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Spaulding v. Butler8/31/2001
se 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. 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 a
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