Daughter’s Decision?

Potential Troublemaker

Wright v. Kemp, 2019 VT 11

By Andrew Delaney 

Kiddos don’t get unfettered discretion to decide whether or not they want to see their parents. That’s the bottom line in this appeal.

Mom and dad split, and when daughter was ten, the family division entered a final order giving mom primary legal rights and responsibilities and mom and dad shared physical rights and responsibilities. The schedule had daughter with dad about half the time and required mediation before going back to court.

When daughter was fifteen, dad filed a motion to enforce, arguing that mom had consistently interfered with his contact and recently prevented him from seeing daughter at all. Mom shot back that daughter didn’t want to see dad. She asked the court to appoint counsel for daughter so daughter could testify and to give mom sole parental rights and responsibilities. Because the order required mediation, the court denied both motions. But that would not be the end of it.

Mediation was unsuccessful. The court scheduled a hearing, and ordered that dad get at least one hour a week in public. The day before the hearing, mom moved for an additional hearing for daughter to testify about “certain events” that made daughter leery of being around dad. Dad opposed the motion because it would just be a rehash of the same stuff that the court already knew about.

When the hearing rolled around, mom’s attorney suggested that the court hear from some witnesses before making a decision on the second-hearing request. The court did and then reasoned the second hearing was warranted and appointed an attorney for daughter at dad’s request.

Daughter’s testimony happened in chambers with daughter’s GAL and attorney present. Daughter’s testimony was piped into the courtroom.

The trial court issued a written decision. The court found that after a dispute between daughter and dad about a visit on dad’s birthday (daughter wanted to stay with mom and stepdad and postpone the visit), dad posted disparaging comments about stepdad on Facebook. Daughter got very upset. Daughter blocked dad on Facebook and calls and texts on her cell phone. Daughter later tried to talk to dad. It didn’t work out. She wrote him a letter about how dad’s attitude made things hard for her. The court found that daughter wrote the letter on her own.

The trial court concluded that dad loved daughter but had a blind spot when it came to “how his interactions with daughter and his reactions to situations created stress and anxiety for her.” Daughter had tried to avoid going to dad’s house and had left visits early. Over time, this pattern led to the blowup on dad’s birthday and daughter’s apparent desire to cut off all contact with dad.

The court reasoned this breakdown in the relationship constituted a real, substantial, and unanticipated change in circumstances warranting modification of the order. On the best interests, the court found that more factors favored mother and that daughter was “a mature young lady who would make any parent proud. She has great poise and is able to express her thoughts well both verbally and in writing. She is thoughtful and has good insight into her emotions as well as her relationships with those around her.” Because dad wasn’t—in the court’s view—able to see how his interactions with daughter were affecting daughter, the court left any visitation up to daughter and ordered mom to provide a quarterly report to dad about daughter’s activities.

Dad appeals. He argues that the trial court screwed up when it allowed daughter to testify. He also argues that the trial court’s order effectively ends his contact with his daughter.

SCOV reasons that dad failed to preserve his arguments regarding daughter’s testimony and that the trial court’s decision to modify physical rights and responsibilities was amply supported. However, SCOV reverses and remands on the parent-child contact order.

SCOV starts off with dad’s first argument, which is not that the court didn’t follow the statutory requirements, but that mom manipulated daughter’s testimony. Here, SCOV reasons that it wasn’t brought up below and it doesn’t get consideration here. The same analysis applies to the court’s consideration of the GAL’s opinion on whether daughter should testify or not—not brought up below, not getting considered here.

Dad gets a little more traction on the parent-child-contact order. SCOV reasons: “By modifying the existing order to place daughter—who has repeatedly expressed that she does not wish to see father at all—in control of contact with him, the family court effectively terminated father’s parent-child contact.” Such a measure requires clear and convincing evidence that it was necessary to protect daughter’s welfare. The order is also flawed because it provided no pathway for dad to resume contact.

SCOV first addresses the award of sole physical and legal rights and responsibilities to mom. There’s not much to see here. SCOV reasons that the trial court had well-articulated reasons for switching things over to mom based on the facts of the case. And that’s enough for SCOV to uphold the trial court on that point.

When it comes to contact, however, SCOV notes that up until the birthday incident, dad was an involved, loving, and caring father, and to effectively terminate his rights absent clear and convincing evidence that that’s what daughter needs is wrong and inconsistent with case law.

So, SCOV affirms the family division’s award of sole physical parental rights and responsibilities to mother, reverses the parent-child-contact order, and kicks it back to the trial court to consider appropriate contact for dad consistent with daughter’s best interests and this decision.