Appeal from Superior Court, Windham Unit, Family Division
Katherine A. Hayes, J.
V. Pastor, Barnard, for Appellant
Mother. Kerry A. McDonald-Cady, Windham County Deputy
State's Attorney, Brattleboro, for Appellee.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Tomasi,
Supr. J., and Burgess, J. (Ret.), Specially Assigned
1. Mother appeals the family division's disposition order
transferring custody of her six-year-old daughter A.M. to
father, who lives in Colorado. Specifically, mother argues
the court erred in directing mother to pay for 75% of the
costs of transporting the child back and forth to Vermont for
contact with mother. We agree and reverse.
2. The following facts are derived from the court's
disposition order. A.M. was born in November 2012. Mother and
father were then married and living in Colorado. In October
2013, the parties separated and mother returned with A.M. to
Vermont to live with mother's parents. Father filed for
divorce in Colorado. Pursuant to the Colorado divorce order,
A.M. spent much of the summer in Colorado with father and
lived with mother in Vermont the rest of the year.
3. In February 2018, the Department for Children and Families
(DCF) filed a petition alleging that A.M. was a child in need
of care or supervision (CHINS) due to mother's heroin use
and statements that she might kill herself and A.M. In May
2018, mother stipulated to the merits of the CHINS petition.
In July 2018 DCF filed a disposition case plan recommending
that custody of A.M. be discharged to father with mother
having reasonable and appropriate parent-child contact. Later
that month, the court held an on-the-record conference with
the court in Yuma County, Colorado, where father resides. The
Colorado court ceded jurisdiction over custody issues
relating to A.M. to Vermont.
4. DCF received a positive report about father's home
from Colorado's Department of Human Services in June
2018. DCF subsequently placed A.M. with father in Colorado,
where she continues to reside. She has visited mother and
maternal grandparents for vacations.
5. A contested disposition hearing was held over three days
in October and December 2018 and January 2019. In a written
order issued in March 2019, the court found that although
mother had made progress toward sobriety, it was in
A.M.'s best interests to transfer custody to father. It
ordered that mother was entitled to the same parent-child
contact that the parents' divorce decree gave to father.
However, for equitable reasons, it found that mother should
bear the majority of the costs related to transporting A.M.
to Vermont for visits. Specifically, the court found that
father was paying for most of A.M.'s food, clothing,
health care, and recreational and educational needs; mother
had chosen to relocate to Vermont; and mother's inability
to care for A.M. had led to the change in custody. The court
therefore directed mother to pay at least 75% of the
transportation costs required to transport A.M. to and from
Vermont for parent-child contact with mother.
6. The court acknowledged that there was no pending petition
for modification of parental rights and responsibilities in
Vermont or Colorado, and that it was effectively modifying
the Colorado divorce decree. However, it concluded that its
order was consistent with the Colorado court's
relinquishment of jurisdiction over modification issues under
the Uniform Child Custody Jurisdiction and Enforcement Act,
15 V.S.A. §§ 1061-1096. The court therefore issued
a disposition order and a parental rights and
responsibilities order. It stated that Colorado should have
primary jurisdiction over future issues related to A.M.'s
custody because Colorado had become her home state.
7. On appeal, mother's sole challenge is to the portion
of the court's orders directing her to pay 75% of the
costs for A.M.'s visits to Vermont. She concedes that the
Vermont court had jurisdiction to transfer custody to father
and establish parent-child contact for mother under 33 V.S.A.
§ 5318. However, she argues that the court lacked
authority in this CHINS proceeding to make an order
allocating travel costs, particularly since neither party
requested such an order, there was no warning to the parties,
and no evidence was taken regarding their relative financial
conditions. The State does not disagree and joins in
mother's arguments on this issue.
8. Whether the court had authority to issue an order
allocating the costs of travel for parent-child contact to
the noncustodial parent at disposition in this CHINS
proceeding is a question of law that we review without
deference to the trial court. See State v. VanBuren,
2018 VT 95, ¶ 19, __ Vt. __, 214 A.3d 791 (explaining
that we review pure questions of law without deference to
9. We agree with the parties that the family division lacked
authority to make such an order here. A CHINS case is a
legislatively created proceeding in which the family division
of the superior court is vested with special and limited
statutory powers. 33 V.S.A. § 5103(a); see In re
Lee, 126 Vt. 156, 157, 224 A.2d 917, 918 (1966)
(explaining that court overseeing juvenile proceeding
"may be classed with the probate courts, the public
service commission, and other bodies exercising special and
limited statutory powers not according to the course of the
common law" (quotation omitted)). "Generally,
unless statutory authority exists for a particular procedure,
the juvenile court lacks the authority to employ it."
In re J.S., 153 Vt. 365, 370, 571 A.2d ...