Custody battle

Get an attorney and immediately file for custody. I assume you are on the birth certificate for the children that are yours.

You may not get custody of the one that isn't yours. But with this situation you need an attorney to straighten it out.

You have very little if any rights to the one that is not yours, unless you adopted her. But you need to file for custody in court.

Except in states where the courts have adopted the "psycholgical parent" theory. I don't know if Oregon is one of those.

1. Harrington v. Daum, 172 Or App 188 (2001). Visitation awarded to deceased mother's boyfriend over objection of birth father, reversed.
2. Wilson and Wilson, 184 Or App 212 (2002). Custody of stepchild awarded to stepfather, along with parties' joint child, reversed.
3. Austin and Austin,185 Or App 720 (2003). In the first case applying revised ORS 109.119 and, in the first case since Troxel, the Court of Appeals awarded custody to a third party (step-parent) over the objection of a birth parent (mother). The constitutionality of the revised statute was not raised before the court. The court found specific evidence to show that mother was unable to adequately care for her son. The case is extremely fact specific. Father had been awarded custody of three (3) children, two (2) of whom were joint children. The third child, at issue in the case, was mother's son from a previous relationship. Therefore, sibling attachment as well as birth parent fitness were crucial to the court's decision.

ORS 109.119 provides that the natural parent presumption may be rebutted if "circumstances detrimental to the child exists if relief is denied" summary evidence that a child would be harmed through a transition to the custodial parent will not be adequate.



ORS 109.119,
"(1) Any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship * * * with a child may petition or file a motion for intervention with the court having jurisdiction over the custody * * * of that child, or if no such proceedings are pending, may petition the court * * * for an order providing for relief under subsection (3) of this section.

"(2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.

"* * * * *

"(3)(a) If the court determines that a child-parent relationship exists and if the court determines that the presumption described in subsection (2)(a) of this section has been rebutted by a preponderance of the evidence, the court shall grant custody * * * to the person having the child-parent relationship, if to do so is in the best interest of the child. * * *

"(4)(a) * * *

"(b) In deciding whether the presumption described in subsection (2)(a) of this section has been rebutted and whether to award custody, guardianship or other rights over the objection of the legal parent, the court may consider factors including, but not limited to, the following, which may be shown by the evidence:

"(A) The legal parent is unwilling or unable to care adequately for the child;

"(B) The petitioner or intervenor is or recently has been the child's primary caretaker;

"(C) Circumstances detrimental to the child exist if relief is denied;

"(D) The legal parent has fostered, encouraged or consented to the relationship between the child and the petitioner or intervenor; or

"(E) The legal parent has unreasonably denied or limited contact between the child and the petitioner or intervenor.

"* * * * *

"(8) As used in this section:

"* * * * *

"(b) 'Circumstances detrimental to the child' includes but is not limited to circumstances that may cause psychological, emotional or physical harm to a child."

And finally
LAMONT -O'DONNELL,/SUPREME COURT OF THE STATE OF OREGON/
http://www.publications.ojd.state.or.us/S50551.htm
"Second, as previously discussed, the legislature specifically identified five factors that may be considered in determining whether the presumption has been rebutted. ORS 109.119(4)(b). By stating that those factors are nonexclusive and by including, as relevant factors, whether the nonparent recently has been the child's primary caretaker and whether the legal parent has consented to the relationship between the child and the nonparent, the legislature demonstrated that the parental presumption can be rebutted without a showing that the parent will harm the child or is unable to care for the child. "
Thus a fit, able and willing parent may be stripped from custodial rights in the state of Oregon.

Ok so my ex girlfriend has taken and hidden my kids from me what are my legal rights can I file kidnapping charges?

Is your ex the biological mother of your children, and is there a court order in place ?

Tick

There are federal laws pertaining to the situation, but it would help us if we knew what state you are in (assuming you are in the U.S.).

What have you filed in court, are you listed on the birth certificate, do you have a custody order in place

I am on the birth certificate I live in Oregon and yes Biological mother took them. They have lived with me for the last three years. I did all the research I could and found that there are laws state and federal and this is what I found I just can't decide if it pertains to my situation:

Kidnapping is the crime of taking a person against their will to an undisclosed location. This may be done for ransom or in furtherance of another crime, or in connection with a child custody dispute. Oregon laws classify kidnapping into two categories: first degree and second degree.

A person commits the crime of kidnapping in the first degree if the person violates ORS 163.225 with any of the following purposes:

To compel any person to pay or deliver money or property as ransom;
To hold the victim as a shield or hostage;
To cause physical injury to the victim; or
To terrorize the victim or another person[i].
A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another's personal liberty, and without consent or legal authority, the person:

Takes the person from one place to another; or
Secretly confines the person in a place where the person is not likely to be found.
However, it is a defense to a prosecution if:

The person taken or confined is under 16 years of age;
The defendant is a relative of that person; and
The sole purpose of the person is to assume control of that person[ii].
Kidnapping in the first degree is a Class A felony and kidnapping in the second degree is a Class B felony.


First, without a standing court ordered and recorded custody decision, there is no such thing as parental kidnapping. Parents are seen as having equal "rights" to the child and either can go where they want, when they want with that child at any time. If, however, one parent removes the child to a second or unknown location, the purpose of which is to deny the custody or visitation of the other parent, even without a standing custody decision, it is considered parental kidnapping. In such situations, while warrants for the arrest of the absconding parent and the return of the child are being issued, the left behind parent will also be granted emergency custody.