Mar-Rae X. Terino
v.
Thomas F. Bleeks
On
Appeal from Superior Court, Windsor Unit, Family Division
Thomas
J. Devine, J. Mar-Rae X. Terino, Pro Se, Windsor,
Plaintiff-Appellee.
John
B. Loftus, III and C. Justin Sheng of Brannen & Loftus,
PLLC, Hanover, New Hampshire, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
JJ.
ROBINSON, J.
¶
1. This case calls upon us to consider whether and under what
circumstances the family division, in an order relating to
parent-child contact, may account for likely future changes
in the best interests of a very young child as the child
ages-where the child's aging would not itself constitute
an unanticipated change of circumstance opening the
door to the possibility of modification under 15 V.S.A.
§ 668. Father Mar-Rea Terino appeals the family
court's denial of his request to include a mechanism in
the divorce decree for revisiting parent-child contact for
his two-year-old child as the child gets older, particularly
as he reaches school age. In addition, father argues that the
family court erred in failing to address various proposals in
his parenting plan. We affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.
¶
2. The trial court's findings in the final divorce order
reflect the following. Mother and father met in February 2011
and married in May 2012. In March 2015, they separated while
mother was pregnant with their child. Father and mother had
been living in a home co-owned with mother's mother (the
child's maternal grandmother), and, upon their
separation, father moved into his own mother's home.
Mother filed for divorce in June 2015.
¶
3. In June 2015, shortly before filing for divorce, mother
gave birth to the parties' child. Father was present for
the birth and began to visit the child at the maternal
grandmother's home frequently. Although father provided
care for the child during these visits-including changing,
bathing, and holding the child-mother was the primary
caregiver. She had the child overnight, breastfed, brought
him to medical appointments, and provided the lion's
share of his day-to-day care. Starting during the summer of
2015 and lasting through 2017, father began to have the child
for visits at paternal grandmother's home.
¶
4. Mother and father's separation and divorce was
acrimonious. In August 2015, after attending a case manager
conference, the parties reached a temporary agreement to
share legal and physical rights and responsibilities for the
child. However, only weeks later in September 2015, mother
sought to modify the agreement on the ground that she signed
it under duress.[1] Father did not have a visit with the child
for the next six weeks, apparently because of tension between
the parties and his want to avoid further allegations of
abuse. Twice in early 2016, mother brought the child to the
emergency room with minor injuries after he had visited
father-a small scratch near the corner of his eye the first
time and a bruise on his thigh the second. She requested that
the hospital report the injuries to the Department for
Children and Families, which it did while noting that it did
not suspect abuse. The court found that mother's
"actions in bringing the child for an unnecessary
medical exam were motivated more by a desire to assemble
evidence to use against [father] than by other
considerations."
¶
5. Between November 2015 and October 2016, when the court
held the final divorce hearing, mother cancelled or failed to
appear for more than thirty scheduled visits between father
and the child. The family court, in its final divorce decree,
found that some of these cancellations were for legitimate
reasons, while other visits were cancelled "simply
because [mother] did not want them to occur." The court
found that:
[Mother] has engaged in a course of conduct whose purpose is
to limit or deny [father's] parent-child contact without
legitimate justification. The court finds [mother] lacks the
ability and disposition to foster a positive relationship and
frequent and ongoing parent-child contact between [father]
and their child.
¶
6. On the basis of these and other findings, the court issued
a final order, awarding sole physical rights and
responsibilities to mother, which father did not contest. In
addressing father's request for an award of legal rights
and responsibilities for medical decision-making, the court
examined the child's best interests under the factors in
15 V.S.A. § 665(b) and ultimately decided to award sole
legal decision making to mother based on her status as the
primary day-today care provider and her previous management
of the child's medical care. Regarding parent-child
contact, the court emphasized the child's "young
age," "the role of [mother] as [the child's]
primary care provider and the quality of [the child's]
adjustment to his present home, school and community."
The court issued a parent-child contact schedule in which the
child would be with father Monday, Wednesday, and Sunday from
10 a.m. to 6 p.m. One month after the order, father's
contact would expand to an overnight on Sunday, with the
child going back to mother by 4 p.m. Monday. And three months
after the order, father's visits would expand to include
contact from 10 a.m. Sunday through 4 p.m. on
Tuesday.[2]
¶
7. Father subsequently moved for clarification and
reconsideration of the divorce decree. V.R.C.P. 59(e). Father
attached the proposed parenting plan he had entered as an
exhibit during the final divorce hearing.[3] He argued that
the decree failed to adopt, or even address, various
parent-child contact provisions in his proposed parenting
plan regarding transportation, visitation exchange locations,
who may be present at exchanges, (future) parent-child
telephone contact, and dispute resolution. In addition, since
the child was two years old, father requested
"clarification of the standard for modifying the
parent-child contact order going forward" because
"the schedule will necessarily need to be adjusted as
[the child] gets older, particularly once he enrolls in
kindergarten." Father explained that he would not be
able to avail himself of Vermont's statute for modifying
custody orders, 15 V.S.A. § 668, "based on [the
child's] age and ordinary enrollment in school,"
since these predictable future eventualities would not be
unanticipated.
¶
8. On August 30, 2017, the court issued an entry order
regarding father's motion for clarification and
reconsideration. The court declined to provide a specific
arrangement for telephone or Skype contact given the
child's age, and explained that, under the order, both
parents would have contact with the child during the week.
Similarly, the court declined to set a school or summer
vacation schedule. The court noted that father "loves
the child but has not yet provided any extended or sustained
care" and it "would be premature and presumptuous
to set forth a plan for more extended contact based on the
information available now." After originally finding
that mother and father lacked the ability to make decisions
together, the court "remain[ed] hopeful the parties will
improve their ability to communicate and work together in the
years ahead," but if this turned out not to be the case,
then either party could petition to modify parent-child
contact under § 668. Regarding medical appointments, the
court expected that nonemergency appointments would not ...