Thursday, March 7, 2013

Who Is In Charge Here?



Engel v. Engel, 2012 VT 85

When can a court delegate its authority to determine parent-child contact and parental rights and responsibilities?  Short answer is—it can’t!

In today’s case, Mom and Dad were going through a less than amicable divorce.  Both seemed to have had problems—financial difficulties, clutter that was reaching A&E levels, verbal conflict, and physical abuse—all of which were contributing to the collapse of the marriage and trouble with the kids.  As a result, everyone agreed that the children, at least at first, should live with Mom’s parents.  Mom and Dad also stipulated to the trial court that Mom would have supervised visitation with the kids at the grandparents’ house. 

This did not last long.  Mom quickly wore out her welcome during these supervised visits at her parents’ home, and the visits switched to a nonprofit family center. 


At the same time, the trial court ordered a treatment team consisting of the kids’ pediatrician, therapist, and guardian ad litem to monitor Mom’s interactions with the children.  The trial court also gave the treatment team authority to change Mom’s visitation rights. 

It is fair to say that Mom continued to have problems.  The first occurred when the nonprofit family center suspended Mom’s visits because she tried to turn the center and its staff into her personal divorce–support headquarters.  Even after the center restored the visits, Mom continued to have confrontational and troubling interactions with her children. 

As a result, the family center suspended its services to Mom, again.  This second termination proved to be more substantial as the center refused to resume working with Mom.  In turn, the treatment team halted Mom’s visits until it could secure a new provider for the supervised visitation.  Due to the lack of alternative providers and some admitted delay on the trial court’s part, Mom went almost two years without visitation for lack of a supervisor.

During this time, trial court awarded Dad sole legal and physical rights and responsibilities.  Mom received visitation rights in three progressive phases.  The decision as to when visitation was to be advanced to the next phase was delegated to the sole discretion of the treatment team.  No standards or criteria were set to guide the team to when visitation was to be advanced.

Here is where the decision by the treatment team to suspend visitation for lack of supervision comes up short on appeal.  To suspend a parent’s visitation rights, the trial court needed to make a finding of clear and convincing evidence that visitation was detrimental to the kids.  The SCOV finds that not only was there no such finding but that the record does not support such a total denial of visitation.

So when exactly can a trial court delegate its authority to determine visitation rights?  According to the SCOV—almost never and certainly not in a manner that cedes the trial court’s control and supervision over the legal status of the parent. 

In other words, the SCOV distinguishes between instances where a third party determines the mechanics of visitation (such as what time and where and how) and the decision of whether visitations will occur at all.  While the treatment team, in this case, was looking out for the best interests of the kids when it suspended the visitations while searching for a new supervised site, the trial court was still obligated to protect the rights of Mom in light of the best interest of the kids. 

Thus, the SCOV will almost always find an absolute unconditional delegation of authority over the rights of a non-custodial parent to be improper.  For the same reasons, allowing the treatment team unchecked authority over advancement of visitation rights is reversible error.

What role, then, could the treatment team have played in this case?  Looking at the decision, it is clear that the treatment team could have made recommendations to the trial court, which the trial court would have been free to accept or reject.  The treatment team also could have made ministerial decisions regarding the mechanics of visitation so long as there was no denial of visitation.

Because the trial court failed to oversee and make decisions on either of these areas, the SCOV reverses and remands for further proceedings based upon the current best interests of the children.  This means the Mom gets another crack at obtaining regular contact with the kids, and the trial court can echo the sentiments of Michael Corleone.   

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