Mullin v. Phelps

Annotate this Case
MULLIN_V_PHELPS.93-143; 162 Vt. 250; 647 A.2d 714

[Opinion Filed June 24, 1994]


 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-143


 Stephen Mullin                               Supreme Court

                                              On Appeal from
      v.                                      Chittenden Family Court

 Rita (Mullin) Phelps                         September Term, 1993


 Amy M. Davenport, J.

 Cortland Corsones and Therese M. Corsones of Corsones & Corsones, Rutland,
   for plaintiff-appellant

 Alan Rosenfeld, Montpelier, for defendant-appellee


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


      Johnson, J.    In this appeal, we review a family court order that
 transfers custody of the parties' two children from plaintiff father to
 defendant mother and that completely cuts off all contact between the father
 and his sons unless he acknowledges abusing them.  The basis of the order is
 the court's conclusion that a preponderance of the hotly disputed evidence
 presented by the warring parties indicated that the father sexually abused
 the younger boy.  We conclude that the court did not abuse its discretion in
 transferring custody of the children to the mother, but that due process
 precluded the court from effectively terminating parent-child contact
 between the father and his sons based on a finding of sexual abuse by a mere
 preponderance of the evidence.  We hold that, as a matter of due process,
 the family court may terminate parental rights only if the evidence

 

 supporting the decision is clear and convincing, a standard that was not
 remotely satisfied in this case.  We also conclude that the part of the
 court's order conditioning future parent-child contact on the father
 acknowledging that he sexually abused his son must be stricken because it
 violates the father's privilege against self-incrimination.  Accordingly, we
 remand the matter for the family court to fashion a visitation order that
 comports with due process and that is consistent with the principles
 discussed in this opinion.
                                     I.
      We detail the events surrounding the various proceedings in this
 protracted, acrimonious custody battle in order to place the family court's
 most recent decision in the proper perspective.(FN1)  The parties separated in
 1986 after a tumultuous eight-year marriage that produced two children.  At
 that time, the children, Jeremy and Kyle, were six years old and one year
 old, respectively.   Following the separation, the children lived primarily
 with the father.  In November 1987, in response to a court-ordered
 evaluation in the divorce proceeding, the Vermont Children's Aid Society
 recommended that the children remain in the custody of the father and his
 new wife, based on its conclusion that joint custody was not feasible
 because neither party was able to place the children's welfare above the
 resentment and anger they felt towards each other.  Nevertheless, based on
 the parties' stipulation, the court ordered joint custody, with the father
 and his wife having primary physical custody.

 

      In 1989, the father sought full legal and physical responsibility for
 the children.  The mother responded by alleging that the father had
 physically abused them.  Based on numerous interviews with the parties and
 the children, the Champlain Valley Psychiatric Services found no evidence of
 physical abuse; indeed, it concluded that physical discipline occurred more
 often in the mother's home.  As had previous evaluators, the two clinical
 psychologists and social worker noted that the children were integrated into
 the father's home, but that the older child, Jeremy, appeared to be highly
 stressed as the result of the continuing conflict over custody.  The team
 recommended that the father be awarded sole custody.  In May 1990, the court
 granted the father's motion to modify, and awarded him sole custody of the
 children.  The mother appealed, and we affirmed the decision.
      In August 1990, shortly after the trial court's decision, the mother
 filed a petition for relief from abuse, alleging for the first time that the
 father had sexually abused the children.  According to the mother, during
 visits in the spring and summer of 1990, Kyle, then age 5, requested on
 three separate occasions that she put a stop to the "bug game."  Allegedly,
 this "game" consisted of the father inserting his finger in Kyle's rectum or
 placing his penis in the child's mouth.  Jeremy, then age 10, stated that
 his father had sexually assaulted him five years before, and that Kyle had
 been similarly assaulted during the summer of 1989.  An investigation by the
 Department of Social and Rehabilitation Services (SRS), which included a
 medical examination of Kyle and a psychological evaluation of the family,
 revealed no evidence of abuse.  An SRS investigator concluded that there was
 insufficient evidence to substantiate the mother's allegations, and
 expressed concern that the allegations of abuse seemed to be made during

 

 times of change in custody or when the boys' visitation with the mother was
 about to end.
      In a lengthy opinion, the court found that the mother had failed to
 produce sufficient evidence to prove the alleged abuse by a preponderance of
 the evidence, and denied the motion for relief from abuse.  Further, the
 court concluded that the protracted custody proceedings and the mother's
 prior, unsuccessful abuse petitions reflected "the natural mother's
 continuing efforts to gain child custody, wherein she has been unsuccessful
 in all of the other various procedures before the courts."  According to the
 court, the mother's custodial crises formed "the genesis of the abuse
 claims," which were not found to be credible.
      In September 1990, approximately a week after the court denied the
 petition, the father filed a request for consent to relocate with the
 children to Utah, where he had a job opportunity.  The mother responded by
 filing another petition for relief from abuse and a motion to modify
 custody.  The petition was denied, but another court-ordered psychological
 family evaluation followed, in which Jeremy described incidents of sexual
 abuse.  The examining psychologist, Dr. Jonathan Rightmyer, concluded that
 Jeremy's report of abuse was not credible because it was inconsistent and
 provided no contextual detail, that the father posed no risk of harm to the
 safety and welfare of the children, and that the boys' anxious and
 depressive behavior patterns were the result of the protracted and
 contentious custody battle, not sexual abuse.  Warning that the deep
 hostilities between the father and the mother threatened the boys with grave
 psychological distress, the examiner recommended that it would be in the
 best interests of the children to relocate with the father and his wife.

 

      On October 21, 1990, the mother filed another relief from abuse
 complaint against the father.  Two days later, the case was designated a
 complex action pursuant to V.R.C.P. 16.1, and Judge Amy M. Davenport sat as
 presiding judge in the pending request for the father to relocate, the
 mother's relief from abuse petition, and in all subsequent proceedings.  In
 December 1990, the court granted the father's request to relocate with the
 children.  The court required the father to obtain counselling for Jeremy
 with a child psychologist or licensed therapist who had a background in
 counseling children of divorce and some expertise in child sexual abuse.
 The court noted that the therapy was needed not because Jeremy's reports
 were substantiated, but rather to remedy the trauma resulting from his
 reports of abuse.
      In motions filed in August 1991 and January 1992, the mother again
 requested a custody modification, based on allegations of sexual abuse and
 on separate incidents involving each child.  The first incident occurred at
 the end of the children's five-week stay with the mother in August 1991.
 Jeremy became extremely anxious and refused to return to his father's home
 in Utah.  On the day of his scheduled return flight, Jeremy burned his
 airline ticket and ran away from home for several hours.  The court ordered
 an evaluation by Dr. Rightmyer to assess any changes in Jeremy since the
 testing conducted in the fall of 1990.  Dr. Rightmyer again found the
 allegations of sexual abuse incredible, and advised that the need for
 continuity in Jeremy's life weighed in favor of his returning to Utah,
 despite tensions between the father and son.  Dr. Rightmyer also recommended
 intensive family therapy involving Jeremy, his father, and his stepmother.

 

      The incident involving Kyle occurred at the end of Christmas vacation,
 on January 3, 1992.  The mother and her husband took the boys to the airport
 for their return flight to Utah.  Kyle refused to board the plane, became
 hysterical, and clung to his mother.  Eventually, Jeremy also began crying
 and refused to board the plane.  The mother made arrangements with the
 father's parents to put the children on a flight the next morning, and left
 them in the care of local police.  When the boys' paternal grandmother saw
 them off, they boarded the plane without incident.
      In a March 1992 order, the family court found insufficient evidence of
 a material and unanticipated change in circumstances to merit a transfer in
 custody, but modified certain provisions of the December 1990 order relating
 to parent-child contact and therapy for the children.  Based on Dr.
 Rightmyer's testimony and the absence of corroborating evidence, the court
 again concluded that Jeremy's allegations of sexual abuse were not credible.
 Although the court acknowledged that, in a telephone call with Dr.
 Rightmyer, Jeremy had retracted his claim that his father had sexually and
 physically abused him, it did not find that the mother had coached Jeremy or
 that she had otherwise attempted to set him against his father.  On balance,
 the court found that the benefit of continuity in Jeremy's life in Utah
 outweighed any difficulties arising from his relationship with his father
 and his expressed desire to remain in Vermont with his mother.  However, the
 court expressed grave concerns about the father's ability or willingness to
 provide and participate in appropriate therapy for the children.
      The order regarding individual and family therapy was amended to
 require the father to report to the guardian ad litem in Vermont on a
 monthly basis.  Henceforth, in addition to the children receiving individual

 

 therapy in Vermont during the summer, the father was to arrange individual
 counselling for Jeremy and to participate with the children in family
 counselling sessions.  Moreover, the father was to provide any therapist
 seeing the children with copies of the order and other relevant court
 documents.  The court warned that the father's failure to abide by the
 orders with respect to therapy, coupled with a lack of improvement in his
 relationship with Jeremy, "could constitute a substantial change in
 circumstances sufficient to consider whether it is in Jeremy's and even
 Kyle's best interests to return to Utah."
      In August 1992, during visitation the following summer, the mother
 filed yet another motion to modify custody, this time alleging the father
 had sexually abused Kyle and that the father had failed to comply with the
 therapy requirements of the March 1992 order.  This is the case now before
 us on appeal.
      Kyle was admitted to Dartmouth Hitchcock Hospital for a physical
 examination, which revealed a slight cleft in his anal opening that could
 have resulted from old trauma.  Dr. Patricia Cone, a psychologist at
 Dartmouth Hitchcock, interviewed Kyle.  She recommended a full psychological
 evaluation of the family, including psychological testing of both children
 and a psychosexual examination of their father.  The court ordered the
 evaluation, which was performed by Dr. Cone and Dr. Amy Wallace, a
 psychiatrist at Dartmouth Hitchcock, and also ordered a psychosexual
 evaluation of the father, which was performed by Dr. Robert Card, a Utah
 psychiatrist recommended by Dr. Cone.
      In preparing their report, the Dartmouth team conducted interviews and
 observations of the boys and the mother, and to a lesser extent, the father

 

 and his wife.  Based on these interviews, they concluded that Kyle was
 suffering severe emotional and psychological stress as the result of sexual
 abuse by his father.  The team found Kyle's claims of abuse to be credible,
 despite their similarity to Jeremy's previous unsubstantiated and retracted
 claims.  The report concluded that past evaluations, which found the claims
 of abuse incredible, were unreliable due to Dr. Rightmyer's lack of
 expertise in assessing child victims of sexual abuse.  The team discounted
 Jeremy's claims that the mother had coached him and his brother regarding
 the abuse and had staged incidents to make it appear that the boys were
 afraid of their father.
      The Dartmouth Hitchcock report recommended that parental rights and
 responsibilities be transferred to the mother, and that she immediately seek
 individual and family counselling for Kyle and Jeremy.  It also recommended
 that the father have no contact with the boys until he admitted his sexual
 abuse and successfully completed a treatment program for sexual offenders
 with an emphasis on treating perpetrators of incest.  Contact would then be
 recommended only if the children wished it and both the children's
 therapists and the father's therapist agreed the contact should take place.
      The Dartmouth Hitchcock team reached its conclusions without reviewing
 the report from Dr. Robert D. Card, the Utah psychologist whom Dr. Cone had
 recommended to evaluate the father.  Apparently, Dr. Card neither obtained a
 copy of the Dartmouth report nor sent his report to the Dartmouth team
 because of the father's failure to provide him with a copy of the court
 order requiring the evaluation.  In any event, Dr. Card concluded that it
 was "highly unlikely" that the father had sexually abused his children.

 

      Dr. Cone provided extensive testimony at the modification hearing,
 where she reiterated the report's conclusions and recommendations.  In the
 end, the court accepted Dr. Cone's conclusions and recommendations regarding
 the credibility of the parties and the children, the existence of sexual
 abuse, and the conditions for contact between the father and his sons.  The
 court found that "it is more probable than not that Kyle Mullin has been
 sexually abused by his father."  Based on this finding, as well as the
 father's continuing denial of having abused his children and his failure to
 participate in family therapy and obtain individual counselling for the
 boys, the court concluded that the father "is unable to provide either of
 the children with a safe environment."  Accordingly, the court transferred
 custody, which had been with the father and his wife for the previous six
 years, to the mother.
      Further, the court conditioned any contact between the father and the
 boys -- whether by phone, mail or in person -- on the father's
 acknowledgment of the sexual abuse.  The court recognized that the lack of
 contact with the father would be a "significant loss" for the children,
 particularly Jeremy, and that the loss of the children's relationship with
 their stepmother, who had "played a significant parental role in the
 children's lives," would also be lost.  Nonetheless, the court concluded
 that the condition was necessary to "ensure the safety of the children from
 further abuse and emotional trauma."  Finally, the court ordered the father
 to pay all of the children's, and part of the mother's, attorney's fees, as
 well as the uninsured cost of the Dartmouth evaluation and all costs
 associated with Dr. Cone's testimony.

 

      On appeal, the father argues (1) that the mother did not meet the
 threshold burden of proof for a modification of physical custody; (2) that
 several of the court's findings were not supported by the evidence; (3) that
 conditioning any contact between the father and his sons on his admitting he
 sexually abused them is not in the children's best interest; and (4) that
 ordering the father to pay certain attorney's fees and other costs was an
 abuse of discretion.
                                     II.
      We first consider whether there was sufficient evidence to transfer
 custody of the children to the mother.  The father argues that neither the
 one instance of sexual abuse that had allegedly taken place since the
 mother's last previous claim of abuse was rejected by the court, nor his
 failure to follow every aspect of the court's March 1992 order regarding
 therapy for him and the children, satisfied the mother's "heavy burden" of
 making a threshold showing of a substantial and unanticipated change of
 circumstances.  See 15 V.S.A. { 668 (upon moving party's "showing of real,
 substantial and unanticipated change of circumstances," court may modify
 custody order if it is in best interests of child); see also Pill v. Pill,
 154 Vt. 455, 459, 578 A.2d 642, 644 (1990) (moving party has heavy burden to
 prove changed circumstances); Kilduff v. Willey, 150 Vt. 552, 553, 554 A.2d 677, 678-79 (1988) (giving stability to children's lives "is so important
 that custody ought not to be modified without critical justification").
      As noted, the trial court stated two independent reasons for its
 conclusion that a substantial change in circumstances had occurred since its
 March 1992 order.  First, the court found that the father had sexually
 abused Kyle.  Second, the court found that the father demonstrated an

 

 inability to meet his children's mental health needs by failing to comply
 with specific provisions of the December 1990 and March 1992 court orders
 mandating appropriate individual and family therapy.  If either finding
 supplies a reasonable basis for the decision that a real, unanticipated and
 substantial change of circumstances has taken place, then the court did not
 abuse its discretion in ruling that the { 668 threshold had been met.
      We need not consider whether the court's second basis for transferring
 custody met the threshold test because we conclude that the court's finding
 of sexual abuse surely did.  There can be no question that sexual abuse of a
 child by a parent poses grave danger to the child's well-being and best
 interests.  Cf. Lane v. Schenck, 158 Vt. 489, 497-98, 614 A.2d 786, 790-91
 (1992) (threshold test promotes best interests of children by preventing
 potentially harmful dislocations in their lives for other than serious
 reasons).  Thus, the court acted within its discretion in transferring
 custody of the children based on its finding of sexual abuse.  Id. at 494,
 614 A.2d  at 788 (court's determination of whether substantial and
 unanticipated change of circumstances has taken place may be disturbed only
 for abuse of discretion).
      The father points out, however, that until this last proceeding, no
 court had found sufficient evidence to support the mother's prior
 allegations of sexual abuse, and that in this case Kyle alleged only one new
 act of abuse that had occurred since the March 1992 order.  According to the
 father, a single suspect allegation cannot rise to the level of a
 substantial change in circumstances.  We disagree.  Even assuming the
 court's finding of abuse was limited to a single, substantiated allegation
 of sexual abuse, that would constitute a threshold change of circumstances.

 

      As for the "suspect" nature of the incidents of abuse, the father's
 contention is that the court's finding of abuse was based on clearly
 erroneous findings of fact and was not supported by the evidence.  On
 review, we examine the trial court's findings of fact only for clear error.
 V.R.C.P. 52(a)(2).  Factual findings are viewed in a light most favorable to
 the prevailing party, disregarding modifying evidence.  Jarvis v. Gillespie,
 155 Vt. 633, 637, 587 A.2d 981, 984 (1991).  "A finding will not be
 disturbed merely because it is contradicted by substantial evidence; rather,
 an appellant must show there is no credible evidence to support the
 finding."  Highgate Assocs. v. Merryfield, 157 Vt. 313, 315, 597 A.2d 1280,
 1281 (1991).
      The father claims that the trial court improperly discounted Jeremy's
 testimony that the mother had coached him to lie about the sexual abuse, and
 that he had lied when he said his father had abused him.  The father also
 claims that the court erred by finding Kyle's reports of sexual abuse
 credible.  After careful review of the record, we cannot say that the
 court's findings regarding the credibility of Jeremy and Kyle were clearly
 erroneous.  The court considered evidence from psychological reports and
 from its own interviews with the boys.  This evidence could support the
 conclusion that Kyle's account of what happened, and not Jeremy's, was, more
 likely than not, the truth.  In light of the highly deferential standard of
 review, we conclude that the trial court's findings as to the boys'
 respective credibility were not clearly erroneous.  Peckham v. Peckham, 149
 Vt. 388, 390, 543 A.2d 267, 269 (1988) (as trier of fact, trial court is in
 best position to assess credibility of witnesses and weight to be accorded
 to evidence).

 

      The father also claims that a number of the court's other findings are
 clearly erroneous.  For two of these findings, the father essentially
 restates his disagreement with the trial court's findings that Kyle's
 reports of sexual abuse were credible, and that Jeremy's recantation of
 earlier reports of abuse, and his insistence that his mother coached him and
 Kyle, were not credible.  We reiterate that our role in reviewing findings
 of fact is not to reweigh evidence or to make findings of credibility de
 novo.  Peckham, 149 Vt. at 390, 543 A.2d  at 269.  The father quotes
 substantial portions of the record to illustrate evidence that purportedly
 detracts from the court's findings with respect to the boys, but this simply
 demonstrates the existence of conflicting evidence.  This does not satisfy
 the father's burden of showing the absence of credible evidence of abuse.
 See Merryfield, 157 Vt. at 315, 597 A.2d  at 1281.
      Next, the father argues that the court erroneously found the
 conclusions of Dr. Card, the psychologist who performed the psychosexual
 evaluation of the father, to be unreliable.  Dr. Card concluded, based on
 results from a battery of tests, that it was highly unlikely that the father
 had engaged in "deviant sexual activities."  He candidly admitted, however,
 that all the information about the father used in the evaluation was self-
 reported, and that no tests could prove conclusively that the father had not
 abused his sons.  Moreover, the fact that Dr. Card provided evidence
 militating against a finding that the father had committed the abuse did
 not preclude the court from concluding, based on other credible evidence,
 that the abuse had occurred.
      The father contends, however, that the trial court's reliance on the
 evaluation performed by Dr. Patricia Cone and Dr. Amy Wallace of Dartmouth

 

 Hitchcock Hospital was clearly erroneous because the report was incomplete
 and the doctors were biased against him.  Regarding the first point, the
 father points out that the original order required that a comprehensive
 forensic evaluation be prepared of the Mullin-Phelps family and any other
 person with whom the children had a significant relationship.  Though the
 final report may not have conformed precisely to the court's original order,
 the court was not foreclosed from considering it in determining how the best
 interests of the children could be served.  Moreover, the court did not rely
 solely on the report in making its findings and conclusions.  We conclude
 that the court did not abuse its discretion in relying on the report, even
 though the scope of the evaluation may have been more limited than first
 contemplated.
      Nor do we conclude that the court abused its discretion by relying on
 the Dartmouth Hitchcock evaluation in the face of the father's claims (1)
 that the tone of the report demonstrated clear bias against him and his
 wife, and (2) that Dr. Cone's characterization of Jeremy's relationship
 with his mother was flatly contradicted by statements Jeremy made in a
 videotape viewed by the court.  Once again, the father's arguments boil down
 to a claim that the court accorded Dr. Cone's evaluation and testimony too
 much weight and credibility.  We recognize that the Dartmouth report
 contrasts the mother's controlled and helpful manner during interviews with
 the father's belligerent and selfish behavior.  We further recognize that
 the report suggests that the father's behavior during the interviews showed
 an indifference to children typical of an abusive parent, while it fails to
 consider how an innocent parent might respond to repeated evaluations that
 were the result of false accusations of sexual abuse.  Nonetheless, opposing

 

 counsel's thorough questioning of Dr. Cone about her report and direct
 examination testimony, which brought the issue of bias before the court,
 failed to elicit facts that required the court to find bias or to ignore the
 report.  We find no clear error in the court's reliance on the report.
      In sum, we conclude that the court's finding that Kyle had been
 sexually abused by his father was not clearly erroneous, and that the court
 did not abuse its discretion by determining that the mother met the
 threshold test for modification of parental rights and responsibilities.
 Given the finding of sexual abuse, the court's decision to transfer custody
 to the mother was within its discretion in furtherance of the best interests
 of the children.
                                    III.
                                     A.
      Although we conclude that there was sufficient evidence for the court
 to find that it is more probable than not that the father abused Kyle, we
 hold that the finding of sexual abuse by a mere preponderance of the
 evidence was insufficient, as a matter of due process, to terminate all
 parent-child contact between the father and his sons.  Our due-process
 analysis relies heavily on a United States Supreme Court case, but we
 emphasize that our holding is also grounded upon Chapter I, Article 10 of
 the Vermont Constitution, which provides that no person may be justly
 deprived of liberty, "except by the laws of the land."  See State v.
 Brunelle, 148 Vt. 347, 350, 534 A.2d 198, 201 (1987) ("as final interpreter
 of the Vermont Constitution, this Court has final say on what process is due
 in any given situation"); State v. Messier, 145 Vt. 622, 627, 497 A.2d 740,

 

 743 (1985) (phrase "except by the laws of the land" is synonymous with
 phrase "due process of law").
      At the outset of our discussion, we emphasize that the court's order
 effectively terminated the father's parental rights.  Indeed, the court
 acknowledged "that given the father's level of denial over the past five
 years, it is unlikely that he will ever acknowledge responsibility or
 voluntarily agree to treatment," and that, as a result, neither he nor his
 wife, who had primary custody of the children for the previous six years,
 would be able to contact the boys until they reached the age of eighteen.
 While leaving open the possibility of visits "for therapeutic purposes" at
 the behest of the children's therapists, the court stated that the father
 "shall have no right to a regular schedule of parent-child contact" until he
 acknowledges the sexual abuse, and "shall have no contact with the children
 by telephone or letter" except for purposes of therapy.
      Once we acknowledge that the court's order effectively terminated the
 father's parental rights, we must consider what standard of proof is
 required to support such an order.(FN2)  In Santosky v. Kramer, 455 U.S. 745,
 747-48 (1982), the United States Supreme Court held that due process
 requires a state to present clear and convincing evidence in a termination
 proceeding before it can cut off parental rights.  Only a few courts,

 

 however, have even briefly considered whether this holding should also apply
 in a divorce or custody proceeding in which the state is not a party.
      In Mallory v. Mallory, 539 A.2d 995, 997 (Conn. 1988), the Connecticut
 Supreme Court rejected the father's argument that the clear-and-convincing-
 evidence standard is required in all custody cases involving allegations of
 sexual abuse.  The court, however, based its decision on the fact that the
 restrictions on the father's contact with his daughter were neither complete
 -- he could visit her four hours a week under supervision -- nor permanent -
 - after one year of counselling sessions, court family-relations personnel
 would meet with the father to determine whether they should initiate a
 regular visitation schedule.  Id. at 997-98.  The court held that the normal
 civil standard -- preponderance of the evidence -- "is applicable in child
 custody hearings in which there are allegations that a parent has sexually
 abused his child, at least where that parent retains some visitation rights,
 which may be reasonably restricted to protect 'the best interests of the
 child.'"  Id. at 998 (emphasis added).
      Louisiana and Indiana appellate courts have refused to apply the
 Santosky holding in particular custody proceedings involving the termination
 of visitation rights.  In the Louisiana case, the court held that Santosky
 did not apply because, rather than involving the "termination" of parental
 rights, the case involved a "suspension" of the right to visitation under a
 statute expressly providing that whenever the court finds abuse by a
 preponderance of the evidence, it must prohibit visitation until the parent
 proves that the contact would not harm the child.  W.M.E. v. E.J.E., 619 So. 2d 707, 709 (La. Ct. App. 1993).  Apparently, there was no constitutional
 challenge to the statute on due process grounds.  The Indiana court refused

 

 to apply a clear-and-convincing standard in a modification-of-custody
 proceeding in which the trial court had terminated the visitation rights of
 a father with AIDS.  The court concluded that the case before it was
 distinguishable from Santosky because the state was not a party to the
 proceeding, and because the visitation order could be revoked in a future
 modification proceeding.  Stewart v. Stewart, 521 N.E.2d 956, 962-63 (Ind.
 Ct. App. 1988).
      On the other hand, some jurisdictions, without discussing Santosky,
 have required clear and convincing evidence to support an order terminating
 a parent's visitation rights in a custody proceeding.  See, e.g., Arnold v.
 Naughton, 486 A.2d 1204, 1206 (Md. Ct. App. 1985) (trial court should have
 applied "clear and convincing evidence" standard rather than "beyond a
 reasonable doubt" standard in determining whether sexual abuse was
 established); Johntonny v. Malliski, 588 N.E.2d 200, 201 (Ohio Ct. App.
 1990) ("standard of proof for one contesting visitation is clear and
 convincing evidence").  Further, this Court's application of Santosky in
 different contexts demonstrates that the nature of the proceeding is not the
 controlling factor.  Compare Paquette v. Paquette, 146 Vt. 83, 92, 499 A.2d 23, 30 (1985) (extending Santosky due-process analysis to proceeding in
 which stepparent and natural parent sought custody, Court held custody may
 be awarded to stepparent if clear and convincing evidence shows natural
 parent is unfit)(FN3) with In re A.D., Jr., 143 Vt. 432, 435-36, 467 A.2d 121,

 

 123-24 (1983) (refusing to extend Santosky holding to CHINS proceedings,
 where parental rights are only temporarily curtailed).
      In determining what standard of proof is required to terminate parent-
 child contact, the Court in Santosky examined the three criteria specified
 in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): "the private interests
 affected by the proceeding; the risk of error created by the State's chosen
 procedure; and the countervailing governmental interest supporting use of
 the challenged procedure."  Santosky, 455 U.S.  at 754.  The Court pointed
 out that the first criterion does not directly consider the interests of the
 children because, until shown otherwise, it is presumed that it is in their
 best interest to remain in the custody of their natural parents.  Id. at
 760, 765; cf. 15 V.S.A. { 650 (legislature finds maximum physical and
 emotional contact with both parents following divorce is in best interest of
 minor children, "unless direct physical harm or significant emotional harm
 to the child or a parent is likely to result from such contact").  Rather,
 the interests of the opposing parties -- in this case, each parent -- must
 be considered.
      Here, the father's interest in not having parent-child contact
 terminated is similar to the parents' interest in a termination proceeding.
 Cf. In re Guardianship of H.L., 143 Vt. 62, 65, 460 A.2d 478, 479 (1983)
 (citing Santosky, Court held due process protects "[b]oth the right of the
 parent to custody and the liberty interest of parents and children to
 relate to one another in the context of the family, free of governmental
 interference") (emphasis added).  On the other side, the mother's
 countervailing interest in protecting her children is analogous to the state
 interest in a termination proceeding under the third Mathews criterion.

 

 While a parent's interest in protecting his or her children is arguably more
 compelling than the similar state interest in a termination proceeding, it
 can be satisfied without completely terminating contact between the children
 and the parent accused of abusing them.  See Annotation, Denial or
 Restriction of Visitation Rights to Parent Charged With Sexually Abusing
 Child, 1 A.L.R.5th 776, 784 (1992) (some courts have found it in best
 interest of children to have supervised visitation with parent found to be
 sexually abusive); Arnold v. Naughton, 486 A.2d  at 1207 (supervised
 visitation with noncustodial sexually abusive parent may be granted where
 safety of child is assured).
      Regarding the second Mathews criterion, there is no equivalent concern
 in a divorce or custody proceeding with the state's superior ability in a
 termination proceeding to assemble its case against the parents.  Santosky,
 455 U.S.  at 763.  The accused parent, however, may face a former spouse who
 will do or say anything to obtain custody or to prevent the other spouse
 from obtaining custody, sometimes even to the extent that it devastates the
 children's lives.  The fact that custody proceedings involving private
 litigants often pit decidedly interested and sometimes belligerent parties
 against each other militates against terminating parent-child contact based
 on less than clear and compelling evidence.
      Further comparisons between termination and custody proceedings suggest
 that the risk of error from using a preponderance standard is equally
 substantial in both types of proceedings.  First, as in a termination
 proceeding, the trial court in a divorce or custody proceeding "possesses
 unusual discretion to underweigh probative facts" that might favor one of
 the parents.  Id. at 762.  Second, as is well demonstrated here, it is very

 

 difficult for either parent in a custody proceeding to establish a "double
 jeopardy" or "res judicata" defense against repeated claims of abuse or
 other attempts by one parent to cut off the other's contact with the
 children.  Id. at 764.  As a practical matter, because children who report
 sexual abuse often have difficulty pinpointing when the abuse occurred,
 these defenses are limited.  Cf. State v. Ross, 152 Vt. 462, 465, 568 A.2d 335, 337 (1989) (because young children have difficulty specifying dates on
 which sexual abuse occurred, State need show only that offenses occurred
 within statute of limitations).  Third, custody proceedings do not provide
 parents with procedural protections available in termination proceedings,
 such as assigned counsel for indigent litigants and separate stages of
 adjudication.  See 13 V.S.A. { 5232(3) (court shall assign counsel to needy
 persons, including parents, in juvenile proceedings when interest of justice
 requires it).
      In the final analysis, the minimum standard of proof tolerated by due
 process reflects the appropriate risk of error society is willing to allow
 in certain types of proceedings.  Santosky, 455 U.S.  at 755.  The Supreme
 Court has mandated a clear-and-convincing-evidence standard in state
 proceedings involving important interests more substantial than the mere
 loss of money.  Id. at 756.  Even if the state is not a party in custody
 proceedings involving private litigants, state courts pronounce judgments
 that often rely heavily on investigations or evaluations by state agencies
 or private professional groups that serve the public.  Regardless of who
 initiates the proceedings, the interests of both parents -- the potential
 loss of parent-child contact and the countervailing concern for the
 children's safety -- are far more significant than monetary interests.  The

 

 interests of the parent alleging sexual abuse, though important, can be
 protected by ordering supervised visitation between the parent accused of
 abuse and the children.  Therefore, the accused parent should not be
 required to share equally the risk that the court ruled wrongly in deciding
 whether to terminate parent-child contact based on accusations of sexual
 abuse.
      Accordingly, we hold that in divorce or custody proceedings the family
 court may not terminate child-parent contact of either parent absent clear
 and convincing evidence that the best interests of the child require such
 action.  Here, the evidence of sexual abuse was vigorously contested.
 Although we cannot conclude that the court's finding of sexual abuse by a
 preponderance of the evidence was clearly erroneous, we conclude that due
 process required the court either to find the existence of sexual abuse by
 clear and convincing evidence or to permit, at minimum, continued contact
 between the father and the boys consistent with their safety.
                                     B.
      We are also concerned that the family court's order conditioned the
 father's contact with his children on his admitting he sexually abused them.
 The only case we have found that addresses the "difficult question" of
 whether a court in a divorce or custody proceeding may condition visitation
 upon an admission of sexual abuse is Nelson v. Jones, 781 P.2d 964, 969
 (Alaska 1989), where the Alaska Supreme Court found no clear error in the
 trial court's denying visitation as long as the father remained in denial.
 In that case, however, the father stipulated that the court had found "clear
 and convincing" evidence that he sexually abused his daughter, and in fact,
 the evidence of abuse, including the physical evidence, was compelling.

 

 Moreover, in support of its affirmance of the trial court's decision, the
 court cited a New York termination case in which the finding of sexual abuse
 was supported by clear and compelling evidence.  Id. at 970 n.7 (citing
 Duchess Cty. Dep't of Social Servs. v. Mr. G., 534 N.Y.S.2d 64, 65, 72 (Fam.
 Ct. 1988)).
      Regardless of the strength or credibility of the evidence of sexual
 abuse, specifically conditioning the father's future contact with his sons
 on his admitting that he sexually abused Kyle violates his privilege against
 self-incrimination.  See In re M.C.P., 153 Vt. 275, 300, 571 A.2d 627, 641
 (1989); In re J.G.W., 433 N.W.2d 885, 886 (Minn. 1989).  While a court may
 require abusive parents to submit to therapy, and parental rights may be
 terminated without violating the fifth amendment based on the fact that the
 parents' denial of their problem prevented effective therapy, the court's
 specific condition requiring the father to acknowledge conduct for which he
 could be prosecuted must be stricken.  In re M.C.P, 153 Vt. at 301, 571 A.2d 
 at 641.
                                     IV.
      Finally, the father challenges the portion of the court's order
 compelling him to pay certain fees and costs.  Based on affidavits filed at
 the beginning of the proceedings, the court ordered the father to pay, among
 other expenses: (1) up to $3,000 of the mother's reasonable attorney's fees
 and litigation costs incurred between July 1, 1992 and January 22, 1993; (2)
 all fees for the children's attorney incurred in the same time period; and
 (3) all uninsured costs for the Dartmouth Hitchcock family evaluation and
 costs associated with Dr. Cone's court appearances.  The father contends

 

 that the court's order constitutes an abuse of discretion because it was
 based only on undated financial affidavits briefly mentioned in the order.
      In proceedings dealing with motions to modify parental rights and
 responsibilities, the trial court may award attorney's fees in its
 discretion.  Cleverly v. Cleverly, 151 Vt. 351, 358, 561 A.2d 99, 103
 (1989).  The power to allocate expenses among the parties mitigates the
 potentially onerous financial burden that can befall one who seeks to
 promote a child's best interests.  In fashioning an award, the court's
 primary consideration is the financial resources of the parties.  Ely v.
 Ely, 139 Vt. 238, 241, 427 A.2d 361, 363 (1981).
      The court's order and the record show that the court gathered
 information from affidavits filed by the parties as to their respective
 resources.  The court found, and the father does not contest, that he owns
 substantial assets and earns a gross monthly income twelve times that of the
 mother.  The court ordered the mother to file affidavits to substantiate her
 costs and legal fees, and the father could contest any amounts he believed
 were unreasonable.  Moreover, the court was cognizant of the father's child
 support and other obligations under the order, and accordingly capped the
 amount he had to pay for the mother's attorney's fees at $3,000.
 Considering the relative resources of the parties, the order to pay costs
 and other fees was reasonable.  The trial court did not abuse its
 discretion.
      The mother has also moved that the father pay $1,000 of her attorney's
 fees on appeal.  This Court may award reasonable attorney's fees on appeal
 in actions seeking modification of a divorce decree.  See Bibens v. Bibens,
 144 Vt. 287, 289, 476 A.2d 134, 135 (1984).  We believe, however, that in

 

 light of the trial court's findings and order allocating costs and fees, an
 award of costs on appeal is unwarranted.  The court recognized that the
 mother's attorney's fees would likely be "considerably higher" than the
 $3,000 allotted, but limited the award to ensure that the father could meet
 his obligations to pay child support and the other fees and costs imposed on
 him.  For the same reason, we deny the mother's motion for an award of
 attorney's fees for this appeal.
                                     V.
      The peculiar difficulty of this case lies in the confluence of the
 extraordinary gravity of the allegations of wrongdoing, the inconclusiveness
 of the evidence, taken as a whole, on the issue of such wrongdoing, and the
 devastating nature of the remedy imposed.  Despite such difficulties, we
 recognize that the trial court was obliged to reach a decision, and we
 support that decision -- to the extent of our deference to its assessment of
 the credibility of the witnesses -- by our holding that there was sufficient
 evidence to warrant the finding of abuse, and by our recognition that the
 transfer of custody constituted an appropriate exercise of the court's
 discretion.
      We cannot, however, close our eyes to the fact that, where, as in this
 case, the evidence is less than clear and convincing, the assessment of even
 the most conscientious of judges as to where the truth lies may be no more
 than an educated guess.  It may be comforting, in some sense, to pretend to
 judicial omnipotence or infallibility, or else simply to ignore ambiguity
 and doubt.  To do either, however, is to deny reality and, indeed, the very
 humanity of judicial institutions.  Thus, the proper course in a case such
 as this will be found in a resolution that seeks to accomodate the rights

 

 and interests of all concerned, not one that may be appropriate if the court
 managed to get the facts right, but unfathomably destructive if it was
 mistaken.  Limited, supervised visitation, for example, might not provide
 complete psychological protection for these children if, indeed, their
 father was guilty of the conduct alleged.  In our view, however, that risk
 is preferable to an unwarranted death sentence on the relationship between
 this man and his children.
      The overriding theme of the dissent is that we have failed to consider
 the interests of the children.  This criticism is unfounded.  We agree that
 the interests of the children are paramount in custody cases, but we
 recognize that among the interests of children is that of maintaining their
 relationship with both parents.  Morever, the children's interests are not
 the only interests we are obligated to protect.  In balancing these various
 interests, we hold today that an outcome as devastating as the complete
 severance of a parent-child relationship must, for the sake of the children
 as well as for the sake of the parent, rest on a firmer foundation than mere
 preponderance of the evidence.
      The family court's February 16, 1993 order is affirmed in all parts,
 except that the provision therein regarding defendant's right to parent-
 child contact is reversed, and the matter is remanded for reconsideration of
 the visitation issue consistent with this opinion.

                                    FOR THE COURT:


                                    _________________________________
                                    Associate Justice

------------------------------------------------------------------------------
                              Footnotes


FN1.    The family court took judicial notice of findings of that court in
 prior proceedings.


FN2.    Because plaintiff has framed the issue on appeal in terms of abuse
 of discretion rather than violation of due process, we recognize that our
 standard of review is a narrow one -- whether there was a fundamental
 miscarriage of justice we cannot overlook.  See Varnum v. Varnum, 155 Vt.
 376, 383, 586 A.2d 1107, 1111 (1990); V.R.C.P. 61 (defect in court's order
 is not ground for disturbing order unless refusal to do so would be
 inconsistent with substantial justice).  We conclude that this standard has
 been met here, where plaintiff was denied any contact with his children.


FN3.    Although we declined to extend the Paquette holding to a divorce
 proceeding in which both natural parents were seeking custody, Bancroft v.
 Bancroft, 154 Vt. 442, 448, 578 A.2d 114, 118 (1990), the trial court in
 Bancroft had granted the husband substantial visitation rights.  Thus, the
 question of whether, in the context of a divorce or custody proceeding, due
 process requires clear and convincing evidence to terminate either parent's
 right to any parent-child contact was not at issue.


------------------------------------------------------------------------------
                      Concurring and 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-143


 Stephen Mullin                               Supreme Court

                                              On Appeal from
      v.                                      Chittenden Family Court

 Rita (Mullin) Phelps                         September Term, 1993


 Amy M. Davenport, J.

 Cortland Corsones and Therese M. Corsones of Corsones & Corsones, Rutland,
   for plaintiff-appellant

 Alan Rosenfeld, Montpelier, for defendant-appellee


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

      Allen, C.J., concurring and dissenting.  This case affirms the maxim
 that hard cases make bad law.  Although I concur with parts I, II and IV of
 the Court's opinion, I disagree with part III, in which the Court holds
 that, as a matter of federal due process, a restraint on parent-child
 contact for an indefinite period must be based on findings supported by
 clear and convincing evidence.(FN1)
                                     A.
      First, I believe the Court misconstrues the order in holding that it
 effectively terminates the father's parental rights.  In its provisions for
 contact between father and sons, the family court curtailed the father's

 

 visitation rights for an indefinite period.  It did not terminate those
 rights.  Though harsh, the family court's order leaves open the possibility
 of limited contact and the establishment of regular visitation.  Moreover,
 the order is not final and the possibility of increased contact exists.
      In contrast, termination of parental rights is "final and irrevocable,"
 and entails state action both severe and irreversible.  Santosky v. Kramer,
 455 U.S. 745, 759 (1982).  In a termination action, the State takes an
 active, partisan role and "marshals an array of public resources" to make a
 case against the parents.  Id. at 760.  "The State's ability to assemble its
 case almost inevitably dwarfs the parents' ability to mount a defense."  Id.
 at 763.  Custody proceedings, in which the parents contest the right to
 contact with the children, do not ordinarily entail such disparities of
 resources.  Furthermore, the State plays only a tangential role in custody
 proceedings, notwithstanding the fact that the parties may "rely heavily on
 investigations or evaluations by state agencies or private professional
 groups that serve the public."  Mullin v. Phelps, No. 93-143, slip op. at 21
 (Vt. June 24, 1994).  Finally, as the Santosky Court noted, termination of
 parental rights works potentially far-reaching consequences, including
 permanent loss of the right to support and maintenance, the right of
 inheritance, and all other rights "'inherent in the legal parent-child
 relationship.'"  Santosky, 455 U.S.  at 760 n.11 (quoting In re K.S., 515 P.2d 130, 133 (Colo. Ct. App. 1973)).  Here, the family court's order
 regarding contact in no way affects these attributes of the parent-child

 

 relationship.  In short, the significant differences between termination
 proceedings and custody proceedings precludes treatment of the parent-child
 contact provision as a termination of parental rights.  The Santosky due
 process analysis was tailored for the latter -- it does not fit the former.
                                     B.
      On appeal, the father has questioned the family court's exercise of
 discretion in imposing the terms for contact with his children, and the
 majority tacitly accepts the family court's discretion to fashion custody
 determinations.  Nickerson v. Nickerson, 158 Vt. 85, 88-89, 605 A.2d 1331,
 1333 (1992).  Rather than confront the propriety of that court's exercise of
 discretion in limiting the father's contact, the Court embarks upon a due
 process analysis guided by Santosky v. Kramer.  Santosky held that due
 process mandates, at minimum, that the State make its case for permanent
 termination of parental rights by clear and convincing evidence.  455 U.S.  at 769.  As explained above, I harbor significant doubt that Santosky should
 control a due process analysis in this context.  But even accepting that
 Santosky sets forth the appropriate analysis, I do not agree that due
 process mandates an elevated level of proof in this custody proceeding.
      Determining what process is due requires consideration of three
 distinct factors:  the private interests affected, the risk of error
 created by the State's chosen procedure, and the countervailing governmental
 interest in maintaining the challenged procedure.  See id. at 754 (citing
 Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).  The Court acknowledges the
 interest of the children at the outset but then gives short shrift to that
 interest, which should be the compelling concern in custody determinations.
      The Court turns first to an analysis of the private interests involved.
 I readily agree that parents and children share a fundamental liberty
 interest in association free of state interference.  However, the child also

 

 has a vital interest in personal safety and physical and emotional well-
 being.  See In re A.D., Jr., 143 Vt. 432, 435-36, 467 A.2d 121, 124 (1983).
 The Court disregards this separate interest, presuming, as the Santosky
 Court did, that "until shown otherwise," it is in the children's best
 interest to remain in the custody of their parents.  In assessing the
 private interests involved, the Santosky Court justified its assumption that
 parents and child share an identity of interests based on the bifurcated
 nature of the termination proceedings at issue.  455 U.S.  at 759-61.  In
 those proceedings, the State seeks termination of all rights, and must make
 a threshold showing that the parents are unfit before a court may assume
 that the interests of parents and children diverge.  See id.  Custody
 proceedings in divorce cases are a different matter.
      In custody modification proceedings, the extant custody arrangement is
 presumed to be in the best interest of the children, absent proof of a
 substantial change in material circumstances and proof that an alternative
 arrangement would better promote that interest.  See 15 V.S.A. {{ 665, 668.
 This Court affirms the family court's conclusion that a substantial change
 in circumstances has occurred, based in part on findings of abuse at the
 hands of the father.  Only at this point may the family court consider
 alternative arrangements based on the best interest of the children, Kilduff
 v. Wiley, 150 Vt. 552, 553, 554 A.2d 677, 678 (1988), including severe
 restraints on parent-child contact.  In addition, once the finding of
 substantial change based on an abusive situation has been made, the
 interests of children and parent diverge and the distinct interests of the
 children must be taken into account.  I do not argue at this point in the
 analysis that the finding of abuse by a preponderance of the evidence

 

 suffices to permit "effective termination" of parent-child contact.  The
 finding should, however, dictate that the interests of the children in
 personal safety and freedom from abuse be taken into account as distinct
 private interests.  Indeed, the Court points out that maximum contact with
 both parents following divorce furthers the best interest of the children,
 "unless direct physical harm or significant emotional harm . . . is likely
 to result from such contact."  15 V.S.A. { 650 (emphasis added).  This Court
 also has held that "'a child is a person, and not a subperson over whom the
 parent has an absolute possessory interest.  A child has rights too, some of
 which are of a constitutional magnitude.'"  Paquette v. Paquette, 146 Vt.
 83, 89, 499 A.2d 23, 28 (1985) (quoting Bennett v. Jeffreys, 356 N.E.2d 277,
 281, 387 N.Y.S.2d 821, 824-25 (1976)).  I must conclude that the interests
 of the children cannot be subsumed in the interests of the parents in the
 context of this custody proceeding, but must be considered as a distinct
 element in the due process calculus.
      Regarding the nature of the private interests involved, the father has
 a significant interest in maintaining contact with the children.  The Court
 likens the mother's interest to that of the State, a countervailing interest
 in protecting the children from abuse.  Conceding that "a parent's interest
 in protecting his or her children is arguably more compelling than the
 similar state interest in a termination proceeding," the Court downplays
 this interest by suggesting that it may be satisfied through supervised
 visitation instead of "effective termination" of contact.  The point of this
 due process analysis, though, is to discern what level of proof is required
 before the family court may severely constrain parent-child contact, not to
 consider alternatives to this constraint, a matter committed to the

 

 discretion of the family court.  Thus, alternative dispositions are
 irrelevant to the due process analysis, and the mother's interest in
 protecting her children from abuse deserves greater weight than this Court
 would afford.  Finally, there must be consideration of the interests of the
 children in continued contact with both parents and freedom from abuse.  In
 sum, a constitutionally sufficient due process analysis must take into
 account the private interests of the father, the mother, and the children.
 The Court's failure to examine all these interests unduly favors the father
 at the expense of the children.
      Moving into the second part of the Mathews analysis, the Court examines
 the risk of error from a preponderance standard, and what an erroneous
 deprivation would exact from each parent.  Since the custody proceeding
 entails an adversary contest involving the parents and the children, "the
 relevant question is whether a preponderance standard fairly allocates the
 risk of an erroneous factfinding."  Santosky, 455 U.S.  at 761 (emphasis
 added).  Having discounted the separate interests of the children in
 maintaining contact with both parents and in living free from abusive
 treatment, the Court looks only to the harm that would befall each parent
 from an incorrect finding.  But as explained above, the significant
 differences between the termination proceedings in Santosky and the custody
 proceedings in this case demand consideration of the harm that could come to
 the children through erroneous findings.(FN2)

 

      Unquestionably, the father faces a significant loss if the family court
 incorrectly "terminates" his right to contact with the boys by a
 preponderance of the evidence.  Unlike the termination proceedings in
 Santosky, however, the custody order at issue in this case is not a final
 order; the father may move for modification at a later date.  Ostensibly,
 the mother loses nothing if the father's rights are erroneously curtailed.
 In this scenario, the children suffer harm to their interest in continued
 regular contact with their father.
      If the family court erroneously finds, by a preponderance of the
 evidence, that the abuse did not occur, the father's contact with the
 children remains intact.  The mother suffers harm to her interest in
 protecting the children from abuse.  The burden of an erroneous finding
 falls heaviest on the children, because continued contact with the abusive
 parent places the children at risk of contact inimical to their physical,
 emotional, and psychological well-being.
      Proving sexual abuse by any standard poses a formidable task; proof by
 a preponderance of the evidence should not be equated with mere allegation.
 As shown above, even this standard subjects the children to a considerable
 risk of harm.  Implicit in the Court's analysis is a consideration of "the
 probable value, if any, of additional or substitute procedural safeguards,"
 in this case a higher burden of proof.  Mathews v. Eldridge, 424 U.S. 319,
 335 (1976).  Raising the standard of proof to clear and convincing evidence
 allocates a disproportionate risk of error to the children.  Factfinding in
 such cases poses an extremely difficult task.  The evidence in this case,
 with recanted stories of abuse and conflicting opinions by the experts, is
 anything but atypical.  Requiring proof of the abuse such that there is no

 

 serious or substantial doubt about its existence will unduly deprive the
 family court of the power to fashion remedies for the protection of
 children.  Therefore, I conclude that though the risk of erroneous
 deprivation may fall hard on the father, anything more than a preponderance
 of the evidence standard unfairly exposes the children to risk of greater
 harm.
      Though the Mathews test comprises three parts, each of which the
 Santosky Court examined, the Court fails to consider the third factor, "the
 countervailing governmental interest supporting use of the challenged
 procedure."  Santosky, 455 U.S.  at 754.  The State, as parens patriae, "has
 a legitimate and compelling interest in the safety and welfare of the
 child."  In re A.D., Jr., 143 Vt. at 435, 467 A.2d  at 124; accord Santosky,
 455 U.S.  at 766.  The legislature has adopted as an overarching public
 policy that custody determinations be fashioned according to the best
 interests of the child.  See 15 V.S.A. { 665(b); Bissonette v. Gambrel, 152
 Vt. 67, 70, 564 A.2d 600, 602 (1989); see also 15 V.S.A. { 650 (maximum
 parental contact in child's best interest unless child would suffer physical
 or significant emotional harm).  Mindful of this policy, this Court has
 stressed that in custody determinations, "[t]he focus of the court's
 decision must be the best interest of the child, not equity between the
 parties."  Bissonette, 152 Vt. at 70, 564 A.2d  at 602.  Where the rights of
 the parent and the best interest of the child cannot be reconciled, "the
 best interests of the child must be given first priority."  Paquette v.
 Paquette, 146 Vt. 83, 88, 499 A.2d 23, 27 (1985).  The State's significant
 parens patriae interest, which in large part seeks to protect children from

 

 abusive environments, is well served by a preponderance of the evidence
 standard.
      In my view, a complete due process analysis leads to the conclusion
 that a departure from the preponderance of the evidence standard is
 unwarranted.  On balance, an uncertain enhancement in the truth-finding
 function of the court cannot justify a greater risk of harm to the
 countervailing interests of the child, the parents, and the State in the
 child's welfare and safety.  "[T]he minimum standard of proof tolerated by
 the due process requirement reflects not only the weight of the private and
 public interests affected, but also a societal judgment about how the risk
 of error should be distributed . . . ."  Santosky, 455 U.S.  at 755.  In
 light of the overriding public policy to promote the best interests of
 children, children should bear no more than the already considerable risk
 of error they face under the preponderance of the evidence standard.
                                     C.
      The enhanced proof standard also creates practical problems that the
 Court fails to consider.  The Court establishes a rule, of constitutional
 dimension, that "effective termination" of parental rights in a custody
 proceeding must be based on clear and convincing evidence, but neglects to
 draw the line between permissible limitation and effective termination.  The
 trial courts are left with no practical guidance as to what would bring the
 elevated proof standard into play.  Today's ruling needlessly complicates
 the already formidable task of formulating custody determinations that
 further the best interests of the child.
      I acknowledge the problem created by acrimonious parents leveling
 accusations of abuse to secure custody, but an elevated burden of proof will

 

 not resolve this problem.  If the real problem is the breadth of the court's
 discretion to make custody determinations, that problem should be addressed
 directly, not through a skewed due process analysis.  I do not believe that
 the Fourteenth Amendment demands that the family court find abuse by clear
 and convincing evidence before severe restrictions may be placed on parent-
 child contact.
      The family court has broad discretion in custody matters.  Myott v.
 Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988).  The record in this
 case might suggest a result different from that reached by the family court,
 but the proper role of this Court is to review for an abuse of discretion,
 not to substitute our judgment for that of the family court.  We search only
 to determine whether the family court erroneously exercised its discretion,
 exercised it upon unfounded considerations, or exercised it unreasonably in
 light of the evidence.  I cannot conclude that it did and would affirm.
      Justice Morse joins in this dissent.


                                    _____________________________
                                    Chief Justice

------------------------------------------------------------------------------
                                Footnotes


FN1.    I agree that the requirement that the father admit the sexual abuse
 unacceptably compromises his right against self-incrimination.


FN2.    The Court reasons that "custody proceedings involving private
 litigants often pit decidedly interested and sometimes belligerent parties
 against each other[, which] militates against terminating parent-child
 contact based on less than clear and compelling evidence."  The same may be
 said for a change of custody, which can occur based on a preponderance of
 evidence of a substantial change of circumstances and a showing that the
 change is in the best interest of the child.  See 15 V.S.A. {{ 668, 665.

------------------------------------------------------------------------------
                          Concurring and 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-143


 Stephen Mullin                               Supreme Court

                                              On Appeal from
      v.                                      Chittenden Family Court

 Rita (Mullin) Phelps                         September Term, 1993


 Amy M. Davenport, J.

 Cortland Corsones and Therese M. Corsones of Corsones & Corsones, Rutland,
   for plaintiff-appellant

 Alan Rosenfeld, Montpelier, for defendant-appellee


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


      Morse, J., concurring and dissenting.   The Court approves the
 preponderance standard of proof to establish a change of custody based on
 the custodian's sexual abuse of his child, but then decides that, once the
 abuse is proven, the family court may not fashion the remedy best suited to
 help the children adapt unless a higher standard of proof (clear and
 convincing) is met.  This Court's direction to the family court is to
 refashion a visitation award.  Such a "Catch 22" is an odd way to promote
 the welfare of children caught in an abusive relationship with a parent.
      The family court's obedience to today's mandate will force the children
 -- against the advice of their therapists -- to visit their abusive father,
 with all of the attendant emotional trauma.  The family court originally

 

 left future visits by the father with the children in the decisional hands
 of the children's therapists.  The order reads:
             Plaintiff shall have no right to a regular schedule
           of parent child contact with the minor children until
           such time as he acknowledges responsibility for his
           abuse of Kyle, engages in appropriate sex offender
           treatment including individual and group therapy as
           recommended by his therapist and visits between himself
           and the child are recommended by the child's therapist.

 Given that the Court has stricken the clause requiring the father to admit
 the abuse, I suggest that the remainder is the only workable remedy.  The
 abusive father may now visit -- I presume in a supervised way -- even though
 it may be emotionally harmful to the children.  The Court mandates that the
 family court "permit, at minimum, continued contact between the father and
 the boys consistent with their safety."  Given the Court's unwillingness to
 permit, as originally ordered, the mental health professionals to protect
 the boys' emotional health, "safety" must be intended to refer solely to
 physical well being.
      I submit the only way out of this hopeless mess is to give authority to
 someone in a responsible position to help the children -- a kind of
 "receiver in family bankruptcy."  By requiring a recommendation from each
 child's therapist prior to visitation, the family court did exactly that.  I
 dissent to this Court's undoing it.




                                         _______________________________
                                         James L. Morse, Associate Justice