2016 VT 106
By Elizabeth Kruska
This is actually a very interesting legal issue. I know, I know, you’re expecting a cheeky, plucky summary of a Vermont Supreme Court case. I’m really mostly interested in the nerdy, legal part of this case. Sorry. Next time, I promise.
So, without getting into all the particular facts of this case, it essentially involves Mom and Dad who had children. The relationship appears to have been fraught with abusive behavior over the years. Dad got charged with some criminal offenses relative to Mom. Mom filed a parentage action in the family court, and asked that she be given sole parental rights and responsibilities of the kids. The Family Court granted that, said that Dad could not have contact with the kids, and also said that Dad was welcome to file a motion seeking visitation once his criminal case was done. Dad appealed all that, saying that the Family Court effectively terminated his parental rights using the wrong standard, and that by forcing him to wait until the criminal case was over before he could see his kids, that it created a prerequisite that was beyond his control.
SCOV affirms, and gives a very good explanation of all this, and why this was entirely okay.
A timeline helps. Mom and Dad got together in 2005 and were a couple until February 28, 2015. In the intervening decade, they had two kids. They lived in Saratoga Springs for a while and then moved to Brattleboro to be closer to Mom’s family. On February 28, 2015, Mom and Dad got into an argument that culminated with Mom getting a Relief From Abuse (RFA) order that temporarily gave her custody of the kids. Father was also charged criminally with offenses related to the allegations Mom made in her RFA filing. He was arraigned on April 8, 2015, and then subsequently charged with and arraigned on more criminal cases over the course of the summer of 2015. The cases were not resolved until May 12, 2016, when father pled guilty to various charges and received a probation sentence. SCOV did not consider the outcome when writing this opinion.
So, during the sixteen months between the time of the issuance of the RFA and Dad resolving his criminal charges, a few really important legal things occurred. First, Dad couldn’t have contact with Mom or the kids as a result of various court orders. Second, the Family Division held its parental rights and responsibilities hearing.
Here’s the problem. Dad couldn’t testify at a hearing about allegations underlying the criminal case because he has the right to remain silent under the Fifth Amendment. Had he testified at the Family Division hearing about what he did that caused the criminal charges to be filed, anything he said in that hearing could have later been used against him in his criminal case.
This creates a quandary. The Family Division essentially found that Mom and Dad had a very abusive relationship, and that as a result, Mom understandably did not want to foster a relationship between the kids and Dad. But the Family Division also recognized that it only heard Mom’s side of the story and could not force Dad to testify while his criminal case was pending.
The Family Division struck a balance. It said that it was going to order full parental rights and responsibilities (aka custody) to Mom and denied visitation to Dad. But the court also ruled it would allow Dad forty-five days after the conclusion of his criminal case to file a motion to seek contact with the kids.
Dad argues a couple things before SCOV, which ultimately affirms the Family Division’s decision.
First, Dad argues that the trial court’s order essentially operated as a termination of his parental rights, and that the Family Division applied the wrong legal standard in its termination decision. A termination of parental rights is a Big Deal. It’s a court telling a parent that he or she no longer has the constitutional right to raise their child. The bigger the deal, the higher the standard of proof must be. In a termination action, the court must make findings by clear-and-convincing evidence that it is in the best interests of the child that the parent’s rights be terminated.
Dad argues that the trial court ignored certain evidence from him and also from the children’s lawyer showing that he had been a good father, had provided a lot of care for the children, and that supervised visits would not be harmful. Dad also argued that the Family Division did not use the appropriate standard of proof for a termination, and instead made its findings by a preponderance-of-the-evidence standard, which is lower.
SCOV says that actually this wasn’t a termination. Even though the Family Division styled the custody order a “final order,” it said that it could be reviewed if Dad filed a motion within forty-five days of resolving his criminal case. Usually when a parent wants a custody or visitation order reviewed by the court, the parent filing the motion has to show that there’s a change in circumstances that would support such a change. However, in this case, the Family Division recognized that Father was between a rock and a hard place while his criminal case was pending. It ruled that Father need not show a change in circumstances in order to be able to file such a motion, if he did it within the forty-five day time frame.
SCOV rules that although the order was called a “final order” it actually had the effect of operating as a temporary order, because of the permission to modify given by the court. Since this was a temporary deprivation of contact between parent and child, the standard of proof used was appropriate.
There is also the issue of prior domestic abuse. The parent-child contact statute allows the court to curtail contact if, within the past ten years, the parent in question has committed abuse against a family or household member. The court can take this into consideration and can specify conditions around that contact, like ordering the parent to undergo counseling or ordering that the parent not use drugs or alcohol, or other appropriate conditions to ensure that the kids will be safe during visits.
In addition to the pending 2015 criminal charges, Dad had a prior domestic assault conviction from about ten years before. The Family Court noted that this prior conviction was ten years old, and thought this may not be usable in this particular case. SCOV calls attention to the fact that Mom got an RFA based on the new criminal case allegations from 2015. However, the parties agreed to the issuance of an order without requiring the court to make factual findings, so it’s not really clear if a court can use this sort of situation in the domestic-violence calculation. SCOV leaves this open; I suspect it may come up again at some point.
The other issue has to do with Father’s inability to testify at his hearing. The Family Division could not receive all the possible evidence in this particular case because Father was not able to testify without incriminating himself in his criminal case.
SCOV finds another way to solve this problem and finds an analogue in probation cases. It’s pretty common when a person is on probation that if he or she commits a new crime, that allegation forms the basis of a probation violation. Invariably, the probation violation proceeding gets held up because the defendant also has a new criminal charge, and he or she cannot testify in the probation hearing without running the risk of self-incrimination. Any testimony from the probation hearing would get used against the defendant later in the criminal case. Probation hearings are also somewhat problematic because the burden of proof is a preponderance standard whereas the criminal burden is the much-higher beyond-a-reasonable-doubt standard. This creates a bad situation for a defendant; if he or she were to testify at the probation hearing, the court could make findings against the defendant using that lower standard, and that testimony would invariably later end up being used against the defendant in his criminal case.
Enter immunity. In the probation and criminal matters, a defendant can be given immunity so that the probation case can be resolved in advance of the criminal case. If immunity is given, a probationer facing a violation hearing can testify in his or her own probation case without that testimony later being used in the criminal case.
SCOV acknowledges that there really isn’t a mechanism to be able to do this in a Family Division case, but suggests that it’s worth considering. It’s important for Family Division cases to get resolved, especially if it means more stability and predictability for children. There is a tension between protecting a litigant’s Fifth Amendment right to remain silent, and the court’s need to gather all the important information to make an appropriate custody decision. If there was a mechanism to provide immunity in Family Division cases that involve separate criminal allegations, like in this case, Father could have presented evidence without fear that it would later be used against him. It would also have wrapped up the case in one hearing rather than making father come back with post-trial motions.
SCOV is quick to say this isn’t something that should be required, but could be a good tool in the future to keep things moving.
SCOV says the way the Family Division chose to handle this was fine. It put the burden on Father to go back to the court to seek redress once his criminal case was done. If he didn’t do that, then the order would become final and Father would later have to show that, in fact, there were changed circumstances. As an observation, it’s really not in Father’s interest to wait—showing a change in circumstances can be hard to do, and the court gave him the ability to file without having to show that. SCOV does note that if Dad’s probation order said he was not allowed to have contact with the kids, that when probation was over that would be a change in circumstances. But since Dad had a window in which to file, that seems like the better way to go.