Rogers v. Parrish

Johnson, J.,

¶ 31. dissenting. I respectfully dissent. In this case, the family court transferred custody of two young children away from their mother, who had been the children’s primary care provider since their birth. It was undisputed that the children had a strong and positive bond with their mother, as well as with her new husband and his young daughter, and that the five of them had been living together as a tightly knit family unit for more than a year at the time of the hearing.

¶ 32. Nonetheless, the family court transferred custody away irom mother because her new husband was serving in the military and would be required to move every three years as a result. As the majority acknowledges, the family court’s finding that such repeated moves would be detrimental to the children is entirely without evidentiary support. The majority excuses this error, however, concluding that the finding was not critical to the custody analysis. To the contrary, this unsupported finding was a decisive factor in justifying the family court’s conclusion that the children should be placed with father. Striking the finding — as we must — necessitates reversal of the family court’s decision. See Maurer v. Maurer, 2005 VT 26, ¶¶ 11-13, *499178 Vt. 489, 872 A.2d 326 (mem.) (reversing transfer of custody where findings did not support conclusions regarding best interests of children).

¶ 33. In addition, the family court inappropriately disparaged mother’s motivation for the relocation: supporting her husband’s career in the military. Thus, the family court erred by substituting its judgment about the advisability of relocation for that of mother, the custodial parent. Hawkes v. Spence, 2005 VT 57, ¶ 11, 178 Vt. 161, 878 A.2d 273 (holding that family court should not substitute its judgment for that of the custodial parent regarding relocation decision). In fact, under principles set forth by the American Law Institute — an authority we have previously followed with respect to the issues surrounding parental relocation — accommodation of a spouse’s job opportunity is a presumptively valid reason for relocating one’s family.

¶ 34. In short, instead of deciding what was best for the children — particularly in terms of preserving their positive relationship with their life-long primary care provider and maintaining continuity in their family unit — the court made a value judgment regarding each parent’s choice of where to live. In the absence of any evidence that relocation would be detrimental to the children — and there was no such evidence here — it was an abuse of discretion to transfer custody away from mother.

I.

¶ 35. In the course of deciding to transfer custody to father, the family court repeatedly emphasized that mother would need to relocate the family approximately every three years because her husband was in military service. The court concluded that, “[although a single relocation to another state may be something the children could adjust to without substantial detrimental effect, repeated moves every three years to a new state is unlikely to benefit them in any significant way and may be severely detrimental.” Beyond the problematic implications of this statement for the custody rights of parents in military families in general, the finding is completely unsupported. The majority acknowledges that the family court’s statement was “without evident foundation.” Ante, ¶ 21. Nonetheless, the majority dispenses with the issue by noting that “[e]rroneous or unsupported findings do not require reversal... unless they are shown to have been prejudicial.” Ante, ¶ 21. Because the finding was considered “in the context of other findings,” the majority concludes that “mother was not prejudiced by the erroneous characterization of repeated relocations.” Ante, ¶¶ 22-23. I *500cannot agree. Review of the family court’s analysis reveals that the error was, in fact, prejudicial, both because it was the decisive factor in the family court’s seven-factor analysis and because this unsupported finding influenced analysis of the other statutory factors.

¶ 36. 15 V.S.A. § 665(b) mandates consideration of the following factors in determining whether a change is in the best interests of the child:4

(1) the relationship of the child with each parent and the ability and disposition of each parent to provide the child with love, affection and guidance;
(2) the ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment;
(3) the ability and disposition of each parent to meet the child’s present and future developmental needs;
(4) the quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change;
(5) the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact...;
(6) the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development; [and]
(7) the relationship of the child with any other person who may significantly affect the child.

¶ 37. In this case, the family court’s resolution of factor (4) — “the quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change,” § 665(b)(4) — was determined in father’s favor solely on the basis of the erroneous finding that repeated moves were per se detrimental. As discussed below, the six other factors in the analysis were closely balanced as between mother and father. Thus, the custody determination was a difficult and close case where each factor was significant. Under these *501circumstances, prejudice necessarily resulted from the family court’s error.

¶ 38. Specifically, with regard to factors (1), (2) & (3), the family court concluded that mother and father were equally situated. Another set of three factors essentially were split between the parents. Regarding each parent’s ability to foster a relationship with the other parent (factor (5)), the family court determined that neither mother nor father had performed well in this area to date, but speculated that father would be more compliant in the future with any visitation schedule established by the court.5 In terms of providing the children with contact with other important individuals, such as relatives and Mends (factor (7)), the family court again concluded that this factor favored placement with father. In terms of the children’s bond with their primary care provider (factor (6)), the family court acknowledged that mother had taken care of the children since the day they were bom, and that this factor favored placement with mother. Furthermore, in accordance with our case law, the family court acknowledged that this factor was to be accorded “great weight.” Nickerson v. Nickerson, 158 Vt. 85, 89, 605 A.2d 1331, 1333 (1992). In light of the additional weight accorded factor (6), placement with mother or father was equally desirable under the best-interests analysis.

¶ 39. In analyzing the decisive factor — the child’s adjustment to present home, school, community and effect of any change (factor (4)) — the court concluded that, “[although a single relocation to another state may be something the children could adjust to without substantial detrimental effect, repeated moves every three years to a new state is unlikely to benefit them in any significant way and may be severely *502detrimental.” The court further commented that “[t]he proposed relocations are solely attributable to Mr. Parrish’s career choice,” implying that this motive for the move was somehow obviously or inherently insufficient. (Emphasis added.) Significantly, the family court did not mention, much less analyze, the children’s adjustment to the “violent dislocation” involved in the change of custody itself, Hawkes, 2005 VT 57, ¶ 11, nor did the court discuss how no longer living with their life-long primary care provider might negatively affect the children’s well-being. Thus, not only did analysis of this pivotal factor turn on a finding for which there was no evidentiary support, it was not tempered by the obvious and important aspect of the contemplated change in custody that favored placement remaining with mother.

40. In addition, the erroneous finding had disproportionate influence because the family court injected it into consideration of other factors. In essence, the family court made a methodological error by mingling consideration of the statutory factors with one another, counting some of the factors twice. For example, in analyzing the quality of the children’s relationship with their primary care provider (factor (6)), the court acknowledged that mother had been the primary care provider for both children since their birth, but balanced this against the fact that they would be subject to “repeated moves” if they remained in mother’s care. The effect of these “repeated moves,” however, should have been considered — if at all — only in conjunction with factor (4). Instead, the family court undercut the one factor that most clearly favored placement with mother before that factor was balanced against the others. This distorted the proper weight to be given each factor in the analysis.

¶ 41. Similarly, in concluding that placement with father was more likely to preserve the children’s relationships with other significant individuals (factor (7)), the court briefly acknowledged the positive relationship between the children and mother’s new husband, Matt Parrish,6 but concluded that “the children’s new relationships with Mr. *503Parrish and his daughter, however beneficial, should not take precedence over their relationships with their father and other family members and friends who reside in Vermont.”7 (Emphasis added.) But the children’s relationship with their father is to be analyzed separately under factor (1). By weighing the children’s relationship with their stepfather and stepsister against their relationship with one of their parents (father), the family court again skewed the statutory analysis.

¶ 42. It is of course true that the family court has broad discretion regarding matters of child custody. Nonetheless, the discretion is not unbound; it is guided and limited by the statutory factors. Accordingly, while there is no prescribed format for the family court’s findings, it must consider each of the statutory factors, Sochin v. Sochin, 2005 VT 36, ¶ 6, 178 Vt. 535, 872 A.2d 373 (mem.), and make findings on as many statutory factors as the evidence will support, Putnam v. Putnam, 166 Vt. 108, 116, 689 A.2d 446, 451 (1996). Here, the family court allowed the unsupported conclusion regarding the effect of repeated moves to trump the other statutory factors, thereby truncating what should have been a complete analysis of each factor individually. In an area of law that is particularly prone to value judgments, the process of considering and weighing the factors enumerated by the Legislature imposes some measure of balance and consistency on what could otherwise be a subjective and undisciplined approach to .decision-making. The statutory factors provide a standard against which to assess the adequacy of the decision-making process. To the extent the family court departs from the statutory factors, and the weight of certain factors is distorted, the family court’s decision goes beyond being a discretionary one; meaningful appellate review becomes nearly impossible. This is not consistent with substantial justice.

¶ 43. The majority seeks to minimize the impact of the family court’s unsupported conclusion regarding the effect of repeated moves on the children by arguing that the family court was really talking about the impact of repeated moves on father’s visitation rights. This effort is unavailing. While the propensity of each parent to foster visitation was *504properly considered under factor (5) of the analysis, factor (4) considers solely the adjustment of the children to the proposed changes. It is in this context that the family court determined that repeated moves would be detrimental, and it is this conclusion that lacks any support. The fact that a long-distance move (repeated or not) might exacerbate mother’s disinclination to foster visitation is a separate consideration, and does not affect the validity of the analysis offered by this dissent.

¶ 44. The notion that repeated moves would be harmful to the children was the repeated theme of the family court’s decision. That conclusion was admittedly without evidentiary support. The error was prejudicial and requires reversal.

II.

¶ 45. The family court also erred by substituting its judgment for that of the custodial parent, specifically by passing negative judgment on mother’s decision to relocate her family in support of her husband’s career. For example, the family court noted that “[t]he proposed relocations are solely attributable to Mr. Parrish’s career choice.” (Emphasis added.) Similarly, the majority accepts the family court’s determination “that, despite mother’s status as primary caretaker, the expected repeated moves of the children and lost contact with father were unacceptable consequences of mother’s decision to move only to follow her new spouse’s career.” Ante, ¶ 12 (emphasis added). The terms “solely” and “only” trivialize and devalue mother’s choice to support her spouse’s career. We have held that “the family court, in considering the children’s best interests, must give deference to the custodial parent’s choice of residency and may not substitute its judgment for that of the custodial parent merely because the court would have done something different if it had been the parent.” Hawkes, 2005 VT 57, ¶ 11 (internal quotation omitted).

¶ 46. The need for deference to a parent’s choice is well-grounded in policy reasons:

Deference to the custodial parent’s decision to relocate ... obviate[s] de novo consideration of who is best suited to have custody, an issue which has already been resolved once by the courts____Second, it... tend[s] to maintain the child in the family unit to which he or she currently belongs, and minimize judicial interference with decisions which affect that family unit____Finally, it places the decision with the person best able to consider the child’s needs.

*505Lane v. Schenck, 158 Vt. 489, 495, 614 A.2d 786, 789 (1992) (quotation omitted). All of these principles — avoiding duplication of judicial effort, maintaining the stability of the family unit, and leaving decision-making to the custodial parent — are abandoned where, as here, the decision of the custodial parent to relocate is used as an opportunity to reopen the difficult question of primary custody. Given that the best interests of the child is supposed to be the polestar of the analysis, it is especially troubling that such an approach tends to place a low priority on maintaining consistency in the family unit — a result that is readily apparent in the instant case.8 As we noted in Lane, “[t]he place of residence for a family is central to childrearing, and thus that decision is understandably entrusted to the parent awarded parental rights and responsibilities.” Id. at 495, 614 A.2d at 789. “Mere disagreement” with a parent’s decision to relocate is not a sufficient basis for transferring custody away from that parent. Id. at 496, 614 A.2d at 789.

¶ 47. The restraint we advocated in Lane is consistent with the American Law Institute Principles of the Law of Family Dissolution, which we have otherwise relied on to resolve difficult issues related to parental relocation.9 The ALI approach on this precise issue — which has not been adopted in Vermont — is to allow relocation by the custodial parent where the motive for the decision is valid and the decision has been made in good faith. ALI Principles of the Law of Family Dissolution §2.17(4)(a) (2002). Under this framework, “if a parent has been exercising a clear majority of custodial responsibility and the move is in good faith, no further analysis is required. The court is not permitted to prevent a relocation simply because it determines that such a relocation would not, on balance, be best for the child.” Id. § 2.17 cmt. d. Rather, the move is permitted, and visitation schedules are altered accordingly, primarily by shifting from more frequent, shorter visits to less frequent but more extensive visits. With this approach, the best-interests analysis is broached only if the custodial parent fails to show that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose. Id. § 2.17(4)(b).

*506¶ 48. As the comments to this section explain, “[t]he Principles reflect ... [an] emphasis on maintaining continuity in caretaking, and the view that when the child has had one clearly primary caretaker, the best interests of the child are more closely tied to the interests and quality of life of that caretaker than to the other parent.” Id. § 2.17 emt. a. In connection with this approach, the section recognizes a number of presumptively valid motives for a custodial parent’s decision to relocate the family, including “to be with one’s spouse or domestic partner who lives in, or is pursuing a significant employment or educational opportunity in, the new location.” Id. § 2.17(4)(a)(ii)(5).

¶ 49. Vermont has not adopted the ALI framework to the extent the ALI principles recognize presumptively valid motives for relocation that preclude reopening the subjective and divisive best-interests analysis. Nonetheless, we have consistently held that Vermont courts should refrain from second-guessing the validity of a custodial parent’s decision to relocate based on subjective and value-laden considerations, and this is consistent with the thrust of the ALI approach. Absent such restraint, the “violent dislocation” of transferring custody is too lightly entered into, as it was in this case.

¶ 50. In sum, not only was the pivotal finding in this case unsupported by any evidence, it represented an instance of the family court inappropriately substituting its judgment for that of the custodial parent. The custody order should be reversed.

¶ 51. I am authorized to state that Justice Skoglund joins this dissent.

The court deemed two of the statutory factors — regarding shared parental rights and responsibilities and evidence of abuse — irrelevant. 15 V.S.A. § 665(b)(8) & (9).

While this statement may reflect the family court’s assessment of the parties’ credibility, there is nothing in the substance of the parties’ testimony supporting this conclusion. To the contrary, both parents and their new partners expressed a commitment to facilitating the children’s contact with the noncustodial parent. To the extent the family court and the majority conclude that mother affirmatively alienated the children from father, I do not believe such a conclusion is supported by the record. Rather, the testimony established that mother moved from the marital home only in response to father’s decision to stop picking up the children from daycare, and only after trying to continue to make the arrangement work for six months. Further, the uncontested testimony was that father voluntarily relinquished his Tuesday overnight visits with the children before mother moved to Vergennes, and later voluntarily relinquished Sunday overnight visits. But in any case, as discussed in ¶ 43, infra, even assuming the family court properly concluded that father was somewhat more inclined to foster visitation, this does not change the fact that the family court’s critical conclusion regarding the impact of relocation on the children was unsupported by any evidence.

There was, in fact, extensive testimony from the parties as well as a daycare provider regarding the extent and nature of Matt Parrish’s positive relationship with the children — but this testimony was given scant attention by the family court. In particular, in January 2004, after father stopped picking up the children from daycare, Matt Parrish took on this responsibility. He moved into the home with mother, the two children, and his own young daughter in March of 2003, and they lived together as a tightly knit family unit from that point forward. Mother married Matt Parrish after her divorce from father *503was final. There was lengthy testimony to the effect that Matt spent a great deal of time with the children, and that the three children considered each other as siblings.

As described above, with this statement, the family court glossed over extensive testimony about the nature and depth of the children’s relationship with Matt Parrish and his daughter. This was error. See Cloutier v. Blowers, 172 Vt. 450, 452, 783 A.2d 961, 963 (2001) (court is required to take into account all evidence relevant to best interests of the child).

See, e.g., Lane, 158 Vt. at 498, 614 A.2d at 791 (“After dissolution of a marriage, a new family unit... is created. Allowing the new family to flourish is in itself conducive to the best interests of the children involved.”).

See Hawkes v. Spence, 2005 VT 57, ¶ 13,178 Vt. 161, 878 A.2d 273 (adopting § 2.17(1) of the ALI Principles of the Law of Family Dissolution).