Gilbride v. Smith

                                      565

      Argued and submitted September 15, 2022, reversed and remanded
                             October 11, 2023


                      Nicole Marie GILBRIDE,
                       Petitioner-Respondent,
                                  v.
                      Christopher M. SMITH,
                       Respondent-Appellant.
                     Union County Circuit Court
                        19DR01813; A175822
                                   

     In this child custody dispute, father appeals from a supplemental judgment
awarding mother sole legal custody of child in the context of his motion to modify
a previous custody judgment. Father argues, first, that the trial court abused its
discretion in denying his motion to appoint a custody evaluator and, second, that
it legally erred in its application of ORS 107.137(1) in determining that it was in
the child’s best interest for mother to have legal custody. Mother does not appear
on appeal. Held: Under the circumstances of this case, the trial court abused its
discretion in denying father’s motion to appoint a custody evaluator and that
error was not harmless. Because it is likely to arise on remand, the Court of
Appeals also addressed father’s contention that the trial court applied an incorrect legal standard in its custody determination and concluded that the court
applied the correct standard.

    Reversed and remanded.



    Thomas B. Powers, Judge.
   Daniel S. Margolin argued the cause for appellant. Also
on the brief was Margolin Family Law.
    No appearance for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
    ORTEGA, P. J.
    Reversed and remanded.
566                                                        Gilbride v. Smith

           ORTEGA, P. J.
         In this child custody dispute, father appeals from a
supplemental judgment awarding mother sole legal custody
of child in the context of his motion to modify a previous
custody judgment. Father argues, first, that the trial court
abused its discretion in denying his motion to appoint a custody evaluator and, second, that it legally erred in its application of ORS 107.137(1) in determining that it was in the
child’s best interest for mother to have legal custody. Mother
does not appear on appeal. We conclude that, under the circumstances of this case, the trial court abused its discretion
in denying father’s motion to appoint a custody evaluator
and that the error was not harmless. Because it is likely to
arise on remand, we also address father’s contention that
the trial court applied an incorrect legal standard in its custody determination and conclude that the court applied the
correct standard. Accordingly, we reverse and remand for a
new trial on father’s motion to modify the judgment.
         BACKGROUND AND PROCEDURAL FACTS
         We state the facts relevant to our disposition, beginning with the facts that were before the court at the time
it ruled on father’s motion to appoint a custody evaluator,
deferring to the court’s implicit and explicit factual findings
that are supported by evidence in the record.1 Stancliff and
Stancliff, 

, 

 (2022); see also
State v. Pitt, 

, 

 (2012) (evaluating “a claim of pretrial error on the basis of the same record
that the trial court relied on in making the challenged
ruling”).
        Father and mother met in Pennsylvania and were
involved in a brief relationship that mother abruptly ended.
A short time later, mother informed father that she was
pregnant, and A was born in Idaho in January 2015. After
child turned three, an Idaho court entered a judgment in

    1
      Father requests that we exercise our discretion to review the trial court’s
custody determination de novo. ORS 19.415(3)(b); ORAP 5.40(8)(c). We decline to
do so because the trial court made express factual findings, including demean- or-based credibility findings, and father does not identify any factual error in the
trial court’s custody determination, but rather argues only that the trial court
legally erred in applying ORS 107.137 in that determination. ORAP 5.40(8)(d).
Cite as 

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July 2018 awarding father and mother joint legal and physical custody of A. The Idaho custody judgment provided,
among other things, that mother, who lives in Oregon, was
to have primary physical and residential custody of A at all
times when A is not in father’s care; that father, who still
resides in Pennsylvania, was to have monthly and summer
visitation and provide notice to mother of the specific visit
dates; and that father was to have daily uninterrupted video
calls with A during certain hours.
         In January of the following year, father registered
the Idaho custody judgment in Oregon and, the following
month, moved pursuant to ORS 107.434 to enforce parenting time ordered in that judgment. In an affidavit in support
of his motion, father averred that mother had violated the
parenting time order in multiple ways, including by regularly refusing to agree on dates for monthly and summer
visits despite father providing proper notice, threatening to
disallow or be unavailable for visitation, ignoring requests
for daily video calls and actively monitoring and interfering
with those calls, and refusing to provide A’s medical and
educational records to father.
         After a hearing on the motion in March 2019, in
which mother appeared pro se2 and father appeared with
counsel, the trial court found that mother had violated the
custody judgment by improperly denying parenting time
and by acting unreasonably in the exercise of parenting
time. Specifically, the court found father’s testimony credible and that mother had denied father 31 days of parenting time between July 2018 when the Idaho judgment was
entered and February 2019. The court entered an order, over
mother’s objection, which further found that father had been
denied uninterrupted video calls with A and that “[m]other
is putting up road blocks and is not demonstrating a desire
to cooperate with [f]ather or foster parenting time with
[f]ather and [A].”
       After another hearing in May 2019, the trial court
awarded father attorney fees over mother’s objection. See
     2
       Mother retained counsel in May 2020, but the trial court granted counsel’s
motion to withdraw in November 2020. Accordingly, mother appeared pro se for
all trial court proceedings in this case.
568                                        Gilbride v. Smith

ORS 107.434(2)(d) (“In addition to any other remedy the
court may impose to enforce the provisions of a judgment
relating to the parenting plan, the court may … [a]ward
the prevailing party expenses, including … attorney fees
… incurred in enforcing the party’s parenting plan.”). In
doing so, the court found, pursuant to ORS 20.075(1), that
mother’s conduct giving rise to the litigation, her asserted
claims and defenses, and her conduct during the proceedings were objectively unreasonable, even taking into account
that she was not represented by counsel.
          In January 2020, father moved to modify the custody judgment to award him sole custody of A, alleging
that mother “is unable or unwilling to make decisions with
[father] in the best interests of [A] and in fact is making
decisions that are harmful and detrimental to” A. According
to father’s declaration in support of his motion to modify the
custody judgment, his parenting time had “significantly
deteriorated” since the enforcement hearing the previous
March, and he feared for A’s safety, psychological development, and overall stability and well-being. Father also
stated, among other things, that mother had acted in “blatant … disregard for the court’s authority” by threatening
to deny father’s summer visitation and to move out of state;
that mother continues to deny or substantially interfere
with daily video calls and disparages father in front of and
through A during calls; that mother threatens father with
criminal charges when he attempts to communicate with
her about A and threatened to make sure that A “hates” him
unless he drops the attorney fee award; and that mother
falsely accused father’s fiancée of sexual abuse.
         Later that month, father filed motions pursuant to
ORS 107.425 for a psychological evaluation of mother and
for appointment of a custody evaluator or, alternatively, to
appoint counsel for A. Father’s proposed order for appointment of a custody and parenting time evaluator specified,
among other things, who would conduct the evaluation, the
scope of the evaluation, the parties’ and child’s cooperation
in the evaluation, the use of the resulting report, and that
father would pay the cost of the report up front subject to
reallocation.
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         According to father’s declarations submitted in support of the motions for psychological evaluation of mother
and A, during A’s summer visit to Pennsylvania in 2019,
she frequently exhibited sexually inappropriate behavior
and, upon returning to Oregon, a complaint was filed with
Oregon Department of Human Services accusing father of
sexually abusing A, which was quickly deemed unfounded.
Father also stated that mother had exhibited erratic and
unpredictable behavior and dishonesty since they first met.
A legal assistant who had previously worked with father’s
attorney submitted a declaration in support of father’s
motion for a psychological evaluation of mother describing mother’s “ridiculous, irrational, and completely separated-from-reality behavior” that she had witnessed while
working on the case, including that mother falsely accused
father’s attorney of identity theft for requesting the Idaho
custody judgment from the Canyon County clerk of court,
that mother threatened father at the courthouse after the
enforcement hearing and repeatedly called and threatened
him after they had left, and that mother repeatedly acted
in a punitive manner towards father even when it directly
impacted A’s safety, such as refusing to provide a car seat
or A’s medications for visits. Finally, father’s attorney submitted a declaration in support of father’s motion to appoint
a custody evaluator stating that this case “involves significant disputes regarding parental fitness, custody, parenting time, and many related issues with respect to the best
interests of [A].” Father’s attorney acknowledged the DHS
investigation of the family but stated that it “did not allow
for the depth or breadth to evaluate the parties’ relationship with [A], the parents’ ability to act in [A’s] best interest,
the parents’ associates, or the parents’ home situations, or
observation of parental interaction with [A].” Father’s attorney further stated that a “qualified professional evaluator
can provide all of that information—as well as a thorough
evaluation of the statutory custody factors [under ORS
137.107]—to the court” in a “comprehensive custody evaluation,” which would be “the most complete and accurate
information in making the important decisions that are at
issue in this case.” Father’s attorney proposed a “qualified
and respected” evaluator who had conducted over 140 such
570                                           Gilbride v. Smith

reports in 15 Oregon counties and affirmed that father was
willing to initially cover the cost of the evaluation subject to
reallocation.
         In February 2020, mother filed a pro se objection to
the motion to modify the custody judgment. She agreed that
the current parenting plan was “not working,” but blamed
father for violating the custody judgment and enforcement
order by, among other things, not informing mother when A
visited the emergency room, not communicating with mother
about summer parenting time, and disparaging mother in
front of and through A. Mother also alleged that father lies
about mother, that father has control and anger issues, and
that his pursuit of custody of A is intended to “bully” mother
and alienate A from her established relationships.
         The trial court held a hearing on the motions in
April 2020. Mother initially opposed father’s motion to
appoint a custody evaluator “[d]ue to COVID-19.” The court
suggested accelerating the case despite the Chief Justice
Order postponing most cases until June due to the pandemic,
and father opposed that suggestion, given the gravity of the
allegations and the need to gather all relevant information
to present to the court in making its decision regarding A’s
best interests.
         Beginning with the motion for a psychological
evaluation of mother, father explained that the motion to
change custody placed in controversy mother’s mental state
and her fitness to have custody of A, in light of mother’s
erratic behavior as described in the declarations. The court
interjected:
       “THE COURT: Which then raises the immediate
   question of … why would the court need the services of a
   psychological evaluation if there would be robust evidence,
   you know, one side or the other or both, about behaviors
   and conduct that would provide a factual basis for the court
   to make decisions? Because what I’m hearing is—if it is
   all true, why would it take a psychological evaluation that
   would take quite a bit of time and cost probably a couple of
   thousand dollars if we can even get it scheduled?
      “A lot of these evaluators are not providing services
   right now, or they are backlogged …. So why—why would
Cite as 

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  everybody assume the delay in time and very significant
  expense if the court could just evaluate testimony and evaluate evidence and make findings of fact based on that?
      “What would this evaluation add that would be worth
  the delay and the expense? And it’s really the same question for all three [evaluations].
     “…
      “… [W]hat it comes down to is that these are typically
  tools … that actually, A, typically, are not used in modification proceedings, number one. Number two, they’re
  entirely discretionary. Number three, the question for the
  court in its exercise of discretion is why ought—why should
  the parties assume significant expenses if the same information could not be generated at a hearing absent all that
  time and money? So let’s talk about that generally with
  these motions.
     “…
     “I understand that … original motions, dissolution
  proceedings, modifications, enforcements, contempt proceedings in family—all of those proceedings allow it.
     “The reality is, they are uncommon, and it would be
  extraordinarily rare to have all three of these ordered in
  one case. So that’s why I just want to get to that issue,
  why—what’s the value added.”
         Father responded that a change in custody from
mother to father would be significant given their geographical distance, that a custody evaluation would be in the
child’s best interest because it would provide the most complete and impartial information about the parents’ fitness
and circumstances as it relates to and impacts A, and that
such information could not be presented in a day-long trial,
particularly in light of mother representing herself:
     “[Father’s attorney:] [B]ecause we have a situation
  where Father lives in Pennsylvania and Mother lives in
  Union [County]; so they’re, you know, several thousand
  miles away. So what we’re asking for is a change in custody,
  which would literally take this child from Oregon and have
  her primary residence be in Pennsylvania.
     “So what we’re asking for is such a significant change
  that we want to make sure we have fully established every
572                                           Gilbride v. Smith

  possible fact that the Court needs to weigh to make that
  determination, because we’re very serious about that and
  we know that it’s a very serious request.
      “…
      “There are a lot of facts that we can bring to bear that
  the Court can use as a basis to grant the relief that we are
  requesting. … But we believe this is to a degree where
  someone with psychological or medical training will have
  insight into the situation, and particularly its impact on
  the child, that would be relevant to the determination of
  best interest. Those are factors that are, frankly, outside
  of our training and specifically I believe why the statute
  allows for someone in a medical or psychological field to
  opine about these issues beyond just the factual basis.
     “… [W]e want to look at what is the impact on the
  child, what has happened to the child. We believe that it
  rises to the level of emotional or psychological abuse and
  those are things that I think a third party professional is
  best to opine about.
     “And we want to get it away from he-said, she-said,
  Mother versus Father, because it’s not about he-said and
  she-said. We’re talking about issues that are complex,
  issues that are extremely hard hitting in this case, especially when you’re dealing with a four-year-old girl.
     “… And when we’re in a hearing—say we’re set for
  eight hours; we can’t in eight hours grasp everything that
  we need to consider. So we would like a psychological evaluation of the child where the person can have hands-on
  observation and interaction with the child and use their
  professional training to make opinions about that. The
  same thing with Mother.
      “And since we’re kind of dealing with them all together,
  because I agree they do repeat the same analysis, a custody
  evaluation, especially with an unrepresented party, I think
  is important because that person can get in there, interview the parties, observe the parties with the child, look
  at collateral sources, look at the surroundings of the child,
  and make a much more informed opinion than what we can
  do in a number of hours in a courtroom setting.”
        After father answered the court’s logistical questions regarding the evaluations pertaining to scheduling,
Cite as 

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costs, release of information, and a protective order, the
court asked for mother’s response to father’s arguments on
each of the three motions. Mother responded, “I’m okay with
it,” and raised concerns only about her medical information being protected and father’s proposed evaluator having
briefly acted as a mediator in the case.
         The trial court granted the motion for a psychological evaluation of mother and denied the motions for a psychological evaluation of A and a custody evaluation:
      “THE COURT: I do believe, [counsel], that there are
  circumstances in this case that likely do raise issues of
  fact that might be outside—that might require expert testimony outside what we typically would hear from lay witnesses or simple fact witnesses that would be necessary to
  inform the court’s decision on the motion to modify. So I
  think that there will be some relief here, but I just can’t see
  value added, so to speak, to support ordering all three of
  these evaluations.
          “From what I’ve heard, … a lot of it comes through
  in the declaration and the affidavits that [counsel] submitted with the motions—it sounds like the central issue, if
  there could be one defining issue in the case, quite frankly,
  is the mental state or the psychological state of [mother].
  And that seems to be a huge issue in this case. It has certainly been an issue when this matter has come to the
  court before.
      “So I do think that there is a basis in fact and a need
  for additional, particularly expert, fact finding to get issues
  resolved for the court or presented to the court for resolution as to the psychological state of Mother. I also note that
  [mother] does not oppose that motion.
          “Because there is good cause to grant it, and
  because it is unopposed, I will grant the motion and order
  that a psychological evaluation of [mother] be conducted.
     “…
     “… [B]ecause that issue is so central to the case and
  because I would anticipate that a qualified thorough examination and the appropriate report to the court, shared
  between the parties, would give the court a robust body of
  fact and expertise to rely on in making a decision in this
  case.
574                                              Gilbride v. Smith

      “I do not at this point see that there is sufficient good
   cause that would have me exercise my discretion to grant
   the other two motions.”
          After a January 2021 trial on the motion to modify the custody judgment, the trial court ruled that a substantial change in circumstances had occurred since the
last judgment—specifically, the quantitative and qualitative degree of mother’s interference with father’s parenting
time—that justified a change in custody, parenting time,
and child support. Turning to the best-interest factors under
ORS 107.137(1), the trial court explained that this was “an
extraordinarily close case” and that it found “a lot of [m]other’s behavior very disturbing, very troubling” and “her credibility … sorely lacking in some key[ ] areas in this case”
such that “it almost, almost led this court finding her to be
an unfit parent.” However, the court concluded that it was
not convinced that it was in A’s best interest to relocate to
Pennsylvania, given that the expert who evaluated mother
had no opinion on mother’s overall fitness as a parent and
that there was no expert testimony regarding the risk to A
of relocating. The court therefore awarded sole legal custody
to mother. This appeal followed.
                          DISCUSSION
        We first address father’s assignment of error challenging the trial court’s denial of his motion to appoint a
custody evaluator. ORS 107.425 provides, in relevant part:
       “(1) In suits or proceedings described in subsection
   (4) of this section in which there are minor children
   involved, the court may cause an investigation to be made
   as to the character, family relations, past conduct, earning ability and financial worth of the parties for the purpose of protecting the children’s future interest. The court
   may defer the entry of a general judgment until the court
   is satisfied that its judgment in such suit or proceeding will
   properly protect the welfare of such children. The investigative findings shall be offered as and subject to all rules of
   evidence. Costs of the investigation may be charged against
   one or more of the parties or as a cost in the proceedings
   but shall not be charged against funds appropriated for
   public defense services.
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           “(2) The court, on its own motion or on the motion
   of a party, may order an independent physical, psychological, psychiatric or mental health examination of a party or
   the children and may require any party and the children to
   be interviewed, evaluated and tested by an expert or panel
   of experts. The court may also authorize the expert or
   panel of experts to interview other persons and to request
   other persons to make available to the expert or panel
   of experts records deemed by the court or the expert or
   panel of experts to be relevant to the evaluation. The court
   may order the parties to authorize the disclosure of such
   records. In the event the parties are unable to stipulate to
   the selection of an expert or panel of experts to conduct the
   examination or evaluation, the court shall appoint a qualified expert or panel of experts. The court shall direct one or
   more of the parties to pay for the examination or evaluation
   in the absence of an agreement between the parties as to
   the responsibility for payment but shall not direct that the
   expenses be charged against funds appropriated for public
   defense services. If more than one party is directed to pay,
   the court may determine the amount that each party will
   pay based on financial ability.”
A court has authority to order such independent investigation or examination of a party or the children in specified
cases, including when, as here, “[a] motion to modify an
existing judgment in a domestic relations suit is before the
court.” ORS 107.425(4).
         The statute’s permissive text indicates that the
trial court’s ruling is a matter of discretion, which we consequently review for abuse of discretion. “Discretionary
decisions are those in which a court chooses among several
legally correct outcomes.” State v. Mott, 

, 

 (2023). “Accordingly, a first step in analyzing the
exercise of discretion is to determine the boundaries that
define the range of permissible discretion.” State v. Pilon,

, 

 (2022). The text of ORS
107.425 provides some guidance on how the court should
exercise its discretion: the purpose of an investigation is to
“protect[ ] the children’s future interest,” and the court may
take such time as to allow it to be “satisfied that its judgment … will properly protect the welfare of such children.”
576                                         Gilbride v. Smith

         That guidance is consistent with the framework of
the child custody statutes generally. Cf. Pilon, 

 (explaining that a continuance motion made to
remedy a discovery violation “operates within the boundaries of discretion afforded by the discovery statutes” and
evaluating the trial court’s exercise of discretion “within
that statutory framework”). The “primary consideration in
a child custody proceeding is the best interests of the child.”
Dept. of Human Services v. T. G. H., 

, 

 (2020) (citing Greisamer and Greisamer, 

, 

 (1976) (internal quotation marks omitted));
see also State ex rel Johnson v. Bail, 

, 

 (1997) (“[T]he overriding theme of the child custody
statutes is the best interests of the child.” (Footnote omitted.)). That objective is reflected in ORS 107.137(1), which
provides that, “in determining custody of a minor child
under ORS 107.105 or 107.135, the court shall give primary
consideration to the best interests and welfare of the child.”
It is also reflected in the Oregon public policy directive to
“[g]rant parents and courts the widest discretion in developing a parenting plan,” ORS 107.101(4), and, in doing so, to
“[c]onsider the best interests of the child and the safety of
the parties,” ORS 107.101(5).
         The best interests and welfare of the child were
not always the primary consideration in determining child
custody. Prior to 1961, Oregon law provided that a court
had power to decree “[f]or the future care and custody of
the minor children of the marriage, as it may deem just
and proper, having due regard to the age and sex of such
children, and unless otherwise manifestly improper, giving
the preference to the party not at fault.” Goode v. Goode,

, 

 (1970) (quoting former ORS
107.100(1) (1953), amended by Or Laws 1961, ch 540, § 1).
Under that legal framework, child custody was determined
in an adversarial proceeding where the parties vied to establish grounds for and defenses to a divorce decree. See former
ORS 107.030 (1969), repealed by Or Laws 1971, ch 280, § 28
(providing specific “causes” for which the “dissolution of the
marriage contract may be declared at the suit or claim of the
injured party”); former ORS 107.070 (1969), repealed by Or
Laws 1971, ch 280, § 28 (providing specific bases on which
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the defendant in a suit for dissolution of the marriage may
admit fault and “show in bar of the suit”).
         Authorizing a court to order investigations in domestic relations cases was part of ongoing legislative reforms
aimed at moving dissolution and child custody determinations away from a purely adversarial model and providing
greater representation of the children’s interests in such
determinations. Indeed, ORS 107.425 was enacted as part
of HB 1239 (1971) that, among other reforms, abolished the
doctrine of fault and established “irreconcilable differences”
causing “irremediable breakdown” of marriage as grounds
for dissolution. See generally Or Laws 1971, ch 280. As originally enacted, ORS 107.425 authorized a court to order an
investigation of the parties to protect the children’s future
interest, to order a party to testify as a witness in the investigation, and to appoint counsel for the children. Or Laws
1971, ch 280, § 3.
         In the early 1980s, the legislature amended ORS
107.425 to mandate appointment of counsel for a child upon
the child’s request, Or Laws 1981, ch 775, § 5; to authorize
a court to take testimony from or confer with a child and to
exclude the parents if it “would be likely to be in the best
interests of the child,” Or Laws 1983, ch 369, § 1; and to authorize a court to appoint counsel for children on the court’s or a
party’s motion, Or Laws 1983, ch 386, § 1. In 1989, the legislature added the provision that is now ORS 107.425(2) as
part of SB 389, which also enacted amendments to ORCP 44
promulgated by the Council on Court Procedures adding “a
mental examination by a psychologist” to the list of examinations a court may order under that rule. Or Laws 1989,
ch 1084. Proponents of the bill testified generally about the
purpose and use of “family studies” (also called “custody and
visitation studies”) in domestic relations litigation:
       “In the area of domestic relations litigation, custody and
   visitation studies are frequently used to aid the parties and
   the court in making decisions regarding the selection of the
   custodial parent and the appropriate terms and conditions
   of visitation. The study becomes increasingly important
   if the mental health of either or both of the parties or of
   the children is in question. Apart from the obvious interest of the court in assessing whether one of the litigants is
578                                             Gilbride v. Smith

   mentally ill, custody and visitation litigation is often peppered with allegations of drug and alcohol abuse or physical,
   sexual or emotional abuse of the children or one of the [parents]. The family study investigation is extremely helpful
   in providing the litigants and the court with a professional
   assessment of the family and recommendation to resolve
   the custody and visitation issues. Cases are often settled
   after the family study report is known to the parties.
       “Family law practitioners customarily stipulate to the
   utilization of an expert to prepare such evaluations. Many
   psychologists have developed practices which emphasize
   family law litigation. The problem occurs if one of the [parents] will not stipulate to the investigation or to the use of
   a psychologist to conduct the investigation or if the parties are unable to agree as to which party shall bear the
   expense of the investigation.”
Testimony, Senate Committee on Judiciary, SB 389, Apr 18,
1989, Ex U (statement of Oregon Trial Lawyers Association
representative Judy Snyder); see also Testimony, Senate
Committee on Judiciary, SB 389, Apr 18, 1989, Ex T (statement of Oregon Psychological Association representative
Lorah Sebastian) (“In difficult and hotly contested custody
battles it is important for the judge to have as much standardized and impartial information as possible to make a
decision.”).
         The evolution of ORS 107.425 evinces the legislature’s intent to facilitate more robust factfinding relating to
the best interests of children involved in custody disputes,
born of a recognition that, because children are not parties
to an adversarial custody proceeding, their interests may
not be fully represented by the parties or their advocates. In
an early opinion of this court, we explained that a statutory
predecessor to ORS 107.425 “was enacted to afford a measure of protection to the children of the parties, who, otherwise unrepresented under our adversary system, too often
are left the unwitting victims of warring parents.” Goode,

 (citing former ORS 107.430 (1969), repealed
by Or Laws 1971, ch 280, § 28). We observed that “it may be
hoped that its greater utilization in appropriate cases will
result,” particularly given a then-recent enactment allowing
for a court to grant a divorce decree where both parties were
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at fault. 

 (citing former ORS 107.035 (1969), repealed by
Or Laws 1971, ch 280, § 28).
         Goode involved a divorce suit in which the parties
charged each other with cruel and inhuman treatment, see
former ORS 107.030(6) (1969), repealed by Or Laws 1971,
ch 280, § 28 (cruel and inhuman treatment as a cause for
an injured party to be granted a divorce decree), and the
trial court awarded custody of the three-year-old child to
the mother. 

. In reviewing the custody determination, we noted that the trial court there “did not have
the advantage of an investigation it had the power on its
own motion to order,” suggesting that it may have been an
appropriate case to order such an investigation because:
    “[t]he vital question here is the impact, both present and
    projected, upon the normal development of this three-yearold boy of the mother’s past conduct, standards and emotional instability.[3] Though not his father’s fault, the child
    has had but little contact with him. Evidence concerning
    this of necessity is almost exclusively under the control of
    the parent having the custody of a small child. A competent
    social or psychological evaluation of child or parents can be
    of material aid to the court, and in any given case might
    well prove decisive.” 4
Goode thus identified the challenge posed when a child’s
best interests are determined through an adversarial proceeding to which the child is not a party: relevant evidence
pertaining to the child’s best interests may be lacking, and
a party who wishes to present such evidence may have no
practical way to do so due to lack of access to the child or
the other party. See ORS 107.137(1) (setting forth relevant
     3
       The court was applying the applicable legal standard under former ORS
107.100(1)(a) (1969), repealed by Or Laws 1971, ch 280, § 28, which provided in
part that “[i]n determining custody the court shall consider the best interests of
the child and the past conduct and demonstrated moral standards of each of the
parties.”
     4
       We twice reaffirmed our observation in Goode of the “advantage” of an
independent investigation to a court in aid of its decision-making. See Mrozek v.
Mrozek, 

, 

 (1973) (“In making its [custody] award
the trial court had the advantage of a study made pursuant to ORS 107.425(1).”);
Gasser and Gasser, 

, 

 (1974) (“While we adhere
to our comments in Goode[ ] concerning its utilization as an aid to the court in
appropriate cases, it is clear that on this record that there was no abuse of discretion in not ordering the study authorized under that section, particularly in view
of the fact that neither party requested the court to order one.”).
580                                          Gilbride v. Smith

factors a court must consider in determining the best interests and welfare of the child); ORS 107.137(4) (“In determining custody of a minor child under ORS 107.105 or 107.135,
the court shall consider the conduct, marital status, income,
social environment or lifestyle of either party only if it is
shown that any of these factors are causing or may cause
emotional or physical damage to the child.”).
         There may be additional case-specific factors at
play in a given case, as well as relevant institutional and
systemic factors that a court may consider in its exercise of
discretion. See Mott, 

 (explaining that a court’s
exercise of discretion may consider a variety of factors that
implicate case-specific, institutional, and systemic interests). But, consistent with the statutory framework governing child custody, the court’s primary consideration in
exercising discretion under ORS 107.425(2) must be how the
relevant factors implicate the child’s best interests.
         With that understanding of a court’s discretion
under ORS 107.425(2) in mind, we turn to father’s arguments and the trial court’s express reasoning for denying
father’s motion to appoint a custody evaluator. See Mott, 

 (considering the court’s express rationale in determining whether it abused its discretion); cf. A. D. L. and
Lane, 

, 

 (2023) (“To properly
exercise discretion, a court must inquire into the nature of
and reasons for a party’s continuance request and evaluate its merits.”). Father argues that “[t]he purpose of ORS
107.425 is to promote further investigation of high conflict
families in order to protect the welfare and promote the best
interests of children” and that his request for a custody evaluation “was presented at a time where there was evidence of
substantial dysfunction and potential harm to the child.” In
father’s view, the trial court failed to explain its reasoning
for denying the motion, aside from mother’s opposition and a
lack of “good cause” to grant it, and that, in any event, “[n]o
good cause existed to deny the motion in light of [m]other’s
disturbing behavior directly impacting [f]ather’s relationship with the child, [f]ather’s offer to pay the entire cost in
advance, and [his] offer of logistical solutions to the parties’
geographical distance.”
Cite as 

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         “When reviewing a trial court’s decision for abuse
of discretion, the record must supply enough information
to allow appellate courts to engage in a meaningful review
of the trial court’s exercise of discretion.” State v. Stull, 

, 

 (2016), rev den, 

(2017). Although the court’s explanation “need not be lengthy
or complex, … it must comport with the applicable legal
framework and describe the basic reasons for the court’s decision.” 

 (internal quotation marks and citation omitted).
          Here, the trial court’s brief explanation for denying
father’s motion to appoint a custody evaluator immediately
followed the court’s colloquy with father’s counsel and its
stated reasons for granting father’s motion to order a psychological evaluation of mother. During that colloquy, the
trial court identified the grounds on which it would exercise
its discretion on all three motions: in its view, because courtordered evaluations 1) are not typically ordered in modification proceedings, and 2) are “entirely discretionary,” father
needed to show that 3) the evaluation would be “worth the
delay and the expense” in that it would add relevant information that could not otherwise be generated in an adversarial hearing. Ruling on the motions, the court found that
the circumstances of the case “likely do raise issues of fact
… that might require expert testimony outside what we
typically would hear from lay witnesses or simple fact witnesses that would be necessary to inform the court’s decision on the motion to modify.” The court then explained that
“the central issue, if there could be one defining issue in the
case, quite frankly, is the mental state or the psychological
state of [mother],” which was also apparent to the court from
the prior enforcement proceeding. For those reasons, and
because mother did not oppose the motion, the trial court
found “good cause” to grant the motion to order a psychological evaluation of mother. By contrast, the trial court ruled
that it did not find “sufficient good cause” to exercise its discretion to grant the other two motions.
         We agree with father that under the circumstances
of this case, the court abused its discretion when it denied
father’s motion to appoint a custody evaluator. We first
observe that, absent a relevant supplemental local rule,
582                                          Gilbride v. Smith

whether it is the typical practice of a jurisdiction to exercise
discretion in certain cases is not relevant to the substantive
legal standard under the applicable statute. And, as discussed above, a court’s authority to grant relief under ORS
107.425 is not entirely discretionary; it must be exercised
within the bounds of the governing statutory framework.
Accordingly, it appears that the trial court may have exercised its discretion based on two incorrect legal premises,
which itself constitutes an abuse of discretion. Brush and
Brush, 

, 

 (2022).
         On the merits, the trial court acknowledged that
the circumstances of this case likely raised issues of fact
that required expert testimony to inform the court’s decision
on the motion before it and explained that, in its view, the
“central issue” in the case is mother’s psychological state. In
granting father’s unopposed motion for a psychological evaluation of mother based on “good cause,” the court implicitly
concluded that such an evaluation would be “worth the delay
and the expense” because it would add relevant information
that could not otherwise be generated in an adversarial
hearing. However, as to the other two motions, the court
simply stated that there was not “sufficient good cause” to
grant them. In context, we understand the court to have
denied the motion on the grounds that 1) the custody evaluation would not be worth the delay and expense because
it would not add relevant information that could not otherwise be generated in an adversarial hearing, and 2) mother
opposed the custody evaluation.
         The first reason is unsound on this record. Given
that the court ordered a psychological evaluation of mother,
it is unclear how ordering an additional evaluation would
cause further delay, and father had proposed to cover the
upfront cost of the evaluation. Further, the court’s implicit
finding that a custody evaluation would not add relevant
information that could not otherwise be generated in an
adversarial hearing is not supported by the record, particularly in light of the court’s finding that mother’s psychological state is a “crucial” issue. Mother’s psychological
state may provide additional insight into mother’s conduct,
but that conduct is relevant only insofar as it is “causing or
Cite as 

 (2023)                             583

may cause emotional or physical damage to the child.” ORS
107.137(4). And because mother was the primary residential
parent, father did not have meaningful access to evidence
of the impact of mother’s psychological state and attendant
conduct on A. The geographical distance between mother
and father, the court’s previous finding in the enforcement
hearing that mother had substantially interfered with
father’s parenting time and had acted objectively unreasonably during the litigation, and the fact that mother was
unrepresented by counsel further compounded that divide.
We do not mean to suggest that such a gap warrants a custody evaluation in every case, as there may be countervailing
case-specific, systemic, and institutional factors that weigh
against it. But the court’s implicit finding here that such an
evaluation would not provide additional relevant evidence
that the parties could not otherwise present was contrary to
the record before it and to reason. State v. Sewell, 

, 

, rev den, 

 (2013) (“An abuse
of discretion occurs when a court exercises its discretion to
an end not justified by, and clearly against, evidence and reason.” (Internal quotation marks and citation omitted.)).
         Which leaves the second reason: mother’s opposition. A court may consider reasoned opposition in exercising its discretion. Mott, 

. Here, mother initially opposed the custody evaluation “due to COVID-19.”
However, when the trial court asked mother to respond to
father’s arguments on the motions, she responded that she
was “okay with it” and only objected to father’s proposed
evaluator and to her medical information being disclosed.
None of those objections justified denying the motion outright, given that they pertained to how a custody evaluation
would be executed, not to the evaluation itself.
        Having concluded that the trial court erred, we next
consider whether the error was prejudicial. Father argues
that the error was not harmless because “[t]he testimony at
trial demonstrated, and the trial court acknowledged, that
[m]other’s conduct was harming the child and that there is
a possibility of future harm by [m]other,” and, in its ultimate ruling, the trial court acknowledged that this was an
extraordinarily close case but explained that it needed more
compelling evidence to find that mother is unfit.
584                                              Gilbride v. Smith

         We readily conclude that the error was not harmless. At the hearing on the motion to modify, the trial court
explained that this was “an extraordinarily close case,”
found “a lot of [m]other’s behavior very disturbing, very troubling” and “her credibility … sorely lacking in some key[ ]
areas in this case” to the point that “it almost, almost led
this court finding her to be an unfit parent.” But the court
concluded that it was not convinced that it was in A’s best
interest to relocate to Pennsylvania, given that the expert
who evaluated mother had no opinion on mother’s overall
fitness as a parent and that there was no expert testimony
regarding the risk to A of relocating. It is apparent to us
that the issues that father sought to address with a custody
evaluation were precisely the issues that the trial court considered most significant when deciding whether it was in
A’s best interest to modify the custody and parenting time
judgment. Dept. of Human Services v. N. J. V./D. L. O., 

, 

 (2018) (concluding that the
denial of a continuance motion was prejudicial where “the
issues mother sought to address with an updated assessment were precisely the issues that the juvenile considered
most significant when deciding” a guardianship).
         Because the legal issue will likely arise on remand,
we turn to father’s second assignment of error in which he
contends that the trial court legally erred in applying ORS
107.137 in its custody determination. That statute provides,
in relevant part:
       “(1) … [I]n determining custody of a minor child
   under … 107.135, the court shall give primary consideration to the best interests and welfare of the child. In determining the best interests and welfare of the child, the court
   shall consider the following relevant factors:
      “(a) The emotional ties between the child and other
   family members;
      “(b) The interest of the parties in and attitude toward
   the child;
      “(c)   The desirability of continuing an existing relationship;
      “(d) The abuse of one parent by the other;
Cite as 

 (2023)                                 585

      “(e) The preference for the primary caregiver of the
   child, if the caregiver is deemed fit by the court; and
       “(f) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship
   between the other parent and the child ….
       “(2) The best interests and welfare of the child in a
   custody matter shall not be determined by isolating any
   one of the relevant factors referred to in subsection (1) of
   this section, or any other relevant factor, and relying on it
   to the exclusion of other factors.”
ORS 107.137. “Under ORS 107.137, whether the trial court
applied the correct legal standard in making the challenged
best interests determination presents a question of law that
we review for legal error.” Murray and Murray, 

, 

 (2017) (internal quotations and citation omitted).
         Father argues that the trial court misconstrued
ORS 107.137(1)(e) by “determining that it would need to
find [m]other unfit in order for the other factors under ORS
107.137(1) to overcome the primary caregiver preference,”
thereby “impermissibly isolating the primary caregiver
preference and treating the factor as dispositive.” In father’s
view, the trial court incorrectly construed ORS 107.137(1)(e)
“to mean that the preference for the primary caregiver
unconditionally prevails over the other factors if the court
cannot find the primary caregiver unfit.”
          We agree with father that it would be legal error for
the court to find that mother was the primary caregiver of
A and to isolate and rely on that factor to the exclusion of
other factors that it found in favor of father. See Murray, 

 (so stating); Gomez and Gomez, 

, 

 (2014) (explaining that the primary caregiver is afforded a statutory preference, but that
factor “is not dispositive”). However, we are satisfied that
the trial court did not impermissibly isolate that factor in
its custody determination. To be sure, in remarks made
during the parties’ closing arguments, the court explained
that, because the other factors equally favored both parties, its decision turned on balancing factors (1)(e) and (1)(f),
that factor (1)(f) “weighs overwhelmingly in favor of
586                                             Gilbride v. Smith

[f]ather,” and that “the only way” that it could conclude that
factor (1)(f) “trump[s] the preference for [m]other as primary
caregiver” would be to conclude that the evidence as to factor (1)(f) “is so overwhelming that it makes [m]other overall
unfit as a parent.” Out of context, that statement suggests
that the court was construing factor (1)(e) to prevail over
the other factors as a matter of law unless the court found
mother to be an unfit parent overall. However, the court also
explained that it was considering all of the factors and that
the primary caregiver preference was particularly significant in this case because “[o]ut of 2196 nights that this child
has been alive, 2076 have been with” mother. Indeed, when
the court announced its custody ruling from the bench the
following day of trial, it considered all the statutory factors
on the record and made clear that it was not isolating and
relying on the primary caregiver preference to the exclusion
of others, but rather that the primary caregiver preference
weighed more heavily in favor of granting custody to mother
under the circumstances of this case:
       “[THE COURT:] So even though [factor (1)(f)] weighs
   overwhelmingly in favor of Father, that factor, plus the
   absence of any additional compelling evidence that Mother
   is unfit, leads me to conclude that the statutory preference
   for the primary caregiver in this case tips the scales on
   custody in Mother’s favor, because I cannot find Mother is
   unfit.
      “…
       “But this court based on all of the evidence that I have
   heard, number one, cannot get to the point of saying Mother
   is so unfit that the risks of her admitted lack of capacity
   in one functional parenting domain outweighs the risks
   of relocating, and for those reasons, custody stays with
   Mother.
      “…
      “[B]ased on a review of the case law, review of the statute, and weighing of the evidence, lack of expert testimony,
   and the equivocation on the fitness issue by the one expert
   who did appear, I just do not believe that it would be in
   the best interests of this child to uproot her, as I said, and
   take her out of everything she’s known for six years and
   put her in a brand-new environment starting first grade.
Cite as 

 (2023)                                587

  That’s too, that’s a bridge too far, a hill too high, however
  you want to put it. But I just am not convinced that it is in
  the child’s best interests to do that.”
We therefore reject father’s contention that the trial court
applied an incorrect legal standard in its custody determination. However, given our disposition of father’s first
assignment of error, the court’s custody determination on
remand will likely be based on a very different record.
        Reversed and remanded.