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Custody Modification: “I told you so?”

Updated: Mar 30, 2020

Imagine two parents are in a hotly contested custody dispute. One parent raises serious concerns over the other parent's ability to effectively parent.


Perhaps it is due to some type of addiction or a mental deficiency. The child is young at the time of the trial. Ultimately, the trial court finds that the evidence was insufficient and awards custody to the other side. The losing party, understandably devastated, feels all is loss as the child will be forever raised by the perceived deficient parent. Fast forward 3 years. Facts support that the circumstances existing at the time of trial concerning the parent’s deficiency, that were not seen as problematic, has changed now becoming detrimental. Can the noncustodial parent bring a modification of custody even though the circumstances were previously raised at trial? What must the noncustodial parent demonstrate? Can he just return to court and say, see Judge, “I told you so! Now you see my concerns were right!”.


“A parent changing custody must show TWO things."

  1. A material change of circumstances that shows the custodial parent's inability to take care of the child has changed since the last judgment affecting custody.

  2. That it is the best interests of the child that custody be modified to the moving parent in the proceeding.


Oftentimes, a defense is raised by the parent with custody that challenges the alleged change of circumstances, saying, this concern was already presented at the original proceeding. This argument challenges the “unanticipated” nature of the circumstances. Case law supports this. A party cannot seek a modification on a basis of facts known at the time of the original case or evidence that could have been introduced but for whatever reason was not. A principal of law called “res judicata" applies, i.e. the decision in the prior case concerning those facts cannot be pursued again by the same parties.


An Oregon Supreme Court decision, Botofan-Miller and Miller 365 Or 504 (2019), where a Court of Appeals decision was reversed, sheds light on the change of circumstances subject. It supports that a change of circumstances can arise from facts presented at trial that, at that time, were not seen as sufficient but now have become detrimental to the child. What may amount to a change necessary to justify a modification? It varies with the facts of each individual case. For further discussion as to what facts you may support a modification or to defend a claim by the other party to change custody, contact Blodgett Family Law for an appointment.

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