Stare decisis. Burden of proof: “clear and convincing” standard applies to termination of parental rights, therefore finding of sexual abuse by a preponderance of the evidence was insufficient to support family division order prohibiting parental contact.

DeSantis v. Pegues, 2011 VT 114 (Skoglund, J.) (Johnson, J., joined by Justice Dooley concurring) (Crawford, Supr. J., Specially Assigned, dissenting.)


Father appeals the family court’s denial of his motion to reinstate parent-child contact following a voluntary suspension of such contact due to an allegation of child sexual abuse. We hold that the court’s finding of sexual abuse by a preponderance of the evidence was insufficient to support an order effectively terminating father’s parental rights. We reverse and remand.


The case at the heart of this argument is Mullin v. Phelps, 162 Vt. 250, 647 A.2d 714 (1994). There, the mother moved to gain custody of the parties’ two sons after the father was accused of abusing the boys. The family court transferred custody, which had been with the father for the previous six years, upon a finding of sexual abuse by a preponderance of the evidence, and the court conditioned father’s visitation upon his acknowledgement of the sexual abuse. We affirmed the court’s finding of abuse and the resulting transfer of custody, but we reversed the court’s visitation order because it “effectively terminated the father’s parental rights.” In so doing, we adopted the standard that, as a matter of due process, a court must find evidence of sexual abuse by clear and convincing evidence in order to terminate all contact between a parent and child. 


Here the family court  expressly concluded that the evidence presented did not reach the clear and convincing standard required to terminate father’s parental rights.  The dissent’s belief that Mullin v. Phelps should be overruled was not raised, briefed, or argued by any party.  We do not address this issue.


Johnson, J., joined by Justice Dooley, writes separately to stress that the case is governed by the doctrine of stare decisis. Recognizing with Justice Cardozo , that “when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or the social welfare, there should be less hesitation in frank avowal and full abandonment,” Justice Johnson concludes this case presents precisely the opposite scenario. Mere disagreement with how a case was decided—particular one of relatively recent vintage—is not a sufficient basis to deviate from a policy essential to certainty, stability, and predictability in the law. The dissenting judge may consider Mullin v. Phelps, to have been decided “in error,” but to advocate its reversal solely because he remains unpersuaded by its reasoning is to invite an endless cycle of decision and reversal should the next Court consider the abandonment of Mullin to have been “in error,” and the Court after that to conclude otherwise. The folly of such an approach is self-evident. Nothing has appeared over the last seventeen years indicating even remotely that Mullin has undermined the public welfare, wrought individual injustice, or impeded the administration of justice. Indeed, not one cogent reason has been produced to abandon a precedent grounded in fundamental due process and the compelling state interest in preserving the relational interests between parents and children.


Crawford, Supr. J., Specially Assigned, dissents from the application of a clear-and-convincing-evidence standard to decisions about parent-child contact in divorce and parentage cases. A higher standard of proof is constitutionally mandated in cases in which the state seeks to deprive an individual of a liberty interest so that the possibility of error is borne more heavily by the state. In disputes over custody and visitation between individuals, however, the higher burden simply shifts the possibility of error from one parent to another. Because the private interests are equally balanced, there is no compelling reason that one individual should more heavily bear the burden of error. It is time to reconsider the wisdom of the Mullin v. Phelps decision. It arose out of a factual context in which the claims of abuse were highly suspect. The constitutional principle has not found support in the decisions of other states. And, most compellingly, in cases in which a child’s word is offered against an adult’s, it can result in rulings which favor contact with a probable abuser over safety for children.