Spaulding v. Butler8/31/2001
evidence, and the court's conclusions will stand if the factual findings support them." In re T.L., 169 Vt. 550, 551, 726 A.2d 496, 497 (1999) (mem.). We will, however, reverse if the court's findings are not supported by the evidence, Johnson v. Johnson, 163 Vt. 491, 496, 659 A.2d 1149, 1152 (1995), or if its conclusions are not supported by the findings, Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998).
When faced with a motion to modify a parental rights and responsibilities order, the court must make a threshold finding that there has been a real, substantial and unanticipated change of circumstances. See Pill v. Pill, 154 Vt. 455, 458-59, 578 A.2d 642, 644 (1990); 15 V.S.A. § 668. Once the court has found the requisite change of circumstances, it must determine what arrangement is in the child's best interests. See Gates v. Gates, 168 Vt. 64, 69, 716 A.2d 794, 798 (1998); 15 V.S.A. § 668. The burden of proving that a change in custody is in the child's best interests is on the moving party. See Lane v. Schenck, 158 Vt. 489, 497, 614 A.2d 786, 790 (1992). Trial courts have broad discretion in determining the best interests of the child. See Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988).
Mother argues that the court erred both in finding that there had been a real, substantial and unanticipated change in circumstances, and in concluding that awarding custody of Nathan to father was in Nathan's best interests. We conclude that the court correctly found a real, substantial and unanticipated change in circumstances, but that its conclusion that awarding custody of Nathan to father was in Nathan's best interests was in error.
In determining that a real, substantial and unanticipated change in circumstances had occurred, the court defined the relevant time period as between September 1994, the date of the modified final parentage order, and April 1997, the date father filed the motion to modify parental rights and responsibilities. During this time period, the court noted that there had been 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.
Based on these facts, the court found a real, substantial and unanticipated change in circumstances.
"The moving party has a heavy burden to prove changed circumstances, and the court must consider the evidence carefully before making the threshold finding that a real, substantial and unanticipated change of circumstances exists." Pill, 154 Vt. at 459, 578 A.2d at 644. Evidence that a child has begun to show signs of developmental delay while in a parent's custody, coupled with evidence that the parent was not properly addressing the issue or was contributing to it by neglect, for example, would support a finding of a real, substantial, and unanticipated change of circumstances. In this case, the court found that testing of Nathan showed that he had begun to be developmentally delayed. The court further noted that Michael's needs placed great demand on mother's time and attention, and that, as a consequence, Nathan receive
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