Johnson and Johnson

682

Argued and submitted September 5, 2019, resubmitted en banc September 21,

2020, reversed March 10, 2021

In the Matter of the Marriage of

Amy JOHNSON,

nka Amy Royster,

Petitioner-Appellant,

and

Rick JOHNSON,

Respondent-Respondent.

Deschutes County Circuit Court

17DR10220; A167235

483 P3d 1174

In this appeal of a judgment modifying child custody, mother contends that

the trial court erred in changing legal custody of the parties’ child, J, from

mother to father. When J was an infant, mother was awarded sole legal custody.

When J was eight years old, the trial court gave father sole legal custody. At that

time, the court determined that there had been a substantial and unanticipated

change of circumstances and that, on the whole, it was in J’s best interests that

father have legal custody rather than mother. In her first assignment of error,

mother argues that the trial court erred in its change-of-circumstances deter-

mination, because the evidence was legally insufficient to establish a material

change of circumstances for purposes of custody modification. Alternatively, in

her second assignment of error, mother argues that the trial court erred in its

best-interests analysis by failing to give mother the statutory presumption for

the primary parent. Held: On this record, the trial court erred in modifying the

custody judgment, because the evidence was legally insufficient to establish a

material change of circumstances for purposes of a change of legal custody.

Reversed.

En Banc

Bethany P. Flint, Judge.

George W. Kelly argued the cause and filed the briefs for

appellant.

Kristin M. Larson argued the cause for respondent. Also

on the briefs was Hansen & Larson, LLC.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore,

Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers,

Mooney, and Kamins, Judges.

Cite as 309 Or App 682 (2021) 683

AOYAGI, J.

Reversed.

Aoyagi, J., filed the opinion of the court in which Ortega,

DeHoog, James, Powers, Mooney, and Kamins, JJ., joined.

Lagesen, J., dissented and filed an opinion.

Tookey, J., dissented and filed an opinion in which Egan,

C. J., and Armstrong, DeVore, and Shorr, JJ., joined.

684 Johnson and Johnson

AOYAGI, J.

This is an appeal of a judgment modifying child

custody. When J was an infant, mother was awarded sole

legal custody of her, in a custody order attendant to the par-

ties’ marital dissolution judgment. When J was eight years

old, the trial court changed legal custody from mother to

father, after determining that there had been a substantial

and unanticipated change of circumstances. Mother appeals

the modification judgment, arguing that the facts are legally

insufficient to establish a change of circumstances for pur-

poses of custody modification. We agree with mother and,

accordingly, reverse.

I. GENERAL PRINCIPLES

In making an initial custody determination, the

trial court’s focus is entirely on the child’s best interests.

See ORS 107.137. The court must assess the six statutory

factors in ORS 107.137 to decide which parent it will be in

the child’s best interest to award custody to. Id. In this case,

when J was an infant, the trial court necessarily found that

it was in J’s best interest for mother to have custody of her.

Since that time, mother has had sole legal custody of J, while

father has had significant parenting time.

Once a court has entered a custody order, the law

favors custodial stability for the child. Toward that end, a

court may not modify an existing custody order unless the

parent seeking a change of custody proves a “change of cir-

cumstances.” State ex rel Johnson v. Bail, 325 Or 392, 396,

938 P2d 209 (1997). “The requirement that there be a change

in circumstances before a court will consider modifying cus-

tody is a rule of long standing” that was first discussed in

case law over a hundred years ago. Id. at 397. As explained

in Merges v. Merges, 94 Or 246, 254, 186 P 36 (1919), a final

custody order “can be changed or superseded only by a

showing that for some reason the [custodial parent] is not

competent to care for the child or that some condition has

arisen rendering [the child’s] further care and custody by

the [custodial parent] inimical to the child’s welfare.”

“The change of circumstances rule is designed

primarily to avoid repeated litigation over custody and to

Cite as 309 Or App 682 (2021) 685

provide a stable environment for children.” Ortiz and Ortiz,

310 Or 644, 649, 801 P2d 767 (1990). If the custodial parent

remains fit to care for the child, it is “best under the cir-

cumstances to let well enough alone until new conditions

intervene to disturb the status established by that decree.”

Merges, 94 Or at 257-58 (stating that, if father “was fit then

to have the care of the child, he is fit now”).

Thus, only after a qualifying change of circum-

stance has been proved may a trial court consider disrupt-

ing an existing custody order. It is a “two-step inquiry.”

Johnson, 325 Or at 397. First, the moving parent must show

that, since entry of the most recent custody order, “circum-

stances relevant to the capacity of either the moving party

or the legal custodian to take care of the child properly have

changed.” Boldt and Boldt, 344 Or 1, 9, 176 P3d 388, cert

den, 555 US 814 (2008). The change must be both unantic-

ipated and material to the child’s welfare. Teel-King and

King, 149 Or App 426, 429-30, 944 P2d 323 (1997), rev den,

327 Or 82 (1998). If a change of circumstances is proved,

then, second, the court must consider the change of circum-

stances “in the context of all relevant evidence” to deter-

mine whether changing custody to the moving party would

be in the child’s best interests. Buxton v. Storm, 236 Or App

578, 592, 238 P3d 30 (2010), rev den, 349 Or 654 (2011). It is

at the second step that the court reassesses the six factors

in ORS 107.137.

Since Merges, we and the Supreme Court have used

varying language to describe the legal standard at the first

step. It is often described as requiring a material (or sub-

stantial) and unanticipated change of circumstances rele-

vant to “the capacity of either the moving party or the legal

custodian to take care of the child.” Boldt, 344 Or at 9; see

also, e.g., Botofan-Miller and Miller, 365 Or 504, 520, 446

P3d 1280 (2019), cert den, ___ US ___, 141 S Ct 134 (2020)

(same); Johnson, 325 Or at 397 (same).1 Or, it is described

1

A qualifying change of circumstances theoretically could involve the capac-

ity of either parent to take care of the child, see Boldt, 344 Or at 9, but it typ-

ically involves the custodial parent’s capacity. E.g., Botofan-Miller, 365 Or at

520-21; see also Teel-King, 149 Or App at 430 (“A showing that the noncustodial

parent’s circumstances have improved is not enough” to establish a change of

circumstances.).

686 Johnson and Johnson

as requiring a material (or substantial) and unanticipated

change of circumstances that has “injuriously affected the

child” or, referring back to some language from Merges, has

affected the custodial parent’s “ability or inclination to care

for the child in the best possible manner.” E.g., Botofan-

Miller, 365 Or at 520-21 (“That is, a new development may

be considered a legally sufficient change in circumstances

only if it is shown that the change has ‘injuriously affected

the child’ or affected the custodial parent’s ‘ability or incli-

nation to care for the child in the best possible manner.’ ”

(Quoting Boldt, 344 Or at 9.)).

Because the latter formulation of the legal standard

could be misunderstood if read out of context, we pause to

clarify what is meant by a change of circumstances that has

affected the custodial parent’s “ability or inclination to care

for the child in the best possible manner.” As is apparent

from Merges, the source of that language, it does not refer

to a general analysis of the child’s “best interests” to deter-

mine which parent will “best” care for the child. See Merges,

94 Or at 254. Indeed, if deciding whether a change of cir-

cumstances had occurred entailed the same analysis as

the “best interests” inquiry, then the modification analysis

would involve only one step, rather than two, Johnson, 325

Or at 397, and would be no different than deciding initial

custody.

In considering whether an asserted change of cir-

cumstances has affected the custodial parent’s “ability or

inclination to care for the child in the best possible manner,”

Boldt, 344 Or at 9, it is therefore important to keep in mind

the fundamental standard for a change of circumstances—

that the custodial parent is no longer “competent to care for

the child” or that some condition has arisen that renders the

child’s continued care and custody by the custodial parent to

be “inimical to the child’s welfare,” Merges, 94 Or at 254—as

well as the primary purpose of the requirement—“to avoid

repeated litigation over custody and to provide a stable envi-

ronment for children,” Ortiz, 310 Or at 649. Doing so, it is

readily apparent that the task of the court is not to decide

what it believes is the “best” parenting choice. That is, on a

motion to modify custody, where two parents disagree about

what is best for a child, on issues about which reasonable

Cite as 309 Or App 682 (2021) 687

minds can disagree, it is not the court’s role to decide with

which parent it agrees. Rather, the court is to assess the

custodial parent’s ability and inclination to care for the child

in the best possible manner, even if the other parent or the

court might favor a different parenting approach, so long as

the child is not being “injuriously affected” by the custodial

parent’s parenting choices.

Finally, “ ‘the amount of change necessary to justify

a modification of a decree varies with the facts of the indi-

vidual case.’ ” Botofan-Miller, 365 Or at 521 (quoting Gonyea

v. Gonyea, 232 Or 367, 372, 375 P2d 808 (1962)). The facts

must be legally sufficient to establish a change of circum-

stances, however, and existing case law illustrates the legal

standard. For example, when the asserted change of cir-

cumstances involves “events of inadequate care and super-

vision,” they “must be of such a nature or number reflecting

a course of conduct or pattern that has had or threatens to

have a discernable adverse effect upon the child.” Buxton,

236 Or App at 592 (internal quotation marks and brackets

omitted).

In Colson and Peil, 183 Or App 12, 22-24, 51 P3d

607 (2002), the evidence was insufficient to establish a

change of circumstances, where the mother had allowed

the child, who had a learning disability and was distraught

about his parents’ divorce, to miss a quarter of the school

year and planned to move to Missouri even though the child

did not want to move. By contrast, in Garrett and Garrett,

210 Or App 669, 672-74, 152 P3d 993 (2007), the evidence

was sufficient to establish a change of circumstances, where

the father had engaged in a pattern of interference with

the children’s relationship with the mother, by interfering

with her parenting time and engaging in verbal alterca-

tions and at least one physical altercation. The evidence

also was sufficient to establish a change of circumstances

in Botofan-Miller. In that case, over time, the mother’s anx-

iety and mental health issues had rendered her unable to

make timely medical decisions for the child, which led to the

child not receiving vaccinations on time and, worse, suffer-

ing medical consequences from an eye problem that could

have led to permanent double vision but for the father forc-

ing the issue of surgery. 365 Or at 508-09. The mother also

688 Johnson and Johnson

had developed an unhealthy “anxious attachment parenting

style” that was pervasive in nature and was having signifi-

cant detrimental effects on the child. Id. at 509-11.

II. FACTS

With those basic principles in mind, we turn to the

facts of this case. Mother requests de novo review, but such

review is discretionary, and we are unpersuaded to provide

it here. See ORS 19.415(3)(b) (granting us “sole discretion”

whether to allow de novo review in equitable proceedings);

ORAP 5.40(8)(c) (limiting de novo review to “exceptional

cases”). We are therefore bound by the trial court’s express

and implied factual findings, if there is evidence in the

record to support them, and we state the facts and reason-

able inferences therefrom in the light most favorable to the

trial court’s disposition. Botofan-Miller, 365 Or at 505. We

infer an implied finding “where we can deduce that the trial

court’s chain of reasoning must necessarily have included”

it. State v. Lunacolorado, 238 Or App 691, 696, 243 P3d 125

(2010), rev den, 350 Or 530 (2011).

The parties’ daughter, J, was born in October

2009, shortly after dissolution of the parties’ marriage. In

a 2010 judgment, mother was granted sole legal custody of

J, with father receiving parenting time. As of early 2017, J

was spending about one-third of school months with father,

alternating holidays with each parent, and spending half of

the summer with each parent. Mother operates an in-home

daycare, and father is a teacher.

In May 2017, when J was seven years old and fin-

ishing first grade, father moved to modify custody, parent-

ing time, and child support. He asked to be designated as

J’s “residential parent,” sought to limit mother’s parenting

time during the school year but to continue splitting equally

holidays and summers, and requested a concomitant mod-

ification of child support. In his attached affidavit, father

explained that he wanted a formal schedule, because the

parties had been following an informal parenting time agree-

ment that differed from the court order. Father described

his “bigger concern,” however, as being whether mother was

currently providing a safe and stable home for J. He listed

various concerns about mother’s home, beginning with his

Cite as 309 Or App 682 (2021) 689

concern that mother might be living with an “abusive part-

ner,” Egle, who had “hit [J] with a belt.” Father’s other stated

concerns related to school attendance, homework, household

moves, scary movies, medical care, booster-seat usage, and

the fit of J’s clothing.

The court held a hearing on father’s motion in

January 2018, at which time J was eight years old and half-

way through second grade. Father called four witnesses—

himself, his wife, J’s first-grade teacher, and a Department

of Human Services (DHS) worker—and mother called five

witnesses—herself, Egle, J, and two friends. Most of the

testimony was uncontested. To avoid repetition, we discuss

the specific testimony and findings in the analysis section.

At present, it suffices to say that the issues that received

the most attention included a statement that J had made

about Egle spanking her with a belt, J’s school attendance

and timely arrival at school, mother’s and father’s differing

views about homework, and J’s medical and dental care.

Notably, father framed his arguments to the trial

court mostly in terms of J’s best interests. As to the change-

of-circumstances requirement, father briefly addressed it in

his trial memorandum, citing various life events that had

occurred since the initial custody order, including moves,

father’s remarriage, and J starting school, and expressing

concern that mother’s new partner, Egle, may be “physically

abusive” to J or “emotionally and verbally demeaning” to J.

Otherwise, father focused on the best-interest factors. At

the hearing, father described the change-of-circumstances

requirement as his first hurdle but not a big hurdle, because,

since the entry of the custody order, father had moved to

Bend, gotten married, and had another child; mother had

moved to Bend, started a business, gotten engaged, and had

another child; and J had started school. Given those life

events, father argued, “the situation now compared to when

the last order was entered is completely different,” and every-

one “has changed their positions, including [J],” so “there’s

clearly a change in circumstances.”

At the end of the hearing, the trial court announced

its findings and conclusions. The court first addressed the

change-of-circumstances requirement, concluding that there

690 Johnson and Johnson

had “been a substantial unanticipated change in circum-

stances” in the eight years since the original custody judg-

ment was entered. The court recognized that the change

had to relate to mother’s “capacity to provide care for the

child,” not just “random circumstances that changed,” but

concluded that standard was met, stating:

“[W]hile it may have been appropriate to have [mother] be

the sole legal custodian of [J] when she was an infant, I

find there have been significant changes in circumstances

since that time to today’s date based on all of the facts in

the record at this time with respect to her becoming school

age, her participation in school, behaviors in the home, con-

cerns about behaviors in the home, people living in each of

her homes, and of course, most recently, this disclosure about

this alleged incident with a belt occurring with Mr. Egle.

And that all relates to Mother’s capacity to remain as a

custodial decision maker for the child, and so I find there

has been a substantial change in circumstances, and I will

be reaching that issue.”

(Emphasis added.) The court focused especially on mother’s

handling of J’s belt allegation, stating that “really many of

the issues that are going to be dispositive in this case hover

around each parent’s dealing with” that allegation.

The court then proceeded to a “best interests”

analysis under ORS 107.137, discussing each of the six stat-

utory factors. The court concluded that four factors—J’s

emotional ties with other family members, the desirability of

continuing an existing relationship, primary caregiver sta-

tus, and willingness to facilitate and encourage the child’s

relationship with the other parent—were neutral and did

not favor either parent. One factor—one parent’s abuse of

the other—was not applicable. That left a single factor—the

parties’ interest in and attitude toward the child—which

the court discussed at length and ultimately found to favor

father. The court cited mother’s handling of J’s allegation

that Egle had spanked her with a belt as a “huge basis” for

its decision, even if Egle had not actually spanked J with

a belt. As the only factor that favored either parent, the

interest-and-attitude factor was dispositive, and the court

changed legal custody to father. As for parenting time, the

court gave mother parenting time every other weekend (from

Cite as 309 Or App 682 (2021) 691

Wednesday afternoon to Monday morning) during the school

year and ordered that J would spend alternating holidays

and half of summer and winter breaks with each parent.

III. ANALYSIS

As previously discussed, ruling on a motion to mod-

ify child custody involves two separate analytical steps, with

the first being the change-of-circumstances determination

and the second being the best-interests determination. As to

the first step, whether a particular set of facts is sufficient

to establish a change of circumstances is a question of law.

Slaughter and Harris, 292 Or App 687, 688, 425 P3d 770

(2018). A trial court may refer to having “found” a change

of circumstances, and we and the Supreme Court may use

various terms for the determination. E.g., Botofan-Miller,

365 Or at 505, 520, 522 n 6, 524-25 (variously referring to

the trial court’s change-of-circumstances determination

as a “finding,” “ruling,” “determination,” and “conclusion”).

Ultimately, however, whether the facts are sufficient to

establish a “change of circumstances” is a legal question

reviewed for legal error. Slaughter, 292 Or App at 688.

The burden of showing a change in circumstances

rests on the parent seeking a change of custody. Johnson,

325 Or at 397. If the moving parent fails to prove a change of

circumstances, the analysis ends, without reaching the best-

interests inquiry. Boldt, 344 Or at 9 (“When there is insuf-

ficient evidence of a change in circumstances since the last

custody determination, a court does not consider the second

step of the analysis.”). In this case, mother challenges both

steps of the trial court’s analysis, but, because we determine

the first to be dispositive, we need not address the second.2

2

In her second assignment of error, mother contends that the trial court

erred in its best-interests analysis by failing to give mother the benefit of the

statutory preference for the primary caregiver. See ORS 107.137(1)(e) (requir-

ing the court to give a “preference for the primary caregiver of the child, if the

caregiver is deemed fit by the court”). The court expressly recognized that J had

“lived primarily with [mother],” that mother had been J’s “primary placement,”

and that making father her primary placement would be a “significant change.”

However, the court declined to give any preference to mother, stating that, legally,

both parents “are qualified primary caregivers.” Given our disposition, we need

not reach that issue. We note, however, that it is the subject of Judge Lagesen’s

dissent. See 309 Or App at 705-06 (Lagesen, J., dissenting) (opining that the trial

court erred by failing to give the statutory preference to one of J’s parents).

692 Johnson and Johnson

A. The Trial Court’s Change-of-Circumstances Ruling

Our review task in this case is complicated by how

the change-of-circumstances issue evolved below. In the

trial court, father relied largely on normal life events such

as moves, remarriages, the birth of half-siblings, and J

starting school as sufficient to establish a change of circum-

stances. The trial court implicitly—and properly—rejected

that position. See, e.g., Dillard and Dillard, 179 Or App 24,

32, 39 P3d 230, rev den, 334 Or 491 (2002) (“Normal devel-

opmental changes * * * are not unanticipated changes * * *

and so cannot, in themselves, provide the basis for a change

in circumstances.”); Teel-King, 149 Or App at 430 (the child

starting kindergarten was not a proper consideration in

change-of-circumstances analysis). Beyond nonqualifying

life events, the only change of circumstance identified as

such by father was Egle’s possible “abuse” or mistreatment

of J. As discussed later, the trial court did not find any

abuse or mistreatment to have occurred—yet it still found a

change of circumstances, citing “all of the facts” regarding

“[J] becoming school age, her participation in school, behav-

iors in the home, concerns about behaviors in the home, peo-

ple living in each of her homes, and of course, most recently,

this disclosure about this alleged incident with a belt occur-

ring with Mr. Egle.” The court then proceeded to a best-

interests analysis under ORS 107.137.

That approach is problematic for purposes of appel-

late review, in that the trial court somewhat collapsed the

two steps of the analysis, such that we must try to discern

which evidence it considered relevant to a change of circum-

stances and which evidence it considered relevant only to

the statutory best-interests analysis. Cf. Buxton, 236 Or

App at 592-93 (clearly delineating between the change-of-

circumstances and best-interests analyses, including iden-

tifying the evidence relevant to each). Erring on the side

of caution—that is, taking the broadest view possible—we

understand the court to have relied on three sets of facts

as establishing a material and unexpected change of cir-

cumstance: (1) school-related issues, particularly regarding

homework, tardies, and attendance; (2) mother’s occasional

use of physical discipline; and (3) mother’s handling of an

Cite as 309 Or App 682 (2021) 693

allegation that Egle had spanked J with a belt. We discuss

those issues in detail in the following sections.

Before doing so, we briefly address the only other

issue that father identifies on appeal as relevant to a change

of circumstances, which is his allegation below that mother

has neglected J’s medical and dental care.3 We disagree

that that issue is relevant to our review of the change-of-

circumstances determination. The trial court expressly

found against father on the issue of medical care, stating

that father not knowing about J’s doctor’s visits did not per-

suade the court that there was a problem with J’s medical

care, and finding no evidence that J “suffered any serious

illnesses or injuries that weren’t attended to.” As for J’s den-

tal care, it was uncontested that J has generally received

appropriate dental care, and the only finding adverse to

mother was that, in summer 2017, mother delayed having

three cavities filled, which, although there was no evidence

of any adverse effect on J’s teeth, the court viewed as “not

in the child’s best interest.” 4 It is apparent from the record

that the court did not consider that incident relevant to a

change of circumstances—and correctly so. See Buxton, 236

Or App at 592 (inadequate care rises to the level of a change

of circumstances when there is a “a course of conduct or pat-

tern that has had or threatens to have a discernable adverse

effect upon the child” (brackets omitted)). We therefore do

not discuss J’s medical or dental care further.

B. School-Related Issues

The first change of circumstance identified by the

trial court involves J “becoming school age” and “her par-

ticipation in school.” Given the generality of that statement,

we assume that the trial court meant to refer to all evidence

related to J’s schooling. The evidence about J’s schooling

3

As for other “concerns” mentioned in father’s motion that are not discussed

herein, little evidence was admitted on them, the trial court implicitly rejected or

did not address them, and father does not rely on them on appeal.

4

Since 2015, by agreement of the parties, J has gone to the dentist’s office

where father’s wife works as a dental assistant. Around the time that father filed

his motion to modify custody, mother cancelled a dental cleaning and checkup

scheduled for June 27, 2017. Father’s wife later did an informal examination of

J’s teeth and discovered three cavities. Everyone agrees that those cavities were

filled sometime in August 2017.

694 Johnson and Johnson

generally fell into three categories: absences from school,

tardies, and homework.

As a preliminary matter, we note that it is uncon-

tested that J is doing well in school. According to her first-

grade teacher—whose testimony the trial court expressly

credited—J “does wonderfully in school,” and the lack of

homework has not affected her academically. The only other

person to testify about J’s school performance was mother,

who described J as “doing great,” “above in reading,” “well-

liked by her peers and her teacher,” and reported at school

conferences as being “at grade level or above.”

Regarding absences, while living with mother,

J missed nine days of school in kindergarten, 13 days of

school in first grade, and seven days of school in the first

half of second grade. It was uncontested that most of those

absences were due to J being sick. However, once, mother

let J stay home for a “mommy-daughter day,” when J was

stressed about her math class. Also, there was evidence that,

on one occasion, father had asked mother why J had missed

two days of school, and mother responded that mother was

not feeling well and had homeschooled J on those days. The

court’s only finding about J’s school absences related to the

latter incident, with the court inferring that mother had

kept J home to help mother while mother was sick, which it

viewed negatively. Mother challenges that finding as imper-

missibly speculative, but, because it pertains to only two

school days, we need not address whether such an inference

was reasonable.

Regarding tardiness, J was late to school 27 times

during first grade while staying with mother. Because of

her daycare obligations, mother had arranged for someone

to drive J to school in the mornings. J was always ready and

out the door on time, but, unbeknownst to mother, J often

arrived late to school because of health-related issues with

her driver, who was pregnant with twins. When mother

learned how many tardies that J had, she was “shocked”

and arranged for a different person to drive J to school.

There has been no tardiness issue in second grade. The trial

court found that mother “didn’t know about” the tardies,

but it expressed the view that mother should have taken

Cite as 309 Or App 682 (2021) 695

affirmative steps to confirm whether J was arriving on time

and stated that it was “not in J’s best interest” to be tardy

so often.5

Regarding J’s homework, father and mother have

different views on it. Homework is optional at J’s school as

a matter of school policy, which fact is communicated to the

parents in a letter at the beginning of the school year. Father

believes that homework is good for young children and a

“value” to them, and he has J do homework every night at

his house. In mother’s view, it is better for young children

not to do homework and to focus instead on family time, and

she has found support for that view in talking to friends and

doing research online. Mother has J do homework only when

J wants to do it and is in a good mood about it.

J’s first-grade teacher testified that all homework

is optional, that she told mother that it was “fine” for J not

to do homework, and that not doing homework did not affect

J academically. The teacher herself favors children doing

homework and felt that J “wanted” to do homework and

“cared about getting homework done” as a “value” of hers.

There is no evidence that the teacher communicated that

perception to mother, however, or that she gave mandatory

homework in contravention of the school policy. To the con-

trary, the teacher expressly testified that she told mother

it was fine for J not to do homework.6 As for J herself, she

testified briefly about homework, in response to questions

from the court, stating that homework is optional and that

she sometimes does it and sometimes does not. J noted that,

in second grade, if you do homework, you get a sucker from

the sweet treat box on Friday. The court asked J is she likes

the sweet treat box, and J answered, “Uh huh.”

5

There was also evidence that mother sometimes pulled J out of school early,

but that evidence was minimal, and the trial court referred in its findings only

to a single incident in which mother did not return J to school in the afternoon,

after taking her out for an appointment, because mother needed to get back to the

daycare.

6

As the dissent notes, the trial court “found that mother disregarded J’s

teacher’s request” that homework and reading logs be done. 309 Or App at 719,

732 (Tookey, J., dissenting). To the extent that finding has any support in the

record, it has minimal relevance, given the teacher’s own testimony—which the

trial court credited—about what the teacher told mother and about J’s perfor-

mance in school.

696 Johnson and Johnson

The trial court found that the first-grade teacher

was credible “about [J] showing up and not having done her

homework [and feeling] badly” and that “it is her mother’s

choice that that occurs.” The trial court also found that J

“really likes to get a treat” on Fridays for doing homework

and feels badly when she does not get a treat, stating that it

“is not in a child’s best interest to have those feelings occur

in the classroom.”7 The court found that J “was not being

supported in her math skills,” because mother did not have

J do homework, and “was not being supported in filling out

a reading log,” stating—apparently based on the court’s own

view of reading logs—that filling out a reading log “estab-

lishes regularity and consistency for a child.”

We agree with mother that the school-related issues

found by the trial court do not rise to the level of a mate-

rial and unanticipated change of circumstances allowing

a change of legal custody. There was certainly evidence of

a tardiness problem in the first grade. However, the trial

court found that mother did not know that J was arriving

late to school, and it was undisputed that mother arranged

for a different driver when she learned of the issue and that

there has been no tardiness issue in second grade. On that

record, the court could not find a change of circumstances

based on school tardiness. As for J missing two or three days

of school for reasons other than J being sick and mother not

returning J to school after an afternoon appointment, such

sporadic events do not establish a change of circumstances,

let alone when they have had no discernable adverse effect.

See Buxton, 236 Or App at 592 (requiring a “course of con-

duct or pattern that has had or threatens to have a discern-

able adverse effect upon the child” (brackets omitted)).

As for homework, a difference of opinion between

two parents as to whether a young child should do optional

homework or instead spend time with family is not a material

7

The only evidence regarding the sweet treat box is that described in the

text. Because there was no evidence as to how often J gets a treat—relative to

her classmates or otherwise—or how she feels when she does not get a treat, we

agree with mother that the court’s finding that J is suffering some harm from

not getting a sucker every Friday was impermissibly speculative. See Aguilar

v. Badger, 304 Or App 769, 770, 469 P3d 279 (2020) (findings must be based on

“inferences that reasonably may be drawn” from the evidence to be binding on

appeal (emphasis added)).

Cite as 309 Or App 682 (2021) 697

and unanticipated change of circumstances. Instead, it is

precisely the type of difference of opinion that divorced

parents are allowed to have. Harking back to our discus-

sion of the applicable standard, see 309 Or App at 685-87,

it was not the trial court’s role to decide whether it believes

that children should do optional homework or fill out read-

ing logs as the “best” parenting choice. Father may believe

that young children should do homework every night, and

J’s first-grade teacher, who shares that view, may have per-

ceived that J would have preferred to do homework every

night. But reasonable minds can disagree about the ben-

efits of homework for young children, and it is undisputed

that J is doing well in school. Indeed, the very fact that the

homework is optional as a matter of school policy evinces

the changing societal views on homework for young chil-

dren and the fact that reasonable minds can disagree about

whether and how often it should be done. As long as mother

was trying to care for J in the best possible manner and was

not causing injury to J, the fact that J’s parents disagree

about the benefits of optional homework did not constitute a

change of circumstances.

C. Mother’s Occasional Use of Physical Discipline

The next issue that the trial court may have con-

sidered relevant to a change of circumstances is mother’s

occasional use of physical discipline. It is not entirely clear

that the trial court did so. It may have considered it relevant

only to the best-interests analysis. However, because we are

unable to discern anything else that the court could have

meant by “behaviors in the home, concerns about behaviors

in the home,” we assume that the court was referring to

mother’s occasional use of physical discipline.

The only evidence on that issue came directly or

indirectly from mother’s own statements. Mother testified

to using occasional physical discipline. Specifically, she tes-

tified that she has spanked J about five times in her life—

meaning a “swat on the butt” designed to get her attention

but not to hurt her—and has swatted J on the mouth “two

times ever,” when J was yelling very rudely, which swats

were only hard enough to get J’s attention, did not leave a

mark, and did not involve “strik[ing]” J’s face. The last time

698 Johnson and Johnson

that she swatted J on the mouth was about two years before

the hearing. Mother testified that, when the DHS case-

worker asked her about physical discipline, she made state-

ments consistent with the foregoing. The DHS caseworker

testified similarly. Although father did not make any argu-

ments about mother’s use of physical discipline, he also tes-

tified that mother “has said” that she “smacks” J’s face and

“spanks” her.8

On that record, the trial court commented disap-

provingly on mother’s swatting of J’s face two years earlier

when J was six years old, stating that, if mother found a

six-year-old rude, she would find a teenager even ruder. We

express no opinion as to when it is permissible to consider

the occasional use of physical discipline as weighing against

a parent in a best-interests analysis. We limit our discussion

only to the relevance of the evidence in this case to a change

of circumstances. Here, there was no evidence that mother

had ever used unlawful physical discipline or injured J in

any way. Reasonable parents can disagree about the occa-

sional use of physical discipline. It is unclear that the trial

court considered mother’s occasional use of physical disci-

pline to be a change of circumstances, but, if it did, it was

error on this record.

D. Mother’s Handling of the Belt Allegation

The final change of circumstance identified by the

trial court was “people living in each of [J’s] homes, and

of course, most recently, this disclosure about this alleged

incident with a belt occurring with Mr. Egle.” Other than

Egle, there was no evidence of J having any potential issue

with anyone living in either home—it is undisputed that J

is close to both her parents, gets along with father’s wife,

and is close to her younger half-sister by father, her younger

half-sister by mother, and Egle’s young daughter. Thus,

both of the foregoing references by the trial court must be to

Egle.

8

The only other evidence potentially connected to mother’s use of physical

discipline was testimony by the DHS caseworker that, when she went to father’s

house, father said that J “had presented at his house with what looked to be a

swollen lip,” but she examined J and did not see a swollen lip. Father did not tes-

tify about a swollen lip.

Cite as 309 Or App 682 (2021) 699

The evidence regarding Egle was generally uncon-

tested. Mother and Egle dated on and off for several years

and got engaged in December 2017. Egle has a young daugh-

ter as to whom he has parenting time. Egle lived in moth-

er’s home for part of 2015 and early 2016, moved out from

March 2016 to November 2017, and then moved back into

mother’s home. The reason that Egle was out of the home for

a period was because he had a pending criminal case that

could affect mother’s daycare license. Specifically, in 2015 or

early 2016, Egle pleaded guilty to one count of misdemeanor

assault, based on an altercation with an ex-girlfriend, and

was placed in a diversion program because he had no prior

criminal history. The charge was pending dismissal at the

time of the modification hearing. Egle maintained his inno-

cence to mother, and mother believed his version of events

over Egle’s ex-girlfriend’s. Egle had been allowed to continue

unsupervised parenting time with his daughter through-

out the case, but he had to move out of mother’s home for a

period to avoid interfering with her daycare license.

There was minimal evidence regarding J’s relation-

ship with Egle. Mother testified that J was initially reluc-

tant to accept Egle but had since developed a great relation-

ship with him. Egle also testified to a positive relationship

with J, and he specifically denied ever using any physical

discipline with J or any child. Two family friends who have

observed Egle with J testified to their having a positive rela-

tionship. No one testified to witnessing any negative inter-

action between Egle and J.

In March 2017, however, when J was seven, J’s

paternal grandfather said during a family conversation

that he had once spanked father with a belt when father

was a child, at which point, according to father, J “made

the comment that [Egle] had spanked her with a belt.”

The room went silent, and, thereafter, father called DHS.

A DHS caseworker and a police officer arrived at father’s

home. According to the caseworker, J repeated what she

had said, did not appear upset, and was generally relaxed,

happy, and talkative. The caseworker and police officer then

went to mother’s home. Mother was “alarmed” to find them

at the door, which the caseworker described as “natural,”

and, because daycare children were present, they scheduled

700 Johnson and Johnson

a time to return. The caseworker did not testify to having

any substantive conversation with mother at that time.

However, according to mother, after the police officer reas-

sured her that “this kind of thing happens all the time”

and would likely be dropped, the DHS caseworker aggres-

sively insisted that J was telling the truth, to which mother

responded that that was the caseworker’s opinion but that

she (mother) had not yet talked to J (who was still at father’s

house), that J sometimes lies or exaggerates, and that moth-

er’s initial feeling in her “heart of hearts” was that it had

not happened. When asked by the court about “denying” the

allegation before talking to J, mother explained that she

had not “denied” it and always intended to talk to J but was

expressing her initial reaction from knowing Egle and J and

what happens in her home.

Mother talked to J before the DHS caseworker

returned for the scheduled interview. According to mother,

she asked J to tell her exactly what had happened, and J was

very apologetic and led mother to believe that Egle had not

actually spanked J with a belt. Around that time, mother

emailed J’s teacher about what had happened and set up an

appointment for J with the school counselor.9

According to the DHS caseworker, when she returned

to interview mother, J was present, and it was “extremely

tense.” Mother demanded that J tell the caseworker that she

had lied. In response, J hung her head and would not answer,

and, when mother insisted that she speak to the caseworker,

J was quiet for about 15 seconds and seemed “scared.” When

J eventually spoke, she said in “two full sentences” that she

had lied because she didn’t want her mom to get married.

The caseworker thought that the way that J said it did not

seem developmentally appropriate, so she told mother that

she thought that J had been “coached and scripted.” Either

at that point or sometime later, mother said, in front of J,

that J “exaggerates” and “lies” about things. The caseworker

was extremely concerned for J’s “emotional safety,” so she

9

In the same time period, J told her teacher that Egle had “threatened” to

hit her with a belt, prompting the teacher to call DHS, but that hearsay state-

ment was admitted only for its effect on the listener and not for the truth of the

matter asserted. It therefore cannot be cited for the underlying “fact.” See 309 Or

App at 708, 711, 722 n 9, 726 (Tookey, J., dissenting).

Cite as 309 Or App 682 (2021) 701

cut the visit short. (The caseworker did not explain in her

testimony what she meant by “emotional safety” or other-

wise expound on that point.) The caseworker concluded that,

if any spanking by Egle had occurred, it “would not have

been out of control” because there was apparently no injury,

so she closed the case as unfounded for physical abuse.10

J also testified about the belt allegation. The trial

court had an extended colloquy with J about the importance

of telling the truth in court, and J promised to tell the truth.

J then testified as follows. J did say that Egle had spanked

her with a belt, but he did not really do it. What happened

was that J was at a pizza restaurant with father, father’s

wife, and J’s paternal grandparents, and “they were talking

about how in their childhood they got spanked with a belt.”

J wanted to join in, so she said that Egle had spanked her

with a belt too. J “didn’t know it was going to * * * go into

a big thing.” She repeated what she had said to the DHS

caseworker and the police officer, but it “didn’t really hap-

pen” and was not true. J felt “crummy” about it, because she

should not have done it. She has never told father the truth,

because she has “been scared” about what he might do and

was “like nervous to tell him.” Father thought that J was

mad about having to go back to mother’s house, because he

thought it really happened, but J “was actually mad because

[she] lied,” including to a police officer, and was “worried

because [she] didn’t want to get in trouble for lying and then

[her] mom would know.”

The trial court was unpersuaded that Egle had

actually spanked J with a belt. The court described J as

“very intelligent” and “quite lovely” and did not expressly

find that J had lied about Egle spanking her with a belt.

However, the court was “not particularly convinced” as to

how the statement came about or why J made it, was “not

sure that [J] disclosed because it actually happened,” and

viewed it as “suspicious” and “strange” that J “shared an

experience that was similar to what the grandfather was

talking about.” The trial court speculated that J may have

10

The trial court found the DHS caseworker to be generally credible, noting

that the caseworker and J’s first-grade teacher had “no bias or motive in testify-

ing,” whereas the parents and family members in family law cases “always have

skin in the game.”

702 Johnson and Johnson

lied about Egle spanking her with a belt because she was

“seeking attention,” wanting “to be heard about something,”

or reacting to “some upheaval” at home. Nonetheless, even

if J had lied, the court had “great concerns” about mother’s

reaction to the situation, which the court described as being

“not to support and protect her child and figure out what’s

going on for her kiddo” but “to defend her fiancé,” call her

child a liar, and call J to testify. At the very end of the hear-

ing, the court returned to the belt issue, reiterating that

it was “not convinced” that J had actually been spanked

with a belt and expressing hope that J would learn to “self-

regulate and not seek out whatever attention she’s seeking out.”

Having not been persuaded that Egle actually

spanked J with a belt, the trial court erred in treating

mother’s reaction to the belt allegation as itself a substan-

tial and unanticipated change of circumstances permitting

a change of legal custody. The court was particularly crit-

ical of mother’s initial reaction, when DHS and the police

showed up at her door, but mother’s testimony was the only

evidence about her initial reaction, and we do not see how

that testimony can be construed as mother failing to “sup-

port and protect” J or inappropriately “defending” Egle. As

for mother’s formal interview with DHS, it occurred after

mother talked to J and concluded that J had lied. Such a

lie could have significant consequences. In that context, if

J had lied, pressing J to tell the truth and saying in front

of J that J “lies” or is a “liar” might not have been the most

sensitive way to handle the situation—certainly the case-

worker was concerned about an “emotional” effect on J—but

it is hardly evidence that mother is no longer competent to

care for J or is generally inconsiderate of J’s feelings. This

was a single interview, under stressful circumstances, and

mother believed that J had told a lie with potentially serious

consequences. The trial court described mother’s reaction as

creating a “culture of silence and recantation,” but the only

evidence is that mother insisted that J talk, not be silent,

and wanted J to recant a lie, not the truth.

Relatedly, the trial court assigned significance to the

fact that J was happy and carefree at father’s house, when

she repeated to DHS what she had said earlier about being

spanked with a belt, but was quiet and scared on a later

Cite as 309 Or App 682 (2021) 703

date at mother’s house, when mother was pressing her to tell

DHS that she had lied. Importantly, there was no evidence

that J acted differently in mother’s and father’s homes in

general—only during this one pair of DHS interviews regard-

ing a very specific allegation. But, if J had in fact lied about

Egle spanking her with a belt, the difference in her demeanor

between father’s house—when J did not realize that what

she had said would become “a big thing” (in J’s words)—and

the DHS interview at mother’s house—by which time the

significance was apparent and J was worried about getting

in trouble for lying—is unremarkable. To put it simply, there

is a vast difference between a child feeling distress that her

mother is pressing her to tell a lie to a DHS employee and a

child feeling distress that her mother caught her in a lie and

is pressing her to tell the truth to a DHS employee.

To summarize, father failed to prove that Egle had

ever spanked J with a belt, let alone that Egle was “abusive”

to J, which was the concern that father raised in his motion

and trial memorandum. There was no evidence that Egle

was physically or emotionally “abusive” to J, except for J’s

singular (recanted) statement that Egle had spanked her

with a belt, which the trial court was unpersuaded had actu-

ally happened. Yet the court evaluated mother’s handling of

the belt allegation as if Egle had spanked J with a belt and

mother refused to believe her. At the same time, the court

deemed mother a fit parent and gave her substantial par-

enting time, suggesting that it had no serious concern about

J’s physical and emotional safety in mother’s home. Indeed,

in context, it appears that the court’s parenting-time modi-

fications were intended largely, if not entirely, to ensure that

father would be the parent taking J to school in the mornings

and supervising her homework.11 Under the circumstances,

11

We note that, at one point in its ruling, the trial court commented that,

although J was doing well in school and was “very intelligent” and “quite lovely,”

it was concerned that J was “incurring a substantial amount of distress” from

the modification proceeding. The dissent treats the latter statement as a factual

finding that a change of circumstances in mother’s home was causing J substantial

emotional distress. 309 Or App at 707, 716, 722 n 9, 728-29, 729-30 (Tookey, J.,

dissenting). We do not understand the court to have intended such a finding, nor

would one be supported by the record, as there was no evidence of J experienc-

ing any emotional distress except in a single DHS interview. The court made its

“distress” comment in the context of telling the parties that J loved both of her

parents, was worried about what was happening in the hearing, and wanted to be

sure that both her parents were okay.

704 Johnson and Johnson

the trial court erred in concluding that mother’s handling

of a single incident—DHS’s report to mother that J had

said that Egle spanked her with a belt—was so inappro-

priate as to rise to the level of a material and unantici-

pated change of circumstances permitting a change of legal

custody.12

Lastly, we comment briefly on the trial court’s crit-

icism of mother for calling J to testify at the modification

hearing. There are certainly good reasons not to have chil-

dren testify unnecessarily, especially in disputes between

their parents. However, as the Supreme Court has recog-

nized, “a child’s testimony may be essential” to establish a

disputed material fact. Gonyea, 232 Or at 375. In Gonyea,

the court was critical of a child testifying where “there was

no need” for it. Id. at 376. Here, father was asking the court

to change custody of J, and his first claim was that Egle

was “abusive” and had “hit [J] with a belt.” That created a

material factual dispute as to which only Egle and J had

direct knowledge and about which the court was unlikely to

take Egle’s word without hearing from J. The trial court’s

criticism of mother for having J testify failed to take into

account the specifics of this case.

IV. CONCLUSION

Taken individually or together, the evidence was

insufficient to establish that mother is no longer competent

to care for J or that a condition has arisen rendering J’s

further care and custody by mother inimical to J’s welfare.

12

At the risk of stating the obvious, throughout this opinion, we have

described the hearing evidence consistent with our standard of review and

disagree with any contrary suggestion by the dissent. See 309 Or App at 709,

722 n 9, 727 n 10 (Tookey, J., dissenting). One somewhat unique aspect of this

case is that there was very little contested evidence. That is, there were very

few instances of two people giving contradictory testimony on the same issue.

Based on the trial court’s findings, the court appears to have generally credited

most of the testimony, except insofar as it indicated that, in family law cases, it

always views the testimony of the parties and their friends and family members

as somewhat biased due to their having “skin in the game,” whereas it views

witnesses like J’s first-grade teacher and the DHS caseworker as inherently

more objective. Although the trial court could have discredited some of the tes-

timony that it heard, there is no indication that it discredited any particular

testimony, and, under the circumstances, it is appropriate to simply describe

the totality of the record on which the court made its decision. To the extent

the court silently discredited any particular testimony, it would not change the

result.

Cite as 309 Or App 682 (2021) 705

Merges, 94 Or at 254. As such, the court should have “let well

enough alone,” id. at 257-58, and not disturbed the existing

custody order. To conclude otherwise would be to disregard

the important purpose of the change-of-circumstances rule,

which is “to avoid repeated litigation over custody and to

provide a stable environment for children.” Ortiz, 310 Or at

649.

This is not an initial custody determination. Father

seeks to modify custody for an eight-year-old child who has

been in mother’s sole legal custody for her entire life. If the

parties were divorcing now, the court would likely have the

latitude to award legal custody to either parent. But that is

not the situation. There is an existing custody order, which

has been in place for many years, and it cannot be changed

until and unless there has been a material and unantici-

pated change of circumstances in mother’s capacity to care

for J. Botofan-Miller, 365 Or at 520. Father failed to carry

his burden of proof in that regard. Accepting the trial court’s

express and implied factual findings that are supported by

any evidence in the record, the facts here are legally insuf-

ficient to establish an unanticipated and material change of

circumstances allowing a change of legal custody. The trial

court therefore erred in ordering a change of custody.

Reversed.

LAGESEN, J., dissenting.

The majority opinion reverses outright the trial

court’s supplemental judgment changing custody to father

based on its view that the evidence is not sufficient to demon-

strate the type of material change in circumstances that

allows a court to change child custody from one parent to

another. For the reasons stated in Judge Tookey’s dissenting

opinion, with which I agree almost completely, the major-

ity opinion is incorrect in that regard. But Judge Tookey’s

dissenting opinion is not, in my view, entirely correct itself.

It concludes that mother failed to preserve her contention

that the court erred when it did not determine which parent

was A’s primary caregiver entitled to the statutory primary

caregiver preference under ORS 107.137(1)(e), so does not

address that contention.

706 Johnson and Johnson

My perspective is different. The assigned error

is preserved, at least as much as it has been in the other

child-custody appeals I have seen. The parties in their writ-

ten and oral submissions argued about who qualified as

the primary caregiver entitled to the preference, placing at

issue the question of who was entitled to the preference, and

the court addressed the preference, albeit incorrectly.

That means that we should reverse and remand for

the trial court to reconsider its decision after determining

which parent is the primary caregiver and then account-

ing for the primary caregiver preference when making the

best interest determination under ORS 107.137: “[T]he pri-

mary caregiver is afforded a statutory preference, and that

preference must be properly considered.” Gomez and Gomez,

261 Or App 636, 638, 323 P3d 537 (2014). We have done

exactly that at least three times in matters difficult to dis-

tinguish from this one. Wanting and Wanting, 306 Or App

480, 484-85, 475 P3d 127 (2020) (vacating and remanding

custody decision where trial court did not account for pri-

mary caregiver preference in its custody decision); Gomez,

261 Or App at 638 (reversing and remanding custody deci-

sion for reconsideration where trial court did not determine

which parent was the primary caregiver and, consequently,

did not account for the preference in its decision); Nice v.

Townley, 248 Or App 616, 623, 274 P3d 227 (2012) (vacat-

ing and remanding custody decision based on failure to take

into account primary caregiver preference). I would stay the

course.

TOOKEY, J., dissenting.

The disposition of this case turns on the proper

application of the standard of review set forth in Botofan-

Miller and Miller, 365 Or 504, 446 P3d 1280 (2019), cert den,

___ US ___, 141 S Ct 134 (2020), and on the substantive law

as set forth therein. I respectfully dissent because I believe

that the correct application of that standard of review and

substantive law requires that we affirm the trial court.

In Botofan-Miller, the Supreme Court stressed that

we are to give deference to trial courts: We are to uphold “the

trial court’s findings of facts if there is any evidence in the

Cite as 309 Or App 682 (2021) 707

record to support them,” and we are to accept “reasonable

inferences and reasonable credibility choices that the trial

court could have made.” Id. at 505-06. Further, “if the trial

court failed to articulate its factual findings on a particular

issue, we assume that the trial court decided the facts in a

manner consistent with its ultimate conclusions, as long as

there is evidence in the record, and inferences that reason-

ably may be drawn from that evidence, that would support

its conclusion.” Id. at 506.

Additionally, in Botofan-Miller, the Supreme Court

reiterated what has long been the law in Oregon: “[T]here is

‘no constant or standard quantity of change that will qual-

ify’ as a sufficient basis for a custody modification; rather,

‘the amount of change necessary to justify a modification of

a decree varies with the facts of the individual case.’ ” Id. at

521 (quoting Gonyea v. Gonyea, 232 Or 367, 372, 375 P2d 808

(1962)). That, of course, makes sense: Every child is unique,

and some children are more resilient than others. A change

that is adverse to one child’s welfare might not be adverse

to a different child’s welfare. See id. at 520-21 (“[T]o jus-

tify a change in custody, a change of circumstances must

be material. A material change is one that is adverse to

[the] child’s welfare.” (Internal quotation marks and citation

omitted.)).

This case is, at bottom, about an eight-year-old child

whom the trial court was “very worried” about because,

from the evidence presented, including the child’s own tes-

timony, and from the trial court’s observations of the child

in the courtroom, it was “very, very apparent” to the trial

court that the child was “incurring a substantial amount of

distress.” The trial court was so concerned about the child

that it expressly stated that, regardless of who would have

custody, it would order that the child be evaluated for “men-

tal health concerns” and would require completion of “any

recommended treatment or aftercare.”

Based on the record before it, the trial court found

that there was “some upheaval” in the child’s mother’s home

and that the child was “kind of an afterthought” and was

“not prioritized” by her mother. Among other facts, the

708 Johnson and Johnson

record in this case reflects that since the last custody deter-

mination had been made, the child asserted that she had

been hit with a belt by her mother’s boyfriend and that her

mother’s boyfriend had threatened to hit her with a belt.

Additionally, the record shows that the child had her moth-

er’s boyfriend move into her mother’s house, then out of her

mother’s house, then back into her mother’s house again;

had her mother cancel a dentist appointment and not allow

her father to schedule another one to have three cavities

filled; had her mother keep her home from school when doing

so suited her mother’s needs; had frequently been tardy for

school while in her mother’s care; had her mother not allow

her to do homework; had repeatedly been called a liar by

her mother, including when she alleged that her mother’s

boyfriend had hit her with a belt; and, by her mother’s own

admission to a Department of Human Services caseworker,

had “occasionally” been slapped in the face by her mother for

being rude.

I agree with my colleagues in the majority on a cou-

ple of points: I agree that “on a motion to modify custody,

where two parents disagree about what is best for a child, on

issues about which reasonable minds can disagree, it is not

the court’s role to decide with which parent it agrees.” 309

Or App at 686-87. And I agree that “the task of the court is

not to decide what it believes is the ‘best’ parenting choice.”

Id. at 686 (emphasis in original). But that is simply not what

occurred in this case.

In my view, the record in this case reflects that the

trial court correctly understood what the law required of it

and applied that law to the record before it in a permissible

fashion: It assessed mother’s “ability and inclination to care

for the child in the best possible manner,” id. at 687 (empha-

ses in original), and determined that circumstances relevant

to the capacity of mother to take care of the child properly

had changed in a way that was adverse to the child’s wel-

fare. That is, it determined that the child was being “inju-

riously affected” by mother’s parenting choices. Id. at 687.

I emphasize that our task on appeal is not to second guess

the trial court’s determination when that determination is

supported by the record.

Cite as 309 Or App 682 (2021) 709

In my view, given the record in this case and the

trial court’s ruling, Botofan-Miller requires that we affirm

the trial court.1

I. BACKGROUND

As we have previously recognized, “The inquiry

in child custody cases is fact intensive.” Bradburry and

Bradburry, 237 Or App 179, 181, 238 P3d 431 (2010) (so

recognizing and providing “a detailed history of the par-

ties’ relationship with each other and with their children”).

Because the majority and I take a different view of the rel-

evant evidence and the trial court’s ruling, prior to turn-

ing to what I believe is the proper analysis in this case, I

provide my view of the factual record and the trial court’s

ruling, keeping in mind our standard of review, as set forth

in Botofan-Miller.2

A. General Background

J was born in October 2009. In June 2010, when J

was still an infant, mother was awarded custody of J, and

father was provided with parenting time.

The custody modification hearing in this case

occurred in January 2018, when J was eight years old and in

second grade. At that time, during the school year, J spent

approximately two-thirds of each month living with mother

1

As described further below, the trial court in this case provided a detailed

and thorough ruling. I disagree with the majority that the “approach” taken by

the trial court in its ruling is “problematic for purposes of appellate review.” 309

Or App at 692. In my view, the trial court’s ruling is sufficient for the purposes

of our review and, applying the standard of review set forth in Botofan-Miller, we

are required to affirm the trial court.

2

As noted, the majority and I read the record before us differently. That

is, at least in my view, in part due to different understandings of how to apply

the deferential standard of review set forth in Botofan-Miller. 365 Or at 505-06

(stating the standard of review). I believe that the majority, in its understanding

of the facts and in its analysis, relies too heavily on testimony that the trial

court could have disregarded given the reasonable credibility choices that the

trial court could have made, the express credibility choices that the trial court

did make, and the assumption that the trial court decided the facts in a manner

consistent with its ultimate conclusion.

In this dissent, I do not undertake to highlight every area of disagreement

with the majority. Instead, it largely suffices to recount the record as I believe

we must understand it given the standard of review in Botofan-Miller. I do, how-

ever, note my disagreement where it relates to a few of the more salient points

addressed by the majority.

710 Johnson and Johnson

and mother’s partner, Egle, and spent approximately one-

third of each month living with father and father’s wife.

During the summer break, J alternated between mother’s

home and father’s home, spending half of summer break

with each parent.

B. Egle’s History of Domestic Violence

In July 2015, Egle was involved in a physical

altercation with a former domestic partner, M, in which

M alleged that Egle had strangled her. As a result of that

altercation, Egle pleaded guilty to fourth-degree assault

and entered a diversion program, which included a require-

ment that Egle participate in a batterer’s intervention

program. At the time of the custody modification hearing

in this case, the fourth-degree assault case against Egle

was still pending, and mother was not sure of the status

of Egle’s case, though mother testified during the custody

modification hearing that she believed that Egle had com-

pleted what was required of him to successfully complete

diversion.

Additionally, during the custody modification hear-

ing, mother testified that she did not believe that M was

“truly a victim” of assault and did not believe that Egle

engaged in the conduct to which he pleaded guilty regarding

the assault on M. Mother testified that, instead, she believed

the following version of events:

“[Egle’s] ex-girlfriend [M] showed up [at] his apartment,

unlocked [the door] with her key, so he had locked the door.

[M] invited herself in without notice, came there. They

started arguing. [M] punched [Egle] in the face. And then

[Egle] called 9-1-1. And then [M] ran away. [M] called 9-1-1,

and then the cops got involved. And then [M] said that he

tried to strangle her, which, according to what [Egle’s] told

me, and I believe him, he did not.”

M obtained a restraining order against Egle under

the Family Abuse Protection Act in 2015. The restraining

order against Egle was renewed in 2016 and 2017, and was

in effect at the time of custody modification hearing in this

case. Mother was aware of the restraining order against

Egle.

Cite as 309 Or App 682 (2021) 711

C. Egle’s Relationship with Mother and J, J’s Allegation

that Egle Had Hit J with a Belt, and the Events that

Followed from that Allegation

Egle originally moved into mother’s home with

mother and J in October 2015—only a few months after Egle

had engaged in the conduct that resulted in his pleading

guilty to fourth-degree assault. Egle would, on occasion, get

angry with J when J was “not behaving” or “disrespecting.”

In March 2016, Egle moved out of mother’s home,

because the pending fourth-degree assault case against Egle

would interfere with licensing for a daycare that mother

planned to run in her home. After Egle moved out, mother

opened the daycare.

In March 2017, when J was seven years old, and

while J was in her father’s care, J told her paternal grand-

parents and father’s wife that Egle had hit her with a belt.

Additionally, J reported to her first-grade teacher that Egle

had threatened to hit her with a belt, which prompted her

first-grade teacher to contact the Department of Human

Services.

J also told Sandvigen—who is a child protective ser-

vices caseworker with the Department of Human Services—

father, and a police officer that Egle had hit her with a belt.

Given what J had said concerning Egle, a police offi-

cer and Sandvigen visited mother’s home. J was not present

at the time. And, although mother had not yet spoken with

J about J’s allegation that Egle had hit J with a belt, mother

told the police officer and Sandvigen “this didn’t happen”

and that in her “heart of hearts” she did not think that

Egle hit J with a belt. Mother also told the police officer and

Sandvigen that J can exaggerate and lie. Similarly, mother

sent emails to J’s first-grade teacher, telling the teacher

that J was dishonest, and that J had made the allegation

concerning Egle because J did not want mother to marry

Egle.

After the police officer and Sandvigen visited mother’s

home, mother spoke with J about J’s allegation. Based on

712 Johnson and Johnson

J’s statements to mother, mother determined that, in her

opinion, Egle did not, in fact, hit J with a belt.

Shortly thereafter, Sandvigen again visited mother’s

home, and this time interviewed J. Sandvigen testified in

the custody modification hearing and explained that, during

her interview with J at mother’s home, for which mother

was present, mother called J a liar, demanded that J tell

Sandvigen that she had lied, and directed J regarding “what

to talk about and what to say.” Additionally, Sandvigen tes-

tified that, during the interview, it appeared that J was

scared, that J’s answers had been coached or scripted, and

that J’s answers were not consistent with those of a seven-

year-old. Further, Sandvigen testified that, while interview-

ing J, she became “extremely concerned” for J’s emotional

safety.

Sandvigen also visited J at father’s home.

Sandvigen testified that, in contrast to the visit at mother’s

home, at father’s home, J was “[p]layful, relaxed, communi-

cative, chatty, [and] friendly, like a typical seven-year-old.”

Sandvigen further testified that J was extremely relaxed

and smiling at father’s home and that she was able to speak

with J outside of father’s presence at father’s home.

Ultimately, Sandvigen concluded that J’s allegation

about Egle was unfounded. Sandvigen testified that she

reached that disposition because, to be a founded allegation,

there must be “an injury, mark, or some kind of internal

injury,” and that that was not present on J.

In November 2017, Egle moved back into mother’s

home after mother determined that Egle living with her

would no longer cause licensing issues for the daycare that

mother was running in her home.

During the custody modification hearing, mother

called J to testify. J testified that Egle did not hit her with

a belt and that she had lied. J testified that she told the lie

because her grandma, father, and stepmom “were talking

about * * * how in their childhood they got spanked with the

belt” and J wanted to “join in.”

Additionally, during the hearing, mother testified

that J had told her that she had lied because she had “heard

Cite as 309 Or App 682 (2021) 713

the stories of the belt spanking” and “she just wanted to

chime in.”3

D. Mother and Father’s Disciplining of J

Mother and father have different approaches to

disciplining J. Father does not use physical discipline. In

contrast, mother has historically used spanking as a form

of discipline, and mother admitted to Sandvigen that she

has slapped J in the face “occasionally.” Mother also told

Sandvigen that when she slapped J in the face it caused J to

cry, but “not because it was painful, but because it hurt [J’s]

feelings.” Father testified that mother had said that “she

smacks [J] in the face and spanks her.”

Mother, for her part, testified that the last time she

“swatted” J in the face was two years before, i.e., when J was

a six year old; that the purpose of the “swat” was to get J’s

attention; that the “swat” was not hard enough to leave a

mark; and that she has only twice “swatted” J in the face.

E. J’s Schooling and Education

Mother and father take different approaches to J’s

education. Father thinks that it is important that children

read every day, and when staying with father, J reads every

3

After J alleged that Egle had hit her with a belt, J told her mother that she

wanted to talk to a “counselor.”

The trial court asked the following questions of mother during mother’s tes-

timony with regard J’s request to see a counselor:

“THE COURT: And when you said you—[J] had asked to see a counselor, you

said you set her up with a counselor, you emailed [J’s teacher] and you set her

up with a counselor at school; is that right? As in like the school counselor;

is that right?

“[MOTHER]: Yes.

“THE COURT: Did you ever seek out any mental health therapy for [J] when

she requested it?

“[MOTHER]: That was the only mental—just the school counseling.

“THE COURT: Just the school counselor?

“[MOTHER]: Uh-huh (affirmative).

“THE COURT: How often did she see the school counselor?

“[MOTHER]: To my recollection, maybe three times.”

J’s father had also voiced to J’s mother that he wanted J to get counseling

because of J “getting very angry and not knowing how to deal with her anger.” J’s

mother thought that that was not necessary.

714 Johnson and Johnson

day. In contrast, at mother’s home, there is no requirement

that J read every day.

With regard to homework, J’s first-grade teacher

testified that she is “for” homework, and that when J was

in first grade, she sent homework home, but that mother did

not want J to do the homework, because of the time that it

took and because mother was busy in the evenings.

The first-grade teacher also testified that, at father’s

home, father helps J with homework. The teacher testified

that J cared about completing her homework, that complet-

ing homework was a “value” that J had, and that J wanted

to do her homework.4

In second grade, mother allowed J to do homework,

but did not encourage it. Mother explained that, if J takes

out her homework and says “I love homework[,] let’s do home-

work” that is okay with mother, but, other times, J does not

mention homework and does not do it. Mother also explained

that the school J attends for second grade—which is a dif-

ferent school than J attended in first grade—sent a note to

parents at the beginning of the school year indicating that

homework is optional.

4

During the modification hearing, mother testified that after J started

receiving homework in first grade, mother talked to mother’s friends about that,

and mother’s friends were “surprised” that J’s school or teacher was requiring

homework at J’s young age. Mother further testified that she found some arti-

cles on the internet that “kind of like validated my decision to just opt out of

homework.”

Additionally, during the modification hearing, J’s first-grade teacher was

asked whether there was “an arrangement that you and [mother] reached about

what was appropriate under circumstances for [J’s] homework?” J’s first-grade

teacher explained:

“I’m—you know, for homework, I’m—you know, when a parent says

I don’t want her to do the homework, I—as a teacher, I don’t debate par-

ents on that because that’s eventually their choice if they’re doing home-

work or not. So I agreed like if that’s her policy, then I was fine with that.

But the homework kept going home and [J] wanted to do it. But I think I

was understanding of why she couldn’t do it at night, so I allowed that to

happen.”

J’s first-grade teacher also explained that the homework that she sent home

consisted of a “math sheet,” as well as a “reading log” that parents “have to sign.”

Mother testified that the reading logs “became a cumbersome like thing,” so

mother “talked to the teacher about it, and [the teacher] agreed that I wouldn’t

have to sign it.”

Cite as 309 Or App 682 (2021) 715

Additionally, J’s first-grade teacher testified that

there was a difference in how well-rested J was when J

arrived at school, depending on whether J was staying with

J’s mother or J’s father; specifically, on days J was in moth-

er’s care, J was “tired” at times when she arrived for school.

With regard to school attendance, J was absent

from school more often when she was in mother’s care than

in father’s care. Mother at times kept J home from school

because it was convenient for mother. Mother also took J out

of school early when doing so suited mother’s schedule.

Additionally, J’s teacher testified that J was often

late for school when in mother’s care in first grade and that

being late for school made J feel bad “because [J’s] one to

really care about how she performs in school.”

Mother testified that she was unaware that J was

frequently late for school when J was in first grade, because,

for part of the time that J was in first grade, someone else

took J to school for mother.

J performs well in school overall but gets anxious

regarding some of her schoolwork.

F. Dental and Medical Care

With regard to J’s dental and medical care, father

typically is the parent who arranges for J’s dental care, and

typically is the parent who takes J to the doctor.

As to dental care, in the summer of 2017, mother

cancelled a dental appointment that father had scheduled

for J. Mother told father’s wife that mother had cancelled

the appointment because mother had found a new dentist for

J and was going to make another appointment for J. Mother,

however, although she had been informed that J had cavities,

did not schedule a dentist appointment for J after cancelling

the appointment that father had made. Months later—after

failing to schedule a dental appointment for J—mother told

father that he could schedule a dental appointment for J.

Mother testified that she had not taken J to a “well-

child checkup” since J was two years old, because such visits

were not “mandatory or even encouraged” after two years of age.

716 Johnson and Johnson

G. The Trial Court’s Ruling

After hearing evidence on father’s motion to change

custody, the trial court issued a ruling from the bench, not-

ing its understanding that the “primary goal” of the change

of circumstances rule is to ensure that children have “stable

lives.”5

The trial court found that it was “very, very apparent

* * * through testimony and from interacting [with J] directly”

that J was “incurring a substantial amount of distress.” The

trial court also commented that it was “very worried” about J,

that “my heart aches for this kid,” and that it would require

that J be “evaluated for her mental health concerns and com-

plete any recommended treatment or aftercare.” It further

stated that, in its view, what some witnesses had charac-

terized as J’s “precociousness” actually “has a lot to do with

parentification of a young child,” as well as J’s “need to be

heard and to gain attention; good, bad, or otherwise.”

The trial court expressly determined that the testi-

mony of Sandvigen and J’s first-grade teacher was credible,

and gave Sandvigen’s testimony “great weight,” because of

Sandvigen’s “experience and training in forensic interview-

ing with a child, as well as her experience with Protective

Services work.” The trial court further noted that J’s first-

grade teacher and Sandvigen were the only two witness

that the trial court considered “to have no bias or motive

in testifying,” in contrast to “parents, their family mem-

bers, [and] their significant others” who “always have skin

in the game.” That is, unlike J’s first-grade teacher and

Sandvigen, the other witnesses “wanted[ed] to see a par-

ticular outcome.” The trial court also questioned whether

the witnesses mother called knew about mother’s practice of

“physical corporal discipline”—including slapping J in the

face—and noted it was “not convinced” that the information

mother’s witnesses had was “completely accurate.”

The trial court determined “that there has been a

substantial unanticipated change in circumstances since

the entry of the last custody judgment,” specifically noting,

5

And thus, unlike the majority suggests, the trial court did not understand

its role as being to “decide with which parent it agrees.” 309 Or App at 687.

Cite as 309 Or App 682 (2021) 717

“[w]hen the last custody judgment was entered, [J] was,

* * * less than one * * *. It’s been at least eight years, and

she’s eight now, so it’s been a very, very long time. * * *

“So I find that over the period of time, while it may

have been appropriate to have [mother] be the sole legal

custodian of [J] when she was an infant, * * * there have

been significant changes in circumstances since that time

to today’s date based on all of the facts in the record at

this time with respect to her becoming school age, her par-

ticipation in school, behaviors in the home, concerns about

behaviors in the home, people living in each of her homes,

and of course, most recently, this disclosure about this

alleged incident with a belt occurring with Mr. Egle. And

that all relates to mother’s capacity to remain as a custo-

dial decision maker for the child, and so I find there has

been a substantial change in circumstances * * *.”

The trial court further noted that, although J’s

allegation regarding Egle was closed as unfounded by the

Department of Human Services, “the standard for DHS

removal of a child, or even a safety plan or open assessment,

is much higher than preponderance of evidence in a family

law case,” and explained that “many of the issues that are

going to be dispositive in this case hover around each par-

ent’s dealing with” J’s allegation that Egle had hit her with

a belt.

The trial court then stated:

“I find that [J] made the disclosure [that Egle had hit

her with a belt]. I think that’s clear in the record that she

did it. I’m not particularly convinced that it’s clear in the

record how it came about or why she did it. * * *

“But there is significant evidence in the record to sug-

gest that she did it, she did it for a reason. There was some

upheaval in her home with [mother]. I am not an expert

to evaluate why she might have felt the need to do this,

to either get attention or be heard about something that’s

happening for this child.

“* * * * *

“I have great concerns about what [Sandvigen] reported

about [mother’s] behavior in relation to the disclosure [that

Egle had hit J with a belt]. * * * I find that there is * * * sub-

stantial evidence in the record to suggest that [mother’s]

718 Johnson and Johnson

reaction to this disclosure was not to support and protect

her child and figure out what’s going on for her kiddo, it was

to defend her fiancé, to call her child a liar repeatedly in

this courtroom and out of it. And then proceed to call [J] as

a witness to have [J] recant the story in this courtroom so

that I should believe her when she is recanting, but I should

believe that she’s a liar in all other circumstances, I find

very problematic.”6

The court also noted that, although it was not con-

vinced that J got hit with a belt, it was the fact that she said

that she did, in and of itself, and “what flowed from that

in terms of the parental behavior, coupled with everything

else” that gave rise to its change of custody decision.

With regard to the factors provided in ORS 107.137(1)

for determining the best interests of a minor child regard-

ing custody, the trial court determined that, “based on the

circumstances of this case and the facts deduced” during

the custody modification hearing, father “is the person in a

better position to make decisions for [J’s] wellbeing academ-

ically, medically, and otherwise, so he’s awarded custody.”7

6

The trial court was perhaps critical of mother’s choice to call J as a wit-

ness, given that mother had previously characterized J as a liar. Our Supreme

Court, too, has been critical of the practice of calling children as witnesses during

divorce proceedings. Kreutzer v. Kreutzer, 226 Or 158, 162, 359 P2d 536 (1961)

(“[W]e share the view of the circuit judge that in a case of this kind, young chil-

dren of the parties should not be forced to become witnesses and, perhaps, to

take sides in open court against one or the other of their parents. This practice

has been frowned upon by other courts.”); id. (“ ‘The practice of calling children

of the parties as witnesses in a divorce action has been repeatedly disapproved

by this Court. Counsel, if possible, should refrain from doing so. It is bad from a

social view point though not legally forbidden.’ ” (Quoting Buck v. Buck, 320 Mich

624, 628, 31 NW2d 829, 831 (1948).); see also Gonyea, 232 Or at 374 (“The tragic

nature of divorce is vividly portrayed when young children are drawn into the

proceedings as witnesses to take sides against one or the other of their parents,

both of whom they should dearly love.”).

7

ORS 107.137(1) provides, in relevant part,

“in determining custody of a minor child * * * the court shall give primary

consideration to the best interests and welfare of the child. In determining

the best interests and welfare of the child, the court shall consider the follow-

ing relevant factors:

“(a) The emotional ties between the child and other family members;

“(b) The interest of the parties in and attitude toward the child;

“(c) The desirability of continuing an existing relationship;

“(d) The abuse of one parent by the other;

Cite as 309 Or App 682 (2021) 719

The trial court’s determination regarding J’s best

interests turned “primarily” on its evaluation of ORS

107.137(1)(b), “the interest of the parties in and attitude

toward the child,” and the court weighed that factor in favor

of father, finding that mother “puts a lot of things before [J].”

The trial court first discussed J’s education, stat-

ing that, while many parents in child custody disputes raise

concerns about “homework, attendance and tardies,” and

those concerns are “ticky-tack,” that was not the case with

respect to mother, father, and J.

About homework, the trial court found that mother

had “disregarded the teacher’s request” that J complete her

math homework and reading logs, that J feels badly about

not completing her homework, and that J not completing her

homework was her mother’s choice, not J’s choice. The trial

court found that it was not the case that J was “so awesome

in everything [regarding school work] that she need not do

follow-up and reinforcement work”—i.e., homework—noting

testimony reflecting that J “gets anxious around some of her

schoolwork.”

About J arriving late for school, the trial court

found that mother took “no responsibility at all whatsoever

for the tardies blaming it on everybody else.” The trial court

also found that, “even if” mother did not know that J was

frequently late for school—which, as noted above, was moth-

er’s testimony—mother made “no effort[ ]” to discover that

fact. The trial court viewed it as “incumbent upon a par-

ent to require the information about their child getting to

school, getting there on time, and doing well.” In the trial

court’s view, mother did not undertake that effort. The trial

court also found that the frequency with which J was late

for school was not in J’s best interests, because being late

“(e) The preference for the primary caregiver of the child, if the caregiver

is deemed fit by the court; and

“(f) The willingness and ability of each parent to facilitate and encour-

age a close and continuing relationship between the other parent and the

child. However, the court may not consider such willingness and ability if one

parent shows that the other parent has sexually assaulted or engaged in a

pattern of behavior of abuse against the parent or a child and that a continu-

ing relationship with the other parent will endanger the health or safety of

either parent or the child.”

720 Johnson and Johnson

“affects the child in the classroom in terms of getting in for

the day, settling in for the day, becoming prepared, and feel-

ing confident in their schoolwork moving forward.”

About J’s school attendance overall, the trial court

found that mother’s “choices around where [J’s] time is best

used is in [mother’s] best interest,” which “goes to the issue of

parentification of [J].” The trial court noted that it inferred

that if mother was “sick and keeping the child home,” based

on the facts in this case, “that’s to help [mother] in the home

when she is sick, because everybody else is relied on to get

the child to school. If [mother’s] sick, someone could still get

[J] to school.”

The trial court then turned to J’s allegation about

Egle. The trial court found that mother minimized that

allegation, had repeatedly called J a liar, and “created a

culture of silence and recantation from a child,” which the

trial described as “very concerning.” The trial court also

was concerned by J’s testimony during the modification

hearing denying that Egle had hit her because, as the trial

court viewed it, J “parroted back verbatim two sentences”

that the trial court heard from “adult testimony” concern-

ing the incident—i.e., that J heard people talking about get-

ting spanked with a belt and she wanted to “join in.” The

trial court noted that that was consistent with Sandvigen’s

observations during her interview with J and mother—i.e.,

that J’s answers to questions regarding her allegation that

Egle had hit her appeared “coached” or “scripted.”

Additionally, the trial court found that mother min-

imized the fourth-degree assault charge for which Egle had

pled guilty, which was concerning, as was mother’s failure

to take safety measures regarding Egle’s prior domestic

violence.8

8

The trial court noted its concerns regarding mother’s view of Egle’s alterca-

tion with M and guilty plea as follows:

“You don’t get to walk into [Domestic Violence Deferred Sentencing] and

plead no contest. You’re required to plead guilty. Yeah, I did that thing. I

assaulted that person.

“Nevertheless, [mother’s] testimony is that, no, he didn’t do it. It’s [M’s]

fault. [M] walked in, they had a fight, and it’s all [M’s] fault.

“I heard testimony from Mr. Egle that [M] was his girlfriend, and then

he left [M] for [mother], then he left [mother] for [M], left [M], went back to

Cite as 309 Or App 682 (2021) 721

As to physical “discipline” by mother, the trial court

found that mother’s testimony during trial minimized “what

she purportedly told Ms. Sandvigen about slapping [J] in

the face as a form of discipline.” The trial court noted that

many children get “ruder and more disrespectful” as they

get older, so if mother slapped J in the face when she was

a six-year-old child, and J is “characterized by her mother

as precocious and a liar, * * * a natural inference and a rea-

sonable inference” is that mother would likely slap J in the

face again in the future. The trial court further noted that

it had “great concerns about [mother’s] choice for physical

discipline” as she “admittedly on two separate occasions * * *

slapped [J] in the face when she was talking back rudely.”

With respect to medical and dental care, the trial

court noted that J not receiving well-child check-ups “goes

to interest and attitude toward the child,” and found that

mother’s failure to “allow” father to take J to the dentist

after three cavities were identified was persuasive to the

court with regard to the determination about who should

have custody. It also noted that it thought J was “kind of an

afterthought” to mother and is “not prioritized” by mother.

In making its determination regarding who should

have custody of J, the trial court considered ORS 107.137

(1)(e), the “preference for the primary caregiver of the child.”

The court gave “preference to neither parent based on pri-

mary caregiver status,” reasoning:

“I think that based on where [J] has been living, it could

be construed that [mother] has been her primary caregiver

in terms of a day-to-day feeding her and clothing her and

getting her where she goes three weeks out of the month.

But I find that in terms of the way the law defines primary

caregiver status, I find that both parents are qualified pri-

mary caregivers under the circumstances of the case and

[mother], and now they’re getting married. So clearly there is motive to come

up with your own perspective and did not take any safety measures around

those concerns. That’s concerning to me.”

The majority notes that “Egle maintained his innocence to mother, and

mother believed his version of events over Egle’s ex-girlfriend’s.” 309 Or App at

699. Mother also, apparently, believed Egle’s “version of events” in which Egle was

innocent over the version of events that Egle had admitted to when he pleaded

guilty to fourth-degree assault in court.

722 Johnson and Johnson

I give preference to neither parent based on primary care-

giver status.”

Likewise, the trial court found that the other ORS

107.137(1) factors favored neither parent.9

II. ANALYSIS

A parent seeking to change custody must demon-

strate two things:

“(1) After the original judgment or the last order affect-

ing 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.”

9

Before turning to my analysis of the issues on appeal, I pause to note that

the majority characterizes the trial court’s finding that J was “incurring a sub-

stantial amount of distress” as being merely a comment “in the context of telling

the parties that J loved both of them, was worried about what was happening in

the hearing, and wanted to be sure that both parents were okay,” rather than a

finding related to the trial court’s change-of-circumstances determination. 309

Or App at 703 n 11. And further, in the majority’s view, the record would not

allow a “finding” that J was experiencing a “substantial amount of distress” from

a change of circumstances. Id. The majority also speculates that the trial court

had “no serious concern about J’s * * * emotional safety in mother’s home.” Id. at

703.

I disagree with the majority. To be sure, the trial court noted that J, when

testifying, was concerned about what was transpiring in the courtroom. But the

trial court’s comments concerning J’s distress were broader than that. As noted,

the trial court stated that it was “very worried” about J more generally and

stated “my heart aches for this kid”; it discussed the issues J was dealing with

in terms of “parentification of a young child” and J’s “need to be heard and gain

attention[,] good[,] bad or otherwise”; it ordered that J be evaluated for J’s mental

health concerns; and it stated that it believed J was “kind of an afterthought” to

mother and is “not prioritized” by mother. Additionally, as noted, the trial court

gave “great weight” to Sandvigen’s testimony given Sandvigen’s “experience and

training in forensic interviewing with a child, as well as her experience with

Protective Services work.” That testimony included Sandvigen’s observations of

J when J was in mother’s home and father’s home, and Sandvigen’s worry for J’s

emotional safety when Sandvigen observed J in mother’s home, which is a fact the

majority appears to minimize. Id. at 703 n 11. Further, J had repeatedly alleged

that Egle had hit her with a belt and alleged that Egle had threatened to hit her

with a belt—allegations that, regardless of their veracity, could reasonably raise

concerns regarding J’s emotional health. Finally, father testified as to J “getting

very angry and not knowing how to deal with her anger.” In my view, the “any

evidence” standard is satisfied as to J’s distress.

Cite as 309 Or App 682 (2021) 723

Botofan-Miller, 365 Or at 520 (internal quotation marks and

brackets omitted).

The rationale for requiring that a party seeking to

change custody demonstrate that “circumstances relevant

to the capacity of either the moving party or the legal cus-

todian to take care of the child properly have changed” is

that,

“unless the parent who seeks a change in custody estab-

lishes that the facts that formed the basis for the prior cus-

tody determination have changed materially by the time

of the modification hearing, the prior adjudication is pre-

clusive with respect to the issue of the best interests of the

child under the extant facts.”

State ex rel Johnson v. Bail, 325 Or 392, 398, 938 P2d 209

(1997); see also id. (noting that in Merges v. Merges, 94 Or

246, 253-54, 186 P 36 (1919), the court cited the statute

making judgments conclusive and explained the “defendant

cites many precedents to the effect that this decree, like all

others of a court having competent jurisdiction of the per-

sons and of the subject matter, is final and that it cannot be

overturned or modified unless subsequent conditions justify

such a change”).

“The purposes served by the change-in-circumstances

rule are to avoid repeated litigation over custody and to pro-

vide a stable environment for children.” Johnson, 325 Or at

398 (internal quotation marks omitted). “The inquiry into

whether there has been a change in circumstances since the

time of the previous custody arrangement is a factual one

that relates to the capability of one or both parents to care

for the child.” Id.

With regard to whether “circumstances relevant to

the capacity of either the moving party or the legal custo-

dian to take care of the child properly have changed,” the

Supreme Court has observed that “the child custody stat-

utes do not specify what the concept of a change of circum-

stances means.” Botofan-Miller, 365 Or at 520 (internal quo-

tation marks omitted). The Supreme Court, however, “has

made clear that, to justify a change in custody, a change

of circumstances must be ‘material.’ ” Id. (quoting Johnson,

325 Or at 398). “A material change is one that is adverse to

724 Johnson and Johnson

[the] child’s welfare.” Id. “That is, a new development may be

considered a legally sufficient change in circumstances only

if it is shown that the change has ‘injuriously affected the

child’ or affected the custodial parent’s ‘ability or inclination

to care for the child in the best possible manner.’ ” Id. at

520-21 (quoting Boldt and Boldt, 344 Or 1, 9, 176 P3d 388

(2008)). “Normal developmental changes * * * cannot, in

themselves, provide the basis for a change in circumstances.”

Dillard and Dillard, 179 Or App 24, 32, 39 P3d 230, rev den,

334 Or 491 (2002).

As noted above, the Supreme Court has long made

clear that “there is ‘no constant or standard quantity of

change that will qualify’ as a sufficient basis for a custody

modification; rather, ‘the amount of change necessary to jus-

tify a modification of a decree varies with the facts of the

individual case.’ ” Botofan-Miller, 365 Or at 521 (quoting

Gonyea, 232 Or at 372).

“A child whose circumstances have changed is enti-

tled, when a parent institutes a proper proceeding, to con-

sideration of the child’s best interests.” Johnson, 325 Or at

399.

When analyzing whether it would be in a child’s

best interests to change custody from the legal custodian

to the moving party, ORS 107.137(1) requires the court to

consider the following factors:

“(a) The emotional ties between the child and other

family members;

“(b) The interest of the parties in and attitude toward

the child;

“(c) The desirability of continuing an existing relation-

ship;

“(d) The abuse of one parent by the other;

“(e) The preference for the primary caregiver of the

child, if the caregiver is deemed fit by the court; and

“(f) The willingness and ability of each parent to facil-

itate and encourage a close and continuing relationship

between the other parent and the child.”

Cite as 309 Or App 682 (2021) 725

In her first assignment of error, mother contends

that the trial court erred in its custody determination,

because father had not demonstrated a “substantial change

of circumstances.” In her second assignment of error, mother

contends that, even if father had demonstrated a substantial

change of circumstances, the trial court “erred in its assess-

ment” of the statutory factors provided in ORS 107.137(1) for

determining whether a change of custody from mother to

father was in J’s best interests. I consider each assignment

in turn.

A. The Trial Court’s Change-of-Circumstances Determination

In support of her contention that the trial court

erred in its custody determination because father had

not demonstrated a substantial change of circumstances,

mother argues that many of the “changes” identified by the

trial court—viz., J “becoming school age, [J’s] participation

in school, behaviors in the home, concerns about behaviors

in the home, people living in each of [J’s] homes”—are “noth-

ing more than changes that are related to the passage of

time and [J’s] maturing.” In mother’s view, those are not

“changes to [mother’s] ‘capacity’ to provide proper care,” and

if it were “otherwise, then the ‘change of circumstances’ rule

would be a rule of limited duration, such that the passing of

a few years’ time would automatically trigger the possibility

of reevaluating custody.”

Mother also argues that the trial court’s concerns

regarding “the belt disclosure” are “overstated,” because

“we do not know why [J] made the disclosure.” Therefore,

mother is “unsure whether [the belt disclosure] is cause for

great concern or little concern.” Additionally, mother argues

that mother’s “failure to immediately believe [J’s] false story

and support her in telling the story” did not affect mother’s

“capacity to remain as a custodial decision maker.”

I am not persuaded by mother’s arguments, and I

would conclude that evidence in the record supports the trial

court’s determination that circumstances relevant to the

capacity of mother to take care of J properly had changed in

a way that was adverse to J’s welfare.

726 Johnson and Johnson

In this case, the last order affecting custody was

entered June 2010, when J was still an infant. The custody

modification hearing in this case occurred in January 2018,

when J was an eight-year-old child. Evidence presented in

the trial court and credited by the trial court reflects that

a lot had happened during that time period. Based on the

evidence before it, the trial court determined that, since

June 2010, numerous circumstances had changed related

to, among other things, “behaviors in the home, concerns

about behaviors in the home, [and] people living in each of

[J’s] homes.” I believe that that determination by the trial

court is supported by evidence in the record.

More specifically, since the June 2010 custody order,

Egle moved into mother and J’s home, moved out of mother

and J’s home, then moved back into mother and J’s home;

Egle had previously pleaded guilty to a crime of domestic

violence involving an allegation of strangulation; Egle on

occasion got angry with J; J reported to a teacher that Egle

had threatened to hit her with a belt; and J reported to var-

ious other individuals—including her father, her grandpar-

ents, Sandvigen, and a police officer—that Egle hit J with a

belt.

Further, when J’s allegation that Egle had hit her

with a belt was investigated by Sandvigen, J presented as

“scared” in mother’s home and Sandvigen was “extremely

concerned” for J’s “emotional safety”; J gave “scripted” or

“coached” answers to Sandvigen’s questions; mother called

J a liar and demanded that J tell Sandvigen that she had

lied; and mother directed J regarding “what to talk about

and what to say.” In contrast, according to Sandvigen, J

presented like a “typical seven-year-old” in father’s home

that was “[p]layful, relaxed, communicative, chatty, [and]

friendly.” As noted above, the trial court expressly credited

Sandvigen’s testimony, and, given Sandvigen’s “experience

and training in forensic interviewing with a child, as well

as her experience with Protective Services work” gave that

testimony “great weight.” See Botofan-Miller, 365 Or at 524

(determining that this court erred when it “failed to grapple”

with the custody evaluator’s “foundational conclusion, which

the modification court credited,” that the “mother’s anxious

Cite as 309 Or App 682 (2021) 727

attachment parenting style” was “harmful” to the child, and

led to the child’s late arrivals at school and missed counsel-

ing sessions).

Additionally, regardless of whether Egle actually

did hit J with a belt, evidence in the record supports the

trial court’s finding that mother’s response to J’s allega-

tion that Egle had done so was not to “support and protect

her child and figure out what’s going on for her kiddo,” but

instead to create a “culture of silence and recantation,”

“defend her fiancé,” and “call her child a liar repeatedly.”

Indeed, as noted above, mother told the police “this didn’t

happen” before even discussing the allegation with J, not-

withstanding Egle previously pleading guilty to an incident

of domestic violence and having a restraining order against

him.10

Moreover, evidence in the record reflects that moth-

er’s use of physical discipline in mother’s home included

slapping J in the face, conduct that the trial court, in the

context of this case, with regard to the circumstances expe-

rienced by this child, expressed “great concerns” regarding;

that mother minimized the fourth-degree assault charge to

which Egle had pled guilty, viewing him as innocent and the

victim of the assault as not “truly a victim,” notwithstanding

10

The majority faults the trial court for describing mother as having created

a “culture of silence and recantation” in response to J’s allegation that Egle had

hit her with a belt. 309 Or App at 702. The majority posits that, contrary to the

trial court’s description, “the only evidence is that mother insisted that J talk,

not be silent, and wanted J to recant a lie, not the truth.” Id.

In my view, evidence supports the trial court’s characterization of the “cul-

ture” created by mother in response to J’s allegation that Egle had hit J with

a belt: (1) Sandvigen—who, as noted, the trial court expressly credited—testi-

fied that J’s answers to Sandvigen’s questions appeared “coached” or “scripted,”

that J’s answers were not consistent with those of a seven-year-old, that mother

directed J about “what to talk about and what to say” when Sandvigen was

talking to J, and that mother called J a liar and demanded that J tell Sandvigen

that J had lied; (2) the trial court observed that J, during her testimony, “par-

roted back verbatim two sentences that [the trial court] heard from adult tes-

timony,” which was “consistent” with Sandvigen’s “experience with [J]”; (3) as

noted, mother’s immediate reaction upon learning about J’s allegation that Egle

(who had a history of domestic violence) had hit J with a belt was to tell a police

officer and Sandvigen “this didn’t happen”; and (4) mother had previously chosen

to believe Egle’s denial that he had engaged in conduct constituting domestic

violence over the victim of such violence and over Egle’s own admission in court

that he had engaged in such violence.

728 Johnson and Johnson

Egle’s guilty plea; and that mother failed to take “safety

measures” regarding Egle’s prior domestic violence.11

That evidence supports the trial court’s finding that

J was “incurring a substantial amount of distress” in mother’s

home.

As should be evident from the foregoing, the change

of circumstances regarding, as the trial court phrased it,

“behaviors in the home, concerns about behaviors in the

home, [and] people living in each of [J’s] homes,” are not

merely “related to the passage of time and [J’s] maturing,”

as mother contends. That is, Egle’s entry into J’s home life

and mother’s approach to J’s well-being resulted in upheaval,

concerns for J’s emotional safety, and a substantial amount

of distress. Those are not normal developmental changes. To

the contrary, those circumstances evince a material change

that constitutes a deterioration in mother’s overall ability to

parent J that occurred after the June 2010 custody order,

supporting the trial court’s determination that a change of

circumstances had occurred.

Mother’s decisions and parenting choices concern-

ing J’s schooling also provide support the trial court’s deter-

mination that mother’s capacity to take care of J properly

11

About physical discipline, the majority observes that “there was no evi-

dence that mother had ever used unlawful physical discipline or injured J in any

way,” that father “failed to prove” that Egle was “abusive,” and that “reasonable

parents can disagree about the occasional use of physical discipline.” 309 Or App

at 698.

That is all well and good, but it is also only minimally relevant given the trial

court’s ruling. This is not a dependency case, and the question on appeal is not

whether J was the victim of abuse or whether it is illegal to physically discipline

children in Oregon.

As noted in Botofan-Miller, and as explained in this dissent, the trial court

was to consider whether:

“(1) After the original judgment or the last order affecting custody, circum-

stances relevant to the capacity of either the moving party or the legal custo-

dian 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 custo-

dian to the moving party.”

365 Or at 520 (internal quotation marks and brackets omitted). In my view, it

properly did so in making its ruling, and, given the evidence, it permissibly con-

sidered the type of physical “discipline” used by mother and mother’s minimiza-

tion of what she disclosed to Sandvigen regarding that physical “discipline.”

Cite as 309 Or App 682 (2021) 729

had changed, and had changed in a way that was adverse to

J’s welfare. The trial court determined that, since the June

2010 custody order, circumstances had changed related to J

becoming “school age” and J’s “participation in school.” We

understand the trial court’s reference to changes related to

J becoming “school age” and J’s “participation in school” to

refer to mother’s approach to J’s education now that J is of

school age.

Since the June 2010 custody order, J became old

enough to attend school and, as detailed above, mother did

not ensure on a regular basis that J attended school on

time, well-rested, and having completed her homework, and

J missed school when doing so was convenient for mother.

That J did not complete her homework when staying with

mother was not J’s choice; it was mother’s choice. Mother’s

“choices around where [J’s] time is best used is in [mother’s]

best interest,” as opposed to J’s, which the trial court found

to be problematic, as it “goes to the issue of parentification of

[J].”

Although the trial court observed that, in some

cases, a parent’s complaints about the other parent with

regard to “homework, attendance and tardies” are “ticky-

tack,” the trial court expressly found that not to be the case

here. The trial court’s finding on that point is supported by

evidence in the record: As discussed, the trial court cred-

ited the testimony of J’s first-grade teacher, which included

that teacher’s assessment that mother’s approach to J’s edu-

cation made J feel bad because J “really care[s] about how

she performs in school” and completing homework was a

“value” that J had. And although J typically performed well

in school, the record supports the trial court’s finding that J

was anxious about her school work and that it was not the

case that J was “so awesome in everything that she need

not do follow-up and reinforcement work,” which required

the attention of mother. Botofan-Miller, 365 Or at 505

(“[W]e will uphold the trial court’s findings of facts if there

is any evidence in the record to support them.”).

On its own, mother’s approach to J’s education might

not be of such a nature or magnitude as to support a change

of circumstances sufficient to justify a change of custody.

730 Johnson and Johnson

See Colson and Peil, 183 Or App 12, 23-24, 51 P3d 607 (2002)

(noting although son’s “poor school attendance poses a con-

cern, it is not of such a nature or magnitude as to constitute

a change of circumstances sufficient to justify a change of

custody,” where, among other facts, son was “distraught over

the dissolution of his parents’ marriage,” and mother “acted

compassionately, if indulgently, in allowing” son’s numerous

absences). In this case, however, mother’s approach to J’s

education was part of a course of conduct of mother putting

“a lot of things” before J, and that course of conduct has had

a discernable adverse effect upon J. As noted above, the trial

court found that J was “incurring a substantial amount of

distress.” See Buxton v. Storm, 236 Or App 578, 592, 238 P3d

30 (2010), rev den, 349 Or 654 (2011) (“Where the claimed

change of circumstances involves events of inadequate care

and supervision, they must be of such a nature or num-

ber reflecting a course of conduct or pattern that has had

or threatens to have a discernible adverse effect upon the

child.” (Internal quotation marks and brackets omitted.)).

In sum, I would conclude that evidence in the record

supports the trial court’s determination that circumstances

relevant to the capacity of mother to take care of J prop-

erly had changed in a way that was adverse to J’s welfare.

Although I do not believe that any one fact found by the trial

court would necessarily reflect a material change constitut-

ing a deterioration in mother’s overall ability to parent J,

and would not make a determination that a child’s distress

related to school, standing alone, would necessarily reflect

a change that is adverse to a child’s welfare, in this case,

in light of our standard of review as set forth in Botofan-

Miller and the express credibility determinations made by

the trial court, I believe that we are required to affirm the

trial court’s change-of-circumstances determination.

B. The Trial Court’s Best-Interests Determination

As noted above, in her second assignment of error,

mother contends that, even if father had demonstrated a

substantial change of circumstances, the trial court “erred

in its assessment” of the statutory factors provided in ORS

107.137(1) for determining whether a change of custody

from mother to father was in J’s best interests. Specifically,

Cite as 309 Or App 682 (2021) 731

mother argues that “the trial court failed to properly con-

sider the ‘preference’ that is given to the child’s ‘primary

caregiver.’ ”

As indicated above, in this case, the trial court gave

“preference to neither parent based on primary caregiver

status,” reasoning:

“I think that based on where [J] has been living, it could

be construed that [mother] has been her primary caregiver

in terms of a day-to-day feeding her and clothing her and

getting her where she goes three weeks out of the month.

But I find that in terms of the way the law defines primary

caregiver status, I find that both parents are qualified pri-

mary caregivers under the circumstances of the case and

I give preference to neither parent based on primary care-

giver status.”

In mother’s view, that determination was errone-

ous, because

“[J] spent nearly all of her time with mother in her first

three years of life; subsequently, and until the time of trial,

[J] spent the first week of each month with father and the

balance of the school year with mother. No matter how one

looks at the evidence, it is mother who, for the entirety of

[J]’s life, has provided her with the majority of her care and

her interactions with a parent.”

We have previously observed, “generally, the pri-

mary caregiver is the party who has provided more care for

the child and with whom the child has lived a majority of his

or her recent life.” Gomez and Gomez, 261 Or App 636, 638,

323 P3d 537 (2014) (brackets and internal quotation marks

omitted). In Nice v. Townley, 248 Or App 616, 274 P3d 227

(2012), we explained:

“Which party is the primary caregiver may be deter-

mined by considering which party has nurtured the child

and has taken care of the child’s basic needs, for example

by feeding the child, nursing the child when he or she is

sick, scheduling daycare and doctor’s appointments, and

spending time disciplining, counseling, and interacting

with the child.”

Id. at 622.

732 Johnson and Johnson

Here, I would conclude the trial court did not abuse

its discretion when it did not weigh the preference given to

the child’s primary caregiver in mother’s favor. Evidence in

the record allowed the trial court to determine that it was

father who primarily “nurtured” J and took care of J’s “basic

needs.” The trial court’s findings reflect that it viewed father

as more encouraging than mother with respect to J’s educa-

tion, i.e., ensuring she arrived at school on time, well rested,

having completed her homework, and requiring that J read

daily when she was staying with him. In contrast, the trial

court found that mother disregarded J’s teacher’s request

that homework and reading logs be completed and failed to

take any responsibility for J’s tardies. Additionally, father

was the parent who primarily provided for J’s dental and

medical care, whereas the trial court found J was “kind of

an afterthought” and “not prioritized” by mother. Indeed,

the trial court specifically noted and found “persuasive” the

instance where mother did not “allow” J to be “taken to the

dentist” after it was discovered that J had three cavities in

her permanent teeth, concluding that that was not in J’s

“best interest.” Moreover, the trial court expressed “great

concerns” regarding about mother’s “choice for physical

discipline” given that she had “admittedly on two separate

occasions * * * slapped [J] in the face when she was talking

back rudely.” Further, we observe that, although J spent

more time with mother than father, throughout much of

her life, J spent a significant amount of time with father as

well.12

12

I note that mother did not preserve an argument that, as a legal matter,

under ORS 107.137(1)(e), a child can only have one “primary caregiver.” Mother’s

argument that she was the “primary caregiver” was not sufficient to present that

legal issue to the trial court. State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000)

(“[A] party must provide the trial court with an explanation of his or her objection

that is specific enough to ensure that the court can identify its alleged error with

enough clarity to permit it to consider and correct the error immediately, if cor-

rection is warranted.”); see also State v. Martinez, 275 Or App 451, 459, 364 P3d

743 (2015), rev den, 358 Or 611 (2016) (“Ultimately, the focus of our preservation

inquiry is on whether a party has given opponents and the trial court enough

information to be able to understand the contention and to fairly respond to it.”).

In Kirkpatrick and Kirkpatrick, 248 Or App 539, 550-54, 273 P3d 361 (2012),

we declined to address the mother’s unpreserved argument that the trial court

erred when it determined that “both parents had served in the role of primary

caregiver throughout the[ ] children’s lives at different times” because, (1) “had

mother objected to the trial court’s assertion that father had been the children’s

primary caregiver * * *, the court would have had an opportunity to explain what

Cite as 309 Or App 682 (2021) 733

III. CONCLUSION

In sum, I would conclude that the trial court did not

err when it determined that circumstances relevant to the

capacity of mother to take care of J properly had changed in

a way that was adverse to J’s welfare. I would also conclude

the trial court did not abuse its discretion when it deter-

mined that it would be in J’s best interests to change cus-

tody from mother to father.

In light of the foregoing, I respectfully dissent.

Egan, C. J., Armstrong, DeVore, and Shorr, JJ., join

in this dissent.

it meant by that statement, which could have obviated the need for this court to

address the issue on appeal” and (2) the “primary-caregiver factor did not weigh

heavily in the trial court’s analysis of the best interests of the children.”

The same is true here. Had mother objected to the trial court’s assertion that

“both parents are qualified primary caregivers under the circumstances of the

case” the trial court would have had an opportunity to explain what it meant

by that statement, which could have obviated the need for this court to address

the issue. Further, it is evident that the trial court’s primary-caregiver deter-

mination did not weigh heavily in the trial court’s analysis. Instead, the trial

court’s determination regarding J’s best interests turned “primarily” on ORS

107.137(1)(b)—i.e., the “interest of the parties in and attitude toward the child.”

Accordingly, if this were the majority opinion, with regard to mother’s second

assignment of error, I would not exercise discretion to address whether the trial

court erred in determining that, for purposes of ORS 107.137(1)(e), both parents

were “qualified primary caregivers.”