What Is A Writ Of Assistance?

In Oregon, the divorce process begins when one spouse files a petition for dissolution of marriage with the court in the county where either spouse lives. The filing party is the petitioner, and the other spouse is called the respondent. The petition must contain the names of all children:

  • Born or adopted during the marriage;
  • Conceived during the marriage but not yet born along with their expected dates of birth; and
  • Born before the marriage.

The petitioner must give the respondent notice of the divorce case by serving a summons and petition to the person. A summons contains:

  • The title of the case,
  • The name of the court the petitioner filed; and
  • The parties of the suit.

Service of the summons and petition occurs when the petitioner delivers the court documents to the respondent. Service methods include:

  • Delivery to the respondent,
  • Delivery to the residence or dwelling of the respondent,
  • Delivery to the respondent’s office,
  • Delivery to the respondent’s attorney,
  • Service by mail; or
  • Service by fax, email, or other electronic communication by a court order.

Under Oregon law, the respondent has 30 days to file the response to the petition with the court after receiving proper service of the summons and petition. The summons must state the length of time to respond. It also must provide directions to the respondent, informing them that they must answer the petition or default on the suit if there is a failure to respond. If the respondent defaults, the court may give the petitioner what they ask for in the petition.

During the dissolution of a marriage case, the court addresses couple issues, including spousal support, property division, child custody, child support, and parenting time. Spouses can agree on divorce issues and submit them to the judge for review. When the court does not approve of their terms or the spouses cannot agree, the judge resolves the disputes and finalizes them in the judgment of dissolution of marriage.

In an Oregon divorce case, the final judgment states the marriage is over and may also outline:

  • The division of the property,
  • The amount and terms of child support,
  • Child custody arrangement,
  • Parenting time and schedule,
  • Child’s primary residence; and
  • Spousal support amount and duration.

Both parties must follow the terms of the judgment. However, situations may arise after the divorce that requires the former spouse to seek help with enforcing the court order. A party may go back to court and obtain a writ of assistance.

The writ of assistance is a court order that directs a law enforcement agency to enforce a previous judgment. The judgment for dissolution may entitle the custodial or non-custodial parent to have physical custody at specific times.

However, noncompliance with a judgment for child custody and parenting time occurs when the non-custodial parent fails to return the child to the custodial parent. Oregon courts cannot order a writ of assistance to enforce parenting time or visitation.

The parent entitled to physical custody of the child can seek an order for assistance by filing an application with the court in the appropriate Oregon county. The motion or petition must have a certified copy of the custody order. If the non-custodial parent disobeys the judge’s child custody ruling in the prior order, the writ of assistance would require a law enforcement officer to retrieve the child.

The custodial parent can file an ex parte motion to declare how the court needs to assist in maintaining the original order on the child’s custody. This can be filed without the other party’s presence. The filing party must also attach an affidavit to support the motion or petition. Upon review of the documents, the court may sign an order if it finds that:

  • A valid and current order gives the filing party physical custody; and
  • The person holding the child violates the custody order

The order instructs law enforcement in the jurisdiction of the child’s location to retrieve the child by reasonable means and force. The law enforcement agency must then deliver the child in the manner the court determines.

The law enforcement agency must inform the court whether it executed the order of assistance. If they retrieved and delivered the child to the custodial parent, the agency must provide a statement including the order execution date and additional information the court requires.

To schedule a consultation with one of our child custody attorneys in Oregon or SW Washington, call us now at 503.222.9116 or write us.

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