Botofan-Miller and Miller

To prevail on a claim for change of custody, a parent must first prove that, after the previous judgment of custody, circumstances have changed to make the custodial parent unable to care for the child properly; then, it must be established that, based on the changed circumstances and relevant evidence, the change in custody is in the best interest of the child. Boldt and Boldt, 344 Or 1, 9 (2008).

Mother appealed two supplemental judgments, one which changed the custody of her minor child to Father and the other awarding attorney’s fees to Father. Mother made three assignments of error: (1) the trial court erred in determining that a "change of circumstances had occurred;" (2) the court erred in deciding that Father receiving custody was in child's best interest; and (3) the court erred in awarding Father attorney's fees. On appeal, the Mother argued that even if the change of circumstances were found to be true in-fact by the trial court, these circumstances were legally insufficient to provide basis for change of custody. To prevail on a claim for change of custody, a parent must first prove that, after the previous judgment of custody, circumstances have changed to make the custodial parent unable to care for the child properly; then, it must be established that, based on the changed circumstances and relevant evidence, the change in custody is in the best interest of the child. Boldt and Boldt, 344 Or 1, 9 (2008). The Court of Appeals concluded that the evidence on the record was not legally sufficient to constitute a custody change because the changed circumstances did not surmount to Mother being unable to care for the child. Therefore, the Court held that the trial court erred in awarding custody to Father and, accordingly, in the award of attorney's fees. Supplemental judgment awarding custody of S to father reversed; supplemental judgment awarding attorney fees to father reversed.