NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.
2017 VT 107
No. 2017-032
Lisa Patnode Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Family Division
Garrison Urette September Term, 2017
Barry D. Peterson, Acting J., Specially Assigned
Lisa E. Patnode, Pro Se, South Burlington, Plaintiff-Appellee.
Cynthia L. Broadfoot of Broadfoot, Attorneys at Law, Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. SKOGLUND, J. Father, Garisson Urette, appeals the superior court’s order
amending the parent-child contact order. We find that the court improperly modified the original
parent-child contact order without the necessary finding of a real, substantial, and unanticipated
change in circumstances. Additionally, we find that granting mother, Lisa Patnode, sole authority
to sign releases and waivers of liability was an improper infringement on father’s parental rights.
Accordingly, we reverse.
¶ 2. In July 2011, the superior court issued the original order regarding parental rights
and responsibilities and parent-child contact (original PCC order), which granted mother physical
and legal parental rights and responsibilities, subject to father’s substantial parent-child contact.1
Since that original order, the parties have filed over seventy motions to amend or clarify the orders
and have appealed to this Court six times. The superior court issued an amended order regarding
parent-child contact (amended 2013 PCC order) in April 2013. This appeal follows mother’s
September 2016 motion to the superior court to clarify (1) father’s legal right to bring the child on
private planes, jets, or helicopters without notice and consent of mother, (2) father’s ability to sign
the child up for activities, and (3) father’s ability to sign parental consent forms and release of
liability forms.2
¶ 3. The superior court held a hearing on October 26, 2016. In response, the superior
court issued a decision on mother’s motions on November 15, 2016, in which it found that “[b]ased
on the evidence presented . . . there has not been a real, substantial, and unanticipated change of
circumstances since [the original PCC order] to support a modification of the parent child contact
order . . . .” The court then issued the following orders: (1) if the child is with father in Vermont
on Mother’s Day, father’s contact “shall be interrupted” by the child spending Mother’s Day with
mother; (2) mother has the sole authority to make decisions regarding the child’s transportation
and travel because mother has sole legal rights and responsibilities; and (3) mother has sole
discretion to sign any releases or waivers of liability because she has sole legal rights and
responsibilities. Father then filed a motion to amend the judgment and, on December 13, 2016,
the superior court issued an entry order adding that mother shall not unreasonably withhold her
consent for releases and waivers of liability. Father appeals all three orders as inappropriate
modifications and infringements on his parental rights. Mother argues that the orders were proper.
1
Father has been granted approximately forty percent of the child’s time.
2
Mother’s motion requested several other clarifications that father does not challenge here,
and thus we will not examine them.
2
¶ 4. It is well established that this Court gives substantial deference when reviewing
family division rulings on parent-child contact. Patnode v. Urette, 2014 VT 46, ¶ 5, 196 Vt. 416,
98 A.3d 787. “[W]e will not reverse the court’s decision unless its discretion was exercised upon
unfounded considerations or to an extent clearly unreasonable upon the facts presented.” Groves
v. Green, 2016 VT 106, ¶ 23, __ Vt. __, 154 A.3d 507 (quotation omitted). However, modification
of a parental-rights-and-responsibilities order or a parent-child-contact order requires the superior
court to undertake a two-part analysis. The court must first determine if there has been a “real,
substantial and unanticipated change in circumstances.” 15 V.S.A. 668(a). If this threshold
condition is met, only then may the court move on to determine if changes to the orders would be
in the best interest of the child and to make changes as it deems necessary. Id.; see also Siegel v.
Misch, 2007 VT 116, ¶ 6, 182 Vt. 623, 939 A.2d 1023. Yet not all subsequent orders regarding a
standing parental-rights-and-responsibilities order or a parent-child-contact order are considered
modifications—an order may be a clarification that does not require the two-part analysis. See
Patnode, 2014 VT 46, ¶ 13 (“Where the inherent purpose of an amendment to an existing order is
not to change the terms of the original order, but to help the parties meet the original terms, it is
well within the court's discretion to view such alterations as clarifying rather than modifying.”).
For example, in a previous appeal between these parents regarding the modification/clarification
distinction, we held that “an addendum which does not alter the terms [of a PCC order] is not
necessarily a modification but rather a clarification of the original order.” Id.
¶ 5. Here, the superior court made an unambiguous finding that there had been no “real,
substantial, and unanticipated change in circumstances.” However, instead of stopping at the
unsatisfied threshold question, the court then went on to order two modifications to father’s parent-
child contact—one concerning Mother’s Day and another concerning the child’s travel
arrangements.
3
¶ 6. First, the court modified the PCC order regarding Mother’s Day. The original PCC
order stated, “[i]f possible, the parties will arrange parent child contact so that the child spends
Mother’s Day with [mother] and Father’s Day with [father].” Mother’s September 2016 motion
to the superior court did not specifically raise the Mother’s Day issue, but during the hearing on
the motion, both parties discussed scheduling issues around Mother’s Day and debated over how
many Mother’s Days mother had actually spent with child since the original PCC order.
Ultimately, the court found that mother spent “one or two” Mother’s Days with the child but also
found that “[b]ased on the evidence . . . , there has not been a real, substantial, and unanticipated
change of circumstances.” The court then went on to, in their words, “supplement” the original
PCC order, ordering that if the child is with father in Vermont on Mother’s Day, “the contact shall
be interrupted” so that the child can be with mother from ten o’clock in the morning until six
o’clock in the evening.
¶ 7. The court’s order regarding Mother’s Day was more than a mere clarification or
supplement—it was a modification. In a previous appeal between father and mother, we held that
there was no modification because father’s parent-child contact had not been increased and the
change merely addressed an ambiguity in the issued PCC order. Id. ¶ 13. We further noted that
“[i]t bears emphasizing that the superior court did not in any way alter the amount of time that
each parent was awarded with the child under the PCC order.” Id. ¶ 12.
¶ 8. Here, 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. The original order’s discretionary language made it clear that, if arrangements
could not be made, father’s parent-child contact would not be interrupted. With the new order,
there is no question that father’s time with child will be interrupted if the child is in Vermont and
with father, regardless of the ease of arrangements. To modify a discretionary measure into a
mandated reduction of father’s assigned time, the court must find that there was some real,
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substantial, and unanticipated change in circumstances. The court did not, and thus the
modification was improper and we reverse.
¶ 9. Second, the superior court modified the PCC order by granting mother the sole
authority to make decisions as to transportation. The original PCC order stated that “[father] shall
be responsible for making the travel arrangements and shall notify [mother] of the costs and
provide documentation.” The amended 2013 PCC order required father provide two weeks’ notice
to mother of travel plans whenever he intended to travel outside of Vermont. Subsequently,
mother’s September 2016 motion requested clarification from the court to reinforce that father
must give mother two weeks’ notice of all travel by any method of transportation other than an
automobile and to further clarify that father did not have the legal right to take the child on privately
hired transportation. In response to mother’s motion, the superior court held that mother has “sole
legal rights and responsibilities and therefore makes the decisions as to transportation” and that if,
in the future, father desires to have the child use privately hired transportation, “he must first get
the approval of [mother] who has sole discretion to sign any release or waivers of liability.”
¶ 10. This order was effectively a modification to the PCC order. The original PCC order
granted father the right and responsibility to make travel arrangements for the child, with the
requirement added by the amended 2013 PCC order that he inform mother of out-of-state travel
plans two weeks in advance. Other than the notice requirement, there is nothing in either the
original or the amended 2013 PCC order to limit father’s ability to make travel arrangements for
the child. The appealed order takes those rights and responsibilities away from father and places
them with mother, without the requisite finding of a real, substantial, and unanticipated change in
circumstances and in the face of a finding to the contrary. While father must notify mother in
advance of out-of-state travel according to the amended 2013 PCC order, he has the right and
responsibility to continue to make travel arrangements for the child in connection with the original
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PCC until the court finds a sufficient change of circumstances to warrant a modification of the
original and the amended 2013 PCC order.
¶ 11. Finally, the court erred in ordering that, because mother has sole legal parental
rights and responsibilities, she “has sole authority to sign any releases or waivers of liability
associated with [the child]’s activities, which shall not be unreasonably withheld” and that if
mother does not approve of the activity, “she shall give [father] notice of her decision and the
reason why she does not approve of the activity.” Both aspects of this order are impermissible
infringements on father’s right to parent-child contact.
¶ 12. The superior court’s determination that mother, as sole legal custodian, has the sole
authority to sign releases or waivers of liability for the child to participate in extracurricular
activities and to travel, regardless of during which parents’ time the activity will occur, conflicts
with this Court’s previous holdings—it makes the assumption that the grant of sole legal and
physical responsibility is absolute. This “ignores the legislative mandate that children should
continue ‘to have the opportunity for maximum continuing physical and emotional contact with
both parents.’ ” Miller v. Smith, 2009 VT 120, ¶ 7, 187 Vt. 574, 989 A.2d 537 (mem.) (quoting
15 V.S.A. § 650); see also 15 V.S.A. § 670 (providing that the parent who has not been awarded
parental rights and responsibilities still has the right to access “medical, dental, law enforcement
and school records.”); Gazo v. Gazo, 166 Vt. 434, 442-44, 697 A.2d 342, 347 (1997) (discussing
legislative intent to preserve noncustodial parent’s right to parent-child contact, free from
unilateral restrictions from custodial parent). As we did in Miller, we reiterate that “[t]he court
may impose conditions on visitation if clearly required by the child’s best interests, which is not
to suggest that the custodial parent can impose restrictions unilaterally.” 2009 VT 120, ¶ 5. By
granting mother the unilateral authority to veto activities for the child during father’s time by
withholding her signature, father’s time with child becomes “little more than a babysitting
function,” which we warned against in Miller. Id. ¶ 7.
6
¶ 13. In Miller, this Court affirmed that while the court can “provide blocks of time to
each parent,” it is up to the individual parent to determine, within reason, how they will spend their
time with the child. Id. ¶ 3. In Miller, the facts were slightly different—the custodial parent
desired to “establish routines and restrictions within [the] noncustodial parent’s time at her whim.”
Id. ¶ 7. However, the same rule applies. Here, father, the noncustodial parent, does not desire to
impose routines and restrictions upon mother’s, the custodial parent’s, time with the child. Instead,
father merely seeks to determine how he and the child spend their time together. It is well within
his rights, as a noncustodial parent who has been awarded substantial parent-child contact, to sign
the child up for activities that take place on his time, in the best interest of the child. Likewise,
mother cannot control how father and child spend their parent-child contact by foreclosing these
activities.
¶ 14. Similarly, in Gazo, we held that a parent who had not been awarded parental rights
and responsibilities still had the right to be involved in decision making, particularly regarding
activities that took place on the parent’s time with the child. 166 Vt. at 443, 697 A.2d at 347.
There, the parent with legal and physical rights and responsibilities, argued that the requirement
that she confer with the parent with parent-child contact “to reach a mutual agreement before
making any major decisions” undercut her award of legal rights and responsibility for the children.
Id. at 442, 697 A.2d at 346. We held that “[t]he use of the word ‘primarily’ [in the statute] shows
that the Legislature expected that some sharing of responsibilities . . . could be ordered.” Id. at
443, 697 A.2d at 347 (discussing 15 V.S.A. § 665(a), which provides that court “shall award
parental rights and responsibilities primarily or solely to one parent”). Here, there is no indication
that the superior court found it was in the best interest of the child that mother possess sole
authority to make decisions about the child’s activities. Further, the superior court has not
determined that father is incapable of making decisions with the best interest of the child in mind.
Thus, father is entitled to make decisions regarding activities that occur during his parent-child
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contact and has the authority to sign any necessary releases or waivers of liability required for
these activities.
¶ 15. Further, granting mother veto power over activities by requiring her consent “which
shall not be unreasonably withheld” places the court in the position of referee for every
disagreement regarding what is an unreasonable or reasonable withholding. See Miller, 2009 VT
120, ¶ 3 (affirming that “the family court could not referee the details of how the child spent her
time with father” and that “[t]he court had no ability or any role in deciding if [an activity was]
better for the child than an afternoon spent at father’s house”). Thus, if the superior court continues
to find that father is a parent capable of making decisions with the safety and best interest of the
child in mind—and there has been no evidence to the contrary—he has the right to make decisions
regarding activities that occur during his parent-child contact and has the authority to sign any
necessary releases or waivers of liability connected thereto.3
¶ 16. In conclusion, while father must continue to notify mother of travel with the child
outside of Vermont in accordance with the amended 2013 PCC order, he shall retain the rights and
responsibilities to make travel arrangements for the child and to sign releases and waivers of
liability for activities that occur on his time. Additionally, the original PCC order shall remain in
full force and effect regarding the scheduling on Mother’s Day.
Reversed.
FOR THE COURT:
Associate Justice
3
However, also under Miller, the court may not require mother to bring the child to
activities signed up for by father which take place on mother’s time. 2009 VT 120, ¶ 7.
8