Saturday, February 25, 2017

Mother Knows Best?

Clark v. Bellavance, 2016 VT 124

By Eric Fanning

There are times when our family courts have the good fortune to dispose of cases that involve neither long arduous battles over parental rights and responsibilities (or PR&R, a.k.a. custody) nor a bitter deterioration of the parents’ relationship. There are cases that grace their dockets where the parents get along famously and have no trouble coming to a mutually agreeable parenting arrangement with court approval.

This is not one of those cases.

The parties are the parents of a daughter, who was born in 2009. They were never married, and in fact they had broken up by the time daughter was born. Even though their relationship had come to an end, they were able to arrange a parenting agreement in 2011, giving mom sole physical and legal rights and responsibilities, and dad getting parent-child contact. Both parents were committed to fostering a “healthy, respectful, and supportive” co-parenting relationship, and for a while everything went well. That is, until things started going not-so-well.

Fast forward to January 26, 2015, when mom calls the Department of Children and Families (DCF) to report that daughter, who was 6 at the time, had told her that father had sexually abused her. She took her to the emergency room, and eventually the UVM Medical Center for a pediatric sexual assault (SANE) evaluation. The exam did not reveal any signs of trauma or abuse, and the daughter did not disclose any abuse during these exams. DCF did not substantiate the abuse allegation and took no further action after conducting their investigation.

Even though the allegations could not be substantiated, mother continued to believe that father was a pedophile who was sexually assaulting their daughter, and she continued to act on this belief. She had daughter undergo more tests and evaluations and basically told dad she doesn’t want him with their daughter. You can imagine how that must have gone over with dad. So mother decided to take matters into her own hands and started withholding father’s parent-child contact, essentially ignoring the original court order that was still in place. (Quick word of advice for any parents out there who are thinking of disregarding a parent-child contact order: don’t). Dad was given sole PR&R after an emergency relief hearing. After evidentiary hearings in October of 2015, dad permanently acquired sole physical and legal parental rights.

Before I go any further, it would be helpful to briefly explain why courts tend to modify parenting orders and, more importantly, why they don’t like to do this willy-nilly. Modification of pre-existing PR&R orders is controlled by this statute, which says that such orders will not be changed unless there’s a “real, substantial and unanticipated change of circumstances” AND changing the order is in the best interest of the child. The moving parent bears the burden of making this threshold showing. This can be a difficult burden to meet, and for good reason, because courts don’t really like to throw kids’ lives into upheaval by changing their parenting schedules at the drop of a hat. This confuses children, and threatens their emotional, intellectual and social development (full disclosure: I’m not a psychologist myself, but I have seen one on TV).

So, now mother challenges the family division’s order and raises two basic arguments: (1) the family division made erroneous findings of fact in making its change-of-circumstances determination, and (2) the court didn’t properly consider the best interests of the child because they were essentially biased against her.

What change of circumstances did the family division find to warrant the modification of the order? Well for starters, as I already mentioned, mom violated the pre-existing PR&R order, which is a big no-no. SCOV says this fact alone “weighed in favor of a finding of changed circumstances.” This is true almost by default I think, because when parents agree to a PR&R order, it is expected that they will follow the order, and if they don’t, then something ain’t right.

Second, the court found that mom’s continued insistence that father abused daughter “in light of significant credible evidence to the contrary” contributed to a “total breakdown in the parenting plan.” Lastly, mom’s “persistent belief that daughter had been abused caused mother to treat daughter as a victim and to subject daughter to ‘multiple invasive medical examinations and investigative interviews focused on whether Father abused daughter’” and “mother’s allegations and persistent beliefs undermined her ability to effectively co-parent with father and posed a real threat of harming daughter in a way that the parties had not envisioned when they entered into the parenting agreement in April 2011.”

Many would say that mom’s actions were reasonable for a parent who believed their child was being abused. After, all, they couldn’t prove that dad didn’t molest daughter, so one could see why mom would be worried. The SCOV sympathizes with mom—up to a certain point. They explain via footnote that this decision in no way is meant to scare parents away from reporting abuse for fear of being punished by the court. Any responsible parent would indeed report suspected abuse and seek relief from the court. However, when you start defying court orders and making life a living hell for co-parent and, paradoxically enough, daughter, that’s when things can go south.

Mother wants SCOV to reverse because the family division was wrong to find that, as of October 2015, months into this whole ordeal, she continued to believe that father molested daughter, which gave rise to the material change of circumstances. She identified several specific findings of fact (which aren’t important here) that she believed were made in error or not supported by evidence, and that these findings of fact were essential to the conclusion that there was a real change of circumstance. SCOV wants no part of this because it’s not their job to make findings of fact, and they’re not about to second guess the findings of the trial court, absent a clear abuse of discretion. To make things worse for mom, SCOV says that even if they were to reexamine the facts, the only evidence that was introduced to back her up was her testimony and the testimony of her expert witness, and neither was found to be credible.

SCOV then looks at mom’s second basis for reversal: that the family division was biased against her and failed to properly consider the best interests of the child. The SCOV puts the kibosh on the bias argument right away because mom didn’t offer any evidence of prejudice whatsoever. The more substantive argument made by mom is that the court placed too much weight on the consideration of daughter’s relationship with the primary caretaker, which is one of nine statutory “best interest of the child” factors found here. Mom’s beef is that the court was too quick to jump to the conclusion that father is the primary care provider just because he had physical custody at the time of the modification hearing.

SCOV again finds itself asked to trample over the evidentiary considerations of the family division, and again finds itself saying, “Thanks, but no thanks.” SCOV says that the family division had enough evidence in front of it to decide that the “changed circumstances….resulted in father obtaining primary custody” and that “since Father gained primary custody of [daughter], he has met her needs and has a close and loving relationship with her. They are strongly bonded and Father continues to provide a safe and nurturing home that allows [daughter] to thrive.”

SCOV reiterates that so long as the “’court’s award of custody reflects its reasoned judgment in light of the record evidence, its decision may not be disturbed.’” Mom can’t demonstrate clear error or abuse of discretion, therefore, the family division's order stands, and dad keeps custody.


  1. No winners here....there never are...only broken families. Who can fault the mom in this instance, as she (as will any mother do) will do anything to protect her daughter from what she believes in an abusive father... Court decision notwithstanding, it appears that the mother's disobeying SCOV custody order, results in the child's punishment of being sent to live with a father that may be sexually abusing her.... Its sad all around....

  2. You failed to mention that child told Dr. Karen Patno, a sexual abuse specialist, that father had molested her. The court found Dr. Patno's testimony not credible as well as the child's claims to her mother. Also of interest, the child was placed with the father; however it appears he had no contact with her during the first 21 months of life - a critical bonding time.