Child Welfare Protection Requires a Determination of Where the Child Lives

I have written before about the importance of determining where children live in custody and support disputes. <https://danielreitman.wordpress.com/2016/07/01/you-can-pursue-child-custody-or-support-out-of-state-without-the-court-hearing-other-issues/&gt;. The same law that requires this determination extends to any case involving the child’s custody. This includes cases in which child welfare authorities intervene. A recent case from Oregon, Department of Human Services v. R.M.S., 280 Or App 807 (2016), <http://www.publications.ojd.state.or.us/docs/A161256.pdf>, underscores that making a proper analysis is important.

The parents and child had originally lived in Washington. After the father went to prison on charges that were not disclosed, the mother maintained her Washington address, but was found with the child in Oregon. The Oregon Department of Human Services (DHS) initiated a child welfare investigation for an undisclosed reason and began proceedings in an Oregon court to begin protective proceedings. DHS claimed that the mother and child were effectively living in Oregon and used the Washington address only as a smokescreen to conceal their whereabouts from the father and the Washington child welfare authorities.

The trial judge ruled for DHS, relying on the mother’s listing of an address in the court’s county in court records and that the child spent a substantial amount of time in that county. This, she thought, met the residency requirements set forth in the child welfare law.

The Court of Appeals reversed. The law governing interstate disputes discusses which state should hear the case. This has higher priority than the residency law that the trial judge relied on, which covered only the question of which county in Oregon was appropriate. Because the trial judge had not analyzed the case correctly, the case was sent back to the trial court for a ruling on whether the child lived in Oregon or Washington.

The law does allow a temporary intervention by the courts of a state when there is an emergency and there is no case involving the child in any other state. In the R.M.S. case, DHS did not claim there was an emergency.

If you have traveled from one state to another with a child, and there is a dispute about which state you live in, that may be a good argument against a child welfare investigation unless there is an emergency. If you are the other parent and the child has been taken out of the state, but you believe they still live in your state, you may need to request that the child welfare authorities in your state get involved. Finally, if the courts in your state have already made a ruling involving the child (such as a divorce) before the move, you may have to get your state involved because that state retain jurisdiction until everyone moves away. In general, if this situation comes up, you may want to talk to a lawyer with experience in multistate family law disputes.

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