T.M.C. v. S.A.C.

RABINOWITZ, Justice,

concurring.

I agree with this court’s holding that a trial court, on its own motion, can find a change of circumstance in a child custody case. Nevertheless, on the basis of the superior court’s findings, and study of the record, I would take the unusual step of retaining jurisdiction, and ordering the parties to brief whether or not the superior court’s findings relating to sexual abuse of the parties’ child are clearly erroneous.1 *320Given the paramount importance accorded to the welfare and best interests of the child I think it imperative that this sexual abuse issue be reviewed by this court before the superior court’s custody ruling is finalized.

. The superior court, in part, made the following findings regarding sexual abuse:

7. Physical placement has been with [S.A.C.]. It is impossible to absolutely prove the negative, that there has been no child sexual abuse. In our system, the burden of proof is placed on [T.M.C.] as moving party, to prove that it is more likely than not that [K.C.] is at risk, and that [S.A.C.] has failed to take precautions for her safety. The court has considered whether it was reasonable for [S.A.C.] not to believe [K.C.] was abused, and whether she has acted reasonably whether she believes it or not.
8. The evidence indicates that there was a report from [K.C.] and that [T.M.C.] told lots of people about it including Dr. [A]. Dr. [A] has a reputation for overreacting and findings [sic] things others don’t believe are present.
10. The content of the first interview was inconclusive. Although [K.C.] reported her bottom and vagina were touched and that [S.A.C.’s boyfriend] peed on her we don’t know if these statements were coached or told before. The interviewer did not follow up to determine if this was personal touch or hygiene touching which is as likely a conclusion as any other. [S.A.C.’s boyfriend] peeing was not determined to be sexual and other explanations were not pursued. The interview does not prove anything, only raises issues.
12. These issues were followed up by therapist [B], by [C], by [D], by Dr. [E] and by the Custody Investigator's Office. These professionals did not see diagnostic signs which would be expected in an abuse situation. There was not physical or emotional damage which would be typical of a victim of sexual abuse.
14. [T.M.C.] took [K.C.] back to see Dr. [A] in January 1992. Dr. [A] obtained a drawing *320containing a penis. Dr. [A]'s evaluation had already been challenged in this case. She appears to be available to reach rapid conclusions about child sexual abuse which are used by those persons seeking such opinions. The court does not find Dr. [A] ’s testimony persuasive.
15. There is no absolute resolution of the sexual abuse allegation. Children are sexual beings and [K.C.] is at an actively sexual developmental stage. Sexual issues are normal at this age.
16. This court concludes it is more likely than not that [K.C.] was not sexually abused by [S.A.C.’s boyfriend].