Hamilton-Waller and Waller

• Decision Date: 09 November 2005
• Docket Number: DR0203639; A120424.
• Citation: 123 P.3d 310,202 Or. App. 498
• Parties: In the Matter of the Marriage of Laurie M. HAMILTON-WALLER nka Laurie M. Hamilton, Appellant, and George Daniel Waller, Respondent.
• Court: Oregon Supreme Court

123 P.3d 310

202 Or. App. 498

In the Matter of the Marriage of Laurie M. HAMILTON-WALLER nka Laurie M. Hamilton, Appellant, and George Daniel Waller, Respondent.

DR0203639; A120424.

Court of Appeals of Oregon.

Argued and Submitted September 28, 2004.

Decided November 9, 2005.

Jacqueline L. Koch, Portland, argued the cause for appellant. With her on the brief were Koch & Deering, Duane K. Petrowsky, and McKeown & Brindle, P.C.

No appearance for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge,^* and DEITS, Judge pro tempore.

DEITS, J. pro tempore.

This is a child custody case in which mother appeals a judgment changing custody of two of the parties' children to father in the event that mother moves to Holland. On de novo review, ORS 19.415(3), we reverse.

Mother and father were married 14 years and have three children. In September 2001, mother told father that she wanted to dissolve their marriage and that she intended to move to Holland the following spring, taking their oldest child, A, with her and leaving their younger children, P and R, with father. Ultimately, however, in a stipulated decree of dissolution of marriage entered on July 13, 2002, mother was awarded custody of the two younger children, P, who was then 11 years old, and R, who was five, and father was awarded custody of the oldest child, A, who was 16. Less than a month later, on August 2, 2002, mother notified father that she intended to move to Holland with P and R, in order to live with her fiancé, Ritter, who is Dutch. Father responded by seeking to change custody of P and R.¹

At the hearing on father's motion, both parties testified, as did Bonnvier, a custody evaluator hired by father.² Neither party indicated that the other was not a good parent; nor did the custody evaluator make any such statement. The hearing focused almost entirely on the effects of mother's proposed move on all three children and on mother and father. The custody evaluator testified that, in her opinion, father should be given custody of P and R if mother decided to move to Holland. However, mother testified that she would not move to Holland if she could not take P and R with her.

After hearing the testimony of several individuals, including both father and mother, mother's fiancé, and the custody evaluator, the trial court concluded that mother's proposed move would constitute a substantial change of circumstances and that it was in the best interests of the two children to change custody of them to father if mother moved to Holland. Under the trial court's decision, if mother does not move to Holland, she will retain custody of the two children. Mother appeals, arguing that the trial court erred in concluding that father had sufficiently established a substantial change of circumstances and in concluding that it was in the best interests of the children to change custody to father in the event that mother chose to move. Father has not appeared on appeal.

We note at the outset that "relocation cases" such as this are among the most difficult cases that the courts are called upon to decide.³ This is true both factually and legally. It is difficult to formulate a legal test to govern when it is appropriate to allow a custodial parent to move with a child. It is also hard to apply a standard formula to this type of case because there are numerous competing interests and issues and so many variations in particular circumstances.

It is undeniable that the dissolution of a marriage drastically changes a family. The relationship of the parents and children must necessarily change when a dissolution occurs. Further, as the lives of all the family members change in the years after a dissolution, numerous competing interests frequently arise that simply cannot all be satisfied. The custodial parent has an interest in moving on with his or her life and, when finances or personal relationships make it desirable to move, in being able to move. The custodial parent also has an interest in making important decisions regarding the children, such as where they are going to live. See Ortiz and Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990) (custodial parent has the primary rights and responsibilities for the child). On the other hand, the noncustodial parent has an interest in having the opportunity to maintain a meaningful relationship with his or her children and having reasonable access to and time with the children to maintain that relationship. See ORS 107.149 (recognizing state policy of maintaining contact with both parents after dissolution). Finally and perhaps of most importance, the children have an interest in having a situation that allows the optimum relationship with each parent under the circumstances and is in their overall best interests. See ORS 107.137(1) (primary consideration in custody determinations is best interests of the children).

All state courts must deal with relocation cases, and the various states have taken a number of different approaches. Some states have adopted statutory standards that govern these decisions; others, like Oregon, have developed the appropriate analysis primarily through case law. The approaches developed in case law have varied considerably. The factors identified by the various courts to be used in deciding relocation cases have common threads but also significant differences. The interests that the courts have found to be predominant also vary from state to state. Significantly, some jurisdictions require the custodial parent to establish that a move is appropriate, while others, like Oregon, require the noncustodial parent to establish that a change in custody is appropriate. We have found two generalizations that can be drawn from the case law of other jurisdictions: (1) in most states, the predominant consideration is the best interests of the children, and (2) in most states, the ultimate decision usually is driven by the facts.

Those generalizations are borne out in Oregon case law. In fact, perhaps more than in any other kind of case, the analysis in this type of case often appears to be, and frankly is, highly dependent on the facts of the case. See Ortiz, 310 Or. at 649 n. 5, 801 P.2d 767 (observing that the amount of change necessary to justify modification of custody varies with the facts of each case); Meier and Meier, 286 Or. 437, 447, 595 P.2d 474 (1979) (recognizing that the "best interests" test does not provide as specific a guide to trial courts as might be most helpful to them). That is so because what is in the "best interests" of one child will often differ dramatically from what is in the "best interests" of another child, even when it appears that surrounding circumstances are similar: the particular personality, experiences, strengths, weaknesses, and needs of each child must be considered within that child's own context of relationships, circumstances, and events. In addition, societal conceptions of what is in the best interests of children, generally and particularly, are not static but have evolved over time, and will no doubt continue to evolve.⁴ Finally, the cases reflect the reality that, no matter how much evidence we are provided, courts are poor substitutes for the ideal arbiters of children's best interests: the family members who know them and their circumstances from firsthand experience.

For all those reasons, it is important to bear in mind that what may at first appear to be inconsistent statements of the standards applied to these cases, or anomalous results, may in fact be, at least in part, a function of subtle differences in a myriad of factual circumstances that may not be apparent from the face of a written opinion. Moreover, it is especially unsuitable in this area of the law simply to "fact match" and attempt to resolve cases involving a proposed move by a custodial parent on the basis of the resolution of a superficially similar prior case.

With those cautions in mind, we review some of the general principles that Oregon courts should follow in these cases. The cardinal guiding principle in custody determinations has been long recognized and is easily stated: custody determinations must be made based on the best interests of the child. See ORS 107.137(1) (in determining custody, including custody modification under ORS 107.135, "the court shall give primary consideration to the best interests and welfare of the child"). Although application of that principle to specific cases may be difficult, viewing more particular statements of that standard as courts have applied it in various cases through the "best interests" lens is illuminating.

As we will discuss, our courts have articulated a general test to be applied in change of custody cases. However, the application of the test has proved to be difficult, and, at least on the surface, it appears that there have been some inconsistencies in the application of the legal standard. In Oregon, it appears that a noncustodial parent seeking a change of custody must satisfy what has evolved into a nominally two-part test. We say "nominally" because the first prong of the test — substantial change in circumstances — purportedly flows out of the second prong — best interests of the child. That is so because the view in Oregon historically has been that requiring a substantial change of circumstances as a threshold to a change in custody serves the best interests of all children because it promotes stability and discourages relitigation of custody, with its attendant distress for the children. E.g., Teel-King and King, 149 Or.App. 426, 430, 944 P.2d 323 (1997), rev. den., 327 Or. 82, 961 P.2d 216 (1998).⁵ The test to be applied in change of custody cases has been variously expressed, but its most recent iteration by the Supreme Court is as follows:

"A petitioner seeking a change of custody must show (1) that after the original judgment or the last order affecting custody, circumstances relevant to...