Underwood
297 P.3d 508
Or. Ct. App.2013Background
- Mother seeks modification of custody of M from grandparents to mother, arguing ORS 109.119(2)(c) and/or constitutional issues; the trial court denied the modification.
- M, born November 2003, has lived with grandparents since shortly after birth; mother signed over custody to grandparents in 2003–2004 and moved around Ohio/Utah.
- Grandparents obtained a default custody decree in 2004 without findings; mother later moved to modify under ORS 107.135 claiming changed circumstances and best interests.
- At the hearing, mother lacked sustained employment and relied on public assistance; grandparents presented evidence of stable caregiving and M’s therapy while mother had history of instability and association with an abusive partner.
- The trial court applied ORS 107.135 standards (change in circumstances and best interests) and found mother failed to demonstrate a change in circumstances or that custody would be in M’s best interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by applying ORS 107.135 instead of ORS 109.119 | Mother argues 109.119 applies and presumes best interests by the legal parent, not the modification standard. | Grandparents contend modification under 107.135; 109.119 not properly invoked or preserved. | Issue not reached; error was invited; court affirmed under 107.135 |
| Whether ORS 109.119(2)(c) unconstitutional as applied | Mother asserts 109.119(2)(c) removes presumption improperly in her case. | Grandparents contend not preserved and not properly argued below. | Not reviewable; preserved issues lacking; court declined to rule on constitutionality |
| Whether trial court properly denied modification under ORS 107.135 | Mother contends she demonstrated a change in circumstances and that custody would be in M’s best interests. | Grandparents argue no change in circumstances and best interests favored continuing custody with them. | Court held no clear change in circumstances and best interests favored continuing with grandparents; no error |
Key Cases Cited
- Boldt v. Boldt, 344 Or 1, 176 P.3d 388 (Or. 2008) (sets modification standard: change in circumstances and best interests)
- Peeples v. Lampert, 345 Or 209, 191 P.3d 637 (Or. 2008) (preservation and invited error guidance)
- State v. S.T.S., 236 Or App 646, 238 P.3d 53 (Or. App. 2010) (presumed facts when no explicit findings; standards on review)
- State v. Kammeyer, 226 Or App 210, 203 P.3d 274 (Or. App. 2009) (invited-error doctrine in appellate review)
- Sjomeling v. Lasser, 251 Or App 172, 285 P.3d 1116 (Or. App. 2012) (abuse of discretion standard for best-interests determinations)