concurring.
I join in the lead opinion’s disposition and in its reasoning. I write separately to comment on one aspect of the case. I agree, for the reasons stated in the lead opinion, 140 Or App at 342, that the circumstances of this case are distinguishable from those in Welby and Welby, 89 Or App 412, 414, 749 P2d 602 (1988), where we held that the “strengthened relationship” between a parent and child that results *345from custodial interference or similar wrongful conduct cannot be the basis for finding a substantial change of circumstances. Here, as the lead opinion holds, the changes in circumstances did not result solely from the custodial interference, and Welby therefore does not control.
In my view, however, Welby is due for a comprehensive reexamination. Welby’s blanket rule has two interrelated defects, both of which were identified by Judge Rossman in his dissent in that case: First, it eliminates the factual inquiries that are truly relevant to a custody determination and replaces them with a rule of deterrence that is more suitably addressed — and has been addressed — by the criminal law; and, second, it visits the sins of the absconding parent on the head of the abducted child.
No one condones custodial interference. I do not suggest that “bonding” that results from that act should necessarily or generally be given the same weight in determining whether circumstances have.changed as the affection and dependence that evolve from lawful contacts between the noncustodial parent and the child. That does not mean, however, that a child who has been abducted should be deprived of all consideration of the emotional ties that he or she has developed, and which all other children are entitled to have considered in custody decisions. Stated another way, the fact of the illegal conduct should be considered in making the change of circumstances and custodial determinations, but it should not be treated as a universal and per se negative answer to the inquiry, as Welby would require.
To illustrate, there would normally be a vast difference in both the bonding and the change of circumstances analysis if a child became primarily affiliated with a parent at the age of two and had remained so for 10 years, rather than if the affiliation began at age six and had endured for one year. Under Welby, however, that and similarly graphic factors would have to be disregarded if the primary affiliation began by reason of custodial interference; in such instances, under Welby, a clear and substantial change of circumstances, as well as the best interests of the child, could be given no consideration if they happened to originate with an abduction, however remote its occurrence.
*346Welby cites no authority for its underlying proposition that the deterrence of a particular kind of parental misconduct is not only to take precedence over, but is to replace the usual mode of analysis in change of custody cases. It may be that the resolution under Welby and under the conventional criteria will generally coincide. However, beyond the fact that Welby replaces the child’s well-being with the parent’s punishment or deterrence as the exclusive determinant, its principal operational vice may inhere in its inflexibility: It is simply not correct to say that the relationship of a child with both of its parents cannot be changed beyond the possibility of meaningful restoration by the passage of time, simply because the time period began with a wrongful act.
Haselton, J., joins in this concurring opinion.