S054714, Opinion — Boldt and Boldt

1
Argued and submitted November 6, 2007, decision of Court of Appeals reversed;
supplemental judgment of circuit court reversed; case remanded to circuit court
for further proceedings January 25, 2008
In the Matter of the Marriage of
James H. BOLDT,
Respondent on Review,
and
Lia BOLDT,
Petitioner on Review.
(CC No. 98-2318-D(3); CA A126175; SC 80547 14)
176 P3d 388

2 Boldt and Boldt
On review from the Court of Appeals. *
Clayton C. Patrick, Clatskanie, argued the cause for
petitioner on review. With him on the briefs was Steven C.
Morasch.
James H. Boldt, Lacey, Washington, argued the cause and
filed the briefs on his own behalf as respondent on review.
Robert A. Graham, Jr. , filed briefs on behalf of amicus
curiae Doctors Opposing Circumcision.
Michael H. Simon, Perkins Coie LLP, Portland, Michael
S. Lazaroff, Mark D. Harris, Sandra J. Badin, and Eben A.
Krim, Proskauer Rose LLP, New York, Marc D. Stern,
American Jewish Congress, New York, Steven M. Freeman,
Anti-Defamation League, New York, and Nathan Diament,
Union of Orthodox Jewish Congregations of America, filed a
brief on behalf of amici curiae American Jewish Congress,
American Jewish Committee, Anti-Defamation League, and
Union of Orthodox Jewish Congregations of America.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Kistler, and Walters, Justices.**
* Appeal from Jackson County Circuit Court, Rebecca G. Orf, Judge. 2 10 Or
App 368, 150 P3d 1 1 15 (2006).
** Linder, J., did not participate in the consideration or decision of this case.

Cite as 344 Or 1 3
DE MUNIZ, C . J.
The decision of the Court ofAppeals is reversed. The sup
plemental judgment of the circuit court is reversed. The case
is remanded to the circuit court for further proceedings.

Boldt and Boldt
DE MUNIZ, C. J.
The parties dissolved their marriage in 1 999.
Mother was awarded custody of their four-year-old son, M.
Since 1999, the parties have battled over M's custody in three
separate legal proceedings. When this third proceeding
began, father had custody of M, who was then nine years old.
In this proceeding, mother again seeks to change M's cus
tody, on the ground that father intends to have M circum
cised as part of M's conversion to the Jewish faith. In the
alternative, as a condition of father's continued custody,
mother seeks an order prohibiting father from having M cir
cumcised. The trial court denied mother's motion to change
custody, but enjoined father from having M circumcised
pending mother's appeal. Mother appealed the trial court
judgment to the Court of Appeals. That court affirmed the
judgment without opinion. Boldt and Boldt, 210 Or App 368,
150 P3d 1 1 15 (2006).
We allowed mother's petition for review and on
de novo review we now conclude that the trial court erred in
failing to determine whether M desired the circumcision as
father contended or opposed the circumcision as mother
alleged.1 Because we view that finding as a necessary predi
cate to determining whether mother alleged a change in cir
cumstance sufficient to trigger a custody hearing, we reverse
the decisions of the Court of Appeals and the trial court and
remand the case to the trial court.
In the normal course, religious and medical deci
sions such as the one in this case, are considered private fam
ily matters determined by the parents or between parents
and child, without resort to the courts. Unfortunately, how
ever, these parties cannot or will not resolve this matter
without court intervention.2 We therefore turn to the issue
' In reviewing a decision of the Court of Appeals that is an appeal from a suit in
equity, we may review the case de nouo or may limit our review to questions oflaw.
ORS 19.4 15(4); O'Donnell-Lamont and Lamont, 337 Or 86, 89, 91 P3d 721 (200,f l,
cert den, 543 US 1050, 125 S Ct 867, 160 L Ed 2d 770 (2005) (reviewing custody dis
pute between father and maternal grandparents de novo). Because the Court of
Appeals did not address the issues that we conclude must be considered, and
because we are remanding the case to the trial court for further proceedings, we
elect in this case to review the record de nouo.
2 The parties' public marital history is an acrimonious
tie for M's custody has been the centerpiece. The parties
in which their bat
in 1994. M was

Cite as 344 Or 1 (2008) 5
raised on review, and take the following pertinent facts from
the pleadings and affidavits submitted by the parties below.
Mother is a member of the Russian Orthodox
Church and, while the parties were married, they raised M in
that faith. About the time of the dissolution, father began
studying Judaism. He also began teaching M and his other
son, M's half-brother, about Judaism. M learned Hebrew,
began attending synagogue with his father, and in February
2004 began taking classes at the synagogue. In early
May 2004, father converted to Judaism under the conserva
tive movement coordinated by the United Synagogue of
Conservative Judaism. Father told mother a few days later
that he had converted. He also told mother about the possi
bility that M would convert to ..Judaism and that, to do so, M
would have to be circumcised.
On June 1, 2004, mother filed a motion for a tempo
rary restraining order to prevent father from having M cir
cumcised that evening. The trial court held a telephonic hear
ing on mother's motion that afternoon. Mother testified that,
the day before, she had learned from M that father was plan
ning to have M circumcised against M's wishes. She acknowl
edged that she had known about the possibility of the circum
cision for nearly a month, but asserted that she had not
known it would happen so soon. She also stated that she had
not previously known that M objected to the procedure.
Father responded that the court lacked jurisdiction because
M had been living with him in Washington for almost two
years. He also contended that, as sole custodian of M, he had
the authority to make the decision to have M circumcised.
Finally, father asserted that (1) M wanted to be circumcised
because M wanted to convert to Judaism; (2) M's doctor also
had recommended circumcision for medical reasons; and
(3) M's doctor would perform the circumcision. Following the
telephonic hearing, the trial court entered a temporary
born in March 1995. The parties divorced in 1999, and the trial court granted sole
and legal custody of M, then f our years old, to mother. Father sought custody ofM
in 2001 and 2002. In 2002 the trial court granted father "sole and legal custody'' of
M. On the same day, the Court of Appeals aff irmed without opinion, both father's
appeal of a 2001 judgment and mother's appeal of the 2002 judgment. Boldt and
Boldt (A1 19754) , 203 Or App 545, 129 P3d 280 (2005); Boldt and Boldt (A1 16684),
203 Or App 545, 129 P3d 280 (2005), rev den, 340 Or 1 57 (2006). Both of those
appeals were pending when this case was f iled in the trial court.

6 Boldt and Boldt
restraining order prohibiting M's circumcision until such
time as mother had filed a written motion to change custody
and the court had held a hearing to consider the jurisdic
tional issue.
On June 4, 2004, mother filed two motions. The first
was a motion for temporary custody under ORS 107. 139,3 or
in the alternative, for an order prohibiting father from hav
ing M circumcised. The second was a motion to change cus
tody under ORS 107. 135.4 In support of both motions, mother
submitted an affidavit in which she alleged that father
intended to have M circumcised against M's wishes. She
asserted that she was not concerned that M might convert to
Judaism, but was concerned that the conversion required
him to be circumcised. She alleged that M had told her the
day before the planned circumcision that he did not want to
be circumcised. She also asserted that M had said that he
was afraid to contradict his father regarding the circumci
sion. Mother averred that, "I hope that ultimately the court
will be able to interview [Ml in chambers so that his true
feelings about this can be determined." Finally, mother
expressed concern that a flawed circumcision could result in
permanent injury to M.
" ORS 107.139 provides, in part:
"(1 )(a) Following entry of a judgment, a court
porary order providing for the custody of, or parenting
enter ex parte a tem
with, a child if:
"(A) A parent of the child is present in court and presents an affidavit
alleging that the child is in immediate danger;
"(B) The parent has made a good faith effort to confer with the other party
regarding the purpose and time of this court appearance; and
"(C) The court finds by clear and convincing evidence, based on the facts
presented in the parent's testimony and affidavit and in the testimony of the
other party, if the other party is present, that the child is in immediate
danger."
The legislature amended ORS 107.139 and ORS 107.135 in 2007. However, those
amendments are not material to the issues presented here. For that reason, we
refer to the current versions of the statutes.
1 OHS 107.135 provides, in part:
"( 1 ) The court may at any time after a judgment of annulment or dissolu
tion of marriage or of separation i s granted, upon the motion of either party
and after service of notice on the other party in the manner provided by
ORCP 7 ''·
"(aJ Set aside, alter or modify any portion of the judgment that provides
* ·� * for the custody, parenting time, visitation, support and welfare of the
minor children[.]"

Cite as 344 Or 1 7
In his response to those motions, father argued that
the court lacked jurisdiction under ORS 109. 744( 1)(a),5
because M had lived with father in Washington State since
2002. Father also argued that the court lacked authority to
grant mother's motions because ( 1 ) granting the motions
would violate father's freedom of religion under the religion
clauses of the United States and Oregon constitutions;
(2) there had not been a substantial change of circumstances
since the October 9, 2002, modification justifying a change in
custody; (3) it would not be in M's best interest to change cus
tody; ( 4) the circumcision was medically advisable independ
ent of the religious reasons for it; and (5) although M's wishes
were "legally irrelevant," M wanted to be circumcised.
Father's response included affidavits from M's half-brother
and father's domestic partner. Each of those affidavits stated
that M wanted to be circumcised so that he could convert to
Judaism. Father also submitted an affidavit from M's urolo
gist, Dr. Ellen. Ellen stated that he had met with M and dis
cussed the procedure with him, that M understood the pro
cedure and had stated that he wanted the circumcision so
that he could convert to Judaism. According to Ellen, M did
not appear to be coerced. Ellen also stated that there were
medical concerns that were sufficient for recommendation for
the procedure. Ellen averred that circumcision is a safe pro
cedure, that there would be some minor discomfort for about
three days that would not prevent M from carrying on normal
activities, and that M's circumcision would greatly reduce
M's risk of penile cancer and certain infections.
After the parties filed briefs, the trial court con
ducted a telephonic hearing on the jurisdictional issue. At the
end of that hearing the trial court concluded that it had j uris
diction over the parties.6 The court also concluded that the
5 ORS 109.744 provides, in part:
"(l) [A] court of this state that has made a child custody determination
consistent with ORS 109.741 or 109.747 has exclusive, continuing jurisdiction
over the determination until:
"(a) A court of this state determines that neither the child, nor the child
and one parent, nor the child and a person acting as a parent have a significant
connection with this state and that substantial e vidence is no longer a vailable
in this state concerning the child's care, protection, training and personal
relationships[.]"
6 On appeal, neither party has challenged the trial court's jurisdictional ruling,
and we have no reason to disturb the trial court's decision on that issue.

8 Boldt and Boldt
decision whether a child has elective surgery is reserved to
the custodial parent. However, because the parties' previous
custody order appeals were still pending in the Court of
Appeals, the trial court entered an order prohibiting M's cir
cumcision until those appeals were final. The court stated
that it would not hold an evidentiary hearing on the motion
for a change of custody because a decision by the Court of
Appeals on mother's other custody appeal could result in M's
custody reverting to mother, thereby mooting the question.
The trial court also concluded that, in any event, mother had
not alleged sufficient grounds for an emergency change of
custody to mother.
Both parties objected to the form of the judgment,
and the trial court held another telephonic hearing on their
objections. Following that hearing, the trial court concluded,
based on the affidavits submitted by the parties, that the
decision to have M circumcised was not a change of circum
stances sufficient to trigger an evidentiary hearing. Shortly
after the second telephonic hearing, the trial court entered a
supplemental judgment reflecting the rulings it had made
orally at the two hearings . The court denied mother's motion
for temporary custody as well as her motion for an order to
show cause why a change of custody should not be granted. In
2006, the trial court corrected the judgment to clarify that it
had enjoined the parties from having M circumcised until
after any appeals in this case were resolved.
Mother appealed from the supplemental judgment
and, as noted, the Court of Appeals affirmed without opinion.
We allowed review. On review, mother argues that the trial
court erred in not granting her an evidentiary hearing on her
motion to change custody so that she could present evidence
regarding M's health, welfare, and best interests. She also
argues that a custodial parent does not have the absolute
right to have elective, nonmedically necessary surgery per
formed on his or her child without regard to the possible
adverse consequences. Finally, she argues that a trial court
has the authority to condition an award of custody when it is
necessary to protect the best interests of the child.
Father responds that the trial court properly denied
mother's motion for a change of custody. He argues that no

Cite as 344 Or 1 (2008) 9
evidentiary hearing was required on the motion, because
mother failed to satisfy her burden under ORS 107.135 to
demonstrate a sufficient change in circumstances. He also
argues that mother received a hearing, because there was a
telephonic hearing during which she testified. Father argues
that the trial court examined the affidavits submitted by both
parties and properly found that there was an insufficient
basis to go forward with an evidentiary hearing.
This court has established a two-step inquiry for
determining whether a court should modify a custody
arrangement. See Ortiz and Ortiz, 310 Or 644, 649, 801 P2d
767 ( 1990) (formulating the inquiry). A parent seeking a cus
tody change must show that (1) after the original judgment or
the last order affecting custody, circumstances relevant to
the capacity of either the moving party or the legal custodian
to take care of the child properly have changed, and (2) con
sidering the asserted change of circumstances in the context
of all relevant evidence, it would be in the child's best inter
ests to change custody from the legal custodian to the moving
party. Id. See also Greisamer and Greisamer, 276 Or 397,
400, 555 P2d 28 ( 1976) (describing two-step analysis). A par
ent seeking a change of custody bears the burden of showing
a change in circumstances. See State ex rel Johnson v. Bail,
325 Or 392, 396, 938 P2d 209 (1997) (so stating).
The inquiry into whether there has been a change in
circumstances is a factual one that relates to the capability of
one or both parents to properly care for the child. Greisamer,
276 Or at 400. One way a parent can show a change in cir
cumstances is to show a change that has injuriously affected
the child. Henrickson v. Henrickson, 225 Or 398, 403, 358 P2d
507 ( 1961). Another is to show a change in the other parent's
ability or inclination to care for the child in the best possible
manner. Id. at 404. When there is insufficient evidence of a
change in circumstances since the last custody determina
tion, a court does not consider the second step of the analysis.
See State ex rel Johnson, 325 Or at 397 (so stating). There
fore, the question whether mother was entitled to an eviden
tiary hearing to present evidence regarding M's best inter
ests turns on whether she, as the parent seeking a change of
custody, satisfied her initial burden of demonstrating a

10 Boldt and Boldt
change in circumstances relevant to the capacity of father to
properly care for M since the 2002 custody determination.
The trial court ruled that decisions regarding elec
tive surgery for a child are reserved to the custodial parent,
and denied mother's motion without a hearing on the merits .
We agree with the trial court that the authority of the custo
dial parent to make medical decisions for his or her child,
including decisions involving elective procedures and deci
sions that may involve medical risks, is implicit in both our
case law and Oregon statutes. For example, in Ortiz, this
court observed that, "in the context of divorced persons, 'cus
tody' is the legal relationship between a minor child and the
legal custodian, i.e. , the person to whom the court has given
the primary rights and responsibilities to supervise, care for,
and educate the child [.]" 3 10 Or at 649 (emphasis in original).
However, a statute, ORS 107. 154, provides that an order of
sole custody to one parent shall not deprive the noncustodial
parent of specific rights, including the right to consult with
any person who may provide care or treatment for the child
and to inspect and receive the child's medical records, as well
as the right to authorize emergency care for the child if the
custodial parent is unavailable.7 Father argues that ORS
1 07 . 154 limits a noncustodial parent's rights to only those
rights specified in that statute, that is, mother can "consult
with" M's doctor, but cannot override father's decisions
regarding M's medical care. For that reason, father argues,
his decision to have M circumcised cannot be the basis for
changing a custody order or holding an evidentiary hearing
on the issue.
7 ORS 107. 154 provides, in part:
"Unless otherwise ordered by the court, an order of sole custody to one par
ent shall not deprive the other parent of the following authority:
"(3) To consult with any person who may provide care or treatment for the
child and to inspect and receive the child's medical, dental and psychological
records, to the same extent as the custodial parent may consult with such per
son and inspect and receive such records;
"(4) To authorize emergency medical, dental, psychological, psychiatric or
other health care for the child if the custodial parent is, for practical purposes,
unavailable [.]"

Cite as 344 Or 1 (2008) 1 1
Mother, joined by amicus curiae Doctors Opposing
Circumcision (DOC), asserts that there is no more important
decision to make for a male child than to require that the
child undergo permanent modification to his body, and
argues that an evidentiary hearing is required to find out
whether M objects to the circumcision. She also contends that
an evidentiary hearing is required so that she may present
evidence regarding the harmful effects and permanent
nature of circumcision. Indeed, mother and DOC assert that,
because of the significant medical risks associated with cir
cumcision, M should not be circumcised even if he states that
he wants to undergo the procedure.
In response, father, joined by amicus curiae
American Jewish Congress, American Jewish Committee,
Anti-Defamation League, and Union of Orthodox Jewish
Congregations of America (collectively, AJC), argues that the
trial court did not need to hold an evidentiary hearing,
because M's attitude about whether he wants the circumci
sion is not legally significant. Father asserts that a child is
not the decision-maker on such questions, any more than an
infant who is circumcised. If the legislature had wanted a
male child to have a say in whether he is circumcised, he con
tends, it could have adopted a statute to that effect, as it has
done in other statutes such as ORS 109.610 (giving minors
the right to consent to treatment for venereal disease without
parental consent). Father also contends that the health risks
associated with male circumcision are de minimus. In any
case, father maintains that the affidavits he supplied to the
trial court demonstrate that M does want to be circumcised.
Finally, father and AJ·c argue that father has a con
stitutionally protected right to circumcise his son. They
maintain that American Jews must be free to practice cir
cumcision because it is and has been one of the most funda
mental and sacred parts of the Jewish tradition. Father con
cludes that, if this court requires the trial court to hold an
evidentiary hearing, we would usurp the role of the custodial
parent and violate the First Amendment to the United States
Constitution.
Although the parties and amici have presented
extensive material regarding circumcision, we do not need to

Boldt Boldt
decide in this case which side has presented a more persua
sive argument regarding the medical risks or benefits of male
circumcision. We conclude that, although circumcision is an
invasive medical procedure that results in permanent physi
cal alteration of a body part and has attendant medical risks,
the decision to have a male child circumcised for medical or
religious reasons is one that is commonly and historically
made by parents in the United States. We also conclude that
the decision to circumcise a male child is one that generally
falls within a custodial parent's authority, unfettered by a
noncustodial parent's concerns or beliefs-medical, religious
or otherwise. Were mother's concerns or beliefs regarding cir
cumcision all that were asserted in the affidavits in this case,
we would conclude that mother did not carry her initial stat
utory burden to demonstrate a sufficient change in cir
cumstances demonstrating father's inability to properly care
for M.
However, in this case, mother has averred in her
affidavit that M objects to the circumcision.8 In our view, at
age 12, M's attitude regarding circumcision, though not con
clusive of the custody issue presented here, is a fact necessary
to the determination of whether mother has asserted a col
orable claim of a change of circumstances sufficient to war
rant a hearing concerning whether to change custody. That is
so because forcing M at age 12 to undergo the circumcision
against his will could seriously affect the relationship
between M and father, and could have a pronounced effect on
father's capability to properly care for M. See Greisamer, 276
Or at 400 (illustrating proposition). Thus, if mother's asser
tions are verified the trial court would be entitled to recon
sider custody. As to that inquiry, however, we think that no
decision should be made without some assessment of M's true
state of mind. That conclusion dictates the outcome here.
We remand the case to the trial court with instruc
tions to resolve the factual issue whether M agrees or objects
to the circumcision. In order to resolve that question, the trial
court may choose to determine M's state of mind utilizing
8 In direct contradiction to mother's sworn assertion, father has asserted that
M accepts the circumcision.

Cite as 344 Or 1 (2008) 13
means available to it under the relevant provisions of ORS
107.425.9 If the trial court finds that M agrees to be circum
cised, the court shall enter an order denying mother's
9 In this state the legislature has made it clear that, in determining child cus
tody in a variety of settings, a court, when appropriate, may use various methods to
determine a child's views or best interests.
ORS 107.425 provides, in part:
"(2) The court, on its own motion or on the motion of a party, may order an
independent physical, psychological, psychiatric or mental health examination
of a party or the children and may require any party and the children to be
interviewed, evaluated and tested by an expert or panel of experts. The court
may also authorize the expert or panel of experts to interview other persons
and to request other persons to make available to the expert or panel of experts
records deemed by the court or the expert or panel of experts to be relevant to
the evaluation. The court may order the parties to authorize the disclosure of
such records. In the event the parties are unable to stipulate to the selection of
an expert or panel of experts to conduct the examination or evaluation, the
court shall appoint a qualified expert or panel of experts. The court shall direct
one or more of the parties to pay for the examination or evaluation in the
absence of an agreement between the parties as to the responsibility f or pay
ment but shall not direct that the expenses be charged against funds appropri
ated f or public defense services. If more than one party is directed to pay, the
court may determine the amount that each party will pay based on financial
ability.
"* * * * *
"(4) The provisions ofthis section apply when:
"(a) A person files a domestic relations suit, as defined in ORS 107.510;
" (b) A motion to modify an existing judgment in a domestic relations suit
is bef ore the court;
"(c) A parent of a child born to an unmarried woman initiates a civil pro
ceeding to determine custody or support under ORS 109.103;
"(d) A person petitions or files a motion f or intervention under ORS
109 . 1 19;
" (e) A person or the administrator files a petition under ORS 109.12 5 to
establish paternity and paternity is established; or
"(D A habeas corpus proceeding is bef ore the court.
"(5) Application ofthe provisions ofsubsection (1), (2) or ( 3 ) ofthis section
to the proceedings under subsection ( 4) ofthis section does not prevent initia
tion, entry or enf orcement ofan order ofsupport.
"( 6) The court, on its own motion or on the motion ofa party, may appoint
counsel f or the children. However, if requested to do so by one or more of the
children, the court shall appoint counsel f or the child or children. A reasonable
fee f or an attorney so appointed may be charged against one or more ofthe par
ties or as a cost in the proceedings but shall not be charged against funds
appropriated f or public defense services.
"(7) Prior to the entry of an order, the court on its own motion or on the
motion ofa party may take testimony from or confer with the child or children

14 Boldt and Boldt
motions. If, however, the trial court finds that M opposes the
circumcision, it must then determine whether M's opposition
to the circumcision will affect father's ability to properly care
for M. And, if necessary, the trial court then can determine
whether it is in M's best interests to retain the existing cus
tody arrangement, whether other conditions should be
imposed on father's continued custody of M, or change cus
tody from father to mother.
The decision of the Court of Appeals is reversed. The
supplemental judgment of the circuit court is reversed. The
case is remanded to the circuit court for further proceedings.
-----······- -------
of the marriage and may exclude from the conference the parents and other
persons if the court finds that such action would be likely to be in the best inter·
ests of the child or children. However, the court shall permit an attorney for
each party to attend the conference and question the child, and the conference
shall be reported."
The legislature amended ORS 107.425 in 2007. However, those amendments are
not material to the issues presented here. For that reason, we refer to the current
version of the statute.