Free Packet 4 General Instructions - Oregon

Packet 4 General Instructions

Unmarried Parents: Custody, Parenting Time, Child Support Process for Petitioners
Notice about these instructions and forms
These instructions are not a complete statement of the law. They cover basic procedure for uncomplicated custody cases. Neither court nor court staff are permitted to give legal advice. For legal information, please talk to a lawyer, visit your local law library and/or refer to the "Additional Resources" section on the last page of these instructions. The instructions refer to some forms not included in this packet. You may get the forms by clicking on the form name if you are using the Internet at: www.ojd.state.or.us/linn under CONTENTS go into FORMS. Linn County Court also has the forms available in Room 107 for a small fee. Linn County Court has local rules, programs and procedures that may not be explained in these instructions. Please refer to the "Linn County Supplementary Local Court Rules.". This packet will allow you to ask the court for custody, parenting time or child support. Paternity (who the father of the child is) must be established before you can use these forms. Paternity may be established if the father signs and files a Voluntary Acknowledgment of Paternity (a statement that says he is the father) with the State Registrar of Vital Statistics. Paternity may also be established through the Oregon Child Support Program or through the courts. You may request that the Oregon Child Support Program establish paternity by filling out an Application for Support Enforcement Services, and sending it to the address stated on the form. You will be charged a fee for this service. These instructions are broken down into four basic steps. The forms that go with each step are listed below. Steps and Forms 1. Starting your Case Petition for Custody, Parenting Time and Child Support Certificate of Residency Summons Petitioners Certificate of Mailing to the Division of Child Support Certificate re: Pending Child Support Proceedings and/or Existing Child Support Orders UTCR 2.100 Segregated Information Sheet 2. Serving the Respondent Affidavit of Service Acceptance of Service 3. Waiting for a Response; Taking a Default Petitioner's Ex Parte Motion for Order of Default; and Order Petitioner's Affidavit in Support of Motion for Order of Default 4. Finalizing Your Case Petitioner's Motion for Order Allowing Entry of Judgment on Affidavit in Lieu of Hearing; and Order Petitioner's Affidavit Supporting General Judgment of Custody, Parenting Time and Support General Judgment of Custody, Parenting Time and Support Attachments: Child Support Worksheet (Guidelines available from Linn County court or see website www.dcs.state.or.us), Uniform Support Affidavit, and Standard Linn County Parenting Plan, unless waived, the Parent Education Certificate of Completion.

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When filling out the forms, follow these directions: · Please make certain that all sections are complete. The document must be readable. Use black or dark blue print only. If the document is handwritten, please print. If the answer to a question is none, then write "none". Do not use "N/A" for the word none. · You are the named "petitioner" on all court forms and the other parent is the "respondent." Use full names (first, middle or middle initial, last) and print the names the same on all forms. · The clerk will give you a case number when you file your papers. Make sure to put this on all copies and originals. · Some forms have to be notarized or signed in the presence of a court clerk. You will need your picture ID for this. Many banks provide notary services. · Many forms say on the bottom, "I certify that this is a true copy," and provide a place to sign. Don't sign this line on the original form or on your own copy. You need to sign this line only on the copies that are served on the respondent. · Make yourself a copy of any document you are filing with the court. File the original with the court clerk. · Keep the court informed of your current address so you get notice of all court dates. You are not required to use your residential address on any court form. You may use a contact address where you regularly check in. The court will assume that you will receive all notices sent to that address you provided. STEP 1: STARTING YO U R CASE Legal Issues to Consider This type of case starts with a "petition" which lists the items you are asking the court to order in the General Judgment of Custody, Parenting Time and Support. The General Judgment of Custody, Parenting Time and Support is the document that finalizes your case, and contains your rights and responsibilities. Oregon law provides that a number of issues must be addressed in the General Judgment of Custody, Parenting Time and Support. Before you fill out the petition, you should think about how you want to handle these issues. Parenting Plan A parenting plan is required for cases involving a minor child. The plan sets out the schedule and rules for each parent's time with the child. The parenting plan may include safety provisions for the child if domestic violence, substance abuse, child abuse or other circumstances are involved in your case. A mediator can help parents create a parenting plan. Information about parenting plans are available through the court's parent education program, the courthouse facilitator, or the local law library. A copy of the Linn County Standard Parenting Plan 2004 Revision is available at www.ojd.state.or.us/linn or at the Linn County Courthouse. The Oregon Judicial Department and the State Family Law Advisory Committee have created a "Parenting Plan Guide for Parents" with information about how to develop a plan, information about alternative schedules, and ages and stages of your child[ren] which should be considered in creating a plan. A sample parenting plan form is included in the Guide. The Guide may be downloaded from the OJD Family Law Website at http://ojd.state.or.us/familylaw. If the parents don't agree on a parenting plan, a judge will order a parenting plan for you. Oregon law (ORS 107.159) prevents either parent from moving more than 60 additional miles away from the other parent without giving him or her and the court notice of the move. You may ask the judge to waive this requirement by checking the last box in the parenting plan section of the petition and stating good cause for this request. For information about child custody or other family law matters, you may call Tel-Law toll free in Oregon 1-800-452-4776; or (503) 620-3000 tape 1133, or visit www.osbar.org. Child Support IMPORTANT! Oregon law requires the petitioning party to submit a CERTIFICATE stating whether there are any pending child support proceedings or existing child support orders involving the parties' child[ren]. To comply with this requirement, fill out and submit the form called "CERTIFICATE re: PENDING CHILD SUPPORT PROCEEDINGS and/or EXISTING CHILD SUPPORT ORDERS" in this packet. You will be required to attach certified copies of any pre-existing child support orders (certified copies may be obtained from the clerk of the issuing court along with a certification fee). In most cases, the court will order child support if the parties have a child and no child support order already exists. The amount of support, if ordered, will be determined by the Child Support Guidelines. The Guidelines have worksheets to help you figure out who should pay support and how much it should be. Support is typically withheld from wages unless an exception is allowed for direct deposit to the other parent's checking or savings account, or, if support enforcement services are being Page 2 of 8, FILING INSTRUCTIONS (UNMARRIED WITH CHILDREN)
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provided to either parent, as an "electronic funds transfer" to a Department of Justice account. Information about child support, including the Guidelines and Worksheets, is on the Internet at: www.dcs.state.or.us This website also has a Child Support Calculator which may help you to calculate the amount of child support which should be paid: www.dcs.state.or.us/calculator. The legal aid office or child support program may also be able to help you calculate the amount of support. Oregon law presumes the ability of a parent to work full time and to earn at least minimum wage. This would result in an income of not less than $1,351.00 per month ($7.80 X 40 hrs a wk X 4.33 wks a month) . If a person is unable to earn a minimum of $1,351.00 a month, an explanation is required in the General Judgment of Custody, Parenting Time and Support. The General Judgment of Custody, Parenting Time and Support must contain findings to support using an income amount that is less than minimum wage for the computation of child support. A properly completed child support work sheet must be attached to the General Judgment of Custody, Parenting Time and Support. A provision for income withholding for the support must be included in the General Judgment of Custody, Parenting Time and Support unless a provision for an exception to income withholding, with findings that support the exception, is included in the decree. The parties may agree to not use income withholding. Insurance Oregon law requires that the General Judgment of Custody, Parenting Time and Support address the issue of health insurance for any minor child involved in your case, and for payment of uninsured medical expenses. It also must provide for security for the payment of support, such as life insurance. If Both Parties Already Agree There are two ways to handle your case if both parties agree on all issues: (1) one party can file as petitioner, the other party can accept service of the petition and not file a response (if there is no disagreement with what the petitioner requested in the petition) and General Judgment of Custody, Parenting Time and Support will be entered based on what was stated in the petition, or (2) have both parties sign and have the Stipulated General Judgment of Custody, Parenting Time and Support entered base on your agreement. If the respondent does not agree with you at first and files a response, then later decides that what you requested in the petition is okay, he or she can file a Waiver of Further Appearance and Consent to Entry of Judgment form to avoid having to go through the court process further. To get the case started, fill out the first set of forms, file them with the clerk and have the respondent "served" (have the papers delivered to respondent). Fill out the following forms · Petition for Custody, Parenting Time and Child Support · Summons · Certificate Re: Pending Child Support Proceedings and/or Existing Child Support Orders · Petitioner's Certificate of Mailing to the Division of Child Support (for use if you or the respondent is receiving public assistance) · Certificate of Mailing (for use if you or the respondent is receiving public assistance) · UTCR 2.100 Segregated Information Sheet Make copies Make one copy of all of the forms for your records, and one copy of the petition and summons to serve upon the respondent. If either you or the respondent is receiving certain types of public assistance (Temporary Assistance to Needy Families or the Oregon Health Plan), you are also required to send a copy of the petition to the Division of Child Support - Albany branch office. The branch office address may be found at www.dcs.state.or.us or on the Petitioner's Certificate of Mailing to the Division of Child Support form. Fill out and file the Certificate of Mailing with the court after you have mailed the petition. Have your documents reviewed You may have your documents reviewed by a lawyer or the Linn County Family Court Specialist before you file. For information about how to find a lawyer, call the Oregon State Bar Lawyer Referral Service. If you are low income, you may get your documents reviewed for a smaller fee through the Oregon State Bar's Modest Means program, or you may call your local Legal Aid office. Contact numbers are listed in the additional resources section at the end of these instructions. File the forms Page 3 of 8, FILING INSTRUCTIONS (UNMARRIED WITH CHILDREN)
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File all of the original forms that are listed above with the court clerk, except the summons. The court clerk will ask you for a filing fee when you file your papers. Filing fee lists are available by contacting the court clerk. If you feel you can't afford to pay the fee, you may ask the clerk for a form to ask the court to waive or defer your filing fee called a Motion and Affidavit for Waiver or Deferral of Filing Fee. This form needs to be filled out and filed with the court. If the fee is waived, you don't have to pay the fee. If the fee is deferred, you will be required to pay the fee pursuant to a payment plan set by the Court. If you have purchased your packet of documents at the Linn County Courthouse, handouts are included in your packet. If you did not purchase your packet at the Linn County Courthouse, the clerk will give you a number of handouts when you file your papers. The handouts include a notice regarding mediation, family law guidelines and services, family law resource list, and information about local parent education class. The clerk will give you two copies of each handout: one for you and one to be served on the other party. Parenting Class and Mediation If you and the other party disagree about custody or parenting time of your minor child(ren) you are required to attend a mediation orientation, parenting class and mediation sessions unless waived by the Court. A certificate of completion of the parenting class will need to be filed for each party. STEP 2: SERVING THE RE S PO N D E N T Have the Respondent Served You are required to have the other party served (have papers delivered) with (a) copies of the documents you filed. You may purchase the service copies from the court for a small fee or copy them yourself before you file with the court. You may certify the copies by signing your name where it says "I certify this is a true copy". If the other party is willing to accept service, s/he must fill out the Acceptance of Service form, sign it in front of a notary or court clerk, then file it with the court. It is not necessary that the other party agree with what is in the papers, just that he/she is willing to acknowledge receipt of them. If the other party will not complete the Acceptance of Service form, YOU CANNOT SERVE THE PAPERS YOURSELF. You may have service completed by the Sheriff in the county where the respondent lives, by a private process server, or by another individual who is a competent person 18 years or older, an Oregon resident (or of the state where service is made) and not a party nor an attorney for a party. Caution should be used before asking a friend or relative to serve the papers if the respondent might react angrily or violently. An Affidavit of Service along with the original summons must be filed with the court after service has been made. Make certain that all of the documents given to the respondent are listed in the Affidavit of Service. The best way to serve the other party is to have the person serving the papers hand them directly to the respondent (personal service). If personal service cannot be done, there are other ways to serve the papers including "substitute service," "office service," and "service by mail" -- see the Table below. You may ask the Sheriff or a private process server about these other options or consult an attorney. Standard Methods of Service Personal Service Substitute Service Delivery of papers directly to the other party Delivery of papers to a person living at the other party's home who is at least 14 years old, AND mailing of the documents to the other party's home address by first class regular mail. Delivery of papers to a person who appears to be in charge at the other party's place of employment (who has a business duty to give the documents to the other party), done during working hours, AND mailing of the document to the home or business address of the other party by first class regular mail.

Office Service

Service by Mail (Return Receipt Requested)

Deliver by mailing a true copy of the summons and the petition to the respondent by first class mail AND by mailing the documents certified or registered, return-receipt requested, or by Express mail, the other party is MUST sign the "return receipt." If you are not able to have the other party served by any of the methods described above, you may ask a judge to allow you Page 4 of 8, FILING INSTRUCTIONS (UNMARRIED WITH CHILDREN)
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to use another service method. The judge might allow you to publish, post or mail the documents. In order to make this request, you may use Packet 6A-Alternative Form of Service. This packet is available for a small fee at the Linn County Courthouse, Room 107 or online for no cost at www.ojd.state.or.us/linn Calculation of Time Service by mail shall be complete on the day the respondent, or other person authorized by appointment or law, signs a receipt for the mailing, or three days after the mailing if mailed to an address within the state, or seven days after the mailing if mailed to an address outside the state, whichever first occurs. STEP 3: WAITING FOR A RESPO NSE ; TAKING A DEFAULT Oregon law gives the respondent 30 days to respond to your petition. The time starts running from the date of service. The response must be written and must be filed with the required filing fee. The respondent may ask the court to waive or defer the filing fee. If the Respondent is in the Military If the respondent is in the active military service of the United States and has not responded to the petition, you may have to go through some extra steps. The court will not go further with your case until one of the following things has happened: (1) the respondent is no longer in the active military, (2) the respondent has waived his or her rights using the Waiver of Right to Stay of Proceedings form, or (3) the judge holds a special hearing in your case. You may get a Waiver of Right to Stay of Proceedings form from the family court specialist or in the response packets. Response packets are available for a small fee at the Linn County Courthouse, Room 107 or online for no cost at www.ojd.state.or.us/linn You may need to talk to an attorney if the other party is not willing to sign the waiver. Check for Response The respondent should mail or deliver a copy of his or her response to you when it is filed with the court. If you haven't received a copy of a response after 30 days from the date of service, you may check with the court clerk to see if one has been filed. If no response has been filed, you may request a "default order." A default means that you may ask the court to enter a judgment giving you the items you asked for in your petition, with no input from the respondent. If a response has been filed, you will not be allowed to take a default and you will skip the next two sections about requesting a default and go straight to step 4. No Response Filed; Requesting a Default To ask the court to enter a default, you must fill out the following forms: · Ex Parte Motion for Order of Default; and Order · Affidavit in Support of Motion for Order of Default After you make yourself a copy of the completed forms, you may file the original with the court anytime after 30 days have expired from the date of service. Check Back Check back with the court clerk in a week to 10 days to see if your request was granted. If the request was not granted, ask the court clerk why it was not. Sometimes, the proof that service was made on the other parent isn't complete enough for the judge to be sure that the other parent got notice of the court proceeding. STEP 4: F IN A L IZ IN G Y O U R CASE Temporary Orders You may ask the court to make temporary orders after the petition is filed. Temporary orders are in effect once signed by the judge and last until changed by the judge or until the General Judgment of Custody, Parenting Time and Support is signed by a judge. For example, either parent may request child support or an order preventing either party from interfering with the child/ren's regular living arrangement and schedule. To make any of these requests, you file a "motion" (request) asking the court to do what you want. You may need the assistance of an attorney to file these requests. You may use Packet 6B, Status Quo Order Application Packet, to ask the court to order that neither parent change the child/ren's usual place of residence, change the child/ren's regular routine, or interfere with the other parent's usual contact with the child. In addition, there are restraining order forms available for cases involving domestic violence. A restraining order can usually be obtained within a day or two of filing if there has been abuse in the last 180 days and if there is further danger of abuse. The Packet 6B, Status Quo Order Application Packet is available for a small fee at the Linn County Courthouse, Room 107 or online for no cost at www.ojd.state.or.us/linn Page 5 of 8, FILING INSTRUCTIONS (UNMARRIED WITH CHILDREN)
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Conferences with the Judge Linn County court will schedule an early resolution conference if a response has been filed. These meetings usually take place with a judge with both parents present, along with their attorneys if they are represented. At the conference, the judge will probably talk to you about how the case is going to be resolved, may consider requests for temporary orders and will set future court dates. You must attend all conferences that are scheduled unless you have received permission from the judge not to attend. If you fail to appear at the conferences or court appearances, your pleadings may be striken and a judgement entered against you. Working Toward Agreement The court wants to help you resolve the issues that you and the other parent disagree on. You may discuss these issues with the other parent directly if it is safe for you to do so and if no court order prohibits that contact. If you can't resolve the issues on your own, the court may provide a number of options to help you, including mediation and a custody/parenting time evaluation. Mediation A mediator is a person trained to help people resolve disagreements. You and the other parent may be required to meet with a mediator if you do not agree on a "parenting plan" (who has custody and parenting time (visitation) with the child/ren and how decisions about the child/ren will be made). You may ask to meet with the mediator alone if you are uncomfortable meeting with the other parent for any reason. There is usually no fee for this service. If mediation has not yet been ordered in your case and you would like to request it, you may file a Request to Initiate/Waive Mediation. You may request that the mediation requirement be waived if you have a good reason, by filing a Request to Initiate/Waive Mediation. If there has been domestic violence, you should let the mediator know and different arrangements may be made for you. If necessary, you may file a Request to Waive Mediation. This form is available for a small fee at the Linn County Courthouse, Room 107 or online for no cost at www.ojd.state.or.us/linn . Custody/Parenting Time Evaluation If parents can't agree on a parenting plan, sometimes the court refers the case to a custody or parenting time evaluator. After interviewing each parent and doing other research, the evaluator will make a recommendation to the judge about which parent should have custody and what the parenting plan should be. The evaluator will consider factors that might affect a child's safety, such as domestic violence, substance abuse, child abuse or other circumstances. The court does not pay for the evaluation. One or both parties will be required to pay for the evaluation. Trial Charges If your case is not resolved and a trial is needed, you must pay a trial fee before a trial will be scheduled, unless waived. Contact Linn County Courts, Civil Records at (541) 967-3845 for the correct fee amount. STEP 5: FINALIZING YO U R CASE Forms to Finalize Your Case The following forms are required to finalize your case: · General Judgment of Custody, Parenting Time and Support If the respondent did not file a response, or if he or she responded and then filed a Waiver of Further Appearance and Consent to Entry of Judgment form, you will also need: · Petitioner's Motion for Order Allowing Entry of Judgment on Affidavit in Lieu of Hearing; and Order · Petitioner's Affidavit Supporting Judgment You may also need to file the following additional forms, depending on your circumstances. · Parenting Class Certificate of Completion When the court requires parents of minor children to attend a parent education class, a certificate of completion must be filed with the court unless this requirement has been waived by order of the court. · Child Support Worksheets If child support is ordered in your case, child support worksheets need to be filled out and attached to the General Judgment of Custody, Parenting Time and Support. · Parenting Plan Page 6 of 8, FILING INSTRUCTIONS (UNMARRIED WITH CHILDREN)
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Your parenting plan may be completely included in the General Judgment of Custody, Parenting Time and Support (see page two of the judgment). If there are additional pages, attach them. · Uniform Support Affidavit This form is only required if a response was filed and you and the other party do not agree on child support. You aren't required to complete the schedules on the form unless there is a "deviation" (different amount than what was calculated using the child support guidelines) from the child support guidelines. The Uniform Support Affidavit, Packet 6F, is available for a small fee at the Linn County Courthouse, Room 107 for a small fee or online for no cost at www.ojd.state.or.us/linn · Waiver of Personal Service After the General Judgment of Custody, Parenting Time and Support is signed, if one parent doesn't do what it says, the other parent may ask the judge to enforce the judgment. The parent asking for enforcement is required to personally serve (deliver) the other parent with notice of this request. If you would like to keep your home address confidential, you may file this form listing another address for service. You are responsible for making sure you get all papers delivered to the address you list. A Waiver of Personal Service form is available from the court clerk. The General Judgment of Custody, Parenting Time and Support The General Judgment of Custody, Parenting Time and Support finalizes your case and contains all of the issues decided in mediation, a hearing, or through your agreement. This document is prepared by the petitioner (you) if the other parent didn't file a response. If both parents agree on all issues, it may be prepared by either parent as long as it is reviewed and signed by both parents. If the parents don't agree on all issues, the judge may direct one parent to fill out the General Judgment of Custody, Parenting Time and Support. If the other parent didn't file a response, the information you fill out in the General Judgment of Custody, Parenting Time and Support should be the same as what you requested in the petition. If the other parent filed a response, the information should be the same as was decided in mediation, a hearing or through your agreement. If you are responsible for filling out and filing the General Judgment of Custody, Parenting Time and Support, make a copy for yourself and one for the other parent (unless he or she didn't file a response), and file the original with the court. If your case involves child support, file an extra copy of the proposed General Judgment of Custody, Parenting Time and Support with the court. WARNING: MANY TIME LIMITS APPLY IN LEGAL CASES! PURSUANT TO UTCR 7.020: Within 63 days after filing your Petition, you are required to file proof that the respondent was served with all of the documents. If you have failed to file the required Proof of Service, and the Respondent has not filed a response, unless the Court has allowed additional time, a notice that your case will be dismissed within 28 days may be sent to you. Within 91 days after filing your Petition, unless a response has been filed, or you have filed a Motion and Order for a Default, a notice that your case will be dismissed within 28 days may be sent to you, unless the Judge has allowed you more time. If the Court has signed a Order of Default in your case, you are expected to file the Judgment within 30 days after the Judge signed the Order of Default. ADDITIONAL RESOURCES
Oregon Judicial Department - Family Law Forms and Resources: www.ojd.state.or.us/familylaw Oregon State Bar www.osbar.org Lawyer Referral 1-800-452-7636 Modest Means (low income) " " Tel-law 1-800-452-4776 Child Support Program: www.dcs.state.or.us 1-800-850-0228; Legal Aid Service of Oregon (must have low income) Child Support Help Line 1-800-383-1222 Local offices: Look on the "Local Family Law Practices Division of Child Support: 503-986-6090 www.dcs.state.or.us or www.dcs.state.or.us/calculator

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and Programs" form for your court, the telephone book, or in the "legal links" section of the Oregon State Bar's web site: www.osbar.org OSU Extension Service Publications: 1-541-737-2513; http://extension.oregonstate.oedu Publications available on marriage, shared custody, financial planning and other topics. Domestic Violence Help 1-800-799-SAFE

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