Monday, July 14, 2014

Stepparent Standards Split

LeBlanc v. LeBlanc, 2014 VT 65

By Andrew Delaney

The parties to this case were married approximately a dozen years. During a separation early on in the marriage, mom got pregnant by another man. Dad attended the birth. The parties later got back together, and dad’s been there since his stepson was a year old. Later on, the parties had four more kids together.

Mom filed for divorce, and after a multi-day trial, the trial court granted the parties a divorce, set forth a visitation schedule, and awarded primary parental rights and responsibilities (except for medical decisions) to dad for all five children, including his stepson. Mom appealed arguing that: (1) the statutory requirements for divorce weren’t met; (2) the trial court erred when it awarded primary rights and responsibilities for her son (dad’s stepson) to dad; and (3) the trial court abused its discretion in setting the visitation schedule.

The SCOV majority says the trial court messed up when it awarded primary rights and responsibilities for the stepson to dad without a finding that mom was an unfit parent, but affirms everything else. Let’s take a look at the facts, shall we?

The majority notes: “The parties did not have a smooth marriage. Throughout the marriage, [dad] was generally passive and docile, but he would occasionally become angry. [Mom] was more hot-tempered than [dad], and at times she became very volatile.”

Mom was the primary caregiver for all the kids until the youngest’s birth in 2010. She developed post-partum depression and “had a significant psychological breakdown in April 2010 and was hospitalized for three weeks.” Then there was an overdose, another hospitalization, and a suicide attempt during the hospitalization that prolonged the stay.

Mom then did a six-week outpatient program and made significant progress. She was unable to return home from the hospital and began living with a man she met in the outpatient program. The trial court “found the nature of mom’s relationship with the man unclear.”

In late “2011, mom stayed at a crisis bed for three to four weeks.” She’s considered disabled and receives Social Security benefits due to her depression.

Because of mom’s illness, dad became the primary parent. He was not a “natural,” but appeared to be learning. The children were together in a relatively stable living situation. Dad was “a longtime marijuana smoker who had four convictions for marijuana offenses.” He claimed not to smoke the devil’s lettuce around the kids, but the trial court noted that the four convictions kinda spoke for themselves.

In early 2011, mom removed the eldest child from the home and began homeschooling him. That didn’t work out so well. He wasn’t happy and so he returned to dad’s home.

“Also in early 2011, [mom] stopped living with the man in North Troy and had no place to go.” She moved back in with dad by agreement, and began taking care of the children more frequently during the day while dad was at work. One doctor had opined that mom shouldn’t be left alone with the children. But dad was really able to use the help and so it went. Mom told dad she had multiple personalities. Sometimes she needed to sleep late and be left alone. She saw a counselor and took antipsychotic medication.

Mom filed for divorce while they were living together. There was an incident in 2012 where dad pushed mom and struck the wall next to her, which scared her. That incident was the basis for a relief-from-abuse order, though the trial court viewed that as a boiling point aberration and didn’t find a likelihood of further abuse. By the time of the final order, mom was living in temporary housing in St. Johnsbury.

So the trial court went through the statutory best-interest factors. On many factors, the parties were equal. The court found mom better able to meet the children’s developmental needs, but concluded that dad’s housing situation was more stable than mom’s, which it found significant—the kids were well-adjusted to dad’s place, close extended family was close by, and mom’s housing was in a state of flux.

While the kids had good relationships with both parents, dad was the primary caregiver in the court’s view. Though mom had worked her way back toward becoming a “regular” caregiver, she had not displaced dad’s role.

Thus, the trial court “found this to be a close case, and ultimately concluded that [dad] should have primary legal and physical rights in the children, with [mom] having the right to manage the children’s medical care.” The trial court also “found that [dad] had acted as his stepson’s parent and concluded, without elaboration, that the factors necessary to support an award of custody to [dad] were present.” Mom got parent-child contact each week from Monday morning to Wednesday evening.

Mom filed a motion for reconsideration, arguing that just saying the factors for awarding a stepparent custody are met without explanation doesn’t support an award of custody. The trial court denied the motion without explanation. Mom appealed.

Mom’s first argument is that the statutory requirements for divorce weren’t met—namely the living “separate and apart” requirement. This is based on mom’s testimony that she was still living with dad on the first day of trial, and that she and dad had engaged in “a sexual relation.” Since she didn’t raise the issue below, we’re in plain-error-in-the-civil-context territory. That means there needs to be a screw-up of epic magnitude before the SCOV will reverse. Justice Dooley writes for the majority.

The majority finds no plain error. Mom filed for divorce, and repeatedly indicated that she wanted a divorce. She also hung out with the guy she met in the outpatient program on weekends, and they had plans to move in together. Couples can be separate and apart, even while living under the same roof. The divorce is legit.

Next, mom attacks the trial court’s award of legal and physical rights and responsibilities (except for medical care) to dad with respect to their mutual children. This ruling was well within the trial court’s discretion, was supported by the evidence, and the majority is not about to fiddle around with it. The related challenge to the visitation schedule meets a similar untimely end.

Mom’s final argument gets some traction with the majority. While it’s against a highly deferential standard, the majority here concludes that the trial court failed to make findings to support its decision awarding dad primary legal and physical rights and responsibilities to his stepson. The gist of the reasoning is that when it comes to an award of custody to a stepparent, there have to be findings supported by clear and convincing evidence that the natural parent is unfit.

Because the trial court made no such findings, and in fact, it appears that there weren’t even really preponderance-level findings on this point, the majority reverses the award of parental rights and responsibilities for stepson to dad.

The majority then—as it invariably does when there’s a dissent—spends a few paragraphs explaining why the dissent’s reasoning is totally off-base.

The dissent, penned by Chief Justice Reiber, argues that the majority calls it a remand when it’s really not—it’s an order to award custody of the stepson to mom. Thus, the dissent reasons that “the effect of the decision is to separate the life-long siblings and place the oldest child with a parent who has serious unresolved mental health issues—even though the trial court determined that he should remain with step[dad] and his siblings.”

The dissent reasons that the factors to support an award of custody to a stepparent were met, but the dissent would go one step further and overrule the clear-and-convincing-evidence-of-natural-parent’s-unfitness-required-in-stepparent-custody-awards case. The dissent reasons that the most-important thing to consider is the welfare of the children, and that the same standard should apply to a stepparent that applies to natural parents.

The dissent makes a detailed case of why, on the facts of this case, the award of custody to dad was justified (the majority calls this cherry-picking). The dissent notes that the trial court is in the best position to make judgment calls based on the parties’ situations, not the SCOV.

Finally, the dissent lays out a detailed discussion on the preponderance-of-the-evidence as opposed to the clear-and-convincing-evidence standard, with plenty of citations in case you ever need to make that argument. The dissent reasons that the majority was wrong and basically argues that the majority conflated termination-of-parental-rights standards with custody-determination standards.

Justice Crawford joins the dissent.

Family law cases are generally difficult. And, in my opinion, family law litigation is the pits—the parties are unhappy, the lawyers are unhappy, and the judge has to make a momentous decision based on very limited information. And the kids are usually the ones who suffer the most.

Why can’t we all just get along?

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