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Spaulding v. Butler8/31/2001
error.
With regard to factor four, "the quality of the child's adjustment to the child's present housing, school and community and the potential effect of any change," 15 V.S.A. § 665(b)(4), the court stated:
Nathan has been living with Mr. Spaulding and as a member of the Spaulding household for nearly two years. It would be a substantial change for him to leave that household at this point. If he were to move back with his mother, he would be returning to the apartment that he lived in before. Since he has not yet started school, schooling is not an issue. This factor favors Mr. Spaulding.
As with factor one, the court's conclusion with regard to factor four is tainted because the fact that Nathan has been living with father for two years is due, in large part, to father's successful attempts at alienation, including his "excessive use of police, SRS and emergency legal procedures to interfere with Nathan having a constructive relationship with his mother." See Begins, 168 Vt. at 302, 721 A.2d at 472; Renaud, 168 Vt. at 309, 721 A.2d at 466.
With regard to factor six, "the quality of the child's relationship with the primary care provider, if appropriate given the child's age and development," 15 V.S.A. § 665(b)(6), the court stated:
At this point, Nathan's relationship with his mother, who was previously his primary care giver, is almost nonexistent and negative. It would not make sense for him to return to her as his primary parent at this time. He has been led to be fearful and distrustful of her. Mr. Spaulding has provided the primary parental care for quite some time pursuant to court orders entered after court hearings. This factor favors Mr. Spaulding.
Again, the court's conclusion in this regard is undermined by its findings that father intentionally alienated Nathan from mother, thereby eroding mother's relationship with Nathan and enabling father to become Nathan's primary caretaker. See Begins, 168 Vt. at 302, 721 A.2d at 472; Renaud, 168 Vt. at 309, 721 A.2d at 466.
Finally, the court did not decide which parent factor nine favored. Under factor nine, the court is to "consider evidence of abuse, as defined in section 1101 of this title, and the impact of the abuse on the child and on the relationship between the child and the abusing parent." 15 V.S.A. § 665(b)(9). According to the court:
There is evidence of a chronic low level of unintentional neglect on the part of Ms. Butler during the period Nathan was primarily in her care, as well as a risk that if he lives with her he would be exposed to abusive conduct from others with whom she has relationships. With Mr. Spaulding, there is a risk of exposure to domestic violence as that has been his pattern with all three of the women in his life and the August incident indicates that this continues to be a realistic risk.
The court further noted:
"There are risks to Nathan associated with living with his father, specifically there is a risk that Nathan will be exposed to domestic abuse. Unfortunately, SUCH A RISK IS PRESENT IN BOTH HOUSEHOLDS, AND THE RISK IS APPROXIMATELY EQUAL IN BOTH HOUSEHOLDS." (emphasis added).
As we stated above, the court's conclusion that there is a risk that, if Nathan lives with mother, he would be exposed to abuse from future boyfriends, is speculative at best, while the court's conclusion that there is a "realistic risk" that father is likely to continue to be violent, is supported by its findings. Therefore, the court's conclusion that the risk of domestic abuse is approximately equal in both households is erroneous. Given the court's findings, the risk of domestic abuse is clear
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