Monday, September 3, 2012

Unannounced Guests

Chickanosky v. Chickanosky, 2012 VT 52 (mem.).

Welcome back to the parties in today’s case.  They were last featured in an appeal from a year ago concerning the Father’s impending, post-divorce move to Missouri.  At that time, the SCOV affirmed the family court’s award of sole legal rights and responsibility to the father but granted summers to mother along with the right to see daughter if mother ever happened to find herself in Missouri.

As before, the central issue in today’s case is the incompatible love that the parents have for their child and the on-going difficulties arising from this conflict. 

The big difference this time around is that mother’s actions appear to have crossed a line and left her on the wrong end of the SCOV’s standard of review. 

The problem follows from the trial court’s 2010 order, which allowed father to move to Missouri.  The order also gave mother the right to come to Missouri and see the child during her visits.  The trial court, no doubt, envisioned occasional trips to the midwest and intended to give the parties some flexibility. 

In practice, however, mother began making multiple trips to the show-me-state.  In each case, she gave father very little notice.  Father, trying to work with mother, did not deny mother’s right to see child but became frustrated at the lack of notice and the disruption to his and to their child’s life. 

Mother, however, was undeterred and even rented a house located between father’s house and child’s school.  Mother did not tell father about this rental, and the secrecy caused their child to experience stress. 

Mother also demanded to visit the child in October of 2011 when she knew father was planning to be away for a vacation.  Mother held fast to this demand despite father’s explanation and his offer of alternative weekends.

Finally, mother gave the child an iphone when the child joined mother in Vermont in May 2011.  Mother did not tell father, and the incident caused a great deal of friction as it interfered with father’s desire to limit child’s access to the internet. 

All during this time, mother and father were filing emergency cross-motions to enforce, modify, and change the visitation schedule.  Following a July 2011 hearing, the trial court revisited the issues en masse and issued a lengthy decision further modifying mother’s visitation rights.  Following the court’s decision, mother’s summer custody of child was reduced to one month, and the remaining opportunities for visitation were laid out in detail in a specific visitation schedule. 

The trial court based this reduction on the fact that the mother did not appear to be working with father to ensure that the visits and transitions were conducted in a way that minimized the stress to the child.  In fact, the trial court found that mother acted in defiance of the best interests of the child by showing up in Missouri without adequate notice and creating a relationship with child that undermined father’s relationship with child.  Basically, mother had, in the trial court’s view, failed to play nice with husband for the sake of the child, and as a result, it reduced her interactions. 

On appeal, mother raises three arguments.  The first is that the trial court erred in modifying the summer visitation schedule because mother and father had not raised challenges to the summer visitation schedule.  The second is that father failed to show that there was real, substantial, and unanticipated change in material circumstances to modify the previous custody order.  The third is that the trial court did not properly take the best interests of the child into account in its order.

To the first argument, the SCOV rejects mother’s contention that the issue of summer visitation was not raised.  As the SCOV notes, the parties had filed several motions between July 2010 and July 2011.  In these motions, both parties had asked for modification and had raised issues about what they alleged the other was doing that violated the custody order.  Whether mother or father made a specific issue about the summer visitation is somewhat irrelevant.  Both sides agreed that the trial court needed to revisit the total number of days available to mother for visitation and father had raised concerns about the summer transition, which gave him very little non-school time with child.  The SCOV finds that these various motions and mutual issues were sufficient to raise the matter to the trial court and gave mother adequate notice that the summer visitation was up for review. 

As to mother’s second argument, the SCOV is even briefer.  Before and at the July 2011 hearing, mother also argued that there had been real, substantial, and unanticipated change in the material circumstances of father’s custody.  Mother cannot disclaim this position on appeal or argue that the court was incorrect in reaching a conclusion that she urged them to make.  Simply because the conclusion went against her, does not free her from responsibility of taking this prior position.

For mother’s final argument, the SCOV takes a look at the reasons for father’s frustration.  As the evidence shows, he has tried to support mother’s relationship with child, but mother has not done the same.  In fact, the SCOV finds that the facts show that mother’s has had a smothering relationship with child and has continued this relationship in a manner that undercuts father, creates stress for father and child, and does not seek out what is best for child. 

This is, no doubt, harsh words for mother, but it all goes to the central question in these cases: What is in the best interests of the child?  Originally, the trial court determined that father was able to provide the best atmosphere for the child and awarded custody on that basis.  Since then, the trial court found, mother had not acted in a manner designed for the benefit of child but in a way that focuses on her own interests.  On appeal, the SCOV finds ample support in the record for these findings, and it affirms the trial court’s determination.

So mother’s visitation remains reduced.  Hopefully, she will listen to court’s directions, work toward the best interests of child, and earn back some of her visitation days. 

After all, who wouldn’t want to come to Vermont for the whole summer?

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