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Spaulding v. Butler8/31/2001
d inadequate attention. The court coupled its finding regarding Nathan's developmental delay with its finding that Nathan suffered from repeated physical injuries, a situation brought about by what the court characterized as "a chronic low level of unintentional neglect" on mother's part. Therefore, the court's finding of a real, substantial and unanticipated change in circumstances finds support in the record.
However, we hold that the court erred in its evaluation of and conclusions regarding Nathan's best interests. In determining that awarding custody of Nathan to father was in Nathan's best interests, the court concluded that factors one through four, and factor six, favored father, factors five and eight favored mother, factor seven favored neither parent, but did not decide which parent factor nine favored. According to the court, factors one and three were the primary reasons for its decision that awarding custody of Nathan to father was in Nathan's best interests. With regard to factor one, "the relationship of the child with each parent and the ability and disposition of each parent to provide the child with love, affection and guidance," 15 V.S.A. ยง 665(b)(1), the court stated:
At this point, Nathan has an estranged relationship with his mother. Prior to April of 1997 and the change in custody brought about by court orders, it was a full parent/child interaction, although Nathan's needs were not able to be met fully due to his mother's attention being diverted by Michael's challenging behavior. The events since then have so strained the relationship that it will require time for it to be rebuilt. His mother has strong love and affection for him. . . . Her ability to provide it is limited by the huge demands made on her time and attention by Michael, and by her weakness in the face of powerful forces.
The court determined that father had "a full parent/child relationship with Nathan," and had demonstrated his love and affection and an ability and willingness to provide guidance. However, it stated:
His ability and disposition to provide guidance is negatively affected by his EXCESSIVE USE OF POLICE, SRS AND EMERGENCY LEGAL PROCEDURES TO INTERFERE WITH NATHAN HAVING A CONSTRUCTIVE RELATIONSHIP WITH HIS MOTHER. He is willing to lie in order to achieve his objective to become Nathan's primary parent. Nonetheless, as a whole, this factor favors Mr. Spaulding. (emphasis added).
The court's conclusion that factor one favors father is undermined by its findings that father was engaged in a long-term, persistent campaign to cut off any relationship between Nathan and mother. It had ordered father to pay the costs of supervised visitation because it found father primarily responsible for the serious disruptions in the relationship between mother and Nathan. Furthermore, the fact that father currently has a full parent/child relationship with Nathan while mother has an estranged relationship is due, in large part, to father's attempts at alienation.
As we stated in Renaud v. Renaud, 168 Vt. 306, 309, 721 A.2d 463, 465-66 (1998), " cross the country, the great weight of authority holds that conduct by one parent that tends to alienate the child's affections from the other is so inimical to the child's welfare as to be grounds for a denial of custody to, or a change of custody from, the parent guilty of such conduct." Here, the court repeatedly found that father had actively worked to alienate Nathan from his mother. To conclude, then, that father's success in that regard gives him the advantage in factor one is untenable. See Begins v. Begins, 168 Vt. 298, 302, 721 A.2d 469, 472 (1998) ("' parent who willfully alienates a child from the other
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