Friday, October 1, 2010

Don’t Call It a Modification


Within six months after the birth of their daughter in July 2008, Mother and Father split and stipulated to a temporary custodial order that gave Mother sole physical and legal rights and responsibilities for their daughter.  The agreement gave Father contact with the child six out of seven days.  Over the succeeding year, Father took on more actual care and custody of the child, assisted by his parents.  Father also sought help for his alcohol and drug problem.  Mother’s year was rockier.  She lost her driver’s license for failure to pay fines.  She fell behind on her utility payments.  Her car was repossessed, and she lost her apartment.  Mother’s plan of action to combat her sagging fortunes was to take a month and a half to go to rock concerts up and down the East Coast.  Upon her return, she informed Father that she was enrolling in a theater-arts program at UC-Long Beach and that she intended to take their daughter with her. 

These events led both parents to file expedited requests with the family court, with one critical difference.  Mother requested a modification of the parent-child contact laid out in the December temporary order to accommodate her move.  Father filed for a final hearing and sought primary parental rights and responsibilities.

Due to a cancellation, the family court was able to take up both motions on the same day.  Neither side objected to moving directly to the final hearing on child custody, bypassing the modification motion.  In fact, Mother stated that she wanted a final hearing rather than return 3,000 miles for another hearing.  After testimony from the parties detailing, among other things, Mother’s summer bacchanal where a private investigator hired by the grandparents took pictures of Mother drunk and taking hits off a pipe, the family court ruled “that the interplay of statutory best-interest factors favored father overall” and granted him primary custody. 

On appeal, Mother contends that her due process rights were violated when the family court converted her modification hearing into a final hearing.  The Court ruled this claim was waived since Mother had more than 30 days’notice of Father’s motion during which she failed to object, and because she said on the record that she wanted a final hearing—albeit not one where Father was granted custody.

The Court reviewed Mother’s claim that the family court improperly took her drug use into account in its determination of the best interests of the child.  Under the highly deferential standard of review for family court decisions regarding parental rights and responsibilities, the Court had no problem affirming the decision by noting that 15 V.S.A. § 665(b)(1) (ability to provide guidance) and § 665(b)(2) (safe environment) covered Mother’s routine lawbreaking habits.

The Court, out of hand, dismissed Mother’s most creative argument: that the award amounted to a de facto award to Father’s parents.  It found that the family court’s analysis of the child’s relationship with her paternal grandparents was reasonable and was balanced with an analysis of her relationship with other family members.

Finally, the Court rejected Mother’s argument that the law of relocation, applied to the case since it was a final hearing on the merits of custody and not a modification of an existing order. 

Casting agents for the movie version are encouraged to hold auditions in the Long Beach area.

Daniel Richardson

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