624	                    December 26, 2014	                      No. 75

            IN THE SUPREME COURT OF THE
                  STATE OF OREGON

                     John Paul EPLER,
                   Respondent on Review,
                             and
                 Andrea Michelle EPLER,
                nka Andrea Michelle Walker,
                    Petitioner on Review.
          (CC 04C33678; CA A148643; SC S061818)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted June 23, 2014.
   Richard F. Alway, Salem, argued the cause and filed the
briefs for petitioner on review. With him on the briefs was
Philip F. Schuster, II, Portland.
   Mark Kramer, Kramer and Associates, Portland, argued
the cause and filed the brief for respondent on review. With
him on the brief were Pete Meyers and Graham C. Parks,
Certified Law Student.
  Katelyn B. Randall, Portland, and Robin J. Selig,
Portland, filed the brief on behalf of amici curiae Legal Aid
Services of Oregon and Oregon Law Center.
   BALDWIN, J.
   The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is affirmed in part and reversed
in part, and the case is remanded to the circuit court to
rule on mother’s request to modify parenting time and child
support.




______________
	 * On appeal from Marion County Circuit Court, Dennis J. Graves, Judge.
258 Or App 464, 309 P3d 1133 (2013).
Cite as 356 Or 624 (2014)	625

    Mother sought to modify the custody, parenting time, and child support
provisions of a stipulated dissolution judgment granting custody of daughter
to paternal grandmother. The trial court denied mother’s motion, concluding
that mother had failed to prove that a substantial change in circumstances had
occurred since the stipulated dissolution judgment and that modification would
not be in daughter’s best interest. The Court of Appeals affirmed the trial court’s
custody ruling, concluding that the trial court did not err in determining that
mother had failed to show a substantial change in circumstances or in deter-
mining that modification was not in daughter’s best interest. The court also con-
cluded that the trial court had applied the legal presumption described in Troxel
v. Granville, 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000) (plurality opinion),
when it entered the stipulated dissolution judgment. The court remanded the
case for the trial court to rule on mother’s request to modify parenting time and
child support. Held: (1) Mother is not entitled to a presumption that her custody
preference is in the child’s best interest, and (2) mother was not prejudiced by the
application of the change-in-circumstances rule to her case.
    The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is affirmed in part and reversed in part, and the case is remanded to
the circuit court to rule on mother’s request to modify parenting time and child
support.
626	                                          Epler and Epler

	       BALDWIN, J.
	        The issues presented in this case are (1) whether
the legal presumption described in Troxel v. Granville, 530
US 57, 120 S Ct 2054, 147 L Ed 2d 49 (2000) (plurality opin-
ion), that a fit parent acts in the best interests of her child,
applies to a modification proceeding in which petitioner
(mother) seeks to modify a stipulated dissolution judgment
that granted legal custody to respondent (grandmother); and
(2) whether mother must demonstrate a substantial change
in circumstances to modify the dissolution judgment. The
trial court denied mother’s motion to modify the judgment
and grant custody to her based on the change-in-circum-
stances rule and the best interest of the child, and the Court
of Appeals affirmed. Epler and Epler, 258 Or App 464, 466,
309 P3d 1133 (2013).
	        For the reasons that follow, we affirm the decision
of the Court of Appeals, but base our decision on different
reasoning. We conclude that (1) mother is not entitled to the
Troxel presumption that her custody preference is in the
child’s best interest and (2) mother was not prejudiced when
she was held to the substantial change-in-circumstances
rule. Ultimately, we affirm the trial court’s determination
that a modification of the custody provisions of the judgment
is not in the best interest of the child.
	        Mother requests that we exercise our discretion to
review this case de novo. Assuming arguendo that we have
discretion to consider the matter de novo even though the
Court of Appeals did not, see ORS 19.415(4), we do not find
it necessary to do so: The facts are essentially undisputed.
Accordingly, we limit our review to questions of law. We take
the following facts from the Court of Appeals opinion and
from additional undisputed facts in the record.
	       Daughter, who was approximately seven years old
at the time of the hearing on mother’s motion, has lived
with her paternal grandmother for her entire life. Mother
and father lived with grandmother in Oregon when daugh-
ter was born in 2003. When daughter was approximately
six months old, mother and father separated, father left
Oregon, and mother and daughter continued to live with
grandmother. Three months after the separation, mother
Cite as 356 Or 624 (2014)	627

moved out of grandmother’s residence and left daughter
in grandmother’s sole care. In the months that followed,
mother struggled with depression, started drinking alcohol
heavily, and was unable to maintain steady employment.
Mother then decided to move to Virginia. Before mother
moved, father and grandmother engaged legal counsel, who
prepared a marital settlement agreement.
	          The marital settlement agreement provided:
    	“Husband a[n]d Wife acknowledge that Paternal Grand-
    mother * * * has been the primary custodian of [daughter]
    since [daughter]’s birth in 2003. Through this agreement,
    it is the intention of the parties to formalize Grandmother’s
    custody, and provide for both Husband and Wife to pay child
    support to Grandmother for [daughter]’s benefit.
    	   “* * * * *
    	 “Husband and Wife desire that paternal grandmother
    * * * be awarded sole legal and physical custody of their
    minor child, * * * subject to the joint right of both Husband
    and Wife to equally share the parenting time provided in
    Marion County SLR 8.075 * * *, and with the understanding
    that Husband’s parenting time will include Grandmother.”
Mother and father signed the marital settlement agreement
in December 2004, and the trial court entered a stipulated
dissolution judgment based on that agreement in March
2005.
	        Mother first filed a motion to modify custody in 2006
but voluntarily dismissed that motion. Two years later, in
2008, she filed a second motion to modify custody and, in
the alternative, to modify parenting time and child support.
That 2008 motion is the filing at issue in this case. In her
motion to modify custody, mother argued that she was enti-
tled to a legal presumption that she acted in the best inter-
ests of her child. Mother cited ORS 109.119(2)(a) and the
Due Process Clause of the Fourteenth Amendment to the
United States Constitution to support her motion. After a
hearing, the trial court denied mother’s motion in a letter
opinion. The court found that (1) mother had failed to prove
that a substantial change in circumstances had occurred
since the stipulated dissolution judgment and (2) modifica-
tion of the dissolution judgment would not be in daughter’s
628	                                          Epler and Epler

best interest. The court did not address mother’s requests to
modify parenting time or child support.
	        Mother appealed, and the Court of Appeals affirmed
the trial court’s custody ruling and remanded for the trial
court to rule on mother’s request to modify parenting time
and child support. Epler, 258 Or App at 466. The Court of
Appeals first concluded that the trial court did not err in
determining that mother had failed to carry her burden of
showing a substantial change in circumstances or in deter-
mining that modifying the judgment would not be in daugh-
ter’s best interest. Id. at 475-77. The court further concluded
that ORS 109.119 did not apply to this modification proceed-
ing and that “[n]either ORS 109.119(2)(c) nor any other pro-
vision of ORS 109.119 makes the presumption in favor of
parents in ORS 109.119(2)(a) applicable to mother’s motion
to modify the stipulated dissolution judgment in this case.”
Id. at 477-78.
	        The Court of Appeals also rejected mother’s con-
tention that the trial court was required, under Troxel, to
presume that a modification of the custody provision was in
daughter’s best interest. Id. at 478-84. In the court’s view,
the point at which the state “inject[ed] itself into the private
realm of the family,” for Troxel purposes, was when the trial
court entered the parties’ stipulated dissolution judgment.
Id. at 481 (internal quotation marks omitted). At that point,
the Court of Appeals reasoned, the trial court gave mother’s
custodial preference the requisite special weight, thereby
satisfying the requirements of due process. Id. (“That is all
that Troxel requires in this case.”).
	        Judge Duncan wrote a concurring opinion, in which
she expressed her view that
   “(1) mother was required to establish a substantial change
   in circumstances in order to have the custody judgment
   modified, (2) the trial court did not err in concluding
   that mother had failed to establish such a change, and
   (3) because mother had failed to establish the require-
   ment for the modification that she requested, we need not
   decide whether the trial court was required to presume
   that mother’s requested modification was in child’s best
   interests.”
Id. at 488 (Duncan, J., concurring).
Cite as 356 Or 624 (2014)	629

	       Judge Egan wrote a dissenting opinion, express-
ing his view that “the trial court erred by failing to give
special weight to mother’s determination of daughter’s best
interests as required by the Fourteenth Amendment to the
United States Constitution.” Id. at 492 (Egan, J., dissent-
ing). The dissent disagreed with the majority’s determina-
tion that the Troxel presumption was applied in mother’s
favor when the parties entered the stipulated dissolution
judgment. The dissent argued that the court should not
conclude that mother was not entitled to the parental pre-
sumption because she had voluntarily relinquished custody
of daughter: “To say, under those circumstances, as the
lead opinion does, that that decision permanently rendered
mother an unfit parent—i.e., one who is not entitled to the
Troxel presumption—penalizes mother for a decision that
mother deemed to be in the daughter’s best interests.” Id. at
500.
	        On review, mother reprises her basic argument that
she is entitled to a Troxel presumption that her custody pref-
erence is in daughter’s best interest. She also argues that
requiring her to demonstrate a substantial change in cir-
cumstances to regain custody of daughter violates her due
process rights under Troxel. Grandmother, for her part,
contends that Troxel does not apply in this case, because
mother is seeking modification of a judgment with a custody
provision in grandmother’s favor after mother stipulated to
that judgment.
	         We first address mother’s argument that ORS
109.119 governs this action. Mother concedes that she filed
her motion under ORS 107.135(1)(a), seeking to modify the
custody, parenting time, and child support portions of the
stipulated dissolution judgment. However, she argues that
ORS 109.119 governs all child custody modification proceed-
ings between a parent and a nonparent and therefore applies
to this case. Mother contends that she is entitled to the ben-
efit of the Troxel presumption as codified in that third-party
statute:
   “In any proceeding under this section, there is a presump-
   tion that the legal parent acts in the best interest of the
   child.”
630	                                                       Epler and Epler

ORS 109.119(2)(a). We disagree with mother’s contention
that ORS 109.119 governs this action.
	        Under ORS 109.119(1), a nonparent who has estab-
lished emotional ties creating a child-parent relationship
with a child “may petition or file a motion for intervention”
seeking custody of the child.1 By its terms, ORS 109.119
applies to actions in which a nonparent initiates or inter-
venes in proceedings seeking custody. See Burk v. Hall, 186
Or App 113, 120, 62 P3d 394, rev den, 336 Or 16 (2003) (not-
ing that ORS 109.119 “provides substantive requirements for
actions in which a nonparent seeks custody or guardianship
of a minor child over the objection of a legal parent”). The
relief available to a nonparent who initiates an action under
ORS 109.119(1) is a grant of custody to or a determination
of other rights of that nonparent. See ORS 109.119(3)(a).2
In this case, grandmother did not “petition or file a motion
for intervention” seeking custody of daughter. Rather, the
court initially granted custody to grandmother in a dissolu-
tion judgment based on the parties’ stipulated agreement. It
is mother who initiated this modification action under ORS
107.135, seeking to regain custody from grandmother. Thus,
ORS 109.119, by its terms, does not apply to this action.
	       We next examine mother’s contention that her cus-
tody preference is nevertheless entitled to “special weight”
under Troxel even if ORS 109.119 does not govern this action.
The United States Supreme Court has long recognized that
parents have a fundamental liberty interest, under the Due

	1
     ORS 109.119(1) provides:
 	    “Except as otherwise provided in subsection (9) of this section, any per-
 son, including but not limited to a related or nonrelated foster parent, step-
 parent, grandparent or relative by blood or marriage, who has established
 emotional ties creating a child-parent relationship or an ongoing personal
 relationship with a child may petition or file a motion for intervention with
 the court having jurisdiction over the custody, placement or guardianship of
 that child[.]”
	2
     ORS 109.119(3)(a) provides:
 	    “If the court determines that a child-parent relationship exists and if the
 court determines that the presumption described in subsection (2)(a) of this
 section has been rebutted by a preponderance of the evidence, the court shall
 grant custody, guardianship, right of visitation or other right to the person
 having the child-parent relationship, if to do so is in the best interest of the
 child.”
Cite as 356 Or 624 (2014)	631

Process Clause of the Fourteenth Amendment, in the care,
custody, and control of their children. See, e.g., Washington
v. Glucksberg, 521 US 702, 720, 117 S Ct 2258, 138 L Ed
2d 772 (1997) (“In a long line of cases, we have held that,
in addition to the specific freedoms protected by the Bill of
Rights, the ‘liberty’ specially protected by the Due Process
Clause includes the rights * * * to direct the education and
upbringing of one’s children[.]”); Santosky v. Kramer, 455
US 745, 753, 102 S Ct 1388, 71 L Ed 2d 599 (1982) (discuss-
ing “[t]he fundamental liberty interest of natural parents in
the care, custody, and management of their child”); Prince
v. Massachusetts, 321 US 158, 166, 64 S Ct 438, 88 L Ed
645 (1944) (“It is cardinal with us that the custody, care
and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obli-
gations the state can neither supply nor hinder.”).
	         The Court elaborated on the due process rights of
parents in the plurality opinion of Troxel, 530 US 57. In
Troxel, the grandparents of two children had successfully
petitioned, over the objection of the children’s mother, for
visitation rights under a Washington statute providing that
any person could petition the court for visitation rights. Id.
at 61. The statute allowed the state trial court to order visi-
tation rights in favor of the petitioning party without giving
the mother’s preference any special consideration if it found
that visitation would serve the best interest of the child.
Id.3 Characterizing the statute as “breathtakingly broad,”
the plurality held the statute unconstitutional as applied to
the mother in that case. Id. at 67. The plurality recognized
that fit parents enjoy a presumption that they act in the best
interests of their children. Id. at 68. It did not define “the
precise scope of the parental due process right in the visita-
tion context.” Id. at 73. Rather, the plurality held only that,
when a court reviews a fit parent’s decision with respect to
the care, custody, or control of his or her child, the court is

	3
      The statute at issue provided:
   	 “Any person may petition the court for visitation rights at any time
   including, but not limited to, custody proceedings. The court may order visi-
   tation rights for any person when visitation may serve the best interest of the
   child whether or not there has been any change of circumstances.”
Wash Rev Code § 26.10.160(3) (1994).
632	                                                         Epler and Epler

required to give at least “some special weight” to the par-
ent’s decision.4 Id. at 70.
	In O’Donnell-Lamont and Lamont, 337 Or 86, 91 P3d
721 (2004), cert den, 543 US 1050 (2005), this court “allowed
review of [a] child custody proceeding to consider the appro-
priate application of changes that the legislature made to
[Oregon’s] third-party custody statute in 2001, following
the United States Supreme Court’s decision in Troxel.” Id.
at 89.5 The grandparents of two children had obtained a
custody award under ORS 109.119, over the objection of the
children’s father. O’Donnell-Lamont, 337 Or at 91-95. On
review, this court analyzed the Supreme Court’s decision
in Troxel, noting that the Court had not precisely “identi-
f[ied] the scope of the parental rights protected by the Due
Process Clause or the showing that the state or a nonparent
must make before a court may interfere with a parent’s cus-
tody or control of a child.” Id. at 100. Significantly, this court
stated that the parental presumption recognized in Troxel
is “important, but limited.” Id. at 120. The court concluded
that the father had been afforded his due process rights
under Troxel as codified under ORS 109.119, and affirmed
the judgment of the trial court. Id. at 120-21.
	       However, as previously explained, ORS 109.119 is
a third-party statute applicable to actions in which a non-
parent initiates or intervenes in a proceeding to establish a
	4
        Here, the trial court did not make an express or implied finding that mother
is unfit, and grandmother has not taken the position that mother is unfit.
	5
       This court described the relationship between Troxel and the statutory
amendments:
    	    “The Supreme Court’s decision in Troxel led directly to the 2001 amend-
    ments to Oregon’s statute regulating third-party custody and visitation
    claims. As previously discussed, ORS 109.119(3)(a) (1999) allowed a court to
    award custody to a psychological parent if the court determined that custody
    ‘was appropriate in the case’ and was ‘in the best interest of the child.’ That
    statute was less ‘open-ended’ than the Washington statute at issue in Troxel,
    because it limited the class of third parties who could seek custody or visita-
    tion and also because of cases interpreting the statute to impose a presump-
    tion in favor of the legal parent. The statute nevertheless appeared likely to
    draw a constitutional challenge under Troxel because it failed to assign any
    special weight or deference to the legal parent’s interest in the custody and
    control of a child. For that reason, the legislature undertook to amend the
    statute.”
337 Or at 101.
Cite as 356 Or 624 (2014)	633

legal relationship with a child. That statute, and the paren-
tal presumption embodied in ORS 109.119(2)(a), do not apply
to this proceeding under ORS 107.135(1)(a) where mother
seeks to modify a previous dissolution judgment granting
custody to grandmother. The question, then, is whether
Troxel requires us to give special weight or deference to
mother’s custody preference under the circumstances of this
case. We hold that it does not.
	In Troxel, the court recognized a parental presump-
tion where a “breathtakingly broad” visitation statute per-
mitted a state court to order visitation rights to a nonparent
if it found that visitation would serve the best interests of a
child, without any special consideration of the parent’s deci-
sion about the child’s best interest. 530 US at 67. The plural-
ity explained that
   “so long as a parent adequately cares for his or her children
   (i.e., is fit), there will normally be no reason for the State to
   inject itself into the private realm of the family to further
   question the ability of that parent to make the best deci-
   sions concerning the rearing of that parent’s children.”
Id. at 68-69. Thus, the presumption recognized in Troxel
was viewed as a protection against the state’s ability to arbi-
trarily intrude upon the parent-child relationship by order-
ing visitation rights without giving special weight or defer-
ence to a fit parent’s objection to the visitation.
	        This is not a case where a nonparent has sought to
establish a parent-child relationship or the state has arbi-
trarily intruded upon such a relationship. Here, mother and
father requested and received court approval of a marital
settlement agreement acknowledging that grandmother
“has been the primary custodian of [daughter] since [her]
birth” and expressing the parents’ desire that grandmother
“be awarded sole legal and physical custody of their minor
child.” The state did not—by way of a third-party statute or
otherwise—inject itself into the private realm of the family
to question that parental decision. The parties abided by the
terms of the stipulated dissolution judgment until mother
initiated this modification proceeding three years later. By
that time, grandmother had been the primary caretaker
of daughter for nearly five years of her life. From the time
634	                                             Epler and Epler

mother moved to Virginia—when daughter was one year
old—until the hearing on mother’s motion, mother had had
visitation with daughter on only five occasions. No visita-
tion had occurred in Virginia, and mother had not visited
with daughter during the year preceding the hearing. Thus,
mother had fostered a limited parental relationship with
daughter. In addition, a parent’s due process rights are not
static and may vary in extent and degree depending on their
exercise. See Lehr v. Robertson, 463 US 248, 259-60, 103 S Ct
2985, 77 L Ed 2d 614 (1983) (noting distinction between “a
mere biological relationship and an actual relationship of
parental responsibility” for due process purposes). Under
the facts of this case, we conclude that mother is not entitled
to the presumption that her current decision that daughter
should return to her custody is in daughter’s best interest.
	        That does not resolve all of the issues presented in
this case, however. Mother also contends that the trial court
violated her due process rights by requiring her to demon-
strate a substantial change in circumstances to regain
custody of her daughter. Mother’s argument is that Troxel
prohibits applying the change-in-circumstances rule here
because its application would impose an undue burden on
her as a parent in seeking to regain custody of her child
from a nonparent.
	       When a court initially makes a grant of child cus-
tody in a dissolution judgment, ORS 107.135 governs any
modification of that custody provision. As relevant here,
ORS 107.135 provides:
   	 “(1)  The court may at any time after a judgment of * * *
   dissolution of marriage * * * is granted, upon the motion of
   either party * * *:
   	 “(a)  Set aside, alter or modify any portion of the judg-
   ment that provides for * * * the custody, parenting time, vis-
   itation, support and welfare of the minor children * * *.”
Generally, a parent seeking modification under ORS 107.135
must show that (1) circumstances relevant to the capacity of
the moving party or the legal custodian to take care of the
child have changed substantially since the original judgment
or the last custody order, and (2) it would be in the child’s
best interest to change custody from the legal custodian to
Cite as 356 Or 624 (2014)	635

the moving party. Boldt and Boldt, 344 Or 1, 9, 176 P3d
388, cert den, 555 US 814 (2008); State ex rel Johnson v.
Bail, 325 Or 392, 397, 938 P2d 209 (1997) (tracing origin
of change-in-circumstances rule to this court’s decision in
Merges v. Merges, 94 Or 246, 257-58, 186 P 36 (1919)).6
	         ORS 107.135 contemplates a mechanism for resolv-
ing disputes between two parents relating to their minor
children, providing that a court may modify the custody
portion of a dissolution judgment upon the motion of either
party to the dissolution. ORS 107.135(1)(a). In the typical
situation, one party to the dissolution—a parent—moves
to modify rights vis-à-vis the other party—a parent. Up
to this point, the cases in which Oregon appellate courts
have applied the change-in-circumstances rule under ORS
107.135 have all involved disputes between two parents.
See, e.g., Boldt, 344 Or at 9-10 (applying change-in-circum-
stances rule in custody modification action between mother
and father); Bail, 325 Or at 399-400 (same); Henrickson v.
Henrickson, 225 Or 398, 402-05, 358 P2d 507 (1961) (same).
The rationale for the judicially created rule is that, unless
the parent seeking a custody change establishes that the
facts that formed the basis for the prior custody determi-
nation have changed substantially, the prior custody deter-
mination “is preclusive with respect to the issue of the best
interests of the child under the extant facts.” Bail, 325 Or at
398. The main purposes of the rule are “to avoid repeated
litigation over custody and to provide a stable environment
for children.” Ortiz and Ortiz, 310 Or 644, 649, 801 P2d 767
(1990).

	6
        In determining whether a custody modification would be in a child’s best
interests, a court is required to consider the following 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;
    	     “(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 encour-
    age a close and continuing relationship between the other parent and the
    child.”
ORS 107.137(1).
636	                                         Epler and Epler

	         Thus, the change-in-circumstances rule is not a
statutory requirement, but rather a judicially created one.
ORS 107.135 does not mandate the application of that rule.
See Bail, 325 Or at 397 (observing that this court first
announced the rule in Merges, 94 Or 246). Because the
change-in-circumstances rule is judicially created, this
court has the authority to determine on prudential grounds
whether to create an exception to the change-in-circum-
stances rule in fact situations similar to those presented in
this case.
	         We need not decide in this case, however, whether the
trial court should have applied the change-in-circumstances
rule to mother. In this case, the trial court did not base its
decision to deny mother’s motion for modification solely on
her failure to demonstrate a change in circumstances. After
a hearing on the merits, the trial court considered whether
a change in custody was in the child’s best interest. Indeed,
the trial court clearly considered grandmother’s evidence
compelling in reaching its decision regarding the best inter-
ests of the child. Thus, mother was not prejudiced by the
trial court’s determination that she had not demonstrated
a substantial change in circumstances. We therefore do not
find it necessary to address mother’s constitutional chal-
lenge to the application of the rule.
	         Finally, we review the trial court’s determination
that the child’s best interests would not be served by a
change in custody. The standard of review of a trial court’s
best interest determination in a custody modification pro-
ceeding is for abuse of discretion. Godfrey v. Godfrey, 228 Or
228, 236, 364 P2d 620 (1961), overruled on other grounds by
Hawkins v. Hawkins, 264 Or 221, 504 P2d 709 (1972). Here,
the trial court found that daughter had lived with grand-
mother “for the past seven formative years” of her life. As
noted, at the time of hearing, mother had visited daughter a
total of five times. The court found that daughter was well-
settled in her school, and that she had a support network of
friends and members of father’s family in Oregon. The court
also found that daughter is “strongly bonded” to grand-
mother and that mother’s plan to move daughter to Virginia
would “uproot [daughter] from the only home (Oregon) she
has ever known.”
Cite as 356 Or 624 (2014)	637

	        In ruling on mother’s motion, the trial court care-
fully considered the factors listed in ORS 107.137(1), includ-
ing the emotional ties between daughter and other family
members, the interest of the parties in and attitude toward
the child, the desirability of continuing an existing relation-
ship, and the preference for daughter’s primary caregiver.
See ORS 107.137(1) (listing the factors for courts to consider
to determine the best interests of the child when granting
custody). The court concluded that mother’s motion to mod-
ify the dissolution judgment was not in the best interest of
the child, and we affirm that determination.7 Godfrey, 228
Or at 236; see also Bail, 325 Or at 401 (evidence sufficient
to support trial court conclusion that custody modification
decision in child’s best interest). We therefore affirm the
decision of the Court of Appeals as to the custody portion
of mother’s motion to modify the dissolution judgment. We
remand to the trial court for further proceedings regard-
ing mother’s motion to modify that judgment with respect to
parenting time and child support.
	       The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court to rule on mother’s request to modify parenting time
and child support.




	7
         In its letter opinion, the trial court encouraged mother to reintegrate her-
self into daughter’s life and build her relationship with daughter:
     	     “Mother works as a prison guard in Virginia and has held that job since
     March 2008. There is no doubt that Mother wants to begin parenting [daugh-
     ter], but on her own terms. If she relocated, found a job and reintegrated
     herself into [daughter]’s life, her chances for modification of the Judgment
     would be greatly enhanced.”
