"Gaslighting" Isn't "Abuse" for Child Custody Law Purposes

From Oregon Court of Appeals Judge Ramón Pagán, joined by Judges Robyn Aoyagi and Jacqueline Kamins, Wednesday in Estens v. Wells:

[In a child custody hearing, w]itnesses testified to an incident in which mother took the child on vacation to Hawaii and claimed to father that she had been bumped from her flight, requiring her to return the child late. Mother’s boyfriend testified that she had not been bumped from the flight. Mother was also found to be evasive about details of the child’s medical care. She denied, but then later admitted, that she had cancelled or skipped medical appointments. The parties also testified about text messages between mother and father where mother had greatly exaggerated the number of times that child had attended a particular extracurricular activity in what appeared to be an attempt to have father help pay for the activity.

In its decision, the trial court explained that one of the factors it was considering was that mother had abused father:

“Another factor that I may have skipped over is the abuse of one parent by the other. There has been no allegation of abuse. However, I find that Mother’s communication with Father and the testimony amounts to a lot of gaslighting. It’s a moving target, the truth with Mother’s testimony has been a moving target. ‘Didn’t you say this?’ ‘Oh, yes, but I meant this.’ There’s six different explanations for everything. And it is not good for the child and it does constitute abuse, gaslighting is abuse. And so that is another factor that the Court is considering.”

The trial court found mother not credible and father credible. The trial court thus modified sole custody to father….

Mother appealed, and the court reversed, concluding in part:

We agree with mother that the conduct that the trial court described as “gaslighting” is not sufficient to be considered “abuse” under the relevant statutes.

In making custody decisions, courts consider two relevant provisions of ORS 107.137 that use the word “abuse.” ORS 107.137(1)(d) requires the court to consider, among other relevant factors, “[t]he abuse of one parent by the other[.]” As relevant here, ORS 107.137(2) goes on to provide:

“The best interests and welfare of the child in a custody matter may not be determined by isolating any one of the relevant factors referred to in subsection (1) of this section, or any other relevant factor, and relying on it to the exclusion of other factors. However, if a parent has committed abuse as defined in ORS 107.705, * * * there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse.”

Thus, a finding of abuse is highly significant because if a parent’s conduct is found to qualify as abuse under ORS 107.705, custody is presumed to not be awarded to the abusive parent.

Abuse is not defined in ORS 107.137(1)(d). However, ORS 107.137(2) relies on the definition in ORS 107.705(1) …:

“(1) Abuse’ means the occurrence of one or more of the following acts between family or household members:

“(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury.

“(b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.

“(c) Causing another to engage in involuntary sexual relations by force or threat of force.”

There is no evidence of any abuse that meets the ORS 107.705(1) definition. Father did not allege that mother engaged in verbal threats that put him in fear of imminent bodily injury. Nor was there any evidence that mother had ever threatened father with bodily injury.

The only remaining question then is whether the evidence could meet a more general definition of abuse under ORS 107.137(1)(d), assuming there is such a distinction in the law….  For the sake of argument, we assume—but do not conclude—that ORS 107.137(1)(d) has a separate, more general, definition of abuse than ORS 107.705(1). To the extent that we have allowed verbal abuse to be considered in a prior case, it was accompanied by physical abuse … [or at least verbal conduct] of a serious and menacing nature that implied a threat of physical violence….

Thus, the question is whether mother’s alleged verbal abuse, characterized as “gaslighting” by the trial court, legally rises to the level of “abuse” under ORS 107.137(1)(d). We conclude that the alleged conduct could not rise to the level of abuse under ORS 107.137(1)(d).

At most, the evidence here could show that mother and father did not communicate in a healthy manner, that mother had been at times dishonest with excuses for her frequent tardiness, and that mother had exaggerated or misrepresented childcare matters to father and the court. But mother did not threaten physical violence, nor were any of the comments of a serious and menacing nature. The method of the comments’ delivery, chiefly via text, as opposed to [an] in-person threat …, further attenuates any possible abusiveness. That is not to say that no verbal conduct could ever rise to the level of abuse under ORS 107.137(1) (d), but we cannot say that mother’s statements or actions identified by father or the court in this case rose to the level of abuse.

Father argues that the court’s use of the terms gaslighting and abuse are irrelevant because the trial court was simply trying to articulate that it found mother not credible. We disagree with that reading. The trial court made its finding of abuse in the course of articulating the list of factors it had to consider under ORS 107.137(1). The court acknowledged that it had initially skipped ORS 107.137(1)(d), which addresses abuse, but then returned to it and made a finding that mother had abused father and noted that the court was considering that factor. While the trial court may have also used that evidence to find mother to be not credible (as, again, the trial court did explicitly find her to not be credible at the outset of its ruling), it still found that mother had committed abuse by gaslighting father….

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