Divorce and child custody cases are often intense and antagonistic undertakings. And just because a judge hands down an order, doesn’t mean it will always be followed. Oregon law includes a number of writs, court orders that either require an action to be taken or give authority and power to perform a specific act. When it comes to divorce and child custody, a writ of assistance can come 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. Essentially, this new order helps enforce a pre-existing order. When it comes to family law, there are a number of ways this can manifest.
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.
Say an ex-wife gets a restraining order against her ex-husband. In this situation, he can’t go back to the house without violating the order, even to collect his things. A writ of assistance can help 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 worry of contempt charges. Called a “Civil Standby,” and very short in duration, such visits are limited to personal belongings and only last approximately 15 minutes.
Use in Property
The division of property is a big part of the divorce process. The final judgment divides up the shared assets, awarding specific items to each party. This is all well and good, but what if one side refuses to surrender the property in question?
If your divorce decree awards you a piece of furniture, an appliance, or other items, but your wife won’t hand it over, a writ of assistance may be of use. The court can issue an order that directs law enforcement to accompany you to the house with the intent of obtaining the property from the settlement.
Use in Child Custody
A writ of assistance can also be of use when it comes to 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 can give the local police authority to enforce your parenting time.
A writ of assistance often becomes necessary in these situations. Otherwise, many law enforcement officers won’t intervene, viewing an ex not following a parenting plan as a civil matter. Also, if you do attempt to file for enforcement, it may be in your best interest to hire an experienced attorney.
A judge may also issue a writ of assistance over 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 unfortunately, does happen.
How To Obtain A Writ Of Assistance
A writ of assistance is used in a variety of ways. But the questions of if you need one, whether to obtain one, or how to get one remain. Like every legal practice, this involves a process and you must follow a number of steps.
In order 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 visitation of your children.
- You also need an affidavit that declares you have the right to the property or action. Most of the time, this points back to the previous judgment.
From there, a judge will consider the claim.
A writ of assistance is one tool help ensure and enforce your rights in divorce and child custody cases. As with most legal undertakings, things often get tricky and complicated in short order.
For instance, like a search warrant, a writ of assistance only applies to one specific location.
If you arrive to pick up a boat awarded to you in the settlement, but it’s stored at your ex’s parents, you can’t go get it without a new order.
In most cases like this, you will be best served by discussing your options with an experienced attorney. If you have questions about your situation, feel free to contact the Portland office of Goldberg Jones.