Mayo v. Mayo

MARING, Justice,

dissenting.

[¶ 42] I respectfully dissent. I am of the opinion that the trial court’s findings of fact and conclusions of law were induced by an erroneous application of the law, and I am left with a definite and firm conviction a mistake has been made.

[¶ 43] The trial court concluded there was a substantial change in circumstances since the original custody order. After reaching that decision, the trial court concluded the change in circumstances required a change of physical custody from Banjac to Mayo in the best interests of the children. It is my opinion that although the trial court purports to weigh the stability factor against the other best interest factors, it in fact did not afford it sufficient weight in light of the available remedies. On the entire evidence, I am firmly convinced a mistake has been made.

[¶ 44] We have stated there must be a significant change of circumstances that requires the change of custody in the best interests of the child. Not every significant change, however, justifies a transfer of custody. Ludwig v. Bwrchill, 481 N.W.2d 464, 469 (N.D.1992) (Levine, J., specially concurring). “Rather, ‘[t]he change of circumstances must weigh against the child’s best interests before a change in custody is justified.’ ” Id. at 466 (citation omitted).

[¶ 45] Here, there was no significant change in circumstances that necessitated or required a transfer of custody. The trial court primarily relied upon the opinions of Dr. Ascano. Dr. Ascano opined that Banjac’s health condition has caused the oldest child to begin the process of becoming parentified. The trial court found the parentification process “is not the fault of Banjac, as it has been unwittingly caused by Banjac’s health problems which have existed even before the divorce in 1995.” The alleged parentification occurs when Banjac is forced to lie down for one hour each month as a result of her condition. During this hour, the oldest child is asked to look after her younger siblings, then ages ten and five. This increase in responsibility has allegedly caused the oldest child to assume a care-taking role. It is not uncommon, however, for children to assume a role as caretaker in families with one or more children for short periods of time. In his testimony, Dr. Ascano indicated birth order has a significant function in the oldest child assuming the caretaking role. The oldest child is thirteen years old, and children of a similar age are often asked to care for younger siblings when their parents leave the home for reasonable periods of time. The child’s increased responsibilities are deemed contributions to the family. Watching younger siblings for one hour at a time is frequently viewed as a chore much like taking out the garbage or cleaning house. Children assuming limited caretaking roles is not a new and unique concept in our society. Historically, older children of large families assumed caretak-ing roles to the younger children to a large *641extent. It is very natural for an older sibling to look after and feel responsibility for a younger sibling. This is common life experience.

[¶ 46] Certainly, if the oldest child were asked to care for her younger siblings for an extended period of time or on a daily basis, the case would be different. But such is not the case. The trial court found the oldest child is responsible for watching her siblings for one hour each month while Banjac retires to her bedroom. At this time, Banjac remains available to her children. Banjac stated she is never “out of commission” when she lies down and the children are free to come into her room if they need anything.

[¶ 47] It is this evidence that forms the basis for the court’s conclusion the oldest child is in the process of becoming parenti-fied because of her mother’s health problems. Yet, the evidence shows the oldest child assumes the role of caretaker while in the custody of her father, Mayo. Mayo’s profession as a medical doctor requires him to be on call at the hospital. When Mayo unexpectedly leaves the home for an emergency at the hospital, even at night, the oldest child is left to look after her younger siblings in much the same way as she is asked to do when her mother unexpectedly must lie down. The oldest child’s role as caretaker, therefore, continues to exist while in the custody of Mayo. The trial court acknowledges there is an issue of whether the “process of parentification” has been caused by Mayo as well as Ban-jac.

[¶ 48] The trial court is inconsistent in its attempt to explain why it finds Dr. Ascano credible and Dr. Will not credible. Dr. Ascano’s conclusions were based on a parentification questionnaire he administered to the oldest child and a thirty-minute evaluation of her. From these brief evaluations he concluded the oldest child was parentified due to Banjac’s health condition. Dr. Will, however, testified such a diagnosis would require more extensive testing. He further stated that if parentification existed, there was no accurate method available for determining who or what is responsible for it.

[¶49] Despite the questionable basis of Dr. Ascano’s opinions regarding “parentifi-cation” of the oldest child, the trial court chooses to find the testimony of Dr. Will, Banjac’s expert, not credible because the “basis for his opinions are not reliable, valid 'tests due to the fact they are highly subjective and lack generally recognized scientific validity and reliability as predictive tests.” The testing the trial court refers to includes the Rorschach test, which has been administered and interpreted by professionals to form diagnoses in psychiatric and psychological examinations. See State v. Iverson, 225 N.W.2d 48, 54 (N.D.1974) (testimony of psychologist based in part on interpretations of the Rorschach test, admitted to prove defendant competent and fit to stand trial); Bender v. North Dakota Workmen’s Compensation Bureau, 139 N.W.2d 150, 155 (N.D.1965) (psychologist’s conclusions based in part upon the Rorschach test).

[¶ 50] As to the question of whether Mayo’s leaving the oldest child alone to take care of the children when he had an emergency during the night contributed to the parentification process, the trial found “Dr. Ascano simply did not have enough information to make such a determination.” The trial court also found “Dr. Will also concluded that it was equally likely that Mayo contributed to any propensity that [the oldest child] may have toward parentification process since he required [the oldest child] to take care of her siblings when he went to the hospital at night.” Nevertheless, the trial court concluded the likelihood of continued parenti-fication of the oldest child by Mayo was negligible based on its findings Mayo reduced his work hours. The trial court, however, in another finding acknowledges Mayo will still have emergencies to attend to. Although, the trial court ordered Mayo to reduce his work load, there is evidence that suggests he is unable to do *642so. Mayo has previously made unsuccessful attempts at reducing the number of hours he works. Banjac stated, “[Mayo] said he would get better, ... and it was always going to get better, and it never did; in fact, it kept getting worse.” She further stated, “[Mayo] is a remarkable doctor. He’s very talented. He’s got a big practice. He’s very successful. And, [Mayo’s] production numbers at work, the amount he generates for the clinic, mean everything to him... It validates him in a way nothing else can.” Dr. Ascano, in his report found Mayo to have a pattern of “excessive devotion to his work and productivity, to the exclusion of pleasure.” The record indicates Mayo has worked long hours at the hospital, which require the children to spend much of their time with care givers. Assuming the process of parentification has begun in the oldest child, this record is anything but clear as to the cause and certainly points to the conduct of both parents as contributory.

[¶ 51] Certainly if this case involved an original custody proceeding, the trial court’s findings would be well within its authority. Blotske v. Leidholm, 487 N.W.2d 607, 611 (N.D.1992). But a modification proceeding is not equivalent to an original custody award. Id. at 610. In a modification proceeding, maintaining the child’s stability with the custodial parent is the most compelling factor. Lovin v. Lovin, 1997 ND 55, ¶ 17, 561 N.W.2d 612. A presumption exits that the child is better off with the custodial parent, and close calls should be resolved in favor of continuing custody. Myers v. Myers, 1999 ND 194, ¶ 10, 601 N.W.2d 264. Our Court has recognized that it is not in the best interests of the child to shuffle the child back and forth between parents as the scales settle slightly toward first one parent and then the other as their circumstances change. Starke v. Starke, 458 N.W.2d 758, 760 (N.D.App.1990).

[¶ 52] The argument advanced for changing custody in this case does not outweigh the children’s stability with Ban-jac who has been the custodial parent since the 1995 divorce. Dr. Ascano testified the oldest child is suffering from “anticipatory anxiety” and based upon a reasonable degree of psychological certainty, she “faces a substantial likelihood of significant psychological harm” if Banjac remains her custodial parent. The trial court concluded, therefore, “these irremediable conditions” will cause substantial harm to the oldest child’s emotional health. It should first be noted Dr. Ascano testified that there is a “substantial likelihood” of harm in the future. Dr. Ascano did not testify the oldest child will suffer harm in the future. In addition, even Dr. Ascano did not describe this case as “irremediable.” In fact, Dr. Ascano suggested available remedies to stop the process of parentification so that the children could remain with Banjac. The trial court indicates there is no other remedy, other than change of custody, because Banjac rejected any exploration of any available remedy. What Banjac rejected was the conclusion her oldest daughter was “parentified.” She merely asked for the opportunity to rebut that conclusion with expert testimony. That does not negate the fact that remedies exist which would halt any parentification process without a change of custody.

[¶ 53] I disagree with the majority, when it states we should not extend what we have said about alienation and frustration of visitation cases to this case. Those cases also involve .potential psychological and emotional harm to children. When one parent has frustrated visitation, we have stated that the trial court should initially utilize other methods to remedy the parent’s misbehavior. Hendrickson v. Hendrickson, 1999 ND 37, ¶ 13, 590 N.W.2d 220. We have recognized that, “after exhausting other remedies,” a change in custody may be necessary to correct the damage of the defiant custodial parent. Id. If the use of alternative methods fails, the trial court should then consider a change in custody. Id. The majority, however, failed to extend the approach *643used in frustration of visitation cases because it viewed such cases as “inapposite.” It states: “While misbehavior can be eliminated, or at least curbed, by an offending parent, Banjac’s illness and the resulting parentification of the oldest child cannot be similarly controlled.” If parentification indeed exists, however, the effects of it can be eliminated through methods other than change of custody. Dr. Ascano stated that the parentification process could be eliminated either through therapy or arranging for an available person to provide for the children’s care when Banjac becomes ill. He testified that the use of therapy would have the purpose of communicating to the oldest child that she is not responsible for certain duties. Alternatively, he stated the nanny option would require a person to come into the custodial home and actually assume the parental responsibilities when Banjac lies down. Dr. Ascano further stated that Banjac’s husband could help eliminate the parentification problem by assuming parental duties if he is home at a time when Banjac is forced to lie down. The trial court should have initially utilized one of these options rather than uprooting the children from their established custodial home.

[¶ 54] This is a case about a 13 year old child who is the oldest child, and who is caring for her brother and sister one hour a month while her mother lies down in their home. Our Court does not operate in a vacuum. State by and Through Heit-kamp v. Quill Corp., 470 N.W.2d 203, 208 (N.D.1991) rev’d on other grounds, 504 U.S. 298, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992). “Appellate judges bring to each case their common sense, ordinary experience, and observation of human affairs.” Id. Here, common sense and experience dictates this child is not emotionally endangered and this is a situation that could be remedied, if necessary, by the hiring of a nanny and some therapy.

[¶ 55] I also note when Banjac and Mayo divorced in 1995, Banjac was awarded custody of the children by stipulation of the parties. In 1995, Banjac suffered from severe headaches with more frequency and was forced to retire more often. In subsequent years her situation improved with medication. Mayo was aware of Banjac’s situation in 1995 and at all times subsequent to that. Nonetheless, at no time did he object to Banjac retaining custody of the children. It was not until Banjac remarried and made a decision to relocate to Minnesota with her husband that Mayo moved the court for a change of custody. Because his decision to obtain custody of the children came at a time when Banjac’s condition had improved significantly, I am led to question whether his motivation was something other than concern for the children.

[¶ 56] Because I believe the trial court did not give sufficient weight to the stability factor, failed to take into consideration alternative remedies before changing custody, and erroneously changed custody of the children, I respectfully dissent.

[¶ 57] Mary Muehlen Maring