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The following is from a draft of the Oregon brief and is presented here

as a summarization of the case.

Summary of the Facts

January 18, 1984: The parties were married in New York. Tr. 6 and Tr. 11 (10-17-94). September 28, 1993: The parties had a daughter named Theodora (nicknamed "Teddy"). November 18, 1993: The parties and child moved to Medford where the mother went to work while the father stayed home and was the primary caretaker of their infant daughter 24 hours a day. Tr. 11, 13 (10-7-97). January 1994: The mother left the house, taking the child, and subsequently evicted the father with a family abuse restraining order. She then placed the infant daughter in day care. Tr. 35-36 (9-12-97, Vol. I). February 1994: The father was reunited with his child when the mother escinded the restraining order and allowed the father to move back into the family home. He found the infant catatonic and ill. Tr. 21 (10-7- 97), Deposition of Toni Hulse. Tr. 22 (10-7-97). July 1994: The daughter was diagnosed with serious developmental delays by Dr. Helen Skouteli, who recommended a battery of tests including an EEG (which the mother forbade the father to have done, which hampered early intervention in the child's medical problems). Ex. 105, Tr. 27-28 (10-7-97). August 1994: The father sought and began physical therapy for the daughter. Tr. 51, 55 (10-7-97). August 1994: The mother again asked the father to move out, and so the father began caring for his daughter daily at his apartment while the mother worked. October 6, 1994: Mother filed the Oregon dissolution petition. November 1994: The mother insisted that the father go to work or not see his daughter anymore ever again. Tr. 57 (10-7-97). The father then started a home business and cared for the child in his new home from 8:00 a.m. until mother picked her up after work. August 1995: The mother observed three seizures in the daughter and finally had the EEG performed and the child began receiving seizure medication prescribed by Dr. Skouteli, a pediatric neurologist and research fellow in epileptology sought out by the father. Tr. 17 (10-7-97). September 1995: The mother unilaterally reduced the number of hours the father could care for the daughter to every week day from 10:00 a.m. to 6:00 p.m. and just "his" weekends. Tr. 13 (10-7-97). November 1996: After nine months of resistance by the mother, the parties began a court-ordered custody evaluation of both parties and the child with Dr. Oas. Tr. 17 (10-7-97) December 1996: In mediation, which mother also resisted, an Agreement was signed by the court in which the father granted mother temporary custody in exchange for the daughter spending her days with the father, as was previously done, and in exchange for the mother discussing educational and medical decisions with the father before implementation. Tr. 17 (10-7-97). February 1997: Dr. Oas, the court-appointed evaluator, preliminarily indicated that he would recommend custody be given to the father. [NEED CITE] February 1997: Mother then requests permission from the Court to move to New York. She states that she is leaving her job (where she earned $70,000 per year) in Oregon to seek better job opportunities in New York. Tr. 11; Mother's motion. April 1997: Mother refuses to undergo psychometric tests, and denies Dr. Oas access to her recent psychiatric records. Tr. 76 (9-12- 97). Dr. Oas completes his psychological evaluation. April 1, 1997: Mother moves to New York. April 7, 1997: Father moves to New York, bring the child with him. May 10, 1997: Dr. Oas issues his report recommending custody be given to the father. Ex. 101. FIRST ASSIGNMENT OF ERROR The trial court erred in denying the father's motion for a new trial: "IT IS HEREBY ORDERED that Respondent's Motion for New Trial and Reconsideration is denied * * *." Order Denying Respondent's Motion for New Trial and Reconsideration, May 19, 1998. ARGUMENT Standard of Review: The standard of review in this dissolution appeal is de novo on the record. ORS 19.415(3). The father moved the Court for a new trial based on newly discovered evidence, much of which predated the custody hearing, and all of which predated the entry of the judgment of dissolution. This evidence consisted of medical and educational records of the child which were not available to the father because the mother withheld them, in violation of the Court's order. He had to file a motion against the mother in order to finally obtain these records, which showed the child's worsening condition under the treatment and care provided by the mother and the health and child care providers selected by her. The father further produced newly discovered evidence of the perjury of Barbara Kozol, the director of the Child Development Center at the Rogue Valley Hospital, where the child had received care and treatment. The father also presented a letter and affidavit from Dr. Oas. In Dr. Oas' December 30, 1997, letter (which Dr. Oas had previously sent, unsolicited, to the trial court), he told the court that awarding the mother custody and "restricting Mr. Coutsoukis' active parental care of the child has not served Teddy's best interests," that "the child's life is at risk," that since being separated from her father, the child has regressed, all of which resulted in physical and emotional harm to the child. (Trial Court File; Motion for New Trial.) See also Dr. Oas' affidavit in support of this motion. (Trial Court File). SECOND ASSIGNMENT OF ERROR The Court erred in awarding custody of the minor child to the mother: "THE COURT: I award custody to Mrs. Coutsoukis with reasonable visitation to Mr. Coutsoukis. I'm going to ask the attorneys to -- and it's going to be Ms. Sanz who is going to do the initial draft of this document -- Ms. Sanz, I want regular visitation specified to the minute and with exchange to be in a neutral place." Tr. 191 (10-7-97). ARGUMENT I. INTRODUCTION Standard of Review: The standard of review in this dissolution appeal is de novo on the record. ORS 19.415(3). The child in the center of this custody dispute is Theodora Coutsoukis (nicknamed "Teddy"), and she was born on September 28, 1993. The father was the child's primary caretaker for the first part of her life, and after a forced separation from the father, she developed epileptic-type seizures, brain damage, and some developmental delay. The trial court awarded Teddy's custody to the mother, but for most of the child's early life, up until the mother's separation from the father, it was the father who was the child's primary caretaker. This father is a professional who had a lucrative career and a six figure income, which he chose to sacrifice in order to stay at home and care for the child while the mother furthered her own career. The court-appointed expert, Dr. Oas, testified that the father should have custody because he was the child's primary caretaker and the child thrived when she he was caring for her. The trial judge stated that he believed the father and mother were both caring parents, but he never gave any reason whatsoever for giving custody to the mother in the face of the overwhelming evidence that child's best interests mandated custody with the father. II. THE COURT-APPOINTED EXPERT FOUND THAT THE CHILD SHOULD BE WITH THE FATHER David A. Oas, Ph.D. was ordered by the Court to do a custody evaluation in this matter. Tr. 46 (9-12-97). He concluded that the child should be with the father because he had been the child's primary caretaker from birth and the parent with whom the child was most strongly bonded, and that the mother has denied the father access to the child. Tr. 42-43 (9- 12-97). Dr. Oas met with each parent to get an understanding of their personality and their general character, and how each parent viewed their effectiveness as a parent. Dr. Oas stated that although it is usual to have personality testing of the parents done, there was a resistance to this testing on the part of the mother, and it was not done. Tr. 20 (9-12-97). The mother refused to provide a release for her own psychiatric records. Tr. 49 (9-12-97) Dr. Oas believed he could draw conclusions based to some degree on his perspective of the interviews of both parents. Tr. 20 (9-12-97). The second part of the evaluation involved time where Dr. Oas watched the parents interact with their child. The testimony of Dr. Oas spans 90 pages. Dr. Oas also: (1) voluntarily wrote a letter to the court on December 30, 1997, telling the court that awarding the mother custody and "restricting Mr. Coutsoukis' active parental care of the child has not served Teddy's best interests," that "the child's life is at risk," that since being separated from her father, the child has regressed, all of which resulted in physical and emotional harm to the child (Trial Court File), and (2) submitted an affidavit in support of the father's Motion for Reconsideration before the Judgment was entered (Trial Court File). Dr. Oas stated that the mother made a malicious decision, based on her own emotional needs, that she would deny her daughter access to the father. Tr. 24 (9-12-97). Dr. Oas also said that the strongest issue in his mind was the fact that the mother had contrived to deny access of the father to the daughter. Id. Dr. Oas stated that the mother worked full time in Medford and the father by his own choice stayed home with the baby and that he was the primary caretaker. Tr. 30 (9-12-97). Dr. Oas testified that the mother felt her career was more important to her, Tr. 31 (9-12-97) while the father believed that the family was the most important thing to him. Tr. 84 (9-12-97). The mother would leave for work between 6:30 a.m and 7:30 a.m., and return home between 6:00 p.m. and 6:30 p.m. Tr. 33 (9-12-97). During this period the mother would often take the child and leave without telling the father where she was going, what she was going to do and when she might return. Tr. 31-32 (9-12- 97). Dr. Oas stated that this caused the father considerable distress as the primary caretaker because he was concerned about how this would adversely affect the child. Id. According to Dr. Oas the mother has continued to make decisions about Teddy in order to keep the father from being with the child. Tr. 34 (9-12-97). Dr. Oas opined that the mother's decisions and actions regarding the child were not only usurping the father's rights, but potentially detrimental to the child's development. Tr. 34 (9-12-97). After Dr. Oas observed each of the parties interact with the child, he determined that there was a difference in the amount of what was termed "interactive dialog". Tr. 37 (9-12- 97). Dr. Oas stated that the father's interaction with the child was tailored and had a synchronicity to it. Tr. 37 (9-12- 97). This synchronicity brought about a special attachment between the father and the child. Tr. 37 (9-12-97). Dr. Oas stated: "Attachment is one of the criteria that we look at when we look at custody, Your Honor, and the level of attachment and the strength of attachment meant. [sic] And it is this synchronicy that I saw between Mr. Coutsoukis and his daughter that to some degree Ms. Samora [the mother] saw as kind of an obsessive concern about the daughter." Tr. 37 (9-12-97) However Dr. Oas clearly stated that he did not see the father's involvement as obsessive. Id. Dr. Oas stated that the daughter has unique delays so that her inner reality struggles to make sense of the inner world and her inner reality struggles to make sense of the outer reality, thus making it very important to sustain that synchronicity in the treatment of a small infant by the outside world. Tr. 38 (9-12-97). The doctor stated that "one of the most fundamental things is you've got to continue to work to maintain that synchronicity * * *" Tr. 38 (9-12-97). Furthermore, Dr. Oas stated that the time the father spends with the daughter is a strong and fundamental part of the developmental maturity of children. Tr. 39 (9-12-97). Dr. Oas stated that this father's actions are based on beliefs founded on substantial and strong research strategies. He stated that what the father has done to take care of his child is not haphazard. Tr. 39 (9-12-97). According to Dr. Oas the father is deeply committed to his child, whereas the mother places a greater trust in third parties and day care. Tr. 39-40 (9-12-97). Dr. Oas stated that the father's beliefs about what is best for the child "are founded on what I consider substantial, strong research strategies that have become a part of the science of developmental psychology." Tr. 39 (9-12-97). He further opined that the father's strong beliefs are often presented "with a lot of passion and sometimes with vehemence," and that he does this "because he is deeply committed to his daughter." Tr. 39-40 (9-12-97). As to why the father should be the custodial parent, Dr. Oas testified that the father "will cause every bit of his energy, even as an informational technologist, to find out what will serve his daughter best" and "try to discern what he sees would be most fitting for his daughter based on his own involvement" with her. Tr. 42 (9-12-97) Dr. Oas did not believe that the father would leave the mother "out of the loop", and regarding the mother being a part of the child's life, Dr. Oas stated: "I believe he wants very much for her to be a part of it. He feels that she has not given him the same privilege." Tr. 42 (9-12-97). Dr. Oas stated that because the father works from home he is able to have control over the kind of care that his daughter has from other providers, and that he would honor the mother's right as a parent to be a participant in that. Tr. 43 (9-12- 97). Although the father did hire babysitters, he did so to help him with the child while he was working at home, rather than to have the babysitters replace him as the child's caretaker. Tr. 41-42 (9-12-97). Thus the father has a unique capacity to have his office at home, where he is able to have some control over the kind of care Teddy would have from other providers. Tr. 42-43 (9-12-97). Dr. Oas further stated: "I believe that [the mother] has not honored [the father's] right to be a participant, and so I see that as a major factor in this issue, as well as his capacity to interrelate effectively with his own daughter." Tr. 43 (9-12-97). Dr. Oas testified that the mother admitted to him that when the father and child are alone, the father does well with the child. Tr. 43 (9-12-97). However, what Dr. Oas found was that as the father recognized that there was something "terribly wrong" with Teddy, he began working with doctors and other experts to find the proper treatment for the child, and "in this process there was a gradual denial of Mr. Coutsoukis' right as a parent to his own child, and that has continued * * *." Tr. 41 (9-12-97) That conflict has continued to the present, Dr. Oas testified, and he believed "that there has been a situation where [the father] has been denied the right to parent his child, and he has lost many,many rights, and this has been a very grievous situation." Tr. 41-42 (9-12-97). Although the mother told Dr. Oas that she "would have stayed home in a millisecond," he said he was not sure he believed that. Dr. Oas also stated that although the mother does not say that family is not important, he is sure that her career is more important. For the father, however, his belief was that "family was more important than anything else." Tr. 31 (9-12-97) In conclusion, this custody evaluation clearly shows that the father should have been given custody of Teddy. The father, who chose to care for his child at the expense of enormous personal sacrifice, had been the primary caretaker of Teddy until the mother began to deny him access to the daughter. The evaluation report clearly reveals that there is a special bond between the daughter and the father. Furthermore the father makes the daughter the center of his world and does everything in his power to help her in her very special developmental needs whereas the mother places the child in day care and is more emotionally and intellectually vested in her own career. The father was doing all of this, it must be remembered, while still finding a way to trade his lucrative career for an at-home business so he could not only care for his daughter, a child in crisis with special needs, but provide for her and himself financially as well. It takes a special person to make this happen, and the father was doing it until Teddy was taken from him. As stated above, the trial Court gave no reasons for its determination that the mother should be the custodial parent. Tr. 191 (10-7-97). And lacking such reasons, the Court should have followed the findings and recommendation of the custody evaluator. In Insley and Insley, 126 Or App 191, 193, 868 P2d 17 (1994), this Court reversed the trial court's award of custody to the mother and granted custody to the father where several witnesses had testified that the father was primarily responsible for the children's care. This Court similarly reversed a trial Court's custody determination in Holcomb and Holcomb, 132 Or App 498, 503, 888 P2d 1046 (1995), stating that although the trial Court's decision in custody cases sometimes is considered persuasive, it does not bind the appellate court. Holcomb and Holcomb, supra, 132 Or App at 502. III. THE MEDICAL TREATMENT OF THE CHILD ARRANGED BY THE MOTHER HAS CAUSED THE CHILD HARM As discussed above, since discovering Teddy's problems, the father has relied on a wide variety of world renowned medical experts, including Dr. Helen Skouteli, a pediatric neurologist and a research fellow in epileptology. Dr. Skouteli stated that what Teddy needs is interpersonal relationship and a lot of physical activity. Tr. 14 (10-7-97). While the father was taking care of Teddy according to Dr. Skouteli's recommendations, he began to disagree with the medical care she was receiving in the Rogue Valley, because she was getting worse. Tr. 14-16 (10-7-97). The father was adamantly opposed to putting this child, described by Dr. Oas as a child in crisis, in a day care center when he was available, willing and anxious to take care of the child. Furthermore, the mother made it difficult for the father properly care for the child by withholding medical information from him. For example, the mother withheld information about the daughter's medication regime. Tr. 14 (10-7-97). She did not inform the father that she had taken the child to see a neurologist in Medford, Oregon, where the child was given an MRI and a blood test, which the father could have used to monitor the level of medication in the child's blood. Tr. 14 (10-7-97). After trying for two months to get these tests, he discovered that the child was being overdosed on medication. Tr. 14 (10-7- 97). Again, he had to wait for months to find out that Teddy, unbeknownst to him, was placed in the hospital for three days in New York in August of 1996, Tr. 14 (10-7-97), and that she had been taken twice to an emergency room by ambulance and hospitalized without him being notified. Tr. 14 (10-7-97). Whether he has legal custody or not, the father needs to know exactly what treatment the daughter is receiving because the mother gives him incomplete and conflicting information about Teddy's treatment. Tr. 16 (10-7-97). The fact that the father has had to move the court twice to compel the mother to disclose such information, is further evidence that the child would be much better off with him, where he could monitor her treatment and provide better care. The father has never withheld such information from the mother, and never would. Dr. Skouteli treated the daughter successfully for two years. Tr. 30 (10-7-97). However, after obtaining temporary custody, the mother chose to have the daughter put on a ketogenic diet. Tr. 29 (10-7-97). The father testified this diet is not FDA approved and Dr. Skouteli is "up in arms about it." Tr. 29 (10-7-97). The Child's Neurological Society official report on the ketogenic diet acknowledges that it is a controversial treatment. Tr. 29, Exhibit 108-B (10-7-97). This report reveals that the diet has never been evaluated in a scientifically controlled manner, is experimental, and has significant side effects. Exhibit 108-B. Furthermore the report shows that only thirty percent of individuals who undertake the therapy actually have their seizures controlled. Id. Finally, the daughter is not a good candidate for the diet by the criteria set forth by those who proposed the therapy. Tr. 29 (10-7-97). The father started researching into the psychogenic types of neurological problems since the child's tests showed that there was no genetic problem. Tr. 44, Exhibit 108-A (10-7-97). He worked with Dr. Renato Sciffo, an interdisciplinary pediatric neuropsychiatrist and a practicing psychoanalyst, with the Research Institute in Sicily which is the world's top pediatric neurology research facility, and Daniel Stern, an expert on attachment theory. Tr. 45 (10-7-97). He has shared all of what he discovered in his extensive research with the mother. Tr. 46 (10-7-97). When the father found out that the mother had put the daughter into the YMCA day care he gave the staff instructions about how to take care of the daughter, because the mother had failed to do so, or to even tell the YMCA that she had disabilities and special needs! Tr. 46 (10-7-97) and Exhibit 105. He made a list so that they could take proper care of the because of her special needs (she had special diapers which needed to be changed in a particular manner and also her food needs were particular). Tr. 48 (10-7-97). He later saw that the YMCA the staff was not following the advice of Teddy's physical therapists. Tr. 48 (10-7-97). He also found Tedddy at the YMCA, left in a crib in a dark room rocking a toy back and forth. Tr. 49 (10-7-97). When he asked the staff why Teddy could not be with the toddlers across the hall, he was told it was because of a lack of staff. Tr. 49 (10-7-97). It was clear to the father that Teddy was not safe at the YMCA and she was not following the therapy that she should have been doing, which was being done under the father's care. Tr. 49 (10-7-97). Of course Teddy was only in day care because the mother would not permit the father to take care of her while the mother worked. Tr. 50 (10-7-97). The mother even agreed that he could take better care of Teddy than the YMCA could, but the mother continued to prohibit this. Tr. 50-51 (10-7-97). Another example of Teddy's poor medical treatment at the mother's hands involves her taking the drug Depakine. Tr. 52 (10-7-97). When the mother consulted with a Dr. Sullivan (without informing the father, in violation of the Court's order), Dr. Sullivan prescribed medication for Teddy without seeing her, without examining her, without knowing her history and without knowing that the daughter was taking other medications including Frisium. Tr. 52 (10-7-97). Dr. Sullivan also decided to do a kind of rule of thumb increase and change of the daughter's medication to Depakote (a tablet form of Depakene). Tr. 52 (10-7-97). The father was naturally very upset when he found out about this, and when the father finally got the blood results after the change of medication by Dr. Sullivan, he discovered that she had been overdosed as a result. Tr. 54 (10-7-97). In conclusion, this child, because of her medical crisis, needs a parent who will take the time to properly care for her, make certain that she gets the proper medical attention, and who will consult with the other parent on all of this. The mother refuses to do any of these things, while the father has been trying everything he can to do so, only to be thwarted by the mother at every turn. This is just one of the many reasons Dr. Oas recommended that the father be given custody, and the court should have done so. IV. THE MOTHER'S TOP PRIORITY IS NOT THE CHILD Here is another example of the mother's misplaced priorities and lack of concern for Teddy. In the winter of 1994, the father had to go to the mother's home to pick up some of his computer equipment for his work and when he was there he saw that the child was very sick. Tr. 27 (10-7-97). The mother was ready to go to a party at a home which the father knew was heated with a fireplace, which is bad for the daughter's respiratory problems. Tr. 27 (10-7-97). The father asked the mother why she didn't stay home to take care of the child instead of going to the party. The mother said that that would ruin the mother's Christmas. Tr. 27 (10-7-97). The father said that the mother did not have to ruin her Christmas and that he would stay and watch Teddy which he did and the mother went to the party. Tr. 27 (10-7-97). The mother also prefers to put the child in day care even though the father is available to take care of the daughter. Tr. 27 (10-7-97). As noted above, when the mother put Teddy in YMCA day care she did not inform the staff of the daughter's condition or special needs. Tr. 31 (10-7-97). The father was the primary parent of the child, the person who would spend days with the child, and who primarily took her to therapy and to physicians. Tr. 32 (10-7-97). When it became time for the child to go back to her mother in the evenings, the daughter did not want to leave the father. Tr. 32 (10-7-97). He always informed the mother when the child would be seeing a physician or having a medical appointment or anything educational, whereas the mother has refused and continues to refuse to do this. Tr. 34 (10-7-97). Before moving to Medford the mother filed a dissolution action in California in which she made several false statements under the penalty of perjury. The mother falsely alleged that the parties were separated when they were not, and she falsely alleged that she had lived in Ventura County, California for three months when she had not. This dissolution was ultimately dismissed. Tr. 21 (10-7-97). Then the mother allowed the father to follow her to Medford so that he could care for their child. Tr. 35 (9-12-97). When she evicted the father, the mother placed the daughter in day care. Tr. 35-36 (9-12-97). Upon the father's return he saw that there was a profound change in his daughter. She was listless and she was not able to effectively communicate as she had before he left. Tr. 36 (9-12-97). V. THE FATHER IS A GOOD AND LOVING FATHER AND THE BEST PARENT Numerous witnesses testified to the father's ability and willingness to take proper care of Teddy, and of his devotion to her. Faye Altman is a letter carrier in the town of Medford and she would deliver mail three or four times a week to the father's door and through that began an acquaintanceship with him and his daughter. Tr. 98-100 (9-12-97). Altman testified that she saw how Teddy was when she would deliver mail. Tr. 100 (9-12-97). She said that Teddy appeared happy and contented and she never saw her crying or having a tantrum. Tr. 100 (9-12- 97). Altman said the father was the child's caretaker and he is the only one with whom she ever saw the daughter. Tr. 100 (9- 12-97). When she saw the father with the daughter he was always helping her to walk or sit or stand. Tr. 101 (9-12-97). She once saw him and a babysitter with the child at a local restaurant. The father was cutting the food and helping to feed the daughter. Tr. 101 (9-12-97). She also saw him playing outside with the daughter and he and the daughter got along beautifully. Tr. 102 (9-12-97). Altman testified that she thought that Teddy was very close to her father. Tr. 102 (9-12-97). Dane Maron worked for the father over a two year period. Tr. 87 (10-7-97). According to Maron the father would often ignore his business to take care of the child. Tr. 88 (10-7- 97). The father would take care of the daughter even though a babysitter might be present. Tr. 88 (10-7-97). The father would read books to the child and play with her outside. Tr. 88 (10-7-97). Maron stated that the daughter was openly affectionate with the father. Maron testified that the father would express frustration that the mother, in violation of court order, would not inform him about the daughter's medical condition when the mother got temporary custody. Tr. 89 (10-7-97). Lyudmila McLennan also worked for the father. Tr. 94 (10- 7-97). She stated that the father took very, very good care of the daughter. She also testified that he is a very good person. Tr. 95 (10-7-97). She testified that when Teddy would go to sleep she wanted only for the father to take her into the bedroom and she wanted to eat with him and play with him. Tr. 95 (10-7-97). According to McLennan even though there would be babysitters helping watch the child, the father did most things for her himself. Tr. 95-96 (10-7-97). When the child wanted to play the father would leave his work and spend time with her. Tr. 96 (10-7-97). Edward Bright is currently an employee of the father. Tr. 99 (10-7-97). Bright said that the father's relationship was very, very good and that you could tell that he and the child loved each other a great deal. Tr. 99-100 (10-7-97). The witness has had an opportunity to observe the mother with the child, and he thought that the mother may be "faking" her love for the child. Tr. 100 (10-7-97). According to Bright often the mother would either fail to deliver the child or be very late delivering her according to the visitation schedule. Tr. 100-101 (10-7-97). Bright testified that he has often seen Teddy come back from the mother's house with bruises and bumps. Tr. 101 (10-7-97). He states that he was familiar with the allegations the mother made in the protective order and that he was there the whole time during the alleged occurrence. Tr. 101-102 (10-7-97). Bright testified that the allegations were false and that the mother got very angry that day. Tr. 103 (10-7-97). According to the witness the mother was visibly angry and she started pushing people away from her. Tr. 103 (10-7-97). Bright testified that the father would read books to and bathe Teddy and help her walk. Tr. 103 (10-7-97). Bright testified that what the father wants is to just be able to see his daughter. Tr. 104 (10-7-97). Bright also testified that the mother does not communicate at all with the father. Tr. 105 (10-7-97). He testified that the father was trying to get medical information but there has never been direct contact where things would be clear. He has tried to get medical information from the mother but she was not willing to communicate with the father about it. Tr. 105 (10-7-97). Bright testified that he has never seen the father be violent and he's never gotten upset or impatient with Teddy. Tr. 105 (10-7-97). When asked if the witness considered the father to be a threat to the mother the witness laughed and said that the answer to that question is absolutely not. Tr. 128 (10-7-97). Barbara Arnett worked for the father during the summer of 1996. Tr. 128 (10-7-97). She left his employ because she needed a job that offered her benefits. Tr. 130 (10-7-97). She describes the father's relationship with his daughter as very good and that he was protective of the daughter. Tr. 130 (10-7- 97). The father worried about the daughter and wanted to make sure she was not hurt. Tr. 131 (10-7-97). Although Arnett was watching the child with the father, he would play with the daughter and put her down for a nap and help her to eat her lunch. Tr. 131 (10-7-97). According to Arnett the father took the child to a place called Superior Athletic Club so that she could interact with other children. Tr. 131- 132 (10-7-97). Arnett states that the daughter loved being around her father and she loved being with him. She stated that the father helped Teddy with her letters and sounds and helped her to walk. Tr. 132 (10-7-97). Although the father might be working, Arnett was never allowed to give the medication to the child. The dosage had to be very precise. Tr. 132-133 (10-7-97). The father personally gave the daughter her medication. Tr. 133 (10-7-97). VI. THE LAW SUPPORTS AWARDING CUSTODY TO THE FATHER A. General Factors to Consider In determining the best interests and welfare of the child, the Court may consider the following relevant factors: (1) The emotional ties between the child and other family members; (2) The interests of the parties in and attitude toward the child; (3) The desirability of continuing an existing relationship; and (4) The abuse of one parent by the other. ORS 107.137(1). Thus to determine which parent should be awarded custody of a child, the Court's primary consideration is "the best interests and welfare of the child." ORS 107.137. The best interests and welfare of a child in a custody matter should not be determined by isolating any one of the relevant factors referred to above, or by any other relevant factor, and relying on it to the exclusion of the other factors. ORS 107.137(2). Much of the statutory language set forth above comes directly from Tingen v. Tingen, 251 Or 458, 459, 446 P2d 185 (1968). It is often cited for the comprehensive list of the factors the trial Court should consider in determining which parent is awarded custody of the children; (1) The conduct of the parties; (2) The moral, emotional, and physical fitness of the parents; (3) The comparative physical environment; (4) The emotional ties of the child to other family members; (5) The interest of the parties in and attitude toward the child; (6) The age, sex, and health of the child; (7) The desirability of continuing an existing relationship and environment; and (8) The preference of the child. And finally, preference in custody must not be given to the mother over the father for the sole reason that she is the mother. ORS 107.137(4) In Stringham and Stringham, 124 Or App 626, 630, 863 P2d 504 (1993), this Court again emphasized that "[i]n visitation and custody matters, where the real need depends upon weighing evidence and first hand observation of witnesses, we give weight to the finding of the trial court." However, in the present case this test cannot be used with any certainty because the trial Court did not give any reasoning whatsoever to support its custody decision. It cannot be determined what evidence the trial Court gave weight to and which witnesses it found relevant. Therefore the notion that the trial Court's finding should be given weight is not applicable here. In Holcomb and Holcomb, 132 OR App 498, 503, 888 P2d 1046 (1995), the Court said that although a trial Court's decision in custody cases is considered persuasive, it does not bind the appellate Court. B. Custody should be awarded to the primary caretaker In many decisions, the term "primary caretaker" and "primary parent" identify the parent who has spent the most time in meeting the children's day to day needs. Considerable weight is given to the primary caretaker rule when all other factors are equal. Derby and Derby, 31 Or App 803, 807, 571 P2d 562, modified on other grounds, 31 Or App 1333 (1977), rev. denied, 281 Or 323 (1978). Moreover it is reversible error for a Court to refuse to give any weight to this factor. Again, in the present case we don't know if the Court gave weight to the very strong emotional ties the child developed with the father. Nonetheless, it is clear from the evidence that the father was the parent who spent the most time in meeting the child's day to day needs, was the primary caretaker and had the strongest emotional ties to her. In the case at bar we have a conflict of cultures as well as personal beliefs. The mother believes that this child, who needs special care, should adapt and make accommodations to the needs of the mother and others, and thus the mother places the child in day care, even when the father is ready, willing and able to care for her when the mother cannot or will not. The father believes that the child does best under more direct parental care, and willingly made considerable personal sacrifices to provide this. The father organizes his working hours and weekends into a schedule that allows him to focus his attention to his child's special needs and interests. According to Lundgren and Lundgren, 31 Or App 967, 970-971, 572 P2d 325 (1977), rev. denied, 281 Or 99 (1978), the Court said that when there is a choice, working hours that also allow the parent to be with the child on a fairly regular basis are viewed as more favorable to the best interests of the child. In Lundgren, the trial court awarded custody of three children ages 11, 8 and 3 to the mother, who was employed as a bartender four nights a week from 6:00 p.m. to 1:00 a.m. and who had not sought alternative employment (as the court suggested when she was given temporary custody). The trial court found that neither parent was unfit. The father appealed and this Court evaluated the facts in terms of the best interests of the children, and awarded custody to the father who had working hours which allowed him to be with the children. In the case at bar, the father left his career position, and created a home business in his residence so that he can care for his child. He has even hired helpers to work with him in his home to help him keep close scrutiny over his daughter's activities. As discussed at length above, the daughter needs as much special attention as she can get due to her medical condition. C. Interests of the respective parents in caring for the child In Jenkins and Jenkins, 24 Or App 709, 546 P2d 1094 (1976), the Oregon Court of Appeals affirmed the trial court's order awarding custody to the father of the parties' four year old son and one year old daughter. In Jenkins, several witnesses testified that the mother did not seem very interested in the children and there was conflicting testimony regarding her homemaking skills. According to the court the father had shown interest in the children and had demonstrated his ability to take care of them. The Jenkins case is important because, as in the instant case, the expert who did the custody evaluation testified that the mother was more interested in her own needs than in the child's needs and the father has shown that his major concern is his daughter's welfare. D. The Court Cannot Give Preference to the Mother Solely Because She Is the Mother Until ORS 107.137(4) was enacted in 1961, the courts often presumed that young children should be in the custody of the mother unless she was totally incompetent or guilty of misconduct that was detrimental to the children. See, e.g., Wengert v. Wengert, 208 Or 290, 292, 301 P2d 190 (1956) and Shrout v. Shrout, 224 Or 521, 524, 356 P2d 935 (1960). Such a presumption in favor of the mother no longer can be used to tip the balance even in a close case. Ray v. Ray, 11 Or App 246, 249, 502 P2d 397 (1972). This Court held in Ellenwood and Ellenwood, 20 Or App 486, 490, 532 P2d 259 (1975), that a court can award custody to a mother without violating ORS 107.137(4) if she is the primary parent. Obviously, the case at bar is not a "close call" and all the evidence demonstrates that the father was the primary parent. In Lundgren, supra, the mother continued to work at a job which kept her away from the home most evenings, although she had been admonished by the trial court at the temporary hearing to seek different employment so she could "devote mote time and attention to the children." 31 Or App at 969. She had the ability to be employed at a daytime job, but chose not to. In addition, she liked to socialized after she finished her bartending job in the evenings. The father in Lundgren, on the other hand, was employed from 7 a.m. until 3 p.m., and had been a "good and capable father, being with the older children after school until bedtime. The Court of Appeals reversed the trial court's award of custody to the mother and held that given the "no preference" mandate of ORS 107.137(3), "we find it difficult to avoid the conclusion that the father should have custody." 31 Or App at 970. Likewise, in the instant case, this Court should do likewise, reverse the trial court, and award custody to the father. Further, it is not necessary to find that the wife is a "bad" parent in order to give custody of even very young children to the father where appropriate. In Munyon and Munyon, 21 Or App 379, 534 P2d 1176 (1975), this Court affirmed an award of five children to the father stating: "On balance, this testimony indicates a reasonable basis for inferring that the husband was more interested in and gave better care to the children than did the wife. This is not to say that the wife was uninterested in or gave seriously substandard care to her children." 21 Or App at 380. What was important, the Court said, was what was in the best interests of the children. In the instant case, the overwhelming evidence is that the father was more interested in, and gave far better care to Teddy than the mother. E. All Factors Support Awarding Custody to the Father All of the factors in this case support awarding custody to this father who was the child's primary caretaker, and continued to be so until the Court awarded custody to the mother. The court-appointed custody evaluator, Dr. Oas, strongly urged the court to award custody to the father, even going so far as to voluntarily write an additional letter to the court after the trial (but before the judgment) stating how the child's best interests were not being served by the mother, that the child was being harmed by being kept from regular contact with her father, and that the child's life was at risk and she had regressed in the mother's care. Dr. Oas noted that Teddy and her father had a particularly strong bond which should not be broken by forced separation. Teddy was doing well with the treatment sought and provided by the father, but her condition got worse once the mother, and the doctors she selected, began treating her. The mother has, according to Dr. Oas, contrived to deny access of the father to Teddy, all to the child's detriment. The mother would prefer to have this child, a child in crisis, in a day care center than be with the father she loves, the father who has always been ready and willing to care for Teddy, the father who completely changed his business career so he could take care of Teddy in his home. The mother is more interested in her own needs and career than she is of taking care of Teddy, a fact substantiated by Dr. Oas. It is simply inexplicable why the trial court gave custody of Teddy to the mother, and the court does not even attempt to explain its decision. The father was the child's primary caretaker, participating in Teddy's upbringing more than most custodial fathers or mothers. Most importantly, Teddy has suffered physically and emotionally after being forcibly separated from her father, a fact supported by expert testimony. For Teddy's sake, she must be returned to her father. CONCLUSION The award of custody of the parties' minor child should be reversed, and custody of the child awarded to the father, with reasonable parenting time to the mother. In the alternative, on the father's Second Assignment of Error, the case should be remanded for a new trial. Dated: October ___, 1999 Respectfully submitted, Clayton C. Patrick, #77298 388 State Street, #555 Salem, Oregon 97301 (503) 364-6883 Attorney for Respondent-Appellant Photius Coutsoukis