Estens v. Wells

Summary

The Oregon Court of Appeals reversed and remanded a supplemental custody judgment that changed joint custody to sole custody for the father. The court held that the trial court failed to determine the primary caregiver and apply the statutory preference, and improperly treated the mother's alleged verbal gaslighting and dishonesty as abuse under Oregon custody statutes. The court concluded that these errors were not harmless.

Holdings

1. A trial court must determine which parent is the child's primary caregiver and account for the statutory preference afforded to that parent when deciding custody. The trial court erred because, although it discussed the primary-caregiver factor, it did not communicate a determination of which parent was the primary caregiver or explain how the preference affected its custody decision.
2. Mother's alleged verbal conduct, characterized by the trial court as gaslighting, did not constitute abuse under ORS 107.705(1) or ORS 107.137(1)(d). The conduct involved unhealthy communication, dishonesty, and exaggeration or misrepresentation, but no threat of physical violence, fear of imminent bodily injury, or serious and menacing conduct.
3. The errors were not harmless because there was more than a little likelihood that the trial court's failure to properly apply the primary-caregiver preference and its finding of abuse affected the custody outcome.

Questions Presented

1. Whether the trial court erred by failing to determine which parent was the child's primary caregiver and to afford that parent the statutory preference under ORS 107.137(1)(e).
2. Whether the trial court erred by finding that mother's verbal communications and alleged gaslighting constituted abuse under ORS 107.137(1)(d) and ORS 107.705(1).
3. Whether the trial court's errors were harmless.

Disposition

reversed_and_remanded