Opinion
Nos. 15-90-05302; CA A101734
Argued and submitted October 27, 1999.
Filed: April 12, 2000.
Appeal from Circuit Court, Lane County, Mark Shiveley, Judge.
Robert J. Smith argued the cause and filed the brief for appellant.
No appearance for respondent.
Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.
PER CURIAM.
Affirmed.
Father appeals from the trial court's denial of his motion to change custody. Or. Laws 1997, ch 746, § 116, compiled as a note after ORS 107.135 (1997). We review de novo. ORS 19.415(3). Father argues that the trial court erred in denying his motion when he established at trial that his parenting time had shifted from 40 percent to 60 percent. The burden is on father to show a substantial change in circumstances before the best interests of the child are considered. Ortiz and Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990). Specifically, he must show that since the original custody decision "circumstances relevant to the capacity of either [party] to take care of the child properly have changed." Id.
Father asserts that because he now spends more time with child than mother does, that he has become the primary parent and that mother has abdicated her role as the primary parent. However, the record demonstrates that mother continues to fulfill her role as custodial parent and to be an active part of child's life. She regularly cares for and supervises child as well as participating in child's education and recreational endeavors. On these facts, father has not met his burden of demonstrating a substantial change of circumstances.
Cf. Brooks and Brooks, 80 Or. App. 269, 721 P.2d 478 (1986) (mother moved to another state and the child lived with father for 27 out of 36 months before the motion for modification was filed); Crane and Crane, 17 Or. App. 637, 523 P.2d 596 (1974) (mother left the children with father for a 14-month period with only minor attempts to communicate with the children).
Affirmed.