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| A different "two-step" analysis |
By Andrew Delaney
I’m once again in my “home office,” which means I’m lying in bed with my laptop and telling my wife: “I’m working.” It beats doing the dishes. If there’s an upside to this virus crisis it’s that we here at SCOV Law are making progress on the backlog.
This one is a 2017 case about modification of parental rights and responsibilities. The specific issue is what a court can and can’t do when a parent plans to move. Let’s dig in.
Mom and dad have one child together. They were never married. When they separated, they entered a stipulated order for shared legal, sole physical to mom, and daily-plus-weekends-and-holidays agreed-upon parent-child contact with dad. They lived together for a time, then split for real.
In general, dad had daily visits, and some overnights on weekends. Child would stay with maternal grandma some Sunday nights and with mom the rest of the time. Child had a close relationship with both mom and dad. Both mom and dad testified that the other was a good parent. Child also has a lot of relatives in Vermont.
Eventually, mom and her partner got married. And here’s the wrinkle. Husband lives in Staten Island, New York. Mom also lost her job shortly thereafter and has been out of work since. Thus, for mom at least, it made sense to move to New York with child to live with her husband. Now, dad started spending less time with the child after mom lost her job, though he continued to have the weekend overnights.
So, mom filed a motion to modify parent-child contact and legal rights and responsibilities. She told the court she wanted to move to Staten Island to live with her husband. Mom asked the court to issue a new order that would allow her to do so. She also moved for sole legal because there was a breakdown in communication between mom and dad since she got married; dad refused to attend mediation; and sharing legal rights would be impractical if she moved to New York. In response, dad argued that the court should transfer all rights and responsibilities over to him.
The trial court held a hearing. It found mom’s marriage to a New York City resident constituted a change in circumstances. On the best-interest-of-the-child factors, the court found that neither parent should get sole rights and responsibilities. The trial court found that some factors favored dad, but that others favored mom—including that mom was the primary caregiver. In a nutshell, the trial court reasoned that the move to New York itself wasn’t in the child’s best interests. So, the trial court kept the status quo. It left the order in place and opined that any moves would have to be by agreement of the parties.
Mom appeals. She argues: (1) the trial court was required to modify legal rights and responsibilities upon finding a substantial change in circumstances; (2) the trial court didn’t properly credit her role as primary caregiver with sole physical rights and responsibilities; and (3) some of the court’s factual findings weren’t supported by the record.
The SCOV majority reasons that the trial court used the wrong analytical framework when it awarded mom primary physical rights and responsibilities but then effectively ordered her to remain in Vermont with the child.
The family court has broad discretion here. SCOV will defer to factual findings and will uphold legal conclusions if supported by findings. On a motion to modify, the family court has to do a two-step analysis. First, the moving party has to show a “real, substantial and unanticipated change of circumstances.” Once that’s show, then the court can modify legal or physical (or both) rights and responsibilities if doing so is in the child’s (statutory) best interests.
“Although the family court has great discretion in this area, its authority is not boundless.” Courts don’t get to substitute their judgment for the custodial parents’ just “because the court would have done something different if it had been the parent.”
Here, the majority points out that if there’s a proposed move, then thr family court’s job is to “determine, in light of the proposed move, which custodian and parent-child contact schedule will serve the child’s best interests, not whether the move itself is in the child’s best interests.”
The majority cites two cases for this proposition (linked here and here if you’re relying on us for your legal research—side note: you shouldn’t rely on us for your legal research). Rather than getting into the facts of those cases and how they relate, we’ll just say the math checks out.
The majority notes that “the court's responsibility in relocation cases is to determine which custodial parent serves the child’s best interests in light of the anticipated relocation, not to second-guess whether the relocation should be allowed.”
Here, the majority reasons that the trial court started off on the right foot when it concluded that mom’s marriage and the proposed move constituted a real, substantial, and unanticipated change in circumstances. Such a move would significantly impact dad’s rights and responsibilities.
Having made that determination, however, the court then should’ve looked at whether the child’s best interests would be best served by transferring rights and responsibilities to dad or by the child going with mom to New York. The court also could have come up with a parent-child contact order that would serve the child’s best interests, in light of its determination that physical rights and responsibilities should remain with mom. But it did neither of these things.
So this gets sent back to the family court to modify something—which might be parental rights and responsibilities or might be parent-child contact.
Chief Justice Reiber has a few things to add, so he adds a concurrence. Though he agrees with the majority’s legal analysis and mandate, he wants to fill in some factual gaps and highlight what the family court should probably consider on remand.
Turns out mom was a bit equivocal when asked if she’d still move if the court found that the move wasn’t in the child’s best interest. There was a lot of testimony from relatives in Vermont and the trial court found that the child had a close-knit group of family and friends tying him to Vermont.
On the other hand, mom’s relationship with her husband was a bit different. Other than a month-long Vegas trip where they got married, mom and husband hadn’t lived together more than a few days at a time. The child had little face-to-face contact with husband.
This framework is important. And tends to explain why the trial court made the decision it did—even if a different result was legally required.
The concurrence also notes that this situation is a little bit different than the other cases cited by the majority (even though they are the correct cases to take the analytical framework from) because in those cases, the custodial parent had sole legal and physical rights and responsibilities. Here, legal is shared and there are cases that hold a transfer of custody to the remaining-in-Vermont parent is okay.
This stuff is important for the family court to consider on remand in the concurrence’s view.
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