Tuesday, August 9, 2011

Family Recipes (for Disaster)

By Michael Tarrant

Hazlett v. Toomin, 2011 VT 73 (mem.)

This is a child custody battle; or, perhaps better stated, a child custody tale of woe.  In cases like this, it is hard to pin the “winner” label on anyone, because it ultimately seems that despite whichever parent gets the favorable court ruling, everyone loses.

We begin with the classic “boy meets girl.”  Father and Mother—met back in 2001 when Mother lived in New Jersey and Father lived in Vermont.  Both already had children from previous relationships.  Father and Mother were involved for several years before Mother decided to give up Jersey and its shore to settle down with Father and several of her children in a rental house in Vermont.  Marriage, although discussed, never happened. 

In 2005, Mother and Father’s relationship took a turn for the worse when Mother (apparently unexpectedly) informed Father that she was pregnant.  Their relationship, already somewhat shaky, broke with this news and Father moved out shortly thereafter.

Father saw little of Mother during her pregnancy.  Daughter was born in autumn of 2009.  Although Father attended the birth of Daughter, he had little subsequent contact with Mother or Daughter afterwards due to work and other circumstances.  Mother, facing financial difficulties during and after the pregnancy, moved back to New Jersey.  Father did not visit Daughter during this time, and Mother did not encourage visitation either.

In 2006, Father established paternity and a court awarded Father visitation rights on alternate weekends.  Mother had since returned to Vermont, and Father was now seeing Daughter even more than the court order required.

Mother and Father tried to work out their differences—Mother, Daughter, and four of Mother’s other children moved into a house Father had built.  Father began to care for Daughter even more, picking her up from day care and taking care of her until Mother returned home from work when the two of them would share care-taking responsibilities.

But all was not well in Mudville.  One evening, early in 2009, Mother and Father had a falling out.  Alcohol was involved.  Police were called.  Intoxicated Mother tried to leave their home with Daughter.  Eventually with police help, the parties calmed down for the night.  Mother moved out the next morning.

Father then filed for review of parental rights and responsibilities and to reduce child support.  But Mother and Father were not quite ready to give up the ghost—while Father’s motion for review was pending, the on-again-off-again couple tried reconciliation one more time, each sharing in the care of Daughter as their respective schedules allowed.  Sadly, their reconciliation was short lived, and another dispute—this time violent—resulted in Mother and Father each seeking Relief from Abuse (“RFA”).  The RFA was issued without any written finding regarding abuse.  It granted Father weekend visitation rights, but it ordered the couple to “share” parental rights, and it also required the parents to communicate about parent-child contract through an intermediary. 

A motion to modify parental rights and responsibilities was filed, and following four days of hearings the trial court found that a “real, substantial and unanticipated change of circumstances” had arisen.  The trial court then performed a “best interests of the child” analysis under 15 V.S.A. § 665(b).  The trial court found many factors weighing in favor of custody going to Father, including factor (b)(5)—that Father was better able to communicate with Mother and thus better able to foster a positive relationship between Mother and Daughter.  But in “a very close decision,” Mother’s role as primary caregiver tipped the decision to grant Mother primary legal and physical rights and responsibilities.  As first-runner up, the trial court granted Father liberal parent-child contact time.  Father, disappointed with his consolation prize, appealed.

In reviewing child custody decisions, the SCOV affords the trial court “broad latitude in determining the child’s best interests.”  Essentially, unless the trial court abused its discretionary power, the SCOV will leave well enough alone.  Unfortunately for Father, this is exactly what happened.

Father first argues that the trial court gave insufficient weight to his superior ability to foster a positive relationship between Mother and Daughter and Mother’s inability to do likewise.  Father argues that this statutory factor is “critical” and is entitled to more weight than any of the other factors.  Granting this one factor more weight, Father concludes that the analytical balance should have tipped custody in his favor.

The SCOV holds that although the ability to foster a positive relationship between the other parent and the child is a “critical factor,” but unlike the primary caregiver factor, the SCOV has never granted it superior weight.  Finding no abuse of discretion in the trial court’s decision to award primary custody to Mother due to Mother’s role as primary caregiver, the SCOV finds no error.

Father next argues that the incident in early 2009 when Mother attempted to leave the residence with Daughter after consuming alcohol constituted “abuse” under factor (b)(9).  The SCOV finds no factual support for this argument in the trial court’s decision.  Although the trial court found that Mother did intend to leave with Daughter during the incident, the trial court never found that Mother drove with Daughter, was over the legal limit for alcohol, or even that she entered a car while possibly intoxicated.  The SCOV found important that the trial court had considered Mother’s alcohol use as a serious concern, but ultimately discounted it.  Again, the SCOV finds no error in the trial court’s analysis.

Finally, Father argues that notwithstanding Mother’s role as primary caregiver, the trial court should have considered the quality of Daughter’s relationship with Mother.  He argues that because the trial court never expressly discussed the quality of their relationship, the court abused its discretion.  Not to be caught flatfooted, however, the SCOV takes a deep breath and politely informs Father that so long as the record “as a whole” indicates consideration of every element, the trial court “does not need to directly address every element of every factor in assessing the best interests of the child under § 665.”  Thus, despite not directly addressing the quality of Mother’s and Daughter’s relationship, the trial court sufficiently analyzed their relationship to the satisfaction of the SCOV.  No error here either.

Although the silver lining is sometimes lost in the storm, if we’ve learned nothing else, it appears certain that each parent cares deeply for Daughter.  Hopefully that love stands the test of time and the parties’ behavior toward each other.

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