May 3, 2008

New Case Law: Moving Away and Modification of Custody and Parenting Time

Moving Mother 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