October 24, 2007

New Case Law: Custody and Adolescent Angst

On October 17, 2007, the Oregon Court of Appeals decided an interesting child custody modification issue in Connelly and Connelly, ____ Or App ____ (2007). When a custodial parent faces adolescent behavior problems, can he or she lose custody of the children in favor of the non-custodial parent?

In initial child custody determinations and subsequent modifications, a court will look at the “best interest of the child” standard. Often a professional child custody evaluator will be hired to assess the situation and to make recommendations to the court.

In the Connelly case, Mother and Father married in 1989, had two children, S and T, and then divorced in 1995. Mother had been the primary caregiver for the children, and she received custody of S and T. Father had typical parenting time: weekends, holidays, summer vacations.

Ten years after the divorce, Father went back to the court to ask for custody of both children, arguing that because Mother left the children unsupervised, they had become “violent and disruptive” and were doing poorly in school.

The court ordered a custody evaluation. After her interviews with the family, the evaluator determined custody should remain with Mother, although both parents were inappropriate with each other as regarded the children. Both children preferred to live with Mother, and if they moved to Father’s, they would have to change schools and friends.

However, the court transferred custody to Father, finding that there had been a substantial change in circumstances and that a change would be in the children’s best interests. The court told father that he hadn’t “had a chance yet, and something dramatically different has to happen here.”

Mother appealed, arguing that any substantial change in circumstances must relate to “the capability of one or both parents to care for the child.” State ex rel Johnson v. Bail, 325 Or 392, 398, 938 P2d 209 (1997).

The Court of Appeals agreed, saying that the record did not indicate that Mother’s “lifestyle or circumstances” had significantly changed. The Court rejected the contention that because Mother did not communicate well with Father, that this was a substantial change sufficient to modify custody, because both Father and Mother had communications issues, with the bulk of the problems tracing back to Father. (However, in the past, the Court has found that poor communication by the custodial parent may be sufficient.)

The Court also wrote that although the children had been experiencing social and psychological problems while living with Mother, it is “not the child’s conduct – but instead the custodial parent’s effort – that determines whether the parent” has inadequately cared for the child.