 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Spaulding v. Butler8/31/2001
ve 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 sen
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Vermont Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|