On April 14, 2010, the Oregon Court of Appeals filed an opinion in Stevens and Stevens.  The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A138624.htm

The appeal was filed by father due to a trial court ruling awarding sole custody to mother.  Father appealed based upon the fact that the custody evaluation was in his favor and that he had recently been the primary parent.  The court of appeals upheld the trial court ruling that mother should be awarded sole custody.  The court based its holding on a reliance on the trial court’s credibility findings, a review of the factors set forth in ORS 107.137, and the following:

“Here, the trial court concluded that most of the factors weighed fairly evenly between the parties, finding that both parents are fit and have close emotional ties with the children, that each parent has strengths and weaknesses, that each has “an exaggerated view” of the other’s interpersonal style, and that both parties had “unnecessarily exposed the children to issues in the divorce.”  The court found that, although father had been the primary parent for the past two years, mother had been the primary parent before that.  The court further found that father had “unreasonably interfered with [mother's] parenting time with these children” and that father’s interference “was one of the primary reasons” for awarding custody to mother.  The court explained that, although being most recently the primary parent weighed slightly in father’s favor, father had excluded mother from parenting, and mother was more willing and able to facilitate and encourage a close relationship between the children and father.”

Custody decisions are always very fact intestive, and, in cases such as these, can turn on a very small difference between the parents.  It is interesting in thie case that the custody evaluator did not testify and I wonder how much her actual testimony would have assisted father.  It is crucial for a parent to have a competent attorney who can produce the required evidence to provide the trial court with a basis for ruling in that parent’s favor.

This is a trick question.  There is no age at which a child can make these decisions, until he/she turns 18 and the court no longer has jurisdiction over them.

There are, however, a few methods by which a child can have input in the process. 1. An attorney can be appointed for the child. If the child is old enough, the attorney can advocate for the child’s wishes; 2. If there is a custody evaluation, the child will be interviewed and the evaluator may take the child’s views into account; 3. The child can testify in court. I never have children testify and am opposed to it. Judges do not want children to be involved in the process and it is generally thought that the less a child can be involved in the process, the better. That being said, an attorney can help a parent to advocate for their child’s wishes.

While wanting to know what is happening in the other parent’s house is understandable, there are some boundaries.  For example, don’t grill the kids about what is happening with the other parent during parenting time. Also, putting recording devices in kids toys also crosses the line!  The Omaha World Herald published a story about a Nebraska woman who is being sued by her ex-husband because she placed a listening device in the 4 year old daughter’s teddy bear. The couple was enmeshed in a custody battle.  The plan backfired when the judge refused to hear the recording.   It is illegal in Nebraska, and many other states including Oregon to tape a conversation where at least one party has not consented to the recording. The full article can be found here. 

A “move away” case is where one parent, either in an initial filing or modification, seeks to move a child away from the other parent. Move away cases are hard. In Oregon, the legislature’s stated policy is that good parents should have frequent and continuing contact with their children. ORS 107.101. Parenting plans that allow frequent contact between the children and both parents work well if people live close, but is very difficult if parents do not live close.

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.

In divorce and filiation cases involving custody of children, frequently the children suffer most. As divorce and family law lawyers, we have seen the good, bad, and the ugly of well meaning parents putting the kids in the middle of the case. If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. The following is a top ten list of things NOT to do during your custody or divorce case. DO NOT:

1. Talk to them about the case. The last thing they need to hear is that mom and dad are involved in a legal dispute. The first thing they need to hear is that mom and dad both love them very much.
2. Use them as pawns in the battle against your spouse. The kids are not weapons. Don’t make a frivolous custody or parenting time claim to gain leverage in financial negotiations. Whatever you think you may gain, your children will lose.
3. Use them as your therapist, or treat them as your peers. If you need a therapist or need counseling, seek a professional rather than involving your children in your turmoil.
4. Put your spouse down in front of the kids. Divorce and custody disputes can be bitter. Emotions can run high. No matter your frustrations with the other parent, don’t put them down in front of the kids. You are not only harming your case, you are harming your children.
5. Turn your children in to messengers. The parents are the adults. Send the kids the correct message and talk and problem solve with the other parent directly.
6. Grill your children about what is happening at the other parent’s home. You may not live under the same roof, and may be curious about what he or she is up to. Questions about whether mom or dad is dating, what hours they keep, and what happened, blow by blow, on the visit send the wrong message to the kids, custody evaluator, and court. You will satisfy your curiosity at the expense of your children and your case.
7. Ask the kids to take sides. Asking a child to tell the court, custody evaluator, or children’s attorney that they want to live with you enmeshes the kids in an adult process. Don’t do it. Some judges and evaluators think it is child abuse.
8. Make the children feel disloyal for enjoying time with the other parent. Oregon’s statutory policy is that kids are better off having wholesome and frequent contact with both parents, if the parents are fit.
9. Sabotage the other parent. Don’t purposely forget important clothing or gear when we are going to our other parent’s place. Don’t forget the coat on the ski trip. Do you think you will look better in court because your son or daughter was cold on the ski trip because they didn’t have their coat? (which was in your possession.)
10. Ask the kids to keep secrets from the other parent. You may think you are bettering your position, but the children’s attorney, custody evaluator, and judge will think differently. Don’t put the kids in the middle, and don’t pit them against the other party by asking them to keep secrets.

As a Portland based firm representing divorce clients in Oregon, we are always interested in what the Oregon Court of Appeals says regarding attorney fees. We previously blogged about how in many types of family law cases you have the right to ask for fees. The Oregon Court of Appeals published a decision in Mcintyre and Freeman, ____ Or. App _____ (2008) dealing with an attorneys fee request after a custody and parenting time case. The case talks about your right to ask for fees, and your right to a hearing if you object to the other sides’ fee request.

In Mcintyre and Feeman, the parties had argued over custody, parenting time, and child support. Mother’s attorney reported that the case was very contentious. Father asked mother to pay a portion of her attorney fees, and mother objected. Mother also asked that father pay her fees. The court, without holding a hearing, ordered mother to pay a portion of father’s legal fees. We previously blogged about how in many types of family law cases you have the right to ask for fees in our post captioned “Divorce Myths: My ex will have to pay for my attorney fees.” The issue in the case was whether Mother objected properly, and whether the court wrongfully denied mother the right to a hearing. The court determined that mother had been wrongfully denied a hearing on the issue of fees. The court determined that mother had, within the appropriate time period, objected to father’s fees. (Oregon extends deadlines by three days when the original notice was served by U.S. mail.) The court then addressed whether mother’s failure to sign documentation showing the date of mailing made the objection defective. (Oregon law requires pleadings and other paper to be signed by the lawyer or client. While not discussed in the opinion, mother’ s attorney stated that the file room lost the properly filed certificate of service.) The court held that the notice was not defective just because mother’s lawyer didn’t sign the certificate of service. The court went on to say that Oregon law requires the other side to point out a lack of signature, and giving the other side an opportunity to fix it, prior to striking an unsigned pleading. One judge dissented, stating that there is no express obligation in the rules to bring a signing defect to the other side’s attention.

What does this mean to divorce and custody litigants in Oregon? Discuss with your lawyer the potential to ask for fees, and the potential to be required to pay fees. Ask for fees in your initial pleadings to preserve your rights to them. Behave appropriately in light of ORS 20.075 during your case (see our post captioned “Divorce Myths: My ex will have to pay for my attorney fees.”) Take reasonable positions. Follow the time line and procedures of ORCP 68 to the letter. And last but not least, sign your pleadings!

As I sat in the loft outside my nine-month-old’s bedroom, exhausted from caring for her while recovering from strep throat and a shiny new case of influenza, I was struck by just how difficult it must be for newly-single parents to care for their kids while they’re sick themselves. My husband and I barely manage to keep our daughter fed, changed, and reasonably happy while we shuffle around clutching boxes of Puffs — and that’s with two of us and a marginally mobile baby. For single caregiving parents, it’s a hundred times more exhausting to put food on the table, change diapers, and somehow manage to entertain children before collapsing in bed to recuperate. And anyone who has ever tried to take a squirmy child with them to urgent care, the emergency room, or even the doctor’s office knows how Herculean that task can be.

There is one logical person who can help out – but I’ve found that it rarely occurs to single parents to pick up the phone and ask. Yep, that’s right – the other parent.

(Naturally, you’d want to clear it with your lawyer if a custody action is pending, because you’d hate to have it used against you. If you do have a custody action pending, though, you might want to think about putting a provision like this into the judgment.)

No matter what may be going on between the two of you, your child must come first. If all you can manage is to make it to the kitchen for the next cup of TheraFlu, think about calling the other parent and asking if he or she would like some extra parenting time for a day or two while you recover. It’s win-win-win: you will feel better sooner if you rest up, your child will have the full attention of a parent, and your ex will have some bonus parenting time.

And with that said, I think it’s time for my next cup of TheraFlu….

On January 25, 2008, the Supreme Court of Oregon issued a fascinating opinion in Boldt and Boldt, ___Or ____(2008). The Supreme Court in Boldt addressed a custodial parent’s authority to make religious and medical decisions for a child. The court also addressed whether a child’s objection to an elective medical procedure (circumcision) constituted a “change of circumstances” that would allow the court to modify custody if in the child’s best interests.

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.