Take Me Away

By Daniel Richardson

Chickanosky v. Chickanosky, 2011 VT 110.

Family division cases, particularly contested family division cases, are rarely pleasant to read.  The reader is forced to confront a family in crisis that is devolving into different states of dysfunction.  The one who usually feels the brunt of this is the child who is treated as a human shuttlecock careening off of one parent to the other.  The problem is usually not a lack of love.  Both parents to continue litigation must have love for the child close to their respective hearts.  It is that each parent’s love and affection is incompatible with the other’s.

The parents in today’s case are prime examples.  Reading the decision, it is easy to see that both mom and dad love their daughter and have affection for her, but each has very different views on how their daughter’s life should work.

Parents divorced in 2005 and split custody of daughter.  Both parents established new families but continued to share custody and co-parent on occasion.  This situation did not last.  In 2008, the parties sought to modify the custody arrangement.  The trial court agreed and awarded father primary legal responsibility for daughter, which included overseeing her after school extracurricular activities.  Basically, mother kept her rights to see and have custody of daughter half of the week, but father now would get to call the shots on who daughter’s doctors and dentists would be as well as her extracurricular activities.

While an appeal from this decision was pending, father filed a second motion requesting primary physical responsibility of daughter because of a real, substantial, and material change in circumstances caused by his family’s decision to relocate to Missouri. 

The trial court found that father’s reasons for moving were to be near his new wife’s family, the low cost of living in Missouri, to avoid the tense situation with the daughter’s mother, to abate the effect this situation was having on daughter, and to avoid further fund draining litigation with the mother.  The trial court also found that mother was making it very difficult for father and for daughter to have a relationship with both parents.  It found that daughter had a strong community of friends in Vermont.  And it found that father was more likely to make a decision in the best interests of the daughter.

The trial court concluded that father had established a material change in circumstances warranting a change to the custody arrangement.  After that ruling, the next step for the trial court was to put all of these findings up against the 9 factors for determining what is in the best interests of the child.  The trial court concluded that it was in the daughter’s best interest to go with father. 

On appeal to the SCOV, Mother went after the evidence presented at the trial court.  She argued that the trial court got the father’s reasons for moving away all wrong.  It was primarily to get away from her (not a legitimate reason to move).  The SCOV, however, does not, as a general rule, disturb the trial court’s findings without something more (lack of evidence, overwhelmingly contradictory evidence, etc.).  And it does not here. 

Mother next attacked the evidence because father’s expert witness included several statements from others, who were unavailable to appear in court (hearsay).  The SCOV acknowledges that the trial court’s use of such evidence was outside the rules, and it spends a fair amount of time unpacking the role and limits of “hearsay” in an expert’s report (it is allowed but only to the extent that similar experts rely on such statements in their report). 

The SCOV states that expert witnesses are not back doors to get inadmissible evidence into a hearing.  But in the end, it applies the no harm no foul doctrine to brush the issue off as minor and not enough to garner a reversal.  In particular, the SCOV finds that the record has plenty of evidence of the mother’s behavior to support the same conclusion that the trial court may have had reached using the tainted expert evidence. 

Shifting to the legal standards involved, mother argues that one parent in a joint custody situation who chooses to move to another state does not give rise to a material change in circumstances warranting a revision to the custody agreement.  The SCOV disagrees and points to its prior holding that one parent’s foreseeable permanent relocation to a state located over 800 miles away constitutes a material change in circumstances. 

Mother’s next arguments sought to challenge the conclusions of the trial court on the various factors it used to determine what was in the best interests of the child.  The SCOV runs through mother’s arguments and either dismisses them or agrees.  In the end, however, mother’s arguments are simply not enough as a strong majority of the factors remain in father’s favor.  The trial court is affirmed. 

So mother loses her appeal and will likely be spending more time in the Show-Me-State than she imagined.  One hopes that no matter what happens, both parents can continue to show love and affection for their daughter, even if that means tempering it to fit with the other parent’s court-defined role.