Frequently asked questions

No. There is no such thing as "pressing charges" for private persons. This is a common misconception. Criminal charges are investigated by the police, who then refer cases to a prosecuting attorney. Only a prosecutor - the District Attorney (DA), for state crimes, or United States Attorney, for federal crimes - can bring criminal charges before a court. A crime victim can make a report of a crime to the police, and cooperate with the prosecution in making their case, but that's all. They can't legally compel, or refuse, any prosecution.

This can be confusing, because police officers will sometimes ask people if they want to "press charges." What the police mean, when they ask this, is, "if we go to the trouble of arresting this person and referring the case to the DA, will you cooperate by showing up and testifying?" In some cases, a victim's cooperation is essential and the police don't want to waste their time on cases in which this essential witness is not interested. But if there is other evidence available, the police and prosecution will not feel bound by the victim's wishes in the matter.

Crime victims do have a number of other important rights under the Oregon Constitution. You can read more about this at the Oregon Department of Justice website. 

No.  By far the worst thing that you can do for yourself is to talk to law enforcement without a lawyer present. (This includes DHS caseworkers, in a child custody situation). If you are approached by law enforcement officers who indicate you are a suspect in a crime, you must categorically invoke your right to remain silent and to counsel. Say "I'm sorry, but I don't want to answer any questions, and I want a lawyer." If the police ask to search your home or belongings, say "I am not resisting, but I do not consent to any searches of my person, property, or home." (Special rules apply to searches of motor vehicles during a traffic stop. You have fewer rights to resist searches of the inside of your car than you do of your person or effects at other times.) Do not, of course, physically resist the police. If you resist, you may be seriously injured or killed. But if you politely refuse consent, you increase the chances that a lawyer can have the search invalidated and the evidence suppressed. 

Bear in mind that invoking your rights this way may well induce the police to arrest you, if they believe that they have probable cause to show you committed a crime. Being arrested is extremely inconvenient and uncomfortable, to put it mildly; but a lawyer working on your behalf will want to protect you from something much worse: being convicted of a crime. The police want to play on your fears of being arrested, to get you to talk. The police are very good at persuading people that, if they only say the right things, the police will see how right they are and will let them go. Everyone wants to tell their story. Everyone wants to defend themselves, and to be validated and told that they're good. The police know this. The police can and will lie to you to get you to say something self-incriminating. And confessions or other self-incriminating statements that the police induce from you by lying are admissible against you. It is regrettable that this has to be the advice we give, in a free society, but the implication is clear: Don't believe a word they say. Say you want to remain silent. Say you want a lawyer. Stop talking after that. This is the best and only way to defend yourself. 

The only way that anybody can ever legally force anybody else to do anything is to file a motion with the court. In the context of a child custody dispute, that would be a petiton for custody if you don't have a custody judgment, or a motion to enforce or to modify that judgment if you do. 

The law is not good at regulating what people do with their families in the privacy of their own homes; but if you want to ask it to try, you usually have to start by attempting to address this without legal force. Child custody cases, at their core, often come down to "reasonableness contests" - you win by looking more reasonable than the other guy. What judges consider to be reasonable, is for parents to try to work together to resolve their disputes and to raise their children across separate homes. This does not necessarily apply in cases where one parent has been abusive to the other parent, or to the children; such claims require strong evidence and have strong consequences when proved. But outside of that terrible circumstance, parents are expected to work together. 

It's reasonable that different homes might have different rules and customs, but parents should  respect and enforce each other's rules. The court will be much more likely to enforce something for you if you tried to work it out on your own first. So what you should do when a problem arises is to call or write to your co-parent and say, hey, I heard that this might be happening at your house. Don't accuse them of abuse right out of the gate or start threatening legal action; try to have a conversation about what each of you believes is and is not appropriate and what your child needs. Try to present it like a problem you need to solve together. That way, if it doesn't work, you can tell the judge you tried at least.

The judge hearing your case will expect you to do some every-day problem-solving with your co-parent, no matter how much you hate them. This is evidence-based: there is overwhelming data to show that the best predictor of success and happy lives for children is to have parental figures who are, if not together romantically, at least working together, and are not at each other's throats all the time. It's also practical: filing motions to enforce all the time is expensive and time-consuming; so too is hearing the motions, from the court's point of view. The judge knows that nobody knows your family and your child better than you and your co-parent do; they can't be resolving day-to-day disputes for you all the time. So they want you two to talk to each other and work it out. 

All family law problems are problems of personal boundaries. If you are having a problem with your child's co-parent, you ultimately have exactly three options: 1) deal with it. 2) talk to them like they're a person. 3) file a motion with the court - whether it be to enforce an existing court order for custody and parenting time, or to modify one, or to create a new one if there isn't one. Filing motions is expensive and time-consuming (even if you don't hire a lawyer), so you have a strong incentive to use the other options. You will need to be able to set good boundaries with your co-parent, giving reasonable grace for their mistakes but also not letting them push you around.

For the most part, one parent cannot terminate another parent's parental rights. If this were possible, then disgruntled parents would be doing it to each other all the time. You may be able to get a custody judgment that grants you primary legal custody and gives the other parent no parenting time; but they still have "parental rights" in theory if not in practice - including, most significantly, the right to ask the court to modify that custody judgment. Whether they would be successful in such a motion, of course, is another question.

There is only one limited exception: a parent's parental rights and responsibilities can be terminated, if another adult agrees to assume those rights and responsibilities by adopting the child. This requires the consent of both the original, biological parents. The non-custodial parent would have to be given notice of the proposed adoption, and would have the right to object. However, that parent's consent can be inferred, and their objections overcome, if it can be proved that they voluntarily abandoned the child or children for a full year or more. Note that, if a parent has been incarcerated or otherwise legally prohibited from contacting the children, their abandonment of them might not be considered "voluntary" in a legal sense.

The easiest way to do an adoption is if all the parents agree. If they don't, you would have to file an adoption on a contested basis, and prove the elements discussed above. You should retain an attorney if you want to proceed with this - it is not a do-it-yourself process.

This is a difficult problem in custody cases. It is rarely wise to bring a child to court. Asking a child to testify on one parent's behalf - to publicly choose one parent over the other - is an intolerable cruelty to that child. Most children love both their parents, and judges want to encourage that. Most judges would likely refuse to allow such testimony, and would be angry at the parent who attempted to provide it.

Likewise, you personally cannot tell the Court what your child told you they want. This is considered hearsay, and is not usually permitted by the laws of evidence. 

There is, however, a solution: A minor, whose parents are in an ongoing custody dispute, can request that an attorney be appointed to represent them. The child can do this by writing a letter to the judge (the judge who hears the case, if it's 'retained;' or the presiding judge of the court, if there is none or you don't know who the retained judge is), citing the case name and number, and asking that an attorney be appointed to represent you.  All the letter needs  to say is something like: "Dear judge, I am a minor child involved in this case, and I would like an attorney appointed to represent me, please." No other special language needs to be included. The court will search its database of attorneys who have made themselves available for this purpose and will appoint one. Usually of these attorneys work for free, but sometimes they will ask to be paid, either before or after the case, by the parents. (Because the work is usually free, there are never enough attorneys to meet the demand, and so there can be delays in getting one appointed.) The child's attorney will then meet with the child in private and articulate their wishes to the Court. For younger children, a child's attorney will customarily have a lot of discretion in deciding what is in the child's best interests; but once a child is above age 15 or so, the attorney will be more likely to just do what their child client wants. So children can have a powerful voice in these matters.  Technical details about the program may be found here.

If the Department of Human Services (DHS), Child Protective Services (CPS), believes that there is probable cause that a child is at risk of abuse or neglect, they can ask the county district attorney to file a juvenile dependency case and have the child removed from their home. If that happens, the child's parents have the right to a 'shelter hearing' before the juvenile court, within 24 hours. At that hearing, if the Court determines that there was no probable cause, then the case will be dismissed and the child returned home. But 'probable cause' is a relatively low threshold of evidence; it is much easier to prove than 'beyond a reasonable doubt' or even 'a preponderance of evidence.' 

If probable cause of abuse or neglect is found, then the Court must create a long-term plan for the future of the child. Reunification of child and parents is supposed to be the top priority - in theory. In practice, the Court can require parents to 'jump through a lot of hoops' to prove that they don't present a risk of harm to the child; many parents feel that they are railroaded in these cases. It's important for parents to rely upon the attorney representing them, to communicate with DHS and the Court about what is being asked and whether it is possible.

There is no denying that these decisions are undergirded by a heavy level of classism and other prejudice. Put at its crudest, rich and middle-class parents rarely have their kids taken away. Then again, rich and middle-class parents have more resources for support, so at least in part the bias has this theoretical rationale, unfair though it is.

Yes.  The purpose of service (when someone hands you legal papers to start a lawsuit)  is to give you actual notice of the proceedings against you - that is, to make you aware of them.  There is no such thing as "refusing service" or "not accepting" documents - if someone hands you an envelope, you can refuse to touch it; but doing that doesn't mean that you're not aware that it has been given to you.

Here's how this can play out: Once they've left documents with you, the process server will file an 'affidavit of service' with the court, saying that they presented the documents to you at a specific time and place. If you don't appear in court and file a response within 30 days (for most cases; 14 days for small claims cases), then the petitioner or plaintiff (person suing you) will be able to go back to the court and ask for a 'default judgment'. This means that they'll get the court to order whatever they requested in the petition, on the theory that you were given notice of the petition and you didn't object.

If you wanted to subsequently challenge that judgment, there is a mechanism for doing so: Oregon Rule of Civil Procedure (ORCP) 71. You could file a motion to have the judgment overturned. To prevail, you'd have to show that you were, in fact, not properly served. If you tried to argue to a court that you were not served properly, then this entire story would come out: someone tried to hand you papers, and you ignored them. You would lose your motion. You have been given actual notice of the proceedings. You can't tell the court that you didn't know about the case when in fact you did. 

Note also that, even if you win your Rule 71 motion, you don't automatically win the actual case. You'll just be served again - likely in the very courtroom once you've argued the motion. You would still need to submit a response and address the issues in the case, whatever they are. 

For this reason, playing games with 'whether service has actually been completed,' when you know full well of the proceedings against you, is a losing strategy. Once you know that you've been sued or a motion has been filed against you, you should respond to it. Pretending you don't know is rarely if ever going to help.

Of course this depends on the specific facts.  But in general, you should be aware, successful lawsuits for defamation are very rare and difficult. To prove defamation has occurred, you need to prove that someone has made a false claim about you to a third party, and that you suffered a cognizable harm as a result. "Cognizable" means, measurable and material. It doesn't always have to be strictly measurable in a dollar value - but that helps. True statements are by definition not defamation; neither are statements of personal opinion, insults, hyperbole, or general "puffery." Considering the sheer ubiquity of outrageous untruths published every minute on the internet these days, proving all these elements to a legal burden can be challenging. (You'd also have to prove who it was that made the statement, which is sometimes non-obvious with internet commentary.)

So there are a number of obstacles to a successful defamation suit. As the person bringing the suit, you bear the burden to show that the statement in question was false, and that you suffered a measurable harm as a direct result. You also have to contend with the "Streisand effect:" The fact is, filing a defamation suit will result in whatever statements you're concerned about, being repeated, many times over, in court, and in the news, as you try to disprove them. It will attract much more attention to the matter than it ever had before. For all these reasons, defamation suits are rarely worthwhile investments long term (aside, perhaps, for celebrities who have loads of money to throw away on court cases, and who have public reputations that may be more substantial than common citizens like you or I).

People seem to have this belief, from sensationalist media or whatever, that a lawsuit can be this gloriously redemptive process, where all your wounds are redressed and all your grievances vindicated. This belief is staggeringly wrong. Lawsuits are very expensive, time-consuming, and stressful. The filing fee for a lawsuit alone can be hundreds of dollars; to successfully prosecute one you need to pay for an attorney, for expert witnesses, for discovery. As such, lawsuits should usually not be undertaken purely out of abstract principle or high-minded ideals. They should be done only when necessary to get you something that you need. For example, because of defects in our health care system, when you've been in an accident it's often necessary to sue, or at least to threaten to sue, the other party in order to get necessary medical care.

Again, whether you have a case depends entirely on the facts. But these issues should always be considered. 

No. (Often both sides in a case have lawyers.) There are never any guarantees. Nor does not hiring a lawyer guarantee that you'll lose. But being represented does improve your chances of a satisfactory outcome.

There could be any number of reasons. It bears remembering that, while you do have important rights and interests, so do the other parties to your case. The purpose of the courts is to mediate between people's conflicting rights and interests. Very few rights are absolute. 

In general, we advise people that "rights" are not the best way to think about legal problems. When deciding how to treat others, one must keep others' rights in mind. When deciding how to act strategically, rights only matter to the extent that they can be enforced. Your rights, in that sense, matter less than your options.