This case deals with a parent’s ability to modify child support through the Support Enforcement Division while the divorce judgment is being appealed.  Mother had appealed the trial court’s decision in the divorce case and, while her appeal was pending, Father requested a modification of child support.  There followed a number of different administrative and Circuit Court hearings related to Father’s request to modify child support, and Mother eventually appealed the final decision.  The Court of Appeals stated that the Support Enforcement Division did not have the authority to modify child support while the appeal was pending.

It is important to note that, under ORS 19.275, the trial court can modify child support while an appeal is pending based on a substantial change of circumstances.  This decision only limits administrative changes to child support.

The entire opinion can be found here.

In this case, the parties signed a stipulated general judgment which awarded child support to Mother.  The judgment included a provision preventing either party from modifying child support in the future based on changes in income or any other change of circumstances, such as a change in parenting time.  Four years later, Father attempted to modify his child support obligation based on a decrease in his income, and the trial court upheld the agreement not to modify.  Father argued that the provision violated public policy because it deprived the state of the right to set child support according to the support guidelines and deprived the court of its authority to modify child support.  The Court of Appeals found the agreement did not take away the court’s authority to modify child support, but rather was an agreement between the parties waiving their right to seek modification.  The Court found that such waiver provisions are enforceable, unless the circumstances of a particular case make enforcement of the agreement contrary to public policy.  The Court left the open the possibility that it would not enforce such an agreement if doing so would negatively impact the children in a particular case.

Parties to a divorce should generally avoid provisions which limit their ability to seek future modifications which would be allowed under Oregon law.

The entire opinion can be found here.

Here is the letter:

Greetings,

As you know, the Attorney General has initiated a special project to respond to current economic crisis. The goal of this project is to speed the entry of fair and enforceable orders. We are also hoping to use the project as an opportunity to try out some other changes in the guidelines and procedures.

There are two important changes that will become effective May 7, 2009. First, at the request of the Division of Child Support, the legislature has enacted and the Governor signed emergency legislation and rules authorizing the temporary modification of existing orders based upon employment related loss of income to either parent. HB 2275A. These temporary modifications are only available through the child support program, either through the Division of Child Support (DCS) or through District Attorneys offices. Private attorneys and the court cannot independently issue temporary modifications. DCS has established a specialized unit in Salem called the “Recession Response Team” (RRT) to handle these modifications, using streamlined procedures designed to encourage consent and expedite modifications. Parents can access this team through the DCS interactive telephone system, by dialing 1-800-850-0228 and listening to the instructions.

The second change is to the child support guidelines themselves. The most significant changes include a cap on child care costs, adjustments relating to medical support orders and the establishment of a presumption $100 minimum order.

More details regarding the changes follow. The proposed rules are currently posted on the DOJ/DCS website in draft form. http://www.dcs.state.or.us/oregon_admin_rules/child_support_rules/draft.htm. In addition, a training module will be available through the DOJ-DCS website.

Statutory Change:

HB 2275A was signed by the Governor on May 5 and makes a number of changes to ORS 416.400 through ORS 416.465. It authorizes the Attorney General to declare that we are in a period of significant unemployment (an unfortunately easy decision to make in this economy), during which time existing orders can be suspended and replaced with a temporary modification based upon actual income. These temporary modifications automatically expire six months from the date of entry in court, but may be renewed. HB 2275A also authorizes alternate forms of service designed to speed the modification process.

Regular Division Rule Changes:

OAR 137-055-2140 (Delegations to Administrative Law Judge): this change allows an administrative law judge (ALJ) to enter a final order by default on employment-related modifications. It also allows the ALJ to dismiss the temporary modification request if the requesting party fails to appear for the hearing.

OAR 137-055-2165 (Request to Reschedule): this change requires requests to reschedule a hearing to be filed within 60 days of the notice of hearing cancellation.

OAR 137-055-3420 (Periodic Review): this change clarifies that a temporary modification does not affect the time period for a periodic review and adjustment of the order that is suspended.

OAR 137-055-3430 (Change of Circumstance Review): this change amends the change of circumstance rule to:

• Provide a definition of an “temporary modification” pursuant to HB 2275
• Define “employment-related change of income”
• Allow for a verbal request for temporary modifications
• Allow for alternative service methods on temporary modifications

The online calculator will be modified and ready with the changes outlined above on May 1, 2009.

Guideline Rule Changes:

OAR 137-050-0320 (Definitions): this change provides that when a parent must self-enroll in medical coverage in order to enroll his/her child(ren), the providing party’s portion of the health care coverage premium may be deducted from modified gross income. The coverage must still be found to be appropriate before it can be ordered. The child’s portion of the cost is still handled as set out in OAR 137-050-0410.

OAR 137-050-0330 (Computation): this change clarifies that when the self-support reserve lowers the child support obligation, the reduction is applied first to the cash medical support amount and then to the cash child support amount.

OAR 137-050-0340 (Gross Income): this change moves the requirement that gross income must be attributed to the parent who is a recipient of TANF to the “Income Presumptions” rule.

OAR 137-050-0360 (Potential Income): this change renames the rule to “Income Presumptions” and provides that a rebuttable presumption of actual income is to be used for temporary modifications and potential income for all other modifications.

OAR 137-050-0420 (Child Care Costs): this change caps child care costs based on the age of the child and where the care is provided. The figures used for the cap are captured from the Department of Human Services administrative rules, averaged across the board.

OAR 137-050-0430 (Cash Medical Support): this change creates the priority of cash child support over cash medical support when the self-support reserve lowers the obligation amount. It also prohibits entry of an order for cash medical support if the obligor’s income is less than Oregon minimum wage.

OAR 137-050-0475 (Ability to Pay): this change provides that where the self support reserve is presumed to be the correct obligation amount, any reduction in the obligation amount applies first to the cash medical support amount, if any, and then to the cash child support amount.

OAR 137-050-0485 (Minimum Order): this new rule authorizes a rebuttable $100 per family minimum order, except in certain situations.

Looking to the Future

The Attorney General is extremely committed to making the Oregon Child Support Program effective and fair to all participants. DCS staff have worked extraordinarily hard to develop and implement this Recession Response project on a very short timeline. I am confident that many families will benefit from the program and that we will be able to learn from this project. Some aspects will work, others not, so please let us know your experience and thoughts.

If you have questions, you may contact me directly and I will attempt to answer you question or point you in the right direction.

Margaret Olney
Special Counsel
Office of the Attorney General
margaret.olney@doj.state.or.us

1162 Court Street, NE
Salem, OR 97301
503.378.6002
971.673.1880 (Portland)
503.367.4017 (fax)

“I don’t know what to do… I won’t be able to make my spousal support payment this month… I feel horrible.” The man who spoke these words was well-dressed, middle-aged and an obvious sports fan. By all accounts, he was a “regular guy.” This does not surprise me, because if there is one near constant among family law matters it is this: folks don’t like paying spousal support.

The payment of any monthly obligation can be tedious; keeping up with consumer obligations (paying high interest credit cards), or even providing for more basic needs (paying the mortgage), is a dreary process which is constantly eating away at our disposable income. Nevertheless, whereas we have presumably derived some benefit from accruing consumer debt (e.g., the purchase of new clothes, an automobile, vacation, etc), and whereas we derive current and future benefits by making our monthly mortgage payment, there does not appear to be any comparable benefit derived from the payment of spousal support. This seemingly thankless obligation, coupled with the probability that the person to whom this obligation is owed is often someone who we may not particularly like very much, can make the payment of spousal support particularly loathsome.

And so this is exactly what struck me about the comment made by this “regular guy.” I got to thinking that, perhaps, for some, once the obligation to pay support has “sunk in”, and after the pain and hurt feelings associated with divorce have passed, the payment of spousal support may appear different to the person paying it then it once did. Perhaps the notion of helping out a former (or maybe even a current) loved one starts to feel pretty good.

The economy is clearly in bad shape and the downturn has affected everyone. While many companies are trying to avoid lay-offs by reducing employee salaries, other employers are having to take more drastic measures. For some, this means lay-offs and severance packages. For others, it means unemployment checks. Whatever the situation, for many, the economic downturn means a decrease in income.

Please continue to parts 2 and 3 of this post:  Part 2 (http://oregondivorceblog.com/wordpress/?p=407); Part 3 (http://oregondivorceblog.com/wordpress/?p=409)

The court can establish custody or parenting time in divorces, annulments, legal separations, modifications, custody actions, filiation actions, and third party custody cases. If custody is established in these cases at the time of the final hearing, it may take months between the filing of the petition or motion and the court’s final decision. But what do you do if a child is in danger now, and a full evidentiary hearing is months away? Oregon courts provide for an emergency remedy if a child is in immediate danger of harm.

Oregon courts can award emergency custody even if there is no previous custody determination between the parties. ORS 107.097 provides in part that “[a] court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

• (A) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and
• (B) The court finds, based on the facts presented in the party’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

Oregon courts can also award emergency custody even if there is already a custody judgment between the parties. ORS 107.139 provides in part that “[f]ollowing entry of a judgment, a court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

• (A) A parent of the child is present in court and presents an affidavit alleging that the child is in immediate danger;
• (B) The parent has made a good faith effort to confer with the other party regarding the purpose and time of this court appearance; and
• (C) The court finds by clear and convincing evidence, based on the facts presented in the parent’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.”

The main difference between the two provisions is that pre-judgment no notice is required; while post-judgment you must make a good faith effort to talk to the other party about the appearance. If the court grants an emergency motion, the non-moving party is entitled to a hearing. The issue at the hearing is limited to whether or not the child was in an immediate danger at the time the emergency order was issued.

If you already have a parenting plan, you need the court’s permission to change it. You cannot simply refuse to return a child in violation of the parenting plan. The consequences for refusing to follow parenting plans are serious, and can include jail time in some situations. The emergency custody statutes do not offer much guidance to the courts, and judges in the same courthouse can have different interpretations of what both “immediate” and “danger” mean. You should immediately consult with an experienced family lay attorney if you believe your child is in danger of harm with the other parent.

1. Can I move with the children out of the marital home?
2. Can the other parent move out with the children without my consent?
3. If we haven’t followed the parenting plan in our judgment, can I prevent the other parent from changing the agreed upon plan?
4. Can I prevent a move that disrupts the children’s routine?
5. Can I move and change the children’s routine?

This post was almost a “divorce myth” post for the sole reason there so much misinformation about moving away from the other parent with children. The answer is that you can move without the other parent’s permission, but Oregon provides two potential remedies to block a move out of the family home, or force a return of the children to the family home.

Prior to a final judgment, as part of a divorce, annulment, legal separation, or third party custody case, Oregon law allows a parent to obtain a temporary order called a “Temporary Protective Order of Restraint” The order is temporary because it is only in effect during a case. The statue, ORS 107.097, allows you to obtain a court order that prevents the other party from:

1. Changing the child’s usual place of residence;
2. Interfering with the present placement and daily schedule of the child;
3. Hiding or secreting the child from the other party;
4. Interfering with the other party’s usual contact and parenting time with the child;
5. Leaving the state with the child without the written permission of the other party or the permission of the court; or
6. In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.

With a few exceptions, if the other parent moves out of the house without your permission, you can use ORS 107.097 to force the children’s return to the home, and force a return to your pre-move level of contact with the kids.

During a modification of custody or parenting time (after entry of a final judgment), the court allows for entry of a “Status Quo Order” that is very similar to the “Temporary Protective Order of Restraint.” ORS 107.138 allows you to obtain a “Status Quo Order” in a custody modification action that prevents the other parent from:

1. Changing the child’s usual place of residence;
2. Interfering with the present placement and daily schedule of the child;
3. Hiding or secreting the child from the other party;
4. Interfering with the other party’s usual contact and parenting time with the child;
5. Leaving the state with the child without the written permission of the other party or the permission of the court; or
6. In any manner disturbing the current schedule and daily routine of the child until custody or parenting time has been determined.

To obtain a status quo order, you must:

1. Notify the other party;
2. Give the other party an opportunity to contest issuance of the order;
3. File an affidavit that sets forth with specificity the information required by ORS 109.767 and the person with whom the child has lived during the preceding year and the child’s current schedule, daily routine and usual place of residence.
4. Give the other party 21 days notice before the date set for the hearing.

For both a “”Temporary Protective Order of Restraint” and a “Status Quo Order,” a “Child’s usual place of residence” means the place where the child is living at the time the motion for the temporary order is filed and has lived continuously for a period of three consecutive months, excluding any periods of time during which the noncustodial parent did exercise, or would otherwise have exercised, parenting time. A“Parent’s usual contact and parenting time,” “present placement and daily schedule of the child” and “current schedule and daily routine of the child” mean the contact, parenting time, placement, schedule and routine at the time the motion for the temporary order is filed.

If you are thinking of moving out of the family home with the children without consent, or the other parent moves out of the family home without your consent, you should consult with a family law lawyer to discuss the legal effect of the move in light of ORS 107.097 and ORS 107.138. The lawyers at Stephens & Margolin can help you with how these laws apply to your particular situation.

On April 30, 2008, the Oregon Court of Appeals published an opinion in Pfaff and Pfaff that provided a frustrating twist to father’s objection to mother’s move. Mom was awarded custody of the child in the 2002 divorce. In December of 2005, she asked the court to modify parenting time so she could move to California with the child. She alleged the move was in the child’s best interests, because she had family in the area and a good job prospect. After hearing, mother was granted permission to move to the Bay Area, and take the child with her.

Additional motions were filed. The court clarified parenting time by a supplemental judgment in January of 2007. In August 2007, a hearing was held where mother testified she had instead moved to Las Vegas, was pregnant, and had built a house with her fiancee. In a November 2007 hearing, father was awarded temporary custody pending a December 2007 hearing.

The Court of Appeals dismissed father’s appeal as moot, because the trial court ruling did not decide whether moving the child out of state was in the child’s best interest, but rather, the specific question whether relocating to the Bay Area was in the child’s best interests. The Court reasoned that since mother was not going to return to California, any decision regarding the child’s interests in living in California wouldn’t affect the parties’ rights.

What does this mean? If you are resisting a move, ask the court to make specific findings that any relocation out of the area is not in the child’s best interests.

You can review the full opinion in Pfaff and Pfaff at http://www.publications.ojd.state.or.us/A123987.htm.

Can the court order my spouse to pay legal fees at the beginning of my case? The court can, and sometimes does order one side to provide a retainer and expenses for experts to the other side. ORS 107.095 authorizes the court, at a hearing after a divorce filing, to order one side to pay a lump sum towards future attorney fees and costs to allow a party to pursue or defend a divorce.

The court can also order that one spouse reimburse the other for lawyers fees and costs already incurred. The general rule in Oregon is that each side pays their own legal fees, unless there is a statute that shifts liability to the other side. Many family law cases have such a statute, from modification (ORS 107.135) to divorce (107.105) to enforcement of parenting time (ORS 107.434), to contempt of court (ORS 33.105). When specified, you have the right to ask for fees at the beginning of the case, and the right to have a hearing on the issue of who pays at the end of the case. The procedure for asking for fees is governed by ORCP 68. The question as to if fees should be awarded, and how much, is covered in ORS 20.075. The first test is whether fees should be awarded. The court looks to ORS 20.075(1) to answer this question, which reads:

Factors to be considered by court in awarding attorney fees; limitation on appellate review of attorney fee award. (1) A court shall consider the following factors in determining whether to award attorney fees in any case in which an award of attorney fees is authorized by statute and in which the court has discretion to decide whether to award attorney fees:

(a) The conduct of the parties in the transactions or occurrences that gave rise to the litigation, including any conduct of a party that was reckless, willful, malicious, in bad faith or illegal.

(b) The objective reasonableness of the claims and defenses asserted by the parties.

(c) The extent to which an award of an attorney fee in the case would deter others from asserting good faith claims or defenses in similar cases.

(d) The extent to which an award of an attorney fee in the case would deter others from asserting meritless claims and defenses.

(e) The objective reasonableness of the parties and the diligence of the parties and their attorneys during the proceedings.

(f) The objective reasonableness of the parties and the diligence of the parties in pursuing settlement of the dispute.

(g) The amount that the court has awarded as a prevailing party fee under ORS 20.190.

(h) Such other factors as the court may consider appropriate under the circumstances of the case.

If appropriate to award fees, the court analyzes what fees to award per ORS 20.075(2), which reads:

A court shall consider the factors specified in subsection (1) of this section in determining the amount of an award of attorney fees in any case in which an award of attorney fees is authorized or required by statute. In addition, the court shall consider the following factors in determining the amount of an award of attorney fees in those cases:

(a) The time and labor required in the proceeding, the novelty and difficulty of the questions involved in the proceeding and the skill needed to properly perform the legal services.

(b) The likelihood, if apparent to the client, that the acceptance of the particular employment by the attorney would preclude the attorney from taking other cases.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the results obtained.

(e) The time limitations imposed by the client or the circumstances of the case.

(f) The nature and length of the attorney’s professional relationship with the client.

(g) The experience, reputation and ability of the attorney performing the services.

(h) Whether the fee of the attorney is fixed or contingent.

(3) In any appeal from the award or denial of an attorney fee subject to this section, the court reviewing the award may not modify the decision of the court in making or denying an award, or the decision of the court as to the amount of the award, except upon a finding of an abuse of discretion.

(4) Nothing in this section authorizes the award of an attorney fee in excess of a reasonable attorney fee.

How do you get your lawyer’s fees paid by the other side? Be prepared, be reasonable, and document the conduct of the unreasonable opposing party. How do you avoid paying the other sides fees? Be prepared, be reasonable, and make a good faith effort to settle.

ORS 3.425 gives each family court department (or presiding judge) the power to set up a family law education class for parents in family law cases. The purpose of the class is to inform parents about the impact of family restructuring on children in family law litigation. If the county establishes a class, the class must include at a minimum information about: (1) The emotional impact of a divorce or separation on children at different developmental stages, (2) Parenting during and after a divorce or separation, (3) Custody , parenting time, and shared parenting plans, (4) The effect on children of parental conduct, and (5) Mediation and conflict resolution. The class may be required in divorce, annulment, legal separation cases, custody or parenting time petitions, modification of custody or parenting time actions, and enforcement actions. Our three local counties in the metro area (Multnomah, Clackams, and Washington) have all adopted mandatory parenting class programs.

Multnomah County: The court’s rules about the class are located in Multnomah County Supplemental Local Rule 8.125. The class is required for parties to divorces, annulments, legal separations, petitions for paternity and custody or parenting time, and modification actions if a parent has not previously completed the class. The class costs $45 – $60, depending on how fast you register. The class is one session and takes three hours. Online information about the Multnomah County class can be found at Family Court Services website. You can register online, or register by phone by calling (503) 988-3037.

*** UPDATE ***

This is an older post, and someone from Multnomah County emailed me updated information. The fees went up in 2008 – they are now $55 if prior to filing (in multnomah county) or within first 60 days after filing.  $70 over 60 days or if case is in another county/state.  Also, the class is 3 1/2 hours.

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Washington County: The court’s rules about the class are located in Washington County Supplemental Local Rule 8.102. The class is required for the following cases where the parties have children under the age of 17: divorce, annulment, legal separation, petitions for custody or parenting time, modification of custody and parenting time, and filiation cases. The cost of the class is $145 per adult. You can pay for the class with Visa, MasterCard, debit card, and money orders. The class consists of four (4) ninety minute workshops. Classes are scheduled weeknight evenings and Saturday mornings. You can find the Registration packet for Kids’ Turn, the class schedule, and a FAQ here. You can register for the class by returning the above packet or by calling the Kids’ Turn office (503) 846-0665.

*** UPDATE ***

A reader pointed out to me that since the post was written in 2008, the cost of the class has increased to $210 per adult as of March 9, 2010, and the URL had changed. Thank you to those that bring updates to our attention.

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Clackamas County: The court’s rules about the class are located Clackamas County Supplemental Local Rule 8.015. The class is required for the following types of cases where the parties have a child under the age of 18: Annulment or dissolution of marriage actions, legal separation actions, petitions to establish custody or visitation, and post-judgment litigation involving custody or visitation. The cost of the class is $60, but is reduced to $45 if your register within 45 days of filing your case. The class is one session, 3 ½ hours, held Wednesday evenings from 5:30 to 9:00 p.m. and on Saturday mornings from 9:00 a.m. to 12:30 p.m. You can register on the web, by fax at (503) 650-5656, by mail, by phone at (503) 655-8415, or in person at 2051 Kaen Rd. Oregon City, OR 97045. The registration link is here. The FAQ put out by Clackamas County Family Court Services about the Parent Education Program is here.

Our recommendation is to take the mandatory class as early as possible in the process. You may learn something to help your kids, and you won’t irritate the court.

Mother and farther divorced in 1999. Mother was awarded custody of M, then 4 years old. The parties continued the fight over custody, and father was awarded custody of M when he was 9. In this proceeding, Mother filed for a change custody on the grounds that father intents to have M circumcised as part of M’s conversion to the Jewish faith. In the alternative, mother sought an injunction against father circumcising M as a condition of father retaining custody. The trial court denied mother’s motion to modify custody, but prevented father from circumcising M pending mother’s appeal. The Court of Appeals affirmed the trial court ruling without opinion. The Supreme Court heard mother’s petition for review, reversed both lower court rulings, and remanded the matter to the trial court for additional testimony regarding M’s preference.

Mother is a member of the Russian Orthodox Church, and M was raised in that faith. Father took interest in Judaism in 1999 (about the time of the divorce), and began teaching his children about the faith. Father converted to Judaism in 2004, and told mother that M may convert, and would have to be circumcised as part of the conversion.

On June 1, 2004, mother filed a motion for a temporary restraining order to prevent M from being circumcised, alleging that M objected to the procedure. Father countered that Oregon lacked jurisdiction to hear mother’s motion because M had lived in Washington state almost two years. He additionally argued that as the custodial parent, he had the authority to make the decision to have M circumcised. The court restrained father from circumcising M pending a hearing on jurisdiction and custody.

On June 4, 2004, mother filed for temporary custody under ORS 107.139 (alleging M was in immediate danger), or an alternate order barring M’s circumcision. Mother also filed a motion to change custody under ORS 107.135. Mother’s basis for both motions was an affidavit alleging that father was circumcising M against M’s wishes. Father again raised a jurisdictional challenge, and filed affidavits from family members asserting M consented to the circumcision, and from M’s doctor stating there were medical benefits to the procedure. At hearing, the circuit court found (1) it had jurisdiction to hear the matter, (2) that the decision for a child to have elective surgery is reserved to the custodial parent, (3) that in any event, mother had not alleged sufficient grounds for an emergency change of custody, and (4) issued an order preventing the parties from circumcising M until mother’s appeal was heard.

The Court of Appeals affirmed without opinion. The Supreme Court of Oregon allowed review. The court explained that Oregon requires a two-step inquiry to determine whether a court should modify custody. First, a parent seeking a custody change must show that (1) after the original judgment or the last order affecting custody, circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed, and (2) considering the asserted change of circumstances in the context of all relevant evidence, it would it would be in the child’s best interests to change custody from the legal custodian to the moving party. Ortiz and Ortiz, 310 Or 644 at 649 (1990). The question of a change of circumstances is a factual one, and can be shown by a change that has injuriously affected the child, or a change in the other parent’s ability or willingness to care for the child in the best possible manner. If the moving party cannot establish a change in circumstances, the court does not consider the second step of the analysis (the “best interests” test.)

The Supreme Court agreed with the trial court that the custodial parent has the authority to make elective medical decisions for his or her child. Father asserts that mother’s rights regarding medical care are limited by ORS 107.154, and that his medical decision on behalf of M cannot be the basis for a change of custody.

Outside medical and religious groups took interest in the case, and Mother was supported by amicus curiae briefs (briefs filed by a “friend of the court,” someone not a party to a case, who volunteers to offer information to assist the court in deciding a matter before it) from Doctors Opposing Circumcision (DOC). Father was supported by amicus curiae briefs from the American Jewish Congress, American Jewish Committee, Anti-Defamation League, and Union of Orthodox Jewish Congregations of America. Father and his supporters argued father has a constitutionally protected First Amendment right to circumcise his son, as it is a fundamental and sacred part of the Jewish religions tradition.

The Supreme Court declined to base its decision on the medical risks or benefits of circumcision. The Supreme Court held that circumcision is a decision is commonly and historically made by parents, and that the decision to circumcise a male child falls within a custodial parent’s authority, despite medical or religions objections by the non-custodial parent. Had mother only asserted an objection to circumcision as the basis for her motions, her case would have been dismissed. However, mother asserted that M objects to the circumcision. M is now 12. The Supreme Court remanded the case to the trial court to take testimony regarding M’s preference, because father’s circumcising M against his will could affect the relationship between M and father, and thus could have a pronounced effect on father’s capability to properly care for M. If M consents to the procedure, mother’s motion to change custody should be denied. If mother is correct that M objects, the trial court could consider changing custody, the trial court must determine if M’s opposition will affect father’s ability to properly care for M. If the answer is yes, the court can address modification of the existing custody arrangement, or whether conditions should be imposed on father’s custody of M.

Clients ask us regularly what is the scope of their custodial authority. Can the non-custodial parent make medical decisions for the child? (Maybe, per the limits of ORS 107.154). What if the non-custodial parent wants to pierce the child’s ears? What decisions regarding the child might make custody at issue? Boldt tells us that if you are the custodial parent, you can make medical decisions without input from the non-custodial parent. However, if the medical procedure is elective, and the child objects, your decision may constitute a “change of circumstances” that would allow a trial court to consider changing custody.