Wednesday, July 1, 2015

Custody Considerations

Frazer v. Olson, 2015 VT 84

By Elizabeth Kruska

Ms. Frazer (Mom) and Mr. Olson (Dad) were married in 2000, had 2 kids, and separated in 2011. They filed for divorce in April of 2013, and the final divorce hearing happened over the course of a couple days in late 2013 and early 2014. Early on they had a hearing where the magistrate created a temporary order awarding parental rights and responsibilities to Mom. Dad had time with the kids after school a few days a week and overnight on Fridays. The magistrate made findings in the case and issued the temporary order. There’s a statute that sets forth various factors a court is supposed to consider in determining where kids should be; the magistrate took the evidence and made findings consistent with that statute. One of the things the magistrate found was that Mom was the primary caretaker for the kids.

The final hearing rolled around, this time before the Family Court judge. The Family Court judge saw things a little bit differently than did the magistrate. Nevertheless, she still awarded sole parental rights and responsibilities to mom, and made a visitation schedule for dad.

Mom appeals. 

In the hearing in April of 2013, the magistrate found that Mom was the primary care provider for the kids before and after the parents got separated. She also found that the kids had a significant relationship with Dad. She issued the temporary order giving temporary legal and physical custody to Mom.

A temporary order is just that. The whole point of it is to get something into place while the rest of the case works itself out. The temporary order goes away when the court makes a final order.

The Family Court judge heard testimony at the final hearing and found that the parents both encouraged the kids’ intellectual development and shared time with them in loving ways. The Court also found that the kids were anxious, and that the parents had different parenting styles and approaches to the kids’ anxieties. The Court considered the statutory factors based on the evidence in the final hearing and ultimately awarded physical and legal rights and responsibilities to Mom. The Family Court judge made different findings than did the magistrate.

Mom asked the Court to reconsider the final order, arguing that the Court misconstrued the evidence and that the judge’s findings were inconsistent with the findings the magistrate made early on in the case. The Family Court denied the motion and said it wasn’t bound by the magistrate’s findings. This is what Mom appeals.

SCOV affirms. First, it says that the final order replaces the temporary order. Mom makes a statutory argument here. There are two statutes at play; one says the magistrate shall make findings of fact and issue an order. The other statute says the court may make temporary orders pending a final hearing. SCOV says this doesn’t mean that the Family Court is required to make the same findings that the magistrate made. It can, but isn’t required.

Mom also argues that the Family Court’s findings don’t support the conclusions. SCOV only ever disturbs factual findings if they’re clearly erroneous. SCOV says that’s not the case here. In a domestic case, when the court is asked to make a determination of where kids are supposed to go, the court considers what’s best for the kids, not what makes the parent happy.

Mom takes issue with the fact that the Family Court found that one of the statutory factors favored Dad. On that particular point, SCOV didn’t find any error, because the Family Court backed up its conclusion with findings based on the evidence.

Mom also takes issue with a factor relative to the children’s primary caregiver. The magistrate found that Mom was the primary caregiver for the kids. There was evidence that Mom was a teacher, and worked part time so that there could be more parent-child time; Dad worked full time, which meant he spent less time with the kids. The Family Court found something a little different than the magistrate’s original findings; that prior to the parents splitting up that they shared caregiving. After they separated the kids were mostly with mom but also had contact with Dad. The Family Court found that the “primary caregiver” factor favored Mom.

Mom points out that the judge made a conclusion that “neither [Mom] nor [Dad] should be regarded as the primary caregiver for the children” and that it was based on evidence at the final hearing. But this doesn’t change the fact that the Family Court gave her full parental rights and responsibilities for both kids. Her worry is that because of that inconsistency that she won’t have a good basis for a “meaningful review” of parental rights and responsibilities in the future. SCOV doesn’t understand how her rights are diminished.

Mom also appealed an issue with the property settlement, saying that the Family Court didn’t take into consideration the fact that she worked part time and spent a lot of quality time at home with the kids. Although that’s not a contribution to the marriage in the form of dollars, it’s important and needs to be considered. SCOV reviews this for an abuse of discretion and denies this. Mom’s testimony was that she couldn’t afford to pay for the marital residence and that she wanted to be compensated appropriately for her share of equity. So, the Family Court awarded her a sum of money. SCOV doesn’t see a problem here.

Justice Robinson concurs, because she agrees with the result. She doesn’t quite understand what’s happening. Mom was awarded parental rights and responsibilities for the kids because of the factors that favored that. She also points out that the Family Court really thought that the kids would benefit from more time with their Dad, and increased that time despite the fact it found that Mom was the primary caregiver.

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