016 VT 81
By Elizabeth Kruska
I like the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). I like it because it’s a set of rules that deals with things that happen in real life. Let’s suppose Mother and Father are married and have a child. Then they divorce and Mother gets primary physical custody of Child, but Father gets visitation. These are things that happen to real people. This is normal and part of what goes on in the world. Another thing that happens in real life is that people move. Sometimes people move to different states. This is also normal.
However, there can be complications. With respect to child custody, if people can’t agree on how to solve a problem that arises because one parent or the other has moved to another state, there are rules. Those rules are the UCCJEA.
Here’s what happened in this case. Mother and Father lived in Vermont and had a child who also lived in Vermont. A divorce was filed and granted, and Mother was awarded primary physical rights and responsibilities of Child, while Father was awarded visitation. It’s not stated, but apparently right out of the gate Mother wasn’t allowing Father to have his time with Child, because Father had to file a motion to enforce parent child contact fairly soon after the divorce. Only ten months after the divorce was final, the trial court entered an order that admonished Mother that if she didn’t follow the parent child contact order that the court might change custody. The court also said that Father had full access to medical, dental, law enforcement, and school records of Child.
About ten months later Mother and Child moved to Virginia while Father continued to live in Vermont. I’m something of a geography buff, so I know that Vermont and Virginia, while alphabetically close, are actually pretty far apart in distance. Mother and Father also recognized this, so they came to an agreement not long after Mother moved, agreeing that Father would get parent child contact over Christmas and for the following summer.
Guess what didn’t happen. If you guessed “the Christmas visit” you’d be right. Father filed another motion to enforce the parent child contact order. There were other issues raised regarding Child’s schooling, inasmuch as Father didn’t know where Child was going to school, so he really couldn’t have any access to records or other information. The court ordered that Child would travel to Vermont to visit Father from June 28-August 28, 2015, but that if Child was enrolled in school in Virginia, that the return date would be the Sunday before school starts.
So, Father buys a plane ticket for Child to come visit. Child allegedly refuses to get on the plane. Father files another motion to enforce, and Mother’s response is to drive Child to Vermont for the visit. It comes to light that Child is enrolled in school, so the visit period would have to end the Sunday before school starts. Father says, “Okay, where will Child be attending school?” but that information was never provided.
Back to court they go, and the court required Mother to sign releases authorizing Father to have contact with the school and school personnel regarding Child. Mother did not do this, and Father had to file another motion. Based on the opinion, it looks like in less than 3 years following the divorce, the parties were back in Vermont Family Court at least four times, if not more, regarding parent-child contact.
Mother then tried to file to transfer jurisdiction of the family court order to Virginia. Her rationale was that she and Child lived in Virginia at this point, and that it would be inconvenient for further litigation to continue in Vermont.
Virginia whips out its copy of the UCCJEA and determines that Vermont would have to decline to continue to have jurisdiction over the case. Since Vermont still had jurisdiction, Virginia was not in any sort of position to do anything with the family court order.
The Vermont Family Court then took up the matter of jurisdiction and decided Vermont is not going to relinquish jurisdiction to Virginia. See, that’s the cool thing about the UCCJEA. Where there is an issue between two states, it gives the original state the power to decide if it makes sense to maintain jurisdiction over a case or if it makes sense to relinquish it to another state. Just because someone who was a party to a family court case moves doesn’t automatically mean that the case moves, too. Sure, there are plenty of circumstances where it makes sense to change jurisdiction, but there are also times when it doesn’t make sense.
Mother made a unilateral decision to move out of state, and after that happened, there were several filings and contested matters. The trial court determined that all those issues were as a result of Mother not complying with orders. The Vermont court had the original file and the history of the case. Father still lived in Vermont, and wanted to exercise his parent child contact in Vermont, so Child still had what is known as “minimum contacts” with Vermont.
Mother appeals and SCOV affirms the trial court. First, there was an argument about the trial court not finding Mother credible. SCOV, as it always does, says that it’s not going to second-guess the trial court on issues of credibility. They weren’t there – the trial judge was, and he or she is the one who is in the best position to determine credibility.
Mother also appealed sanctions imposed by the trial court, and SCOV upholds that, saying the trial court was completely within its right to do that too, since it was supported by the evidence.
Getting to the heart of the matter, Mother argues that the finding on jurisdiction was wrong. She argues that at the hearing she didn’t get to present evidence because it was labeled a “status conference.” She also argues that the finding was wrong because Virginia is now Child’s “home state,” and that Vermont is an inconvenient forum.
SCOV disagrees with all these arguments.
First of all, apparently the trial record shows that the trial court judge asked the parties if they were ready to proceed and have a hearing. Neither party objected, so the court held an evidentiary hearing. Mother was given the chance to say she wasn’t ready to present evidence, but she went forward anyway.
Second, Mother initially argued that since Child moved to Virginia, that Vermont doesn’t have jurisdiction anymore. The opinion suggests that Mother abandoned this argument. SCOV sets forth a really nice discussion of how the UCCJEA works, though. The long and short of it is that the original state keeps jurisdiction until it agrees to change it. One of the parties simply moving isn’t enough for jurisdiction to change. At that point the original state has to make a determination that the child or the child and one parent no longer have a significant connection to the original state, and that there really isn’t any evidence in the original state regarding the child anymore.
What does that mean? Let’s pretend the facts are different in this case. Pretend for a second that Child and both parents moved to Virginia and a year later an issue arose requiring court intervention. At that point it doesn’t make any sense to try to resolve the issue in the Vermont court, since everyone is gone and the facts surrounding the issue are all in another state. Vermont would probably relinquish jurisdiction in that instance and let Virginia take over since the parties and all the evidence is now in Virginia. But it’s up to Vermont to decide that, not Virginia.
So here, there had been a couple years’ worth of litigation that had all taken place in the Vermont court. The point of the litigation had to do with parent child contact with Father, who still lived in Vermont, and the contact was meant to take place in Vermont. It would make no sense to start over in a whole new court system when the Vermont court had been addressing the contact issues all along.
SCOV also disagrees with Mother’s argument that Vermont is an inconvenient forum. From a real life standpoint, it is probably not convenient for anyone to travel between Vermont and Virginia. But the court can’t just make an assumption about something like that. The problem was that there wasn’t enough evidence upon which the court could make findings. There is a list of factors for the court to consider in an inconvenient forum analysis, and there just simply wasn’t enough information for the court to use.
Finally, SCOV points out that there has been a lot of litigation, it’s all happened in Vermont, and that Vermont has quickly handled the issues at hand. The Vermont court has a history and knowledge of the case, including an admonishment to Mother that if she did not comply with orders, a change in custody potentially could be triggered.