FILED: April 20, 2005
IN THE COURT OF APPEALS OF THE STATE OF OREGON
In the Matter of the Marriage of
ERIC MICHAEL WILSON,
Respondent,
and
MONIQUE ALWIEN QUADE WILSON,
Appellant.
________________________________________
MONIQUE ALWIEN WILSON,
Petitioner,
v.
ERIC MICHAEL WILSON,
Respondent.
9908-67658, 0004-63675; A113524
On remand from the Oregon Supreme Court, Wilson and Wilson, 337 Or 327, 99
P3d 290 (2004).
Appeal from Circuit Court, Multnomah County.
Keith Meisenheimer, Judge.
Submitted on remand October 20, 2004.
Mark Kramer and Kramer & Associates for appellant.
George W. Kelly for respondent.
Before Landau, Presiding Judge, and Brewer, Chief Judge, and Schuman, Judge.
SCHUMAN, J.
Award of custody reversed and remanded; attorney fee award vacated and remanded; otherwise affirmed.
SCHUMAN, J.
After we decided this third-party custody dispute in favor of mother,
Wilson
and Wilson, 184 Or App 212, 55 P3d 1106 (2002), stepfather petitioned for Supreme
Court review. While the petition was pending, the court decided
O'Donnell-Lamont and
Lamont, 337 Or 86, 91 P3d 721 (2004),
cert den, ___ US ___, 125 S Ct 867, 160 L Ed 2d
770 (2005), explaining how the United States Supreme Court's decision in
Troxel v.
Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000), affects parental rights in
Oregon. The court then allowed review in this case, vacated our decision, and remanded
for reconsideration in light of
O'Donnell-Lamont. Wilson and Wilson, 337 Or 327, 99
P3d 290 (2004). On reconsideration, we again reverse and remand.
In our first opinion in this case, we summarized the factual and legal
background as follows:
"Husband and wife were married in September 1992. At that time,
wife already had a 22-month-old daughter, C, from an earlier relationship.
From the first days of their relationship, husband and wife have been more
or less equally involved in nurturing and caring for C. Although husband
never adopted C, he is the only father figure she has known; her natural
father does not maintain any contact with either C or wife. C uses
husband's last name and learned that he was not her biological father only
after husband and wife separated. * * * Another daughter, E, was born to
the parties in July 1995. * * *
"Each party acknowledges that the other has a strong and loving
bond with the children. Those acknowledgments are remarkable, because
shortly after E's birth in 1995, wife took a job working nights and weekends
as a 9-1-1 operator, a situation to which husband reacted with resentment
and jealousy, and the marriage became increasingly tense, so that by the
time of the separation and litigation, the parties were locked in a
relationship characterized by vitriolic noncooperation, mutual threats, and
low-level violence. In three days of trial testimony and in extensive written
submissions, each party attempted to draw a convincingly repugnant portrait
of the other, complete with mutual accusations of assault, false reports to
law enforcement authorities, psychological mistreatment of the children,
inability to subordinate selfish interests to the children's welfare, new
relationships with unsavory partners, and other misdeeds, detailed recital of
which would not serve the bar or bench and would affirmatively disserve
the parties and the children.
"The trial court found that neither of the parties is the monster
depicted by the other. The court found, rather, that 'other than their conflict
with each other,' each is 'nurturing, attentive,' with 'adequate parenting
skills.' That finding echoes the court-appointed custody evaluator's, and, on
de novo review of the extensive record, we agree. The parties are both
devoted parents who, trapped in the emotional vortex of a dramatically
failing relationship, on a few occasions acted very badly to each other and
to the children.
"We also agree with the trial court and the custody evaluator that,
under the pure 'best interest of the child' standard applied in both child and
stepchild custody cases at the time of this dissolution, husband prevails,
albeit barely. The court made careful and detailed application of the 'best
interest' factors in ORS 107.137(1)(a) to (f). In summary, it found that the
children had closer emotional ties with husband's family than wife's; that
husband had a 'slight edge' over wife with respect to the parties' attitude
toward and interest in the children; that husband was 'in a better position
and more inclined to continue and foster' relationships with other family
members; that, although 'there's been a history here of mutual and extreme
anger which has been borderline in terms of violence,' husband, unlike wife,
'has grown and learned how to deal with his anger'; that husband was the
primary caretaker, once again by only a 'slight edge'; and that, with respect
to each spouse's willingness and ability to foster a relationship between the
children and the other spouse, a 'mixed picture' emerges with another slight
advantage to husband.
"Based on those findings, the trial court awarded custody to husband.
But because the trial court regarded the 'best interest' inquiry to be close, it
ordered a visitation schedule approaching joint custody. Wife received
parenting time Monday afternoon to Thursday morning during the school
year and Mothers' Day; half of summer vacations; and alternate Christmas
vacations, spring breaks, children's birthdays, and Thanksgivings."
Wilson, 184 Or App at 214-16.
We agreed with the trial court that, under the "best interest of the child"
standard prevailing at the time of trial, husband had a slight advantage over wife for
purposes of custody. However, we reversed and remanded on the basis of
Troxel, where
a majority of the United States Supreme Court agreed that legal parents (1) have a
fundamental right under the Due Process Clause of the Fourteenth Amendment to the
care, custody, and control of their children and that they cannot be deprived of that right
under a mere "best interest of the child" standard.
Wilson, 184 Or App at 217 (citing
Troxel, 530 US at 66). Instead of the pure "best interest" test, we applied a standard
derived from the 1997 version of ORS 109.119 as interpreted, after
Troxel, in
Harrington
v. Daum, 172 Or App 188, 18 P3d 456 (2001).
Wilson, 184 Or App at 218-19. That
standard required us to give "significant weight" to the interest of fit biological parents
because "a fit biological parent will presumptively prevail over a nonparent unless the
nonparent presents compelling reasons to overcome that presumption, for example by
showing that a ruling in favor of the biological parent will harm the child."
Id. at 219.
Under that standard, we held that father did not successfully rebut the presumption.
Id. at
222.
We then turned to E, the biological child of both husband and wife, and
applied a pure "best interest of the child" analysis according to ORS 107.137, the statute
governing the rights of legal parents
vis-a-vis each other. Because "[t]he emotional ties
between the child and other family members" and "[t]he desirability of continuing an
existing relationship" are both statutory factors in that analysis, ORS 107.137(1)(a), (c);
because the "differences between [the parties' parenting] capabilities are minor"; and
because wife was entitled to custody of C, we determined that it was also in E's best
interest to be in wife's custody.
Id. at 222-23. Recognizing that husband and wife were
both capable parents, we instructed the trial court to order a parenting time schedule that
essentially divided the children's time equally between them.
Id. Subsequently, as noted
above, father successfully petitioned for review by the Supreme Court; the case was
remanded to us for reconsideration in light of
O'Donnell-Lamont.
That case dictates a standard different from the one we used in
Wilson.
Initially, it holds that the 2001 version of ORS 109.119, not the 1997 version,
governs. (2)
O'Donnell-Lamont, 337 Or at 102. That statute provides, in part:
"(1) Any person, including but not limited to a related or nonrelated
foster parent, stepparent, grandparent or relative by blood or marriage, who
has established emotional ties creating a child-parent relationship * * * with
a child may petition or file a motion for intervention with the court having
jurisdiction over the custody * * * of that child, or if no such proceedings
are pending, may petition the court * * * for an order providing for relief
under subsection (3) of this section.
"(2)(a) In any proceeding under this section, there is a presumption
that the legal parent acts in the best interest of the child.
"* * * * *
"(3)(a) If the court determines that a child-parent relationship exists
and if the court determines that the presumption described in subsection
(2)(a) of this section has been rebutted by a preponderance of the evidence,
the court shall grant custody * * * to the person having the child-parent
relationship, if to do so is in the best interest of the child. * * *
"(4)(a) * * *
"(b) In deciding whether the presumption described in subsection
(2)(a) of this section has been rebutted and whether to award custody,
guardianship or other rights over the objection of the legal parent, the court
may consider factors including, but not limited to, the following, which may
be shown by the evidence:
"(A) The legal parent is unwilling or unable to care adequately for
the child;
"(B) The petitioner or intervenor is or recently has been the child's
primary caretaker;
"(C) Circumstances detrimental to the child exist if relief is denied;
"(D) The legal parent has fostered, encouraged or consented to the
relationship between the child and the petitioner or intervenor; or
"(E) The legal parent has unreasonably denied or limited contact
between the child and the petitioner or intervenor.
"* * * * *
"(8) As used in this section:
"* * * * *
"(b) 'Circumstances detrimental to the child' includes but is not
limited to circumstances that may cause psychological, emotional or
physical harm to a child."
The statute "establishes a clear roadmap" for deciding third-party custody cases.
O'Donnell-Lamont, 337 Or at 103. The first step is to determine whether the nonparent
has established a child-parent relationship with the child whose custody is the object of
the dispute.
Id. If so, the second step is to determine whether the nonparent has, by a
preponderance of the evidence, rebutted the presumption in favor of the legal parent; in
making that determination, the court "may consider" the rebuttal factors in ORS
109.119(4)(b), weighing them not mathematically but on a case-by-case basis as
appropriate.
ODonnell-
Lamont, 337 Or at 104, 109. The nonparent may overcome the
presumption without showing that the legal parent will harm the child or is unable to care
for the child.
Id. at 107. The third step occurs only if the nonparent successfully rebuts
the presumption; in that case, he or she will obtain custody but only if that is in the best
interests of the child.
Id.
Before applying the new standard to the facts in this case, we address two
preliminary questions. First, father urges us to remand for further development of the
record because of the passage of four years since trial and because that trial occurred
before
Troxel,
O'Donnell-Lamont, and the enactment of the new statute. We conclude
that remand is not necessary in this case. It is true that much time has elapsed since the
trial. Appellate courts, however, necessarily adjudicate disputes that are artificially
frozen in time and any attempt to defeat that anachronism would produce an endlessly
recursive process. As for the change in the law, although such developments might
warrant remand in some cases, we conclude that they do not in this one because the
statutory amendments--at least the ones that are pertinent to this case--are not appreciably
different from the relevant statutory factors that applied at trial.
Second, the parties disagree about which child's custody we should decide
first. That is an issue because keeping bonded siblings together is a "rebuttal factor" that
we consider in deciding the custody of stepchildren,
Austin and Austin, 185 Or App 720,
728, 62 P3d 413 (2003),
rev den, 337 Or 327 (2004), and also one of the statutory factors
that we consider in deciding the custody of biological or adoptive children, ORS
107.137(a), (c). Thus, if we were to decide E's custody first, using, as we must, the "best
interest" standard in ORS 107.137, we would conclude (as did the trial court) that father
has the more compelling case, albeit by a small margin.
Wilson, 184 Or App at 215. That
conclusion, in turn, would factor into C's custody determination by adding weight to
father's side of the calculus. On the other hand, if we were to decide C's custody first
under ORS 109.119, we might conclude that father's attempt to rebut the presumption in
favor of mother fails, and that conclusion would factor into E's custody determination by
adding weight to mother's side of the calculus under ORS 107.137. In a close case such
as this one, the order in which we take up the two children could determine the ultimate
placement of both.
The solution to the problem stems from the fact that, in this case, only one
interest of recognized constitutional magnitude exists: mother's interest in C. Although
mother and father both have fundamental rights to the care, custody, and control of their
biological children
as against third parties, neither has such an interest against the other;
the right arises only when the state would give force to the wishes of a nonparent. Thus,
deciding the case in such a way as to allow father's statutory interest in custody of E to
diminish mother's constitutional right to custody of C would be to elevate the subordinate
over the dominant.
See Marbury v. Madison, 5 US (Cranch) 137, 177, 2 L Ed 60 (1803) ("Certainly all those who have framed written constitutions contemplate them as forming
the fundamental and paramount law of the nation * * *.").
We turn, then, to the question of C's custody. Mother agrees that father and
C have "established the emotional ties creating a child-parent relationship," ORS
109.119(1), so we begin with the rebuttal factors, ORS 109.119(4)(b), repeated here for
convenience:
"(A) The legal parent is unwilling or unable to care adequately for
the child;
"(B) The petitioner or intervenor is or recently has been the child's
primary caretaker;
"(C) Circumstances detrimental to the child exist if relief is denied;
"(D) The legal parent has fostered, encouraged or consented to the
relationship between the child and the petitioner or intervenor; or
"(E) The legal parent has unreasonably denied or limited contact
between the child and the petitioner or intervenor."
Subparagraph (A) presents little difficulty. As noted above, husband does
not argue that wife is unable or unwilling to adequately care for C. Although a finding on
this factor that was adverse to wife would be fatal to her position,
O'Donnell-Lamont, 337
Or at 110, the positive finding does not have an equally powerful effect; it merely keeps
her from elimination at the outset.
Regarding subparagraph (B), the trial court found, and we agree, that
husband was the primary caretaker of the children by a "slight edge." But, as the trial
court explained, "in this case, [the preference for the primary caregiver] is not of great
significance because * * * for the last year [husband and wife] shared custody, and prior
to that, there's a lot of evidence of both parents' involvement." We agree with the trial
court that this factor, in this case, does not carry significant weight.
Subparagraph (C) requires us to determine whether circumstances that pose
a serious present risk of psychological, emotional, or physical harm threaten C if father
does not prevail. 337 Or at 112. Of course, in applying this factor, we must discount any
risk C might incur if father does not prevail by the risk she might incur if he does. Under
that standard, we conclude that no such risk exists. We agree with the trial court that both
parents are nurturing and attentive and have adequate parenting skills. It is true, as father
alleges, that mother moved three times in a relatively short period before trial and
changed the children's school once. According to the court-appointed therapist, that
conduct did not "demonstrate good insight into the children's stability needs." Failure to
show good insight, however, is not the same as posing a serious risk of psychological
harm, and even if it were, the conduct of father and his associates has been equally as
deleterious.
Subparagraph (D) is readily dealt with; wife does not dispute that she
"fostered, encouraged or consented to the relationship between the child and [husband]."
However, we give this factor little weight because, under the circumstances of this case,
the fact that mother consented to the relationship "does not indicate in any way that [s]he
does not act in the best interests of the children." 337 Or at 116.
Regarding subparagraph (E), husband argues that wife "unreasonably
denied or limited contact" between him and C when, on April 6, 2000, she obtained a
restraining order against him under the Family Abuse Prevention Act. On the restraining
order form in the section labeled "parenting time," mother checked the box that said "NO
PARENTING TIME" and filled in the following reason: "Alleged physical abuse
yesterday by respondent's girlfriend who resides in the home with respondent. No
parenting time until child abuse team conducts interviews, hopefully by Monday April 10,
2000." On the same page, mother wrote, "After child abuse team conducts their
interviews with the children, respondent may have them every other Weds night,
alternating with Thurs. am's thru Sunday night. 9 pm in the evenings, 8:30 am on Thurs
am's." The result was that husband did not see the children for one month. Given that
mother was concerned for the safety of the children and wanted to end visits only until the
situation was investigated, which she hoped would be within a matter of days, we do not
find her behavior unreasonable.
In sum, we reach the same conclusion regarding C under ORS 109.119
(2001) as construed in
O'Donnell-Lamont that we reached in our first opinion in this case
under the earlier version of the statute as construed in
Harrington. Both parties are
willing and able to provide adequate parenting. Husband, however, has not overcome, by
a preponderance of the evidence, the presumption that wife "acts in the best interest of the
child."
O'Donnell-Lamont, 337 Or at 108. For the same reasons that we articulated in
our first opinion, we also conclude that it is in the best interest of E to be in wife's
custody. Also for the reasons articulated in that opinion, we vacate the award of attorney
fees to father and remand for reconsideration in light of this opinion.
Award of custody reversed and remanded; attorney fee award vacated and
remanded; otherwise affirmed.
1.
We use the term "legal parent" to include biological parents and adoptive parents.
See ORS 109.119(10)(d); ORS 419A.004(16). Troxel involved a dispute between a biological
parent and grandparents and made no explicit distinction between biological parents, adoptive
parents, and stepparents; the lead opinion uses the general term "parent." Oregon law, however,
distinguishes between, on the one hand, "natural" parents and "adoptive" parents (whom we call
"legal" parents), who are treated the same, ORS 109.041; ORS 109.050, and, on the other hand,
foster parents, stepparents, and other nonparents. ORS 109.119(1). We presume that Troxel's
distinction between parents and nonparents matches Oregon's statutory distinction so as to confer
on legal parents the fundamental right that nonparents lack.
Return to previous location.
2.
ORS 109.119 was amended in 2003, but the amendments do not affect our
analysis.
Return to previous location.
