Friday, October 28, 2011

Improper Search Terms

Rutanhira v. Rutanhira, 2011 VT 113

Some parents freak out when their children leave their sight.  These so-called helicopter parents hover around their children whether they are at home, on the playground, or hanging out with other kids.  It is an extreme outcropping of a common desire that parents have to keep their children safe.  Today’s case concerns what happens when parents disagree about what is safe.

Parents were married in 2004, had a daughter in 2005, and filed for divorce in 2009.  Everything, according to the record, went well between the parents with one big exception.  Parents agreed to split custody of the child, but mother was awarded sole legal rights and responsibilities at the end of a contested trial. 

Part of the reason why mother was awarded sole legal responsibility and rights was due to father’s travel plans.  In 2009, father, a citizen of the United States but a native of Zimbabwe, wanted to bring the daughter to Zimbabwe to meet family and allegedly leave her there stay while father went to South Africa to see some of the World Cup.  Mother objected, and father eventually acquiesced and cancelled the trip. 

This was insufficient for the trial court.  The fact that father even considered such a trip made him less worthy to exercise legal control over the child.  In fact, the trial court noted in its decision that it had gone out and done some research on Zimbabwe.  According to the trial court, Zimbabwe is a dangerous place where even thinking about taking your kids is tantamount to a failure to protect their best interests.  (Somebody should forward this to the travel agencies.)

On appeal, father raises three issues.  The first is that the trial court improperly conducted an independent investigation and used the results of its investigation without entering it into evidence.  The second is that the trial court found that father was going to leave daughter in Zimbabwe when he had no intention to do so.  The third is that the parties stipulated to father’s travel plans and promised not to raise them at the hearing.

The SCOV rejects the last argument because the language of the stipulation is ambiguous and does not clearly cover the Zimbabwe/World Cup trip.

Much more disconcerting to the SCOV is the fact that the trial court engaged in an internet research project after the close of evidence and used those findings to support its written decision.  The SCOV’s worries here run the continuum.  Information on the internet is not reliable (except certain Vermont legal blogs); no one knows what sites the trial court visited (; and father never had a chance to rebut the information with more pro-Zimbabwean sites ( or information.  By relying on information outside the hearing, the trial court committed an error. 

This is enough for the SCOV.  After scolding the trial court, the SCOV reverses and remands the issue back for a new hearing.  Since this is all the relief father had requested, the SCOV does not take up his first argument concerning his now theoretical World Cup plans. 

On remand, we would humbly recommend that the trial court consider the beauty of Victoria Falls, give a listen to the Bhundu Boys’ joyful contribution to world music known as jit rock, and just give Zimbabwe a chance.  Or as they say on the internets: OMG don’t be a h8ter :).    

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