Oregon Court of Appeals Reviews Mother’s Request to Relocate with Child Against Father’s Wishes

April 29, 2009

Mother in this case appealed a trial court’s judgment denying her motion to modify a parenting plan and permit her to move with the child from Oregon to Australia. The trial court determined that it was not in the child’s best interests to permit the relocation. Mother’s basis for appeal was the trial court’s exclusion of testimony of Mother’s expert witness. The Court of Appeals agreed that the trial court erred by excluding the testimony, and reviewed the case de novo, taking into consideration the expert testimony. Ultimately, the Court of Appeals upheld the trial court’s decision and determined that Mother did not meet her burden of showing that the relocation was in the best interests of the child.

In making its determination, the Court of Appeals considered the factors listed in ORS 107.137 that pertain to determining the best interests of a child. Those factors include the emotional ties between the child and the parents, the interest of the parties in and attitude toward the child, the desirability of continuing existing relationships, the preference for the primary caregiver, and the willingness and ability of each parent to facilitate a close and continuing relationship between the other parent and the child. In addition, the court acknowledged that it must "recognize the value of close contact with both parents and encourage, when practicable, joint responsibility for the welfare of [the] children and extensive contact between the minor children of the divided marriage and the parties." ORS 107.105(1)(b).  

The court pointed out that Mother’s main argument for the move revolved around benefits for herself, and not the child, namely that she would “be happier” and that a “happier parent is a better parent”, that she would have a variety of social services available to her in Australia, and that preventing her from moving was “not fair”. These arguments did not persuade the Court that it was in the child’s best interests to move. However, the Court did agree that it was appropriate that Mother be granted an additional week of parenting time in the summer, giving her one four-week period of parenting time in which to travel to Australia to visit.

Read the Fedorov and Fedorov case: http://www.publications.ojd.state.or.us/A135107.htm

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