Buffalo Wings

By Andrew Delaney

Parker v. Parker, 2012 VT 20 

The bottom line here is that the statement: “That’s it! I’m moving to Buffalo!” is not enough to establish a real, substantial, and unanticipated change in circumstances for purposes of modifying parental rights and responsibilities.

Mom and dad separated.  Mom received sole physical rights and responsibilities and mom and dad shared legal.  Most people call parental rights and responsibilities “custody” but that doesn’t sound as fancy.  Sometime later, mom filed a motion to modify parental rights and responsibilities.  Dad filed a cross-motion for the same.

Mom and dad apparently had different parenting styles.  For example, dad contended that mom alienated him and unnecessarily involved law enforcement in family activities. 

The court granted dad’s cross-motion, granting him sole legal and physical parental rights and responsibilities.  The court set a fifty–fifty parent-child contact schedule.  Mom got religious-decision-making responsibilities.

Regarding physical parental rights and responsibilities, the court essentially found that mom’s proposed move to Buffalo was the statutorily required “real, substantial, and unanticipated change in circumstances” that warranted changing physical right and responsibilities.  So, basically, dad gets sole physical to prevent mom from moving to Buffalo.  More or less.  

On appeal, mom challenged only the court’s transfer of physical parental rights and responsibilities to dad.   The thrust of her argument was that the court erred in finding that a custodial parent’s desire to relocate is, in and of itself, sufficient evidence of that parent’s unwillingness to foster a positive relationship between the children and the noncustodial parent.

Naturally, dad argued that there was sufficient evidence provided at trial to support both the finding of changed circumstances and a transfer of physical parental rights and responsibilities to him.  Basically, he argued that the move to Buffalo was simply a droplet of water in an ocean of problems.  That’s my paraphrasing anyway.

The SCOV’s first order of business is to determine whether the trial court made findings of fact.  The SCOV notes that the trial court was aware of the dysfunctional relationship between the parties and that neither party requested findings.  In the end, the SCOV decides that the trial court made partial findings.

But, the SCOV notes that those findings must support the decision.  Because the SCOV is unable to fully discern the basis for the trial court’s decision from its limited findings and conclusions, the SCOV concludes: “To the extent that the court’s finding of changed circumstances followed automatically from mother’s desire to relocate, the court erred.”

The SCOV further explains that “the court’s findings are insufficient to support the conclusions upon which the court relied in determining that there were changed circumstances that warranted revisiting the question of child custody.”

The SCOV rejects mom’s argument that the trial court was required to make findings regarding every factor set forth in the best-interests-of-the-child statute.  The SCOV notes that the factors are suggestions for what the trial court may consider in reaching a decision. 

Although the SCOV remands for more findings, it takes no position on the trial court’s decision.  The SCOV notes that there were two contested hearings on the issues.  The SCOV also notes that its “examination of the transcript of the custody hearing reveals abundant testimony by both mother and father on issues surrounding the breakdown of the parties’ relationship, their inability to communicate, and the children’s best interests generally.”  The SCOV notes that the trial court could base its decision on remand on the evidence already before it and simply make supplemental factual findings. 

What the SCOV seems to be saying, without coming right out and saying it, is that decisions regarding parental rights and responsibilities have to be more specific and supported by facts than, say, a SCOV Law summary. 

We promise not to take it personally.