Custody Modifications

Child CustodyMy ex-husband and I divorced two years ago and he was awarded custody of our three children. Is there anything I can do to change the custody award?

Either party may ask the court to modify any portion of the judgment that provides for the custody, parenting time, visitation, support and welfare of the minor children. ORS 107.135(1)(a). The party seeking the modification, however, must show there has been an unanticipated substantial change of circumstances since the original, or most recent, custody award; otherwise, the party seeking modification will not be entitled to any relief. Only after the court finds there has been an unanticipated substantial change of circumstances since the original, or most recent, custody award, will the court consider whether it is in the child’s best interests to modify custody.

In Co v. Storm, 236 Or.App. 578, 238 P.3d 30 (Or. App., 2010), the Oregon Court of Appeals established the following standard for modifying child custody:

A party seeking a change of custody must show, first, that “circumstances relevant to the capacity of either the moving party or the legal custodian to take care of the child properly have changed” since the entry of the last custody order and, second, that, “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.” Boldt and Boldt, 344 Or. 1, 9, 176 P.3d 388, cert. den., 129 S.Ct. 47, 172 L.Ed.2d 23 (2008). Id. at 592.

In addition to being substantial, the change in circumstances must be unanticipated. Dillard and Dillard, 179 Or.App. 24, 30-31, 39 P.3d 230 (2002).

In Dewolfe v. Miller, 145 P.3d 338, 347-348, 208 Or. App. 726 (Or. App., 2006), the court held:
The long-established rule is that a party seeking modification of custody must “show a change of circumstances arising subsequent to the making of the last order respecting custody” and that changing custody would benefit the child. Henrickson v. Henrickson, 225 Or. 398, 402, 403, 358 P.2d 507 (1961). The “change of circumstances” requirement is satisfied “[i]f circumstances relating to the capability of one or both parents to care for their child have changed since the previous custody arrangement[.]” State ex rel Johnson v. Bail, 325 Or. 392, 394, 938 P.2d 209 (1997). The court considers the best interests of the child only if a change of circumstances is established. Id. at 397, 938 P.2d 209.

The change in circumstances rule is meant to avoid repeated litigation and promote stability for the child. Id. at 398, 938 P.2d 209; Ortiz and Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990). Unless the parent seeking a custody modification “establishes that the facts that formed the basis for the prior custody determination have changed materially by the time of the modification hearing, the prior adjudication is preclusive with respect to the issue of the best interests of the child under the extant facts.” Johnson, 325 Or. at 398, 938 P.2d 209. That preclusive effect means that a parent seeking a change in custody cannot rely, to establish a change in circumstances, on evidence that was or could have been introduced in the earlier custody proceeding. For example, a mother “could not obtain a change in custody solely upon the basis of evidence of the father’s conduct as shown in the transcript of the original proceeding or additional evidence which could have been introduced in the first proceeding but was not. In either instance, the decision in the prior proceeding would be res judicata in a subsequent modification proceeding, assuming that there was no evidence of a change in circumstances after the original decree.” Greisamer and Greisamer, 276 Or. 397, 401-02, 555 P.2d 28 (1976) (italics added); see also Henrickson, 225 Or. at 402, 358 P.2d 507 (“The net effect of our earlier decisions is to render every prior custody order res judicata in any later modification matter.” (Italics added.)).

Under such res judicata principles, a purportedly changed circumstance cannot be a circumstance that the court contemplated at the time of the earlier determination. See Padbury and Padbury, 46 Or.App. 533, 536, 612 P.2d 321 (1980) (stating that change in circumstances “must be a change which was not contemplated at the time of the original decree” and the child’s increased age was not such a change); Wyatt and Wyatt, 36 Or. App. 563, 566 n. 1, 585 P.2d 31, rev. den., 284 Or. 521 (1978) (noting that the mother’s graduation from school and new employment “would not be a sufficient change of circumstances standing alone as it would have been reasonably contemplated at the time the decree was entered”). That rule also applies when a parent fails to raise a known circumstance in an earlier custody proceeding. In Southworth and Southworth, 113 Or.App. 607, 835 P.2d 122, rev. den., 314 Or. 574, 840 P.2d 1296 (1992), we did not consider the mother’s nudist lifestyle to be a change in circumstances. Although the court was unaware of that lifestyle at the time of the initial judgment, the father and his attorney knew and failed to raise the matter before the judgment was signed and entered. We explained, “If father thought that the evidence was relevant to mother’s capacity to care for their child, he should have brought it to the court’s attention, instead of reserving it for use in relitigating the issue of custody.” Id. at 614, 835 P.2d 122.” Id. at 347-348.

Accordingly, so long as there has been an unanticipated substantial change of circumstances since the award of custody to your ex-husband, you can bring a motion to modify custody. In order to prevail on your motion, you will need to prove it is in your children’s best interests that you be awarded custody instead.