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Spaulding v. Butler8/31/2001
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 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 . . . consciously and deliberately alienated Nathan from mother." Ante, at 16. The equivalent criticism of the majority is that it canno
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