Rodrigue v. Brewer – Child Custody – Joint Custody
Rodrigue v. Brewer, 667 A.2d 605 (Me. 1995).
NATURE OF THE CASE: This family law case involved an appeal from a court order of shared custody.
FACTS: H and W were married in 1989, separated less then three months later, and permanently separated in 1992 when their son was 2.5 years old. The court found that while shared parental rights were called for, their inability to separate themselves from their marital conflicts compelled the court to establish a detailed plan for parental contact and to allocate certain functions between parents. The court ordered that the primary residence was to change every four weeks. W was granted parental rights over religious upbringing and H was granted parental rights over education. The Superior court reviewed the order and found that the order was not clearly erroneous or an abuse of discretion. This appeal resulted.
ISSUE: Is it a clear abuse of discretion for a trial court to disregard expert testimony?
RULE OF LAW: No. It is not a clear abuse of discretion for a trial court to disregard expert testimony.
HOLDING AND DECISION (Dana): W complains that it is not in the child’s best interests for his primary residence to alternate monthly between bilingual households. However, the trial court determined that both parents were fit but that they were merely unable to get along with each other and that at the time of the hearing the child was rotating between households every two or three days. The trial court merely allocated responsibilities to each parent and decreased the frequency of transfers to one per month. There was expert testimony to support this decision although there was also expert testimony to not support the decision. From this record there is nothing that was clearly erroneous or an abuse of discretion by the trial court.
DISPOSITION: Affirmed.
Dissent (Rudman): A court must act within the bounds of discretion in assigning parental rights and responsibilities. The Legislature has determined that the court apply equity based principles to custody determinations. A judge is not a mere arbiter. A judge must act as parens patriae to do what is best for the interests of the child.
The testimony of the three experts does not support the court’s order assigning shared responsibility. The linguist’s testimony is to be discarded as he refused to give an opinion on anything other than the virtue of bilingual education and he properly and justly refused to give an opinion about shuttling the child back and forth every four weeks. The other experts advised against joint custody unless there was a third party mediator involved. The parties have been determined to be incapable of resolving their own conflicts.