Spaulding v. Butler

782 A.2d 1167, 172 Vt. 467, 2001 Vt. LEXIS 268

• Court: Supreme Court of Vermont
• Decided: August 31, 2001
• Docket: 99-164
• Status: Published

Opinions

Skoglund, J.

Michele Butler (mother) appeals from a Rutland Family Court order granting Jon Spaulding’s (father) motion to modify parental rights and responsibilities, and awarding sole legal and physical parental rights and responsibilities of the parties’ son, Nathan, to father, and visitation to mother. Mother argues that the court erred in finding that a real, substantial and unanticipated change of circumstances had occurred, see 15 V.S.A. § 668, and in concluding that awarding custody to father was in Nathan’s best interests. See id. We affirm in part, reverse in part, and remand.

I.

The trial court found the following facts.¹ Mother has a child, Michael, from a previous relationship with a man named Pero. Michael is developmentally delayed. Mother’s relationship with Pero ended when mother obtained a relief-from-abuse order against him. Father was previously married. When this marriage ended, his ex-wife obtained a relief-from-abuse order against father, which was later amended to include a restraining order against father.

Mother and father met in January 1993. One month later, when Michael was approximately two years old, mother and Michael moved in with father. Mother became pregnant with the parties’ child, Nathan. However, the relationship was problematic. According to the court, father has a temper, which revealed itself in violent ways, e.g., when scratched by Michael’s cat, he got angry and shot and killed the cat. In May 1993, mother called some friends to come and help her leave the home. While on the phone with mother, the friends heard father “raging in the background and threatening them with a bullet if they came.” Father threw mother’s belongings out of the house “in a rage.” After two weeks, father convinced mother to return, which she did, but only briefly. She eventually left and obtained a relief-from-abuse order against father on the grounds that he had abused both her and Michael, including beating him with a belt. At the hearing resulting in the order presently on appeal, father testified that the parties never argued and that he could not understand why mother left him. The court found that father “was not credible in his testimony” and that “Mr. Spaulding physically abused Michael, and was threatening to Ms. Butler and placed her in fear of imminent serious physical abuse.”

Nathan was born on December 7, 1993. Father filed a parentage case, seeking to establish parentage and parental rights and responsibilities with respect to Nathan. In January 1994, mother was awarded temporary sole legal and physical rights and responsibilities. Father was denied visitation. At mother’s request, the court also amended the June 1993 relief-from-abuse order to include a no-stalking provision. In March 1994, father obtained an order providing for visitation.

In the spring of 1994, father entered into a relationship with his present wife, Penelope, who became actively involved in issues concerning Nathan. She took over arranging father’s visits with Nathan and wrote letters to mother telling her how she should be taking care of Nathan. The court found that Penelope’s involvement interfered in father and mother’s ability to communicate directly over Nathan.

In June 1994, at mother’s request, the court renewed the provisions of the June 1993 relief-from-abuse order, including the no-stalking provision.

In July 1994, mother began therapy with Meredith McCartney of Community Mental Health Center, to get help coping with Michael’s special needs. This therapy continued, on a regular basis, for approximately a year. In this regard, the court found mother to be a concerned parent, willing to take advantage of available resources, but somewhat “overwhelmed by powerful forces around her.” It is not clear what powerful forces the court was referring to. Mother brought both boys to the sessions and “[i]n Ms. McCartney’s presence, [mother] was able to use appropriate parenting methods in managing the two children. Nonetheless, Michael took up so much of her attention, due to his special needs, that Nathan received less attention.”

In September 1994, the court issued a final order granting sole legal and physical parental rights and responsibilities of ten-month-old Nathan to mother, and unsupervised visitation to father. Pursuant to the parties’ stipulation, the court deleted the no-stalking provisions of the June 1994 relief-from-abuse order.

Over the next year, the Spauldings, father and Penelope, began taking pictures of Nathan to document when he arrived for a scheduled visit dirty or bruised. At some point during this period, testing showed that Nathan began to be developmentally delayed.

During a visit in August 1995, father noticed that Nathan had a bad diaper rash. Mother had been aware of the rash and used an over-the-counter ointment to treat it. When that failed, she sought help from a doctor who prescribed a prescription ointment. Father took Nathan to the hospital and was given an ointment that began to clear up the rash. The following weekend, father noticed, the rash was bad again. This pattern persisted. The court found that mother had “pursued appropriate care for treatment of the rash, but that she was not able to follow through consistently in order to clear up the rash, and that as a result, Nathan repeatedly suffered a severe and painful rash that was preventable.”

In August of 1996, Nathan was tested for lead poisoning and found to have unacceptable levels of lead in his blood. At the hearing, mother testified that she was later contacted and told that there was an error in the test. The court made no finding on this issue, stating: “There is no indication one way or another whether it is accurate that there was an error.” In September 1996, mother, Nathan and Michael returned to weekly therapy with Ms. McCartney because the boys were biting each other on a regular basis.

In April 1997, during a visit, father found marks on Nathan’s body where Michael had bitten him, and took Nathan to the hospital. The court found that father “was dishonest about Nathan’s custody status,” telling hospital personnel that he had custody of Nathan. The hospital reported the marks to SRS. Father filed a relief-from-abuse petition in which he requested transfer of custody to himself. After hearing, the court found abuse based on mother’s failure to prevent Michael from hurting Nathan and issued a relief-from-abuse order transferring custody to father and providing for mother to have supervised visits with Nathan for four hours a week. Father then filed the motion to modify the parentage order presently at issue. In the order now . on appeal, the court found that mother had been aware of and concerned about the bite marks and had shown them to a public health worker at a clinic. In August 1997, SRS completed its investigation of the bite marks and found father’s allegations of abuse unsubstantiated. In September 1997, the parties stipulated to unsupervised visits between mother and Nathan for three weekends a month, and to a professional evaluation of mother’s interactions with Nathan.

On October 14, 1997, Nathan came back from a visit with mother with marks on his body; mother told father the marks were cold sores. Father took Nathan to the hospital, where it was determined that the marks were cigarette burns, and a report was made to SRS. The following week, father learned that Nathan had fallen out of a second-story window during a visit with mother. At that time, mother determined that Nathan was fíne and did not seek medical care. Father reported the fall to SRS and filed a motion to stop visits. In November 1997, the court issued an order terminating Nathan’s visits with mother pending SRS’s investigations of the marks on Nathan’s body and of his fall.

In the meantime, Dr. Peter Aines, a psychologist, had begun evaluating mother, pursuant to the parties’ September 1997 stipulation. He requested supervised visits so he could observe mother and Nathan interacting. A guardian ad litem also supported resumption of visits. However, because the parties could not agree on the arrangements for supervised visits, mother did not visit Nathan for several months. The court found

that a contributing factor was that Ms. Butler, who is a person who tends to be overpowered by others and can be overwhelmed by the needs of her other child Michael, was unrepresented and was being presented with proposals from Mr. Spaulding’s attorney that she not have any contact at all with Nathan until he was ten. Ms. Butler did not pursue seeing Nathan as actively as she might, but she was also dealing with some fairly strong forces working against her. She did not have the ability or strength to overcome those forces and maintain a relationship with Nathan, even though she was being urged on by the evaluator and GAL.

In March 1998, SRS attempted to investigate an allegation that Nathan and another child had been showing each other their private parts in the home of a friend of the Spauldings. Father refused to allow SRS to investigate. According to the court: “The lack of cooperation suggests that [father] is willing to use the SRS reporting mechanism for his own benefit to build a record of abuse of Nathan against Ms. Butler, but he is not open and cooperative when there is any suggestion involving possible claims of abuse connected with his own household.”

In June 1998, after six months without a visit between mother and Nathan, supervised visits were reinstated, the first visit taking place in the evaluator’s office. While acknowledging that it would be hard for Nathan to reestablish a relationship with his mother after not seeing her for so long, the court found that Nathan’s response to this first visit was “beyond what is reasonable to expect” in that he avoided his mother and played only with the evaluator. The court noted that “Mr. Spaulding, with very active involvement on the part of Penelope, has engaged in a long term persistent campaign to cut off any relationship between Nathan and Ms. Butler.” (emphasis added).

Nathan began to show a lack of desire to go on visits. According to the court, this was

not surprising for several reasons. For one thing, he had had extremely limited contact with his mother over the previous seven or eight months. In addition, his experience with supervised visits included the experience of having the Spauldings remain on the premises, with Mr. Spaulding and/or Penelope and some of the Spaulding children walking around and observing what was going on, while he was visiting with Mrs. Butler. . . . Third, the testimony as a whole in this case, and the evaluation of the demeanor of the witnesses, leads the Court to find that the Spauldings had engaged in a campaign of presenting Ms. Butler to Nathan in a very negative light. Rather than encouraging a constructive relationship, they presented her to him as a person who represented potential abuse to him. (emphasis added).

On July 2, 1998, SRS completed its investigation into the cigarette burns and found father’s allegations of abuse unsubstantiated. Initially SRS did substantiate abuse by mother for failing to protect Nathan with respect to his fall from the window. However, in December 1998, SRS reversed itself and determined that insufficient information existed to substantiate allegations of abuse.

In August 1998, father and Penelope got into an argument during which father lost his temper, slapped Penelope in the face and engaged in other threatening behavior. Penelope called the police, who came and defused the situation. When the police went inside to speak with Penelope, they found Nathan lying in a fetal position. Two days later, the Spauldings filed a new relief-from-abuse petition against mother, based on the same allegations as the previous petitions and including a new allegation that Nathan had reported seeing mother and a man engaged in sexually suggestive dancing. Visitation was suspended. After a hearing on the petition, it was dismissed, at which time father became angry and had to be restrained. The court also issued a temporary order providing for visitation between mother and Nathan.

The alleged dancing incident was reported to SRS. SRS and the police decided to interview Nathan about the incident together, and instructed father and Penelope not to talk with Nathan about the interview. The Spauldings apparently did not comply. According to the court:

The police investigator noted that Nathan used words to describe the incident that he did not understand. For example, he talked about breasts but he could not show what breasts were on an anatomically correct doll. The police found it difficult to determine the extent to which Nathan at age four and one-half was accurately reporting anything that might have happened a year to eighteen months earlier. Nathan was able to demonstrate using anatomically correct dolls a sexy kind of dancing between the dolls. It appears that he must have seen something of that nature somewhere. It is not clear where he saw it. Mr. Spaulding has in the past watched “dirty movies” in his home. Penelope is a very religious person and does not do so. At the time this issue arose, Nathan had no unsupervised contact with Ms. Butler for over a year and a half.

At the time the court issued its final order on father’s motion to modify, the police investigation remained unresolved, and the results of SRS’s investigation had not been received.

On October 31,1998, the evaluator attended his second visit between mother and Nathan. By this time the relationship had deteriorated — Nathan refused to interact with mother.

In February 1999, the court granted father’s motion to modify, and awarded father sole parental rights and responsibilities over Nathan and mother supervised visitation for six months, transitioning to unsupervised visitation. The court ordered father to pay the costs of any supervised visitation because it found that he was “primarily responsible for the serious disruptions in the relationship between Ms. Butler and Nathan, including the long-term disruption of visitation.” (emphasis added). Mother moved for reconsideration, which the court denied.

Mother appeals from the final order and from the denial of her motion to reconsider.

II.

“[W]hen reviewing the factual findings of a trial court we view them in the light most favorable to the prevailing party below, disregarding the effect of any modifying evidence, and we will not set aside the findings unless they are clearly erroneous.” Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d 1228, 1230 (1999) (mem.). “We will uphold factual findings if supported by credible evidence, and the court’s conclusions will stand if the factual findings support them.” In re T.L., 169 Vt. 550, 551, 726 A.2d 496, 497 (1999) (mem.). We will, however, reverse if the court’s findings are not supported by the evidence, Johnson v. Johnson, 163 Vt. 491, 496, 659 A.2d 1149, 1152 (1995), or if its conclusions are not supported by the findings. Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998).

When faced with a motion to modify a parental rights and responsibilities order, the court must make a threshold finding that there has been a real, substantial and unanticipated change of circumstances. See Pill v. Pill, 154 Vt. 455, 458-59, 578 A.2d 642, 644 (1990); 15 V.S.A § 668. Once the court has found the requisite change of circumstances, it must determine what arrangement is in the child’s best interests. See Gates v. Gates, 168 Vt. 64, 69, 716 A.2d 794, 798 (1998); 15 V.S.A. § 668. The burden of proving that a change in custody is in the child’s best interests is on the moving party. See Lane v. Schenck, 158 Vt. 489, 497, 614 A.2d 786, 790 (1992). Trial courts have broad discretion in determining the best interests of the child. See Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988).

Mother argues that the court erred both in finding that there had been a real, substantial and unanticipated change in circumstances, and in concluding that awarding custody of Nathan to father was in Nathan’s best interests. We conclude that the court correctly found a real, substantial and unanticipated change in circumstances, but that its conclusion that awarding custody of Nathan to father was in Nathan’s best interests was in error.

In determining that a real, substantial and unanticipated change in circumstances had occurred, the court defined the relevant time period as between September 1994, the date of the modified final parentage order, and April 1997, the date father filed the motion to modify parental rights and responsibilities. During this time period, the court noted that there had been a

pattern of poor care of a severe and painful diaper rash, the severity of which was unnecessary as shown by the improvement in the rash during the weekend visitations with Mr. Spaulding; a pattern of Nathan appearing for visits with Mr. Spaulding with a number of bruises and marks on his body; a lead test indicating lead poisoning of Nathan with no information that the problem had been taken care of; a pattern of biting behavior between Michael and Nathan that had not improved despite the work of Ms. Butler with Meredith McCartney in therapy; delays in Nathan’s developmental milestones as indicated by testing through Triple E and Stepping Stones; and severe bite marks on Nathan from Michael on April 11,1997.

Based on these facts, the court found a real, substantial and unanticipated change in circumstances.

“The moving party has a heavy burden to prove changed circumstances, and the court must consider the evidence carefully before making the threshold finding that a real, substantial and unanticipated change of circumstances exists.” Pill, 154 Vt. at 459, 578 A.2d at 644. Evidence that a child has begun to show signs of developmental delay while in a parent’s custody, coupled with evidence that the parent was not properly addressing the issue or was contributing to it by neglect, for example, would support a finding of a real, substantial, and unanticipated change of circumstances. In this case, the court found that testing of Nathan showed that he had begun to be developmentally delayed. The court further noted that Michael’s needs placed great demand on mother’s time and attention, and that, as a consequence, Nathan received inadequate attention. The court coupled its finding regarding Nathan’s developmental delay with its finding that Nathan suffered from repeated physical injuries, a situation brought about by what the court characterized as “a chronic low level of unintentional neglect” on mother’s part.² Therefore, the court’s finding of a real, substantial and unanticipated change in circumstances finds support in the record.

However, we hold that the court erred in its evaluation of and conclusions regarding Nathan’s best interests. In determining that awarding custody of Nathan to father was in Nathan’s best interests, the court concluded that factors one through four, and factor six, favored father, factors five and eight favored mother, factor seven favored neither parent, but did not decide which parent factor nine favored. According to the court, factors one and three were the primary reasons for its decision that awarding custody of Nathan to father was in Nathan’s best interests. With regard to factor one, “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,” 15 V.S.A. § 665(b)(1), the court stated:

At this point, Nathan has an estranged relationship with his mother. Prior to April of 1997 and the change in custody brought about by court orders, it was a full parent/child interaction, although Nathan’s needs were not able to be met fully due to his mother’s attention being diverted by Michael’s challenging behavior. The events since then have so strained the relationship that it will require time for it to be rebuilt. His mother has strong love and affection for him. . . . Her ability to provide it is limited by the huge demands made on her time and attention by Michael, and by her weakness in the face of powerful forces.

The court determined that father had “a full parent/child relationship with Nathan,” and had demonstrated his love and affection and an ability and willingness to provide guidance. However, it stated:

His ability and disposition to provide guidance is negatively affected by his excessive use of police, SRS and emergency legal procedures to interfere with Nathan having a constructive relationship with his mother. He is willing to lie in order to achieve his objective to become Nathan’s primary parent. Nonetheless, as a whole, this factor favors Mr. Spaulding, (emphasis added).

The court’s conclusion that factor one favors father is undermined by its findings that father was engaged in a long-term, persistent campaign to cut off any relationship between Nathan and mother. It had ordered father to pay the costs of supervised visitation because it found father primarily responsible for the serious disruptions in the relationship between mother and Nathan. Furthermore, the fact that father currently has a full parent/child relationship with Nathan while mother has an estranged relationship is due, in large part, to father’s attempts at alienation.

As we stated in Renaud v. Renaud, 168 Vt. 306, 309, 721 A.2d 463, 465-66 (1998), “[ajcross the country, the great weight of authority holds that conduct by one parent that tends to alienate the child’s affections from the other is so inimical to the child’s welfare as to be grounds for a denial of custody to, or a change of custody from, the parent guilty of such conduct.” Here, the court repeatedly found that father had actively worked to alienate Nathan from his mother. To conclude, then, that father’s success in that regard gives him the advantage in factor one is untenable. See Begins, 168 Vt. at 302, 721 A.2d at 472 (“ ‘[A] parent who willfully alienates a child from the other parent may not be awarded custody based on that alienation.’”) (quoting McAdams v. McAdams, 530 N.W.2d 647, 650 (N.D. 1995) (emphasis in original)); Renaud, 168 Vt. at 309, 721 A.2d at 466 (“a sustained course of conduct by one parent designed to interfere in the child’s relationship with the other casts serious doubt upon the fitness of the offending party to be the custodial parent”).

Under factor two, the court is to consider “the ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment.” 15 V.S.A. § 665(b)(2). The court determined that factor two favored father. According to the court, while mother may be able to provide an adequate material and safe environment if she were not having to meet Michael’s needs as well as Nathan’s, the court found:

[I]t appears that she has a pattern of relationships with men whose behavior threatens the safety of the environment for her children. The facts show that her relationships with Mr. Pero, Mr. Spaulding, and Mr. Havens all produced threatening and abusive environments for her children.

The court noted that father was able to provide an adequate material environment, but that:

The safety of the environment he offers is questionable considering his history of violent domestic relationships in the past, his history of shooting a cat with a gun on small provocation, and the recent incident in which he reacted to stress by slapping his wife and breaking a chair with four and two year old children in the home. There are problems with safety in both homes. This factor favors Mr. Spaulding on the whole because of his better ability to follow through on providing routine basic medical care.

It is confusing at best to fault mother for having relationships with abusers, citing father as one of her lapses in judgment, but nonetheless conclude that awarding custody to father is in Nathan’s best interest. While it is true that mother’s relationship with Pero and with father were abusive, the court found that she responded to each situation by obtaining relief-from-abuse orders against both men. The record is silent as to the resolution of her relationship with Havens. Thus, the court’s conclusion that there is a problem with safety in mother’s home is speculative at best. See In re Farley, 469 N.W.2d 295, 302 (Mich. 1991) (‘When [the mother’s] lawyer questioned the professionals whether [the mother] could, as a single parent, provide a fit home for the children, they dodged a direct response by stating that they were concerned that she would enter into another relationship with a man who might again abuse her and the children. There is no evidence other than myth of such a risk or that [the mother] would do so.”).

On the other hand, the court found that father had threatened his first wife, causing her to obtain a relief-from-abuse order against him; had shot and killed Michael’s cat; had threatened the mother’s friends; had physically abused Michael and threatened mother, placing her in fear of serious physical abuse, thereby causing mother to obtain a relief-from-abuse order against him; had recently physically abused his current wife, Penelope, in front of Nathan, causing Nathan to curl up in a fetal position; had recently flown into a rage in the courtroom and had to be restrained; and generally has a temper. Thus, the court’s findings support its conclusion that the safety of the environment father offers is questionable. Given the above, to the extent the court based its conclusion that factor two favored father on its determination that the risk of violence was equal in both households, its conclusion was in error.

With regard to factor four, “the quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change,” 15 V.S.A. § 665(b)(4), the court stated:

Nathan has been living with Mr. Spaulding and as a member of the Spaulding household for nearly two years. It would be a substantial change for him to leave that household at this point. If he were to move back with his mother, he would be returning to the apartment that he lived in before. Since he has not yet started school, schooling is not an issue. This factor favors Mr. Spaulding.

As with factor one, the court’s conclusion with regard to factor four is tainted because the fact that Nathan has been living with father for two years is due, in large part, to father’s successful attempts at alienation, including his “excessive use of police, SRS and emergency legal procedures to interfere with Nathan having a constructive relationship with his mother.” See Begins, 168 Vt. at 302, 721 A.2d at 472; Renaud, 168 Vt. at 309, 721 A.2d at 466.

With regard to factor six, “the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development,” 15 V.S.A. § 665(b)(6), the court stated:

At this point, Nathan’s relationship with his mother, who was previously his primary care giver, is almost nonexistent and negative. It would not make sense for him to return to her as his primary parent at this time. He has been led to be fearful and distrustful of her. Mr. Spaulding has provided the primary parental care for quite some time pursuant to court orders entered after court hearings. This factor favors Mr. Spaulding.

Again, the court’s conclusion in this regard is undermined by its findings that father intentionally alienated Nathan from mother, thereby eroding mother’s relationship with Nathan and enabling father to become Nathan’s primary caretaker. See Begins, 168 Vt. at 302, 721 A.2d at 472; Renaud, 168 Vt. at 309, 721 A.2d at 466.

Finally, the court did not decide which parent factor nine favored. Under factor nine, the court is to “consider evidence of abuse, as defined in section 1101 of this title, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.” 15 V.S.A. § 665(b)(9). According to the court:

There is evidence of a chronic low level of unintentional neglect on the part of Ms. Butler during the period Nathan was primarily in her care, as well as a risk that if he lives with her he would be exposed to abusive conduct from others with. whom she has relationships. With Mr. Spaulding, there is a risk of exposure to domestic violence as that has been his pattern with all three of the women in his life and the August incident indicates that this continues to be a realistic risk.

The court further noted: “There are risks to Nathan associated with living with his father, specifically there is a risk that Nathan will be exposed to domestic abuse. Unfortunately, such a risk is present in both households, and the risk is approximately equal in both households.” (emphasis added).

As we stated above, the court’s conclusion that there is a risk that, if Nathan lives with mother, he would be exposed to abuse from future boyfriends is speculative at best, while the court’s conclusion that there is a “realistic risk” that father is likely to continue to be violent is supported by its findings. Therefore, the court’s conclusion that the risk of domestic abuse is approximately equal in both households is erroneous. Given the court’s findings, the risk of domestic abuse is clearly greater in father’s household. Therefore, the court should have weighed this factor in mother’s favor.

The court concluded that awarding custody to father was in Nathan’s best interests, despite having specifically found that father was a batterer, a liar, and that he had consciously and deliberately alienated Nathan from mother. As Dr. Aines, the family evaluator, stated in his recommendations, which were submitted to the court:

The Spaulding’s [sic] in their anger and zeal to protect Nathan for [sic] abuse and neglect have alienated him from his mother, and in doing so have contributed significantly to. his emotional difficulties. If he does not buy into the idea that his mother is bad, he faces the fear of losing his father and step mother’s love. This causes unbearable stress for Nathan, relieved only be [sic] ingratiating himself to them. There is the additional difficulty that Mr. Spaulding has in managing the conflict between his dependent needs for attention, care and emotional support and his difficulty being assertive toward women. Physical aggression toward his partners has occurred in his last three sustained relationships. The latest incident of aggression occurred in the presence of Nathan and his stepbrother, Morgan, and this is not in their best interests.

In summary, the court’s conclusion that factors one, two, four, and six favor awarding custody to father is not supported by the findings, and the court’s failure to conclude that factor nine favors mother is erroneous. “An award so flagrantly at odds with the findings simply cannot be allowed to stand.” Begins, 168 Vt. at 303, 721 A.2d at 473. Accordingly, we conclude that the award of parental rights and responsibilities must be reversed, and the case remanded for reconsideration of that issue.³ The family court’s reconsideration should be made in light of the views expressed herein, and should account for any change in circumstances that may have occurred while this appeal was pending. In order to maintain stability for Nathan, however, custody of Nathan shall remain with father, and all orders affecting visitation shall remain in place, pending further order of the family court.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

1 Because the facts and procedural history of this case are so intertwined, we discuss them together.

2 The court also relied on the alleged elevated levels of lead in Nathan’s system. The court, however, heard conflicting evidence on this issue and failed to resolve the dispute with a finding.

3 The dissent contends that, by applying a standard of review which recognizes the broad, but not unbounded, nature of the factfinding and decisionmaking power of the. trial courts, which in this case and in Cloutier v. Blowers results in the reversal of the family court’s decisions, we are in fact transitioning away from deferential and toward de novo review of child custody determinations. In doing so, the dissent mischaracterizes the standard of review applied in these cases, both in theory and effect. Appeals in our judicial system may be founded upon errors of law or findings of fact not supported by the evidence. In family law cases, if the law is applied correctly, the trial judge is accorded a great deal of deference in making a custody decision. That is true for all the reasons cited by the dissent, but it is appropriate to afford that discretion only if the trial judge follows the rules of law that apply to the case. In these cases, errors of law were made. In Cloutier v. Blowers, the court made legal conclusions based on findings not supported by the evidence and others not supported by its own findings. Further, it elevated the best interests of the mother over those of the child. In Spaulding v. Butler, the court made legal conclusions not supported by its own findings. Such errors are for correction by the appellate court. What the dissent is really arguing is that we abandon appeals in cases based on errors of law, and, with that, abandon the role of the appellate court to provide guidance on general principles of law within which discretion may be exercised, in favor of a system that sweeps all questions in family cases under the abuse of discretion standard. If we adopted the dissent’s approach, we could affirm every ease, given the trial court’s broad discretion and the deference afforded its decisions. The result of such an approach would be no meaningful appeal in family cases. Further, we would thereby increase, not decrease, the decisional disparities that can result in family cases. As acknowledged in each of these decisions, the discretion enjoyed by the family court is not absolute — the court may not overstep the legal boundaries which provide the authority for the decisions it renders. At the very least, the role of the appellate court is to ensure that the same rules and protections of law, including the right to a fair hearing under the due process clause, is available to litigants in family eases. It is just as important in a family ease to review the findings and the record as it is in a criminal or tort case. Necessarily, this will result in reversals that may cause upheavals in the lives of children and families, but that is not a reason, in and of itself, to abandon our role as a meaningful appellate court.