Multnomah County Presiding Judge Issues Child Custody and Parenting Time Orders During COVID 19 Pandemic

Last week we wrote about the State Family Law Advisory Committee (SFLAC) recommendations for custody and parenting time issues that may arise during this COVID 19 pandemic. Since that post, those recommendations have been adopted in a Court Order as of March 27, 2020 issued by Presiding Judge Stephen Bushong and Presiding Family Law Judge Susan Svetkey of the Multnomah County Circuit Court (here is a link to that order). This Order applies to any person who has a court-ordered parenting plan in a Multnomah County Circuit Court case that is still in effect. The Order sets forth parenting time guidelines for parents to follow during this COVID 19 pandemic regarding Summer vacation and other holidays, denial of parenting time, parenting time in public places, supervised parenting time, impact of Governor Brown’s Executive Order regarding travel, safety-related issues, transparency and make up parenting time. We encourage you to review this Order as it may provide useful information and answer some questions you may be having depending on your circumstances.  If you have a current parenting time order from a different county in Oregon, this Order does not apply to you but it may provide you with some guidelines to follow if your court order from a different county does not address these issues. We encourage you to seek legal counsel for any questions you may have about your particular court order. We hope you and your family is staying healthy and safe during this stressful time.

Chris Costantino is committed to helping clients navigate the complex and emotionally challenging territory of family law in their personal lives and family businesses. Her trademark philosophy — love your children, protect your assets, and preserve your legacy — guides her law practice.

Emily Clark Cuellar is a litigator at Samuels Yoelin Kantor. Her practice is centered around families, and her passion is helping families navigate all the various obstacles they may face. Her practice focuses on domestic relations and fiduciary and probate litigation.

Divorcing Your Pet

More of my clients are asking me about what happens to the family pet in a divorce.  It’s a very direct (and perhaps callous for some) answer to an emotional question.  Pets are personal property or in Ye Olde English Law speak: chattel.  The family pet is divided much in the same way as the family car or couch.  The “property” is valued and then awarded to one spouse, and the other spouse is given the cash equivalent or other property for her half share of the pet’s “value.”  How is one to value a pet?  King Solomon had ideas but we all agree that does not work for kids or, similarly, for pets.  I have yet to put on such evidence in an Oregon Court but I suppose that day may come.  Every pet I have “divorced” was dealt with in settlement negotiations rather than in open Court by a judge because the parties wanted control in the decision.

Parties can agree that one has sole ownership of the pet while allowing the other party a contractual right to visitation, or the parties can agree to joint ownership of the pet with some kind of mutual visitation plan.  Visitation plans for a cat, dog, rabbit, [you fill in the blank], can be very complicated.  What if the cat gets loose on the night she is to go to your ex?  Are you in contempt of a court order if you can’t deliver the cat on the court-ordered date and time?  This all sounds a bit unreal and silly, but a visitation schedule is a court order which must be followed like any other court order.  A good reason to consider whether to have visitation rights of the pet in the first place.

Parties enter mutual agreements in divorce cases every day which are enforced by the Court.  There are certain legal requirements that must be present in such agreements in order for a Court to uphold it like any other legal contract.  There is no legal opinion under Oregon law at present that deals directly with this pet issue.  So there is a significant risk if one of you challenges the validity of the agreement, that a judge may not uphold your agreement.  However, a mutual agreement is the best solution under current law.  Otherwise, a judge is likely to award the pet to one of you and will likely not grant visitation to the other; much in the same way you can’t both share the couch anymore.

Oregon State Agencies are Now Required to Recognize Out of State Same Sex Marriages

In October 2013, the Oregon Department of Justice (“DOJ”) issued a decision to allow State agencies to recognize out of state same sex marriages. (See my previous blog posting on October 8). Now, effective January 1, 2014, a new Oregon Administrative Rule requires all State agencies to recognize same sex marriages validly performed in other jurisdictions. OAR 105-010-0018. This rule follows the reasoning of the DOJ’s decision that the state must recognize those same-sex marriages in order to comport with the United States Constitution. The rule expires on June 30, 2014 and is intended to give agencies time to adopt specific rules and procedures implementing this mandate prior to the expiration date. We expect to see agencies come out with their new rules and procedures over the next six months, which should provide more clarity for same-sex couples in Oregon.

Oregon DOJ – State Agencies Can Extend Rights And Benefits To Same Sex Couples

On October 16, 2013, the Oregon Department of Justice (“DOJ”) issued an opinion concluding that Oregon agencies can recognize valid same-sex marriages from other jurisdictions for purposes of administering Oregon law without registering as domestic partners. (Emphasis supplied). This is significant given the fact that under current Oregon law, same sex couples must register as domestic partners in order to have the same rights, privileges and responsibilities as heterosexual married couples.

This agency opinion comes on the heels of the June 26, 2013 United States Supreme Court decision in United States v. Windsor, 113 S.Ct. 2675 (2013) in which the Court held Section 3 of the Defense of Marriage Act (“DOMA”) unconstitutional on equal protection grounds in defining marriage as between one man and one woman for purposes of federal law; and the October 15, 2013 federal court case filing in the United States District Court in Eugene, Oregon by two gay couples who seek a holding that Oregon’s Constitutional ban on gay marriage is similarly unconstitutional under the Oregon Constitution. The Windsor holding allows gay couples who are married in jurisdictions that allow gay marriage, the same rights and responsibilities under federal law as heterosexual spouses.

Federal agencies have come out with regulations that clarify the ruling to provide that these federal rights follow the couple regardless of the State they reside. The Windsor decision does not require States to allow gay marriage and continues the long established principle that domestic relations issues fall squarely under the power of the States. In applying Windsor in Oregon, a gay couple who marries in Washington State (which allows gay marriage) but lives in Oregon, has the same rights as spouses under federal law. However, given Oregon’s domestic partnership statute and express ban on gay marriage, that same couple would be required to register as domestic partners in order to avail themselves of the same rights as spouses under state law. Neither the Windsor decision nor the DOJ opinion alters Oregon law.

There are two challenges currently underway against Oregon’s Constitutional ban on gay marriage, including a voter initiative for the November 2014 election and the recently filed law suit mentioned above. It is likely that this question of constitutionality of Oregon’s gay marriage ban will be decided in the near future by way of one or both of these challenges. For now, we are advising our same sex clients who have decided to marry, to register as domestic partners in Oregon in order to guarantee their rights under state law, and to marry in jurisdictions (like Washington or California – there are differences but that’s for another day) to avail themselves of the federal rights and benefits of traditional spouses.