Boldt and Boldt

• Citation: 176 P.3d 388,344 Or. 1
• Decision Date: 25 January 2008
• Docket Number: CA A126175.,CC No. 98-2318-D(3).,SC S054714.
• Parties: In the Matter of the MARRIAGE OF James H. BOLDT, Respondent on Review, and Lia Boldt, Petitioner on Review.
• Court: Supreme Court of Oregon

176 P.3d 388

344 Or. 1

In the Matter of the MARRIAGE OF James H. BOLDT, Respondent on Review, and Lia Boldt, Petitioner on Review.

CC No. 98-2318-D(3).

CA A126175.

SC S054714.

Supreme Court of Oregon.

Argued and Submitted November 6, 2007.

Decided January 25, 2008.

On review from the Court of Appeals.^*

Clayton C. Patrick, Clatskanie, argued the cause for petitioner on review. With him on the briefs was Steven C. Morasch.

James H. Boldt, Lacey, Washington, argued the cause and filed the briefs on his own behalf as respondent on review.

Robert A. Graham, Jr., filed briefs on behalf of amicus curiae Doctors Opposing Circumcision.

Michael H. Simon, Perkins Coie LLP, Portland, Michael S. Lazaroff, Mark D. Harris, Sandra J. Badin, and Eben A. Krim, Proskauer Rose LLP, New York, Marc D. Stern, American Jewish Congress, New York, Steven M. Freeman, Anti-Defamation League, New York, and Nathan Diament, Union of Orthodox Jewish Congregations of America, filed a brief on behalf of amici curiae American Jewish Congress, American Jewish Committee, Anti-Defamation League, and Union of Orthodox Jewish Congregations of America.

Before DE MUNIZ, Chief Justice, and GILLETTE, DURHAM, BALMER, KISTLER, and WALTERS, Justices.^**

DE MUNIZ, C.J.

The parties dissolved their marriage in 1999. Mother was awarded custody of their four-year-old son, M. Since 1999, the parties have battled over M's custody in three separate legal proceedings. When this third proceeding began, father had custody of M, who was then nine years old. In this proceeding, mother again seeks to change M's custody, on the ground that father intends to have M circumcised as part of M's conversion to the Jewish faith. In the alternative, as a condition of father's continued custody, mother seeks an order prohibiting father from having M circumcised. The trial court denied mother's motion to change custody, but enjoined father from having M circumcised pending mother's appeal. Mother appealed the trial court judgment to the Court of Appeals. That court affirmed the judgment without opinion. Boldt and Boldt, 210 Or. App. 368, 150 P.3d 1115 (2006).

We allowed mother's petition for review and on de novo review we now conclude that the trial court erred in failing to determine whether M desired the circumcision as father contended or opposed the circumcision as mother alleged.¹ Because we view that finding as a necessary predicate to determining whether mother alleged a change in circumstance sufficient to trigger a custody hearing, we reverse the decisions of the Court of Appeals and the trial court and remand the case to the trial court.

In the normal course, religious and medical decisions such as the one in this case, are considered private family matters determined by the parents or between parents and child, without resort to the courts. Unfortunately, however, these parties cannot or will not resolve this matter without court intervention.² We therefore turn to the issue raised on review, and take the following pertinent facts from the pleadings and affidavits submitted by the parties below.

Mother is a member of the Russian Orthodox Church and, while the parties were married, they raised M in that faith. About the time of the dissolution, father began studying Judaism. He also began teaching M and his other son, M's half-brother, about Judaism. M learned Hebrew, began attending synagogue with his father, and in February 2004 began taking classes at the synagogue. In early May 2004, father converted to Judaism under the conservative movement coordinated by the United Synagogue of Conservative Judaism. Father told mother a few days later that he had converted. He also told mother about the possibility that M would convert to Judaism and that, to do so, M would have to be circumcised.

On June 1, 2004, mother filed a motion for a temporary restraining order to prevent father from having M circumcised that evening. The trial court held a telephonic hearing on mother's motion that afternoon. Mother testified that, the day before, she had learned from M that father was planning to have M circumcised against M's wishes. She acknowledged that she had known about the possibility of the circumcision for nearly a month, but asserted that she had not known it would happen so soon. She also stated that she had not previously known that M objected to the procedure. Father responded that the court lacked jurisdiction because M had been living with him in Washington for almost two years. He also contended that, as sole custodian of M, he had the authority to make the decision to have M circumcised. Finally, father asserted that (1) M wanted to be circumcised because M wanted to convert to Judaism; (2) M's doctor also had recommended circumcision for medical reasons; and (3) M's doctor would perform the circumcision. Following the telephonic hearing, the trial court entered a temporary restraining order prohibiting M's circumcision until such time as mother had filed a written motion to change custody and the court had held a hearing to consider the jurisdictional issue.

On June 4, 2004, mother filed two motions. The first was a motion for temporary custody under ORS 107.139,³ or in the alternative, for an order prohibiting father from having M circumcised. The second was a motion to change custody under ORS 107.135.⁴ In support of both motions, mother submitted an affidavit in which she alleged that father intended to have M circumcised against M's wishes. She asserted that she was not concerned that M might convert to Judaism, but was concerned that the conversion required him to be circumcised. She alleged that M had told her the day before the planned circumcision that he did not want to be circumcised. She also asserted that M had said that he was afraid to contradict his father regarding the circumcision. Mother averred that, "I hope that ultimately the court will be able to interview [Al] in chambers so that his true feelings about this can be determined." Finally, mother expressed concern that a flawed circumcision could result in permanent injury to M.

In his response to those motions, father argued that the court lacked jurisdiction under ORS 109.744(1)(a),⁵ because M had lived with father in Washington State since 2002. Father also argued that the court lacked authority to grant mother's motions because (1) granting the motions would violate father's freedom of religion under the religion clauses of the United States and Oregon constitutions; (2) there had not been a substantial change of circumstances since the October 9, 2002, modification justifying a change in custody; (3) it would not be in M's best interest to change custody; (4) the circumcision was medically advisable independent of the religious reasons for it; and (5) although M's wishes were "legally irrelevant," M wanted to be circumcised. Father's response included affidavits from M's half-brother and father's domestic partner. Each of those affidavits stated that M wanted to be circumcised so that he could convert to Judaism. Father also submitted an affidavit from M's urologist, Dr. Ellen. Ellen stated that he had met with M and discussed the procedure with him, that M understood the procedure and had stated that he wanted the circumcision so that he could convert to Judaism. According to Ellen, M did not appear to be coerced. Ellen also stated that there were medical concerns that were sufficient cause for recommendation for the procedure. Ellen averred that circumcision is a safe procedure, that there would be some minor discomfort for about three days that would not prevent M from carrying on normal activities, and that M's circumcision would greatly reduce M's risk of penile cancer and certain infections.

After the parties filed briefs, the trial court conducted a telephonic hearing on the jurisdictional issue. At the end of that hearing the trial court concluded that it had jurisdiction over the parties.⁶ The court also concluded that the decision whether a child has elective surgery is reserved to the custodial parent. However, because the parties' previous custody order appeals were still pending in the Court of Appeals, the trial court entered an order prohibiting M's circumcision until those appeals were final. The court stated that it would not hold an evidentiary hearing on the motion for a change of custody because a decision by the Court of Appeals on mother's other custody appeal could result in M's custody reverting to mother, thereby mooting the question. The trial court also concluded that, in any event, mother had not alleged sufficient grounds for an emergency change of custody to mother.

Both parties objected to the form of the judgment, and the trial court held another telephonic hearing on their objections. Following that hearing, the trial court concluded, based on the affidavits submitted by the parties, that the decision to have M circumcised was not a change of circumstances sufficient to trigger an evidentiary hearing. Shortly after the second telephonic hearing, the trial court entered a supplemental judgment reflecting the rulings it had made orally at the two hearings. The court denied mother's motion for temporary custody as well as her motion for an order to show cause why a change of custody should not be granted. In 2006, the trial court corrected the judgment to clarify that it had enjoined the parties from having M circumcised until after any appeals in this case were resolved.

Mother appealed from the supplemental judgment and, as noted, the Court of Appeals affirmed without opinion. We allowed review. On review, mother argues that the trial court erred in not granting her an evidentiary hearing on her motion to change custody so that she could present evidence regarding M's health, welfare, and best interests. She also argues that a custodial parent does not have the absolute right to have elective, nonmedically necessary surgery performed on...