ORS 109.804¹
Immediate physical custody of child allowed
  • exceptions
  • spousal privilege not allowed in certain proceedings

(1) Unless the court issues a temporary emergency order under ORS 109.751 (Temporary emergency jurisdiction), upon a finding that a petitioner is entitled to immediate physical custody of the child under the controlling child custody determination, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that:

(a) The child custody determination has not been registered and confirmed under ORS 109.787 (Registration of child custody determination) and that:

(A) The issuing court did not have jurisdiction under ORS 109.741 (Initial child custody jurisdiction) to 109.771 (Appearance of parties and child);

(B) The child custody determination for which enforcement is sought has been vacated, stayed or modified by a court of a state having jurisdiction to do so under ORS 109.741 (Initial child custody jurisdiction) to 109.771 (Appearance of parties and child); or

(C) The respondent was entitled to notice, but notice was not given in accordance with the standards of ORS 109.724 (Notice to persons outside state), in the proceedings before the court that issued the order for which enforcement is sought; or

(b) The child custody determination for which enforcement is sought was registered and confirmed under ORS 109.787 (Registration of child custody determination), but has been vacated, stayed or modified by a court of a state having jurisdiction to do so under ORS 109.741 (Initial child custody jurisdiction) to 109.771 (Appearance of parties and child).

(2) The court shall award the fees, costs and expenses authorized under ORS 109.811 (Costs, fees and expenses), may grant additional relief, including a request for the assistance of law enforcement officials, and may set further hearings, if necessary, to determine whether additional relief is appropriate.

(3) A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under ORS 109.774 (Definitions for ORS 109.774 to 109.827) to 109.827 (Costs and expenses of district attorney and law enforcement officers). [1999 c.649 §32]

Note: See note under 109.701 (Short title).

Note

Subject sec­tions all sub­se­quently repealed

Notes of Decisions

Habeas corpus is permissible pro­ce­dure to enforce custody decrees in conjunc­tion with these sec­tions. State ex rel Butler v. Morgan, 34 Or App 393, 578 P2d 814 (1978)

Long-term abduc­tion of child can result in jurisdic­tion vesting in state where child is located. Grubs v. Ross, 291 Or 263, 630 P2d 353 (1981)

In abduc­tion cases, jurisdic­tion of decree state continues for reasonable period of time following abduc­tion. Grubs v. Ross, 291 Or 263, 630 P2d 353 (1981)

Where Oregon court rendered original decree and had continuing jurisdic­tion, court was not re­quired to defer to court of an­oth­er state where modifica­tion was already pending. Fenn and Fenn, 63 Or App 506, 664 P2d 1143 (1983)

Uniform Child Custody Jurisdic­tion Act did not apply to paternity ac­tion, because ac­tion was not "custody determina­tion" for purposes of UCCJA. State ex rel Baldwin v. Hale, 86 Or App 361, 738 P2d 1016 (1987)

Filing of peti­tion under Revised Uniform Reciprocal Enforce­ment of Support Act that included request for determina­tion of custody and visita­tion could not confer jurisdic­tion by con­sent where Uniform Child Custody Jurisdic­tion Act jurisdic­tional require­ments were not met. State ex rel State of Washington v. Bue, 117 Or App 477, 844 P2d 278 (1992)

Uniform Child Custody Jurisdic­tion Act applies to adop­tion pro­ceed­ings. State ex rel Torres v. Mason, 315 Or 386, 848 P2d 592 (1993)

Where supple­mental pleading alleges con­duct that could not have been alleged in initial peti­tion, other than new jurisdic­tional basis, jurisdic­tion is measured from time filing of supple­mental pleading commences ac­tion. Stubbs v. Weathersby, 320 Or 620, 892 P2d 991 (1995)

Except in unusual circumstances, Oregon law applies to issues arising out of adop­tion peti­tion properly filed in Oregon, including ques­tions of con­sent signed in an­oth­er state. Stubbs v. Weathersby, 320 Or 620, 892 P2d 991 (1995)

Federal Parental Kidnaping Preven­tion Act preempts state law with regard to modifica­tion of foreign state decrees. Henry and Keppel, 326 Or 166, 951 P2d 135 (1997)

Law Review Cita­tions

12 WLJ 629-641 (1976)

Chapter 109

Law Review Cita­tions

12 WLJ 569-589 (1976)

1 Legislative Counsel Committee, CHAPTER 109—Parent and Child Rights and Relationships, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­109.­html (2007) (last ac­cessed Feb. 12, 2009).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 109, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­109ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.
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