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Vermont Supreme Court Holds that Parental Relocation and Breakdown in Parental Communication Justifies Custody Modification

In Wener v. Wener, 2016 VT 109, the Supreme Court held that one parent’s relocation and a breakdown in parental communication constitutes the kind of real, substantial, and unanticipated change in circumstances that warrants a change in parental rights. It also held, however, that the trial court erred in failing to consider one of mother’s proposals, and such proposal’s impact on the existence of grounds warranting a modification.

Issue: Parties have an autistic son; upon their divorce, they agreed to share parental rights and responsibilities (PRR), with mother having final say on legal responsibility issues only after good faith mediation was unsuccessfully pursued, and also agreed to a parent child contact (PCC) schedule where mother would have contact 57% of the time, while father would have contact 43% of the time. Parties were initially able to work well together, and even stipulated to a modified PCC schedule giving mother 64% contact and father 36%. In later years, parties’ ability to cooperate “evaporated,” and when mother informed father that she planned to move from Rutland County (where child had lived since he was 2 years old) to South Burlington, and intended to enroll child in South Burlington High School, father filed a motion to modify PRR to give him sole legal and physical rights, and modify PCC to give 14% time to mother and 86% time to himself. Mother countered with a proposal that she be given sole legal and physical PRR, as well as a PCC schedule giving father contact 3 weekends per month and during summers. Mother proposed in the alternative that – if the family court found it was in child’s best interest to remain in the West Rutland school system – she would maintain her Rutland County residence to permit the existing PCC schedule to remain in place. After evidentiary hearings, court found that father had demonstrated basis for modification (due to breakdown in parties’ ability to communicate, and mother’s relocation/decision to change child’s school), granted him sole legal and physical PRR, and granted his proposed PCC schedule. Mother appealed, on the basis that there was no basis for modification and that the modification of PRR/PCC itself was not in the child’s best interest.

Holding: The Court affirmed that a breakdown in parental communication, and a relocation such as that proposed by mother was a real, substantial, and unanticipated change in circumstances justifying a request for modification, and affirmed the granting of legal rights and responsibilities to father. However, it reversed and remanded the portion of the order that modified physical rights and responsibilities and parent-child contact, finding that the court failed to analyze whether or not there were grounds for a modification if it adopted mother’s alternative plan (wherein she would not move out of Rutland County)

Concurrence and dissent, Skoglund, J. (joined by Robinson, J.): Justice Skoglund argued that the court should have affirmed the trial court’s decision regarding both legal and physical PRR, and should only have remanded for consideration of how mother’s alternate proposal would affect a PCC determination. She emphasized the trial court’s broad discretion in determining the existence of a change in circumstances, and in evaluating the child’s best interests.

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