§8.8 Modification of Legal Custody

JurisdictionOregon
§ 8.8 MODIFICATION OF LEGAL CUSTODY

§ 8.8-1 Overview

The factors considered in a legal custody modification, described in ORS 107.137, are the same factors used in the initial custody award. See § 8.4-1 to § 8.4-2(i)(3). However, in a modification, before the court reaches these factors, it must first determine whether there has been a substantial change in circumstances since the prior custody determination. See ORS 107.135(1)(a)-(b); ORS 109.175(1); Department of Human Resources ex rel. Johnson v. Bail, 325 Or 392, 396, 938 P2d 209 (1997); In re Marriage of Greisamer, 276 Or 397, 400, 555 P2d 28 (1976).

NOTE

A modification of legal custody is distinguished from a modification of parenting time only, which is analyzed under a different legal standard. Because the underlying facts may support a modification of either, the careful attorney may wish to include the latter as a "lesser included" claim for relief in the client's modification-of-custody pleadings.

§ 8.8-2 The Change-in-Circumstances Rule

§ 8.8-2(a) Purpose

The purpose of the rule requiring a substantial change in circumstances is to "provide stability for the child and also to avoid constant litigation." In re Marriage of Greene, 107 Or App 338, 341, 812 P2d 11 (1991).

§ 8.8-2(b) Burden of Proof

The party "seeking a change of custody bears the burden of showing a change in circumstances." In re Marriage of Boldt, 344 Or 1, 9, 176 P3d 388, cert den, 555 US 814 (2008). Whether there has been a change in circumstances is generally a question of fact. Boldt, 344 Or at 9; In re Marriage of Greene, 107 Or App 338, 340, 812 P2d 11 (1991).

PRACTICE TIP

The lawyer for the party seeking to modify custody must take careful steps to prove every element of the case. See, e.g., Boldt, 344 Or at 12-14 (even though the father sought circumcision of the 12-year-old child, the child's agreement or opposition to the procedure was unknown so it could not be determined if there would be an adverse effect on the child); In re Marriage of Heuberger, 155 Or App 310, 316-17, 963 P2d 153, rev den, 328 Or 40 (1998) (the father's mere allegation that the mother's smoking contributed to the child's asthma was not sufficient to establish a causal link between the two).

§ 8.8-2(c) Procedural Issues

Under UTCR 8.050(1), "[m]odification proceedings must be initiated by an order to show cause based on a motion supported by an affidavit or a declaration . . . setting forth the factual basis for the motion or by other procedure established by [supplementary local rule]." Failure to follow this procedure may be fatal to the request. See In re Marriage of Dagan, 103 Or App 453, 457, 798 P2d 253 (1990). The moving party may also be confined to the matters alleged in his or her motion and supporting affidavit or declaration. Henrickson v. Henrickson, 225 Or 398, 402-03, 358 P2d 507 (1961).

ORS 107.135(1) requires that the modification motion be served in the manner provided in ORCP 7. In Killam v. Heald, 109 Or App 1, 5, 818 P2d 509 (1991), the court held that the service requirement of ORS 107.135(1) speaks only to the manner of service and not the timelines for response. Accordingly, the 30-day response time afforded by ORCP 7 C(2) does not apply. The defending party is entitled to a "reasonable time to appear and defend." Killam, 109 Or App at 5.

PRACTICE TIP

The supplementary local rules (SLRs) for many counties include specific procedures and time deadlines for the responsive filing. Some SLRs go a step further and clarify the local court's preference for counterclaims for relief. It is important to review these rules. When in doubt, it may be a safer practice to file a separate motion for modification (instead of a counterclaim) and follow the applicable rules for notice and service.

To determine whether there has been a qualifying change in circumstances, it is important to first consider what counts as a prior judgment or order affecting custody. In In re Marriage of Ortiz, 101 Or App 362, 365, 790 P2d 555, aff'd, 310 Or 644, 801 P2d 767 (1990), the court concluded that a parenting time-only order was not a custodial order for purposes of the change-in-circumstances rule, even though it was the most recent ruling about the children. The proper period to evaluate, therefore, would date back to the last ruling on legal custody.

PRACTICE TIP

It is critical for the attorney to review the official record of proceedings and review any substantive orders or judgments. Especially in cases that started years earlier, there may be several noncustody court entries (e.g., child support modifications, contempt or enforcement actions) that do not qualify as a custodial order for purposes of the modification rule. Simply referring to the most recent court action may be insufficient.

§ 8.8-3 Modification of Sole Custody Orders

The court will not disturb an original custody judgment that awards sole custody to one parent unless the party seeking a change in custody shows the following: (1) After the most recent judgment or order affecting custody, "circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed," and (2) considering these changed circumstances in context with all relevant evidence, it is "in the child's best interests to change custody from the legal custodian to the moving party." In re Marriage of Boldt, 344 Or 1, 9, 176 P3d 388, cert den, 555 US 814 (2008); In re Marriage of Ortiz, 310 Or 644, 649, 801 P2d 767 (1990).

The party seeking modification must prove that the change in circumstances is material or substantial and occurred since the last judgment affecting custody. In re Marriage of Brinkly, 223 Or App 113, 118, 195 P3d 405 (2008), rev den, 346 Or 257 (2009). A material change is one that is new and that is adverse to the child's welfare. Bogh v. Lumbattis, 203 Or 298, 300, 380 P2d 398 (1955). The Oregon Supreme Court has stated that "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.'" In re Marriage of Botofan-Miller & Miller, 365 Or 504, 521, 446 P3d 1280 (2019) (quoting Boldt, 344 Or at 9).

The change in circumstances must also be "unanticipated." The moving party cannot obtain a change in legal custody solely on the basis of facts that were known at the time of the prior custody proceeding or evidence that could have been introduced at that earlier time. In re Marriage of Greisamer, 276 Or 397, 401-02, 555 P2d 28 (1976). For example, in In re Marriage of Colson, 183 Or App 12, 22-23, 51 P3d 607 (2002), the mother's plans to return to school and relocate to Missouri were anticipated when the previous custody decision was made, and thus did not constitute a change in circumstances when those plans were effectuated.

QUERY

What if the "anticipated" plan is delayed or abandoned? Could the deviation from what was known and anticipated be, itself, an unanticipated change to trigger a custody modification? Presumably, the answer is yes. Think of circumstances such as a canceled relocation or job transfer, an inability to enroll the child in a preferred academic setting, or the failure of a new domestic relationship.

Events that occurred before the original judgment or last custody order may be inadmissible to establish a change in circumstances. However, once a change in circumstance is established, those prior events may be probative and admissible for determining the best interests of the child. In re Marriage of Stevens, 107 Or App 137, 140 n 2, 810 P2d 1334, rev den, 312 Or 80 (1991). The court need not ignore facts in existence at the time of the original or prior custody determination that may nonetheless be relevant in the analysis. Further, circumstances that existed at the time of the original or prior custody determination that were not seen as problematic, but that later became problematic, may be sufficient.

§ 8.8-4 Modification of Joint Custody Orders

Modification of a joint custody order differs from modification of a sole custody order. While the moving party must still show a material, unanticipated change in circumstances (see § 8.8-3), the court recognizes that one or both...

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