___________________________________ Pat Doe, Petitioner SUBSCRIBED AND SWORN to before me this ____ day of June, 2014.

TAB 12 - 44

__________________________________ Notary Public for Oregon

TAB 12 - 45

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF CLACKAMAS

In the Matter of the Marriage of:

PAT DOE,

Petitioner,

and

JAMIE DOE, Respondent.

) ) ) ) ) ) ) ) ) ) )

Case No. TEMPORARY PROTECTIVE ORDER OF RESTRAINT

THIS PROTECTIVE ORDER SHALL AFFECT THE FOLLOWING CHILD(REN): Full Name DOB Residence Address Baby Doe 03/14/2009 123 ABC Street, Lake Oswego, OR Based upon the Motion of Petitioner and good cause appearing, IT IS HEREBY

ORDERED:

1. Until further order of the Court or agreement of the parties, each party is

restrained and enjoined from:

A. Changing the child’s usual place of residence;

TAB 12 - 46

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; and

F. In any manner disturbing the current schedule and daily routine of the

child until custody or parenting time has been determined.

DATED this __ day of _________________________, 2014. _____________________________________ CIRCUIT COURT JUDGE

~ NOTICE ~ You may request a hearing on this order as long as it remains in effect by filing with the court a request for a hearing. In the request you must tell the court and the other party that you object to the order and specifically why you disagree with the representation of that status quo described in the order. In the request you must also inform the court of your telephone number or contact number and you current residence, mailing or contact address. Submitted By: Stahancyk, Kent & Hook P.C. _________________________________ ________________________ Bradford F. Miller, OSB No. 074675 Date Attorney for Petitioner Brad@stahancyk.com

TAB 12 - 47

TAB 12 - 48

BRADFORD F. MILLER

Practice Emphases

Custody, Complex Divorce, Spousal Support

Professional Experience

Brad began working for Stahancyk, Kent & Hook as a law clerk. While in lawschool, Brad also worked for a law firm specializing in taxation, estateplanning, and business transactions and clerked for the Honorable DennisHubel, a federal magistrate judge in Portland. Realizing that his passion lay infamily law, Brad returned to Stahancyk, Kent & Hook and continued to workpart-time during the school year, through his bar passage. Having learned thevalue of good planning, Brad has made the drafting and negotiation ofprenuptial and postnuptial agreements a focus of his practice and hasauthored several newsletter articles on the subjects. Brad is a zealousadvocate who believes that creative solution, not cookie-cutter approaches, arethe key to efficient and mutually-beneficial resolution. Brad was the primaryassociate for Senior Shareholder Jody Stahancyk, dealing with all mattersrelated to family law and complex asset divorces. In March 2012, Brad waselected as a Shareholder of the firm.

Education

Oregon Episcopal School, Portland, Oregon

Colorado College, Colorado Springs, COB.A. English & Religion

University of Oregon Law School, Eugene, ORJ.D.

Professional Activities

Brad is a native Portlander, and before law school he volunteered at thePortland office of the Federal Public Defender. He was a collegiate tennisplayer, and during college he coached junior tennis players at the Nike TennisCamp in Colorado Spring, Colorado. In law school, Brad worked as a SeniorEditor of the Journal of Environmental Law and Litigation. He has previouslyserved on the Board of the Multnomah County Bar, Young Lawyers Section,Pro Bono Committee.

TAB 12A - 1

Community Involvement

In 2013, Brad helped bring the Wills for Heroes program to Central Oregon forthe first time. Through this program, attorneys volunteer their time andexpertise to help first responders and veterans draft wills and other estateplanning documents, free of charge.

Awards and Achievements

2013-2009 · Rising Star, Super Lawyers 2012 · Up and Coming Lawyer of 2012, Daily Journal of Commerce 2011 · Pro Bono Challenge Participant, Oregon State Bar 2010 · Pro Bono Honor Roll, Oregon State Bar

Brad was selected by his peers for five consecutive years for inclusion in SuperLawyers Rising Star editions from 2009-2013. In November 2012, Brad washonored by the Daily Journal of Commerce with the “Up and Coming Lawyer of2012? award. Brad was acknowledged by the Oregon State Bar (Bar BulletinOct. 2012), for his participation in the 2011 Pro Bono Challenge. In 2010, Bradwas listed on the Oregon State Bar Pro Bono Honor Roll.

Interests

In addition to tennis, Brad is an avid sportsman who enjoys golf andfly-fishing. His formative years were spent dry-fly fishing the Deschutes River,and he tries to return as often as possible. He and his wife enjoy traveling,wine, and testing the limits of their expertise in the kitchen.

TAB 12A - 2