Nice v. Townley

When applying ORS 107.137(1) in a custody determination, each of the factors listed must be considered and any one factor may not be relied on at the exclusion of another. Additionally, proper consideration must be given to the preference for the primary caregiver under ORS 107.137(1)(e).

Townley (Mother) appealed a trial court judgment giving Nice (Father) custody of their son, M. The trial court awarded Father custody of M on the basis of ORS 107.137(1)(f), reflecting Father's greater "willingness. . . to facilitate and encourage a close and continuing relationship between the other parent [Mother] and the child." Mother, who was the primary caregiver, assigned error to the trial court's award of custody and other provisions of the parenting plan. Specifically, Mother argued that the trial court erred in its application of ORS 107.137(1)(e), by not fully considering the fact that she was the primary caregiver to M. The Court of Appeals held that ORS 107.137(1) requires consideration of all factors listed and does not permit reliance on one factor at the exclusion of others. The trial court did not give proper consideration to ORS 107.137(1)(e), which gives preference to the primary caregiver. Vacated and Remanded.