In re the Marriage of Smith

ROBERTS, J.,

dissenting opinion.

I disagree with the majority opinion which reverses the trial court’s decision changing custody of the daughter from the father to the mother.

In Remillard and Remillard, 30 Or App 1111, 1114, 569 P2d 651 (1977), we stated:

"The Supreme Court in Greisamer and Greisamer, 276 Or 397, 555 P2d 28 (1976), set forth two essential requirements in deciding if a change of custody is warranted. The parent seeking a change in custody must show that subsequent to the last custody modification the capacity of either parent to properly care for the child has changed. And, considering all the circumstances, it would be in the best interest of the child to make the change.
"Step one in the analysis may be satisfied by showing that following the last change in custody the custodial parent’s circumstances have made him less capable of caring for the child, or that the circumstances of the noncustodial parent have improved to the point that that parent can provide a good home for the child. * *

*466If there is evidence of a change in circumstances of either parent we then must consider whether the best interest of the child is served by a change in custody. Remillard and Remillard, supra, 30 Or App at 1114. Henrickson v. Henrickson, 225 Or 398, 358 P2d 507 (1961).

My analysis of the case convinces me that both of these tests have been met.

The majority states that the improvement in mother’s physical and emotional condition was foreseeable at the time of the decree. I do not agree. In the absence of medical testimony, the court cannot conclude that the improvement was any more foreseeable than a worsening of her condition. The fact is that it has improved and this was a change of circumstances the court could rightly consider.

In Wolff v. Wolff, 25 Or App 739, 742, 550 P2d 1388 (1976), we held:

"* * * The mother’s * * * improved physical and mental health do not constitute the required change of circumstances in the absence of evidence that the father’s care for the children was deficient or otherwise detrimental to them. * * *”

Thus, the mother’s improved physical and mental health is not, by itself, enough to change custody, but there are other factors present here.

The father works from 4 p.m. to midnight and sees Pamela only 40 minutes a day between the time she arrives home from school until the time he leaves for work. In his testimony at the hearing, the father stated that he does not have seniority for the day shift and has made no attempt to otherwise change shifts because he does not like the graveyard shift. The record shows that the father generally works six days a week and, although there are family fishing trips on summer weekends, testimony showed that he spent the average Sunday drinking beer and watching television.

*467In his absence, the father has delegated virtually all of his parental authority to his live-in woman-friend, Sharon. As the majority points out, the mother testified that at the time of the divorce she understood this person to be a housekeeper. Whether Sharon has assumed the parental role by choice or by abdication of the father, it is undisputed that she makes almost all of the decisions regarding Pamela. She goes to Pamela’s school for conferences and the father has never been; she fixes all the meals and the father does not get up for breakfast to see Pamela before she goes to school, and he is not present for evening meals except on weekends. Sharon makes the decisions regarding Pamela’s social activities and communications (including when and if she can talk to her mother on the phone) and, in some instances, supported by the record, she has overridden decisions made by the father. It is doubtful the mother would have expected a person who was a housekeeper at the time of the marriage to exercise this authority over her daughter or that she would have expected the father to play such a small role in the daughter’s life. Although the majority opinion purports to leave custody with the father, it in reality places custody with a third person.

The situation before us is analogous to that in Hogan v. Hogan, 6 Or App 122, 486 P2d 1309 (1971). In that case, we changed custody from a largely absent father to the mother, stating:

" 'Mr. Hogan is, in the vernacular," ' "a good guy.” ’ ” He has, however, necessarily had to make a choice between a domestic situation which isn’t ideal, which never is in domestic situations and which the Court has to evaluate, and his business; and he has chosen his business. * * *’ ” 6 Or App at 126.

The lack of parenting responsibility on the part of the father, coupled with the improved health of the mother, is a change in circumstances sufficient to warrant the change in custody.

We must also evaluate whether the change in custody is in the best interests of the child. In a case of *468this nature, although we review de novo, we give great deference to the findings of the trial judge who has had an opportunity to view and listen to the parties. Starin and Starin, 29 Or App 557, 564 P2d 748, rev den (1977).

The testimony as to Pamela’s relationship with her father and Sharon is conflicting. However, the girl states that she is not allowed to talk with her mother on the phone or to see her at any time other than those set by court order for visitation, even though her mother lives only two blocks from her father’s house. The girl expresses a concern for the arbitrary discipline of Sharon and expresses a desire to live with her mother, whom she says teaches her things and plans activities with her. A psychiatrist testified that Pamela is "a very reasonable, clear-thinking child who had sorted out a great deal for herself and was being very careful and very rational about her own choices.” The psychiatrist also testified that

«* * * purely on the basis of her psychological state, which would be she has a fairly strong need at this point in her life as an eleven-year-old child, fairly mature young girl, to have a significant relationship with a maternal figure, and I think that that’s important to her and important psychologically to her.”

Both the children expressed a desire to live together and to live with their mother. A child’s preference is considered along with all other factors in determining what is in his best interests. Wolff v. Wolff, supra; Tingen v. Tingen, 251 Or 458, 461, 446 P2d 185 (1968).

I would find a change of circumstances has been established and the decision of the trial court as to what is in the best interest of this child is sufficiently supported by the record. I would affirm the decision of the trial court.

I respectfully dissent.