State Ex Rel. Johnson v. Bail

938 P.2d 209 (Or. 1997)

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Nature of the Case

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Facts

M and F are the unmarried parents of a girl who was born on July 6, 1987. F's paternity was established pursuant to statute. M had physical and legal custody of the child from birth. F visited the child two or three times a week during the first few weeks after her birth. F made threats against M and members of her family. She moved without telling F, and when F discovered her, she moved again to California without telling F and took an assumed name. F began court proceedings to establish visitation rights with the child. Visitation was granted, but father was not able to see the child, because he did not know where she was. F sought custody of the child, and the trial court issued an order changing the child's legal custody to F. About four years later, in late 1992, F and police located mother in California. M and child returned to Oregon. In February 1993, mother pleaded guilty to custodial interference in the second degree, ORS 163.245. M was sentenced to 20 hours of community service; she completed that. The child continued to live with M after her return to Oregon. The child was reintroduced to F gradually but suffered serious emotional problems as a result of that effort. In 1993, M filed a motion to modify the 1988 default order, seeking to return legal custody of the child to her. Two experts testified that it was in the child's best interests to remain with M and the trial court granted custody to M. F appealed. F's proposed rule of law is that a change in circumstances resulting directly or indirectly from a parent's illegal act of custodial interference should be disqualified, as a matter of equity, from triggering an analysis of a potential change in custody. Welby and Welby, 89 Ore. App. 412, 749 P.2d 602 (1988).