Matter of Marriage of Hamilton-Waller

123 P.3d 310, 202 Or. App. 498, 2005 Ore. App. LEXIS 1451
CourtCourt of Appeals of Oregon
DecidedNovember 9, 2005
DocketDR0203639; A120424
StatusPublished
Cited by13 cases

This text of 123 P.3d 310 (Matter of Marriage of Hamilton-Waller) 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
Matter of Marriage of Hamilton-Waller, 123 P.3d 310, 202 Or. App. 498, 2005 Ore. App. LEXIS 1451 (Or. Ct. App. 2005).

Opinions

[500]*500DEITS, J. pro tempore

This is a child custody case in which mother appeals a judgment changing custody of two of the parties’ children to father in the event that mother moves to Holland. On de novo review, ORS 19.415(3), we reverse.

Mother and father were married 14 years and have three children. In September 2001, mother told father that she wanted to dissolve their marriage and that she intended to move to Holland the following spring, taking their oldest child, A, with her and leaving their younger children, P and R, with father. Ultimately, however, in a stipulated decree of dissolution of marriage entered on July 13,2002, mother was awarded custody of the two younger children, P, who was then 11 years old, and R, who was five, and father was awarded custody of the oldest child, A, who was 16. Less than a month later, on August 2, 2002, mother notified father that she intended to move to Holland with P and R, in order to live with her fiancé, Ritter, who is Dutch. Father responded by seeking to change custody of P and R.1

At the hearing on father’s motion, both parties testified, as did Bonnvier, a custody evaluator hired by father.2 Neither party indicated that the other was not a good parent; nor did the custody evaluator make any such statement. The hearing focused almost entirely on the effects of mother’s proposed move on all three children and on mother and father. The custody evaluator testified that, in her opinion, father should be given custody of P and R if mother decided to move to Holland. However, mother testified that she would not move to Holland if she could not take P and R with her.

After hearing the testimony of several individuals, including both father and mother, mother’s fiancé, and the [501]*501custody evaluator, the trial court concluded that mother’s proposed move would constitute a substantial change of circumstances and that it was in the best interests of the two children to change custody of them to father if mother moved to Holland. Under the trial court’s decision, if mother does not move to Holland, she will retain custody of the two children. Mother appeals, arguing that the trial court erred in concluding that father had sufficiently established a substantial change of circumstances and in concluding that it was in the best interests of the children to change custody to father in the event that mother chose to move. Father has not appeared on appeal.

We note at the outset that “relocation cases” such as this are among the most difficult cases that the courts are called upon to decide.3 This is true both factually and legally. It is difficult to formulate a legal test to govern when it is appropriate to allow a custodial parent to move with a child. It is also hard to apply a standard formula to this type of case because there are numerous competing interests and issues and so many variations in particular circumstances.

It is undeniable that the dissolution of a marriage drastically changes a family. The relationship of the parents and children must necessarily change when a dissolution occurs. Further, as the lives of all the family members change in the years after a dissolution, numerous competing interests frequently arise that simply cannot all be satisfied. The custodial parent has an interest in moving on with his or her life and, when finances or personal relationships make it desirable to move, in being able to move. The custodial parent also has an interest in making important decisions regarding [502]*502the children, such as where they are going to live. See Ortiz and Ortiz, 310 Or 644, 649, 801 P2d 767 (1990) (custodial parent has the primary rights and responsibilities for the child). On the other hand, the noncustodial parent has an interest in having the opportunity to maintain a meaningful relationship with his or her children and having reasonable access to and time with the children to maintain that relationship. See ORS 107.149 (recognizing state policy of maintaining contact with both parents after dissolution). Finally, and perhaps of most importance, the children have an interest in having a situation that allows the optimum relationship with each parent under the circumstances and is in their overall best interests. See ORS 107.137(1) (primary consideration in custody determinations is best interests of the children).

All state courts must deal with relocation cases, and the various states have taken a number of different approaches. Some states have adopted statutory standards that govern these decisions; others, like Oregon, have developed the appropriate analysis primarily through case law. The approaches developed in case law have varied considerably. The factors identified by the various courts to be used in deciding relocation cases have common threads but also significant differences. The interests that the courts have found to be predominant also vary from state to state. Significantly, some jurisdictions require the custodial parent to establish that a move is appropriate, while others, like Oregon, require the noncustodial parent to establish that a change in custody is appropriate. We have found two generalizations that can be drawn from the case law of other jurisdictions: (1) in most states, the predominant consideration is the best interests of the children, and (2) in most states, the ultimate decision usually is driven by the facts.

Those generalizations are borne out in Oregon case law. In fact, perhaps more than in any other kind of case, the analysis in this type of case often appears to be, and frankly is, highly dependent on the facts of the case. See Ortiz, 310 Or at 649 n 5 (observing that the amount of change necessary to justify modification of custody varies with the facts of each case); Meier and Meier, 286 Or 437, 447, 595 P2d 474 (1979) (recognizing that the “best interests” test does not provide as [503]*503specific a guide to trial courts as might be most helpful to them). That is so because what is in the “best interests” of one child will often differ dramatically from what is in the “best interests” of another child, even when it appears that surrounding circumstances are similar: the particular personality, experiences, strengths, weaknesses, and needs of each child must be considered within that child’s own context of relationships, circumstances, and events. In addition, societal conceptions of what is in the best interests of children, generally and particularly, are not static but have evolved over time, and will no doubt continue to evolve.4 Finally, the cases reflect the reality that, no matter how much evidence we are provided, courts are poor substitutes for the ideal arbiters of children’s best interests: the family members who know them and their circumstances from firsthand experience.

For all those reasons, it is important to bear in mind that what may at first appear to be inconsistent statements of the standards applied to these cases, or anomalous results, may in fact be, at least in part, a function of subtle differences in a myriad of factual circumstances that may not be apparent from the face of a written opinion.

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Matter of Marriage of Hamilton-Waller
123 P.3d 310 (Court of Appeals of Oregon, 2005)

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Bluebook (online)
123 P.3d 310, 202 Or. App. 498, 2005 Ore. App. LEXIS 1451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-marriage-of-hamilton-waller-orctapp-2005.