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Bratton v. Holland

Supreme Court of Vermont

May 25, 2018

Andrew Alex Bratton
Laura Holland (Bratton)

          On Appeal from Superior Court, Windham Unit, Family Division

          Michael R. Kainen, J. John C. Mabie of Corum Mabie Cook Prodan Angell & Secrest, PLC, Brattleboro, for Plaintiff-Appellant.

          Thomas W. Costello and Adam W. Waite of Costello, Valente & Gentry, P.C., Brattleboro, for Defendant-Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Morris, Supr. J. (Ret.), Specially Assigned.

          REIBER, C.J.

         ¶ 1. Father appeals from the denial of his motion to modify legal and physical parental rights and responsibilities in the parties' son D.B. Father argues that the court improperly treated the child's maternal grandfather as a "fictive parent" and gave him too much weight in evaluating the statutory best-interests factors. We affirm the court's finding that changed circumstances exist, but reverse and remand its best-interests analysis for additional proceedings.

         I. Procedural History

         ¶ 2. We recount the procedural history in detail as it bears on the ruling at issue here. D.B. was born in January 2007. When parents divorced in November 2011, they agreed that mother would have physical rights and responsibilities in D.B. and the parties would share legal rights and responsibilities. The parenting plan contemplated that mother and D.B. would live in North Carolina. Father would have twice-weekly Skype contact with D.B., five weeks of visitation during the summer, and the parties would split other school vacations.

         ¶ 3. Mother did not abide by the parent-child contact order and by June 2012, father filed his first motion to enforce parent-child contact. Mother did not respond or appear at the hearing on the motion. In a February 2013 order, the court awarded father an additional week of summer contact to make up for a week of spring vacation that mother had withheld.

         ¶ 4. In December 2015, father filed a second motion to enforce. Again, mother did not appear at a hearing on the motion. In June 2016, the court found that mother had withheld four weeks of visitation from father, including D.B.'s 2015 spring vacation, his two-week 2015 Christmas vacation, and his 2016 spring vacation. Mother consistently withheld father's twice-weekly Skype contact as well. The court expanded father's 2016 and 2017 summer visits to seven weeks and ordered mother to abide by the Skype contact. The court directed mother to turn D.B. over to father on July 9, 2016 for his summer visit and ordered her to facilitate Skype contact. Mother was advised that her failure to comply could lead to contempt proceedings. A sheriff served mother a copy of the court's order. Nonetheless, when father went to retrieve D.B. on the arranged date, mother and D.B. were nowhere to be found. Father was forced to return to Vermont without the child.

         ¶ 5. In July 2016, father filed a third motion to enforce and a motion for contempt; he also moved to modify parental rights and responsibilities. Mother did not appear at the hearing on father's motions. In a September 2016 order, the court found mother in contempt. It found that mother willfully violated court-ordered visitation in April 2015, December 2015, April 2016, and July 2016. It made more extensive findings on the record. Based on the evidence presented at the hearing, the court found that it was no longer in D.B.'s best interests to remain in mother's custody. Effective September 24, 2016, it transferred legal and physical custody of D.B. to father and it ordered mother to turn D.B. over to father. The court scheduled a hearing on October 3, 2016, to discuss mother's visitation.

         ¶ 6. Notwithstanding the court's order, mother did not turn D.B. over to father. Mother initially told father's attorney that D.B. was away for the weekend. Mother did not appear for the October 3 hearing and made an excuse for her absence that the court did not find credible. In an October 2016 ruling, the court found that mother failed to abide by its orders or purge herself of prior contempts. It issued a separate arrest warrant requiring that mother be brought before the court as soon as she was found. The court asked North Carolina authorities to give its order full faith and credit and to turn D.B. over to his legal custodian. A North Carolina court subsequently issued an order for expedited enforcement of a foreign child custody order, [1] and mother finally turned D.B. over to father on October 18, 2016. At that point, father had not seen D.B. for fourteen months.

         ¶ 7. Counsel for mother entered a notice of appearance on October 31, 2016, and in November 2016, mother requested parent-child contact. The court later clarified that its transfer of custody to father in September 2016 had been on a temporary interim basis based on mother's failure to facilitate visitation with father and her willingness to ignore court orders to thwart father's visitation. While the court had heard limited testimony to ensure that father could safely and adequately provide for D.B., it did not at that time have any basis for comparison to the environment that mother provided. The court thus scheduled an evidentiary hearing on what custody arrangement was in D.B.'s best interests.

         II. Ruling on Motion to Modify

         ¶ 8. Following a hearing, the court issued a September 2017 order concluding that it was in D.B.'s best interests that mother have primary physical custody. It made the following findings. Father works as a software engineer. He shares a house with two roommates. D.B. has friends in the neighborhood and at school. He sees his paternal grandparents at least once a week. D.B. was doing well in school and he easily managed the transition back to Vermont. Father does not have not a driver's license and his activities with D.B. were more restricted than D.B.'s activities in North Carolina.

         ¶ 9. While D.B. was living with mother, mother did not communicate information about him to father. She has never abided by the Skype time ordered. She ignored father's texts and calls and threw away a birthday card that father had sent to D.B., causing D.B. to believe that father was ignoring him. The court recited detailed evidence showing that father repeatedly asked for contact, visitation, and information about D.B. and mother ignored him, made excuses why D.B. was not available, and tried to alter contact dates. Mother treated father's contact with D.B. as a nuisance, which she would occasionally grant if father begged enough and if it was convenient. Mother also interfered with father's ability to obtain medical information about D.B. and refused to provide father with D.B.'s health insurance information.

         ¶ 10. When D.B. returned to Vermont, mother ignored father's attempts to set up regular communication with D.B. Despite mother's behavior, father was very good at ensuring that mother and D.B. communicated. During this time, mother sent messages to D.B. intimating that his home was with her and suggesting that she was trying to "rescue him" from Vermont. Mother also told D.B. that she was going to put surveillance tracking on his iPad so that she would know that it was really him talking. While mother denied doing these things at the hearing, the court did not find her credible. The court found that mother clearly had boundary issues.

         ¶ 11. D.B.'s maternal grandfather is an opthamologist and surgeon, and the court found that "he frankly tip[ped] the balance" in this case. The court found little positive to say about mother's parenting other than that she loved D.B. Grandfather, however, provided mother with a job and a nice house in a nice neighborhood. The court found that grandfather was "really D.B.'s fictive parent in North Carolina." Grandfather took D.B. to most of his activities and often participated in these activities with D.B. D.B. often spent the night at grandparents' house or their summer house. D.B. enjoyed a higher standard of living, better housing, and was engaged in more activities in North Carolina than in Vermont. The court noted that all of this would evaporate if something happened to grandfather or if mother became estranged from him. Mother had apparently hidden father's attempts to contact D.B. from grandfather. She did not tell grandfather about the court's orders. Grandfather thought father was ignoring D.B. Grandfather first learned otherwise when a warrant issued for mother's arrest.

         ¶ 12. Mother is engaged to a new partner with whom she had been living for two years at the time of the hearing. Mother and her partner have two young children. D.B. benefited from the partner's presence. Like grandfather, the partner did not ...

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