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Abstract

Child custody is an area of the law where the courts have tread cautiously. Bitter disputes between separating parents often erupt into court struggles over which parent will gain custody of the minor children. As a result of this discord, and the terrible toll it can take on both the parents and the children, the courts are wary of modifying the original custody decree and moving a child from one parent to another. Courts must vigilantly deter custody suits brought purely for vengeance or harassment. The court acts as the child's legal protector when a change of custody issue is brought before it; its primary concern is to determine whether a change of environment would be beneficial or harmful to the child's future development. From the court's point of view taking a child from a stable, if not ideal, situation and transferring her to a new environment requires the moving party to bear the burden of proving that the change would be in the child's best interest. Until recently, Maine law required that the noncustodial parent prove the necessity of changing custody by fulfilling a two-prong test. The first prong of the test required a showing that a substantial change in the circumstances surrounding the original custody determination had occurred. If that prong was satisfied then the court applied the second prong and asked whether the best interests of the child would be served by changing the original custody decree. In Philbrick v. Cummings and Villa v. Smith the Maine Supreme Judicial Court, sitting as the Law Court, abandoned the existing two-prong test and replaced it with a unitary test which focuses on whether the changed circumstances are substantial and affect the best interests of the child. This change pulls sharply away from the two-prong test articulated in Stevens v. Stevens six years earlier. Writing for the majority in Villa, Chief Justice McKusick rebuffed the two-prong Stevens test by stating that making a threshold determination of changed circumstances without considering the impact of the change on the child is impractical and irrelevant. Writing in dissent in Philbrick, Justice Scolnik strongly disagreed, pointing out that the threshold test of whether there has been a substantial change in circumstances allows the motion justice to dismiss meritless cases before requiring a full-blown hearing. This Comment explores the merits of both the two-prong Stevens test and the new unitary test articulated in Philbrick and Smith. Analyses of both tests reveal the weaknesses and strengths in each.

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