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Rogers v. Parrish (2005-354)
2007 VT 35
[Filed 04-May-2007]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2007 VT 35
No. 2005-354
Christopher Rogers Supreme Court
On Appeal from
v. Addison Family Court
Carla Parrish March Term, 2006
Christina Reiss, J.
Rebecca G. Olson and Brice C. Simon of Olson & Simon, PLC, Stowe, for
Plaintiff-Appellee.
Benjamin W. King of King Lashman & King, PLLC, Burlington, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
1. BURGESS, J. In Hawkes v. Spence we addressed the "seemingly
irreconcilable conflict" that arises when a "custodial parent's interest in
building a new life with the children" in a distant location is "pitted
against the noncustodial parent's interest in maintaining a close
relationship with the children." 2005 VT 57, 1, 178 Vt. 161, 878 A.2d
273. While acknowledging that "there is no precise formula" for resolving
such conflicts, we adopted a governing standard and a non-exclusive list of
relevant factors that trial courts must apply in determining whether a
reexamination of parental rights and responsibilities in such circumstances
is justified. Id. 13. Here, we are confronted with yet another
difficult relocation dispute between two loving, capable parents, both of
whom are intent on maintaining their current contact with the child, yet
only one of whom can prevail. Such cases underscore yet again that this
area of the law is not susceptible to precise formulas, and that we must
permit trial courts - guided by the principles set forth in Hawkes-the
latitude to exercise their discretion to reach reasonable decisions. As
explained more fully below, that is what occurred here. Accordingly, we
affirm the judgment.
2. The record evidence may be summarized as follows. The parties
were married in 1996 and divorced in October 2003. They have two children
who were approximately three years old and fourteen months old at the time
of the parties' separation in October 2002, and six and four years old at
the time of the proceedings below. The divorce judgment incorporated a
stipulation between the parties granting mother sole physical rights and
responsibilities and providing for shared legal rights and
responsibilities. The judgment also accorded father substantial
parent-child contact. In addition to visitation every other weekend from
Friday until Monday evening, and off-weeks from Tuesday until Wednesday
evening, it authorized father to pick the children up from daycare on a
daily basis and bring them to mother's home, where he cared for them until
she arrived from work. In addition, father testified, and the court found,
that father made considerable efforts to see the children on other
occasions, staying with neighbors and friends near the marital home (which
father had conveyed to mother pursuant to the divorce stipulation), and
spending time with the children during days off from his job as a police
officer with the Stowe Police Department.
3. Father testified, and the court found, that mother's job as
the comptroller of a company in Burlington made it difficult for her to
arrive home until after 6:00 p.m, which in turn made it impossible for
father to pick up the children daily from daycare and arrive for his police
shift on time. Father advised that he could no longer do the daily
pickups. As a result, in June 2004, mother moved from Morrisville to
Vergennes to shorten her commute time. Thereafter, father's time with the
children decreased. According to mother, this was because father no longer
wished to exercise all of his visitation rights, while father contended
that mother denied him visitation. Finding mother's excuse incredible for
denying father's Thanksgiving visit so she could take the children to see
her boyfriend's parents in Michigan, the court further found it was mother,
and not father, who initiated the lapse in father's visitation.
4. In November 2004, mother informed father that she intended to
remarry and move with the children and her new husband, an Army sergeant
then stationed in Vermont, to North Carolina. Father subsequently moved to
modify custody based on mother's move to Vergennes and the disruptions that
this had occasioned in the children's lives, including a change of daycare
providers and reduced contact with father and his family, as well as on
mother's contemplated move to North Carolina. Mother, in response, filed
a cross-motion to modify custody and parent-child contact, seeking sole
legal rights and responsibilities and a new visitation schedule. In a
supporting affidavit, mother denied she was considering a move to North
Carolina, stating that her new husband "has no orders at present to be
transferred to anywhere let alone North Carolina." Mother later filed an
amended motion and supplemental affidavit, indicating that her husband's
replacement had arrived in Vermont and it was expected that within about 30
days her husband would receive orders to report to a new duty station
outside Vermont, possibly in the states of North Carolina, Colorado, or
Washington. As to mother's earlier affidavit purporting ignorance about
any orders requiring her husband to move, the court found that mother,
contrary to her sworn declaration, was then aware that her husband had
standing orders to leave Vermont and relocate within nine months at the
latest.
5. An evidentiary hearing on the cross-motions was held in
August 2005. Shortly thereafter, the court issued a written decision,
concluding that mother's proposed relocation represented a real,
substantial, and unanticipated change of circumstances justifying a
reexamination of parental rights and responsibilities under 15 V.S.A.
668, and that, under the criteria set forth in 15 V.S.A. 665, the best
interests of the children favored an award of sole physical and legal
rights and responsibilities to father. In addressing the threshold
question of changed circumstances, the court recognized that the issue was
governed by the principles set forth in Hawkes v. Spence. There, we held
that "relocation is a substantial change of circumstances justifying a
reexamination of parental rights and responsibilities only when the
relocation significantly impairs either parent's ability to exercise
responsibilities the parent has been exercising or attempting to exercise
under the parenting plan." Hawkes, 2005 VT 57, 13 (quotation and
citation omitted).
6. Hawkes explained that in determining whether a parent's
exercise of responsibilities will be substantially impaired, the court may
consider, among other factors, "[t]he amount of custodial responsibility
each parent has been exercising and for how long, the distance of the move
and its duration, and the availability of alternative visitation
arrangements." Id. (quotation and citation omitted). Additionally, "the
court should consider the amount of custodial responsibility that a parent
has been actually exercising, rather than the amount allocated but not
necessarily exercised under a court order." Id. (quotation and citation
omitted) (emphasis added).
7. The trial court here systematically considered each of the
foregoing factors. As to custodial time, the court found that, although
mother had been granted sole physical rights and responsibilities, father
had "maximized his contact with the children such that he had them in his
care almost as much as [mother]." Next, the court found that the distance
and duration of mother's proposed move to a military posting out of state
were extensive, and would substantially affect the children's ability to
maintain their current relationship with father and his family in Vermont.
Finally, the court found that mother's proposed summer and holiday
visitation schedule with father would significantly diminish his contact
with the children and "negatively impact their relationship." Indeed, given
its findings that mother previously denied father's visitation rights, the
court justifiably expressed "some concerns that a[n alternative] visitation
order would not be adhered to by [mother]."
8. The court thus determined that "[e]ach of the Hawkes factors,
as well as many others, support the court's conclusion that the proposed
relocation is a real, substantial and unanticipated change in circumstances
requiring the court to consider whether modification of the parties'
parental rights and responsibilities is appropriate." Turning to that
question, the court remarked that father bore "a heavy burden of proof,"
presumably in reference to the "high hurdle" faced by a noncustodial
parents "in justifying the violent dislocation of a change in custody from
one parent to the other" when the change is "based solely on the custodial
parent's decision to relocate." Hawkes, 2005 VT 27, 11. "On the other
hand," the court correctly observed from Hawkes, "when childrearing and its
concomitant decision-making are shared, relocation to a remote location by
one parent requires at the very least a reassessment of the custodial
arrangement and, because of the practicalities involved in shared
parenting, will often necessitate a change in custody." Id. 12. The
court also noted that father's motion was not based solely on the proposed
relocation, but also on a general breakdown in the parties' relationship,
mother's interference with father's visitation and a concern that the
children would continue to move every three years if left in mother's
physical custody.
9. Proceeding to apply the factors of 15 V.S.A. 665(b), the
court found both parents were close to the children and were able to
provide them with love, affection, and guidance, as well as a safe and
nurturing environment, and that these factors were therefore evenly
balanced. The court placed considerable emphasis, however, on the
criterion addressed to the children's adjustment to their home, school, and
community-particularly in Morrisville where they had lived near father
prior to the move, attended day care, and been surrounded by friends and
family. The court noted father planned to live in Morrisville, where the
children could resume their schooling and relationships with friends,
neighbors, and family. The court found that this factor weighed heavily in
favor of a change of custody to father.
10. The court found neither parent particularly able to foster a
positive relationship with the other. Nevertheless, the court expressed
concern that mother had not been straightforward with father or the court
about her future plans, had not cooperated with father's visitation rights
in the past and was more likely than father to expose the children to
disputes between the parents and alienation from the other parent. In
contrast, the court found that father was more likely to follow an order
granting mother substantial visitation, and was less likely than mother to
disparage, or alienate the children from, the other parent.
11. Consistent with its finding that the children were strongly
attached to their home and community, the court also found that they
enjoyed "strong, beneficial relationships with family and friends in
Vermont" that would be damaged by a relocation out of state. While
acknowledging the "positive force" of their new relationship with mother's
husband and his young daughter, the court concluded that it did not
outweigh the children's relationship with father and other family members
and friends in Vermont, and that this factor also favored an award of sole
custody to father.
12. As for the children's relationship with their primary care
provider, the court recognized that mother capably fulfilled this role and
that the children would not benefit from a disruption of this
relationship-a circumstance which led the court to describe this as a "most
troubling" and "difficult case." Noting that father could also fill the
role of primary caretaker, and had "approximated" that role in the past,
the court explained that this factor weighed heavily in mother's favor, but
was counterbalanced by other factors. The court determined that, despite
mother's status as primary caretaker, the expected repeated moves of the
children and lost contact with father were unacceptable consequences of
mother's decision to move only to follow her new spouse's career. The
dissent perceives this characterization as trivializing and devaluing
mother's choice to support her spouse's career, post, 45, when the
family court clearly considered this motive, not in isolation, but weighed
against the reasonably anticipated constriction, if not foreclosure, by
mother of the children's contact with father. The family court found
mother's rationale less compelling than the sacrifice of the children's
relationship with their father.
13. On balance, the court concluded that an award of sole legal
and physical rights and responsibilities to father was "most likely to
preserve the children's relationship with both of their parents and afford
them the greatest amount of stability and security," and therefore served
the best interests of the children. The court awarded mother substantial
parent-child contact, including every school vacation during the school
year in excess of three days, eight consecutive weeks during the summer,
one weekend per month in Vermont, and unlimited telephone contact. The
court denied mother's subsequent motion for reconsideration and stay. This
appeal followed.
14. Mother raises a number of claims, which she has grouped under
three broad headings. Under the first, she contends the court misapplied
the Hawkes factors in concluding that a relocation would significantly
impair father's exercise of custodial responsibilities. She claims, in
this regard, that the court impermissibly lowered the standard for a change
of custody from the primary care provider. The claim is premised on
mother's assertion that, in calculating the overall amount of custodial
responsibility exercised by father, the court mischaracterized father's
involvement with the children as nearly equivalent to that of mother. She
argues that the quantity of father's contact with the children, which the
court found to be approximately twelve out of fourteen days prior to
mother's move to Vergennes, was not equivalent to the quality of her daily
involvement as the primary care provider.
15. We will not disturb the family court's factual findings
unless, viewing the evidence in the light most favorable to the judgment
and excluding the effect of modifying evidence, there is no credible
evidence to support them. Sochin v. Sochin, 2004 VT 85, 10, 177 Vt. 540,
861 A.2d 1089 (mem.). Father testified that he engaged in extensive
activities with the children while they were in his care, including
playing, coloring, going on outings, reading stories at bedtime, and
shopping. (FN1) He also testified without dispute that he had taken care
of the children for consecutive periods of over a week at a time. The
parties' friend and former neighbor in Morrisville described father as "Mr.
Mom" and "an exceptional father," observing that he had "spent a tremendous
amount of time with the kids and did a lot of stuff with them and took care
of them and nurtured them." The evidence was sufficient to support the
court's finding that father's care of the children nearly approximated
mother's in the qualitative sense, and we therefore discern no basis to
disturb its conclusion that mother's proposed relocation, combined with her
disinclination to abide by father's interest and rights to parent-child
contact, would likely erode or destroy the children's relationship with
their father.
16. Mother further argues that "it is of no moment as to who was
responsible for [father's] reduced parent child contact" after she moved to
Vergennes, relying on a comment to 2.17(1) of the American Law Institute
(ALI) Principles of the Law of Family Dissolution, which states that, where
one parent has interfered with the other's custodial time, "a parent who
acquiesces in the new arrangement cannot later rely on parental
prerogatives the parent did not value highly enough to protect." ALI
Principles of the Law of Family Dissolution 2.17(1) cmt. b (2002). Here,
as noted, the court acknowledged that father's contact with the children
decreased since mother's move to Vergennes, but found that mother was
partly to blame by interfering with father's visitation. Nothing
indicates, however, that father "acquiesced" to mother's conduct.
Accordingly, the claim does not undermine the court's finding that the
proposed relocation would significantly impair father's relationship with
the children.
17. Mother also appears to take issue with the court's finding
that the distance and duration of the proposed relocation would be
substantial. Mother asserts that the finding is "speculative at best"
because her husband had not, as of the date of the hearing, received his
transfer orders. Mother stated in her supplemental affidavit, however,
that reassignment orders were imminent, and testified at the hearing in
August 2005 that January 2006 was the "absolute end date" for her husband's
assignment to Vermont. Wife's husband also testified that he could receive
orders to relocate at any time, possibly to Washington state, Colorado,
Georgia, or North Carolina, and that there was virtually no possibility of
being reassigned to Vermont. Thus, the evidence does not support mother's
assertion that the court's findings about relocation were speculative.
18. Finally in this regard, mother claims the evidence refuted the
court's finding that the alternative visitation schedule necessitated by
mother's relocation would significantly affect father's relationship with
the children. In support, mother cites father's testimony that he remained
committed to staying involved with the children even if meant he had to fly
long distances, as well as the testimony of the children's paternal
grandmother that, while she did not enjoy flying, she would endeavor to
drive to see the children if they relocated to a state not too distant from
Vermont. While these statements attest to the father's commitment to
maintaining contact with the children wherever they resided, they do not
undermine the court's finding that a relocation would significantly impair
father's ability to exercise existing custodial responsibilities,
particularly considering mother's past refusal of father's visitation
rights and her continued reluctance to fully accept same as suggested by
her lack of candor to the court in misreporting her probability for
relocation.
19. Mother's second general claim is that the court misapplied
the statutory factors governing the best interests of the children. In
particular, mother contends the court failed to accord the quality of her
relationship with the children the "great weight" to which she was entitled
as their primary caretaking parent under Harris v. Harris, 149 Vt. 410,
418, 546 A.2d 208, 214 (1988) (holding that where one parent is established
as the primary caretaker, "this factor should be entitled to great weight
unless the primary custodian is unfit."). This factor's "great weight,"
however, is not necessarily overwhelming weight, as Harris goes on to
observe that "the exact weight cannot be determined unless there is
evidence of the likely effect of the change of custodian on the child. In
the absence of such evidence, the court should ordinarily find that the
child should remain with the primary custodian parent if that parent is
fit." Id. at 418-19, 546 A.2d at 214. The record here is replete with
evidence and findings by the court that transferring custody to father
would more likely preserve the father-child relationship, and so preserve
the children's relationship with both parents, would more likely promote
visitation between the children and noncustodial parent, would be less
likely to expose the children to parental disparagement and alienation, and
would more likely preserve and maintain the children's beneficial
relationships with community, friends and family. The beneficial qualities
of mother's caretaking relationship with the children were tempered by her
willingness to sacrifice the children's beneficial relationship with their
father for her husband's career when, at the same time, she could not be
relied upon to observe the father's visitation rights.
20. The great weight of mother's primary and beneficial
custodianship was overcome, in the court's view, by the risk of destruction
to their relationship with father and by the accumulated weight of other
factors favoring a change of custody to preserve the children's
relationships with both parents and minimize disruption to their stable
relationships to family, friends, home and community. As noted earlier,
the court found-based on credible evidence-that father's involvement in
caretaking was nearly that of mother's, and that mother's "primary" status
was maintained, in part, by denying father visitation once he could no
longer pick up the children at day care. Thus, the evidence supported the
court's characterization of a custodial change in this case as a
less-than-extreme result warranted by the best interests of the children.
See Hawkes, 2005 VT 27, 12 (reaffirming earlier holdings that, when
parties' actual parenting arrangements are shared, practicalities of
relocation may often necessitate a change of custody). That the evidence
could have been weighed or balanced differently towards a different result
does not render the court's opposite conclusions an abuse of discretion.
See Chick v. Chick, 2004 VT 7, 10, 176 Vt. 580, 844 A.2d 747 (mem.) (in
evaluating best-interest factors under 665(b), "we accord trial court
wide discretion . . . to assess the credibility of witnesses and weigh the
evidence"). Accordingly, we find no merit to the claim that the court
applied an incorrect standard or failed to defer adequately to mother's
role as the primary care provider.
21. Mother next contends the court improperly substituted its
judgment for mother's in expressing its reservations about the children
being subject to "repeated moves" due to future military reassignments.
The court opined that such moves were "unlikely to benefit [the children]
in any significant way and may be severely detrimental." The court's
comment about lack of benefit was without evident foundation. Nothing
suggested that these children, or children in military families, or
"corporate families" for that matter, expecting to move more frequently
than others, do not benefit from cyclical relocation. Erroneous or
unsupported findings do not require reversal, however, unless they are
shown to have been prejudicial. Lyddy v. Lyddy, 173 Vt. 493, 496-97, 787
A.2d 506, 512 (2001) (mem.) (holding that inaccurate findings did not
require reversal where "they were not controlling with respect to the
court's ultimate decision to award custody to mother"); Myott v. Myott, 149
Vt. 573, 577, 547 A.2d 1336, 1339 (1988) (party alleging error has burden
of showing that he or she was prejudiced thereby).
22. The court invoked its concern several times over effects on
the children of moving every three years far from father and their
surroundings. Criticizing this concern as the family court simply
substituting its "value judgment" for the mother's, post, 34, the
dissent ignores the more complicating factor of mother's demonstrated
reluctance to honor father's visitation rights and her lack of interest in
maintaining the children's relationship with father. Reading the family
court's decision in its entirety, however, leaves no doubt that the court's
award of custody to father was not based on a belief that cyclical
relocation was "severely detrimental" per se, as opposed to being severely
detrimental because of the particular surrounding circumstances in this
case. Rather, the court incorporated its reservations about repetitive
relocation in the context of its other findings, supported by the evidence,
that the children stood to lose their stable relationship with family,
friends, school and community here, as well as the relationship with their
father due to mother's proven reluctance to foster it. (FN2)
23. The decisive factor was not, as seen by the dissent, the
frequency of moving, but the court's concern that mother could not be
relied upon to abide by a visitation order and that distant relocations
would aggravate, rather than mitigate, that situation. The court's
reference to repeated moves was part and parcel of its overall conclusion
that continued custody with mother was more likely to disrupt, if not
destroy, the children's relationship with father. This conclusion was
supported by the evidence of mother's noncompliant attitude towards
visitation, her disregard for the children's relationship with father and
the distance of her expected moves. These expected detrimental effects,
and not the lack of benefit, appeared to drive the court's conclusions
relative to future moves, so that mother was not prejudiced by the
erroneous characterization of repeated relocations as "unlikely to benefit
[the children] in any significant way."
24. Relocation, by itself, is no basis to reassign custody. In
this case, however, when combined with disruption of the children's
stability and the likely substantial, if not total, loss of relationship
with their father, the anticipated moves by mother were fairly considered.
That repetitive relocation must be balanced against an arguably more stable
"quality of the child's adjustment to . . . present housing, school and
community," 15 V.S.A. 665(b)(4), the child's established relationships
with father and other significant family and friends, id. 665(b)(7),
leavened, or not, by the parents' relationship with one another, id.
665(b)(5), as well as "the quality of the child's relationship with the
primary care provider," id. 665(b)(6), are all a function of the statute
and not merely the court's predilection. Likewise, the court's weighing of
mother's decision to follow her husband's career at the expense of the
children's relationship with their father is also a requirement of the
statute's mandate to consider the relative merits of the parents' "ability
and disposition . . . to meet the child's present and future developmental
needs," id. 665(b)(3), as well as "foster a positive relationship" with
the other parent. Id. 665(b)(5).
25. Transfer of physical custody of the children to father was
supported by the court's findings and balancing of the statutory factors.
Courts consider these factors to promote the legislative declaration that,
upon divorce of parents, "it is in the best interest of their minor child
to have the opportunity for maximum continuing physical and emotional
contact with both parents." Id. 650. (FN3) Boiled down, the court
explained that after weighing the evidence and balancing the factors,
father could be relied upon to maintain the children's contact with the
other parent, but mother could not be relied upon to do the same. Thus,
custody with father was more likely to accomplish continuing maximum
contact with both parents, while maintaining custody with mother was less
likely to achieve that goal considering the risk, based on history, that
even minimum contact with father would have withered on mother's watch.
Because the court's findings, conclusions and exercise of discretion
thereon were all tenable, at the least, "[w]e therefore think that no abuse
of discretion appears." Dyer v. Lalor, 94 Vt. 103, 117, 109 A. 30, 36
(1920).
26. That the dissent, or even this entire Court, might reach a
different conclusion on the same facts does not mean that the family court
abused its discretion. Id. at 116, 109 A. at 36. Discretion necessarily
allows for a range of reaction, so long as it is founded, as it is here, on
reasons supported by evidence. Reasonable judges can differ in their
response, but a "difference in judicial opinion is not synonymous with
abuse of judicial discretion." Id. (quotations omitted); Houran, Admr. v.
Preferred Acc. Ins. Co. of N.Y., 109 Vt. 258, 269, 195 A. 253, 257 (1937),
abrogated on other grounds by Coop. Fire Ins. Ass'n of Vt. v. White Caps,
Inc., 166 Vt. 355, 694 A.2d 34 (1997).
27. Mother further contends that, in applying the best-interests
criteria, the court failed to consider testimony by the children's current
daycare provider concerning their positive transition to Vergennes,
"unreasonably minimized" evidence that the children had formed a close
relationship with mother's husband and his daughter from a prior marriage,
and erroneously equated the parties' ability to meet the children's needs
despite evidence that father had not visited the children's school or
preschool in Vergennes. Although the argument overlooks substantial
modifying evidence- including father's testimony that he phoned his
daughter's school frequently and requested that all school notices and
report cards be mailed to him-the claim at bottom goes to the weight to be
accorded the evidence, a decision that lies within the trial court's broad
discretion. Chick, 2004 VT 7, 10. There is no basis upon which to
conclude that the court abused this discretion here.
28. Mother also claims there was no evidence to support the
court's stated concern that she might deny or interfere with father's
visitation in the event of a significant relocation out of state. The
finding was based on father's testimony concerning specific incidents in
which mother had denied, or made it difficult for him to exercise, his
visitation in the past, and his additional testimony that she had
threatened her own family with a denial of access to the children. Mother
disputed the assertion, and cited evidence that she had recently cooperated
with father in executing a modified visitation schedule for the summer of
2005. As noted, however, the trial court has considerable discretion to
assess the credibility of witnesses and weigh the evidence, and we will not
disturb its findings unless clearly erroneous. Id.; Sochin, 2004 VT 85,
10. Assessed in light of this standard, and given that mother was less
than forthright in her previous sworn statement, the evidence, while not
extensive, was sufficient to support the finding.
29. Finally in this regard, mother contends the court abused its
discretion by admitting parol evidence to show that father's motive in
stipulating to an assignment to mother of his equity in the marital home
was to ensure that mother could afford to keep the children in their own
home in Morrisville. Mother failed to object to the testimony on this
ground, and therefore failed to preserve the issue for review on appeal.
In re Merritt, 2003 VT 84, 7, 175 Vt. 624, 833 A.2d 1278 (mem.).
30. Mother's third, and final, general contention consists of
nine separate trial court findings allegedly unsupported by the evidence.
Several of these, including father's substantial involvement in the
children's custodial care, have been previously addressed. As to the
remainder, mother makes virtually no claim or showing that the alleged
inaccuracies, whether considered singly or in combination, undermine the
court's ultimate decision to award custody to father. See Lyddy, 173 Vt.
at 496, 787 A.2d at 512 (holding that inaccurate findings did not require
reversal of judgment where father failed to demonstrate they affected "the
court's ultimate decision to award custody to mother"). We discern no
basis to disturb the judgment.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Dissenting
31. JOHNSON, J., dissenting. I respectfully dissent. In this
case, the family court transferred custody of two young children away from
their mother, who had been the children's primary care provider since their
birth. It was undisputed that the children had a strong and positive bond
with their mother, as well as with her new husband and his young daughter,
and that the five of them had been living together as a tightly knit family
unit for more than a year at the time of the hearing.
32. Nonetheless, the family court transferred custody away from
mother because her new husband was serving in the military and would be
required to move every three years as a result. As the majority
acknowledges, the family court's finding that such repeated moves would be
detrimental to the children is entirely without evidentiary support. The
majority excuses this error, however, concluding that the finding was not
critical to the custody analysis. To the contrary, this unsupported
finding was a decisive factor in justifying the family court's conclusion
that the children should be placed with father. Striking the finding-as we
must-necessitates reversal of the family court's decision. See Maurer v.
Maurer, 2005 VT 26, 11-13, 178 Vt. 489, 872 A.2d 326 (mem.)
(reversing transfer of custody where findings did not support conclusions
regarding best interests of children).
33. In addition, the family court inappropriately disparaged
mother's motivation for the relocation: supporting her husband's career in
the military. Thus, the family court erred by substituting its judgment
about the advisability of relocation for that of mother, the custodial
parent. Hawkes v. Spence, 2005 VT 57, 11, 178 Vt. 161, 878 A.2d 273
(holding that family court should not substitute its judgment for that of
the custodial parent regarding relocation decision). In fact, under
principles set forth by the American Law Institute-an authority we have
previously followed with respect to the issues surrounding parental
relocation-accommodation of a spouse's job opportunity is a presumptively
valid reason for relocating one's family.
34. In short, instead of deciding what was best for the
children-particularly in terms of preserving their positive relationship
with their life-long primary care provider and maintaining continuity in
their family unit-the court made a value judgment regarding each parent's
choice of where to live. In the absence of any evidence that relocation
would be detrimental to the children-and there was no such evidence here-it
was an abuse of discretion to transfer custody away from mother.
I.
35. In the course of deciding to transfer custody to father, the
family court repeatedly emphasized that mother would need to relocate the
family approximately every three years because her husband was in military
service. The court concluded that, "[a]lthough a single relocation to
another state may be something the children could adjust to without
substantial detrimental effect, repeated moves every three years to a new
state is unlikely to benefit them in any significant way and may be
severely detrimental." Beyond the problematic implications of this
statement for the custody rights of parents in military families in
general, the finding is completely unsupported. The majority acknowledges
that the family court's statement was "without evident foundation." Ante,
21. Nonetheless, the majority dispenses with the issue by noting that
"[e]rroneous or unsupported findings do not require reversal . . . unless
they are shown to have been prejudicial." Ante, 21. Because the
finding was considered "in the context of other findings," the majority
concludes that "mother was not prejudiced by the erroneous characterization
of repeated relocations." Ante, 22-23. I cannot agree. Review of the
family court's analysis reveals that the error was, in fact, prejudicial,
both because it was the decisive factor in the family court's seven-factor
analysis and because this unsupported finding influenced analysis of the
other statutory factors.
36. 15 V.S.A. 665(b) mandates consideration of the following
factors in determining whether a change is in the best interests of the
child: (FN4)
(1) the relationship of the child with each parent and the ability
and disposition of each parent to provide the child with love,
affection and guidance;
(2) the ability and disposition of each parent to assure that the
child receives adequate food, clothing, medical care, other
material needs and a safe environment;
(3) the ability and disposition of each parent to meet the child's
present and future developmental needs;
(4) the quality of the child's adjustment to the child's present
housing, school and community and the potential effect of any
change;
(5) the ability and disposition of each parent to foster a
positive relationship and frequent and continuing contact with the
other parent, including physical contact . . . ;
(6) the quality of the child's relationship with the primary care
provider, if appropriate given the child's age and development;
[and]
(7) the relationship of the child with any other person who may
significantly affect the child.
37. In this case, the family court's resolution of factor (4) -
"the quality of the child's adjustment to the child's present housing,
school and community and the potential effect of any change," 665(b)(4) -
was determined in father's favor solely on the basis of the erroneous
finding that repeated moves were per se detrimental. As discussed below,
the six other factors in the analysis were closely balanced as between
mother and father. Thus, the custody determination was a difficult and
close case where each factor was significant. Under these circumstances,
prejudice necessarily resulted from the family court's error.
38. Specifically, with regard to factors (1), (2) & (3), the
family court concluded that mother and father were equally situated.
Another set of three factors essentially were split between the parents.
Regarding each parent's ability to foster a relationship with the other
parent (factor (5)), the family court determined that neither mother nor
father had performed well in this area to date, but speculated that father
would be more compliant in the future with any visitation schedule
established by the court. (FN5) In terms of providing the children with
contact with other important individuals, such as relatives and friends
(factor (7)), the family court again concluded that this factor favored
placement with father. In terms of the children's bond with their primary
care provider (factor (6)), the family court acknowledged that mother had
taken care of the children since the day they were born, and that this
factor favored placement with mother. Furthermore, in accordance with our
case law, the family court acknowledged that this factor was to be accorded
"great weight." Nickerson v. Nickerson, 158 Vt. 85, 89, 605 A.2d 1331,
1333 (1992). In light of the additional weight accorded factor (6),
placement with mother or father was equally desirable under the
best-interests analysis.
39. In analyzing the decisive factor-the child's adjustment to
present home, school, community and effect of any change (factor (4))-the
court concluded that, "[a]lthough a single relocation to another state may
be something the children could adjust to without substantial detrimental
effect, repeated moves every three years to a new state is unlikely to
benefit them in any significant way and may be severely detrimental." The
court further commented that "[t]he proposed relocations are solely
attributable to Mr. Parrish's career choice," implying that this motive for
the move was somehow obviously or inherently insufficient. (Emphasis
added.) Significantly, the family court did not mention, much less
analyze, the children's adjustment to the "violent dislocation" involved in
the change of custody itself, Hawkes, 2005 VT 27, 11, nor did the court
discuss how no longer living with their life-long primary care provider
might negatively affect the children's well-being. Thus, not only did
analysis of this pivotal factor turn on a finding for which there was no
evidentiary support, it was not tempered by the obvious and important
aspect of the contemplated change in custody that favored placement
remaining with mother.
40. In addition, the erroneous finding had disproportionate
influence because the family court injected it into consideration of other
factors. In essence, the family court made a methodological error by
mingling consideration of the statutory factors with one another, counting
some of the factors twice. For example, in analyzing the quality of the
children's relationship with their primary care provider (factor (6)), the
court acknowledged that mother had been the primary care provider for both
children since their birth, but balanced this against the fact that they
would be subject to "repeated moves" if they remained in mother's care.
The effect of these "repeated moves," however, should have been
considered-if at all-only in conjunction with factor (4). Instead, the
family court undercut the one factor that most clearly favored placement
with mother before that factor was balanced against the others. This
distorted the proper weight to be given each factor in the analysis.
41. Similarly, in concluding that placement with father was more
likely to preserve the children's relationships with other significant
individuals (factor (7)), the court briefly acknowledged the positive
relationship between the children and mother's new husband, Matt Parrish,
(FN6) but concluded that "the children's new relationships with Mr.
Parrish and his daughter, however beneficial, should not take precedence
over their relationships with their father and other family members and
friends who reside in Vermont." (FN7) (Emphasis added.) But the children's
relationship with their father is to be analyzed separately under factor
(1). By weighing the children's relationship with their stepfather and
stepsister against their relationship with one of their parents (father),
the family court again skewed the statutory analysis.
42. It is of course true that the family court has broad
discretion regarding matters of child custody. Nonetheless, the discretion
is not unbound; it is guided and limited by the statutory factors.
Accordingly, while there is no prescribed format for the family court's
findings, it must consider each of the statutory factors, Sochin v. Sochin,
2005 VT 36, 6, 178 Vt. 535, 872 A.2d 373, and make findings on as many
statutory factors as the evidence will support, Putnam v. Putnam, 166 Vt.
108, 116, 689 A.2d 446, 451 (1996). Here, the family court allowed the
unsupported conclusion regarding the effect of repeated moves to trump the
other statutory factors, thereby truncating what should have been a
complete analysis of each factor individually. In an area of law that is
particularly prone to value judgments, the process of considering and
weighing the factors enumerated by the Legislature imposes some measure of
balance and consistency on what could otherwise be a subjective and
undisciplined approach to decision-making. The statutory factors provide a
standard against which to assess the adequacy of the decision-making
process. To the extent the family court departs from the statutory
factors, and the weight of certain factors is distorted, the family court's
decision goes beyond being a discretionary one; meaningful appellate review
becomes nearly impossible. This is not consistent with substantial
justice.
43. The majority seeks to minimize the impact of the family
court's unsupported conclusion regarding the effect of repeated moves on
the children by arguing that the family court was really talking about the
impact of repeated moves on father's visitation rights. This effort is
unavailing. While the propensity of each parent to foster visitation was
properly considered under factor (5) of the analysis, factor (4) considers
solely the adjustment of the children to the proposed changes. It is in
this context that the family court determined that repeated moves would be
detrimental, and it is this conclusion that lacks any support. The fact
that a long-distance move (repeated or not) might exacerbate mother's
disinclination to foster visitation is a separate consideration, and does
not affect the validity of the analysis offered by this dissent.
44. The notion that repeated moves would be harmful to the
children was the repeated theme of the family court's decision. That
conclusion was admittedly without evidentiary support. The error was
prejudicial and requires reversal.
II.
45. The family court also erred by substituting its judgment for
that of the custodial parent, specifically by passing negative judgment on
mother's decision to relocate her family in support of her husband's
career. For example, the family court noted that "[t]he proposed
relocations are solely attributable to Mr. Parrish's career choice."
(Emphasis added.) Similarly, the majority accepts the family court's
determination "that, despite mother's status as primary caretaker, the
expected repeated moves of the children and lost contact with father were
unacceptable consequences of mother's decision to move only to follow her
spouse's new career." Ante, 12 (emphasis added). The terms "solely"
and "only" trivialize and devalue mother's choice to support her spouse's
career. We have held that "the family court, in considering the children's
best interests, must give deference to the custodial parent's choice of
residency and may not substitute its judgment for that of the custodial
parent merely because the court would have done something different had it
been the parent." Hawkes, 2005 VT 57, 11 (internal quotation omitted).
46. The need for deference to a parent's choice is well-grounded
in policy reasons:
Deference to the custodial parent's decision to relocate . . .
obviate[s] de novo consideration of who is best suited to have
custody, an issue which has already been resolved once by the
courts. . . . Second, it . . . tend[s] to maintain the child in
the family unit to which he or she currently belongs, and minimize
judicial interference with decisions which affect that family
unit. . . . Finally, it places the decision with the person best
able to consider the child's needs.
Lane v. Schenck, 158 Vt. 489, 495, 614 A.2d 786, 789 (1992) (quotation
omitted). All of these principles-avoiding duplication of judicial effort,
maintaining the stability of the family unit, and leaving decision-making
to the custodial parent-are abandoned where, as here, the decision of the
custodial parent to relocate is used as an opportunity to reopen the
difficult question of primary custody. Given that the best interests of
the child is supposed to be the polestar of the analysis, it is especially
troubling that such an approach tends to place a low priority on
maintaining consistency in the family unit-a result that is readily
apparent in the instant case. (FN9) As we noted in Lane, "[t]he place of
residence for a family is central to childrearing, and thus that decision
is understandably entrusted to the parent awarded parental rights and
responsibilities." Id. at 495, 614 A.2d at 789. "Mere disagreement" with
a parent's decision to relocate is not a sufficient basis for transferring
custody away from that parent. Id. at 496, 614 A.2d at 789.
47. The restraint we advocated in Lane is consistent with the
American Law Institute Principles of the Law of Family Dissolution, which
we have otherwise relied on to resolve difficult issues related to parental
relocation. (FN9) The ALI approach on this precise issue-which has not
been adopted in Vermont-is to allow relocation by the custodial parent
where the motive for the decision is valid and the decision has been made
in good faith. ALI Principles of the Law of Family Dissolution
2.17(4)(a) (2002). Under this framework, "if a parent has been exercising
a clear majority of custodial responsibility and the move is in good faith,
no further analysis is required. The court is not permitted to prevent a
relocation simply because it determines that such a relocation would not,
on balance, be best for the child." Id. 2.17 cmt. d. Rather, the move
is permitted, and visitation schedules are altered accordingly, primarily
by shifting from more frequent, shorter visits to less frequent but more
extensive visits. With this approach, the best-interests analysis is
broached only if the custodial parent fails to show that the relocation is
for a valid purpose, in good faith, and to a location that is reasonable in
light of the purpose. Id. 2.17(4)(b).
48. As the comments to this section explain, "[t]he Principles
reflect . . . [an] emphasis on maintaining continuity in caretaking, and
the view that when the child has had one clearly primary caretaker, the
best interests of the child are more closely tied to the interests and
quality of life of that caretaker than to the other parent." Id. 2.17
cmt. a. In connection with this approach, the section recognizes a number
of presumptively valid motives for a custodial parent's decision to
relocate the family, including "to be with one's spouse or domestic partner
who lives in, or is pursuing a significant employment or educational
opportunity in, the new location." Id. 2.17(4)(a)(ii)(5).
49. Vermont has not adopted the ALI framework to the extent the
ALI principles recognize presumptively valid motives for relocation that
preclude re-opening the subjective and divisive best-interests analysis.
Nonetheless, we have consistently held that Vermont courts should refrain
from second-guessing the validity of a custodial parent's decision to
relocate based on subjective and value-laden considerations, and this is
consistent with the thrust of the ALI approach. Absent such restraint, the
"violent dislocation" of transferring custody is too lightly entered into,
as it was in this case.
50. In sum, not only was the pivotal finding in this case
unsupported by any evidence, it represented an instance of the family court
inappropriately substituting its judgment for that of the custodial parent.
The custody order should be reversed.
51. I am authorized to state that Justice Skoglund joins this
dissent.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Father acknowledged that, during shopping visits, his girlfriend helped
pick out clothes and shoes for his daughter, and that he was therefore
unaware of his daughter's shoe size. Contrary to mother's assertion,
however, we are not persuaded that such ignorance undermines the court's
finding concerning father's extensive role in the care of the children.
FN2. The dissent's claim that no evidence supported the family court's
conclusion that repeated relocation would be detrimental to the children,
post, 34, fails to acknowledge as detrimental mother's degradation of
father's visitation rights, her dishonesty in connection with her plans to
move, and her unjustified estrangement of the children from their father.
FN3. The dissent contends it was error for the family court to accord some
degree of preference to maintaining the children's relationship with their
father over the step-father, when their relationship with the step-father
was also beneficial. Post, 41. We do not agree that consideration of
father's status must be limited, as urged by the dissent, to each child's
relationship to him and his capacity to "provide the child with love,
affection and guidance" as outlined as one of the "best interest of the
child" factors under 15 V.S.A. 665(b)(1). This argument appears settled
by the Legislature's additional and explicit declaration of public policy
in 650 that, at the least, presumes continued maximum parent-child
contact "is in the best interests" of the children, "unless direct physical
harm or significant emotional harm to the child or parent is likely to
result from such contact." Id. (emphasis added). Neither type of harm was
alleged here, and the family court was persuaded that the children's
continued contact with "both parents," the ultimate legislative goal, was
not reasonably likely if physical custody vested in mother.
FN4. The court deemed two of the statutory factors-regarding shared parental
rights and responsibilities and evidence of abuse-irrelevant. 15 V.S.A.
665(b)(8) & (9).
FN5. While this statement may reflect the family court's assessment of the
parties' credibility, there is nothing in the substance of the parties'
testimony supporting this conclusion. To the contrary, both parents and
their new partners expressed a commitment to facilitating the children's
contact with the noncustodial parent. To the extent the family court and
the majority conclude that mother affirmatively alienated the children from
father, I do not believe such a conclusion is supported by the record.
Rather, the testimony established that mother moved from the marital home
only in response to father's decision to stop picking up the children from
daycare, and only after trying to continue to make the arrangement work for
six months. Further, the uncontested testimony was that father voluntarily
relinquished his Tuesday overnight visits with the children before mother
moved to Vergennes, and later voluntarily relinquished Sunday overnight
visits. But in any case, as discussed in 43, infra, even assuming the
family court properly concluded that father was somewhat more inclined to
foster visitation, this does not change the fact that the family court's
critical conclusion regarding the impact of relocation on the children was
unsupported by any evidence.
FN6. There was, in fact, extensive testimony from the parties as well as a
daycare provider regarding the extent and nature of Matt Parrish's positive
relationship with the children-but this testimony was given scant attention
by the family court. In particular, in January 2004, after father stopped
picking up the children from daycare, Matt Parrish took on this
responsibility. He moved into the home with mother, the two children, and
his own young daughter in March of 2003, and they lived together as a
tightly knit family unit from that point forward. Mother married Matt
Parrish after her divorce from father was final. There was lengthy
testimony to the effect that Matt spent a great deal of time with the
children, and that the three children considered each other as siblings.
FN7. As described above, with this statement, the family court glossed over
extensive testimony about the nature and depth of the children's
relationship with Matt Parrish and his daughter. This was error. See
Cloutier v. Blowers, 172 Vt. 450, 452, 783 A.2d 961, 963 (2001) (court is
required to take into account all evidence relevant to best interests of
the child).
FN8. See, e.g., Lane, 158 Vt. at 498, 614 A.2d at 791 ("After dissolution of
a marriage, a new family unit . . . is created. Allowing the new family to
flourish is in itself conducive to the best interests of the children
involved.").
FN9. See Hawkes v. Spence, 2005 VT 57, 13, 178 Vt. 161, 878 A.2d 273
(adopting 2.17(1) of the ALI Principles of the Law of Family
Dissolution). |