In re the Marriage of Morton
This text of 632 P.2d 1 (In re the Marriage of Morton) 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.
Opinion
Father appeals from the trial court’s refusal to award him custody of two minor children. He contends that mother’s wilful refusal to abide by the terms of a visitation order was designed to alienate the children from him and that that, together with the fact of his remarriage and establishment of a new home, constitutes a sufficient change of circumstances to justify a change of custody. We affirm.
The original decree in November, 1977, awarded custody of the parties’ two minor children, boys seven and four years old respectively, to mother. With respect to visitation, it provided only that father "shalljiave the right to visit said children at all reasonable times and places.” In June, 1979, on father’s motion, the court modified the decree by substituting a specific visitation schedule for the quoted language. Father was given visitation one weekend per month for the then current year, increasing to two weekends per month thereafter, various holidays, birthdays and several consecutive weeks during the summer.
This appeal arises from a subsequent show cause proceeding instituted by father. He asked that mother be held in contempt for wilful violation of the visitation order and that he be awarded custody of the children. By a counter-motion, mother requested that father’s child support obligation and his visitation rights be terminated. The trial court found mother "absolutely in contempt” for failing to abide by the terms of the visitation provisions; a sentence of 60 days was suspended on condition that mother comply with the visitation terms. The other motions were denied.
The recitation of the above events reveals that for more than three years the parties have failed to reach an amicable agreement regarding father’s visitation. Father’s testimony showed that mother has become increasingly uncooperative. At the time of the dissolution, the parties agreed that father would have at least one weekend per month with the boys, and he encountered no difficulty in arranging to see the boys until December, 1978.1 After [304]*304repeated frustrated attempts to see them in 1979, he filed the motion to fix specific visitation dates. Mother complied with the terms of the amended decree for nearly six months, but since January, 1980, despite father’s repeated efforts to see the boys under the fixed visitation schedule, she has denied him virtually all visits with them.2 From then until the time of the hearing on September 11, 1980, he was allowed visitation only on Father’s Day.
Mother testified that the initial difficulty with arranging visitation was due to father’s last minute requests for visits and that her latest refusal of visitation was, in essence, for the protection of the boys. She testified that the boys despise their father and that they cried and became "hysterical” and sometimes refused to eat in the prospect of visiting him. She said that one boy was considerably more upset than the other, was afraid his father would kill him and had told her stories of his father’s unexplained violence against him. She testified that in December, 1979, out of her concern for the boys’ emotional problems, she had had psychiatric evaluations done on them. According to mother, the psychiatrist advised that "for the betterment of the boys’ mental well-being and also their physical well-being, that visitation should be stopped.”3 She followed that "advice.”
[305]*305Father’s witnesses testified that he is an affectionate father whose physical discipline consists of an occasional spank with the hand. They said that the boys seemed happy on visits with father and got along well with his new wife and her two children.
We are faced with a situation where the children may have come to distrust and dislike their non-custodial father.4 Although our review of the record does not convince us that mother has acted with a conscious design to [306]*306cause that,5 it is clear, at the very least, that she has done nothing to discourage those feelings.6 Indeed, mother believes they are justified. However, the trial court did not:
"As far as Mrs. Ervin’s story of brutality and one thing or another on behalf of the father, I find that story absolutely incredible and unbelievable. Viewing the parties on the stand and the witnesses that I’ve seen here in the Courtroom, I simply cannot believe that Mr. Morton has intentionally or otherwise mistreated these boys to the extent that you indicate, Mrs. Ervin, it doesn’t make any sense.”
[307]*307Nevertheless, the trial court did not doubt mother’s concern for the welfare of her children.7 Because of the trial judge’s opportunity to see and hear the witnesses, we accord substantial weight to his comments. McCoy and McCoy, 28 Or App 919, 562 P2d 207 (1977).
Despite mother’s probable distortion of father’s treatment of the children, we do not believe a change of custody is warranted in this case now. Although it is important that estranged parents "do nothing to intentionally interfere with the bonds of love and affection the child may develop for each parent,” Birge and Birge, 34 Or App 581, 579 P2d 297 (1978), we are not convinced that we are faced with that situation here8 or that such interference alone would be justification for a change of custody.9 See also, Hansen and Hansen, 48 Or App 193, 616 P2d 567 (1980). While father has demonstrated that he and his new wife can provide a good home for the boys, he has not shown a substantial change of circumstances to warrant changing custody. Since the time of the original decree, both parties have remarried. The record shows that both parties have a great deal of love and affection for the children and are substantially equal in fitness and ability to care for them. "The change in circumstances must be quite real if the benefits from a change are to overcome the damage done to a child who is exposed to shifting parental figures.” Mackey v. Mackey, 9 Or App 113, 496 P2d 21 (1972).
We recognize that a healthy relationship between a child of divorced parents and each parent is desirable, but a [308]*308weightier consideration in a custody decision is the "psychological impact which frequently results from the shifting of the child once it has found roots of security and stability with one of its parents.” Greisamer and Greisamer, 276 Or 397, 402, 555 P2d 28 (1976). Speculation that the trial court’s sanction of contempt will be ineffective against mother’s interference with the father-son relationship, despite mother’s protestations to the contrary, does not justify a disruption of either of the children’s current family lives. Changing their custody is not likely to ameliorate their parents’ efforts to use the children as weapons against one another. Only the parents can do that by changing their attitudes.
Affirmed. No costs to either party.
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Cite This Page — Counsel Stack
632 P.2d 1, 53 Or. App. 301, 1981 Ore. App. LEXIS 2994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-morton-orctapp-1981.