 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Spaulding v. Butler8/31/2001
t 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.
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.
|
|