|CALENDAR STATUS: Active|
|Boldt and Boldt|
|Clayton C. Patrick for petitioner on review|
James H. Boldt for respondent on review
Statement of Issues:
|Boldt and Boldt, S054714, A126175. Petitioner, Lia Boldt (mother, respondent below), seeks review of a Court of Appeals decision affirming without opinion a trial court judgment in a child custody proceeding, which provided that whom-ever is determined to be the custodial parent (pending the result of then-uncompleted appeals) would have the right to decide whether or not to authorize circumcision of the parties' child.|
The marriage of father and mother dissolved in 1999, and mother was awarded custody of the minor child. In 2002, father filed a second motion to modify custody -- the first motion, in 2001, was unsuccessful -- and the trial court changed custody from mother to father. In May 2004, father told mother that he had converted to Judaism and planned to have child convert from the Russian Orthodox faith to the Jewish faith as well. On June 1, 2004, the trial court held a telephone hearing on mother's emergency motion to stay the circumcision of child until a full hearing could be held. The court granted an immediate temporary retraining order, and asked the parties to brief the question of whether Oregon courts still had jurisdiction given that father and child had moved to the State of Washington. Several days later mother filed a motion for a temporary custody order and a motion for an order to show cause to change custody. In support, mother filed an affidavit in which she averred that on May 31, 2004, child told her he did not want to be circumcised but that he was afraid of contradicting father. Mother also expressed concerns about the medical advisability of circumcision and the physical and emotional implications of circumcising child, who was nine years old at the time, against his wishes. Mother asked the court to change custody of the child to her or condition father's continued custody on his agreement not to circumcise child.
The trial court held a hearing on jurisdiction and concluded that it did have jurisdiction. At that hearing the trial court also expressed the view that the decision of whether a child should have elective surgery should be made by the custodial parent. Because the decisions on both of father's motions to modify custody were at that time pending before the Court of Appeals, the trial court entered a judgment that enjoined both parties from circumcising child or having any nonemergency surgery performed on child, until the custody appeals were concluded.
Mother appealed the trial court's denial of her request for a hearing on the merits and the denial of her motions for temporary custody and to change custody. During the pendency of that appeal, the other appeals were decided adversely to mother. (In both cases, the Court of Appeals affirmed without opinion.) However, the trial court amended its judgment nunc pro tunc to extend the stay until all appeals, including this one, conclude. The Court of Appeals affirmed the current appeal without opinion. The decision of the Court of Appeals is reported at 210 Or App 368, 150 P3d 1115 (2006).
On review, the issues are:
(1) Whether a noncustodial parent is entitled to an evidentiary hearing to present evidence regarding the child's health, welfare, and best interests, when the custodial parent is about to have a (now) 12-year old child circumcised, and the noncusto-dial parent alleges that the circumcision could be physically and psychologically harmful to the child.
(2) Whether a custodial parent has an absolute right to decide that a child will undergo elective, nonmedically-necessary surgery (including circumcision), regardless of possible adverse consequences, such as physical or psychological harm to the child.
(3) Whether a trial court has authority to condition an award of custody when it is necessary to protect the best interests or the welfare of the child.
These summaries of cases in which the Supreme Court has allowed review are prepared for the benefit of members of the media to assist them in reporting the court’s activities to the public. Parties and practitioners should not rely on the summaries, or the statement of issues to be decided in the summaries, as indicating the questions that the Supreme Court will consider on review. Regarding the questions that the Supreme Court may consider on review, see Oregon Rule Of Appellate Procedure 9.20.
Justice(s) NOT Participating:
Virginia L. Linder