Suzanne E. Blanchard
This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter
Appeal from: Superior Court, Chit. Fam. Division. DOCKET NO. F759-9-10 Cndm. Trial Judge: Linda Levitt.
Reiber, C.J., Marilyn S. Skoglund, and Robinson, JJ.
In the above-entitled cause, the Clerk will enter:
Plaintiff appeals the court's decision granting sole legal and physical rights and responsibilities of the parties' children to defendant. On appeal, plaintiff argues that the court failed to find the requisite change of circumstances necessary to modify custody, and did not properly examine the best interests of the children. We affirm.
The parties are parents to two children whom the parties adopted when they were living together as a couple. After the parties' separation in September 2011, they entered a stipulation, approved by the court, to share custody. In 2012, the parties disagreed on whether the children would attend school in plaintiff's or defendant's town. They attended arbitration and the arbiter ruled that the children would attend school in Colchester, where defendant lives.
In July 2013, defendant moved to modify the shared parental rights agreement. She requested that the court grant her sole parental rights and responsibilities. She stated the parties were no longer able to communicate or to co-parent. She further stated that plaintiff's mental disability and cognitive impairments had worsened and impacted her ability to parent and communicate, that the parties' son was not arriving to school on time while in plaintiff's care, and that plaintiff was scheduling activities and taking the children to the emergency room without consulting defendant. She explained that she had attempted to schedule mediation, but that it was canceled after plaintiff filed an emergency relief-from-abuse petition against defendant just prior to the mediation.
Plaintiff opposed any change to the shared parenting agreement. She argued that there was no basis to modify because mediation was required prior to court involvement, and there had been no real, substantial and unanticipated change of circumstances. The court held a hearing on the motion over two days, at which both parties testified.
In a written order, the court found that plaintiff has both physical and mental medical conditions. She has cognitive impairments, is forgetful, and has difficulty keeping things in order and making decisions. She has difficulty getting along with daycare providers and teachers. Plaintiff claimed that defendant was physically and emotionally abusive during the relationship. Defendant denied any abuse. The court found defendant more credible and did not find that abuse had occurred, although the court acknowledged that plaintiff may sincerely believe she was abused. The court found that plaintiff's fear of defendant has made joint decisionmaking impossible. She has called the police on defendant without cause, threatened to call the police and filed an unsupported relief-from-abuse petition against defendant.
The court found that the parties' relationship and ability to co-parent had significantly deteriorated since they entered the shared parenting agreement, and that they could no longer share parental rights. The court then considered the children's best interests, and granted defendant sole legal and physical rights, with parent-child contact for plaintiff on alternating weekends and after school one day a week. This appeal followed.
When faced with a motion to modify a parental rights and responsibilities order, the court must make a threshold finding that there has been a real, substantial, and unanticipated change of circumstances before it may determine whether a modification of custody is in the children's best interests. 15 V.S.A. § 668(a); see Gates v. Gates, 168 Vt. 64, 69 (1998). The moving party bears the burden of proving a change of circumstances, but the decision lies within the sound discretion of the trial court, which will not be disturbed absent an abuse of that discretion. Sundstrom v. Sundstrom, 2004 VT 106, ¶ 29, 177 Vt. 577, 865 A.2d 358 (mem.).
On appeal, plaintiff first argues that the court failed to make a threshold finding of a change of circumstances. Plaintiff contends that her medical condition was known at the time the parties entered their shared parenting agreement, and so no circumstances related to ...