She needs to file a petition to establish custody and parenting time rights over the children. She'll need to do this in the state where the children have most recently resided for six continuous months. For the purposes of this question, I'll be assuming that's in Oregon. If it's not, then she'll need to consult with an attorney who's licensed to practice in that state.
There are two related issues to child custody: legal custody, and parenting time. 'Legal custody' refers to decision-making authority over a child. A parent with legal custody decides where a child goes to school and what religion they observe, makes medical decisions for the child, and so on. Parents can agree to joint legal custody, sharing this authority, but a court will not order joint custody unless the parents agree to it.
'Parenting time' refers to where a child lives each day, and how their time is divided between their parents. Each custody case ends with a parenting plan describing where the child or children stay. These plans can be as specific or general as the parents need. The parents are free to deviate from the plan if they agree to do so, but the plan is there for when they can't agree. The harder it is for two parents to agree on these issues, the more important it is that the plan be clear and specific.
In Oregon, decisions about a child's custody are made according to the best interests of the children. Obviously that's quite vague, but the law has a few guidelines about how to determine that. The most commonly followed guiding principle is that a child should remain with the parent who spent most time with them before -- the "primary custodial parent." The law also presumes that it is in the best interests of the children to have an ongoing relationship and continuing contact with both of their parents. If the court must decide which parent is awarded primary legal and physical custody, it is more likely to grant it to the parent who has shown that they will encourage an ongoing relationship between the children and the other parent. Parents should not try to keep their children away from each other, unless one parent has clearly been abusing the children.
What that means for this case is that your sister is unlikely to immediately get primary legal custody of the children who she hasn't seen for three years, even though they were wrongly taken from her. But she'll likely get an order for parenting time, which will expand over time as the children become comfortable with her again. She'll likely have to let the other child see the father, too, if he wants it - but again, he's not likely to be allowed to take the child. Courts favor stability and continuity for children, and are unlikely to dramatically upset their schedules right away, however fair or unfair this may be for the parents.
Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and are not intended to constitute legal advice, create an attorney-client relationship, or solicit business. No posts or comments on this site are in any way confidential. Each case is unique. Information not contained in these posts may create significant exceptions to the advice provided in any response. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin<br> Bodzin Donnelly Mockrin & Slavin, LLP<br> 2029 SE Jefferson Street, Suite 101, Milwaukie, OR 97222<br> <br> Telephone: 503-227-0965<br> Facsimile: 503-345-0926<br> Email: firstname.lastname@example.org<br> Online: www.bodzindonnelly.com
I agree with Mr. Bodzin. Additionally, if there's already a judgment that gives your sister parenting time, she can file a Motion to Enforce that judgment. This is a much better option than filing for contempt, because it has a lower standard of proof, gives pretty much all the same remedies and has it's own remedies specific to custody and parenting time, does not grant the other party any special rights or protections like contempt actions do, and judges tend to just not like to find someone in contempt absent really blatant scenarios. Motions to Enforce also get you a pretty quick court date. In this case, she could also file a Motion to Modify Custody and Parenting Time. If the other party already has sole legal custody, the party seeking a modification needs to show two things: (1) there's been some significant and unanticipated change in circumstances since the time that custody was granted or last modified, and (2) it is in the children's best interest that she have custody. Here's a link to the statute that describes how a judge determines what's in a child's best interests: http://www.oregonlaws.org/ors/107.137
If there's no such judgment, she'll need to file a Petition for Custody (which I agree she will most likely not be granted the first time around unless she can show pretty compelling reasons) and Parenting Time. The factors from ORS 107.137 would still be used to determine the children's best interests, but she would not need to prove a significant and unanticipated change in circumstances.
It would be a good idea to consult with and hire an experienced family law attorney before going either route.
If your sister has the financial means, a professional custody and parenting time evaluation may be helpful. Again, she should consult privately with a family law attorney before making such a decision.
Your sister should also be aware that if she's not already paying child support, filing any of the actions above will likely result in the Court entering an order for child support. Here's a link to Oregon's Uniform Child Support Calculator so she can get an idea of how support would look: http://www.oregonchildsupport.gov/calculator/Pages/index.aspx
Your sister should also document all her attempts to contact the father and to seek time with the children. She should keep a calendar with her own notes and copies of texts, call logs, emails, posts, etc. to back up her own notes. Copies of his responses should be included as well.
My responses to posts on AVVO are not legal advice, nor do they create an attorney-client relationship. In order to provide true (and reliable) legal advice, an attorney must be able to ask questions of the person seeking legal advice and to thus gather the appropriate information. In order for an attorney-client relationship to exist, you and I both have to agree the the terms of such an agreement.
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