Case Law Update — Custody Modification & Gaslighting

On April 29, 2026, the Oregon Court of Appeals issued an important opinion in Estens v. Wells, 349 Or App 114 (2026), reversing a custody modification and providing guidance on two key issues that arise frequently in contested custody proceedings: the mandatory primary caregiver preference and the legal definition of abuse between parents.

The parties divorced in 2022 and shared joint custody of their child. In April 2023, father sought to modify custody, citing mother's frequent tardiness, uncooperativeness, and other concerns. At trial, evidence was presented that mother had misrepresented the reason for returning the child late from a Hawaii vacation, was evasive about the child's medical care, and had exaggerated childcare information to father via text message. The trial court found mother not credible and awarded sole custody to father. In doing so, the court identified two factors under ORS 107.137(1) that it found weighed against mother: that she was not the primary caregiver, and that she had "abused" father through "gaslighting."

Mother appealed, raising two assignments of error. The Court of Appeals agreed with her on both.

First: The Primary Caregiver Preference Is Mandatory. Under ORS 107.137(1)(e), a trial court must designate which parent is the primary caregiver and give that parent a preference when determining custody. The Court reaffirmed that this designation is not optional — it is legally required. Henretty v. Lewis, 319 Or App 345 (2022). Although the trial court discussed the primary caregiver factor at length, it never actually identified which parent was the primary caregiver, and it never explained how that preference factored into its custody decision. That omission was reversible error.

Second: "Gaslighting" Is Not Legal Abuse. The trial court found that mother had "abused" father by gaslighting him — essentially by being dishonest, inconsistent, and manipulative in her communications. The Court of Appeals rejected that finding. Under ORS 107.137(1)(d), courts must consider whether one parent has abused the other. A finding of abuse is significant because, if the conduct meets the definition in ORS 107.705(1) — Oregon's Family Abuse Prevention Act — there is a rebuttable presumption that it is not in the child's best interest to award custody to the abusive parent. ORS 107.705(1) defines abuse as attempting to cause or causing bodily injury, placing someone in fear of imminent bodily injury, or causing involuntary sexual relations by force or threat.

Mother's conduct — dishonest excuses, misleading text messages, and inconsistent explanations — did not meet that definition. There were no threats of physical violence, no conduct of a serious and menacing nature, and no evidence of any bodily harm. The Court acknowledged that verbal conduct can, in some circumstances, constitute abuse, but only where it is accompanied by physical abuse or implies a genuine threat of physical violence. Here, the conduct was primarily carried out via text message and amounted to poor communication and dishonesty — not legal abuse. The Court was careful to note that mother's behavior could still be considered as part of the overall best-interests analysis; it simply could not be labeled "abuse" under ORS 107.137(1)(d).