McArthur v. Paradis

120 P.3d 904, 201 Or. App. 530, 2005 Ore. App. LEXIS 1224
CourtCourt of Appeals of Oregon
DecidedSeptember 21, 2005
Docket01C-34305; A123354
StatusPublished
Cited by5 cases

This text of 120 P.3d 904 (McArthur v. Paradis) 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
McArthur v. Paradis, 120 P.3d 904, 201 Or. App. 530, 2005 Ore. App. LEXIS 1224 (Or. Ct. App. 2005).

Opinion

EDMONDS, J.

Mother appeals a judgment establishing custody, parenting time, and support for her minor child, and ordering child’s last name to be changed to father’s last name. She assigns error to the trial court’s orders pertaining to father’s parenting time, to father’s current and past child support obligation, and to changing child’s last name. In particular, this case presents the issue of what legal parameters apply when parenting time conflicts with the custodial parent’s religious practices. On de novo review, ORS 19.415(3), we reverse in part and affirm in part.

Child was born out of wedlock to mother and father in September 1992. Mother has had custody of child from birth. Father has also been involved with child and has paid some child support to mother for most of child’s life. In the summer of 2001, child disclosed to mother that she had been sexually abused by mother’s current husband’s father. Mother and her husband contacted the police in early September 2001; charges were brought against husband’s father, and husband’s father eventually pleaded guilty to one of the charges. Mother did not contact father about the abuse, but child eventually told father of the abuse in mid-September 2001.

Sometime during the fall of 2001, mother learned that her husband’s father had been released from jail, and, out of concern for child’s safety, mother sent child to live with mother’s sister in Idaho, but she did not inform father of that action. Father eventually learned of the move and filed a petition requesting custody of child and child support from mother.1 Mother counterclaimed, requesting that the court establish paternity, grant her sole legal and physical custody of child, establish a child support obligation consistent with the child support guidelines, and require father to pay past child support. Before trial, mother and father agreed that mother would retain custody of child, but they disagreed [533]*533about father’s parenting time schedule and the amount of child support. Father also requested that child’s name be changed to his last name, and mother objected. The trial court held a hearing on those remaining issues and issued a judgment that established paternity in father, granted mother custody of child, established a parenting plan detailing father’s visitation schedule, required father to pay $55 per month in child support, but ordered no past child support, and changed child’s last name to father’s last name. ORS 107.105.

On appeal, mother assigns error to the trial court’s rulings regarding father’s parenting schedule, the amount of child support, the failure to order past due child support, and the name change. We start with her first and second assignments of error, both of which pertain to the parenting time schedule. Before trial, the trial court ordered a custody evaluation. At trial, the custody evaluator’s recommended parenting plan was admitted into evidence. The proposed plan recommended that on alternate weekends, child would “be with her father beginning at sundown on Saturday until 9:00 [a.m.] on the following Wednesday when Father will take her to school or return her to her mother’s home.” The plan also recommended that father have child overnight on alternate Tuesdays, and that in the summer, child would alternate two-week periods of time with mother and father.

At trial, father asked the court to follow the custody evaluator’s plan, except that he asked that his alternate weekend schedule begin on Friday evening and end on Tuesday morning. Mother asked the court to follow the custody evaluator’s recommendation that the weekend visitation begin on Saturday at sundown, but end on Tuesday morning instead of Wednesday morning.

Mother’s request, and the custody evaluator’s reasoning for starting visitation on Saturday evening, pertain to mother’s religious practices. Mother belongs to and attends a congregation of a church called The Church of God, Body of Christ. This particular congregation consists of mother, child, child’s maternal grandmother, mother’s sister, and the sister’s children. Mother strictly observes a Sabbath, which according to her religion, begins at sundown Friday and ends [534]*534at sundown Saturday. According to the maternal grandmother, their religious practices proscribe watching television and listening to the radio on the Sabbath. They are not permitted to leave home except to travel to worship services and are required to participate in worship services on the Sabbath. Mother testified that her Sabbath observance is a major tenet of her religion and that child actively participates in and embraces the Sabbath practice. Child’s therapist verified that child had “talked about her religion a number of times” and that child was “quite knowledgeable” about the religion.

In arranging for his parenting time in the past, father had honored mother’s requests that child be with mother to observe the Sabbath. Child’s therapist testified that child told the therapist that she wanted to continue “going to practice her religion on Saturdays,” and that, in the therapist opinion, “a change in her schedule would [not] be in [child’s] best interest.” As already noted, the custody evaluator recommended a parenting time schedule that would allow child to continue Sabbath observance with mother. The evidence further indicates that if father has child on the Sabbath observance day, child will not engage in Sabbath observance activities associated with mother’s religion.

Father testified at the hearing that he understood that child had been raised in mother’s faith and that he understood the importance of the Sabbath observance to mother’s faith. He expressed no concern about child’s participation in mother’s faith. Rather, he testified that he desired parenting time with child from Friday evening to Monday morning “in order for me to have a normal weekend. * * * [W]e can’t go anywhere, or do anything as a family unit. We’re not able to go away for the weekend or do anything as such, or vacations.” Father also testified that he takes child to his religious services on Sunday.

The trial court concluded that mother’s Sabbath observance request was not in the best interests of child. It found that child “would not be allowed to develop a typical traditional relationship with [father] and his family if she was prevented from attending ALL weekend activities with them.” (Uppercase in original.) The court ordered a parenting [535]*535plan that gave father parenting time on alternating weekends starting Friday afternoon and ending Monday morning, pursuant to Marion County Supplementary Local Rule (SLÉ) 8.075.2

On appeal, mother contends that the trial court should have followed the custody evaluator’s recommended plan, because only that plan allowed child to observe the Sabbath practice of mother’s religion as she has her entire life. Mother argues that, because she is the custodial parent, she should have the right “to control a child’s religious training,” that courts traditionally recognize the importance of a religion’s strict Sabbath observance, and that child’s religious identity is tied to mother’s religion and its Sabbath observance.

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Cite This Page — Counsel Stack

Bluebook (online)
120 P.3d 904, 201 Or. App. 530, 2005 Ore. App. LEXIS 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcarthur-v-paradis-orctapp-2005.