Summer 2009-#3. Child Custody Cases in Vermont: What Is the Best Interest of the Child?.

Author:By Richard E. Miller, Esq.

Vermont Bar Journal


Summer 2009-#3.

Child Custody Cases in Vermont: What Is the Best Interest of the Child?

THE VERMONT BAR JOURNALVolume 35, No. 2Summer 2009 Child Custody Cases in Vermont: What Is the Best Interest of the Child?By Richard E. Miller, Esq.The standard for making child custody awards in Vermont Courts is "the best interests of the child."(fn1) The same standard is used in the courts of most other states, but custody awards in other states often differ significantly from those in Vermont.(fn2) What is deemed to be in the best interests of the child in Vermont differs from what it is in most other states. A purpose of this article is to examine Vermont custody laws and recommend changes.

How Child Custody Is Determined In Vermont Courts (fn3)

Child custody has two components, physical and legal.(fn4) In Vermont, physical custody almost always determines which parent the child lives with most of the time.(fn5) Legal custody determines which parent has decision-making authority over almost every aspect of the child's life, including education, health, religion, and after-school activities. Vermont is among only a few states that give either parent in a child custody proceeding the right to veto joint (meaning shared) custody, physical and legal.(fn6) Unless both parents consent, family court (the trial court) judges in Vermont are deprived of the option of crafting a custodial plan that includes joint custody in any form. This is so even when, in the judgment of the trial court, some form of joint custody may be in the best interests of the child.(fn7) Under 15 V.S.A. §665, joint custody of any kind is never in the best interests of the child unless both parents consent. This law has a significant impact upon the entire process of child custody and visitation awards, as will be evident from the discussion that follows.

Very early in divorce proceedings, custody and visitation decisions are made that often become permanent and have profound, long-term effects on the lives of the parties and their children.(fn8) Unfortunately anger and bitterness are norms in divorce cases. Marriages are failing and families are being broken apart. The emotional strain is so great on divorcing parties, men and women, that it is reasonable to describe them as temporarily unstable. It is not surprising that many mothers, suffering the acrimony and disorienting effects associated with the breakup of their marriages and the harsh realities of their divorce proceedings, veto joint custody.

Once joint custody is vetoed, an award of physical and legal custody is made to one parent in the best interests of the child, pursuant to 15 V.S.A. §665 and Cabot v. Cabot.(fn9)In order to determine the best interests of the child regarding custody and visitation, the trial court considers the evidence in light of a list of factors.(fn10)

Custody is given to the one parent who is found to be the "primary care provider," unless that parent is unfit.(fn11)Although the trial court is not supposed to have a preference based on the sex of the child or parent,(fn12) once joint custody is vetoed, as a matter of law sole custody awards are to the primary care providers during the marriage and those are almost always assumed to be the mothers.(fn13) As physical custody refers to the parent with whom the child spends most of the time, the visitation time of the non-custodial parent is never more and usually far less than the child's time with the custodial parent. Visitation on alternating weekends and a night or two in between is typical.(fn14) The process by which joint custody is vetoed by one parent thus has the practical effect of terminating fundamental parenting rights of most non-custodial parents, including decision-making and the ability to see one's child or children except at scheduled visitations.

If either party is dissatisfied with the determination of the family court and believes the court has made an error or errors of fact or law, he or she may appeal directly to the Vermont Supreme Court. The Supreme Court is supposed to defer to the decision of the trial court that heard the evidence first hand, and is not supposed to set aside the findings of the trial court unless they are clearly erroneous.(fn15) The Supreme Court may reverse the determination of the trial court if it is not supported by the evidence.(fn16) As will be discussed later, some decisions of the Supreme Court have been criticized by dissenting justices of that Court for usurpation of the functions of the trial courts in making child custody awards.

An examination of the landmark decision of the Vermont Supreme Court in Cabot(fn17) shows how these concepts work in practice. The relevant provision of the Vermont statute that permits unilateral veto of joint custody in any form was addressed in Cabot and provides in part:

...the court may order parental rights and responsibilities to be divided or shared between the parents on such terms and conditions as serve the best interests of the child. When the parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent.(fn18) Cabot holds that under section 665 each parent has veto power over any form of joint custody, physical and legal.(fn19)

In the Cabot case, divorcing parents Ellen and Tom fought over custody of their daughter who was nine years-old when the case reached the Supreme Court. Ellen vetoed joint custody in any form. The family court determined that both parents were devoted to and capable of caring for their child and both had been active in the child's life. Tom had attempted to maximize his time with his daughter since the divorce. The court found that Ellen had engaged in an ongoing, deliberate effort to sever Tom's relationship with his daughter and turn her against him. Despite this finding, the court awarded Ellen sole physical custody, but awarded legal custody jointly to them. It reasoned that Ellen was the primary care provider and therefore she should retain sole physical custody, but the damage caused by Ellen's attempt to remove the child from Tom's life was dealt with, in the best interest of the child, by his continuing, meaningful involvement in his daughter's life that joint legal custody would encourage.(fn20)

Both parents appealed to the Vermont Supreme Court. Tom argued that the findings of the family court, which acknowledged Ellen's attempts to interfere with his relationship with his daughter, supported an award of sole physical custody to him.(fn21) Ellen argued that joint legal custody violated section 665(a) of the Domestic Relations Law because she had objected to it. The Supreme Court found that on balance, Ellen's rights as primary care provider outweighed both Tom's rights and her interference with his relationship with their daughter. It confirmed the award to her of sole physical custody "in the best interests of the child." In addition, the Supreme Court overturned the lower court's award of joint legal custody based on section 665, and sent the case back for a different determination of legal custody. It found that joint legal custody violated the statute even though the trial court, by awarding joint legal custody, was seeking to provide a remedy for Ellen's unwillingness to foster Tom's relationship with his daughter.(fn22)

There was a strong dissenting opinion in Cabot. One judge found that the plain language of the statute permitted an award of joint legal custody in this case.(fn23) He reasoned that the majority opinion encouraged the primary care provider's objectionable conduct and thereby undermined the best interests of the child, which would be served by maximizing the physical and emotional ties with both parents. He took note of a national trend that is critical of any presumption against joint custody and recognizes the trauma caused by sole custody awards in which the noncustodial parent loses the right to remain an integral part of the child's life, thus exacerbating the child feelings of abandonment.(fn24)

The Supreme Court's majority opinion in Cabot remains the law of Vermont.

How Custody Is Determined in the Courts of Other States

It is not within the scope of this article to include a comprehensive review of the custody and visitation laws of every state, but a cursory review may be helpful to lend perspective to Vermont's approach to best interests of the child.(fn25)The statutes in approximately four out of every five states provide their courts with the authority to fashion custody awards that include joint custody and maximize time with a non-custodial parent. Many of these states have statutory presumptions in favor of joint custody.

The custody laws of states that border Vermont are typical of the custody laws in the majority of states. In New Hampshire, joint legal custody is presumed to be in the best interests of the child except in case of child abuse. In Massachusetts, each parent is required to submit a shared custody implementation plan, and the court may modify, grant, or reject the plan. In New York, joint or sole custody is determined in the discretion of the court according to the best interests of the child.

State custody laws vary from state to state, but a significant majority of states require or encourage parental participation in crafting a custody plan, leave all options open to the court to fashion...

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