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| This is a red factor canary. It's just a cool bird. |
By Elizabeth Kruska
This case is a pretty good example of how hard custody cases can be when figuring out what is really best for kids. There are lots of different pieces a court needs to take into consideration when it needs to figure out what is really in the best interest of the child.
Mom and Dad were married. They had a child, D, in 2007. In 2011, Mom and Dad divorced. Mom got sole physical custody subject to visitation with Dad. Dad lived in Vermont, and Mom moved to North Carolina. The plan was that Dad would have contact with D by Skype and would also get several weeks of in-person visits per year.
This didn’t work. Mom withheld and prevented visits between Dad and D, and also prevented Dad from having Skype sessions with D. Dad filed a number of motions to enforce and motions for contempt. Mom didn’t appear for any of the hearings that were held over the course of a couple years. Finally the court found Mom in contempt, finding that she had willfully violated the visitation order. The court ordered that it was no longer in D’s best interest to live with Mom, and issued an order requiring that D be returned to Dad.
Guess what didn’t happen.
So, the court issued an arrest warrant for Mom and asked North Carolina to give full faith and credit to the Vermont order and to turn over D to his Dad. Finally, Mom turned over D to his Dad. While D was at Dad’s in Vermont, he started school and did well. Dad tried to get regular communication set up between Mom and D, but Mom ignored Dad’s attempts to set this up.
They came before the court and had a hearing. The court took evidence, and in doing so, learned that D’s maternal grandfather (let’s just call him “Grandfather” from here on out) played a really significant role in D’s life in North Carolina. Grandfather helped to provide D with his standard of living. Grandfather made sure D had access to activities. D also spent lots of nights at the grandparents’ home. The court viewed all this as very positive for D. Grandfather apparently didn’t know that Mom had essentially cut off Dad’s contact with D and instead thought that Dad was ignoring D.
The court, upon taking in all the evidence, ultimately decided D should be back with Mom. The real deciding factor was Grandfather. The court concluded that although Mom willfully and repeatedly blocked Dad’s access to D, that Mom along with the helpful, guiding presence of Grandfather, was the right choice. The court found that D has a good relationship with Dad, and had done well with Dad while they lived together. However, if D stayed with Dad, he would lose out on the close relationship with Grandfather.
So, the court ordered D be back with Mom.
Dad appeals, and SCOV reverses.
And this is why this is hard. Courts are supposed to take into consideration lots of different factors in determining the best interest of the child. One factor the court certainly can consider is the child’s relationship with people other than the parents. Here, it's certainly appropriate for the court to take D’s relationship with Grandfather into account. Grandfather is very helpful with D and very close with him, and nobody disagrees that this is a good relationship.
But, the third person—here, Grandfather— isn’t meant to supplant the parent. Parents have constitutional rights to raise and rear their children. The evidence in this case was that Dad and D have a good relationship and that things were going well with D when he was with Dad. Furthermore, Mom’s continued alienation and willful blocking of contact was not in D’s best interest. These factors tend to point toward D being best off with Dad.
Courts are supposed to compare the merits of a child being placed with each individual parent. Even though the court can consider relationships with others, that factor is not meant to outweigh the capacity of the parent to engage in parenting. Indeed, the court found that Mom alone would not do as well in parenting D as Dad, but that Mom and Grandfather together were a strong combination for D. The court also said that if anything happened to Grandfather that the factors in Mom’s favor would “quickly evaporate.”
SCOV found that the trial court’s findings didn’t exactly square with the conclusion that it was in D’s best interest to be with Mom, especially given Mom’s refusal to allow contact with Dad. The court wasn’t convinced that things would change going forward if D was with Mom. SCOV reverses and remands, and recommends the trial court take additional evidence to update its information about what’s in D’s best interest.
There’s a dissent from Justice Robinson. It starts with a reference to the standard of review. SCOV generally gives a lot of deference to factual findings, and notes that if the ruling is supported by credible evidence that SCOV will not disturb the judgment. Even if SCOV would have decided differently based on the evidence, they don’t get to do that if the conclusion is supported.
The dissent points out that trial courts have a lot of latitude in making their best-interests determinations. And there’s a reminder that in custody decisions, the question always is what’s best for the child, not what’s equitable between the parents. A custody decision shouldn’t look or feel like a punishment or a reward to one parent or the other.
That having been said, the dissent has two areas of disagreement. First is with respect to the idea that the trial court gave too much weight to the child’s relationship with Grandfather. Second, the trial court didn’t give enough weight to Mom’s ability to foster a positive relationship between D and Dad.
With respect to Grandfather, the dissent points out—quite rightly—that the Legislature thought enough of children’s relationships with third parties that it included that as a factor a court can consider in a contested custody hearing. Indeed, there have been cases in the past where this was a huge factor and tipped the decision in favor of the child in question staying where that third-party relationship could continue. Nobody here disagrees that D benefited greatly from his relationship with Grandfather. Why should this factor be discounted, if the child’s best interest is served by having this contact with Grandfather? The dissent takes some issue with a case cited by the majority as being inapplicable because it was decided before the current statutory scheme was enacted, and also because the facts were fairly different. The dissent also mentions that if something were to happen to Grandfather that it potentially could be a change in circumstances, which could trigger a motion to modify the custody arrangement in the future.
The dissent then turns to the factor regarding Mom’s inability to foster a positive relationship between D and Dad. Even though Mom had blocked that contact in the past, things had the potential to be different now. That’s because Grandfather and Mom’s new partner did not previously know that Dad was trying to have contact with D—they both thought Dad was being irresponsible and ignoring the child. But now they know, and the court made it very clear that if Mom’s behavior continued in this way that the court would change custody. The dissent points out that the majority opinion didn’t give the trial court’s findings due deference. Even though the majority might’ve found differently based on the substance of the evidence, that’s not SCOV’s job. So, the dissent would affirm.
Also, I’d be remiss in failing to point out this opinions has two things I really like: big footnotes and the UCCJEA. And in footnote 2 they’re rolled in to one! Go read the footnote. You’ll be glad you did.
And this is why this is hard. Courts are supposed to take into consideration lots of different factors in determining the best interest of the child. One factor the court certainly can consider is the child’s relationship with people other than the parents. Here, it's certainly appropriate for the court to take D’s relationship with Grandfather into account. Grandfather is very helpful with D and very close with him, and nobody disagrees that this is a good relationship.
But, the third person—here, Grandfather— isn’t meant to supplant the parent. Parents have constitutional rights to raise and rear their children. The evidence in this case was that Dad and D have a good relationship and that things were going well with D when he was with Dad. Furthermore, Mom’s continued alienation and willful blocking of contact was not in D’s best interest. These factors tend to point toward D being best off with Dad.
Courts are supposed to compare the merits of a child being placed with each individual parent. Even though the court can consider relationships with others, that factor is not meant to outweigh the capacity of the parent to engage in parenting. Indeed, the court found that Mom alone would not do as well in parenting D as Dad, but that Mom and Grandfather together were a strong combination for D. The court also said that if anything happened to Grandfather that the factors in Mom’s favor would “quickly evaporate.”
SCOV found that the trial court’s findings didn’t exactly square with the conclusion that it was in D’s best interest to be with Mom, especially given Mom’s refusal to allow contact with Dad. The court wasn’t convinced that things would change going forward if D was with Mom. SCOV reverses and remands, and recommends the trial court take additional evidence to update its information about what’s in D’s best interest.
There’s a dissent from Justice Robinson. It starts with a reference to the standard of review. SCOV generally gives a lot of deference to factual findings, and notes that if the ruling is supported by credible evidence that SCOV will not disturb the judgment. Even if SCOV would have decided differently based on the evidence, they don’t get to do that if the conclusion is supported.
The dissent points out that trial courts have a lot of latitude in making their best-interests determinations. And there’s a reminder that in custody decisions, the question always is what’s best for the child, not what’s equitable between the parents. A custody decision shouldn’t look or feel like a punishment or a reward to one parent or the other.
That having been said, the dissent has two areas of disagreement. First is with respect to the idea that the trial court gave too much weight to the child’s relationship with Grandfather. Second, the trial court didn’t give enough weight to Mom’s ability to foster a positive relationship between D and Dad.
With respect to Grandfather, the dissent points out—quite rightly—that the Legislature thought enough of children’s relationships with third parties that it included that as a factor a court can consider in a contested custody hearing. Indeed, there have been cases in the past where this was a huge factor and tipped the decision in favor of the child in question staying where that third-party relationship could continue. Nobody here disagrees that D benefited greatly from his relationship with Grandfather. Why should this factor be discounted, if the child’s best interest is served by having this contact with Grandfather? The dissent takes some issue with a case cited by the majority as being inapplicable because it was decided before the current statutory scheme was enacted, and also because the facts were fairly different. The dissent also mentions that if something were to happen to Grandfather that it potentially could be a change in circumstances, which could trigger a motion to modify the custody arrangement in the future.
The dissent then turns to the factor regarding Mom’s inability to foster a positive relationship between D and Dad. Even though Mom had blocked that contact in the past, things had the potential to be different now. That’s because Grandfather and Mom’s new partner did not previously know that Dad was trying to have contact with D—they both thought Dad was being irresponsible and ignoring the child. But now they know, and the court made it very clear that if Mom’s behavior continued in this way that the court would change custody. The dissent points out that the majority opinion didn’t give the trial court’s findings due deference. Even though the majority might’ve found differently based on the substance of the evidence, that’s not SCOV’s job. So, the dissent would affirm.
Also, I’d be remiss in failing to point out this opinions has two things I really like: big footnotes and the UCCJEA. And in footnote 2 they’re rolled in to one! Go read the footnote. You’ll be glad you did.
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