Divorce and child custody cases often become intense and antagonistic undertakings. Just because a judge hands down an order doesn’t mean it will always be followed.
Oregon law includes numerous writs, which are formal court orders that either require an action to be taken or give authority and power to perform a specific act. When it comes to enforcing divorce orders and child custody plans, a writ of assistance is a document that often comes into play.
What is a Writ of Assistance?
On a basic level, a writ of assistance is a written court order that instructs law enforcement, such as a sheriff or police officer, to take action to help one party obtain something specifically ordered in a previous court order.
That sounds like a lot, but this new order essentially helps enforce a pre-existing order. This manifests in various ways in family law situations.
Use in Restraining Orders
Restraining orders are often an unfortunate part of combative, contentious divorces. If one party obtains such a mandate against the other, unwanted contact may result in contempt charges.
For Example:
Say an ex-wife gets a restraining order against her ex-husband. In this situation, he can’t return to the house without violating the order, even to collect his things. A writ of assistance helps in these circumstances.
After obtaining one, an officer accompanies the husband to the marital home to collect clothes, medicine, and other items. He can show up, get what he needs, and vacate the premises without the worry of contempt charges or arrest.
Called a “Civil Standby,” and short in duration, such visits are limited to personal belongings and last approximately 15 minutes. It allows you to get in, get your things, and get out, nothing more.
Related Reading: What to Know About Restraining Orders
Use in Property Division
The division of property is a big part of the divorce process. The final judgment divides the shared assets and awards specific items to each party.
This is all well and good, but what if your ex refuses to surrender the property in question?
If your divorce decree awards you a piece of furniture, an appliance, or other items, but your ex refuses to hand them over, a writ of assistance comes in handy.
The court can issue an order that directs law enforcement to accompany you to the house to obtain the property from the settlement. If your ex continues to stand in the way, they face legal consequences. Potentially even arrest.
An important note, a writ of assistance only applies to one specific location.
Another potential example: If you arrive to pick up a boat awarded to you in the settlement, but it’s now stored at your ex’s parents, you can’t go there and get it without a new order.
Related Reading: Enforcing A Parenting Plan
Use in Child Custody
A writ of assistance can also be useful in cases involving child custody and visitation. Too often, children become pawns in the struggle between bitter parents.
If you have blocks of visitation in your divorce settlement, but your ex denies this time, a writ of assistance gives the local police authority to enforce your parenting time.
This step often becomes necessary in these situations. Otherwise, many law enforcement officers can’t or won’t intervene, viewing an ex not following a parenting plan as a civil matter.
A judge may also issue a writ of assistance over health and safety concerns.
If the court finds that a child is in imminent physical danger, it may call for an order to remove the child from a situation and for law enforcement to take physical custody. This is an extreme circumstance, but one that unfortunately does happen.
Related Reading: Fathers’ Rights and Child Custody: What You Should Know
How Do You Obtain A Writ of Assistance?
As discussed, a writ of assistance has multiple uses. The questions of if you need one, whether to obtain one, or how to get one remain. Like every legal practice, this process involves multiple steps that must be followed.
To file a motion seeking a writ of assistance, you’ll need a couple of items.
- First, there must be an existing judgment that explicitly awards you the rights to a specific piece of property. Or, it can entitle you to certain actions, like the visitation of your children.
- You also need an affidavit that declares you have the right to the property or action. Most of the time, these point back to the previous judgment.
From there, a judge will consider the claim and decide whether or not to rule in your favor.
A writ of assistance is one tool to help ensure and enforce your rights in divorce and child custody cases. Similar to most legal undertakings, things often get complicated in short order. As usual, if you want to attempt to walk this path, it’s in your best interest to hire an experienced attorney who can show you the way.
Related Reading: What Is A Status Quo Order?