Throughout the course of a marriage, people change, but few things can be as jarring as when a spouse comes out and declares their homosexuality.

“While the acceptance of gay and lesbian rights in Oregon has rightly been a cause for celebration, one of the by-products of this change is that more and more children in marriages where one parent comes out are in a custody dispute,” says Portland attorney Deanna Jensen, who’s firm frequently takes cases involving LGBT custody issues.

 

With the passage of a series of laws at the state and federal level, child custody issues should be treated just as they are in heterosexual divorce proceedings.  However, despite the letter of the law, when one of the parties in a marriage dissolution comes out as gay, there’s an increased likelihood that that  person may experience some form of bias.

 

“Although for several years now our Oregon courts have been very even-handed and often sympathetic when dealing with the LGBT community, it is not uncommon for a party and/or an attorney to present the case involving a parent who has come out with bias and derision.  This makes the dissolution process very emotionally difficult, leads to more litigation, and is often more costly for the family,” adds Jensen.

 

If you are concerned that you are experiencing bias because you have come out as gay in a heterosexual marriage, it’s best to consult a Portland attorney who has experience in LGBT custody issues.  You can get an attorney referral from the National Center for Lesbian Rights at www.nclrights.org or research possibilities on any number of other specialized data bases.

In May 2014, Oregon’s ban on same-sex marriage was overturned resulting in the state recognizing no legal differences between a same-sex and opposite-sex marriage.  That means same-sex couples will face the same standards and laws in divorce or child custody proceedings as an opposite-sex couple.

 

On the surface, to some people, that may mean there is no need to work with a Portland based attorney with experience in LGBT family law.  But the value of retaining an LGBT family law attorney is still important when dealing with legal issues that cross state lines where same sex marriages are not officially recognized.  Although the U.S. Supreme Court ruled in 2013 that a same-sex marriage considered valid under a state’s law is also recognized by the Federal government, there are still complications and issues that exist on a state by state basis.

 

What is consistent, however, is that with the Supreme Court ruling in June of 2015, equal rights were affirmed for all citizens in the United States, including same-sex families, as guaranteed under the Fourteenth Amendment.

 

That means same-sex married couples now enjoy:

 

Tax Benefits – same-sex couples now benefit from state and federal tax rules that apply during marriage, including filing jointly and avoiding estate taxes on state and federal returns.

 

FMLA Benefits – Under the Family Medical Leave Act, same-sex couples taking a leave of absence from employment to care for a spouse now enjoy this benefit. Maternity and paternity provisions also apply to these couples as well.

 

Employee Benefits – Same-sex couples can now be included on the medical, dental and other types of health plans of their spouse.

 

Property Rights – Same-sex couples now enjoy the same provisions as heterosexual couples when it comes to property benefits, division of federal and state retirement plans, and marital estate planning.

 

 

The joy of adding a child to a family is undeniable.  The bond is forever.  But with that joy comes a serious set of responsibilities for the new parent or parents.  That’s why the guidelines for adoption are stringent.

 

Because there are many avenues leading to adoption, it’s best to consult an attorney in Portland who routinely handles adoption.  The attorney can help walk you through the various options and represent you throughout the process.  The ways a child can be adopted in Oregon include:

 

Oregon Department of Human Services – when courts terminate parental rights or parents choose to give up those rights, children enter into the custody of DHS.  Many times, this involves older children or children with special needs.  Some subsidies from the state may be available to assist with caring for adopted children with special needs.  Attorney fees and adoption costs are paid by the state.

 

Private adoption agency – Adoption agencies are licensed by DHS and must meet high ethical and professional standards.  Paid adoption facilitators and adoption agencies that operate without a license are illegal in Oregon.  Adoption agencies take legal custody of children from parents and have discretion over where to place those children.

 

Independent adoptions – A child is placed directly with adoptive parents by the birth parent in an independent adoption.  This is best done with advance planning that includes working with an adoption agency or an attorney that specializes in adoptions.

 

International adoptions – Some countries allow United States citizens to adopt children from their country.  Almost all international adoptions work through adoption agencies and must meet Oregon laws, U.S. immigration laws and the laws of the foreign country.

 

Step parent or second parent adoptions – This commonly takes place when parents are remarried, and one spouse adopts the other’s child.  In Oregon, this can be done as an opposite sex couple or a same sex couple.  Second parent adoptions can also be done when the couple is not married but are in a long-term relationship.

 

Consent to artificial insemination in the context of an unregistered domestic partnership - Recently in Oregon the Court of Appeals decided that in unregistered domestic partnership cases where there was no second parent adoption, a child’s birth certificate can be reissued designating both parties as the legal parents of their children.  This is decided on a case-by-case basis.  Some of the facts that would lead to an order to reissue a child ‘s birth certificate designating both the birth parent and a second parent include but are not limited to: the children were born during the parents’ relationship; the non-birth parent consented to and/or participated in the artificial insemination process; the parents participated in a commitment ceremony; the parents have taken the same last name;  the parents considered themselves spouses and held themselves out as spouses; the parents shared child rearing responsibilities, commingled their finances and made financial decisions together; and most important, that it is in the best interest of the child that the non-birth parent be recognized as the child’s legal parent on that child’s birth certificate.

On the surface, determining who the father is in a paternity proceeding seems like it would be a simple and straightforward issue to resolve.  In Portland, as is the case throughout Oregon, it’s important to establish this fact for purposes of determining who must pay child support.

 

Determining paternity works fine in cases where an acknowledged father steps forward and has agreed that he is the biological father of a child born to unmarried parents.  This is accomplished when both parents sign a Voluntary Acknowledgement of Paternity form at a hospital when the child is born, or the father is shown on the child’s birth certificate.  In cases where only one parent will have custody of the child, the parent who has physical custody of the child at the time the form is signed is said to have legal custody.

 

But it is less clear cut in a case where a person is the presumed father.  There are certain standards that come into play to identify who the presumed father is.

 

  • The man and the mother were married at the time the child was conceived or born.

 

  • The man married the mother after the child was born and he agreed to list his name on the child’s birth certificate for the purposes of supporting the child.

 

  • The man publicly and openly acknowledged the child was his.

 

Paternity attorneys will advise that in addition to establishing financial support for the child, establishing paternity creates a legal status that means the father has all the parental rights and responsibilities that a parent would have if the child had been born to a mother and father who were married.

 

If you do not have custody of the child, this can include visitation rights and an ability to seek custody, a responsibility to contribute to the support of the child, and in cases where there is a support judgment, support may be enforced by withholding wages and intercepting tax refunds.

The Oregon Family Fairness Act created a mechanism for same sex partners to legally enjoy a recognized status beginning in 2008.  The Act created Oregon Registered Domestic Partnership, which allows same sex partners to enter into a civil contract.  Both partners must sign a Declaration of Domestic Partnership and have it notarized for the legal status to become official.

 

There are six standards each of the partners must meet if they want to register for a Declaration of Domestic Partnership.

 

  1. Must be 18 years or older
  2. Not currently married or in another domestic partnership
  3. Must be of sound mind and able to consent to the partnership
  4. Must not be nearer of kin than second cousins
  5. Must be the same sex
  6. At least one of the partners must be an Oregon resident

 

With the formalization of these kinds of relationships, the need for legal assistance by attorneys specializing in domestic partnerships in Portland has grown as well.  An experienced domestic partner attorney can properly guide couples through the legal issues unique to their situation.  The rights and responsibilities afforded to same sex domestic couples are now much the same as those afforded to heterosexual married individuals.

 

Those rights and responsibilities include, among other things:

 

  • Property division rights
  • The right to file joint state tax returns in Oregon
  • Medical and emergency health care rights
  • Spousal support if the partnership is dissolved
  • Where jointly owned property is involved, the automatic right of survivorship applies
  • Inheritance rights of an estate if the partner dies without a will

 

Portland has often been described as a progressive city.  That thinking is reinforced when it comes to the laws surrounding same sex couples in the city, and throughout the state of Oregon.  Oregon’s governor, Kate Brown, is openly bisexual, the first such governor in United States history.  Tina Kotek, Oregon’s House Speaker is openly lesbian.  The judge who repealed Oregon’s same sex marriage ban has come out as openly gay, and there are several circuit court judges in Oregon who have declared their gay status in the last 10 years.  In addition, other judges have publicly expressed their agreement with the laws that support the LBGT community.

 

Although Oregon decriminalized same-sex sexual activity in 1972, and recognized same sex domestic partnerships in many counties in the late 1990′s, Oregon did not officially recognize domestic partnerships for same sex couples until 2008 when Oregon’s Family Fairness Act was enacted.  Same sex marriage was not legalized in Oregon until May 2014 after a U.S. District Court Judge ruled that the state’s constitutional amendment banning such marriages was unconstitutional.

 

Oregon gave benefits to same sex partners of state employees beginning in 1998.  That same year, Oregon banned discrimination in housing, employment and public accommodations based on gender identity and sexual orientation.

 

Currently, same sex couples with valid marriages from jurisdictions outside Oregon do not need to notify the state of their marital status unless it is required information when doing business with the state.  This most commonly happens when couples file their state taxes.

 

It should also be noted that while state agencies recognize legally valid marriages from other jurisdictions, including Canada and other foreign countries, not all private entities are required to do so.  This can include private sector businesses such as lodging, hospitals, restaurants and private employers.  Oregon is famous for the case involving a bakery that refused to make a wedding cake for a same sex couple, resulting in an award of damages to that couple.

 

If you are unsure of your rights as a same-sex couple, it may be best to consult a Portland-based same sex couple attorney who can advise you more thoroughly on your rights and privileges locally and throughout the state.

As part of the divorce process, one of the most important items your lawyer will work with you on is the amount of support to be paid by one member of the marriage or partnership to the other.

 

“When your personal relationship with your spouse/partner and children changes, your financial relationship with them is bound to change as well,” says Portland lawyer Deanna Jensen.

 

“Although each form of support takes into account a variety of factors, including the ages of the parties, the length of the marriage/partnership, the earning capacity of each of parties, the need for one of the parties to care for children, the health of the parties, the education of the parties, the length of time one party may have been out of the workforce, and, to some extent, the award of assets, such as income-producing property, there is no set formula for determining spousal support.  “Instead, it is based on what is considered ‘just and equitable under the circumstances,’ and the amount and duration of support is discretionary with the court based on the specific facts of each case,” adds Jensen.

 

There are three kinds of spousal support:

 

Transitional support is awarded so that a spouse can get the necessary training and education to allow him/her to re-enter or advance in the job market.  It can be awarded in addition to an award of maintenance support.  For example, transitional support can be awarded for a period of 4 years in addition to a maintenance support award that has a duration of 10 years.  The amount of transitional support is added to the maintenance support to arrive at the total support award.  At the end of 4 years the transitional support amount would terminate, but the maintenance support portion would continue until it terminated at the end of 10 years.

 

Compensatory support is granted where there has been a significant contribution by one party to the other towards education, training or obtaining job skills (i.e. law school or medical school).  This type of support award recognizes one spouse’s/partner’s contribution to the other spouse’s/partner’s income and is generally for a period of years.  It is a very difficult support award to modify.  The amount of compensatory support is generally added to a maintenance support award.

 

Maintenance support is awarded from one spouse/partner to the other for a specified or indefinite period of time.  This is usually the case in long-term marriages and registered domestic partnerships where one spouse/partner has significantly out earned the other.  It is awarded in order to give the dependent spouse/partner an income or lifestyle not overly disproportionate to the one that existed during the marriage/partnership.

 

 

 

In Portland and throughout Oregon, making sure children receive all the benefits and child support they are entitled to is an important undertaking for any parent.

 

Portland based child support lawyers are quick to acknowledge that coordinating health care for a child, collecting support payments, and  determining past due child support can be daunting.  It can also be daunting to find yourself in the position of being entitled to a credit for payments of child support you have made that is not showing on the records of the court or support enforcement.

 

The Oregon Department of Justice, Oregon Child Support Program is an active participant in overseeing the well being of children throughout the state, and while they offer a broad range of support services, one thing they do not offer is legal advice.  They represent the State of Oregon and must remain as impartial as possible, administering laws, regulations and programs within the framework set up by the state.

 

While this provides a good measure of support, it does not always lead to the best possible outcome for a parent struggling to provide for their children.  In fact, in cases where there is criminal nonsupport, an attorney is appointed to represent the person charged, if that person does not have the financial means to pay for a lawyer on their own.

 

Hiring an attorney can be the best possible course of action for issues that will have long term implications for both parents and children involved in support cases.  In fact, if you’ve retained an attorney, the Division of Child Support and a District Attorney must work through your attorney unless your attorney grants them permission to speak with you directly.

 

While retaining an attorney can be a challenging expense to bear during a difficult time in your life, the fact is that retaining an attorney to help you receive the child support payments you are entitled to, or to help you defend against child support that has been collected and needs to be credited back to you, may be one of the wisest investments you can make for the overall health and happiness of your family.

 

Whenever the welfare of children is involved during a family law dispute (initial dissolution or modification of prior judgments), one or both of the parents may seek to gain sole custody of the child or children.  There are various state custody laws in place in Oregon and a good custody lawyer in Portland can help you unravel them.

 

In Oregon, at the outset of the dissolution process, both parents are the joint legal custodians of their children.  However, there is the potential for a court ruling that grants temporary legal custody to one or the other of the parents, with a final determination of legal custody made at the time of the divorce.  Either parent can seek temporary custody, and the decision to award temporary custody, or not, is within the discretion of the court based on the facts of the case and a list of statutory factors related to the child’s best interest.  For example, if there has been physical abuse by one parent of the children or of the other parent, the abuser will not be awarded temporary custody of the children, and likely not be awarded custody at the conclusion of the case.

 

Oregon courts will not make a final award of joint custody to the parents unless both parents agree to joint custody.  If the parents do not agree, the court will give sole custody to one of the parents based on a determination of what is in the children’s best interest.

 

What is custody?  It is the right to make major decisions for your child(ren).  Major decisions include where the children live, where they go to school, who their health care providers are, major medical decisions like surgery, day care providers, religion, joining the military and so forth.  Sole custody means that the decisions for your children involving these matters rests with the parent who has sole custody.  Joint custody means that the parents make these decisions together.  The Oregon legislature determined that if the parents can agree on joint custody, it is likely they can make joint decisions for their children.  On the other hand, if they cannot agree to joint custody, it is likely they will not be good at making joint decisions for their children, so only one parent will have that right.

 

How is custody decided when parents don’t agree?  The court has a list of statutory factors it considers in deciding which parent should have custody.  The list is not exclusive and the court can look at other factors that are important to the children’s best interests, but it always begins with these: (1) The emotional ties between the child and other family members; (2) the interest of the parties in and attitude toward the child; (3) the desirability of continuing an existing relationship; (4) the abuse of one parent by the other; (5) the preference for the primary caregiver of the child, if the caregiver is deemed fit by the court; and (6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child unless a continuing relationship with the other parent would endanger the health and safety of either parent or the child.

 

What is parenting time (or visitation)?  It refers to the amount of time each parent has with his/her children.  It can be anywhere from a 50/50 split of time to some other percentage split.  The parents can design their own parenting plan taking into account holidays, days off from school, Winter, Spring, and Summer breaks and so on.  If the parents cannot agree on a parenting plan, the Court will impose one after taking evidence from each parent and any other persons or experts about the needs of the children.

 

Custody and parenting time judgments are modifiable based on a substantial change of circumstances affecting the welfare of the children.

 

 

 

 

Family law issues are nearly always emotional.  The stakes for future happiness and well being are high.  That’s why finding the best possible family law lawyer is important for a successful outcome to your situation.

 

Where to start?  Ask friends and family members for a referral.  Search the internet; most attorneys have websites.   There are legal databases that are easy to find and can provide you with several options from which to choose.  You should also check with the Oregon State Bar Association to verify a lawyer’s credentials and if they are in good standing.  Try to develop a short list of lawyers you want to interview.

 

Thanks to social media, many lawyers will also be reviewed to some degree, and while these sites can have a bias and are sometimes not reliable, the search will allow you to spot a consistent problem with an attorney if there are negative comments across several such sites, including an attorney’s record with the bar.

 

Your comfort with and trust in your attorney will make it easier for you to navigate this difficult process.  Some attorneys charge for initial interviews and some do not.  You cannot determine the expertise of an attorney on that basis.  It is important to meet with each attorney you are considering to determine whether or not the two of you will do well together, as well as assessing the attorney as someone able to appropriately represent your interests.  Ask several questions ranging from experience in dealing with your particular kind of case, to fee structure, to explaining the entire process clearly and concisely.  Take as much time as you need to assess the attorneys you interview.  Be particularly conscious of an attorney’s ability to tell you when he or she thinks your position on an issue cannot be supported in law and why.  Attorneys who create false expectations in you will make your case much more difficult and expensive.

 

It is also important to remember that if you thought you had the right attorney and at some point the two of you are either unable to agree on how to approach the case, or your communication breaks down, or you are unable to get your attorney to respond to you, it is time to change attorneys.  Do not be afraid to make that change under those circumstances.  The only time that decision is problematic is when you are so close to trial and the case is so old that you risk the court denying your request for a change or the withdrawal of your attorney.

 

 

Jensen & Leiberan Attorneys at Law

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Portland, OR 97223
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