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 P3d 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.
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.
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,
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.
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 [M] 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(l)(a),
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 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.
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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 P3d 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.
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.
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,
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.
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 [M] 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(l)(a),
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 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.
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 his or her child without regard to the possible adverse consequences. Finally, she argues that a trial court has the authority to condition an award of custody when it is necessary to protect the best interests of the child.
Father responds that the trial court properly denied mother’s motion for a change of custody. He argues that no
evidentiary hearing was required on the motion, because mother failed to satisfy her burden under ORS 107.135 to demonstrate a sufficient change in circumstances. He also argues that mother received a hearing, because there was a telephonic hearing during which she testified. Father argues that the trial court examined the affidavits submitted by both parties and properly found that there was an insufficient basis to go forward with an evidentiary hearing.
This court has established a two-step inquiry for determining whether a court should modify a custody arrangement.
See Ortiz and Ortiz,
310 Or 644, 649, 801 P2d 767 (1990) (formulating the inquiry). A parent seeking a custody change must show that (1) 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) 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.
Id. See also Greisamer and Greisamer,
276 Or 397, 400, 555 P2d 28 (1976) (describing two-step analysis). A parent seeking a change of custody bears the burden of showing a change in circumstances.
See State ex rel Johnson v. Bail,
325 Or 392, 396, 938 P2d 209 (1997) (so stating).
The inquiry into whether there has been a change in circumstances is a factual one that relates to the capability of one or both parents to properly care for the child.
Greisamer,
276 Or at 400. One way a parent can show a change in circumstances is to show a change that has injuriously affected the child.
Henrickson v. Henrickson,
225 Or 398, 403, 358 P2d 507 (1961). Another is to show a change in the other parent’s ability or inclination to care for the child in the best possible manner.
Id.
at 404. When there is insufficient evidence of a change in circumstances since the last custody determination, a court does not consider the second step of the analysis.
See State ex rel Johnson,
325 Or at 397 (so stating). Therefore, the question whether mother was entitled to an evidentiary hearing to present evidence regarding M’s best interests turns on whether she, as the parent seeking a change of custody, satisfied her initial burden of demonstrating a
change in circumstances relevant to the capacity of father to properly care for M since the 2002 custody determination.
The trial court ruled that decisions regarding elective surgery for a child are reserved to the custodial parent, and denied mother’s motion without a hearing on the merits. We agree with the trial court that the authority of the custodial parent to make medical decisions for his or her child, including decisions involving elective procedures and decisions that may involve medical risks, is implicit in both our case law and Oregon statutes. For example, in
Ortiz,
this court observed that, “in the context of divorced persons, ‘custody’ is the legal relationship between a minor child and the legal custodian,
i.e.,
the person to whom the court has given the
primary
rights and responsibilities to supervise, care for, and educate the child[.]” 310 Or at 649 (emphasis in original). However, a statute, ORS 107.154, provides that an order of sole custody to one parent shall not deprive the noncustodial parent of specific rights, including the right to consult with any person who may provide care or treatment for the child and to inspect and receive the child’s medical records, as well as the right to authorize emergency care for the child if the custodial parent is unavailable.
Father argues that ORS 107.154 limits a noncustodial parent’s rights to only those rights specified in that statute, that is, mother can “consult with” M’s doctor, but cannot override father’s decisions regarding M’s medical care. For that reason, father argues, his decision to have M circumcised cannot be the basis for changing a custody order or holding an evidentiary hearing on the issue.
Mother, joined by
amicus curiae
Doctors Opposing Circumcision (DOC), asserts that there is no more important decision to make for a male child than to require that the child undergo permanent modification to his body, and argues that an evidentiary hearing is required to find out whether M objects to the circumcision. She also contends that an evidentiary hearing is required so that she may present evidence regarding the harmful effects and permanent nature of circumcision. Indeed, mother and DOC assert that, because of the significant medical risks associated with circumcision, M should not be circumcised even if he states that he wants to undergo the procedure.
In response, father, joined by
amicus curiae
American Jewish Congress, American Jewish Committee, Anti-Defamation League, and Union of Orthodox Jewish Congregations of America (collectively, AJC), argues that the trial court did not need to hold an evidentiary hearing, because M’s attitude about whether he wants the circumcision is not legally significant. Father asserts that a child is not the decision-maker on such questions, any more than an infant who is circumcised. If the legislature had wanted a male child to have a say in whether he is circumcised, he contends, it could have adopted a statute to that effect, as it has done in other statutes such as ORS 109.610 (giving minors the right to consent to treatment for venereal disease without parental consent). Father also contends that the health risks associated with male circumcision are
de minimus.
In any case, father maintains that the affidavits he supplied to the trial court demonstrate that M does want to be circumcised.
Finally, father and AJC argue that father has a constitutionally protected right to circumcise his son. They maintain that American Jews must be free to practice circumcision because it is and has been one of the most fundamental and sacred parts of the Jewish tradition. Father concludes that, if this court requires the trial court to hold an evidentiary hearing, we would usurp the role of the custodial parent and violate the First Amendment to the United States Constitution.
Although the parties and
amici
have presented extensive material regarding circumcision, we do not need to
decide in this case which side has presented a more persuasive argument regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent’s authority, unfettered by a noncustodial parent’s concerns or beliefs — medical, religious or otherwise. Were mother’s concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father’s inability to properly care for M.
However, in this case, mother has averred in her affidavit that M objects to the circumcision.
In our view, at age 12, M’s attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will
could
seriously affect the relationship between M and father, and
could
have a pronounced effect on father’s capability to properly care for M.
See Greisamer,
276 Or at 400 (illustrating proposition). Thus, if mother’s assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M’s true state of mind. That conclusion dictates the outcome here.
We remand the case to the trial court with instructions to resolve the factual issue whether M agrees or objects to the circumcision. In order to resolve that question, the trial court may choose to determine M’s state of mind utilizing
means available to it under the relevant provisions of ORS 107.425.
If the trial court finds that M agrees to be circumcised, the court shall enter an order denying mother’s
motions. If, however, the trial court finds that M opposes the circumcision, it must then determine whether M’s opposition to the circumcision will affect father’s ability to properly care for M. And, if necessary, the trial court then can determine whether it is in M’s best interests to retain the existing custody arrangement, whether other conditions should be imposed on father’s continued custody of M, or change custody from father to mother.
The decision of the Court of Appeals is reversed. The supplemental judgment of the circuit court is reversed. The case is remanded to the circuit court for further proceedings.