Nickerson v. Nickerson

Annotate this Case
 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 90-225


 Christopher J. Nickerson                     Supreme Court

                                              On Appeal from
      v.                                      Orange Superior Court

 Amy A. Nickerson                             October Term, 1991



 Linda Levitt, J.

 William J. Donahue, White River Junction, for plaintiff-appellee

 Susan L. Aranoff of Aranoff & Upson, Waterbury, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      MORSE, J.   Defendant wife appeals a divorce judgment awarding to
 plaintiff husband custody of their daughter.  The court awarded custody of
 the couple's son to wife.  She also appeals that part of the judgment
 relating to visitation between husband and their son. We reverse and remand
 because the trial court did not adequately explain application of the
 primary-care-provider criterion to the facts.
      The parties were married in March 1979.  During the course of the
 marriage wife became lonely, in part because husband worked long hours, and
 she began a relationship with a woman in 1988.  Husband filed for divorce in
 April 1989, after a temporary separation.  Following various unsuccessful
 attempts at reconciliation in 1988 and 1989, the couple separated
 permanently in October 1989, when wife moved to a nearby town to live with
 her lover.  The couple's son, Morgan, was five months old when wife left
 for the last time, and has resided with wife since her final departure.
 Wife left the couple's seven-year-old daughter, Ashley, with husband.
 Before the final separation, wife had agreed in writing that husband would
 have custody of Ashley and she would have custody of Morgan, whom she was
 then carrying.  She testified that she entered into this agreement only
 because she was "uninformed about parental rights [and] felt threatened by
 [husband]."
      At trial, both husband and wife testified that husband worked from 50-
 70 hours per week in the summers and at least 40 hours per week in the
 winters at his job as director of marketing at a local inn.  As of the date
 of trial, husband had Sundays and Mondays off.  Husband retained the same
 schedule during the six months between separation and trial.  Husband
 brought Ashley to work with him when she was not at school.  She stayed in a
 vacant room, where she sometimes played with another child, and was
 supervised through a glass door by husband or other workers.  She often ate
 meals at the inn restaurant.  When Ashley was not at the inn with her
 father while he worked, she was in the care of a baby-sitter or in school.
      As of the date of trial, wife was employed as a teacher, working from
 8:00 a.m. to 12:30 p.m. during the school year.  Both parties agreed that
 while the couple lived together, wife had primary responsibility for the
 shopping, laundering and meal preparation.  Wife bathed, dressed and fed
 Ashley in the mornings, planned or prepared her noon meal at school, and
 prepared and ate the evening meal with her.  She read to the child daily,
 although husband also did this "once in a while."  She took Ashley on
 educational excursions to museums and taught her about classical music,
 activities in which husband did not participate.  Wife largely took respon-
 sibility for Ashley's health needs and brought her to the dentist and
 doctor for regular examinations.
      The court found that although wife had been Ashley's primary-care-
 provider before the separation, husband had been Ashley's primary-care-
 provider after that time.   The court concluded it was in Ashley's best
 interest to remain in husband's custody.  Morgan, however, had not left his
 mother's primary care since he was born in May 1989, and the court concluded
 wife should have custody of him.  Split custody, according to the court, was
 satisfactory because of the age difference between Ashley and Morgan and
 because they had not developed a relationship with one another.
      Visitation was liberal.  Wife was awarded parent-child contact with
 Ashley, with visitation from Friday through Sunday night every other weekend
 and Saturday on the intervening weekend.  Visitation also included alternate
 holidays, the first two weeks of July and the first two weeks of August.
 Husband was awarded parent-child contact with Morgan on alternate Sundays
 and every Monday, as well as alternate holidays, until Morgan reached age
 two, after which visitation would include overnight stays and an additional
 four-week period in the summer.  The court made additional accommodation for
 holiday contact between the two children once Morgan reached school age.
      Wife claims that the trial court erred in granting husband sole legal
 and physical rights and responsibilities for Ashley based on its finding
 that he was the primary care provider.  In addition, she argues that the
 court's conclusions of law on this issue and the potential effect on Ashley
 of a change of custodian are not supported by the findings.
      Analyzing the evidence on the primary-care-provider factor that wife's
 counsel established through the testimony of various witnesses, the court
 found that "when the parties resided together, [wife] was the primary
 caretaker of Ashley.  She took care of Ashley's daily needs and was an
 attentive, loving mother towards her."  The court also found, however, that
 since Ashley was left in husband's care when wife left six months earlier,
 husband had become the child's primary-care-provider and wife no longer
 retained that status.
           [Husband] has provided for [Ashley's] physical and
           emotional needs and has become very involved in her
           daily activities and schooling.  He insures she is fed,
           clothed, and has appropriate adult supervision.
           [Husband] has good parenting skills and a good sense of
           Ashley's needs.  [Husband] loves his daughter very much.

      Based on these findings, and on the conclusion that a change would be
 disruptive to the child's life, the court granted split custody, thereby
 maintaining the "status quo."  In so doing, the court stated that "great
 weight should be given to the child's relationship with his or her primary
 caretaker."  This was a reference to 15 V.S.A. { 665(b)(6), the statutory
 factor that requires the court, in making a custody order, to consider,
 along with seven other factors, "the quality of the child's relationship
 with the primary care provider, if appropriate given the child's age and
 development" (criterion six).
                                     I.
      We recognize that the trial court has broad discretion in custody
 matters.  Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988)
 ("trial court has broad discretion in a custody matter, and we must affirm
 unless the discretion is 'erroneously exercised, or was exercised upon
 unfounded considerations or to an extent clearly unreasonable in light of
 the evidence'") (quoting Jensen v. Jensen, 141 Vt. 580, 581-82, 450 A.2d 1155, 1156 (1982)).  Findings of fact, from which conclusions of law flow,
 will not be set aside unless clearly erroneous.  V.R.C.P. 52(a).  When the
 relevant legal criteria, among them the eight factors set out in 15 V.S.A. {
 665(b), are applied to the facts, it is important for the appellate court to
 know how the trial court weighed the facts and blended the standards to
 arrive at the conclusion.  In other words, we need to review the explanation
 as well as the found facts to determine if the application of the criteria
 to the facts is sound.  If the explanation is equivocal, indicating that a
 misapplication of the law may have occurred, the trial court decision is
 insufficient.  See Klein v. Klein, 153 Vt. 551, 558, 572 A.2d 900, 904
 (1990) (findings must address reasoning and weight given various factors to
 support conclusions reached).  We conclude in this case that the court did
 not adequately explain its application of criteria six.
      We agree with the trial court that the factor relating to the primary-
 care-provider under criteria six "should be entitled to great weight unless
 the primary custodian is unfit."  Harris v. Harris, 149 Vt. 410, 418, 546 A.2d 208, 214 (1988).  This does not create a presumption in favor of the
 primary-care-provider, but instead allows the court to give due consider-
 ation to the primary custodian in evaluating the child's best interests.
 See id. at 418-19, 546 A.2d  at 214 (presumption that the primary custodian
 will be awarded custody if fit would be inconsistent with the statutory
 scheme because the court must consider each factor).  A person is entitled
 to this consideration, however, only if the primary-care-provider has been
 correctly identified.
     The factor relating to the primary-care-provider is one consideration
 in a nonexhaustive list outlining the appropriate considerations in deter-
 mining the best interests of the child.  See 15 V.S.A. { 665(b) ("the court
 shall be guided by the best interests of the child, and shall consider at
 least [eight] factors . . .").  We have not enunciated a definitive standard
 for determining the identity of the primary-care-provider under { 665(b)(6).
 Nevertheless, mere physical custody by one of two fit parents, during the
 time the estranged spouses live "apart" to satisfy the no-fault divorce
 requirements, should not in itself cause a former primary-care-provider to
 lose that status.  See 15 V.S.A. { 551(7) (a divorce may be decreed "[w]hen
 a married person has lived apart from his or her spouse for six consecutive
 months and the court finds that the resumption of marital relations is not
 reasonably probable"); cf. Emmons v. Emmons, 141 Vt. 508, 511, 450 A.2d 1113, 1115 (1982) ("Merely leaving the homestead in and of itself is not
 sufficient to justify a finding of fault [relevant to distribution of
 marital property].  Such a result would substantially circumvent the no-
 fault divorce provision authorized by our statute.").
      A contrary holding may cause a primary-care-provider wishing to leave
 the home to uproot children from the marital residence solely to remain in
 the view of the court, the primary-care-provider.  See 15 V.S.A. { 551(7).
 This kind of parental strategizing is inimical to the best interests of
 children.  Attention should be directed to the needs of the children rather
 than the actions of the parents.  See Bissonette, 152 Vt. at 70, 564 A.2d  at
 602  ("focus of the court's decision must be the best interest of the child,
 not equity between the parties"); Lafko v. Lafko, 127 Vt. 609, 618, 256 A.2d 166, 172 (1969) (in custody dispute "opposing desires of hostile parents . .
 . must yield to the paramount consideration of the children's well-being").
      In Harris, we underscored the importance of balancing the best
 interests-of-the-child factors.  Agreeing that the primary custodian factor,
 if that custodian is fit, is entitled to great weight, we stated that "[t]he
 exact weight cannot be determined unless there is evidence of the likely
 effect of the change of custodian on the child."  Harris, 149 Vt. at 418-19,
 546 A.2d  at 214.  Presumably, the court followed this analysis.  Citing
 Harris, the court stated, "Ordinarily, a child should not be removed from
 the care of a primary caretaker if that caretaker is fit."  Based on this
 statement, together with the rest of its analysis, it appears that the court
 in concluding that husband was the primary-care-provider may have given
 Ashley's present living situation undue weight by not giving any weight to
 wife's conceded primary care of Ashley for nearly seven years.
      We decline to follow the unyielding approach of some courts which
 bifurcate the pre- and post-separation periods in determining the primary-
 care-provider.  See, e.g., Efaw v. Efaw, 400 S.E.2d 599, 602 (W.Va. 1990)
 ("'[t]he primary caretaker is that natural or adoptive parent who, until the
 initiation of divorce proceedings, has been primarily responsible for the
 caring and nurturing of the child'") (quoting Garska v. McCoy, 167 W.Va. 59,
 278 S.E.2d 357 (1981)) (emphasis added).  Instead, the inquiry should focus
 on all relevant periods of the child's life, rather than exclusively on the
 period immediately preceding trial.  See Draper v. Draper, 556 So. 2d 210
 214 (La. Ct. App. 1990) (child's residence with mother for approximately one
 year prior to custody trial had been unstable and thus did not mandate a
 finding that his best interest required him to remain with her where
 stability and continuity had not played a significant role in his life while
 he lived with her); In re Thompson, 103 Or. App. 458, 460-61, 797 P.2d 1077,
 1078 (1990) (wife, who moved out of family home and left eighteen-month-old
 child to minimize emotional impact of separation, was properly deemed
 primary parent; fact that husband provided primary care for year since
 separation was not determinative).  We decline to excerpt any period from
 the child's life in determining who, out of two competing parents, has
 provided the nurturing that would make the parent the primary-care-pro-
 vider.  The trial court, on the other hand, apparently accepted a per se
 rule that the parent with physical custody at the time of the divorce
 hearing is the primary-care-provider.
      In sum, we cannot afford meaningful review because we cannot tell from
 the court's decision if husband was the overall primary-care-provider under
 criteria six in light if all the circumstances, including the fact that wife
 had provided the primary care before the separation.  On this record, we are
 left to speculate as to the reasons the court favored husband over wife with
 respect to Ashley's placement.  This is especially so because post-separa-
 tion "primary care" of Ashley was relatively minimal in comparison to that
 before separation.  At the time of trial, husband worked a schedule which
 allowed him to spend at most one full day -- Sunday -- with Ashley.
 Although husband could spend Mondays with Ashley during the summer, her
 school schedule made this impossible during the months school was in
 session.  Upon separation, Ashley was transferred from the almost full-time
 care of her mother to the full-time care of baby-sitters, husband's co-
 workers, and husband, who often took her to work.  Ashley's school, extra-
 curricular activities and community would not have changed had wife been
 granted custody.  When Ashley lived with husband, much of the care provided
 to her by others replaced care she had formerly received from a parent.
      We realize that a parent should not be penalized for time at work spent
 away from a child, but consideration of the child's best interests "requires
 comparison of the attributes of each parent."  Bissonette, 152 Vt. at 69,
 564 A.2d  at 601.  Concededly, husband provided care after wife left the
 family home, but this was a function of wife's absence, which made him the
 only parent at home.  The issue cannot be decided solely on the performance
 of one parent.  Id.  The husband's expert, who testified that husband was a
 good father and custody of Ashley should remain with him absent "compelling
 reason," had investigated only husband's relationship with Ashley.  The
 court failed to justify its conclusion by an analysis of the facts over the
 entire relevant time period.
                                     II.
      If a different custody disposition is ordered on remand, the court may
 be required to alter the visitation order.  Still, wife's challenge to the
 original visitation arrangement is unfounded.  Wife argues that the trial
 court's order respecting visitation between husband and Morgan allowed for
 excessive parent-child contact.  Even though the testimony indicated that
 husband worked more during the summer, the trial court did not abuse its
 discretion in awarding husband four weeks of visitation with Morgan during
 the summer.  See Palmer v. Palmer, 138 Vt. 412, 414-15, 416 A.2d 143, 144
 (1980) (visitation arrangement is for trial court's discretion).  Consider-
 ing the facts as they existed at the time of trial, the court's order was
 appropriate.
      Wife's contention that she was denied a fair trial based on remarks by
 the trial judge is also without merit.
      On remand, the court is to apply the factors of { 665(b) to the
 situation at the time of hearing on remand, not solely to the situation as
 it existed at the time of the final divorce hearing.  Cf. Klein, 153 Vt. at
 557, 572 A.2d  at 904 (court must rely on "most recent information available"
 in fashioning maintenance on remand).
      Reversed in part and affirmed in part.








                                         FOR THE COURT:



                                         ________________________
                                         Associate Justice


------------------------------------------------------------------------------
                                Dissenting


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 90-225


 Christopher J. Nickerson                     Supreme Court

                                              On Appeal from
      v.                                      Orange Superior Court

 Amy A. Nickerson                             October Term, 1991


 Linda Levitt, J.

 William J. Donahue, White River Junction, for plaintiff-appellee

 Susan L. Aranoff of Aranoff & Upson, Waterbury, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J., dissenting.   Anybody who reads the majority opinion
 carefully will recognize that despite the remand, the Court has ruled that
 custody of Ashley Nickerson must be awarded to defendant as a matter of law.
 Although the opinion suggests that the defect in the trial court decision is
 the failure to explain its rationale, I think the opinion can be understood
 only as a holding that defendant remained the primary-care-provider.  Once
 the rule of law is extracted from the majority opinion, it is impossible for
 plaintiff to prevail.
      While I believe this result is unjustified in this case, it is a
 hallmark of a greater error in the majority opinion.  The majority opinion
 is in fact a trial court opinion.  Most of the "facts" stated in the first
 few pages were not found by the trial court, and some are disputed.  The
 opinion narrowly construes the trial court decision in order to criticize
 it.  Little discretion is accorded to the trial judge in her evaluation of
 the evidence.  Moreover, the "error" found by the majority involves an issue
 not raised below.  In short, this Court has now "tried" this case on
 theories different from those presented to the trial court and awarded
 custody of the child based on its fact-finding and evaluation of the
 evidence.
      I do not believe it just to abandon the proper role of appellate
 review even where the hindsight of the Justices of this Court shows we would
 have reached a different result.  Such appellate decisionmaking of this
 kind inevitably makes bad law that haunts us in the future when we try to
 stay within our proper role.
      It is helpful at the outset to examine the procedural posture of the
 case.  Not only did defendant leave the child with plaintiff and agree that
 he should have custody, she did not contest custody when plaintiff filed for
 divorce in 1989.  In January of 1990, she filed a counterclaim requesting
 that plaintiff receive custody of Ashley and she have visitation rights.  It
 was not until March, shortly before the divorce hearing, that she changed
 her mind and sought custody.
      Both parties submitted trial memoranda of law dedicated almost
 entirely to the effect of defendant's lesbian relationship on the custody
 question.  Plaintiff briefly stated that the primary-care-provider factor,
 as specified in 15 V.S.A. { 665(b)(6), was in his favor.  Even more briefly,
 defendant stated that the evidence would show that she was the children's
 primary-care-provider.  During the trial, the trial judge gave a "weather
 report" based on the evidence to that point.  She indicated that she was
 leaning to keeping the status quo because of the disruption of changing
 custody.  Despite this statement, defendant never addressed the primary-
 care-provider question in her closing argument.  Neither party submitted
 requests for findings of fact.  There were no relevant post-trial motions.
      Except in very exceptional cases, we have insisted that issues of law
 be raised in the trial court before they will be considered by this Court.
 I have no doubt that if defendant had raised the application of the primary-
 care-provider factor to a situation where the custodian of the child at the
 time of trial is not the person who was the primary-care-provider prior to
 separation, the trial court would have resolved it directly.  Instead, this
 issue is resolved for the first time on appeal.  It is particularly ironic
 that the majority faults the trial court for not fully explaining its
 decision when defendant failed to take the minimal steps necessary to obtain
 an explanation.  Without preservation and any help from the lawyers, the
 trial judge is left with the unmeetable burden of explaining everything an
 appellate court might want to know in response to creative new arguments
 raised by the losing party for the first time on appeal.
      In Varnum v. Varnum, 155 Vt. 376, 382-83, 586 A.2d 1107, 1110-1111
 (1990), a custody case where the claim on appeal was improper consideration
 of the mother's religious beliefs in violation of her constitutional rights,
 we emphasized the critical interest of the children in family stability that
 is undermined by treating issues for the first time on appeal.  After
 balancing the mother's constitutional rights against the interests of the
 children, we held:  "Even with the important rights and interests defendant
 seeks to vindicate, we think the balance tips decidedly in favor of
 enforcing rules of preservation to avoid the impact of lengthy delays on the
 well-being of the children."  Id. at 383, 586 A.2d  at 1111.  This is not a
 case where appellant is excused from preservation because she was unaware of
 the trial court's error until the decision was rendered.  The court's
 position was crystal clear in its "weather report," and appellant failed to
 respond to that position with the arguments she makes here.  As a result, we
 are abandoning the requirement of preservation.  Almost two years after the
 trial court's decision, this Court will overturn the custody award based on
 an issue never presented to the trial court.  I cannot believe that the
 trauma to the child is outweighed by the possible gain of a better
 custodian.
      Even if there had been preservation, I could not accept the majority
 opinion.  While couched in language that criticizes the trial court for
 failure to explain its decision, the majority's reasoning on the primary-
 care-provider argument is really that the trial court improperly found
 plaintiff to be the primary-care-provider and, thus, improperly weighed that
 factor in his favor.  Instead, the majority concludes that defendant was the
 primary-care-provider and never lost that status.  Thus, in the majority's
 view, this very important factor should weigh heavily in defendant's favor.
      I find the majority's analysis of both the facts and the law to be in
 error.  The determination of which parent is the primary-care-provider is
 primarily one of fact subject to the clearly erroneous test for setting it
 aside on appeal.  See Bissonette v. Gambrel, 152 Vt. 67, 70, 564 A.2d 600,
 601 (1989).  As the majority recognizes, we have not accorded a custodial
 presumption in favor of the primary-care-provider.  Instead, we accord great
 weight to this factor with the exact weight to be determined based on the
 likely effect of a change of custodian on the child.  See Harris v. Harris,
 149 Vt. 410, 418-19, 546 A.2d 208, 214 (1988).
      Both the plaintiff and defendant used a child psychologist as an expert
 witness.  Each respective psychologist interviewed the child and the parent
 who hired the psychologist, and observed the interaction between the parent
 and child.  Only plaintiff's expert, however, directly responded to the
 primary-care-provider issue.  He found a "mutual bond" between plaintiff and
 the child and that plaintiff "is a real psychological parent."  He went on
 to find that the child was flourishing in plaintiff's care, and that in the
 absence of a compelling circumstance, he would not recommend changing
 custodian.  He found no compelling circumstance for a change of custodian.
 In addition to the expert's testimony, plaintiff testified that he performed
 the day-to-day functions of the care provider.  Other witnesses who observed
 plaintiff and the child together provided similar testimony.
      Defendant's expert evidence was in some ways comparable.  The
 psychologist found defendant to be a fit parent with a good relationship to
 the child.  The expert offered no opinion, however, on who should have
 custody and no opinion on the effect of a change of custodian at the time of
 trial.
      It is clear that much of the majority's criticism of the trial court is
 based on the majority's reevaluation of the evidence and separate fact-
 finding.  Relying primarily on the expert evidence, the trial court found
 that plaintiff had become the primary-care-provider and gave that factor the
 weight recommended by plaintiff's expert witness.
      The majority is giving different weight to the testimony of
 plaintiff's expert, as shown by its comments on page 9 of the majority
 opinion. (FN1) It is, of course, settled law that the weight to be assigned to
 evidence is for the trial court, not this Court.  The evaluation of the
 expert testimony is not the only area where the majority has re-weighed the
 evidence.  Another critical example is the statement of the majority that
 the child "was transferred from the almost full-time care of her mother to
 the full-time care of baby-sitters, husband's co-workers, and husband, who
 often took her to work."  This statement is wildly exaggerated.  It fails to
 take into account that plaintiff's work schedule allowed for two full days
 of availability, Sunday and Monday, separate from the day, Saturday, that
 the child is with defendant.  It further ignores that defendant works part
 time and while plaintiff and defendant were together, the child was often
 with the same baby-sitter she is with now.  Thus, the "full-time care of
 baby-sitters" is actually three or four afternoons a week, at least part of
 which also occurred before the separation.  Obviously, the trial court did
 not see a flexible forty-hour work schedule as the same impediment to good
 parenting as the majority sees it.
      The majority opinion presents three interrelated criticisms of the
 trial court's application of the law.  None are warranted.  The first is
 that the trial court "apparently accepted a per se rule that the parent with
 physical custody at the time of the divorce hearing is the primary-care-
 provider."  The heart of the trial court's analysis was:
         Both Plaintiff and Defendant point to minor shortcomings
         in one another's parenting skills.  However, neither
         party has given a compelling reason to alter the present
         custodial arrangement.  Plaintiff and Defendant are fit
         parents who can provide for their children's needs.  The
         children have adjusted to their parents' separation and
         more change in their lives would be disruptive.  Ashley,
         in particular, has strong ties to the area in which she
         presently resides.

 As noted above, the "compelling reason" analysis was urged by plaintiff's
 expert witness.  There is nothing of a per se rule in this analysis.  If
 there had been no expert testimony in the trial court, or if defendant had
 seriously contested the primary-care-provider issue in the terms it is
 raised here, one could understand the appearance of a per se rule.  In
 context, it is a mischaracterization of the trial court conclusion.
      The second asserted error, and the one that the majority identifies as
 the ground for its reversal, is that the trial court failed to indicate
 whether the proper analysis was used and thus "we are left to speculate as
 to the reasons the court favored husband over wife with respect to Ashley's
 placement."  We have occasionally used this rationale where we cannot
 discern why the trial court rendered its decision or there is an internal
 inconsistency in the explanation.  See, e.g., Klein v. Klein, 150 Vt. 466,
 472, 555 A.2d 382, 386 (1988); McCormick v.McCormick, 150 Vt. 431, 438, 553 A.2d 1098, 1103 (1988).  It is a misuse of this rationale to apply it to a
 case where the trial court is crystal clear on what was decided, and why,
 but the majority disagrees with the decision.  The only thing we are left to
 speculate on in this case is why the trial court didn't anticipate the
 majority's view of the law.
      If we use the "anti-speculation" rationale in a case like this, we
 will inevitably be left to speculate on what the law is after this opinion.
 At one point, the majority opinion is clear that it is irrelevant that one
 spouse becomes the primary-care-provider after the other spouse, who was the
 primary-care-provider, leaves the home.  Later in the opinion, the trial
 court is directed to engage in some sort of weighing process, balancing the
 pre-separation care-giving against the post-separation care-giving to
 determine the "overall primary-care-provider."  I doubt that trial courts
 would be able to figure out how to award points to implement this legalistic
 process.  It certainly will not be obvious how this process is better in
 determining the best interest of the child than the approach used by the
 trial court in this case.  None of the justifications for a rule giving
 special weight to the primary-care-provider are advanced by this process.
 See Crippen, Stumbling Beyond Best Interests of the Child: Reexamining Child
 Custody Standard-Setting in the Wake of Minnesota's Four Year Experiment
 with the Primary Caretaker Preference, 75 Minn. L. Rev. 427, 440-52 (1990)
 (purpose of primary caretaker preference is to protect parent-child
 bonding, promote certainty in custody adjudication and preserve gender-
 neutrality and the general best interests of the child).  While I strongly
 disagree with a rule that ignores post-separation care provision, I find it
 far preferable to the mire of weighing unlike things with the risk that
 carefully considered custody determinations will be overturned because the
 legalistic equation was not accurate.  I fear that the real result of this
 opinion, and its determination that the trial court failed to explain its
 decision, will be a plethora of appeals to make us explain our decision.
 See id.  at 452 (primary caretaker preference in Minnesota, since abandoned
 by legislative action, "caused an explosion of litigation").
      The third error involves the legal principles controlling the
 determination of the primary-care-provider in a case like this.  The real
 holding of this case is that a parent who leaves the home without notice and
 without continuing to be the primary-care-provider is, as a matter of law,
 entitled to primary-care-provider status in the custody analysis.  I believe
 this position is rigid and inappropriate.
      Defendant not only voluntarily relinquished custody to plaintiff, she
 failed to contest custody until shortly before the divorce hearing.  She
 gave no reason for failing to take Ashley with her to her new home.  As a
 result, the primary-care-provider role shifted to plaintiff, and the child
 adjusted to that situation to the point that it would be traumatic to make a
 further change.
      The majority gives one reason why it is important to continue the legal
 status of the primary-care-provider with the parent who leaves the home
 despite the change in the status in fact.  It should not be the controlling
 consideration.  In determining custody, we are governed by the best interest
 of the child and must look at the custody determination from the child's
 perspective.  See Price v. Price, 149 Vt. 118, 125, 541 A.2d 79, 83 (1987).
 In a battle between fit and loving parents, the child's interest is in
 stability and continuity of relationships and surroundings.  Any rule that
 allows a child, having been left in the custody of one parent, to be
 reclaimed at will by the other parent despite the bonding that has occurred
 and the psychological damage to the child, is a bad rule.
      Ironically, the case that the majority criticizes as "rigid,"  Efaw v.
 Efaw, 400 S.E.2d 599 (W. Va. 1990), is an example of the kind of flexible
 approach that is far preferable to the majority's approach.  Although West
 Virginia is now the only state that gives custodial preference to the
 primary-care-provider who is fit, irrespective of other factors, it is
 flexible in determining whether either parent achieves the preference.  The
 facts in Efaw are similar to those here in that the primary-care-provider,
 who was the mother, left the children when she moved in with another man.
 The father then became the primary-care-provider and remained so until the
 divorce hearing.  The Court found that neither parent was entitled to the
 preference under the primary-care-provider rule and that custody must be
 determined based on the best interest of the children.  It awarded custody
 to the father, in large part because "[t]he children have developed a stable
 relationship with their father and grandparents . . . . To remove the
 children from such an established environment would jeopardize their
 emotional stability . . . ."  Id. at 603.  See also Mills v. Gorrick, 381 S.E.2d 273, 276-77 (W. Va. 1989) (trial court has discretion to award
 custody to father where evidence supports conclusion that wife
 intentionally relinquished custody to him in order to maintain a
 relationship with another man); Dempsey v. Dempsey, 306 S.E.2d 230, 231-32
 (W. Va. 1983) (where mother had relinquished care to father shortly before
 divorce action, court could find that no primary-care-provider presumption
 arose and award custody to husband based on the best interest of the child).
      Efaw is consistent with how other courts have handled a shift of
 primary-care-provider.  See, e.g., Davis v. Davis, 749 P.2d 647, 648-49
 (Utah 1988).  It is also how the trial court handled this case.  A fair
 evaluation of the trial court's decision shows that it is not based on a
 rigid application of the primary-care-provider rule.  Instead, it is based
 on the expert testimony of plaintiff's psychologist, which the court chose
 to believe and follow.  The decision should be affirmed on that basis.
      Virtually all custody decisions emphasize that the trial court has
 broad discretion in custody cases and its custody award cannot be overturned
 unless its "discretion was erroneously exercised, or exercised upon
 unfounded considerations, or to an extent clearly unreasonable in light of
 the evidence . . . ."  Peckham v. Peckham, 149 Vt. 388, 389, 543 A.2d 267,
 268 (1988).  The majority states the standard of review on appeal, but
 emphasizes all the exceptions to the point where they justify what is
 essentially de novo review of both the facts and the law.  If the majority
 followed the well-established standard of review, it would have to affirm
 the custody award in this case as within the trial court's broad discretion.
 Accordingly, I dissent.

                                         FOR THE COURT:




                                         Associate Justice


 FN1.    If I understand the majority opinion, it is criticizing the expert
 because he did not examine the relationship between the child and 
 appellant prior to separation.  The expert considered the additional inquiry 
 irrelevant because he had concluded that the child had bonded to the 
 appellee and custody should not be changed without a compelling interest.  
 This is not an issue of "the performance of one parent."  It is instead a 
 child-focused inquiry on the effect of a change of custodian, exactly the 
 reason for giving weight to the primary-care-provider in the first instance.
        

------------------------------------------------------------------------------
                                     Dissenting



 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 90-225


 Christopher J. Nickerson                     Supreme Court

                                              On Appeal from
      v.                                      Orange Superior Court

 Amy A. Nickerson                             October Term, 1991


 Linda Levitt, J.

 William J. Donahue, White River Junction, for plaintiff-appellee

 Susan L. Aranoff of Aranoff & Upson, Waterbury, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J., dissenting.   I join Justice Dooley's dissent, except that
 I believe the primary-care-provider issue was adequately preserved.



                                              Chief Justice