Dewolfe v. Miller
Decision Date | 18 October 2006 |
Docket Number | A125560.,DR99-01-540. |
Citation | 208 Or. App. 726,145 P.3d 338 |
Parties | Richard J. DeWOLFE, Appellant, v. Kelly Marie MILLER, Respondent. |
Court | Oregon Court of Appeals |
Philip F. Schuster, II, Portland, argued the cause for appellant. With him on the briefs was Dierking & Schuster.
Camaron R. Vallepalli, Portland, argued the cause for respondent. With her on the brief was Johnson Renshaw & Lechman-Su PC.
Before LANDAU, Presiding Judge, and ORTEGA, Judge, and BREITHAUPT, Judge pro tempore.
Father appeals from the trial court's judgment denying his motion for a change in custody of the parties' then-five-year-old son. We review de novo, ORS 19.415(3), and conclude that the significant current harm and risk of increased harm to child arising from mother's newly diagnosed personality disorder constitute a substantial change in circumstances concerning mother's capacity to parent child. Accordingly, we reverse and remand for entry of a judgment granting custody of child to father and for development of a plan giving mother reasonable parenting time.
We begin our examination of the evidence with a brief overview of the relationship between the parties and the initial determination of custody. Father and mother had an on-again, off-again relationship that ended shortly before child was born in August 1998. Child is father's only offspring; mother has another son, T, from a previous relationship, who is approximately 10 years older than child. Father and mother never married, but they lived together for approximately six months. Their relationship, which lasted for five or six years, was interrupted by an interval of about a year during which they broke up and mother was briefly married to someone else. Father and mother finally broke up while mother was pregnant with child.
When child was born, mother at first did not inform father of the birth, but he learned of it from a friend. Although mother allowed father to see child at her house a couple of times for about half an hour, she refused father's requests to see child more frequently. Then, when he made it clear that he was not going to reunite with mother, she refused to let father see child at all. After father continued to push the issue of visitation and filed a petition for parenting time, mother insisted that father take parenting classes before visiting child and that his first four visits be supervised. In September 1999, the parties signed a stipulation, and five months later a stipulated judgment was entered that established father's paternity, awarded sole custody to mother, required father to pay child support, and awarded father parenting time. Under the parenting plan, father had parenting time every other weekend and, starting when child turned five, for three weeks during the summer.
Although mother had agreed to be flexible regarding visitation at the time of the stipulated judgment, that was not father's experience (as will be discussed further below). When he approached her about increasing his parenting time, she likewise refused to consider such a change, so he sought increased parenting time from the court when child was five years old. The parties agreed to submit to a custody evaluation by Ross-Bakker and, after that court-ordered evaluation father amended his motion to request custody of child. Because Ross-Bakker's evaluation plays an important role in our analysis, we examine it in detail, and we also examine the events described by various witnesses as those events are related to the custody and psychological evaluations.
At the time of the hearing, Ross-Bakker had been performing custody evaluations for about six years. She has an undergraduate degree in psychology and a master's degree in social work, and she is an experienced family therapist and mental health examiner. Ross-Bakker first met with each parent individually in her office and then met with each parent and child together; she then did a home visit with child and each parent. In addition, she had another hour-long office visit with mother and child. Ross-Bakker spent about 35 hours on the custody evaluation, although normally such evaluations take 20 to 30 hours.
After her first visit with mother, Ross-Bakker "had an immediate response that there's something going on here[;] there's something not making sense." Ross-Bakker observed that mother experienced rapid mood changes and that child likewise demonstrated both "behavior and mood changes," depending on which parent he was with. Ross-Bakker became convinced that psychological evaluations were needed and communicated that concern to parents' respective attorneys.
On the suggestion of mother's attorney, Davis was selected to conduct a psychological assessment of each parent. Davis is a therapist and licensed psychologist. He has a doctorate in clinical psychology and has written or coauthored about 25 publications. So as not to interfere with the objectivity of his assessment, Ross-Bakker did not provide Davis with any information before he performed the psychological evaluations. Davis concluded that father showed "no evidence of a personality dysfunction and belongs to a group of individuals who are essentially well-functioning, having no major personality disturbances." On the other hand, Davis diagnosed mother with "Histrionic Personality Disorder, severe, with Narcissistic Passive-aggressive and Obsessive-compulsive features."
Ross-Bakker thought that Davis's assessment addressed the problems that had concerned her. She explained that personality disorders such as mother's are chronic conditions, not easily changed. Although mother likely has some ability to change, it was Ross-Bakker's observation that mother is unwilling to do so. Indeed, mother is not even aware of the need to change, despite attempts to explain it to her; she steadfastly and unrealistically refused to admit any faults. Davis likewise noted that mother was exceptionally resistant to answering questions during her psychological evaluation; out of "hundreds of people" to whom he had given a particular questionnaire, mother was perhaps the second to decline to answer so many questions. Ultimately, in Davis's view, mother "wants to do the right thing" but does not understand her effect on child.
After observing child with both parents and interviewing people identified by each parent as sources of additional information, Ross-Bakker completed her assessment, concluding that father should be awarded custody. She recognized that a custody change during a child's primary years is an unusual, even "extreme" recommendation, but concluded that the change was necessary because the harm that child was beginning to experience in mother's care put him at risk for developing a personality disorder himself. We summarize Ross-Bakker's analysis, along with testimony regarding the events reported to her, in some detail.
To begin with, Ross-Bakker developed a strong impression that child does not feel able to be himself in mother's presence, instead becoming "stiff" and "very, very correct." He presented with "shoulders tight, face straight, very stiff body, smaller voice." While playing a game with mother, child "was so quiet and serious" that one of Ross-Bakker's coworkers thought that child was seven, rather than his actual age of five. Ross-Bakker concluded that child does not feel emotionally safe enough to be himself around mother.
During the same office visit, Ross-Bakker observed that mother addressed child with a "friendly formalness" rather than "an affectionate warmth that you would expect from a parent." During the evaluation process, Ross-Bakker never observed "any actual affection from mother to * * * child."1 She thought that mother's appearance of formality was an indication of her personality disorder rather than mere nervousness.
In contrast, Ross-Bakker observed that child was noticeably more comfortable with father than with mother. For example, she noted that child giggled and played normally while at father's home, but did not smile when in mother's home. When child showed Ross-Bakker his room at father's house, he expressed himself more, rummaging around to find his favorite toy to show her; at mother's house, he had to be prompted to show anything. Consistently with those observations, child's paternal grandfather and uncle and one of father's friends reported their observation that child appeared to relax and become more himself when he was at father's home. Father also testified that child's demeanor appears "stiff" and "real rigid" when father picks him up at mother's house, but that child becomes happy and bouncy when he is at father's house.
The changes that she observed in child's behavior and mood were "the heart of [her] concern."
Ross-Bakker testified that she did not think it appropriate to ask a five-year-old whether he had a preference about which parent to live with; however, the behavior that she observed indicated that child was more comfortable with and felt safer and happier in father's home. For example, child displayed more togetherness with father, using the word "we" often. Ross-Bakker testified, "In spite of what we would normally think at this age, that he would be more bonded with his mother since she's been the primary caregiver, I did not see a particularly strong bond there, and I did see * * *...
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