Thursday, July 23, 2015

Changes

Falanga v. Boylan, 2015 VT 71

By Elizabeth Kruska

Chris Falanga (Dad) and Kerry Boylan (Mom) have a child (Child) who is, at this point, about three years old. Child was born in January, and the family lived together as a family unit until fall of that same year. Then Mom asked Dad to move out, which he did, and moved in with his own parents in the next town over. Dad filed a parentage action in the Family Court. They were never married, so this is the correct procedural step for establishing custody and visitation.

Ultimately, the Family Court ordered that Mom would get physical and legal custody of Child, and that Dad would get visitation that essentially amounted to a quarter of Child’s time.

A little over a year later, Mom decided she wanted to move to Georgia. She had a boyfriend, and their plan was to relocate there and to take Child with her. Dad filed an emergency motion to give him full custody because Mom was moving away, and as far as Dad was concerned, this was going to be a “real, substantial[,] and unanticipated change of circumstances.” You guys, the opinion quotes the statute, so I went to look at the statute. Apparently the legislature doesn’t use the Oxford comma.

There are a lot of things in this world for us to get upset about. This is one of them. Use the stinkin’ Oxford comma. It makes everything make so much more sense. I realize this might be the most controversial thing I ever write in a SCOV post. Haters gonna hate; commas gonna comma except for where there is no comma and the reader gets confused.


The Family Court held a hearing. Mom and Dad both testified about the upcoming move, and the court held that Dad didn’t show that the change was enough to change custody from Mom to Dad. The Family Court found that even though Mom’s move with Child would disrupt the current schedule, that there could be a way for Dad to have longer, extended visits. The Court also found that Georgia isn’t that far away (closer than Mars, I suppose) and that there are lots of flights back and forth.

Shortly after the court issued its decision, Mom moved to Georgia with Child. Another hearing got scheduled, but that was cancelled because Dad filed a notice of appeal. Dad argued that the court’s decision wasn’t supported by law. Dad also decided to move to Georgia to be closer to Child. Mom’s response to the appeal was that Dad’s appeal was now moot because he moved.

SCOV ultimately affirms the Family Court’s decision.

First, it says that the issue wasn’t moot. Even though Dad’s stated intent was to move to Georgia, it turns out that isn’t a permanent plan. He termed it “indefinite” which isn’t the same as “permanent.” The record doesn’t show anything about how long Dad plans to stay in Georgia, so SCOV says that it can’t really be shown whether or not he’s going to stay. Because of that, the issue isn’t moot.

SCOV then goes on to address the issue of whether the court correctly found that moving to Georgia was not enough of a change in circumstances such that custody should get changed from Mom to Dad. SCOV upholds the lower court’s decision.

If a parent files a motion like Dad did here, there’s a pretty heavy burden to show that there are changed circumstances. There are a couple of steps here. First, is to determine whether changed circumstances exist. In figuring this out, the court is supposed to look at all the relevant circumstances surrounding what’s going on with respect to the current custody arrangement. There isn’t really an exact recipe for figuring this out. The court is supposed to look at things like which parent has primarily had custody and for how long, whether the noncustodial parent has been having visitation, the distance of the move, and whether there’s alternative parent child contact available.

Here, Mom had full custody of Child for pretty much all of Child’s short life. Dad was spending time with Child, but it was really only about a quarter of Child’s time. Mom’s proposed move is over a thousand miles away. These are just some of the things the court had to consider.

Next, the court has to consider whether the move would significantly impair Dad’s ability to spend time with Child. Mom proposed changing the schedule so that instead of having some overnights more frequently, that Child could fly back and forth from time to time and spend longer chunks of time with Dad. Mom also suggested that Child could Skype and Facebook with Dad. Mom testified that she would fly with Child until he was big enough to fly by himself. She also proposed they’d split the travel costs.

Dad testified that he’d have to forego paying bills for a couple weeks in order to be able to afford plane tickets. He also said it would be a burden to have to travel to and from the airport for pickups and drop offs.

The court took all things into consideration and found that Dad didn’t meet his burden in showing that the move was such a change in circumstances that custody should be changed from Mom to Dad.

The court found that Mom was the sole custodian of Child and that Dad spent only a quarter of Child’s time with him. Dad always had and participated in his scheduled visits. Although traveling would cost him money, Dad wasn’t able to give a comparison to the court of how much more it would be than he spent under the prior order. Also, since Dad was spending about 25% of Child’s time with him, this change only would shift what the time looked like. It would decrease it some, but it’s not as if Child and Dad spent half their time together and then would spend very little time together.

Under the current case law, this just isn’t enough to find that there’s a change in circumstances, so SCOV affirms.

We get a concurrence from Justice Morse! He’s retired but has returned as a very special guest star, kind of like when Nancy Reagan was on Diff’rent Strokes. I’m guessing he came in because Justice Eaton was the trial judge so he obviously can’t participate in the appeal.

Justice Morse agrees with the outcome under the current law, but doesn’t like the current way of doing things. He’s got no beef with what the trial court did; in fact, the trial court did everything the right way. He’s distressed that the law requires these two steps—first the determining whether there’d be a change and then moving on to the best interests—because the steps are really intertwined. He thinks the better way to do this would be to look at the whole picture in determining the best interests of the child.

Because of the two steps involved, it leads to the sort of ridiculous result here, which is to say that moving Child 1100 miles away from Dad isn’t a substantial change in circumstances. Justice Morse notes that both parents provided a lot of information about their respective involvements with Child. The trial court took note of what each parent did, but found that Mom had been the primary caregiver and decision maker. The trial court also found that even though visits with Dad wouldn’t be as frequent, that they’d be longer and would also not disrupt Child’s schooling or friendships he would make in his new home. The court found that although moving would be emotionally difficult, that Child would benefit from his new community, his school (when he starts), and from being with his mother.

Justice Morse reminds us what we all know; co-parenting is hard, and stuff like this makes it only harder. Unfortunately, the courts’ hands are tied with what is sort of an inflexible way to consider how to handle this kind of situation.

Justice Robinson isn’t having it and she dissents. Justice Dooley joins in.

She points out that the question in this case is not about whether or not Mom should be able to continue to have custody, but rather whether the change brought about by Mom’s move to Georgia was enough to trigger considering whether it was in the child’s best interest to change custody. It’s a slightly different question.

Mom had Child most of the time and Dad had visits. Mom proposed changing the schedule so that Dad would have Child with him about eight weeks a year, in four two-week periods. She testified about flying back and forth, and what the plans would be for that. Justice Robinson points out, though, that neither Mom nor Dad are people of means, and that was even reflected in an earlier child support hearing where the Magistrate found that both parents were struggling to meet their expenses.

Dad was involved in Child’s life. Mom’s move was going to be far away. Justice Robinson would really have liked for the trial court to have gotten to the second prong, which is the best-interests analysis. Although the trial court is allowed to make a decision if the moving party (here, Dad) can’t prove the first prong. But where we’re talking about a parent moving the child really far away, the two prongs are fairly intertwined. Justice Robinson doesn’t think that Dad had an adequate opportunity to present his case, and she would have remanded the matter to allow that.

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