April 15, 2010

New Case Law – Custody Determination

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.