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Spaulding v. Butler8/31/2001
ly greater in father's household. Therefore, the court should have weighed this factor in mother's favor.
The court concluded that awarding custody to father was in Nathan's best interests, despite having specifically found that father was a batterer, a liar, and that he had consciously and deliberately alienated Nathan from mother. As Dr. Aines, the family evaluator, stated in his recommendations, which were submitted to the court:
The Spaulding's in their anger and zeal to protect Nathan for abuse and neglect have alienated him from his mother, and in doing so have contributed significantly to his emotional difficulties. If he does not buy into the idea that his mother is bad, he faces the fear of losing his father and step mother's love. This causes unbearable stress for Nathan, relieved only be ingratiating himself to them. There is the additional difficulty that Mr. Spaulding has in managing the conflict between his dependent needs for attention, care and emotional support and his difficulty being assertive toward women. Physical aggression toward his partners has occurred in his last three sustained relationships. The latest incident of aggression occurred in the presence of Nathan and his stepbrother, Morgan, and this is not in their best interests.
In summary, the court's conclusion that factors one, two, four, and six favor awarding custody to father is not supported by the findings, and the court's failure to conclude that factor nine favors mother, is erroneous. "An award so flagrantly at odds with the findings simply cannot be allowed to stand." Begins, 168 Vt. at 303, 721 A.2d at 473. Accordingly, we conclude that the award of parental rights and responsibilities must be reversed, and the case remanded for reconsideration of that issue. The family court's reconsideration should be made in light of the views expressed herein, and should account for any change in circumstances that may have occurred while this appeal was pending. In order to maintain stability for Nathan, however, custody of Nathan shall remain with father, and all orders affecting visitation shall remain in place, pending further order of the family court.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
DOOLEY, J., dissenting.
I believe that any fair observer of our child custody opinions, both majority and dissent, would conclude that there is a significant gap between the standard of review we say we employ, and our actions in resolving the cases before us. I fear that gap is growing, and we are moving much closer to de novo review than we are willing to admit. The two cases in which this dissent is filed are, in my judgment, examples of this trend. Although the cases are different, and the issues are different, they share one common element - that is, the family court decisions would be affirmed if we actually employed the standard of review set out in the beginning of the majority opinions and in our precedents. Thus, I am filing this common dissent to say that I believe the direction in which we are going in appellate review of custody decisions is wrong.
I acknowledge that the pressures that exist to abandon or "fudge" deferential standards of review in custody decisions are real. Custody decisions are critically important to the child or children who will grow up, good or bad, in the new custodial situation. The interests of children in their family and home environment may be the most important interests we seek to protect in our judicial system. Unlike in many areas of the law, most of us have life experiences we draw on in facing custody questions. We are, accordingly, more likel
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