Epler and Epler

Once a court's child-custody determination has been memorialized in a dissolution judgment, the presumption in ORS 109.119 that the legal parent acts in the best interest of the child would have no effect in any subsequent modifications under ORS 107.135 which requires there to be a substantial change in circumstances before a court can consider whether to modify custody.

Mother appealed a judgment denying her motion to modify custody, parenting time, and child support for her daughter. Before the daughter was 1, the father and mother moved from the daughter’s grandmother’s residence Oregon and the daughter continued living with the grandmother. Mother and father divorced and a marital settlement agreement was entered in 2005 giving grandmother sole custody of the daughter and a joint right of parenting time to mother and father. In 2006, mother moved to modify the dissolution judgment. The trial court denied her motion because the mother failed to prove a substantial change in circumstances and it was not in the daughter’s best interest to move. On appeal, mother argued that ORS 109.119 applied and entitled her to custody of her daughter. Applying the abuse of discretion standard of review, the Court determined the trial court correctly applied ORS 107.135, ORS 109.119, and the federal constitution and did not err when it declined to modify the custody provisions. Regarding the trial court’s denial of mother’s motion to modify the parenting plan and to adjust child support obligations, the Court found that the trial court failed to explain a basis for this decision thus the Court is unable to conclude if discretion was abused. Remanded for reconsideration of parent plan and child support; otherwise affirmed.