No. 534 October 11, 2023 565

IN THE COURT OF APPEALS OF THE

 STATE OF OREGON

Nicole Marie GILBRIDE,

Petitioner-Respondent,

v.

Christopher M. SMITH,

Respondent-Appellant.

Union County Circuit Court

19DR01813; A175822

Thomas B. Powers, Judge.

Argued and submitted September 15, 2022.

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, 320 Or App 369, 370, 513 P3d 20 (2022); see also 

State v. Pitt, 352 Or 566, 575, 293 P3d 1002 (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 demeanor-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 328 Or App 565 (2023) 567

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.
Cite as 328 Or App 565 (2023) 569

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 328 Or App 565 (2023) 571

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 328 Or App 565 (2023) 573

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.
Cite as 328 Or App 565 (2023) 575

“(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, 370 Or 830, 848, 527 

P3d 758 (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, 

321 Or App 460, 466, 516 P3d 1181 (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, 321 Or App 

at 466-69 (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., 305 Or App 783, 791, 473 

P3d 591 (2020) (citing Greisamer and Greisamer, 276 Or 397, 

401, 555 P2d 28 (1976) (internal quotation marks omitted)); 

see also State ex rel Johnson v. Bail, 325 Or 392, 399, 938 

P2d 209 (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, 

4 Or App 34, 37, 476 P2d 805 (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 
Cite as 328 Or App 565 (2023) 577

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 Judiciary Committee, SB 389, Apr 18, 

1989, Ex U (statement of Oregon Trial Lawyers Association 

representative Judy Snyder); see also Testimony, Senate 

Judiciary Committee, 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, 

4 Or App at 38 (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 
Cite as 328 Or App 565 (2023) 579

at fault. Id. (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. 4 Or App at 35. 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, 13 Or App 362, 363, 509 P2d 55 (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, 16 Or App 675, 676, 519 P2d 1290 (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, 370 Or at 844 (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, 370 

Or at 849 (considering the court’s express rationale in determining whether it abused its discretion); cf. A. D. L. and 

Lane, 325 Or App 355, 361, 529 P3d 294 (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 328 Or App 565 (2023) 581

“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, 281 

Or App 662, 668, 386 P3d 122 (2016), rev den, 360 Or 752 

(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.” Id. (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, 319 Or App 1, 7-8, 509 P3d 124 (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 328 Or App 565 (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, 257 Or App 

462, 469, 307 P3d 464, rev den, 354 Or 389 (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, 370 Or at 844. 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., 290 

Or App 646, 653-54, 419 P3d 783 (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 328 Or App 565 (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, 287 Or App 

809, 814, 403 P3d 473 (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, 287 

Or App at 816 (so stating); Gomez and Gomez, 261 Or App 

636, 637-38, 323 P3d 537 (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 328 Or App 565 (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.