Parent’s Relocation to Georgia Did Not Warrant a Change in Parental Rights and Responsibilities

In Falanga v. Boylan, 2015 VT 71 (May 15, 2015), the Vermont Supreme Court held that a move from Vermont to Georgia was not a substantial, unanticipated change of circumstances with respect to parental rights and responsibilities.

Issue: Father appealed the denial of his motion to modify parental rights and responsibilities when Mother moved to Georgia.

Holding: The Court affirmed the denial. It held that a substantial, unanticipated change in circumstances due to relocation exists “only when the relocation significantly impairs either parent’s ability to exercise responsibilities the parent has been exercising or attempting to exercise under the parenting plan.” In that determination, relevant factors include, but are not limited to, “the amount of custodial responsibility each party has been exercising and for how long, the distance of the move and its duration, and the availability of alternative visitation arrangements.” Comparing this case to Hawkes v. Spence, 2005 VT 57, the Court held this case did not involve a substantial, unanticipated change because the relocating parent had sole rights and responsibilities and 75% of the parent-child contact, the child was young, and nothing in the record indicated a viable alternative parent-child contact schedule was not possible.

Concurrence: Morse, J. (specially assigned) filed a concurrence, criticizing the two step approach that requires the family court to first decide whether there is a substantial, unanticipated change in circumstances, given that this first step essentially requires to the family court to consider the best interest of the child.

Dissent: Robinson, J. filed a lengthy dissent, joined by Dooley, J. They found that the move to Georgia would require a substantial restructuring of the child’s relationship with Father, and so would significantly impair Father’s ability to exercise his responsibilities. They found that due to the bifurcation of the case between the two steps, Father did not have a fair hearing on the best-interests question, which highlights the perils of bifurcating serious relocation cases. Therefore, the first step was satisfied and the case should be remanded for consideration of the child’s best interests.