Ungerman and Ungerman

A parent seeking to change custody must demonstrate that since the original judgment, circumstances relevant to the proper care of the child have changed and that it would be in the child’s best interest to change custody. The relevant circumstances must be material and have “injuriously affected” the child or have “affected the custodial parent’s ‘ability or inclination to care for the child in the best possible manner.’” Botofan-Miller and Miller, 365 Or 504, 520, 446 P3d 1280 (2019) (quoting Boldt and Boldt, 344 Or 1, 9, 176 P3d 388 (2008)).

Mother appealed a decision that granted Father custody of three children and assigned error to the trial court because there was insufficient evidence, including an erroneous factual finding, for the determination that circumstances justified the change in custody. The trial court’s decision was based on two unfounded reports made to DHS, which, during the hearing, DHS employees testified that such issues were closed. Mother contended that the unfounded DHS reports were insufficient to sustain the trial court’s judgment, and Father responded that the judgment should be sustained due to “other findings” outside of the unfounded reports. A parent seeking to change custody must demonstrate that since the original judgment, circumstances relevant to the proper care of the child have changed and that it would be in the child’s best interest to change custody. The relevant circumstances must be material and have “injuriously affected” the child or have “affected the custodial parent’s ‘ability or inclination to care for the child in the best possible manner.’” Botofan-Miller and Miller, 365 Or 504, 520, 446 P3d 1280 (2019) (quoting Boldt and Boldt, 344 Or 1, 9, 176 P3d 388 (2008)). The Court recognized that the primary reason for the trial court’s judgment was the unfounded reports, and therefore the evidence was insufficient to support a finding that there were relevant circumstances that would injuriously affect the children. Vacated and remanded.