In re the Marriage of Frey , 71 Or. App. 315 ( 1984 )

VAN HOOMISSEN, J.

Father appeals the trial court’s custody award and property division. We affirm.

Father first contends that the trial judge awarded custody to mother solely because she is the mother. The judge stated, in relevant part:

“We are told as trial judges that we are not to emphasize any one of the factors that go into the custody decision over the others, and by mentioning any I don’t want to create a misimpression that the Court has overlooked the others, but one thing that we should not lose sight of is that we’re talking about a year-and-a-half old child, a baby, and having raised three I certainly commend the father for his willingness to, as counsel has said, assume the mother role, but assuming the mother role doesn’t make you a mother, and in this Court’s view with a baby that’s a year and a half old, where the ability to care for the child is otherwise equal, and I think the evidence here is that that is the situation, the preference goes to the mother.”

ORS 107.137(3) provides:

“No preference in custody shall be given to the mother over the father for the sole reason that she is the mother.”

The purpose of this statute is to require that custody decisions be made on the evidence in each case without regard to traditional views of proper parental roles. If the trial judge had awarded custody to mother solely because she is the mother, that clearly would have been error. However, we do not read the entire record that narrowly, and we do not find that the judge awarded custody to mother solely because she is the mother. The judge specifically stated that he had considered all the relevant criteria, see ORS 107.137; Tingen v. Tingen, 251 Or 458, 446 P2d 185 (1968), and that the best interests of the child would be served by awarding custody to mother.

Notwithstanding the trial judge’s quoted comment, on de novo review we find no basis for disturbing his custody award. The parties separated before their child was born. They had joint custody from the time of his birth until the trial. The trial judge found that they had provided roughly equal care for their child and that neither parent was the primary caretaker. Both are fit and proper persons to have custody; neither is clearly preferable to the other. On that record, we defer to the trial court’s conclusion. See McFadden v. McFadden, 206 Or 253, 257, 292 P2d 795 (1956).

We find no reason to disturb the property division.

Affirmed. Costs to neither party.