Marriage of Adams, Matter of, D7807-11790

• Decision Date: 30 December 1981
• Docket Number: No. D7807-11790,D7807-11790
• Citation: 637 P.2d 1358,55 Or.App. 366
• Parties: In the Matter of the MARRIAGE OF Rayleen ADAMS, Respondent, and Gary Adams, Appellant. ; CA A20319.
• Court: Oregon Court of Appeals

Page 1358

637 P.2d 1358

55 Or.App. 366

In the Matter of the MARRIAGE OF Rayleen ADAMS, Respondent,

and

Gary Adams, Appellant.

No. D7807-11790; CA A20319.

Court of Appeals of Oregon.

Argued and Submitted July 10, 1981.

Decided Dec. 30, 1981.

Linda A. Pedersen, Portland, argued the cause and filed the brief for appellant.

Elizabeth Welch, Portland, argued the cause for respondent. With her on the brief was Doblie, Francesconi & Welch, P. C., Portland.

Before BUTTLER, P. J., JOSEPH, C. J., and WARREN, J.

WARREN, Judge.

The parties were divorced in Oregon in 1979, and custody of their now ten-year-old daughter was awarded to mother, who lives in Los Angeles, subject to visitation by father in Oregon for six weeks every summer and other reasonable visitation in Los Angeles, on two-weeks notice to mother. After the 1980 summer visitation, mother sought to terminate father's visitation rights, claiming that because the child reacted so adversely to the visit, no further visitation should be allowed. Father responded with a motion for change of custody on the ground that the mother was attempting to alienate the child's affection for him to the detriment of the child. The trial court ruled that custody would remain with mother and that father's visitation rights would be temporarily suspended. The length of the suspension was not defined. Father appeals from both parts of the order.

The trial court found that there had not been a material change of circumstances to justify changing custody. The record shows mother feels a strong antipathy for father, has done nothing to promote a good relationship between father and daughter and would clearly prefer that the child have no contact with her father. There is some evidence the child is being adversely affected by mother's attitude, but we agree with the trial court that a change of custody is not warranted in this case. Cf. Birge and Birge, 34 Or.App. 581, 579 P.2d 297 (1978) (custodial parent using child as a weapon in his ongoing hostility with the non-custodial parent, resulting in harm to child, held sufficient to warrant change of custody).

Father also challenges the trial court's decision to suspend his visitation rights. This was based on the best interests of the child, who expressed a marked aversion to her father, justified an indefinite suspension of visitation. The child told the trial court that she did not love her father, that during the visitation he had hit her and forced her to pretend she was enjoying herself and that she did not want to visit him again. However, she told conflicting stories about what occurred during the visit, telling some people how much she enjoyed it and others how she was abused and never wanted to visit her father again. Expert evidence was presented that the child was spoiled, highly manipulative and dramatic and that she was enjoying the attention she was getting from her mother as a result of her attacks on her father.

The trial court found, and we agree, that there was no evidence of misconduct on the father's part which would justify termination of visitation. A parent is entitled...