State Dept. of Human Resources ex rel. Johnson v. Bail

• Court: Supreme Court of Oregon
• Writing for the Court: GRABER
• Citation: 938 P.2d 209,325 Or. 392
• Decision Date: 12 June 1997
• Parties: STATE of Oregon, DEPARTMENT OF HUMAN RESOURCES, ex rel Pam JOHNSON, Respondent on Review, v. Jason BAIL, Petitioner on Review. CC F542; CA A83626; SC S43406.

Page 209

938 P.2d 209 325 Or. 392 STATE of Oregon, DEPARTMENT OF HUMAN RESOURCES, ex rel Pam
JOHNSON, Respondent on Review,
v.
Jason BAIL, Petitioner on Review. CC F542; CA A83626; SC S43406. Supreme Court of Oregon,
In Banc. Argued and Submitted Jan. 15, 1997.
Decided June 12, 1997.

Page 210

Clayton C. Patrick, Salem, argued the cause and filed the petition for petitioner on review.

Gordon L. Dick, Salem, argued the cause and filed the brief for respondent on review.

[325 Or. 394] GRABER, Justice.

We are called on to decide what role, if any, a parent's illegal act of custodial interference plays in a court's decision with respect to that parent's motion to modify child custody. We hold: (1) If circumstances relating to the capability of one or both parents to care for their child have changed since the previous custody arrangement, then the requirement that there be a change in circumstances before a court will consider modifying custody is satisfied, whatever the reason for the change. (2) When determining custody in a modification proceeding, after finding a change in circumstances, the court is to consider a parent's "conduct" only if that conduct is "causing or may cause emotional or physical damage to the child." ORS 107.137(3).

The Court of Appeals reviewed the facts in this case de novo. ORS 19.125(3). This court has the option of again reviewing the facts de novo or of limiting its review to questions of law. ORS 19.125(4). The salient facts relevant to a determination of the issue before us are not in dispute; their legal significance is. For that reason, we do not review the facts de novo. We take the following facts from the findings of the Court of Appeals and from undisputed additional facts in the record.

This child custody case involves the unmarried parents of a girl who was born on July 6, 1987. Father's paternity was established pursuant to statute. Mother had physical custody of the child from birth. Pursuant to ORS 109.175, ¹ mother also had legal custody. Father visited the child two or three times a week during the first few weeks after her birth. At the time, mother and the child lived with mother's parents in Dallas, Oregon.

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A dispute arose between the parties, and father made threats against mother and members of her family. [325 Or. 395] Mother then moved to Salem with the child, without telling father their whereabouts. When father located mother a few months later, she moved to Willamina. When father again located her in late 1988, mother moved to California, without informing him, and took an assumed name. At that time, mother had legal custody of the child.

Meanwhile, father began court proceedings to establish visitation rights with the child. The trial court granted an order of visitation on November 5, 1987, but father was not able to see the child, because he did not know where she was. He then sought custody of the child. On December 23, 1988, the trial court issued an order changing the child's legal custody to father. Mother had not appeared in opposition to either motion. No judgment was entered. ²

About four years later, in late 1992, father and police located mother in California. Mother and child returned to Oregon. In February 1993, mother pleaded guilty to custodial interference in the second degree, ORS 163.245. ³ Mother was sentenced to 20 hours of community service; she completed that sentence.

The child continued to live with mother after her return to Oregon. The child was reintroduced to father gradually, but suffered serious emotional problems as a result of that effort.

In 1993, mother filed a motion to modify the 1988 default order, seeking to return legal custody of the child to her. Following a trial in early 1994, at which two experts testified that it was in the child's best interests to remain with mother, the trial court granted custody to mother. Judgment was entered on March 17, 1994.

[325 Or. 396] Father appealed to the Court of Appeals, which affirmed the trial court's judgment. State ex rel. Johnson v. Bail, 140 Or.App. 335, 915 P.2d 439 (1996). We allowed father's petition for review. Father's proposed rule of law is that a change in circumstances resulting directly or indirectly from a parent's illegal act of custodial interference should be disqualified, as a matter of equity, from triggering an analysis of a potential change in custody. That proposed rule of law is based on the Court of Appeals' holding in Welby and Welby, 89 Or.App. 412, 749 P.2d 602 (1988). For the reasons that follow, we affirm the decision of the Court of Appeals in the present case.

ORS 109.103 allows unmarried parents to initiate a civil proceeding to determine custody of their child in cases in which paternity has been established. That statute provides in part:

"The parents shall have the same rights and responsibilities regarding the custody and support of their child that married or divorced parents would have, and the provisions of ORS 107.095 to 107.425 that relate to the custody or support of children shall be applicable to the proceeding."

In turn, ORS 107.135 gives the court the power to modify custody judgments. ⁴ It provides that, on either party's motion and after proper notice, the court may

"[s]et aside, alter or modify so much of the decree as may provide for * * * the custody, visitation, support and welfare of the minor children * * *."

In addition, ORS 109.175 provides in part:

"The first time the court determines who should have legal custody, neither parent

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shall have the burden of proving a change of circumstances." (Emphasis added.)

That wording implies, and we hold, that the burden of showing a change in circumstances does apply to a parent seeking a change of custody in subsequent proceedings.

The child custody statutes do not specify what the concept of a "change of circumstances" means. However, this [325 Or. 397] court has established a two-step inquiry to be used in determining whether a court should modify a custody arrangement:

"A petitioner seeking a change of custody must show (1) that after the original judgment or the last 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) that considering the asserted change of circumstances in the context of all relevant evidence, it would be in the child's best interests to change custody from the legal custodian to the moving party." Ortiz and Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990) (footnote omitted; citations omitted).

See also Greisamer and Greisamer, 276 Or. 397, 400, 555 P.2d 28 (1976) (same two-step analysis). In the absence of evidence of a change in circumstances since the last arrangement of custody, the court does not reach the second step in the analysis. Id. at 401, 555 P.2d 28.

The requirement that there be a change in circumstances before a court will consider modifying custody is a rule of long standing. This court first required a parent to show a change in circumstances to justify a modification of custody in Merges v. Merges, 94 Or. 246, 257-58, 186 P. 36 (1919). There, the court wrote:

"[I]t is plain that since the [prior] decree * * *, no material change has occurred in the father's ability or inclination to care for the child in the best possible manner. If he was fit then to have the care of the child, he is fit now. * * * It is best under the circumstances to let well enough alone until new conditions intervene to disturb the status established by that decree."

The burden of showing a change in circumstances...