Sunday, December 18, 2016

Grownups Not Being Grownups

Wener v. Wener, 2016 VT 109

By Elizabeth Kruska

It cannot be said too often: grownups can choose to be awful or irritating to one another, but when it has a bad or potentially bad impact on kids, it has to stop. Fortunately, that’s why we have courts; they make decisions when people can’t anymore. And that’s the case with Mr. and Mrs. Wener (Mom and Dad). The Weners have a son, who happens to be autistic—which here happens to be a relevant fact—and they got divorced.

For a while after the divorce, it appears that the Weners could get along and were able to co-parent their son fairly well. Then they couldn’t, and they couldn’t get along, and they couldn’t agree on things. Initially, they both lived in the West Rutland area and split their time with their son 43/57 (Dad/Mom). Then Mom said, “Yeah, so, I’m moving to South Burlington and kiddo is going with me and I’m enrolling him in school there, so there.” Dad said, “Au contraire.” Dad filed a motion to amend parental rights and responsibilities and parent-child contact. The trial court held a hearing over the course of two days and awarded custody to Dad.

The court looked at the fact that Son was well established in his school and community and felt it was important for him to stay there. The court also took note that both parents seemed unable to communicate anymore, especially given Mom’s seemingly unilateral decision to pick up and move far enough away that it would require a change in schools and a change to mid-week visits.

Mom appeals. SCOV affirms with respect to giving Dad legal rights and responsibilities, but reverses and remands with respect to physical rights and responsibilities. In part, this reversal is due to Mom’s plan; initially she was going to move to South Burlington, but testified at the hearing that she would stay put in the West Rutland area if need be. The trial court didn’t give a lot of consideration to Mom’s Plan B.

To change a parental-rights-and-responsibilities order, the moving party has to show that there is a real and unanticipated change in circumstances. Parental rights and responsibilities is broken into two different kinds: physical and legal. Physical is where kiddo is going to be, physically. Legal has to do with major decisions, like where to go to school, where (or if) to attend church, medical treatment, and other big decisions. It’s possible for one parent to have sole legal and physical, or to share with the other, or for one to have one and not the other. The combinations, while not endless, are numerous (this is easy math, but I’m a lawyer, so I’m going to spend more energy talking about how I’m not going to do the math than actually just doing it).

Courts generally want stability for kids. If parents are not together and need to nail down a custody agreement, they go to court to get an order made. Often parents will agree about how they want to do this. Sometimes they need a hearing. But the important part is that once it’s nailed down, if it’s going to be changed—unless it’s changed by agreement and for a good reason, the parent who wants to amend the order has to show that circumstances have changed in a real and substantial way. Courts want parents to figure things out on their own , so they often will require parents to mediate first, in an effort to hammer things out on their own.

That’s what happened here. The initial order gave shared physical custody and gave legal rights and responsibilities to Mom. But it also said that if the parents couldn’t agree about something, they’d have to mediate. SCOV reads this to mean that the parents actually really did have an obligation to agree about things and that Mom didn’t get to make all the decisions herself.

If a party wants to amend physical rights and responsibilities, that party has a pretty hefty burden to show that the change is the right thing to do, and that there is a real, substantial, and unanticipated change in circumstances to cause this change. This is because picking up and moving is complicated. Sometimes it’s good and causes a good result. But sometimes it causes anxiety and upset for kids, especially if it means changing schools, leaving friends and activities, and maybe moving farther away from family.

Amending legal rights and responsibilities also requires that the movant show a change in circumstances, but the burden is lower. Since this usually concerns only major decisions—the kind that only get made sometimes—it’s less disruptive than physically picking up and moving.

The original order in this case involved shared physical rights and responsibilities as opposed to one parent having sole rights. The trial court focused a lot on the issue of moving, which would cause Son to have to change schools. While it’s agreed that this move would probably be difficult for him, it wasn’t shown that the move from West Rutland to South Burlington would actually impair his contact with Dad.

SCOV determined that this case seemed to be more about legal rights and responsibilities. The trial court found that Mom not only planned to move, but also changed the child’s school without consulting with Dad. Mom also moved while the court hearings were pending. And although the parties were required to mediate, the trial court found that Mom did not mediate in good faith to attempt to settle the dispute.

SCOV agreed that there was a change in circumstances with respect to the legal rights and responsibilities. The Grownups had previously been able to get along and make decisions for Son, but that completely fell apart. SCOV considers this to be enough of a change that decision making really needed to be vested with one parent. So, it upholds the award of legal rights and responsibilities to dad as decided by the trial court.

SCOV appreciates that the trial court was worried about what was going to happen to Son if he changed schools. This would be a change, and it would be jarring. But SCOV seems to feel like the trial court went a little too far into the weeds in making a value judgment about what school would be the right school for kiddo to attend. This seems like a natural inclination; judges are people, and when faced with the idea about whether School A, where kiddo has gone for years and has connections is the right one, or whether School B, which has whatever its own merits are is the right one, there may be some overstepping in an effort to be empathetic and to protect the child. I totally get it. SCOV also seems to get it that this happens, but says, hey, no, that’s not what trial courts are meant to decide. They decide who makes the decision not what the decision is.

Well, that was long-winded. 

Anyway, SCOV then turns to physical rights and responsibilities. Although physical and legal are two different things, the trial court didn’t separate the two in making findings. Maybe the court felt the same factors went to both prongs. It’s not clear to SCOV, and they want there to be specific findings for each legal and physical. There wasn’t enough information in the trial court’s order, specifically in terms of how the physical time would be split or how it could be implemented if Mom moved to South Burlington.

When it all boils down, the biggest issue was Mom’s planned move. There were some other issues they didn’t agree on—some dental issues and something about school lunch (I am a big proponent of lunch; if I were the trial judge I would have lost my mind if there was some suggestion a child should miss out on lunch. This is why I’m a blogger and not a trial judge.). But, as SCOV points out, Mom had an alternate plan; she could stay in the West Rutland area or she could move to South Burlington. If she stayed where she was, there’d be no need to change schools. According to SCOV, the trial court decision didn’t really address this. Given the fact that the child had lived in the same area his whole life, and due to his autism-related diagnosis does not deal well with change, there should have been more consideration given to Mom’s alternative “stay put” proposal.

So, SCOV affirms the award of legal rights and responsibilities to Dad, but remands the physical rights and responsibilities decision to the trial court for further proceedings.

Justice Skoglund wrote separately to concur and dissent, and was joined by Justice Robinson. First, she points out that there were ample findings to support the award of legal rights and responsibilities to Dad, and no need to disturb that, so, she agrees with that part.

She would reverse only with respect to Mom’s proposal for a parent-child contact schedule. Trial courts are in the unique position to weigh the relative merits of a case, including the credibility of witnesses. SCOV isn’t going to second-guess decisions based on facts or credibility. The dissent points out lots of different ways where communication went sideways and how Mom tried to exercise unilateral control over the child—to the point that she misstated the law and the nature of court proceedings. Mom disregarded the original court order, which forced Dad to have to file a motion with the court.

The dissent notes that the majority opinion relied on case law regarding the “violent dislocation” (moving the kid from one place to another) that came from situations where there was a sole custody order. This situation was different; it was a shared custody order. The dissent suggests that the burden required of Dad shouldn’t have been as high as suggested by the majority opinion since it was a different kind of order.

The dissent also points out a quirk of Vermont law, which is that joint custody is not the presumption. Vermont courts aren’t going to foist joint decision making on parents who just can’t or won’t do it. Here, although there was joint custody, it was really clear that these parents just weren’t getting along anymore. Just wasn’t happening. It was well within the trial court’s province to award sole rights and responsibilities to one parent over the other given the record below.

Finally, the dissent looks at the physical rights and parent child contact. Before the communication meltdown, the child spent a lot of time with Mom and with Dad. The trial court’s order changed that quite a bit from what it had been. For a child who needs consistency of schedule, this wasn’t, in the dissent’s view, a great way to go. But this could have been avoided all together if the trial court had also given more consideration to Mom’s alternative plan, which didn’t involve moving sixty miles away.

So, the dissent doesn’t agree with the majority’s conclusion about physical rights.

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