Brennan v. Brennan

Brennan v. Brennan  (95-653); 165 Vt 525; 685 A.2d 1104

[Opinion Filed 04-Oct-1996]

[Motion for Reargument Denied 24-Oct-1996]

       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. 95-653


Richard Brennan                                   Supreme Court

                                                  On Appeal from
    v.                                            Addison Family Court

Cheryl Brennan                                    June Term, 1996


Matthew I. Katz, J.

Andrew D. Mikell of Mikell & Hartsuff, Burlington, for plaintiff-appellee

D. Michael Mathes of Conley & Foote, Middlebury, for defendant-appellant


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


       ALLEN, C.J.   The mother of a minor child appeals from an order of the
  Addison Family Court awarding custody of the child to the father.  We
  reverse.

       The parties married in 1986 and have one child, Cody, who was three
  and a half years old at the time of the final hearing in November 1995. 
  Following the separation of the parties, the child lived with the mother in
  the marital home, and the court found that she was the primary caregiver. 
  Both parties have present relationships.  According to the court, the
  father's girlfriend, who attended the hearing, "seems quite clearly
  attached to Cody."

       In findings central to its decision, the court focused on the daily
  schedules of the parents. The mother, who is employed in an unskilled
  position and works from 6:00 a.m. to 2:30 p.m., takes Cody to the day care
  provider by 5:15, while he is still sleeping.  Cody usually awakens around
  7:00 and dresses himself.  The day care provider gives him breakfast, and
  the two wait for the other children to arrive.  The mother usually picks
  Cody up around 3:15.  The court compared this scenario with one posed by
  the father, who works in a skilled position and begins work at 7:00 a.m. 
  The court noted that the father and his girlfriend have found a day care

 

  provider near their home and places of employment.  The court further found
  that attending day care while in the father's custody would have two
  advantages for Cody.  He would be awakened and taken to day care a "full
  hour later each day."  In addition, the work schedule of the father's
  girlfriend would allow her to stay home with Cody two days one week and
  three days the next week. Thus, if the father were awarded custody, Cody
  would spend five days, instead of ten, in day care.

       In its conclusions, the court cited deBeaumont v. Goodrich, 162 Vt.
  91, 101, 644 A.2d 843, 849 (1994), for the proposition that the weight to
  be accorded the primary-caregiver relationship must be based on the likely
  effect of a change of custodian on the child.  "Only when there is no
  evidence of that effect should the court ordinarily find that the child
  must remain with the primary caregiver if fit."  Id; see also Harris v.
  Harris, 149 Vt. 410, 419, 546 A.2d 208, 214 (1988) (in absence of evidence
  of likely effect of change of custodian on child, ordinarily court should
  find that child should remain with primary custodian if fit).  The court
  then concluded that there was no significant, direct opinion evidence
  presented regarding the likely effect on Cody of a change of custodian.  It
  noted that it was "unable to find from the testimony that Cody will have
  one or another psychological manifestation were his physical custody to be
  changed."  Nevertheless, the court awarded custody to the father primarily
  because, given the mother's work schedule, the child would have more total
  time with a parent and less time in day care if the father were awarded
  custody.  The present appeal followed.

       The court's decision cannot be reconciled with the principle in
  deBeaumont, which the court cited but did not follow.  Nor can the court's
  decision be reconciled with its findings.  The court found that the
  mother's role as caregiver "is certainly significant, given the child's
  young age," and that the quality of the child's relationship with the
  primary care provider "should be entitled to great weight unless the
  primary custodian is unfit."  The court stated with respect to the changes
  that would occur if the father obtained custody that "[w]hile such
  change[s] certainly cannot be presumed to be a good thing, per se, we
  should also not presume them to be a substantial negative in the absence of
  evidence on the point."  The court then concluded that "it

 

  does not take expert testimony to persuade us there is most probably a
  substantial bond between mother and son, stronger than that with father." 
  Each of these additional conclusions either militated against a change in
  the custodial status quo, or at least failed to support it.

       In addition, the court's analyses under the criteria set forth in 15
  V.S.A. § 665(b) were not consistent with its decision.  The court's
  findings under § 665(b)(1), regarding the relationship of the child with
  each parent and the ability and disposition of each parent to provide the
  child with love, affection, and guidance, were, at best, neutral.  The only
  findings that appeared to bear directly on the relationship between the
  father and the child were limited.  The court found that the father has
  performed the usual parental tasks, but not as frequently as the mother
  has.  It also found that the father seems "alert to ordinary parenting
  responsibilities, and able to effectively discharge them."

       The court's findings were also basically neutral as to provision of
  food, clothing, medical care, and other material needs (§ 665(b)(2)) and
  meeting future developmental needs (§ 665(b)(3)).  As to § 665(b)(4), the
  quality of the child's adjustment to the child's present housing, school,
  and community, and the potential effect of any change, the court stated
  that "[t]here was no evidence suggesting other than normal adjustment to
  Cody's present housing, day care and extended family."

       The court explained its rationale as focused on § 665(b)(6), the
  quality of the child's relationship with the primary care provider, if
  appropriate given the child's age and development, and § 665(b)(7), the
  relationship of the child with any other person who may significantly
  affect the child.  The only specific explanation for the court's outcome,
  however, boiled down to a comparison of the parties' respective daily
  timetables.  It noted that Cody and the mother share fewer than five hours
  per day when they can interact and that most of Cody's waking hours are
  spent with a day care provider.  The court observed that the mother's time
  with Cody is further limited because Cody spends alternate weekends and one
  day each week with the father.  It concluded that "[g]iven household
  chores, fatigue, other people in the household, Mom is in the unfortunate
  situation -- not at all her fault -- of having relatively little

 

  time for Cody."  The court added that if the father obtained custody, as
  among the two parents and the day care provider, he and his girlfriend
  "would be spending the greatest amount of time with Cody."

       The court's rationale predominantly rests on rudimentary
  hour-counting.  Moreover, the decision focuses unduly on the economic
  status of the mother, who presently works in an unskilled position.  "[I]n
  an era when over 50 percent of mothers and almost 80 percent of divorced
  mothers work, the courts must not presume that a working mother is a less
  satisfactory parent or less fully committed to the care of her child." 
  Burchard v. Garay, 724 P.2d 486, 492 (Cal. 1986) (footnotes omitted); see
  also Wellman v. Dutch, 604 N.Y.S.2d 381, 383 (N.Y. App. Div. 1993) (no
  evidence that mother's routine of transporting child early in morning to
  aunt's home for care while mother was working would have adverse effects on
  child's development, despite fact that husband's present spouse would be
  home all day), appeal dismissed, 610 N.Y.S.2d 155 (N.Y. 1994); Linda R. v.
  Richard E., 561 N.Y.S.2d 29, 33 (N.Y. App. Div. 1990) (custody-seeking
  mother who works outside home should not be penalized for her employment
  any more than should father); Gerber v. Gerber, 487 A.2d 413, 416 (Pa.
  Super. Ct. 1985) (parent's work schedule may not deprive that parent of
  custody if suitable arrangements are made for child's care in parent's
  absence).

       The father also addresses the court's finding that there was no
  significant, direct opinion evidence presented on the question of any
  likely effect on Cody of a change of custodian by arguing that, in spite of
  that finding, the court's decision fell within its broad discretion.  He
  argues that the judge's "`common sense, his experience in life, and the
  common experience of mankind'" suffice to inform that discretion.  Harris,
  149 Vt. at 416, 546 A.2d  at 213 (quoting Krug v. Krug, 647 S.W.2d 790, 793
  (Ky. 1983)).

       The father takes our holding in Harris out of context.  The question
  in that case was whether expert testimony was needed or useful in informing
  the court about consideration of sexual conduct evidence.  We did not imply
  in Harris that a judge's intuition is a fair substitute for evidence on the
  question of the impact of a custody change on a child.  The argument is a

 

  tacit concession that the decision of the court is not supported by
  sufficient evidence.

       Reversed and remanded for entry of an order awarding custody to the
  mother and for a determination of appropriate noncustodial contact for the
  father and child support.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice