DocketNumber： 04C33678; A148643
Citation Numbers： 258 Or. App. 464, 309 P.3d 1133
Judges： Armstrong, Duncan, Egan, Hadlock, Haselton, Nakamoto, Ortega, Schuman, Sercombe, Wollheim
Filed Date： 9/11/2013
Status： Precedential
Modified Date： 7/24/2022
Mother appeals a judgment denying her motion to modify custody, parenting time, and child support for her daughter. Mother contends that the trial court erred under ORS 107.135, ORS 109.119, and the federal constitution when it refused to modify a 2005 marital dissolution judgment that awarded sole legal and physical custody of daughter to grandmother. In the alternative, mother contends that the trial court erred when it refused to modify the parenting plan for daughter and to adjust the child-support obligations of the parties. We conclude that the trial court did not err when it refused to modify custody, but we are unable to determine whether the trial court abused its discretion by refusing to modify the parenting plan or child support. Accordingly, we affirm the court’s custody decision but remand for the court to reconsider its decision on the parenting plan and child support.
Most of the relevant facts are undisputed.
In December 2004, just after daughter’s first birthday, mother moved to Virginia to be closer to mother’s family. The day before mother left, grandmother arranged to meet with mother and father in order for them to sign documents providing for the dissolution of mother’s and father’s marriage and establishing custody of daughter. The parties met briefly, and mother and father signed a marital settlement agreement and a stipulated general judgment dissolving
“Husband and Wife acknowledge that [Grandmother] has been the primary custodian of [daughter] since [daughter’s] birth in 2003. Through this agreement, it is the intention of the parties to formalize Grandmother’s custody, and provide for both Husband and Wife to pay child support to Grandmother for [daughter’s] benefit.
* * ífc í¡í
“Husband and Wife desire that [Grandmother], be awarded sole legal and physical custody of [daughter], subject to the joint right of both Husband and Wife to equally share the parenting time ***, and with the understanding that Husband’s parenting time will include Grandmother.”
The agreement also noted that, as primary custodian, grandmother had “exclusive discretion in day-to-day parenting, routine medical and dental matters, [and] interaction with school authorities” and “full emergency authority to seek aid for the child under whatever circumstances [grandmother] deems appropriate.”
The stipulated judgment, in turn, incorporated the marital settlement agreement in its entirety. It further provided that
“Grandmother * * * is awarded sole legal and physical custody of [daughter], subject to the joint right of both Husband and Wife to * * * parenting time with [daughter] * * *, and with the understanding that Husband’s parenting time will include Grandmother.”
The judgment was entered on March 9, 2005, three months after mother had moved to Virginia. Daughter was one year old.
Mother first filed a motion under ORS 107.135 to modify the stipulated dissolution judgment in September 2006.
Mother filed a second motion to modify the stipulated dissolution judgment in May 2008, citing as authority both ORS 107.135 and ORS 109.119.
Father again opposed modification, at least as to custody, because mother had “failed to spend time with [daughter] and bond with [daughter].” During the modification proceedings, he indicated that he felt it to be in daughter’s “best interests to remain here in Oregon, based on the fact that the — primarily the family that she has known over the years has been here in Oregon, and that she is a — in an environment that is stable for her, and is in her best interests.” Grandmother also opposed modification on several grounds relating to the proposed change in custody. However, she did not oppose modification of the parenting plan or child support.
A modification hearing was held and, noting mother’s failure to allege facts to establish the existence of a substantial change in circumstances, as required for a modification under ORS 107.135, grandmother moved under ORCP 21(a)(8) to dismiss mother’s motion to modify the stipulated dissolution judgment. Mother argued in response that, in addition to ORS 107.135 — which requires a substantial change in circumstances — her motion was brought under in ORS 109.119— which does not. The trial court disagreed with mother, concluding that ORS 109.119 did not apply to the modification proceeding and that a substantial change in circumstances had to be established under ORS 107.135 before the court could modify the prior custody decision. However, the court allowed mother to amend her motion to add an allegation of changed circumstances.
Mother testified at the modification hearing that, at the time of the stipulated dissolution judgment, she had had mental and emotional problems, was unemployed, and had
Also admitted into evidence was a two-year-old report from a custody evaluator that recommended that mother and grandmother have joint custody of daughter, with grandmother retaining primary, residential custody. The report concluded that daughter, who was five years old when the report was prepared, would likely suffer “significant anxiety” were she to relocate to Virginia but that contact between mother and daughter should be encouraged. Specifically, the report “suggested that child support be negotiated so that [mother] could come to Oregon every six weeks for at least three full days” to help “solidify” mother’s and daughter’s relationship. It also reflected the custody evaluator’s belief that mother could gain primary custody of daughter after a period of years if mother “is conscientious in the time that she spends with [daughter] and puts effort into maintaining that relationship by visiting her in Oregon or relocating.” Finally, the report noted that, were mother to relocate to Oregon, a parenting plan could be fashioned to shift primary, residential custody of daughter to mother “within a year’s time.”
At the hearing, the custody evaluator testified that her contact with the parties in the two years following her report was limited to a single visit with mother and daughter. Accordingly, much of the evaluator’s testimony about the adaptability of children and her concerns about shifting daughter to mother’s care was based on general information. Nevertheless, the evaluator testified that the plan proposed
In their closing statements, mother and grandmother argued extensively over whether there had been a substantial change in mother’s circumstances justifying a custody modification. However, they agreed that the parenting plan should be modified. Asked whether grandmother opposed that modification, her counsel replied, “No, Your Honor. I think it would be beneficial for all involved to have something that’s going to be updatfed], hopefully, and that may be actually followed through.” Although they differed in details, mother and grandmother both advanced similar parenting plans based on the custody evaluator’s report. Each agreed that mother should begin by visiting daughter in Oregon for three days every six weeks and that, after a number of successful visits in Oregon, a transition to visits in Virginia would be appropriate.
The court ultimately denied mother’s motion to modify the stipulated dissolution judgment. In a letter opinion that focused entirely on custody, the court concluded that mother had failed to prove that a substantial change in circumstances had occurred between entry of the dissolution judgment and the modification hearing. The court also concluded that it would not be in daughter’s best interests to move from Oregon to Virginia. The court did not address mother’s argument that she was entitled to a preferential custodial presumption under the federal constitution, independently of ORS 109.119, nor did it discuss its rejection of mother’s motion to modify the parenting plan and child support. The court subsequently awarded grandmother costs and attorney fees in a supplemental judgment.
As noted, the court first determined custody of daughter in its stipulated dissolution judgment. To the extent that that judgment “provid [ed] for the legal custody, physical custody, parenting time [, and] visitation” of daughter, it constituted a “child custody determination” under ORS 109.741, which provides the “exclusive jurisdictional basis for making a child custody determination by a court of this state.” See ORS 109.704(3) (defining “child custody determination”). The legal effect of that determination is clear:
“A child custody determination made by a court of this state that has jurisdiction under ORS 109.701 to 109.834 binds all persons who have been served in accordance with the laws of this state or notified in accordance with ORS 109.724 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.”
ORS 109.717 (emphasis added). Once made, the court retains exclusive, continuing jurisdiction to modify the custody determination — until jurisdiction expires on the occurrence of circumstances not present here. ORS 109.744.
Of course, modification of a child-custody determination requires modification of the judgment in which it is embodied. Where, as here, the child-custody determination was made in a dissolution judgment, see ORS 107.105(l)(a) (providing that dissolution judgment may provide for custody), modification is governed by ORS 107.135, which provides, as relevant:
*473 “(1) The court may at any time after a judgment of annulment or dissolution of marriage * * *, upon the motion of either party * * *:
“(a) Set aside, alter or modify any portion of the judgment that provides * * * for the custody, parenting time, visitation, support and welfare of the minor children * *
A predicate to modification under that statute is a showing that a substantial change in circumstances relevant to the capacity of the parties to care for the child has occurred since the last custody order or judgment. E.g., Bradburry, 237 Or App at 186. If a change in circumstances is shown, the court is to make a custody award that is in the best interests of the child, considering a number of factors, including those specified in ORS 107.137(1):
“(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;
“(e) The preference for the primary caregiver of the child * * *; and
“(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.”
The other statutory provision on which mother relies, ORS 109.119, allows any person “who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child” to seek intervention “with the court having jurisdiction over the custody” of the child to ask the court to award the person custody, guardianship, or visitátion with the child. ORS 109.119(1), (3)(a). In the event that no court has jurisdiction over the child’s custody, the person may initiate a proceeding by petitioning the court for the county in which the child resides for an award of custody, guardianship, or visitation. ORS 109.119(1). If the court concludes that it would be in the child’s best interest,
Because ORS 109.119 has the potential to profoundly interfere with parent-child relationships, it contains a “presumption that the legal parent acts in the best interest of the child” in deciding with whom the child interacts. ORS 109.119(2)(a). That presumption must be rebutted by a preponderance of the evidence, as reflected in written findings of fact, before a court may award relief to a nonparent under ORS 109.119. ORS 109.119(4) contains a nonexclusive list of factors that the court should consider in determining whether the presumption has been rebutted. However, the presumption applies only to the state’s initial interference with the parent-child relationship, viz., when the court initially orders custody, guardianship, or visitation to the intervening party; it does not apply in a proceeding to modify an order granting relief under ORS 109.119. ORS 109.119(2)(c).
Although silent on the matter, ORS 109.119 can apply in a marital dissolution proceeding. For the reasons discussed above, a court presiding over a marital dissolution proceeding has jurisdiction to determine the custody of the couple’s children, and, therefore, a third party may intervene under ORS 109.119 in the dissolution proceeding. In that circumstance, to the extent that the third party seeks a custody arrangement different from that desired by the parents, the third party would need to rebut the presumption in ORS 109.119(2)(a) in favor of the parents. Conversely, were the parents to agree that the third party should be given sole legal custody of their children, the presumption would work in favor of the third party; the court would presume that the parents’ desire to award custody to the third party would be in the children’s best interest. Under either circumstance, once the court’s child-custody determination has been memorialized in the dissolution judgment, the presumption would have no effect in any subsequent modifications of the dissolution judgment under ORS 107.135. ORS 109.119(2)(c).
In concluding that mother had failed to prove a sufficient change in circumstances, the court focused on evidence relating to mother’s mental health and alcohol use:
“Mother alleges in her Affidavit supporting the Motion for Modification that she had mental and emotional problems when she left [daughter] in [grandmother’s] care and moved to Virginia. She also acknowledged during her trial testimony that she was drinking heavily on a regular basis before she moved out of state in 2004. She further testified at trial that she had recently undergone psychological testing in Virginia where she has lived since 2004. She stated the testing revealed that she does not suffer from a serious mental impairment. However, the court did not receive any evidence from the psychologist corroborating Mother’s statement. Likewise, no corroborative evidence was received confirming completion of alcohol treatment and continued abstinence.”
(Underscoring in original.)
In any event, even were we to take issue with the court’s change-in-circumstances determination, the court went further and concluded that a change of custody was not in daughter’s best interests:
“Not only does the court find that Mother has not proven a substantial change in circumstances, but I also find such a move (under today’s circumstances) would not be in [daughter’s] best interest. Such a move would uproot [daughter] from the only home (Oregon) she has ever known, and separate her from her grandmother to whom she is strongly bonded. [Daughter] is well settled in her school, has friends and Father’s extended family in Oregon.”
Except in cases where we exercise our discretion to review de novo, “our standard of review of a trial court’s best interests determination is for abuse of discretion.” Sjomeling v. Lasser, 251 Or App 172, 187, 285 P3d 1116, rev den, 353 Or 103 (2012). Under that standard of review, “we will reverse only if a trial court’s discretionary determination is not a legally permissible one.” Id. Leaving aside mother’s due process argument, mother does not argue — nor do we conclude—
Mother next argues that the trial court erred when it failed to apply ORS 109.119 to its custody determination. As we have explained, 258 Or App at 473, ORS 109.119 allows any person “who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child” to seek intervention “with the court having jurisdiction over the custody” of the child to ask the court to award that person custody, guardianship, or visitation with the child. ORS 109.119(1), (3)(a). Mother acknowledges that the modification proceeding at issue here did not involve the type of intervention permitted by the statute,
To be sure, ORS 109.119(2)(c) does contemplate modification proceedings, but it does not follow that the procedural framework established in ORS 109.119, by which a court is to resolve an initial custody dispute between parents and an intervening third party, applies to a proceeding to modify a decision that awarded custody to a third party. All that ORS 109.119(2)(c) provides with regard to modification
Finally, mother contends that the Fourteenth Amendment required the trial court to presume that a modification of custody in favor of mother was in daughter’s best interest. Mother’s argument is grounded in the substantive rights of parents to direct the upbringing of their children and the United States Supreme Court’s application of those rights in Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000).
In Troxel, a plurality of the Court recognized that, when a fit, custodial parent disagrees with grandparents about their visitation with the parent’s child, the parent is entitled to a presumption that the parent’s visitation decision is in the best interests of the child. Troxel, 530 US at 68-69. There, an unmarried couple were the birth parents of two daughters. After the parents separated, the daughters
As the Oregon Supreme Court has explained, the plurality in Troxel held that
“a court may not override a parent’s decision about the care or custody of a child simply because the court determines that the decision is not in the child’s best interest, as the trial court did in Troxel regarding a grandparent’s interest in visitation. Instead, the court must presume that a fit parent’s decision is in the best interest of the child, and the court may reach a decision contrary to the wishes of the parent only if there is evidence sufficient to overcome that presumption.”
O’Donnell-Lamont and Lamont, 337 Or 86, 120, 91 P3d 721 (2004), cert den, 543 US 1050 (2005) (emphasis added).
However, despite that simple articulation, “ [t]he absence of a majority opinion in Troxel and the array of viewpoints expressed in the six different opinions make it difficult to identify the scope of the parental rights protected by the Due Process Clause.” Id. at 100. Indeed, the Troxel plurality expressly declined to “define * * * the precise scope of the parental due process right in the visitation context,” Troxel, 530 US at 73 (emphasis added), let alone in any other context. Instead, a majority of the Justices emphasized the “nuanced, case-specific nature of the inquiry,” O’Donnell-Lamont, 337 Or at 99, with the plurality and Justice Kennedy agreeing that the constitutionality of any standard in this
Mother argues that Troxel’s basic holding applies in our case without regard to the court’s prior involvement in determining custody of daughter. Mother argues that, as long as a parent is “fit” — that is, presently willing and able to care for his or her child without posing a risk of harm — a court unconstitutionally interferes with the parent’s federal due process rights by reaching a decision about the parent’s child that does not adequately respect the parent’s decisions about the custody or care of the child; she attaches no significance to the fact that she is asserting her rights in the context of a motion to modify a stipulated dissolution judgment. We do not believe that Troxel extends that far.
We begin by noting our disagreement with mother’s conception of “fitness” for purposes of Troxel. While no Oregon court has had to define “fitness” for purposes of applying Troxel, we have noted that, at the very least, the term is not equivalent to the fitness standard that applies in proceedings to terminate parental rights. See Dept. of Human Services v. S. M., 256 Or App 15, 24 n 7, 300 P3d 1254, rev allowed, 353 Or 867 (2013); see also State ex rel Juv. Dept. v. Smith, 205 Or App 152, 166, 166 n 8, 133 P3d 924 (2006) (noting that Troxel’s notion of “fitness” is a moving target and citing use of the term in several of the Troxel opinions). Similarly, we think the term connotes more than a parent’s willingness and ability to care for his or her child without posing a risk of harm.
Although “fitness” was undisputed in Troxel and, therefore, the plurality left its precise contours undefined, there is language in the plurality opinion that suggests that the concept was tied in Troxel to parental custody and control over a child. For example, in what comes closest to a definition of the term, the plurality noted that
“so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further*481 question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”
Troxel, 530 US at 68-69.
That passage is significant in two respects. First, the plurality equates “fitness” with “a parent adequately carting] for his or her children,” implying that a “fit” parent possesses some level of parental custody and control over the parent’s children. Second, the plurality makes clear that it is addressing a situation in which the state is “inject [ing] itself into the private realm of the family,” suggesting that Troxel was aimed at the precise dispute before the Court in Troxel — that is, it sought to limit state interference with a parent-child relationship, through the imposition of third-party visitation rights, in the first instance. That understanding is consistent with the plurality’s ultimate conclusion that the award of visitation “failed to provide any protection for [the mother’s] fundamental constitutional right to make decisions concerning the rearing of her own daughters.” Id. at 70 (emphasis added). In other words, the Washington court had interfered with the mother’s existing custodial decision-making authority over her daughters.
Here, in contrast, the point at which the court “inject[ed] itself into the private realm of the family” and interfered with mother’s existing custodial decision-making authority over daughter was the point at which it entered the stipulated dissolution judgment awarding “sole legal and physical custody” to grandmother. At that time, mother decided that an award of custody to grandmother would be in daughter’s best interest. The court gave that custodial preference, expressed in the marital settlement agreement, special weight in issuing the dissolution judgment that eliminated mother’s custodial rights. That is all that Troxel requires in this case.
Finally, even assuming that mother is correct that— notwithstanding the stipulated dissolution judgment — Troxel’s presumption applies to the modification proceedings at issue here, she has not accounted for the competing custody preference of father, who, although minimally involved in the proceedings, consistently expressed his opposition to a custody modification and his preference that daughter remain with grandmother in Oregon. Thus, even if mother’s custody preference (as expressed in the modification proceeding) were entitled to “special weight,” we see no reason to elevate it above father’s equally legitimate custody preference (as expressed in the marital settlement agreement and during the modification proceedings). If, as mother contends, the trial court erred by failing to afford “some special weight” to her custody preference for daughter, it seems that we would commit the same error by disregarding father’s.
We acknowledge that, as a matter of policy, there may be many situations in which it is desirable to award custody to a third party upon the dissolution of a marriage, only to allow a mother or father a streamlined avenue to later regain custody. Some jurisdictions have relied on similar policy concerns to extend Troxel’s presumption in the manner that mother proposes. The Colorado Supreme Court noted in the context of guardianships, for example, that
“[fjailure to accord the parents a presumption in favor of their decision to terminate the guardianship would penalize their initial decision that it was in the best interest of the child to enter into a consensual guardianship relationship with the non-parent relatives ***. An inquiry that focuses solely on the best interest of the child creates the*485 possibility that the desires of fit and suitable parents may lose out to guardians who are able to provide the child a nicer home, a better school district, or more extracurricular activities.”
In re D. I. S., 249 P3d 775, 787 (Colo 2011).
Although we are sympathetic to those concerns, we decline to preempt the legislature’s role in addressing them by establishing a constitutional principle that lacks a constitutional basis — especially when nothing prevents parents from crafting a marital settlement agreement or dissolution judgment that would allow them to regain custody from a third party.
Mother also assigns error to the trial court’s denial of her motion to modify the parenting plan for daughter and to adjust the child-support obligations to be consistent with the modified plan and the parties’ income. As noted, mother’s modification motion sought an order “[establishing a new parenting plan” for daughter and “[m]odifying child support in conformity with the new parenting plan and the parties’ incomes” as an alternative to a change in daughter’s custody. Grandmother did not oppose modification of the parenting plan or child support. At the outset of the modification hearing, grandmother’s counsel stated:
“Now, as far as parenting time and child support, it’s been over three years. The parties are entitled to have the child support reviewed and modified, and also parenting time can be reviewed and modified based on the best interests.”
Grandmother’s position remained unchanged at the conclusion of the hearing:
“THE COURT: Mr. Swanson [counsel for grandmother], I have a question. Is your client opposing a motion for modification of the parenting plan?
“MR. SWANSON: No, Your Honor. I think it would be beneficial for all involved to have something that’s going to be updat[ed], hopefully, and that may be actually followed through.”
The court’s letter opinion did not address the proposed modification of the parenting plan and child support. Instead, the court confined its analysis to the custody dispute, concluding that mother had failed to prove a change in circumstances and that a change in custody would not be in daughter’s best interests. After incorporating the court’s letter opinion, the court’s judgment provided that “[Respondent’s Motion to Modify Custody, Parenting Time and Child Support is hereby denied in its entirety.”
In light of the views expressed by the parties below and the court’s failure to explain the basis for its decision to
Remanded for reconsideration of parenting plan and child support; otherwise affirmed. Supplemental judgment awarding attorney fees reversed.
Mother asks that we exercise our discretion to review the case de novo. See ORS 19.415(3)(b) (providing that, in an equitable action, Court of Appeals may, in its discretion, “try the cause anew upon the record”). We do so only in exceptional cases, ORAP 5.40(8)(c), and we decline mother’s request in this case.
ORS 107.135 provides, as relevant:
“(1) The court may at any time after a judgment of annulment or dissolution of marriage or of separation is granted, upon the motion of either party
*468 “(a) Set aside, alter or modify any portion of the judgment that provides for * * * the custody, parenting time, visitation, support and welfare of the minor children * * *.”
ORS 109.119 provides, as relevant:
“(1) * * * [A]ny 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 or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child * * *.
“(2)(a) In any proceeding under this section, there is a presumption that the legal parent acts in the best interest of the child.
“(b) In an order granting relief under this section, the court shall include findings of fact supporting the rebuttal of the presumption described in paragraph (a) of this subsection.
“(c) The presumption described in paragraph (a) of this subsection does not apply in a proceeding to modify an order granting relief under this section.”
We note that, although ORS 109.119(2)(c) explicitly renders the presumption inapplicable in any modification proceeding, it is silent on the manner in which a party may seek a modification. Presumably, where ORS 109.119 is invoked to
Specifically, mother acknowledges that “[t]he trial judge was correct that the modification proceeding did not involve an ‘intervention’ or a ‘petition’ on the part of [grandmother], as referenced in the preamble of OES 109.119.” The “preamble” to which mother refers is OES 109.119(1), which, as noted, confers on parties who have a child-parent or ongoing personal relationship with a child the right to intervene or petition to contest custody. Despite mother’s desire to treat that subsection as a mere preamble to the presumption in favor of parents embodied in OES 109.119(2)(a), it is not. “The preamble of a statute is a recital of the motives and inducements which led to its enactment. It is not an essential part of the act and neither enlarges nor confers powers.” Portland Van & Storage Co. v. Hoss, 139 Or 434,444-45,9 P2d 122 (1932). Here, OES 109.119(1) is integral to the operation of the statute.
ORS 109.119(2)(c) codifies the result that we reached in Lear a Lear, 124 Or App 524, 863 P2d 482 (1993). In Lear, the mother sought to modify a court order under ORS 109.119 awarding custody of her child to the child’s paternal grandparents. At that time — viz., before the statute was amended to address the United States Supreme Court’s decision in Troxel v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000) — ORS 109.119 had been interpreted to require custody to be awarded to a parent unless there were compelling reasons to give custody to a third party. See Hruby and Hruby, 304 Or 500,502,748 P2d 57 (1987). The issue on appeal in Lear was whether that standard survived an initial custody award and, thus, applied in a modification proceeding.
We concluded, in reasoning relevant here, that the standard did not apply in modification proceedings:
“We conclude that, once permanent custody is given to a third party in a proceeding brought under that statute, the party seeking to modify custody must show that a substantial change of circumstances has occurred since the time that the court determined that there were compelling reasons not to award custody to the natural parent. To allow the natural parent to relitigate custody without a change of circumstances could subject child, the child’s custodian and the courts to endless relitigation of the same issue. Such a result would be inconsistent with an award of permanent custody and would not appear to be in anyone’s best interest.”
124 Or App at 527.
Because both the Oregon Supreme Court and this court have discussed the contours of Troxel’s splintered holding at length on several occasions, we will not reproduce that discussion here. See, e.g., O’Donnell-Lamont, 337 Or at 97-101; Dept. of Human Services v. S. M., 256 Or App 15, 25-27, 300 P3d 1254, rev allowed, 353 Or 867 (2013).
Although we reject mother’s contention that Troxel’s basic holding applies broadly and without regard to the court’s prior child-custody determination, that does not mean that a court is free in a modification proceeding to ignore a parent’s desire to care for his or her own child. At the very least, OES 107.137 requires the court to consider that desire in determining the best interests of the child. And, asa matter of policy, our statutory framework repeatedly emphasizes the importance of that desire. See OES 107.101 (noting state policy to “[a]ssure minor children of frequent and continuing contact with parents who have shown the ability to act in the
Further, we have previously acknowledged that Troxel’s presumption is not the sum of a parent’s — or child’s — constitutional right to maintain familial relationships. See S. M., 256 Or App at 29 n 8. Therefore, notwithstanding the inapplicability of Troxel to a given proceeding, when a basis to modify custody has been established, a court decision on the care or custody of a child that gives little or no weight to the parent’s desire to care for his or her child conceivably could run afoul of the parent’s state or federal constitutional rights.
The dissent states — early and often — that we have concluded that mother is unfit and, on that basis, that mother is not entitled to Troxel’s presumption in her favor. 258 Or App at 492, 494, 498, 499, 500, 501. Respectfully, we have done no such thing. We simply have concluded that Troxel’s presumption does not apply to a modification proceeding such as this, in which mother seeks to modify a stipulated dissolution judgment that awarded sole legal and physical custody of daughter to grandmother.
ORS 107.104 provides, as relevant:
“(1) It is the policy of this state:
«;{■
“(b) For courts to enforce the terms of settlements described in subsection (2) of this section to the fullest extent possible, except when to do so would violate the law or would clearly contravene public policy.
“(2) In a suit for marital annulment, dissolution or separation, the court may enforce the terms set forth in a stipulated judgment signed by the parties, a judgment resulting from a settlement on the record or a judgment incorporating a marital settlement agreement:
“(a) As contract terms using contract remedies;
“(b) By imposing any remedy available to enforce a judgment, including but not limited to contempt; or
“(c) By any combination of the provisions of paragraphs (a) and (b) of this subsection.”
Significantly, if mother were correct, then the substance of mother’s new, different custody preference would not matter: We would be constitutionally required to presume mother’s new preference to be in the best interests of daughter, without any showing of changed circumstances, whether mother sought custody for herself or anyone else. We do not believe that the Due Process Clause places on grandmother, with whom daughter has lived her entire life, the onus of overcoming such a presumption.
Further, if mother is correct, then ORS 109.119(2)(c), which provides that the presumption in favor of parents “does not apply in a proceeding to modify an order granting relief under” ORS 109.119, cannot be squared with mother’s understanding of Troxel. If, as mother contends, the presumption recognized in Troxel survives an adverse custody decision, then it would apply in modification proceedings and presumably could not be abrogated by statute.
We also note that there may be equally compelling policy concerns weighing against extending Troxel to modification proceedings. Extending Troxel in that way erodes the vitality of the requirement “that there be a change of circumstances before a court will consider modifying custody], which] is a rule of long standing.” Bail, 325 Or at 397 (citing Merges, 94 Or at 257-58). As a matter of policy, that rule stems from basic claim- and issue-preclusion principles and serves “‘to avoid repeated litigation over custody and to provide a stable environment for children.’” Bail, 325 Or at 398 (quoting Ortiz and Ortiz, 310 Or 644, 649, 801 P2d 767 (1990)). One could argue that a policy favoring stable custody arrangements for children is as weighty as one seeking to avoid “penalizing” parents for their decision to cede custody in the first instance. Whatever the merits of those competing policies, it is the legislature’s role to address them, subject to the applicable constitutional constraints on its policy decisions.