Bill Text: OR HB3133 | 2013 | Regular Session | Introduced

---

Bill Title: Relating to child custody determinations.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3133 Detail]

Download: Oregon-2013-HB3133-Introduced.html

---

     77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 2932

                         House Bill 3133

Sponsored by Representative PARRISH; Representative WEIDNER

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Requires court to award custody to parent that child 14 years
of age or older indicates preference to reside with unless not in
best interests or welfare of child. Requires court to consider
desires and educational needs of child at least 11 years of age
and not older than 14 years of age in making custody
determination. Provides that preference or desire of child does
not constitute change of circumstances except with respect to
court-ordered child support if child's preference or desire would
cause change in custody from existing judgment or order.

                        A BILL FOR AN ACT
Relating to child custody determinations; creating new
  provisions; and amending ORS 107.137 and 416.425.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 107.137 is amended to read:
  107.137. (1) Except as provided in subsection (5) of this
section, in determining custody of a minor child under ORS
107.105 or 107.135, the court shall give primary consideration to
the best interests and welfare of the child. In determining the
best interests and welfare of the child, the court shall consider
the following relevant factors:
  (a) The emotional ties between the child and other family
members;
  (b) The interest of the parties in and attitude toward the
child;
  (c) The desirability of continuing an existing relationship;
  (d) The abuse of one parent by the other;
  (e) The preference for the primary caregiver of the child, if
the caregiver is deemed fit by the court; and
  (f) The willingness and ability of each parent to facilitate
and encourage a close and continuing relationship between the
other parent and the child. However, the court may not consider
such willingness and ability if one parent shows that the other
parent has sexually assaulted or engaged in a pattern of behavior
of abuse against the parent or a child and that a continuing
relationship with the other parent will endanger the health or
safety of either parent or the child.
  (2) The best interests and welfare of the child in a custody
matter shall not be determined by isolating any one of the
relevant factors referred to in subsection (1) of this section,
or any other relevant factor, and relying on it to the exclusion
of other factors. However, if a parent has committed abuse as
defined in ORS 107.705, other than as described in subsection (5)
of this section, there is a rebuttable presumption that it is not
in the best interests and welfare of the child to award sole or
joint custody of the child to the parent who committed the abuse.
  (3) In determining custody of a minor child under ORS 107.105
or 107.135, the court shall consider the conduct, marital status,
income, social environment or lifestyle of either party only if
it is shown that any of these factors are causing or may cause
emotional or physical damage to the child.
  (4) No preference in custody shall be given to the mother over
the father for the sole reason that she is the mother, nor shall
any preference be given to the father over the mother for the
sole reason that he is the father.
  (5)(a) The court determining custody of a minor child under ORS
107.105 or 107.135 shall not award sole or joint custody of the
child to a parent if:
  (A) The court finds that the parent has been convicted of rape
under ORS 163.365 or 163.375 or other comparable law of another
jurisdiction; and
  (B) The rape resulted in the conception of the child.
  (b) A denial of custody under this subsection does not relieve
the parent of any obligation to pay child support.
   { +  (6)(a) Notwithstanding any other provision of this
section, in determining custody of a minor child who is 14 years
of age or older, the court shall award custody to the parent that
the child indicates a preference to reside with a majority of the
time unless the court finds that it is not in the best interests
and welfare of the child to do so.
  (b) Notwithstanding any other provision of this section, in
determining custody of a minor child who is at least 11 years of
age and not older than 14 years of age, the court shall consider
the desires, if any, and the educational needs of the child.
  (c) In making a custody determination under paragraph (a) or
(b) of this subsection, the court may issue a temporary order for
custody for a trial period not to exceed six months.
  (d) The preference or desire of a child under paragraph (a) or
(b) of this subsection does not constitute a change of
circumstances sufficient to modify a custody judgment or order
pursuant to ORS 107.135, but does constitute a change of
circumstances sufficient for a court or the administrator as
defined in ORS 25.010 to reconsider and modify the child support
provisions of an existing judgment or order pursuant to ORS
107.135 or 416.425 if the child's preference or desire would
cause a change in custody from the existing judgment or
order. + }
  SECTION 2. ORS 416.425 is amended to read:
  416.425. (1) Any time support enforcement services are being
provided under ORS 25.080, the obligor, the obligee, the party
holding the support rights or the administrator may move for the
existing order to be modified under this section. The motion
shall be in writing in a form prescribed by the administrator,
shall set out the reasons for modification and shall state the
telephone number and address of the party requesting
modification.
  (2) The moving party shall state in the motion, to the extent
known:
  (a) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving the
dependent child, including a proceeding brought under ORS 25.287,
107.085, 107.135, 107.431, 108.110, 109.100, 109.103, 109.165,
125.025, 416.415, 419B.400 or 419C.590 or ORS chapter 110; and
  (b) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving the dependent child, other than the order the party is
moving to modify.
  (3) The moving party shall include with the motion a
certificate regarding any pending support proceeding and any
existing support order other than the order the party is moving
to modify. The party shall use a certificate that is in a form
prescribed by the administrator and include information required
by the administrator and subsection (2) of this section.
  (4) The moving party shall serve the motion upon the obligor,
the obligee, the party holding the support rights and the
administrator, as appropriate. The nonrequesting parties must be
served in the same manner as provided for service of the notice
and finding of financial responsibility under ORS 416.415 (1)(a).
Notwithstanding ORS 25.085, the requesting party must be served
by first class mail to the requesting party's last known address.
The nonrequesting parties have 30 days to resolve the matter by
stipulated agreement or to serve the moving party by regular mail
with a written response setting forth any objections to the
motion and a request for hearing. The hearing shall be conducted
under ORS 416.427.
  (5) When the moving party is other than the administrator and
no objections and request for hearing have been served within 30
days, the moving party may submit a true copy of the motion to
the administrative law judge as provided in ORS 416.427, except
the default may not be construed to be a contested case as
defined in ORS chapter 183. Upon proof of service, the
administrative law judge shall issue an order granting the relief
sought.
  (6) When the moving party is the administrator and no
objections and request for hearing have been served within 30
days, the administrator may enter an order granting the relief
sought.
  (7) A motion for modification made under this section does not
stay the administrator from enforcing and collecting upon the
existing order unless so ordered by the court in which the order
is entered.
  (8) An administrative order filed in accordance with ORS
416.440 is a final judgment as to any installment or payment of
money that has accrued up to the time the nonrequesting party is
served with a motion to set aside, alter or modify the judgment.
The administrator may not set aside, alter or modify any portion
of the judgment that provides for any payment of money for minor
children that has accrued before the motion is served. However:
  (a) The administrator may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or judgment, during which
the obligor, with the knowledge and consent of the obligee or
pursuant to court order, has physical custody of the child; and
  (b) The administrator may allow a credit against child support
arrearages for any Social Security or veterans' benefits paid
retroactively to the child, or to a representative payee
administering the funds for the child's use and benefit, as a
result of a parent's disability or retirement.
  (9) The party requesting modification has the burden of showing
a substantial change of circumstances or that a modification is
appropriate under the provisions of ORS 25.287 { +  or 107.137
(6) + }.
  (10) An administrative order modifying a court order is not
effective until the administrative order is reviewed and approved
by the court that entered the court order. The court shall make a
written finding on the record that the administrative order
complies with the formula established by ORS chapter 25. The
court may approve the administrative order at any time after the
order is issued. If upon review the court finds that the
administrative order should not be approved, the court shall set
the matter for hearing de novo.
  (11) The obligee is a party to all proceedings under this
section.
  (12) An order entered under this section that modifies a
support order because of the incarceration of the obligor is
effective only during the period of the obligor's incarceration
and for 60 days after the obligor's release from incarceration.
The previous support order is reinstated by operation of law on
the 61st day after the obligor's release from incarceration. An
order that modifies a support order because of the obligor's
incarceration must contain a notice that the previous order will
be reinstated on the 61st day after the obligor's release from
incarceration.
  (13)(a) Notwithstanding subsections (1) to (12) of this
section, any time support enforcement services are being provided
under ORS 25.080, upon request of a party to a support order or
judgment or on the administrator's own motion, the administrator
may move to suspend the order or judgment and issue a temporary
modification order under this subsection when:
  (A) There is a period of significant unemployment as that term
is described in paragraph (b) of this subsection; and
  (B) A party to the support order or judgment experiences an
employment-related change of income as defined by rule in ORS
416.455.
  (b) Proceedings under this subsection may be initiated only
when there is a period of significant unemployment in Oregon. The
Attorney General shall determine when a 'period of significant
unemployment' exists in Oregon and designate the beginning and
ending dates thereof. In making the determination of when a
period of significant unemployment exists in Oregon, the Attorney
General may consider whether there is in effect an 'extended
benefit period' as that term is defined in ORS 657.321.
  (c) Except as otherwise provided in this subsection, the
provisions of subsections (1) to (12) of this section apply to a
motion for an order of suspension and temporary modification
under this subsection.
  (d) A party's employment-related change of income during a
period of significant unemployment is considered a substantial
change of circumstances for purposes of proceedings brought under
this section.
  (e) The motion for an order of suspension and temporary
modification must be in writing and must include, but need not be
limited to:
  (A) The amount of the existing support order or judgment;
  (B) The amount of the obligor's and obligee's income
immediately preceding the party's employment-related change of
income, if known;
  (C) The reason for the party's employment-related change of
income;
  (D) How the party's employment-related change of income affects
the party's employment status, income and, if applicable, ability
to pay support;
  (E) The obligor's and the obligee's current sources of income,
if known;
  (F) The proposed amount of the temporary modification order;
  (G) A statement that if a party objects to the motion for an
order of suspension and temporary modification, then the party
may request a hearing within 14 days of service of the motion as
provided in paragraph (g) of this subsection;
  (H) A statement that the preexisting support order or judgment
will be reinstated as provided in paragraph (h) of this
subsection; and
  (I) A statement that a party may request a renewal of the order
of suspension and temporary modification prior to its expiration
as provided in paragraph (j) of this subsection.
  (f) The administrator shall serve the motion filed under this
subsection upon the parties by regular first class mail,
facsimile or electronic mail unless a party signs a form agreeing
to accept service of the motion.
  (g) A party may request a hearing within 14 days of service of
the motion. If a hearing is requested, the provisions of ORS
416.427 apply. When there has been no request for hearing, the
administrator may enter an order of suspension and temporary
modification under this subsection. The order must be consistent
with the provisions of the motion filed under this subsection and
be in substantial compliance with the formula established under
ORS 25.275.
  (h) An order of suspension and temporary modification issued
under this subsection is temporary and remains in effect for six
months from the date the order is filed under ORS 416.440 or
until the date specified in the notice provided under paragraph
(i) of this subsection informing of the party's reemployment,
whichever is earlier, at which time the preexisting support order
or judgment becomes immediately effective and payable on the
first day of the following month unless an order of renewal is
issued under paragraph (j) of this subsection.
  (i) The administrator may issue a notice of reinstatement at
any time during which an order of suspension and temporary
modification is in effect under this subsection when a party
obtains employment and receives income that is sufficient to
reinstate support in an amount substantially similar to the
amount in the preexisting support order or judgment. The notice
shall be served as provided in paragraph (f) of this subsection
and must state that, unless a request for hearing is received
within 14 days of service of the notice, the administrator will
enter an order terminating the order of suspension and temporary
modification and reinstating the amount of the preexisting
support order or judgment effective on a date to be specified in
the notice. If a hearing is requested, the provisions of ORS
416.427 apply. When there is no request for hearing, the
administrator may enter an order terminating the order of
suspension and temporary modification and reinstating the
preexisting support order or judgment effective upon the date
specified in the notice.
  (j) Prior to expiration of an order of suspension and temporary
modification under this subsection and upon request of a party,
the administrator may renew the order of suspension and temporary
modification for additional six-month periods or until the party
obtains employment as described in paragraph (i) of this
subsection, whichever occurs first, if the circumstances under
which the order was originally issued continue to exist
unchanged.
  SECTION 3.  { + The amendments to ORS 107.137 and 416.425 by
sections 1 and 2 of this 2013 Act apply to custody determinations
made by a court on or after the effective date of this 2013
Act. + }
                         ----------