Johnson and Johnson

The standard for a change of circumstances for the purposes of custody modification is: (1) “the custodial parent is no longer competent to care for the child” or (2) the custodial parent’s continued care and custody is “inimical to the child’s welfare.” Merges v. Merges, 94 Or 246, 254, 186 P 36 (1919). The “primary purpose” of this requirement is “to avoid repeated litigation over custody and to provide a stable environment for children.” Ortiz and Ortiz, 310 Or 644, 649, 801 P2d 767 (1990).

Mother appealed a modification of child custody in which Father gained legal custody.  Mother assigned error to the trial court’s determination that there had been a change of circumstances for custody modification purposes.  On appeal, Mother argued that the facts were “legally insufficient to establish a change of circumstances for purposes of custody modification.”  In response, Father argued there was “clearly a change in circumstances.”  The standard for a change of circumstances for the purposes of custody modification is: (1) “the custodial parent is no longer competent to care for the child” or (2) the custodial parent’s continued care and custody is “inimical to the child’s welfare.”  Merges v. Merges, 94 Or 246, 254, 186 P 36 (1919).  The “primary purpose” of this requirement is “to avoid repeated litigation over custody and to provide a stable environment for children.”  Ortiz and Ortiz, 310 Or 644, 649, 801 P2d 767 (1990).  After reviewing the trial court’s factual findings, the Court held that Father’s grounds did not rise to the level required for a change of circumstances.  There was insufficient evidence to establish that Mother was “no longer competent to care for” the child or a condition had arisen which rendered Mother’s continued care and custody “inimical to the child’s welfare.”  Reversed.