Henretty v. Lewis

“[A] trial court legally errs when it fails to determine which parent is entitled to the statutory primary caregiver preference and then account for that preference in its custody determination.” Dickson and Schwartz, 313 Or App 616, 617-18 (2021).

The trial court awarded custody of the parties' son, J, to Father after determining neither parent was the primary caregiver under ORS 107.137(1). Mother assigns error to the best-interests determination, arguing the trial court erred by failing to designate a primary caregiver and consider the statutory preference. She also argues that she is J’s primary caregiver for purposes of the statute and is thus entitled to the subsequent statutory preference. “[A] trial court legally errs when it fails to determine which parent is entitled to the statutory primary caregiver preference and then account for that preference in its custody determination.” Dickson and Schwartz, 313 Or App 616, 617-18 (2021). The trial court erred because it misapplied the statute by failing to identify a primary caregiver and give that party the statutory preference required by ORS 107.137(1)(e). The Court considered the evidence and concluded the only possible finding is that Mother is J’s primary caregiver for purposes of the statute and therefore should have been given statutory preference. Vacated and remanded.