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By Andrew Delaney
According to SCOV, the mom and dad in this case have filed over seventy motions to amend or clarify the original parental-rights-and-responsibilities and parent-child-contact order and have filed six appeals. That’s a lot of litigation. We’ve covered the saga in 2014 and in 2015 if you want to catch up.
Dad brought this appeal because the trial court amended the parent-child contact order without finding a real, substantial, and unanticipated change in circumstances and gave mom sole authority to sign releases and waivers of liability on the kid’s behalf.
This appeal relates to mom’s September 2016 motion to clarify (1) dad’s legal right to bring the kid on private planes, jets, or helicopters without mom’s notice and consent; (2) dad’s ability to sign the child up for activities, and (3) dad’s ability to sign parental consent forms and release of liability forms.
The family division had a hearing in late October 2016 and issued an order a few weeks later. Though the trial court did not find a change in circumstances, it issued orders that required dad’s visitation be interrupted for time with mom if dad was in Vermont on Mother’s Day and concluded that only mom had the right to make travel decisions and only mom could sign releases and waivers because mom has sole legal rights and responsibilities.
Dad appeals all three orders as inappropriate modifications and infringements on his parental rights. Mom argues that the orders were proper.
SCOV notes that it gives substantial deference when reviewing family division rulings on parent-child contact. The most-amusing part here for a dork like me is that SCOV cites the 2014 edition of this case for the proposition. SCOV also notes that a “real, substantial, and unanticipated change of circumstances” is a required, threshold finding before a court goes fiddlin’ with parent-child-contact orders. A clarification, however, is not necessarily a modification though.
SCOV notes that the trial “court made an unambiguous finding that there had been no ‘real, substantial, and unanticipated change in circumstances.’” That should have been a big ol’ stop sign. But instead, the court went ahead and made two modifications to dad’s parent-child contact: changing up Mother’s Day and travel arrangements.
SCOV starts with the Mother’s Day modification. Here, the trial court, it its words “supplemented” the original order by providing that if the kid was with dad in Vermont on Mother’s Day, then dad’s contact “shall be interrupted” to provide time with mom. This, SCOV opines, goes beyond a mere clarification or supplement. It altered the time the child would spend with each parent. While the original order was aspirational—providing that the parties would do their best on Mother’s and Father’s Days to have the kid spend time with the respective parent—the court made the aspiration mandatory. SCOV reasons that “by changing the operative language from ‘if possible’ to ‘shall,’ the superior court made a discretionary matter into an obligatory order, possibly depriving father of a day of his allotted time.”
So, this was a modification without the requisite change-in-circumstances finding, and SCOV reverses.
The trial court also modified the original order when it granted mom sole authority to make transportation decisions. The original order put dad in charge of making travel arrangements and required him to notify mom of the costs and provide documentation. The 2013 amended order required dad to give mom two weeks’ notice whenever he intended to travel outside Vermont. In response to mom’s motion to clarify—where she requested two weeks’ notice of any travel method other than automobile and to clarify that dad didn’t have the right to take the kid on private-hire transport—the trial court reasoned that mom had sole legal rights and responsibilities and therefore dad had to first get mom’s permission for any private-hire transport and that mom would have sole discretion to sign any releases or waivers.
The trial court ought not have done that. There was nothing in the original or amended order that limits dad’s transport choices. Other than notifying mom, he can make travel arrangements as he sees fit. Because the trial court didn’t make the requisite change-in-circumstances finding, again, this was an improper modification.
SCOV also notes that the trial court got it wrong in giving mom sole authority over releases and waivers. Essentially, the court gave mom discretion to approve of travel arrangements not to be “unreasonably withheld” and ordered mom to provide reasons if she didn’t approve of the activity. SCOV reasons: “Both aspects of this order are impermissible infringements on father’s right to parent-child contact.”
First off, the trial court got it wrong because “sole legal” is not absolute. If restrictions on visitation are necessary, then the court can impose them, but the custodial parent doesn’t have a right to arbitrarily impose restrictions. SCOV reasons that giving mom unilateral authority to veto activities for the kid during dad’s time by withholding her signature, he ends up being little more than a babysitter and that’s not okay.
SCOV also notes that required consent “which shall not be unreasonably withheld” puts the court in charge of mediating “every disagreement regarding what is an unreasonable or reasonable withholding.” If dad is capable of making decisions in the kid’s best interests, then he gets to keep doing so absent—you guessed it—a “real, substantial, and unanticipated change in circumstances.”
So, dad still needs to tell mom to weeks ahead of time when he plans to travel outside Vermont, but dad gets to make the travel arrangements as he sees fit. And the Mother’s Day order reverts to the original, aspirational version.
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