Paine v. Buffa

Robinson, J.,

¶ 30. concurring. The majority addresses the questions presented .as framed by the parties, as did the trial court. I have no objection to doing so, see, e.g., Demarest v. Town of Underhill, 2013 VT 72, ¶ 2 n.1, 195 Vt. 204, 87 A.3d 439, and concur in the majority’s opinion. I write separately to flag an incongruity in the parties’ framing of the case in connection with *610parental rights and responsibilities lest our decision in this case be understood to have broader implications than intended.

¶ 31. The main issue in this case with respect to parental rights and responsibilities was whether, if mother relocated to Georgia, the children would be moving with her subject to father’s rights of parent-child contact or whether, alternatively, they would remain in Vermont with father subject to mother’s right to parent-child contact. The proposed parenting plans mother submitted prior to the hearing contemplated an award of physical and legal rights and responsibilities to mother, with considerable parent-child contact for father.2 Father, in contrast, proposed that physical and legal rights and responsibilities be awarded to him if mother moved to Georgia, or alternatively that physical rights and responsibilities be shared if she stayed in Vermont. Differences in the parties’ views about medical care and education.1 matters were also in the mix, although these were not the dominant issues in the case. The trial court ordered shared physical rights and responsibilities, and assigned legal rights and responsibilities to father.

¶ 32. The focus of the parties’ briefing to this Court is the trial court’s an.1ysis of the relocation issue. The parties situate this issue under the rubric of legal rights and responsibilities. Like the majority, I believe the trial court’s an.1ysis of the impact of mother’s proposed relocation was well within its discretion. However, I also believe that the trial court’s resolution of that issue lies within its unappealed order for shared physical rights and responsibilities with a fifty-fifty percent division of the children’s time. As the trial court recognized in its decision, in the face of such an order, if mother chose to relocate to Georgia, the order concerning the children’s schedule would need to be modified “to address the logistics imposed by [mother’s] relocation.” The court made it clear that its order was predicated on the expectation that *611both parents would reside in Vermont, and that it was skeptical that a relocation of the children with mother to Georgia, if mother proposed to move, would be in the children’s best interests. This con.1usion, rather than the award of primary legal rights and responsibilities to father, settled the relocation issue.

¶ 33. “Legal responsibility,” as opposed to “physical responsibility,” means “the rights and responsibilities to determine and control various matters affecting a child’s welfare and upbringing, other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements.” 15 V.S.A. § 664(1) (A). As a consequence, we have considered issues involving specific conflicts relating to many of the major categories of parental decisionmaking within the framework of legal rights and responsibilities. See, e.g., Shea v. Metcalf, 167 Vt. 494, 497-500, 712 A.2d 887, 889-91 (1998) (addressing parental differences regarding health care and education through legal rights and responsibilities). On the other hand, where the children live from day to day is a function of physical rights and responsibilities and the associated parent-child contact schedule. See, e.g., Chase v. Bowen, 2008 VT 12, ¶¶ 41-42, 183 Vt. 187, 945 A.2d 901 (explaining that splitting legal and physical rights does not run afoul of the statute and that physical responsibilities in.1ude providing routine daily care and control of the child).

¶ 34. The reason it is important that we not conflate legal rights and responsibilities with disputes about where, and with whom, children live and spend their time is that courts can and often do award physical rights and responsibilities to the custodial parent, while awarding shared legal rights and responsibilities pursuant to the parties’ agreement, or even primary legal rights and responsibilities to the parent who is not assigned physical rights and responsibilities. See, e.g., Shea, 167 Vt. at 496, 712 A.2d at 888 (affirming order awarding physical rights and responsibilities to mother and legal decisionmaking relating to education and medical care to father). The kind of cooperation reflected and cultivated by an agreement to share legal rights and responsibilities is generally a good thing, and should be encouraged in appropriate cases. See Gazo v. Gazo, 166 Vt. 434, 443, 697 A.2d 342, 347 (1997) (recognizing trial court’s “flexibility to fashion an award that keeps both parents involved in decision-making” when such an award is in the best interests of the child).

*612¶ 85. The kind of shared decisionmaking contemplated by an award of shared legal rights and responsibilities is not incompatible with an award of primary physical rights and responsibilities to one parent or the other. Moreover, cooperating parties can readily engage in that kind of shared decisionmaking across great distances. And, although it would be an unusual case, a noncustodial parent can exercise the decisionmaking authority that accompanies an award of primary legal rights and responsibilities from a distance. Any inference from this decision that an agreement to share legal rights and responsibilities compromises a custodial parent’s ability to relocate with the children would be incorrect and unfortunate.

In her requests to find, as opposed to the parenting plans she submitted, mother proposed that she be awarded legal rights and responsibilities, that the court expressly recognize the expectation that she would be relocating to Georgia, and that physical rights and responsibility be shared “as it relates to [father’s] ability to spend a majority of the time with the children during the summer months and school vacations in the State of Vermont as well as addition.1 contact time with them in Georgia as set forth in the proposed parenting plan.” Although mother framed her request as one for shared physical rights and responsibilities, she essentially proposed that the children live with her during the school year, subject to substantial parent-child contact with father.