No. 672 July 30, 2025 229
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Marriage of
Robert Lee WEAVER,
Petitioner-Respondent,
and
Holly Lee BUTLER,
aka Holly Lee Weaver,
Respondent-Appellant.
Lane County Circuit Court
18DR07654; A182287
Charles M. Zennaché, Judge.
Argued and submitted April 10, 2025.
Amy D. Fassler argued the cause for appellant. Also
on the briefs was Schulte, Anderson, Downes, Aronson &
Bittner, P.C.
George W. Kelly argued the cause and filed the brief for
respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
AOYAGI, P. J.
Affirmed.
230 Weaver and Butler
AOYAGI, P. J.
Mother and father married in 2012 and divorced in
2018. At the time of dissolution, they agreed to joint legal
custody of their two children, C and J, with a 50/50 parenting plan. In 2022, mother moved for sole legal custody
and a change to the parenting plan, citing a communication
breakdown with father. Father cross-moved for sole legal
custody and sought to keep the 50/50 parenting plan. After
a two-day trial, the court awarded custody to father and
kept the 50/50 parenting plan. Mother appeals the resulting
supplemental judgment. In her sole assignment of error, she
argues that the trial court failed to give proper consideration to the statutory preference for the primary caregiver
in making its custody determination. As described below,
we conclude that the court properly considered the statutory
preference and, accordingly, affirm.
When the trial court makes a custody determination for a minor child in connection with marital dissolution,
whether initially under ORS 107.105 or in a later modification proceeding under ORS 107.135, “the court shall give
primary consideration to the best interests and welfare of
the child.”1 ORS 107.137(1). The court “shall consider” six
factors in deciding what custody arrangement is in the
child’s best interests:
“(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;
“(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
1
“A modification of custody is proper only when there has been a change in
circumstances. Where one party is unwilling to continue a joint custody arrangement—as in this case—a change in circumstances occurs as a matter of law.”
Ladendorff and Ladendorff, 217 Or App 62, 67,
174 P3d 1047 (2007) (internal
citation omitted).
Cite as
342 Or App 229 (2025) 231
the other parent and the child. However, the court may not
consider such willingness and ability if one parent shows
that the other parent has sexually assaulted or engaged in
a pattern of behavior of abuse against the parent or a child
and that a continuing relationship with the other parent
will endanger the health or safety of either parent or the
child.”
Id. (emphasis added).
In this case, the trial court determined that it was
in the children’s best interests for father to have legal custody. The court made findings and explained its reasoning.2
It began by noting that it was a very difficult decision which
parent should have legal custody, because the parties were
“two really dedicated, caring, considerate, smart parents
who are motivated by doing what they think is [in] their
children’s best interest.” It then addressed the six factors.
As relevant to the first and third factors, the court found
that the children are emotionally tied to both parents and
their families and that those ties are important to the children and worthy of continuation. As relevant to the second
factor, the court identified some concerning things that each
parent had done at times, but it ultimately found that both
parents are “very interested in their children”; are “trying
to do the best they can”; have “gone out of their way to make
modifications in their lives that are kid centered”; and have
“strived to do what’s in their children’s best interests,” such
as father agreeing to the children attending a school that
was a better fit for them, even though it was farther from his
house, and mother advocating for individualized education
plans for both children. The court found the fourth factor,
abuse, to be inapplicable.
As to the fifth factor, the court found that both parents were fit and stated that, in terms of caregiving, there
was “not much of a difference here, if any difference at all,”
between them, given that they had been splitting time 50/50
for five years and that both parents were actively involved
2
Mother has not requested de novo review, and we do not provide it. See ORS
19.415(3)(b) (permitting discretionary de novo review in equitable cases); ORAP
5.40(8)(c) (limiting de novo review to “exceptional” cases). We therefore state the facts
in accordance with the trial court’s express and implied factual findings that are
supported by the record. Gilbride v. Smith, 328 Or App 565, 566,
537 P3d 961 (2023).
232 Weaver and Butler
in making decisions for the children. However, the court recognized that it was required to designate a primary caregiver. See Henretty v. Lewis,
319 Or App 345, 348,
509 P3d
701 (2022) (“[D]esignating which party is the child’s primary
caregiver and giving a preference to that party in deciding
custody is mandatory under ORS 107.137(1)(e).”). The court
decided that mother was the primary caregiver, albeit “just
barely” and “mostly” as an “artifact” of the pre-dissolution
family dynamic, based on mother having taken the lead on
“probably a few more [things] than [father] has.” Because it
was such a close call, the court indicated that it would not
give the primary caregiver factor much weight: “So while
that factor does weigh in favor of [mother], it’s only slightly
so because it’s such a close call.”
As to the sixth factor, the court found that it weighed
significantly in father’s favor, to the point of “driving” the
ultimate custody decision. The court found that, although
mother “talk[ed] about” the importance of the children’s
relationship with father, she was “in court advocating for
a radically reduced parenting time schedule that basically
would turn [f]ather into an every-other-weekend parent
after five years of equal parenting time[,]” whereas father
was advocating for continued 50/50 parenting time. It further found that, although mother was “striving to do what
she thinks is in the children’s best interest,” she valued having a “more nuclear family” in her current household in a
way that made her “willing to sacrifice the relationship with
[f]ather in order” to maintain her nuclear family, and that
mother also “sometimes thinks her relationship with the
children is more important than that of [f]ather with the
children.”
Based on its findings, the court decided that “on balance” it was in the children’s best interests for father to have
legal custody and for the 50/50 parenting plan to remain in
place. The court emphasized that legal custody “is just who
gets to make certain kind[s] of legal decisions,” that it does
not indicate “how good a parent someone is or what their
involvement should be,” and that mother is “a great mom.”
As the court adjourned the proceedings, mother’s counsel
interrupted to ask for clarification on the primary caregiver
Cite as 342 Or App 229 (2025) 233
factor. Describing that factor as a “presumption,” mother’s
counsel asked if it was the court’s findings on the sixth factor or “something else” that “rebuts that presumption.” The
court responded that, “on balance, the other factors outweigh” the statutory preference because that factor “had very
little weight.” The court similarly stated in its supplemental
judgment that, in balancing the factors in ORS 107.137 and
deciding to grant legal custody to father, the court had found
“that the other factors (ORS 107.137(1) (a, b, c, and f)) outweigh the preference for the primary [caregiver] because that
factor had very little weight.”3
On appeal, mother contends that, although the trial
court recognized her as the primary caregiver, it “did not
afford mother the statutory preference required by ORS
107.137(1)(e).” In mother’s view, she was entitled to “the full
strength of the statutory presumption,” instead of the “very
little weight” that the court gave it. Father responds that
the court properly balanced all six statutory factors.
“[W]hether 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.” Finney-Chokey and Chokey, 280 Or App 347, 360,
381
P3d 1015 (2016), rev den,
361 Or 100 (2017). “[I]f we determine that the trial court applied the correct legal standard,
we review the court’s ‘best interests’ determination for abuse
of discretion.” Id.; see Forsi v. Hildahl,
194 Or App 648, 652,
96 P3d 852 (2004), rev den,
338 Or 124 (2005) (“The trial
court abuses its discretion if it exercises that discretion in
a manner that is unjustified by, and clearly against, reason
and evidence.”).
One of the six factors that a court must consider in
making a custody determination is “[t]he preference for the
primary caregiver of the child, if the caregiver is deemed
3
Mother contends that the supplemental judgment is “ambiguous” as to
whether the trial court viewed the first, second, and third factors—those in ORS
107.137(1)(a), (b), and (c)—as neutral or as favoring father, but that the court’s
oral ruling resolves the ambiguity and makes clear that it viewed those factors
as neutral. See Wright v. Lutzi, 326 Or App 29, 33,
530 P3d 517 (2023) (“If a judgment is ambiguous, … we may look to the court’s oral statements to resolve the
ambiguity.”). We need not address that issue given our disposition of mother’s
assignment of error.
234 Weaver and Butler
fit by the court.” ORS 107.137(1)(e). “Generally, the primary
caregiver is the party who has provided more care for the
child and with whom the child has lived a majority of his or
her recent life.” Nice v. Townley,
248 Or App 616, 622,
274
P3d 227 (2012). “Which party is the primary caregiver may
be determined by considering which party has nurtured
the child and has taken care of the child’s basic needs, for
example by feeding the child, nursing the child when he or
she is sick, scheduling daycare and doctor’s appointments,
and spending time disciplining, counseling, and interacting
with the child.” Id.; see also Wanting and Wanting,
306 Or
App 480, 485,
475 P3d 127 (2020) (concluding that mother
“was responsible for meeting the children’s needs on a day- to-day basis” and therefore their “primary caregiver”).
As this case illustrates, trial courts may find it difficult to designate a primary caregiver in cases involving
two very involved parents who share equal parenting time.
They are required to do so, however, given the statutory language. Henretty, 319 Or App at 348. The court’s designation
of a “primary” caregiver in such cases should not be “misconstrued as a judgment on the quality of the other parent’s
parenting or the other parent’s devotion to the child,”
id. at
349, and the same can be said of the court’s ultimate decision on custody. In both regards, the court’s task is not to
decide which parent is “better”—it is to weigh factors identified by the legislature as going to the child’s best interests
with respect to the specific issue of legal custody—and, in
close cases, there is little doubt that either parent would be
a capable legal custodian.
In this case, mother makes two related but distinct
arguments as to how the trial court allegedly failed to give
proper consideration to the statutory preference for the primary caregiver. First, and principally, mother argues that
the court made what amounts to a factual error—that the
court “minimized mother’s post-dissolution role as the children’s primary [caregiver] as being merely a relic of [the parties’] parenting roles during their marriage” and, for that
reason, viewed mother as “just barely” the primary caregiver, which in turn caused it to give “very little weight” to
the primary caregiver preference. Mother points to various
Cite as 342 Or App 229 (2025) 235
pieces of evidence in the record that she views as establishing that she does significantly more caregiving than father.
We do not understand the trial court to have given
less weight to the primary caregiver factor because it viewed
mother’s additional caregiving as an “artifact” of the parties’
pre-dissolution family dynamic. Rather, we understand the
“artifact” comment to be merely a passing observation on
why mother had remained in the role of primary caregiver
even after five years of joint legal custody and 50/50 parenting time.4 As for mother’s claim that “uncontroverted evidence in the record unequivocally supports finding mother
to be the children’s current primary caregiver, rather than
some mere ‘artifact’ of the marriage,” the gist of mother’s
argument is that the only finding possible on this record is
that mother currently does substantially more caregiving
than father. We disagree. We are bound by the trial court’s
express and implied factual findings if there is evidence to
support them, Gilbride v. Smith, 328 Or App 565, 566,
537
P3d 961 (2023), and, on this record, the court could find, as
it did, that the parties provide relatively equal caregiving to
the children, with mother only slightly edging out father in
that regard.5
Mother’s second, less developed, argument is that
the trial court committed “legal error” by applying “a paperthin version of the statutory presumption, without any real
substance as is clearly required by case law and statute.” We
4
Mother argues briefly that the “artifact” comment also could “suggest[ ]
that the trial court did not consider the parties’ current caregiving arrangement
in identifying the primary caregiver” and instead “relied on the parties’ caregiving dynamics during the marriage.” In our view, it is readily apparent from
the court’s findings that it was focused on the children’s current circumstances
and who is currently the primary caregiver. See Nice, 248 Or App at 622 (referring to the child’s “recent life” as the relevant period for the primary caregiver
preference).
5
Mother’s chief argument for her providing substantially more caregiving
than father is that father lets the children spend significant time with their
grandparents during his parenting time. There was conflicting evidence as to
exactly how much time the children spend with their grandparents, and the trial
court did not make findings on that issue. In any event, identifying the primary
caregiver requires consideration of both quantitative and qualitative factors—as
the trial court recognized in its ruling—and mother has not cited any authority
for the proposition that father allowing the children to develop strong ties with
other family members during his parenting time necessarily results in his being
less of a caregiver.
236 Weaver and Butler
understand mother to be suggesting that, as a matter of law,
the court was required to give a certain amount of weight
to the primary caregiver preference and failed to do so. We
reject that view.
Although the trial court must designate a primary
caregiver and give that parent the “preference” identified in
the fifth custody factor, the trial court is required to consider
all six factors in ORS 107.137(1) and has discretion in balancing its findings on different factors in deciding what is
ultimately in a child’s best interests. The court cannot disregard the primary caregiver preference, as it is a mandatory
factor and “a significant consideration.” Henretty, 319 Or
App at 350 (internal quotation marks omitted). Indeed, like
any of the factors, it may even prove dispositive in a given
case, depending on what the court finds on the other factors.
But the fact remains that the primary caregiver preference
is one of six factors that the court must consider—and it is
a preference, not a presumption. Compare ORS 107.137(1)(e)
(identifying “[t]he preference for the primary caregiver of the
child, if the caregiver is deemed fit by the court[,]” as a factor the court must consider), with ORS 107.137(2) (“[T]here is
a rebuttable presumption that it is not in the best interests
and welfare of the child to award sole or joint custody of the
child to [a] parent who committed [abuse as defined in ORS
107.705].”); see also ORS 107.137(2) (providing that custody
“shall not be determined by isolating any one of the relevant factors … and relying on it to the exclusion of other
factors”).
How much weight a trial court gives to the primary
caregiver preference will depend on the facts of the particular case. See, e.g., Gilbride, 328 Or App at 586 (the trial court
properly gave heavier weight to the primary caregiver preference where the child had spent 2,076 of the 2,196 nights
of her life with her primary caregiver); Murray and Murray,
287 Or App 809, 816,
403 P3d 473 (2017) (explaining that
the primary caregiver preference was properly given more
weight in a case in which the child was “very significantly
attached to her mother,” who was her primary caregiver,
and would likely suffer “serious psychological effects” if
placed with her father); Stevens and Stevens, 234 Or App
Cite as
342 Or App 229 (2025) 237
692, 697,
229 P3d 625 (2010) (the primary caregiver preference “weighed slightly in father’s favor”); Ringler and
Ringler,
221 Or App 43, 53,
188 P3d 461 (2008) (weighing
the primary caregiver preference more heavily “in light of
the young age of the children”); Robison and Robison,
124
Or App 479, 482,
863 P2d 478 (1993), rev den,
318 Or 350
(1994) (reversing a custody decision where the trial court
placed too much weight on the fact that the mother was the
primary caregiver).
In this case, we are unpersuaded that the trial court
failed to give proper consideration to the primary caregiver
preference in making its custody determination. The court
did not commit factual error by viewing the record differently from mother with respect to how much caregiving each
parent provides. And the court did not commit legal error or
abuse its discretion by giving the primary caregiver preference significantly less weight—while still giving it some
weight—in a case in which the parties had had joint custody and equal parenting time for five years and mother was
found to provide only slightly more caregiving than father.
Affirmed.
