Free Packet 5 General Instructions - Oregon

Packet 5 General Instructions

Change of Custody, Parenting Time and Child Support
Notice about these instructions and forms. These instructions are not a complete statement of the law. They cover basic procedure for uncomplicated modification (changed) cases. Neither the 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 may 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: http://www.ojd.state.or.us/linn-circuit under CONTENTS go into FORMS. Linn County Court also has the forms available in Room 107. 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." If you have a question about a form you cannot locate, you should consult your local court which may have the form available. This set of forms and instructions will allow you to file for and obtain a modification (change). Please read the "Information "on Modification (Change) Forms" sheet before you go any further to make sure this is the right set of forms for you. The instructions are broken down into three basic steps. The forms that go with each step are listed below. Steps 1. Starting your Case Ex Parte Motion for Order to Show Cause Regarding Supplemental Judgment Modifying Custody/Parenting Time/Child Support Affidavit in Support of Motion for Order to Show Cause re: Supplemental Judgment Modifying Custody/Parenting Time/Child Support Order to Show Cause Regarding Supplemental Judgment Modifying Custody/Parenting Time/Child Support - Written Response Required Certificate of Document Preparation Certificate of Mailing to the Division of Child Support, Department of Human Services 2. Serving the Other Parent Affidavit of Service Acceptance of Service 3. Waiting for a Response; Taking a Default Ex Parte Motion for Order of Default; and Order Affidavit in Support of Motion for Order of Default 4. Resolving Your Case Supplemental Judgment Modifying (change) Custody, Parenting Time, Support, and/or Order re: Jurisdiction. Affidavit Supporting Supplemental Judgment Modifying Custody, Parenting Time, Support, and/or Order re: Jurisdiction 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, 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. · The case heading is your case number and the parties to the court case. If you are filing in the circuit court that entered the judgment you are attempting to modify, the case number and names of "Petitioner" and "Respondent" will stay the same. If the judgment you are asking the court to modify was entered in another court, you will be given a new case number, and you will be the "petitioner" and the other party will be the "respondent." · 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 other parent. · 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 and often check in. If you use a contact address, the court will assume that you will receive all notices sent to that address. STEP 1: STARTING YOUR CASE Legal Issues to Consider This type of case starts with a "motion" which lists the items you are asking the court to order in the "Supplemental Judgment Modifying Custody, Parenting Time and/or Support". The Supplemental Judgment Modifying Custody, Parenting Time and/or Support is the document that finalizes the modification of your case. Oregon law provides that a number of issues must be addressed in the Supplemental Judgment Modifying Custody, Parenting Time and/or Support. Before you fill out the motion, you should think about how you want to handle these issues. Parenting Plan A parenting plan is required for cases involving a minor child. If custody is changed, a new parenting plan, which sets out the schedule and rules for each parent's time with the child, needs to be included. 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. 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 www.ojd.state.or.us/familylaw. If the parents don't agree on a parenting plan, a judge will order a parenting plan for you. For information about child custody, you may call Tel-Law (1-800-452-4776) tape 1133, or visit www.osbar.org. If Both Parents Already Agree If both parents agree on all issues to change either custody or parenting time, and/or child support, the parties can sign and stipulate on the Supplemental Judgment Modifying Custody, Parenting Time and/or Support . Remember, support must comply with the child support guidelines. To get the case started, fill out the first set of forms, file them with the clerk and have the other parent "served" (have the papers delivered to the other parent). Fill out the following forms. · Ex Parte Motion for Order to Show Cause re: Modification of Judgment (MOTION) · Affidavit in Support of Motion for Order to Show Cause re: Modification of Judgment (AFFIDAVIT) · Order to Show Cause re: Modification of Judgment - Written Response Required [ORDER] -- · Certificate of Mailing to Division of Child Support (if you or the other parent is receiving public assistance) Page 2 of 7, MODIFICATION
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Child Support You may request that the court terminate or modify a child support obligation, make a change in the parent responsible for it, or change the amount. If the custody of a child is changed, child support must be addressed. 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. 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. A deviation from the child support guidelines, based solely upon the agreement of the parties, does not constitute an adequate bases for a deviation from the guidelines. Make copies Make one copy of all of the forms for your records, and one copy of the Ex Parte Motion for Order to Show Cause Regarding Supplemental Judgment, Affidavit in Support of Motion for Order to Show Cause Regarding Supplemental Judgment and Order to Show Cause Regarding Supplemental Judgment to serve on (deliver to) the other parent. If you request that the court end the obligation to pay child support because of a requested change in custody, or change who or the amount of child support owed because of a change in parenting time, you are required to send a copy of the Ex Parte Motion for Order to Show Cause Regarding Supplemental Judgment to the Division of Child Support branch office - Albany office. The branch office address may be found at http://dcs.state.or.us/offices.htm or on the Petitioner's Certificate of Mailing to the Division of Child Support form. Fill out and file the Petitioner's Certificate of Mailing to the Division of Child Support with the court after you have mailed the Ex Parte Motion for Order to Show Cause Regarding Supplemental Judgment. Have your documents reviewed 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 may have your documents reviewed by a lawyer. 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 by calling (541)926-8678. Errors or problems could result in your forms being returned to you or could prevent the judge from signing an order or the Supplemental Judgment Modifying (change) Custody, Parenting Time, Support, and/or Order re: Jurisdiction until the errors or problems have been corrected. In some circumstances, in order to correct the errors, you may need to file an Amended Motion for Order to Show Cause Regarding Supplemental Judgment and serve the respondent again. File the forms 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 fees 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 respondent. Parenting Classes 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. Check Back The Order to Show Cause Regarding Supplemental Judgment must be signed by a judge before you serve the other parent. Check back with the court in 7 to 10 days after you have filed the papers to see if a judge signed the Order to Show Cause Regarding Supplemental Judgment. If the Order to Show Cause Regarding Supplemental Judgment was signed, you will also need

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to know which judge signed the Order to Show Cause Regarding Supplemental Judgment, the spelling of the judge's name, and the date the Order to Show Cause Regarding Supplemental Judgment was signed. If the Order to Show Cause Regarding Supplemental Judgment was signed, take the service copy of the Order to Show Cause Regarding Supplemental Judgment you made for the other parent and place the symbols "/s/" on the judge's signature line, along with the name of the judge and fill in the date that the Order to Show Cause Regarding Supplemental Judgment was signed. Sign the lines on the service copies of the Ex Parte Motion for Order to Show Cause Regarding Supplemental Judgment, Affidavit in Support of Motion for Order to Show Cause Regarding Supplemental Judgment and Order to Show Cause Regarding Supplemental Judgment where they say, "I certify that this is a true copy." You are now ready to have the other party served. If the Order to Show Cause Regarding Supplemental Judgment was not signed, find out from the judge's staff, the court clerk why the paperwork was not signed. Have the Other Parent Served You are required to have the other party served (have papers delivered) with (a) copies of the Ex Parte Motion, Affidavit and Order to Show Cause Regarding Supplemental Judgment Modifying. 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 other parent 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 other parent 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 other parent 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. Deliver by mailing a true copy of the documents 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 REQUIRED to sign the "return receipt."

Office Service

Service by Mail (Return Receipt Requested)

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 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 Page 4 of 7, MODIFICATION
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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 2: WAITING FOR A RESPONSE; TAKING A DEFAULT Oregon law gives the other parent 30 days to respond to your motion. The time starts running from the date of service. The response must be written, and must be filed with the required filing fee. The other parent may ask the court to waive or defer the fee. If the other parent is in the Military If the other parent is in the active military service of the United States and has not responded to the Ex Parte Motion for Order to Show Cause Regarding Supplemental Judgment, you may have to go through some extra steps. The court won't go further with your case until one of the following things has happened: (1) the other parent is no longer in the active military, (2) the other parent 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 your spouse is not willing to sign the waiver. Check for Response The other parent 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 what you asked for in your Ex Parte Motion for Order to Show Cause Regarding Supplemental Judgment, with no input from the other parent. 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 3. 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 3: RESOLVING YOUR CASE 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 Page 5 of 7, MODIFICATION
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a mediator if you don't 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 Initiate/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 4: FINALIZING YOUR MODIFICATION Forms Required to Finalize Your Case The following form is required to finalize your case: · Supplemental Judgment Modifying Re: Custody, Parenting Time, and Custody and/or Order re: Jurisdiction 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. · Parenting Plan - Your parenting plan may be completely covered in the Supplemental Judgment Modifying (change) Custody, Parenting Time, Support, and/or Order re: Jurisdiction (see page two of the Supplemental Judgment of Custody, Parenting Time or Child Support). If there are additional pages, attach them. · Child Support Worksheets - If child support will be terminated or changed, child support worksheets need to be filled out and attached to the Supplemental Judgment Modifying Custody, Parenting Time and/or Support. · Uniform Support Affidavit - This form is only required if a response was filed and you and the other parent do not agree on child support. You are not required to complete the schedules on the form unless one parent asks for a "deviation" (a different amount than what was calculated using the child support guidelines) from the child support guidelines. · Waiver of Personal Service - After the Supplemental Judgment Modifying (change) Custody, Parenting Time, Support, and/or Order re: Jurisdiction is signed, if one parent doesn't do what it says, the other parent may ask the judge to enforce the Supplemental Judgment Modifying (change) Custody, Parenting Time, Support, and/or Order re: Jurisdiction. The parent asking for enforcement is required to have someone over the age of 18, who is not a party to this proceeding 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. The Supplemental Judgment Modifying Custody, Parenting Time and/or Support The Supplemental Judgment Modifying (change) Custody, Parenting Time, Support, and/or Order re: Jurisdiction finalizes your case and contains all of the issues decided in mediation, 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 Supplemental Judgment Modifying (change) Custody, Parenting Time, Support, and/or Order re: Jurisdiction. If the other parent didn't file a response, the information you fill out in the Supplemental Judgment Modifying (change) Custody, Parenting Time, Support, and/or Order re: Jurisdiction should be the same as what you requested in your Ex Parte Motion for Order to Show Cause Regarding Modification. If the other parent filed a response, the information should be the same as was decided in mediation, a hearing or through your agreement. Before submitting your Supplemental Judgment Modifying Custody, Parenting Time and/or Support, please review Page 6 of 7, MODIFICATION
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the document to be certain that all sections are complete. If you are responsible for filling out and filing the Supplemental Judgment Modifying Custody, Parenting Time and/or 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 Supplemental Judgment Modifying Custody, Parenting Time and/or 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 Supplemental Judgment of Custody, Parenting Time or Child Support 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 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

Division of Child Support: 503-986-6090 www.dcs.state.or.us or www.dcs.state.or.us/calculator

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