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Spaulding v. Butler8/31/2001
y 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-exclusi
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