Spaulding v. Butler
Annotate this Case
Spaulding v. Butler (99-164); 172 Vt. 467; 782 A.2d 1167
[Filed 31-August-2001]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 99-164
Jon K. Spaulding Supreme Court
On Appeal from
v. Rutland Family Court
Michele Butler March Term, 2000
Mary Miles Teachout, J.
Norman R. Blais, Burlington, for Plaintiff-Appellee.
Gregg Meyer, Rutland, and Karen L. Richards, Vermont Legal Aid, Inc.,
Montpelier, for Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J. Michele Butler (mother) appeals from a Rutland Family
Court order granting Jon Spaulding's (father) motion to modify parental
rights and responsibilities, and awarding sole legal and physical parental
rights and responsibilities of the parties' son, Nathan, to father, and
visitation to mother. Mother argues that the court erred in finding that a
real, substantial and unanticipated change of circumstances had occurred,
see 15 V.S.A. § 668, and in concluding that awarding custody to father was
in Nathan's best interests, see id. We affirm in part, reverse in part,
and remand.
I.
The trial court found the following facts.(FN1) Mother has a child,
Michael, from a previous relationship with a man named Pero. Michael is
developmentally delayed. Mother's relationship with Pero ended when
mother obtained a relief-from-abuse order against him. Father was
previously married. When this marriage ended, his ex-wife obtained a
relief-from-abuse order against father, which was later amended to include
a restraining order against father.
Mother and father met in January 1993. One month later, when Michael
was approximately two years old, mother and Michael moved in with father.
Mother became pregnant with the parties' child, Nathan. However, the
relationship was problematic. According to the court, father has a temper,
which revealed itself in violent ways, e.g. when scratched by Michael's
cat, he got angry and shot and killed the cat. In May 1993, mother called
some friends to come and help her leave the home. While on the phone with
mother, the friends heard father "raging in the background and threatening
them with a bullet if they came." Father threw mother's belongings out of
the house "in a rage." After two weeks, father convinced mother to
return, which she did, but only briefly. She eventually left and obtained
a relief-from-abuse order against father on the grounds that he had abused
both her and Michael, including beating him with a belt. At the hearing
resulting in the order presently on appeal, father testified that the
parties never argued and that he could not understand why mother left him.
The court found that father "was not credible in his testimony" and that
"Mr. Spaulding physically abused Michael, and was threatening to Ms.
Butler and placed her in fear of imminent serious physical abuse."
Nathan was born on December 7, 1993. Father filed a parentage case,
seeking to establish parentage and parental rights and responsibilities
with respect to Nathan. In January 1994, mother was awarded temporary
sole legal and physical rights and responsibilities. Father was denied
visitation. At mother's request, the court also amended the June 1993
relief-from-abuse order to include a no-stalking provision. In March
1994, father obtained an order providing for visitation.
In the spring of 1994, father entered into a relationship with his
present wife, Penelope, who became actively involved in issues concerning
Nathan. She took over arranging father's visits with Nathan and wrote
letters to mother telling her how she should be taking care of Nathan. The
court found that Penelope's involvement interfered in father and mother's
ability to communicate directly over Nathan.
In June 1994, at mother's request, the court renewed the provisions
of the June 1993 relief-from-abuse order, including the no-stalking
provision.
In July 1994, mother began therapy with Meredith McCartney of
Community Mental Health Center, to get help coping with Michael's special
needs. This therapy continued, on a regular basis, for approximately a
year. In this regard, the court found mother to be a concerned parent,
willing to take advantage of available resources, but somewhat
"overwhelmed by powerful forces around her." It is not clear what powerful
forces the court was referring to. Mother brought both boys to the
sessions and "[i]n Ms. McCartney's presence, [mother] was able to use
appropriate parenting methods in managing the two children. Nonetheless,
Michael took up so much of her attention, due to his special needs, that
Nathan received less attention."
In September 1994, the court issued a final order granting sole legal
and physical parental rights and responsibilities of ten-month-old Nathan
to mother, and unsupervised visitation to father.
Pursuant to the parties' stipulation, the court deleted the no-stalking
provisions of the June 1994 relief-from-abuse order.
Over the next year, the Spauldings, father and Penelope, began taking
pictures of Nathan to document when he arrived for a scheduled visit dirty
or bruised. At some point during this period, testing showed that Nathan
began to be developmentally delayed.
During a visit in August 1995, father noticed that Nathan had a bad
diaper rash. Mother had been aware of the rash and used an
over-the-counter ointment to treat it. When that failed, she sought help
from a doctor who prescribed a prescription ointment. Father took Nathan
to the hospital and was given an ointment that began to clear up the rash.
The following weekend, father noticed, the rash was bad again. This
pattern persisted. The court found that mother had "pursued appropriate
care for treatment of the rash, but that she was not able to follow through
consistently in order to clear up the rash, and that as a result, Nathan
repeatedly suffered a severe and painful rash that was preventable."
In August of 1996, Nathan was tested for lead poisoning and found to
have unacceptable levels of lead in his blood. At the hearing, mother
testified that she was later contacted and told that there was an error in
the test. The court made no finding on this issue, stating: "There is no
indication one way or another whether it is accurate that there was an
error." In September 1996, mother, Nathan and Michael returned to weekly
therapy with Ms. McCartney because the boys were biting each other on a
regular basis.
In April 1997, during a visit, father found marks on Nathan's body
where Michael had bitten him, and took Nathan to the hospital. The court
found that father "was dishonest about Nathan's custody status," telling
hospital personnel that he had custody of Nathan. The hospital reported
the
marks to SRS. Father filed a relief-from-abuse petition in which he
requested transfer of custody to himself. After hearing, the court found
abuse based on mother's failure to prevent Michael from hurting Nathan and
issued a relief-from-abuse order transferring custody to father and
providing for mother to have supervised visits with Nathan for four hours
a week. Father then filed the motion to modify the parentage order
presently at issue. In the order now on appeal, the court found that
mother had been aware of and concerned about the bite marks and had shown
them to a public health worker at a clinic. In August 1997, SRS completed
its investigation of the bite marks and found father's allegations of
abuse unsubstantiated. In September 1997, the parties stipulated to
unsupervised visits between mother and Nathan for three weekends a month,
and to a professional evaluation of mother's interactions with Nathan.
On October 14, 1997, Nathan came back from a visit with mother with
marks on his body; mother told father the marks were cold sores. Father
took Nathan to the hospital where it was determined that the marks were
cigarette burns, and a report was made to SRS. The following week, father
learned that Nathan had fallen out of a second-story window during a visit
with mother. At that time, mother determined that Nathan was fine and did
not seek medical care. Father reported the fall to SRS and filed a motion
to stop visits. In November 1997, the court issued an order terminating
Nathan's visits with mother pending SRS's investigations of the marks on
Nathan's body and of his fall.
In the meantime, Dr. Peter Aines, a psychologist had begun evaluating
mother, pursuant to the parties' September 1997 stipulation. He requested
supervised visits so he could observe mother and Nathan interacting. A
guardian ad litem also supported resumption of visits. However, because
the parties could not agree on the arrangements for supervised visits,
mother did not visit Nathan for
several months. The court found
that a contributing factor was that Ms. Butler, who is a
person who tends to be overpowered by others and can be
overwhelmed by the needs of her other child Michael, was
unrepresented and was being presented with proposals from
Mr. Spaulding's attorney that she not have any contact at
all with Nathan until he was ten. Ms. Butler did not pursue
seeing Nathan as actively as she might, but she was also
dealing with some fairly strong forces working against her.
She did not have the ability or strength to overcome those
forces and maintain a relationship with Nathan, even though
she was being urged on by the evaluator and GAL.
In March 1998, SRS attempted to investigate an allegation that Nathan
and another child had been showing each other their private parts in the
home of a friend of the Spauldings. Father refused to allow SRS to
investigate. According to the court: "The lack of cooperation suggests
that [father] is willing to use the SRS reporting mechanism for his own
benefit to build a record of abuse of Nathan against Ms. Butler, but he is
not open and cooperative when there is any suggestion involving possible
claims of abuse connected with his own household."
In June 1998, after six months without a visit between mother and
Nathan, supervised visits were reinstated, the first visit taking place in
the evaluator's office. While acknowledging that it would be hard for
Nathan to reestablish a relationship with his mother after not seeing her
for so long, the court found that Nathan's response to this first visit
was "beyond what is reasonable to expect" in that he avoided his mother
and played only with the evaluator. The court noted that "Mr. Spaulding,
with very active involvement on the part of Penelope, has engaged in a LONG
TERM PERSISTENT CAMPAIGN TO CUT OFF ANY RELATIONSHIP BETWEEN NATHAN AND
MS. BUTLER." (emphasis added).
Nathan began to show a lack of desire to go on visits. According to
the court, this was
not surprising for several reasons. For one thing, he
had had extremely limited contact with his mother over the
previous seven or
eight months. In addition, his experience with supervised
visits included the experience of having the Spauldings
remain on the premises, with Mr. Spaulding and/or Penelope
and some of the Spaulding children walking around and
observing what was going on, while he was visiting with Mrs.
Butler. . . . Third, the testimony as a whole in this case,
and the evaluation of the demeanor of the witnesses, leads
the Court to find that THE SPAULDINGS HAD ENGAGED IN A
CAMPAIGN OF PRESENTING MS. BUTLER TO NATHAN IN A VERY
NEGATIVE LIGHT. Rather than encouraging a constructive
relationship, they presented her to him as a person who
represented potential abuse to him.
(emphasis added).
On July 2, 1998, SRS completed its investigation into the cigarette
burns and found father's allegations of abuse unsubstantiated. Initially
SRS did substantiate abuse by mother for failing to protect Nathan with
respect to his fall from the window. However, in December 1998, SRS
reversed itself and determined that insufficient information existed to
substantiate allegations of abuse.
In August 1998, father and Penelope got into an argument during which
father lost his temper, slapped Penelope in the face and engaged in other
threatening behavior. Penelope called the police, who came and defused
the situation. When the police went inside to speak with Penelope, they
found Nathan lying in a fetal position. Two days later, the Spauldings
filed a new relief-from-abuse petition against mother, based on the same
allegations as the previous petitions and including a new allegation that
Nathan had reported seeing mother and a man engaged in sexually suggestive
dancing. Visitation was suspended. After a hearing on the petition, it
was dismissed, at which time father became angry and had to be restrained.
The court also issued a temporary order providing for visitation between
mother and Nathan.
The alleged dancing incident was reported to SRS. SRS and the police
decided to interview Nathan about the incident together, and instructed
father and Penelope not to talk with Nathan about
the interview. The Spauldings apparently did not comply. According to the
court:
The police investigator noted that Nathan used words to
describe the incident that he did not understand. For
example, he talked about breasts but he could not show what
breasts were on an anatomically correct doll. The police
found it difficult to determine the extent to which Nathan
at age four and one half was accurately reporting anything
that might have happened a year to eighteen months earlier.
Nathan was able to demonstrate using anatomically correct
dolls a sexy kind of dancing between the dolls. It appears
that he must have seen something of that nature somewhere.
It is not clear where he saw it. Mr. Spaulding has in the
past watched 'dirty movies' in his home. Penelope is a very
religious person and does not do so. At the time this issue
arose, Nathan had no unsupervised contact with Ms. Butler
for over a year and a half.
At the time the court issued its final order on father's motion to modify,
the police investigation remained unresolved, and the results of SRS's
investigation had not been received.
On October 31, 1998, the evaluator attended his second visit between
mother and Nathan. By this time the relationship had deteriorated-Nathan
refused to interact with mother. In February 1999, the court granted
father's motion to modify, and awarded father sole parental rights and
responsibilities over Nathan and mother supervised visitation for six
months, transitioning to unsupervised visitation. The court ordered
father to pay the costs of any supervised visitation because it found that
he was "PRIMARILY RESPONSIBLE FOR THE SERIOUS DISRUPTIONS IN THE
RELATIONSHIP BETWEEN MS. BUTLER AND NATHAN, including the long-term
disruption of visitation." (emphasis added). Mother moved for
reconsideration, which the court denied.
Mother appeals from the final order and from the denial of her motion
to reconsider.
II.
"[W]hen reviewing the factual findings of a trial court we view them
in the light most favorable to the prevailing party below, disregarding
the effect of any modifying evidence, and we
will not set aside the findings unless they are clearly erroneous."
Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d 1228, 1230 (1999) (mem.).
"We will uphold factual findings if supported by credible evidence, and
the court's conclusions will stand if the factual findings support them."
In re T.L., 169 Vt. 550, 551, 726 A.2d 496, 497 (1999) (mem.). We will,
however, reverse if the court's findings are not supported by the
evidence, Johnson v. Johnson, 163 Vt. 491, 496, 659 A.2d 1149, 1152 (1995),
or if its conclusions are not supported by the findings, Begins v. Begins,
168 Vt. 298, 301, 721 A.2d 469, 471 (1998).
When faced with a motion to modify a parental rights and
responsibilities order, the court must make a threshold finding that there
has been a real, substantial and unanticipated change of circumstances.
See Pill v. Pill, 154 Vt. 455, 458-59, 578 A.2d 642, 644 (1990); 15 V.S.A.
§ 668. Once the court has found the requisite change of circumstances, it
must determine what arrangement is in the child's best interests. See
Gates v. Gates, 168 Vt. 64, 69, 716 A.2d 794, 798 (1998); 15 V.S.A. § 668.
The burden of proving that a change in custody is in the child's best
interests is on the moving party. See Lane v. Schenck, 158 Vt. 489, 497,
614 A.2d 786, 790 (1992). Trial courts have broad discretion in
determining the best interests of the child. See Myott v. Myott, 149 Vt.
573, 578, 547 A.2d 1336, 1339 (1988).
Mother argues that the court erred both in finding that there had been
a real, substantial and unanticipated change in circumstances, and in
concluding that awarding custody of Nathan to father was in Nathan's best
interests. We conclude that the court correctly found a real, substantial
and unanticipated change in circumstances, but that its conclusion that
awarding custody of Nathan to father was in Nathan's best interests was in
error.
In determining that a real, substantial and unanticipated change in
circumstances had
occurred, the court defined the relevant time period as between September
1994, the date of the modified final parentage order, and April 1997, the
date father filed the motion to modify parental rights and
responsibilities. During this time period, the court noted that there had
been a
pattern of poor care of a severe and painful diaper
rash, the severity of which was unnecessary as shown by the
improvement in the rash during the weekend visitations with
Mr. Spaulding; a pattern of Nathan appearing for visits with
Mr. Spaulding with a number of bruises and marks on his
body; a lead test indicating lead poisoning of Nathan with
no information that the problem had been taken care of; a
pattern of biting behavior between Michael and Nathan that
had not improved despite the work of Ms. Butler with
Meredith McCartney in therapy; delays in Nathan's
developmental milestones as indicated by testing through
Triple E and Stepping Stones; and severe bite marks on
Nathan from Michael on April 11, 1997.
Based on these facts, the court found a real, substantial and unanticipated
change in circumstances.
"The moving party has a heavy burden to prove changed circumstances,
and the court must consider the evidence carefully before making the
threshold finding that a real, substantial and unanticipated change of
circumstances exists." Pill, 154 Vt. at 459, 578 A.2d at 644. Evidence
that a child has begun to show signs of developmental delay while in a
parent's custody, coupled with evidence that the parent was not properly
addressing the issue or was contributing to it by neglect, for example,
would support a finding of a real, substantial, and unanticipated change of
circumstances. In this case, the court found that testing of Nathan showed
that he had begun to be developmentally delayed. The court further noted
that Michael's needs placed great demand on mother's time and attention,
and that, as a consequence, Nathan received inadequate attention. The
court coupled its finding regarding Nathan's developmental delay with its
finding that Nathan suffered from repeated physical injuries, a situation
brought about by what the court characterized
as "a chronic low level of unintentional neglect" on mother's part.(FN2)
Therefore, the court's finding of a real, substantial and unanticipated
change in circumstances finds support in the record.
However, we hold that the court erred in its evaluation of and
conclusions regarding Nathan's best interests. In determining that
awarding custody of Nathan to father was in Nathan's best interests, the
court concluded that factors one through four, and factor six, favored
father, factors five and eight favored mother, factor seven favored
neither parent, but did not decide which parent factor nine favored.
According to the court, factors one and three were the primary reasons for
its decision that awarding custody of Nathan to father was in Nathan's
best interests. With regard to factor one, "the relationship of the child
with each parent and the ability and disposition of each parent to provide
the child with love, affection and guidance," 15 V.S.A. § 665(b)(1), the
court stated:
At this point, Nathan has an estranged relationship with
his mother. Prior to April of 1997 and the change in
custody brought about by court orders, it was a full
parent/child interaction, although Nathan's needs were not
able to be met fully due to his mother's attention being
diverted by Michael's challenging behavior. The events since
then have so strained the relationship that it will require
time for it to be rebuilt. His mother has strong love and
affection for him. . . . Her ability to provide it is
limited by the huge demands made on her time and attention
by Michael, and by her weakness in the face of powerful
forces.
The court determined that father had "a full parent/child relationship
with Nathan," and had demonstrated his love and affection and an ability
and willingness to provide guidance. However, it stated:
His ability and disposition to provide guidance is
negatively affected by his EXCESSIVE USE OF POLICE, SRS AND
EMERGENCY LEGAL PROCEDURES TO INTERFERE WITH NATHAN HAVING
A CONSTRUCTIVE RELATIONSHIP WITH HIS
MOTHER. He is willing to lie in order to achieve his
objective to become Nathan's primary parent. Nonetheless,
as a whole, this factor favors Mr. Spaulding.
(emphasis added).
The court's conclusion that factor one favors father is undermined by
its findings that father was engaged in a long-term, persistent campaign
to cut off any relationship between Nathan and mother. It had ordered
father to pay the costs of supervised visitation because it found father
primarily responsible for the serious disruptions in the relationship
between mother and Nathan. Furthermore, the fact that father currently
has a full parent/child relationship with Nathan while mother has an
estranged relationship is due, in large part, to father's attempts at
alienation.
As we stated in Renaud v. Renaud, 168 Vt. 306, 309, 721 A.2d 463,
465-66 (1998), "[a]cross the country, the great weight of authority holds
that conduct by one parent that tends to alienate the child's affections
from the other is so inimical to the child's welfare as to be grounds for a
denial of custody to, or a change of custody from, the parent guilty of
such conduct." Here, the court repeatedly found that father had actively
worked to alienate Nathan from his mother. To conclude, then, that
father's success in that regard gives him the advantage in factor one is
untenable. See Begins v. Begins, 168 Vt. 298, 302, 721 A.2d 469, 472
(1998) ("'[A] parent who willfully alienates a child from the other parent
may not be awarded custody BASED ON THAT ALIENATION.'") (quoting McAdams
v. McAdams, 530 N.W.2d 647, 650 (N.D. 1995) (emphasis in original));
Renaud, 168 Vt. at 309, 721 A.2d at 466 ("a sustained course of conduct
by one parent designed to interfere in the child's relationship with the
other casts serious doubt upon the fitness of the offending party to be the
custodial parent").
Under factor two, the court is to consider "the ability and
disposition of each parent to assure
that the child receives adequate food, clothing, medical care, other
material needs and a safe environment." 15 V.S.A. § 665(b)(2). The court
determined that factor two favored father. According to the court, while
mother may be able to provide an adequate material and safe environment if
she were not having to meet Michael's needs as well as Nathan's, the court
found:
[I]t appears that she has a pattern of relationships
with men whose behavior threatens the safety of the
environment for her children. The facts show that her
relationships with Mr. Pero, Mr. Spaulding, and Mr. Havens
all produced threatening and abusive environments for her
children.
The court noted that father was able to provide an adequate material
environment, but that:
The safety of the environment he offers is questionable
considering his history of violent domestic relationships in
the past, his history of shooting a cat with a gun on small
provocation, and the recent incident in which he reacted to
stress by slapping his wife and breaking a chair with four
and two year old children in the home. There are problems
with safety in both homes. This factor favors Mr. Spaulding
on the whole because of his better ability to follow through
on providing routine basic medical care.
It is confusing at best to fault mother for having relationships with
abusers, citing father as one of her lapses in judgment, but nonetheless
conclude that awarding custody to father is in Nathan's best interest.
While it is true that mother's relationship with Pero and with father were
abusive, the court found that she responded to each situation by obtaining
relief-from-abuse orders against both men. The record is silent as to the
resolution of her relationship with Havens. Thus, the court's conclusion
that there is a problem with safety in mother's home is speculative at
best. See In re Farley, 469 N.W.2d 295, 302 (Mich. 1991) ("When [the
mother's] lawyer questioned the professionals whether [the mother] could,
as a single parent, provide a fit home for the children, they dodged a
direct response by stating that they were concerned that she would enter
into another
relationship with a man who might again abuse her and the children. There
is no evidence other than myth of such a risk or that [the mother] would
do so.").
On the other hand, the court found that father had threatened his
first wife, causing her to obtain a relief-from-abuse order against him;
had shot and killed Michael's cat; had threatened the mother's friends;
had physically abused Michael and threatened mother, placing her in fear of
serious physical abuse, thereby causing mother to obtain a
relief-from-abuse order against him; had recently physically abused his
current wife, Penelope, in front of Nathan, causing Nathan to curl up in a
fetal position; had recently flown into a rage in the courtroom and had to
be restrained; and generally has a temper. Thus, the court's findings
support its conclusion that the safety of the environment father offers is
questionable. Given the above, to the extent the court based its
conclusion that factor two favored father on its determination that the
risk of violence was equal in both households, its conclusion was in
error.
With regard to factor four, "the quality of the child's adjustment to
the child's present housing, school and community and the potential effect
of any change," 15 V.S.A. § 665(b)(4), the court stated:
Nathan has been living with Mr. Spaulding and as a
member of the Spaulding household for nearly two years. It
would be a substantial change for him to leave that
household at this point. If he were to move back with his
mother, he would be returning to the apartment that he lived
in before. Since he has not yet started school, schooling
is not an issue. This factor favors Mr. Spaulding.
As with factor one, the court's conclusion with regard to factor four
is tainted because the fact that Nathan has been living with father for
two years is due, in large part, to father's successful attempts at
alienation, including his "excessive use of police, SRS and emergency legal
procedures
to interfere with Nathan having a constructive relationship with his
mother." See Begins, 168 Vt. at 302, 721 A.2d at 472; Renaud, 168 Vt. at
309, 721 A.2d at 466.
With regard to factor six, "the quality of the child's relationship
with the primary care provider, if appropriate given the child's age and
development," 15 V.S.A. § 665(b)(6), the court stated:
At this point, Nathan's relationship with his mother,
who was previously his primary care giver, is almost
nonexistent and negative. It would not make sense for him to
return to her as his primary parent at this time. He has
been led to be fearful and distrustful of her. Mr.
Spaulding has provided the primary parental care for quite
some time pursuant to court orders entered after court
hearings. This factor favors Mr. Spaulding.
Again, the court's conclusion in this regard is undermined by its
findings that father intentionally alienated Nathan from mother, thereby
eroding mother's relationship with Nathan and enabling father to become
Nathan's primary caretaker. See Begins, 168 Vt. at 302, 721 A.2d at 472;
Renaud, 168 Vt. at 309, 721 A.2d at 466.
Finally, the court did not decide which parent factor nine favored.
Under factor nine, the court is to "consider evidence of abuse, as defined
in section 1101 of this title, and the impact of the abuse on the child
and on the relationship between the child and the abusing parent." 15
V.S.A. § 665(b)(9). According to the court:
There is evidence of a chronic low level of
unintentional neglect on the part of Ms. Butler during the
period Nathan was primarily in her care, as well as a risk
that if he lives with her he would be exposed to abusive
conduct from others with whom she has relationships. With
Mr. Spaulding, there is a risk of exposure to domestic
violence as that has been his pattern with all three of the
women in his life and the August incident indicates that
this continues to be a realistic risk.
The court further noted: "There are risks to Nathan associated with living
with his father,
specifically there is a risk that Nathan will be exposed to domestic abuse.
Unfortunately, SUCH A RISK IS PRESENT IN BOTH HOUSEHOLDS, AND THE RISK IS
APPROXIMATELY EQUAL IN BOTH HOUSEHOLDS." (emphasis added).
As we stated above, the court's conclusion that there is a risk that,
if Nathan lives with mother, he would be exposed to abuse from future
boyfriends, is speculative at best, while the court's conclusion that
there is a "realistic risk" that father is likely to continue to be
violent, is supported by its findings. Therefore, the court's conclusion
that the risk of domestic abuse is approximately equal in both households
is erroneous. Given the court's findings, the risk of domestic abuse is
clearly greater in father's household. Therefore, the court should have
weighed this factor in mother's favor.
The court concluded that awarding custody to father was in Nathan's
best interests, despite having specifically found that father was a
batterer, a liar, and that he had consciously and deliberately alienated
Nathan from mother. As Dr. Aines, the family evaluator, stated in his
recommendations, which were submitted to the court:
The Spaulding's [sic] in their anger and zeal to protect
Nathan for [sic] abuse and neglect have alienated him from
his mother, and in doing so have contributed significantly
to his emotional difficulties. If he does not buy into the
idea that his mother is bad, he faces the fear of losing his
father and step mother's love. This causes unbearable
stress for Nathan, relieved only be [sic] ingratiating
himself to them. There is the additional difficulty that Mr.
Spaulding has in managing the conflict between his dependent
needs for attention, care and emotional support and his
difficulty being assertive toward women. Physical
aggression toward his partners has occurred in his last
three sustained relationships. The latest incident of
aggression occurred in the presence of Nathan and his
stepbrother, Morgan, and this is not in their best
interests.
In summary, the court's conclusion that factors one, two, four, and
six favor awarding
custody to father is not supported by the findings, and the court's failure
to conclude that factor nine favors mother, is erroneous. "An award so
flagrantly at odds with the findings simply cannot be allowed to stand."
Begins, 168 Vt. at 303, 721 A.2d at 473. Accordingly, we conclude that the
award of parental rights and responsibilities must be reversed, and the
case remanded for reconsideration of that issue.(FN3) The family court's
reconsideration should be made in light of the views expressed herein, and
should account for any change in circumstances that may have occurred
while this appeal was pending. In order to maintain stability for Nathan,
however, custody of Nathan
shall remain with father, and all orders affecting visitation shall remain
in place, pending further order of the family court.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
FOR THE COURT:
____________________________
Associate Justice
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Footnotes
FN1. Because the facts and procedural history of this case are so
intertwined, we discuss them together.
FN2. The court also relied on the alleged elevated levels of lead in
Nathan's system. The court, however, heard conflicting evidence on this
issue and failed to resolve the dispute with a finding.
FN3. The dissent contends that, by applying a standard of review
which recognizes the broad, but not unbounded, nature of the factfinding
and decisionmaking power of the trial courts, which in this case and in
Cloutier v. Blowers results in the reversal of the family court's
decisions, we are in fact transitioning away from deferential and toward
de novo review of child custody determinations. In doing so, the dissent
mischaracterizes the standard of review applied in these cases, both in
theory and effect. Appeals in our judicial system may be founded upon
errors of law or findings of fact not supported by the evidence. In
family law cases, if the law is applied correctly, the trial judge is
accorded a great deal of deference in making a custody decision. That is
true for all the reasons cited by the dissent, but it is appropriate to
afford that discretion only if the trial judge follows the rules of law
that apply to the case. In these cases, errors of law were made. In
Cloutier v. Blowers, the court made legal conclusions based on findings
not supported by the evidence and others not supported by its own
findings. Further, it elevated the best interests of the mother over those
of the child. In Spaulding v. Butler, the court made legal conclusions
not supported by its own findings. Such errors are for correction by the
appellate court. What the dissent is really arguing is that we abandon
appeals in cases based on errors of law, and, with that, abandon the role
of the appellate court to provide guidance on general principles of law
within which discretion may be exercised, in favor of a system that sweeps
all questions in family cases under the abuse of discretion standard. If
we adopted the dissent's approach, we could affirm every case, given the
trial court's broad discretion and the deference afforded its decisions.
The result of such an approach would be no meaningful appeal in family
cases. Further, we would thereby increase, not decrease, the decisional
disparities that can result in family cases. As acknowledged in each of
these decisions, the discretion enjoyed by the family court is not
absolute-the court may not overstep the legal boundaries which provide the
authority for the decisions it renders. At the very least, the role of the
appellate court is to ensure that the same rules and protections of law,
including the right to a fair hearing under the due process clause, is
available to litigants in family cases. It is just as important in a
family case to review the findings and the record as it is in a criminal
or tort case. Necessarily, this will result in reversals that may cause
upheavals in the lives of children and families, but that is not a reason,
in and of itself, to abandon our role as a meaningful appellate court.
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Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
Nos. 98-436 & 99-164
Suzanne Cloutier (Fletcher) Supreme Court
v.
On Appeal from
John Blowers Orleans Family Court
Jon K. Spaulding On Appeal from
Rutland Family Court
v.
Michele Butler March Term, 2000
Edward J. Cashman, J. (98-436)
Mary Miles Teachout, J. (99-164)
Matthew Colburn, Montpelier, for Plaintiff-Appellee. (98-436)
Norman R. Blais, Burlington, for Plaintiff-Appellee. (99-164)
John R. Durrance, Jr. of Gaston, Durrance & Fairbanks, Montpelier, for
Defendant-Appellant. (98-436)
Gregg Meyer, Rutland, and Karen L. Richards, Vermont Legal Aid, Inc.,
Montpelier, for Defendant-Appellant. (99-164)
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J., dissenting. I believe that any fair observer of our
child custody opinions, both majority and dissent, would conclude that
there is a significant gap between the standard of review we say we
employ, and our actions in resolving the cases before us. I fear that gap
is growing, and we are moving much closer to de novo review than we are
willing to admit. The two cases in which this dissent is filed are, in my
judgment, examples of this trend. Although the cases are different, and
the issues are different, they share one common element - that is, the
family court
decisions would be affirmed if we actually employed the standard of
review set out in the beginning of the majority opinions and in our
precedents. Thus, I am filing this common dissent to say that I believe
the direction in which we are going in appellate review of custody
decisions is wrong.
I acknowledge that the pressures that exist to abandon or "fudge"
deferential standards of review in custody decisions are real. Custody
decisions are critically important to the child or children who will grow
up, good or bad, in the new custodial situation. The interests of children
in their family and home environment may be the most important interests
we seek to protect in our judicial system. Unlike in many areas of the
law, most of us have life experiences we draw on in facing custody
questions. We are, accordingly, more likely to abandon a deferential
posture to rely upon our own knowledge and experience. Finally, the
consequences of excessive discretion in custody determinations are
troubling, a subject of much scholarly interest in recent years. See
generally C. Schneider, Discretion, Rules and Law: Child Custody and the
UMDA's Best-Interest Standard, 89 Mich. L. Rev. 2215 (1991).
The effect of these pressures is to elevate the desire to produce the
"right" answer for the child in the case before us over our normal
appellate co-goal of producing fair and predictable rules of law to guide
future cases. If the result were to achieve a balance between predictable
and fair rules, on the one hand, and judicial discretion on the other
hand, I would be less concerned. I think, however, the real result is to
substitute our discretion and individual judgment for that of the family
court in pursuit of the "right" outcome for the case before us. By this
process we are squaring discretion, not containing it.
I can think of no area where the need to contain the exercise of
appellate discretion is greater. I won't rehash the general reasons for
deferential standards of review based largely on the fact that
the family court, often aided by a guardian ad litem and professional
evaluators, saw and heard the parties, particularly the parents, and we
are dealing solely with transcripts. Those reasons should give us pause,
but there are additional reasons almost unique to child custody litigation.
We know from numerous studies that custody litigation has a tremendous
adverse impact on the children who are the subject of that litigation.
See A. Schepard, Parental Conflict Prevention Programs and the Unified
Family Court: A Public Health Perspective, 32 Fam. L.Q. 95, 102-06 (1998);
E. Brandt, The Challenge to Rural States of Procedural Reform in High
Conflict Custody Cases, 22 U. Ark. Little Rock L. Rev. 357, 359-60 (2000).
Whatever order the court issues as a result of that litigation, the
destructive impact of the litigation itself, and the accompanying adversary
contentiousness of the parents, may leave the greatest mark on the growth
and development of the child. In the cases before us, unless the parties
settle after our decision, that litigation will occur at least three times
- twice in the family court and once in this Court. I seriously doubt
that there is any longer a "right" answer, even if we can discover it.
The real need is to stop the contentious litigation as soon as possible,
not to discover a better custody order.
Unfortunately, our decisions breed further appeals. See G. Crippen,
The Abundance of Family Law Appeals: Too Much of a Good Thing?, 26 Fam.
L.Q. 85, 100-01 (1992). There is no predictable rule of law in either of
the majority decisions in the cases before us, except with respect to
considering the age of a prospective custodial parent and, even there, it
is unclear what is the holding of the Court. What there is, instead, is a
clear indication that the Supreme Court will substitute its judgment for
that of the family court. Thus, the message to any parent who has lost a
custody case is to try an appeal to this Court, which may weigh the
relevant factors differently.
There are, I believe, three main ways in which the decisions in
Cloutier v. Blowers and
Spaulding v. Butler are inconsistent with our proper limited role in
custody appeals. I discuss my reasons for dissenting from the majority
decisions under the headings below.
I. Adoption of Inappropriate Rules
Custody determinations are now governed by statute, 15 V.S.A. § 665.
That statute requires that the family court be guided by the best interest
of the child, id. at § 665(b), and sets out non-exclusive factors in
determining the best interest of the child. Because the list is
non-exclusive, the court may consider other factors bearing on the best
interest of the child. Hansen v. Hansen, 151 Vt. 506, 508, 562 A.2d 1051,
1053 (1989). While requiring that the family court consider all the
statutory factors, if relevant, the Legislature has prohibited the court
from establishing a preference based on the sex of the child, the sex of
the parent or the financial resources of a parent. 15 V.S.A. § 665(c).
The statute, however, contains no authorization for this Court to add
categorical rules that restrict the trial court from determining the best
interest of the child. In Cloutier v. Blowers, the majority has done
exactly that, interfering with the proper and necessary discretion of the
family court.
In Cloutier, the family court held that because all other factors were
in balance, it had to give critical weight to the age of the parents who
sought custody. The majority rejects this approach although its ground is
unclear. It holds either that (1) the relationship between the age of the
proposed custodian and the best interest of the child can be considered
only if there is evidence, presumably expert evidence, to support such
consideration; or (2) the age of the custodian may not be considered
because it results on discrimination based on age.
The first alternative is contrary to our precedents, intended to
support the discretion of family court judges. In Harris v. Harris, 149
Vt. 410, 546 A.2d 208 (1988), the mother, who did not prevail
in the custody dispute in the trial court, argued that the trial judge
could not consider that she was living out of wedlock with a man, without
expert testimony to show the effect on the best interest of the child. We
rejected that argument as follows:
While the expert testimony would have been helpful in
this case, we agree with the trial court that the evidence
fell in an area where the court could evaluate it without
expert testimony. Such evaluation was expected under the
language of § 665(b)(7). We concur with the Supreme Court of
Kentucky which, facing a similar statute and similar
evidence, said:
A trial judge has a broad discretion
in determining what is in the best
interests of children when he makes a
determination as to custody. In many
instances he will be able to draw
upon his own common sense, his
experience in life, and the common
experience of mankind and be able to
reach a reasoned judgment concerning the
likelihood that certain conduct or
environment will adversely affect
children. It does not take a child
psychologist or a social worker to
recognize that exposure of children to
neglect or abuse in many forms is likely
to affect them adversely. Many kinds of
neglect or abuse or exposure to
unwholesome environment speak for
themselves, and the proof of the neglect
or abuse or exposure is in itself
sufficient to permit a conclusion that
its continuation would adversely affect
children.
We also think the trial court is not
precluded from consideration of
circumstances where the neglect, abuse,
or environment has not yet adversely
affected the children but which, in his
discretion, will adversely
affect them if permitted to
continue. In other words, a judge is not
required to wait until the children have
already been harmed before he can give
consideration to the conduct causing the
harm.
Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983). Accordingly,
we hold that the trial court did not err in accepting the
evidence and relying on it in the custody determination.
Id. at 416-17, 546 A.2d at 212-13. We have reiterated the right of the
family court judge to use common sense and common and life experience in
making custody determinations. See Payrits v. Payrits, ___ Vt. ___, ___,
757 A.2d 469, 472 (2000); Bissonette v. Gambrel, 152 Vt. 67, 70, 564 A.2d 600, 601 (1989).
Ironically, we applied exactly this principle to the issue of whether
the court could consider the age of the proposed custodian in making a
child custody decision. In Miles v. Farnsworth, 121 Vt. 491, 494-95, 160 A.2d 759, 761 (1960), we held that the trial court could consider the
"infirmatives of advanced years" of the custodian as a factor in
determining the custody of the child.
This is an exceptional case. We can take judicial notice that the
average life expectancy of an American male is 74 years.(FN1) Centers for
Disease Control and Prevention, United States Life Tables, 1998, National
Vital Statistics Reports, Feb. 7, 2001, at 2. Thus, in this case, there is
a substantial chance that father will be unable to provide guidance to the
child up until he reaches the age of majority of 18 years. As the
majority of courts, including this Court, have held, see Phelps v. Phelps,
446 S.E.2d 17, 22 (N.C. 1994) ("We conclude that a trial court should . . .
be allowed to
consider a parent's age and its potential effect on the welfare of the
child as a factor in its determination of what is in the best interest of
the child"); Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983)
(court may consider numerous factors including the "physical and mental
health and age of the parents"); Ex parte Devine, 398 So. 2d 686, 696
(Ala. 1981) (court should consider numerous factors including "the
characteristics of those seeking custody, including age, character,
stability, mental and physical health"), the family court should be able to
consider the age of a prospective custodian as it bears on the best
interests of the child.
If the majority is intending to compromise on the consideration of age
by requiring expert testimony, I think the compromise is unwise. Custody
litigation is already extraordinarily expensive for all but the most
wealthy parents. Adding more complexity and cost to such litigation is a
step in the wrong direction.
The second alternative - that it is always unfair and discriminatory
to consider the age of a parent in determining custody - is inconsistent
with the fundamental policy of custody adjudication as emphasized in the
majority opinion. On another issue, the majority points out that the
family court must act based on the best interests of the child, not the
interest of the parent. On this issue, however, the majority is violating
that principle, acting on the interest of the father even though it is
inconsistent with the best interest of the child. Although a few isolated
precedents support this approach, the vast majority of decisions hold that
the court can consider the age of a prospective custodian in making a
custody award where it is in the best interest of the child to do so, as I
have set out above. That is the holding of Miles v. Farnsworth. We
should reject the categorical rule the majority apparently espouses.
I reiterate my point that categorical rules that restrict family court
discretion in determining
the best interest of the child are not good policy. Whatever the reasons
espoused for them, fundamentally they involve substituting our judgment
for that of the family court. In this unusual case where consideration of
the remainder of the statutory factors produced no clear choice of
custodian, consideration of the age of a parent should be in the court's
discretion.
II. Placing the Family Court Decision in a Bad Light
The Cloutier decision has another aspect that is an indication that we
are not seriously applying the limited standard of review that binds us.
In reviewing findings of fact, we must "view them in the light most
favorable to the prevailing party." Stickney v. Stickney, 170 Vt. 547,
548, 742 A.2d 1228, 1230 (1999) (mem.). A party challenging conclusions
of law must overcome the "great deference" we give to the court's
conclusions, and we must "make all reasonable inferences in support of the
court's judgment." Bevins v. King, 147 Vt. 203, 206, 514 A.2d 1044, 1046
(1986). Put another way, this Court must "construe [findings] so as to
support the judgment, if possible." Armstrong v. Hanover Ins. Co., 130
Vt. 182, 185, 289 A.2d 669, 671 (1972).
I find no indication in the majority opinion that it gave deference to
the family court's conclusions or that it construed the findings to
support the judgment. Rather than fairly interpreting the family court
findings and rationale in support of its decision, the majority
recharacterizes the decision in a way that makes it virtually
indefensible. In doing so, it raises a new issue not considered by the
family court or argued by the parties. We now know how the majority would
have decided the case had it been the family court. We have, however,
done a disservice to the parties, the child and the trial court by
introducing our issue on appeal.
Although the family court decided the case primarily on the relative
age of the parents, it found that at least one additional factor favored
the mother as custodian, as follows:
While either could discharge the role of parent
adequately, the mother shows more promise for long term
stability and consistency of caretaking. The mother has
shown she can capably provide for the child's broad breadth
of needs. She has successfully raised a family. She has
endured and overcome one of life's most poignant tragedies
with the death of a child. She has focused her life and
emotional resources to successfully raise this child.
This emotional investment to this child is so strong
that any attempt to deny her the primary role of caretaker
would destroy her. Her emotional attachment is not
unreasonable. Her need to raise this child should be
encouraged for both her good and the child's good.
Should she lose the primary role of caretaker, this
would adversely impact on the child. There is no need of
the child's met by that drastic result. The child can have
the best of both parents as the situation permits. Perhaps,
they will become more comfortable with each other as
parents, now that fear of removal of the child from the
mother is gone.
In one page of his brief, the father attacked this additional consideration
as focusing on the mother's needs and not the best interest of the child.
I discuss that below; for now, the point is that the father made no
additional claims about the court's rationale.
The majority found this rationale to be inadequate and unsupported by
the findings, at least as to the factor contained in § 665(b)(5). The
Court describes the family court's rationale as follows: (1) mother and
father, who were not married, decided to have a child to fill a void in
mother's life created by the tragic death of one of her children; (2)
mother expected that the father would want little role in the child's
life; (3) to mother's frustration, father took a very active role with the
child and attempted to provide for both the child and the mother; (4) as a
result, mother accused father of all sorts of misconduct during the
custody case, but the family court failed to find that the misconduct had
occurred; and (5) mother made the accusations to minimize the role of
father in the child's life. Once it has described the family court's
rationale in this way, it is no surprise that the
majority concluded it did not support a finding that mother as a custodian
would better foster for the child a positive relationship and frequent
contact with the father than father as custodian would foster with the
mother. Indeed, it has recast the family court's rationale so it supports
custody in the father, not the mother. Consistent with its description of
the family court's rationale, the majority has added that the family court
should have pursued whether mother intended to alienate father from the
child through her allegations.
One can find pieces of the majority's rationale in the family court
decision, but not in the way the majority has put them together. For
example, the family court rejected mother's allegations that father abused
her and misused drugs and speculated that she might have made such
accusations to minimize his role in the child's life. It never suggested
that the mother was trying to alienate the child from the father. Indeed,
it found that the parents had successfully co-parented in the past and
tried hard to induce them to develop a new co-parenting arrangement. This
case is a far cry from Renaud v. Renaud, 168 Vt. 306, 309, 721 A.2d 463,
465 (1998), in which the family court expressly found that "mother had
undermined the child's relationship with father by filing excessive and
baseless abuse allegations." We are not faithful to the limited standard
of review if we construe the family court decision in a way to make it
least defensible.
If the family court made any mistake here to induce the majority's
response, it was a labeling mistake. The family court's rationale better
fits factor three, 15 V.S.A. § 665(b)(3), or an independent factor, than
factor five, id. § 665(b)(5). Under the proper standard of review, a
labeling mistake does not justify the majority's response of creating a
new and indefensible analysis.
We do, I believe, have to address directly the argument that father
did make on appeal - that the family court rendered its decision based on
the interests of the mother, rather than the interests
of the child. I again stress that this is an exceptional case. The
parties, who never expected to marry, planned this child to fill a void in
mother's life caused by the death of another child. Thus, in explaining
its rationale, the family court stressed the effect an adverse custody
decision would have on the mother. If the court had gone no further, I
would agree with appellant father that we could not affirm the court's
conclusion.
But the family court did go further and relate the mother's loss to
the effect on the child. Essentially, the court concluded that making
the father the primary custodian would have such an effect on the mother
that it would destroy her ability to be an effective parent, adversely
affecting the child. It concluded that the reverse custody situation
would not have this effect. Its reasoning is focused primarily on the
effect of its decision on the best interests of the child. In these
circumstances, I would affirm the family court's conclusion as consistent
with the statutory mandate of § 665(b) under our deferential standard of
review.
III. Reevaluation of the Relevant Factors
It is impossible to read the trial court and majority decisions in
Spaulding v. Butler without concluding that these decisions simply give
different weight to the various factors bearing on custody and, as a
result, reach different conclusions. This would be entirely understandable
and healthy if the decisions came from two different trial judges. It is
not appropriate if one of the decisions comes from an appellate court
purportedly issued under a limited standard of review.
In two respects, the circumstances of Spaulding, and the family court
decision, make it more likely that this Court will abandon its limited
role and decide the case de novo. First, the family court faced a choice
between two flawed parents. For either, it is easy to state why that
parent should not be a primary custodian; it is far harder to find and
weigh positive skills and conduct
which warrant confidence that a child in that parent's custody will have
positive and nurturing parenting in a safe and secure environment.
Unfortunately, there is no third option; the trial judge was forced to
make a disquieting and unpleasant choice, almost on the basis of the least
damage to the child.
Second, the trial judge, to her credit, did not sugar coat the
negative history, skills, characteristics or motives of either parent. I
say "to her credit" because the decision reinforces that the court had no
illusions that it could assure the child a good home and that the court
struggled to find the best result. But that result has become harder to
affirm because the flaws of the custodial parent, as explicitly contained
in the findings, are so difficult to accept. Indeed, on the surface, it
appears much easier to accept the majority analysis because it details the
father's flaws and largely ignores, or explains, the mother's flaws. In a
truncated fashion, the majority quotes the family court's analysis of the
mother's flaws in its decision on whether there were changed circumstances
and then largely ignores that analysis in looking at the best interest of
the child. Let me repeat, in full version, what the family court found
about the negative factors bearing on the mother as a custodian:
Specifically, during [the] time [between September 1994
and April 1997] there was a pattern of poor care of a severe
and painful diaper rash, the severity of which was
unnecessary as shown by the improvement in the rash during
the weekend visitations with Mr. Spaulding; a pattern of
Nathan appearing for visits with Mr. Spaulding with a number
of bruises and marks on his body; a lead test indicating
lead poisoning of Nathan with no information that the
problem had been taken care of; a pattern of biting behavior
between Michael and Nathan that had not improved despite the
work of Ms. Butler with Meredith McCartney in therapy;
delays in Nathan's developmental milestones as indicated by
testing through Triple E and Stepping Stones; and severe
bite marks on Nathan from Michael on April 11, 1997. . . .
[The evidence] shows a child living in an
environment with a pattern of neglect sufficient to result in
measurable developmental delays and physical injuries. The
change is substantial in that it resulted in Nathan lagging
behind in his development and suffering painful personal
injury despite remedial efforts. It is unanticipated in
that one would never expect parental care to result in such
an impact on a child.
Thus, the family court was forced to chose between a parent who exhibited
"a pattern of neglect sufficient to result in measurable developmental
delays and physical injuries" and a parent who had a history of abuse and
attempts to alienate the child from the other parent, at best an unenviable
choice.
Where the trial court decision is candid and balanced about the nature
and difficulty of this choice, I cannot say the same about the majority
decision here. It builds to its ultimate conclusion that the family court
could not find within its discretion that it was in the child's best
interest to award custody to a father who "was a batterer, a liar, and . .
. [who] consciously and deliberately alienated Nathan from mother." Ante,
at 16. The equivalent criticism of the majority is that it cannot find as
a matter of law that custody must be awarded to a mother who, when she had
custody, engaged in "a pattern of neglect sufficient to result in
measurable development delays and physical injuries." I think we
trivialize the difficulty and complexity of child custody adjudication with
this kind of analysis.
The essence of this dissent is that the kind of difficult choice
presented by Spaulding must be made by the judge who heard the evidence
and viewed the parents as they testified and otherwise participated in the
merits hearing. To the extent we have an appellate role, we should
exercise it sparingly, and not as we are doing here, to second-guess the
considered choice of the family court judge and substitute our own
judgment. Because that is the fundamental point of the dissent and
captures what I believe is wrong in the majority decision in Spaulding, I
will not belabor my specific disagreements with that decision beyond three
additional points.
I do not understand the remand in this case, other than for the
evaluation of changed circumstances. The Court has said that the family
court could not reach the decision it did based on its findings and that
the findings are supported by the evidence. Under that analysis, the
family court has no choice but to award custody to the mother. To the
extent the majority is trying to suggest that it did anything other than
substituting its judgment for the trial judge, that suggestion is illusory.
Indeed, the worst outcome we could have for the child is further extensive
litigation to reopen the findings and conclusions of the family court.
A good deal of the majority's analysis is based on its conclusion that
any risk that the child would be unsafe if placed with the mother "is
speculative at best." Ante, at 16. I can describe that conclusion only
as incredible. The family court detailed the past harm to the child while
in mother's custody and concluded that there had been "a pattern of
neglect sufficient to result in . . . physical injuries." How is it
speculative that the identical pattern will reoccur when custody is again
transferred to the mother?
Third, we need to be careful in how we define parental alienation and
in administering a rule that a parent cannot benefit from alienating a
child from the other parent. No parent who believes that the other parent
is the cause of physical, sexual or extreme emotional abuse of the child is
promoting contact between the child and that parent. The family court
justifiably criticized the father for being too quick to go to the police,
SRS or the courts, but some of father's allegations of abuse were
confirmed in earlier court proceedings and formed the basis of the abuse
prevention order transferring custody to father and limiting mother to
supervised visitation. Unless the majority is
prepared to say that father somehow defrauded the family court, a
conclusion with no support in the findings, it is inappropriate to call a
court-ordered custody situation a "successful attempt[] at alienation."
Ante, at 14-15.
In conclusion, I believe that in both Spaulding and Cloutier the
majority has embarked on the pursuit of a more just and correct custody
determination that will injure the exact children it is attempting to
protect. If we actually accorded the family court "broad discretion in
determining the best interests of the child," as both decisions state we
do, the only consistent conclusion would be to affirm the custody
decisions in both cases. Reluctantly, I must dissent from the reversals in
both cases.
I am authorized to state that Justice Morse joins in this dissent.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Having reached 59 years of age, father's remaining life
expectancy is approximately twenty more years. Centers for Disease
Control and Prevention, United States Life Tables, 1998, National Vital
Statistics Reports, Feb. 7, 2001, at 2.
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