holding that finding of sexual abuse by mere preponderance of evidence is insufficient process for court in divorce case to terminate all parent-child contact; emphasizing that although due process analysis relied heavily on United States Supreme Court case, holding was grounded on Chapter I, Article 10 of Vermont Constitution
How later courts described this case
- holding that finding of sexual abuse by mere preponderance of evidence is insufficient process for court in divorce case to terminate all parent-child contact; emphasizing that although due process analysis relied heavily on United States Supreme Court case, holding was grounded on Chapter I, Article 10 of Vermont Constitution
- explaining that father’s reliance on substantial portions of the record to illustrate evidence detracting from the court’s findings simply demonstrated “the existence of conflicting evidence,” but did “not satisfy the father’s burden of showing the absence of credible evidence” for the court’s decision
- explaining that on review, “[f]actual findings are viewed in a light most favorable to the prevailing party, disregarding modifying evidence,” and findings will not be disturbed unless appellant shows that “there is no credible evidence” to support them (quotations omitted)
- stating that trial court’s findings are viewed most favorably to prevailing party and will not be disturbed on appeal unless there is no credible evidence to support them, even if they are contradicted by substantial evidence
Written by the judges who cited it.
The opinion
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 *277 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.