In re the Marriage of Cooksey

125 P.3d 57, 203 Or. App. 157, 2005 Ore. App. LEXIS 1618
CourtCourt of Appeals of Oregon
DecidedDecember 14, 2005
Docket02DM0133; A123987
StatusPublished
Cited by14 cases

This text of 125 P.3d 57 (In re the Marriage of Cooksey) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Cooksey, 125 P.3d 57, 203 Or. App. 157, 2005 Ore. App. LEXIS 1618 (Or. Ct. App. 2005).

Opinion

LANDAU, P. J.

At issue in this case is whether it is in the best interests of the child to modify a parenting plan to permit mother to move with the child from North Bend to Klamath Falls. The trial court found that it is not in the best interests of the child to permit the relocation. Mother appeals, advancing three assignments of error: (1) the court erred in failing to determine whether the proposed move presented a substantial change of circumstances; (2) the trial court erred in concluding that it is not in the best interests of the child to permit the relocation; and (3) the court’s failure to permit the modification of the parenting plan violates her “constitutional rights to travel and selection of abode.” We conclude that (1) under ORS 107.102(3)(f), parenting plan modifications expressly are to be based solely on the best interests of the child and require no showing of a substantial change of circumstances; (2) on de novo review, ORS 19.415(3), the trial court did not err in finding that it is not in the best interests of the child to permit the relocation; and (3) mother’s constitutional contentions are not preserved. We therefore affirm.

In 1998, mother and father married in Klamath Falls. They were 20 years of age. Mother had custody of a four-year-old child from a previous relationship. Mother’s extended family resided in the Klamath Falls area, while father’s extended family resided in the Coos Bay area. At the time of the marriage, father was working full time as an apprentice plumber. Mother was enrolled at the Oregon Institute of Technology, where she was studying to be an x-ray technician.

In 2000, the parties moved to the Coos Bay area so that mother could begin an externship. Their child, TC, was born in February the following year. Mother completed her bachelor’s degree, and, in November 2001, she passed her national registration examination. She then began working full time.

The parties separated in January 2002, and the marriage was dissolved by stipulated judgment of dissolution in July of that year. Under the terms of the judgment, mother was awarded legal custody of TC, and father was awarded [160]*160parenting time. The parenting plan detailed in the judgment provided that father was to have parenting time with TC every other weekend from Friday evening to Sunday evening, three hours every other Wednesday evening, and additional time during various holidays and vacation periods.

Sometime in 2003, mother decided that she wanted to move with TC to Klamath Falls “to be close to my family, school friends, church friends, and that is where I was born and raised.” She said that, in addition, she wanted to be better able to offer support for her own mother, who had been diagnosed with multiple sclerosis some years earlier and whose quality of life was expected to be adversely affected at some point in the future. Mother informed father of her intentions in August 2003. Father then moved for an order to show cause why he should not be granted sole custody of TC, subject to a revised parenting plan. Mother responded that, although she opposed a change of custody, she did not oppose a change in the parenting plan in light of her planned move to Klamath Falls. The trial court issued a show cause order. In the meantime, father remarried. His current wife has a son and a daughter from a previous marriage; at the time of trial they were, respectively, seven and five years old.

The parties agreed to a custody evaluation. The evaluation was performed by Mazza, a licensed clinical social worker with approximately 13 years of private practice experience performing custody and parenting plan evaluations. Mazza has extensive experience as an expert witness in custody matters and has prepared approximately 140 evaluations. In this case, his evaluation included interviews with and observations of mother, TC, mother’s (by then) nine-year-old daughter from the previous relationship, father, father’s new wife, and the latter’s two children. Mazza also administered various psychological tests to the parties, reviewed the parties’ answers to written questions, and contacted references provided by the parties. We discuss the details of the evaluation when we reach the testimony adduced at trial. At this juncture, suffice it to say that Mazza concluded that it is in the best interests of the child for the status quo to be maintained, that is, that mother should retain custody of TC, but that she also should not move with TC to Klamath Falls. In response to the evaluation, father [161]*161withdrew his motion for a change of custody, and the case proceeded to trial on the sole question whether it is in the best interests of the child to move with mother to Klamath Falls.

Mother testified at trial that she grew up in Klamath Falls and that, when she was choosing locations for her externship, she requested Klamath Falls but was unable to obtain a position there. She testified that she wanted to move back to Klamath Falls because her mother’s health was failing. She explained that her desire to move was not based on any objection to or dissatisfaction with father’s current parenting time. Mother testified that she had enrolled her daughter in school there and had sold her residence in the Coos Bay area. Mother agreed that, if she were permitted to move to Klamath Falls, father could have TC for one week per month or every other week from Thursday through Sunday, as well as for other occasions such as school events. She also agreed to cooperate in transporting TC for his visits, including meeting father halfway between Coos Bay and Klamath Falls. Nothing in mother’s testimony, however, addressed how she thought the move would affect TC or how she thought the move would be better for the child. Likewise, she offered no testimony as to how the proposed move would affect her own parenting, whether she thought that the move would enable her to offer better care for TC, or whether remaining in North Bend would in some way adversely affect her ability to care for the child.

As pertinent here, father testified regarding TC’s activities during visits to father’s home and TC’s relationship with father’s new wife, stepchildren, and extended family members. He also testified regarding his own experiences of having an absent father while growing up. Father testified that having to travel to Klamath Falls to pick up TC on Thursday nights would have a negative impact on his employment.

The parties stipulated to the admission of Mazza’s evaluation. In relevant part, Mazza’s report stated that mother and father are

[162]*162“two biological parents living in close proximity to each other, co-parenting their child successfully during a challenging time in their lives. The parents are decent people who love and cherish [TC] very much. No data resulting from this investigation militate strongly against either parent * * *. Each parent has adequate resources both financial and psychological. In terms of those factors which relate to the likely future happiness of [TC] such as security, stability, continuity of care, love, family unity, tolerance, and ultimately, support of independence, these parents are currently providing what could be considered stable circumstances for [TC] while in the midst of difficult legal proceedings.
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Cite This Page — Counsel Stack

Bluebook (online)
125 P.3d 57, 203 Or. App. 157, 2005 Ore. App. LEXIS 1618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-cooksey-orctapp-2005.