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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
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
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
August 1994: The father sought and began physical
therapy for the daughter. Tr. 51, 55
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
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.
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.
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
April 1, 1997: Mother moves to New York.
April 7, 1997: Father moves to New York, bring the child
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
"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.
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
SECOND ASSIGNMENT OF ERROR
The Court erred in awarding custody of the minor child to
"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).
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-
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
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
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
"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.
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.
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
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
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
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-
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-
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
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
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
(2) The interests of the parties in and attitude
toward the child;
(3) The desirability of continuing an existing
(4) The abuse of one parent by the other.
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
(3) The comparative physical environment;
(4) The emotional ties of the child to other family
(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
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
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
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
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.
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
Clayton C. Patrick, #77298
388 State Street, #555
Salem, Oregon 97301
Attorney for Respondent-Appellant