Ellis v. Kyker

“[A] new development may be considered a legally sufficient change in circumstances only if it is shown that the change has ‘injuriously affected the child’ or affected the custodial parent’s ‘ability or inclination to care for the child in the best possible manner.’” Botofan-Miller, 365 Or 504, 520-21 (2019)(quoting Boldt and Boldt, 344 Or 1,9 (2008)).

The lower court found a change in custody of child A, was warranted from Father to Mother. Father appealed the lower court’s supplemental judgment and argued there was not enough evidence to support the lower court’s finding that the changed circumstances standard had been met. “[A] new development may be considered a legally sufficient change in circumstances only if it is shown that the change has ‘injuriously affected the child’ or affected the custodial parent’s ‘ability or inclination to care for the child in the best possible manner.’” Botofan-Miller, 365 Or at 520-21 (quoting Boldt, 344 Or at 9). The Court held that because the lower court did not apply the correct standard, the lower court erred. The lower court based its decision on the fact that A had not been attending counseling, which was the reason Father had custody of A in the first place. Such a reasoning was erroneous and was an incorrect application of the standard. Reversed and Remanded.