## Facts

- Katarina Henretty (mother) and Malcolm Lewis (father) are the unmarried parents of a young child, J.
- After the parties’ relationship ended, mother filed in Oregon circuit court seeking a custody determination for J.
- The family moved to Oregon in March 2019, and father admitted at trial that mother had been J’s primary caregiver from that time forward.
- In January 2020, father left Oregon for California without J.
- By the time of the custody trial in November 2020, when J was about two years old, the evidence showed mother had been J’s primary caregiver for at least the prior 20 months.
- Father worked outside the home and provided financial support for the family.
- In applying the best-interests factors in ORS 107.137(1), the trial court refused to designate either parent as J’s primary caregiver and gave no preference under ORS 107.137(1)(e).
- The trial court reasoned that father’s role providing financial support was “equally important” and described both parents as great.
- The trial court awarded father sole legal and physical custody, relying in significant part on J’s emotional ties to father’s extended family members in California.
- Mother appealed, arguing that ORS 107.137(1)(e) required the court to identify the primary caregiver and account for the statutory preference, and that the record allowed only one finding: mother was J’s primary caregiver.

## Issues

1. Whether the trial court committed legal error by refusing to determine which parent was J’s primary caregiver under ORS 107.137(1)(e) and by failing to account for the statutory preference in its custody ruling.
2. Whether, on this record, the only permissible finding was that mother was J’s primary caregiver for purposes of ORS 107.137(1)(e), entitling her (if fit) to the statutory preference on remand.

## Decision

- The Oregon Court of Appeals vacated the custody judgment and remanded.
- The court held that ORS 107.137(1)(e) requires the trial court to determine who is the child’s primary caregiver and then account for the statutory preference in the custody decision; refusing to make that determination is legal error and therefore an abuse of discretion.
- The court rejected the trial court’s approach of treating father’s financial support as a reason to avoid choosing a primary caregiver for purposes of ORS 107.137(1)(e).
- Based on father’s admission and the trial evidence about J’s recent life, the court concluded that the only permissible finding was that mother was J’s primary caregiver within the meaning of ORS 107.137(1)(e).
- The case was remanded for the trial court to reconsider custody under ORS 107.137 with the primary-caregiver preference applied in mother’s favor, assuming she is fit, while leaving other unchallenged best-interests findings in place.

## Legal Principles

- Custody rulings under ORS 107.137 are reviewed for abuse of discretion; a decision based on a wrong legal standard constitutes an abuse of discretion.
- ORS 107.137(1)(e) requires the court to identify the child’s primary caregiver and to give that person a preference in the custody analysis if the caregiver is fit.
- A court cannot comply with ORS 107.137(1)(e) by refusing to identify a primary caregiver or by effectively naming both parents as primary caregiver, because either course defeats the statutory preference.
- The ORS 107.137(1)(e) preference concerns caregiving; economic support and other parental strengths may matter under other statutory factors, but they do not allow the court to bypass the required primary-caregiver determination.
- In determining who is the primary caregiver, the inquiry generally focuses on the child’s recent life and day-to-day care (as discussed in cases such as *Nice v. Townley* and later reiterated in *Dickson and Schwartz* and *Gomez and Gomez*).
- Identifying the “primary caregiver” is not a judgment about the other parent’s devotion or parenting quality; it is a statutory classification that carries a required preference if the caregiver is fit.

## Conclusion

The Court of Appeals vacated and remanded because the trial court refused to determine J’s primary caregiver and therefore failed to apply the ORS 107.137(1)(e) preference; on this record, mother was the only possible primary caregiver, so the custody determination had to be reconsidered with that preference applied (assuming mother’s fitness).


Henretty v. Lewis, 319 Or. App. 345, 509 P.3d 701 (2022)