In re the Marriage of Stewart
In re the Marriage of Stewart
Opinion of the Court
In this dissolution case, wife appeals, asserting that the trial court erred in denying wife all parenting time without making the finding that parenting time would endanger the health and safety of the parties’ two minor children, as required by ORS 107.105(1)(b).
“Wife shall not have parenting time because tbá&wouldendanger-the health and safety of-the- children wife is currently serving a Measure 11 prison sentence. She will be incarcerated for the next 14 years. Her crimes include Robbery I & Assault I.”
(Strikethrough in original.)
The trial court did not make the required finding that visitation “would endanger the health and safety” of the parties’ two minor children. Rather, it crossed out that language and inserted its own handwritten explanation that, because wife was serving a prison sentence, she was denied all parenting time. The trial court erred in failing to engage in the necessary inquiry as to whether parenting time with wife would endanger the health and safety of the children.
To the extent that the general judgment suggests that wife’s incarceration necessarily endangers the health and safety of the children, our case law is to the contrary. We have held that “a parent’s incarceration does not invariably require that visitation be denied.” Harris v. Burns, 137 Or App 355, 359, 904 P2d 648 (1995), rev den, 322 Or 644 (1996). “Each case must be decided on its own merits and not on the basis of a policy not to allow children to visit their parents at the penitentiary.” State ex rel Juv. v. Clampitt/Hale, 18 Or App 12, 16, 523 P2d 594 (1974).
Further, we note that the trial judge, in his concluding remarks, indicated that he was going to “take [himself]
Reversed and remanded.
ORS 107.105(1)(b) provides that “the court may deny parenting time to the noncustodial parent under this subsection only if the court finds that parenting time would endanger the health or safety of the child.” (Emphasis added.)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.