Falanga v. Boylan

Morse, J. (Ret.),

Specially Assigned, concurring.

I have long maintained that the two-step formula mandated by the Court for modification of custody in relocation disputes achieves nothing but “needlessly complex and artificial” decisions. Gazo v. Gazo, 166 Vt. 434, 450, 697 A.2d 342, 351 (1997) (Morse, J., concurring). Under this approach, courts ostensibly must first determine whether there has been a “substantial change of circumstances” as a precondition to determining whether the child’s “best interests” warrant a modification of parental rights and responsibilities.3 The difficulty is that the two inquiries are inseparable, and the formula in practice results only in confusion and duplication of effort. What is required, instead, is “a flexible test in which the change of circumstances and the welfare of the child are evaluated together in a single, unified inquiry. Indeed, . . . courts deciding such issues routinely adopt this approach, albeit not explicitly.” Id. at 451-52, 697 A.2d at 352. This case perfectly illustrates the point.

¶ 23. On the surface, the trial court’s approach here was unassailable, faithfully implementing the rubric set forth by the Court in its seminal decision in Hawkes v. Spence, 2005 VT 57, *353178 Vt. 161, 878 A.2d 273. There, the Court acknowledged that the line dividing the two inquiries in relocation disputes is “subtle” and easily “obscure[d],” id. ¶¶ 10, 13, but nevertheless did nothing to alter the two-step approach apart from adopting its codification by the American Law Institute. The latter defines a substantial change of circumstances as one which “ ‘significantly impairs either parent’s ability to exercise’ ” existing parental responsibilities, and sets forth a set of “relevant factors” for the court’s consideration, including the amount of time each parent has with the child, the distance of the move, and the availability of alternative visitation schedules. Id. ¶ 13 (quoting ALI Principles of the Law of Family Dissolution §2.17(1) & cmt. b (2002)).

¶ 24. Unfortunately, this standard virtually invites well-intended but ultimately indefensible reasoning of the kind exemplified here. Based in part on the percentage of time the child had spent with each parent and the general feasibility of an alternative visitation schedule, the trial court concluded that mother’s planned move from Vermont to Georgia — more than 1100 miles away — was not a substantial change of circumstances. This, despite the fact' that mother proposed to replace the overnight visits that father enjoyed with the child several times each week with a few interspersed visits during holidays. It really does not require an advanced degree in early childhood development to recognize the inherent weakness in the court’s conclusion that mother’s move would not significantly impair father’s existing parental contact.

¶ 25. And yet, the record and findings leave no doubt that the court’s decision was ultimately grounded in its considered judgment concerning the child’s best interests. The disconnect between reasoning and result is easy to explain. By acknowledging in Hawkes that the question of “whether a relocation ... is substantial enough to meet the threshold must be determined in the context of all the surrounding circumstances, keeping in mind that the effect on the child is what makes a change substantial’,’ 2005 VT 57, ¶ 10 (emphasis added), the Court effectively enabled sound decisionmaking based on the child’s best interests — despite the obvious demerits of the two-step approach. The trial court’s ruling here proves this point, as well.

¶ 26. While bifurcating the proceeding purportedly to consider the child’s best interests only if it concluded that there was a substantial change of circumstances, the record evidence — and the trial court’s findings and conclusions — were nevertheless *354immersed in best-interests considerations. Father testified in detail about his relationship with the child from birth, his extensive involvement in the child’s daily routine during visits, the child’s relationship with father’s parents and other family members, and father’s deep concerns about how mother’s move would affect his relationship with the child.

¶27. Mother provided equally informative testimony on the child’s relationship with her, her family, and her new partner, her reasons for the planned move, and her views on why the move would ultimately be in the child’s best interests. She explained that the move was impelled by her decision to live -with her new partner, who resides and works in Georgia, and that they planned to purchase a home together in a particular community. She had researched the area, and concluded that the child would benefit from its schools and cultural opportunities, and had found a daycare program which she felt was suitable. Mother acknowledged the child’s close relationship with father and her desire to maintain it, and believed that the relationship would remain strong despite the move. She was persuaded, however, that the stability and structure from living for longer periods in an intact nuclear family would also benefit the child in the long term, and that the move was in the child’s best interests.

¶ 28. In its decision, the trial court relied on essentially three main considerations, all focused on the move’s potential impact on the child’s relationship with his parents, and ultimately his best interests. First, the court considered the parties’ existing relationships', noting that mother had been the child’s primary care-provider since his birth. While acknowledging father’s hands-on care for the child during the visitation periods, the court found that “[i]t has been mother who has exercised the major decision-making responsibilities for [the child] . . . and in meeting the majority of his daily physical needs.” Second, while acknowledging the move’s inevitable impact on father’s relationship with the child, the court found that it would be mitigated, at least in the short term, by the child’s young age, which meant that longer, albeit less frequent visits with father would not impact his schooling or disrupt entrenched friendships. Finally, the court recognized the advantage to the child of remaining with his primary parent, in a new stable family and vibrant community and all the additional opportunities which this offered. These considerations, the court concluded, militated against the very significant *355emotional “upheaval” to the child that would be occasioned by a change of custody, and thus compelled denial of father’s motion to modify parental rights and responsibilities.

¶ 29. While not explicitly framed as such, the trial court’s ruling was thus fundamentally grounded in a considered weighing of the factors customarily affecting the best interests of a child, including each parent’s relationship with the child and ability to attend to his needs, the quality of the child’s adjustment to his current community and extended family in Vermont as well as the family and community that he would enjoy in Georgia, the adverse emotional impact of changing the child’s primary care-provider, and mother’s expressed willingness to continue to foster a relationship with father in the event of a move. See 15 V.S.A. § 665(b) (listing statutory factors for court to consider in determining child’s best interests); see also Knutsen v. Cegalis, 2009 VT 110, ¶ 12, 187 Vt. 99, 989 A.2d 1010 (recognizing that “a custody change is a significant and confusing change for a child”); Lane v. Schenck, 158 Vt. 489, 498, 614 A.2d 786, 791 (1992) (observing that appraisal of custodial parent’s move should consider that allowing “the new family to flourish is in itself conducive to the best interests of the children involved” and “the family’s benefit” in the future). I can find no basis to conclude that the court’s decision in this regard was unsupported by the evidence, or an abuse of its broad discretion in such matters. See Hazlett v. Toomin, 2011 VT 73, ¶ 11, 190 Vt. 563, 27 A.3d 328 (mem.) (noting that we afford the trial court “broad latitude in determining the child’s best interests”). Accordingly, I would affirm the judgment on this basis.4

*356¶ 30. I close this discussion where I began. Co-parenting arrangements are complicated enough without the additional strain of a custodial parent’s decision to relocate, and the resulting dispute is like no other confronting the family court. On the one hand, the abundant benefits that flow from the love and security provided by two supportive and involved parents, even if separated or divorced, is well-recognized. On the other hand, .the need for stability and continuity may ultimately weigh in favor of maintaining the child’s existing custodial placement, notwithstanding the fact that most relocations will inevitably impair the child’s relationship with the nonmoving parent. Decisions this wrenching require a flexible process, allowing the trial court to hear and weigh all of the evidence in one comprehensive and unfettered proceeding. Mechanical formulas and artificial thresholds do nothing but cause delay, distort the process, and hamper the court’s analysis, to the detriment of the only interests that matter — those of the parents and the child.

¶ 31.

The two-step approach purportedly derives from the modification statute, which provides, in relevant part, that “upon a showing of real, substantial and unanticipated change of circumstances, the Court may annul, vary, or modify an order . . . if it is in the best interests of the child.” 15 V.S.A. § 668(a). This language does not, however, “unambiguously mandate a two-stage judicial inquiry.” Gazo, 166 Vt. at 450, 697 A.2d at 351 (Morse, J., concurring). On the contrary, the text appears to support a more integrated analysis, “assessing the substantiality of the change in light of its effect on the welfare of the child.” Id.

There is nothing here to suggest that, as a result of the bifurcation, the trial court was deprived of relevant evidence. The court limited the evidence at the hearing in only one instance, when father was asked whether he had considered an alternative visitation schedule in the event that his motion for change of custody was denied. Father’s attorney informed the court that a visitation proposal had been prepared, but the court indicated that its “inclination would be to not go into that at this juncture.” There is no basis to conclude that exclusion of the proposal, which the court later considered, affected the court’s analysis. Father’s attorney also stated that he was presenting the ease “specific” to the ehange-of-circumstances issue, but again the record evidence summarized above provided a full picture of the child’s interests relative to the move, and there is nothing to suggest that a remand at this juncture for additional evidence is required. On the contrary, ordering the parties to return to square-one to reconsider the move in another lengthy proceeding, more than a year after the court’s decision, would only *356be disruptive to the child’s stability. While I acknowledge Justice Robinson’s observation that we cannot “know” with perfect certainty that all possible best-interests evidence was adduced, post, ¶¶ 43-44, the record evidence was ample, and a remand for the sake of perfection is not, in my view, necessary to protect either the child’s or father’s interests. Much time has passed, and in the event that circumstances relative to the child’s interest have significantly changed, father remains free to file a new motion for modification.