Appeal from Circuit Court, Clackamas County. Dale Jacobs, Judge.
Donald C. Walker, Portland, argued the cause and filed the brief for appellant.
Anne K. Schneider, Oregon City, argued the cause for respondent. With her on the brief were Santos and Schneider, Oregon City.
Thornton, Judge. Langtry, Presiding Judge, and Foley, Judge.
This is a child custody appeal. The sole question presented is this: Did the trial court err in deciding after an evidentiary hearing that the mother (plaintiff) had not offered sufficient proof of a change in circumstances to justify changing the custody of her two sons, aged 13 and 11 years, from their father to her.
Plaintiff and defendant were married in 1958. Both boys involved in this proceeding were born of this marriage.
In 1961 plaintiff filed for divorce, requesting custody of the boys. Defendant father filed a cross-complaint requesting the same relief. When the case came on for trial plaintiff presented no evidence and in fact did not attend the trial. On December 6, 1961, the court granted a divorce to defendant, awarding him custody of the two boys who at that time were aged two years and nine months respectively. The decree incorporated a separate written property settlement agreement in which the parties agreed the father was best suited for custody.
Since the 1961 divorce the boys have continued to live with their father in the same house and city. While holding down a full-time job, he has managed to raise the children with the assistance of babysitters, neighbors and friends. During this 11-year period between the divorce and the motion to modify, the mother has not maintained any relationship with her sons even though the divorce decree granted her visitation rights and she lived in the Portland area until March 1972.
The evidence reveals that the mother had visited the children several times in 1962, but has had substantially no contact, not even a birthday or Christmas card, from September 1962 to July 1972, a period of almost 10 years. At the hearing her explanation for this lack of contact was that she did not wish to subject the boys to the emotional strain caused by the inevitable arguments she would have with their father whenever she did visit.*fn1
The evidence further reveals that plaintiff mother later married the man with whom she was involved at the time of the 1961 divorce, but this marriage also ended in divorce.
At the time of the present custody hearing (September 15, 1972), plaintiff had been married to her third husband for only one week. The evidence was that she ...