12 A.3d 768 (Vt. 2010), 09-473, Miller-Jenkins v. Miller-Jenkins

Docket Nº:09-473
Citation:12 A.3d 768, 189 Vt. 518, 2010 VT 98
Party Name:Lisa MILLER-JENKINS v. Janet MILLER-JENKINS
Judge Panel:Paul L. Reiber, Chief Justice, John A. Dooley, Associate Justice, Denise R. Johnson, Associate Justice, Marilyn S. Skoglund, Associate Justice, Brian L. Burgess, Associate Justice. SKOGLUND, J., concurring. Marilyn S. Skoglund, J., concurring.
Case Date:October 29, 2010
Court:Supreme Court of Vermont
 
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Page 768

12 A.3d 768 (Vt. 2010)

189 Vt. 518, 2010 VT 98

Lisa MILLER-JENKINS

v.

Janet MILLER-JENKINS

No. 09-473

Supreme Court of Vermont

October 29, 2010

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[Copyrighted Material Omitted]

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Appeal from Rutland Family Court. Docket No. 454-11-03 Rddm. Trial Judge: William D. Cohen, J.

Paul L. Reiber, Chief Justice, John A. Dooley, Associate Justice, Denise R. Johnson, Associate Justice, Marilyn S. Skoglund, Associate Justice, Brian L. Burgess, Associate Justice. SKOGLUND, J., concurring.

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ENTRY ORDER

[¶1] Lisa Miller appeals a family court decision modifying parental rights and responsibilities by awarding her expartner, Janet Miller-Jenkins, sole physical and legal custody of their minor child, IMJ, with visitation rights for Lisa to be determined at a later point. Lisa argues that the order violates her fundamental constitutional rights as IMJ's biological parent and that several of the family court's factual findings and conclusions of law warrant reversal. We affirm, and we also order further proceedings to occur at the time of the transfer of custody.

[¶2] Many of the background facts of this case are recounted in this Court's decision in Miller-Jenkins v. Miller-Jenkins ( Miller-Jenkins I ), 2006 VT 78, 180 Vt. 441, 912 A.2d 951. They can be briefly summarized as follows. Lisa and Janet obtained a civil union in Vermont in December 2000.

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Soon after the civil union, the parties decided to have a child through artificial insemination, whereby Lisa would be the bearing mother. The parties, working together, chose a sperm donor, and Janet was present in the delivery room when IMJ was born in April 2002. Lisa, Janet, and IMJ lived in Virginia [189 Vt. 519] until August 2002 when they moved to Vermont. They raised IMJ together for the first seventeen months of IMJ's life, and then the couple separated. In September 2003, Janet helped Lisa move back to Virginia with IMJ, while Janet remained in Vermont.

[¶3] In November 2003, Lisa filed a pro se complaint in the Vermont family court to dissolve the parties' civil union. The family court issued a temporary order on June 17, 2004, awarding Lisa temporary legal and physical responsibility for IMJ. The court also set a visitation schedule for Janet, in addition to mandating daily telephone contact between Janet and IMJ. Lisa, however, allowed Janet parent-child contact only once in June 2004 and did not allow Janet to have any telephone contact with IMJ. On September 2, 2004, the Vermont family court found Lisa in contempt for willful refusal to comply with the court's June 2004 visitation order.

[¶4] Lisa sought interlocutory appeal of three orders of the Vermont family court: (1) the June 2004 order allowing Janet visitation rights; (2) the September 2004 order finding Lisa in contempt for refusing to comply with the visitation order; and (3) the November 2004 order finding that both Lisa and Janet have parental interests in IMJ. After thoroughly examining all of these issues, this Court affirmed all orders by the lower court. Miller-Jenkins I, 180 Vt. 441, 2006 VT 78, ¶ 72, 912 A.2d 951. We concluded that (1) the parties' civil union was valid; (2) the family court had jurisdiction to dissolve the civil union; (3) the family court had jurisdiction to award Janet visitation with IMJ; (4) the family court was not required to recognize or enforce a Virginia trial court decision denying Janet any claims of parentage or visitation of IMJ; and (5) the record supported the conclusion that Lisa was in contempt of court for willfully violating the June 2004 temporary visitation order. Id.

[¶5] In June 2007, following trial on parental rights and responsibilities, the family court issued findings of fact and conclusions of law. In accordance with 15 V.S.A. § 665(b), the court considered each of the nine statutory factors for determining parental rights and responsibilities with regard to IMJ. Though many of the factors weighed evenly between the parties, the court found that Janet had the ability to foster a positive relationship with Lisa, while Lisa demonstrated through her " contemptuous refusal to permit parent-child contact" that she could not foster such a relationship. The court, however, concluded that the potential harm that could result from uprooting IMJ outweighed the potential harm from Lisa's inability to foster a relationship with Janet. The court therefore ordered sole physical and legal custody of IMJ to go to Lisa, subject to Janet's visitation rights. The court also ordered the civil union to be dissolved and assets to be distributed. At this time, the court warned Lisa that continued interference with the relationship between IMJ and Janet could lead to a change of circumstances warranting a modification of custody.

[¶6] Lisa again appealed the family court's order to this Court, arguing, among other things, that awarding any parent-child contact to Janet violated Lisa's constitutional rights as IMJ's sole biological parent. In a three-justice entry order, we declined to address most of Lisa's arguments, since they had already been resolved by this Court's decision in Miller-Jenkins I. See Miller-Jenkins v. Miller-Jenkins ( Miller-Jenkins II ),

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183 Vt. 647, 949 A.2d 1082, [WL], at **1-2 (Vt. Mar. Term 2008) (unpub. mem.), available at http://www.vermontjudiciary.org/d-upeo/upeo.aspx. We noted that because no new evidence or facts were adduced at trial, there was no need to revisit those same issues. Id. 183 Vt. 647, 949 A.2d 1082, Id. at *1.

[¶7] In the custody modification order currently on appeal, the family court made the following findings of fact with [189 Vt. 520] respect to Lisa and Janet's relationship and parent-child contact between Janet and IMJ. In recent years, court-ordered parent-child contact between Janet and IMJ has occurred infrequently at best. Since 2007, Lisa has violated several visitation orders and, during these years, the family court has found her in contempt of court a total of seven times for violating numerous parent-child contact orders. Throughout 2008 and 2009, Janet and IMJ had parent-child contact for a total of approximately 48 hours. During these two years, Janet made several trips to Virginia to visit IMJ in accord with the court-ordered visitation schedule, but Lisa did not allow contact. Further, Lisa asked Janet's mother and father to stop contacting IMJ and to stop referring to themselves as " Mom-mom" and " Pop-pop" in front of IMJ. It also found that Janet's parents live near IMJ in Virginia and have seen IMJ only four times in 2008 and 2009. At a January 2009 hearing, the court again explicitly warned Lisa that continued failure to comply with court-ordered visits could lead to a transfer of custody to Janet. The court noted that Lisa then testified that she would comply with the ordered visits, although she now challenges this finding. 1 Because of the lack of parent-child contact, Janet filed two consecutive motions to transfer custody to herself. The first motion was denied, and a hearing on the second motion was held on August 21, 2009. Lisa did not appear or testify at that hearing.

[¶8] The family court noted that, by the time of the August 2009 hearing, Lisa had been noncompliant with visitation orders for ten months. Lisa had interfered with over eight weeks of court-ordered visitation between IMJ and Janet. The court also found that Lisa's intention was to terminate all parent-child contact between Janet and IMJ. In light of these findings, the court concluded that Lisa's willful interference with Janet's visitation rights amounted to a real, substantial, and unanticipated change in circumstances. After analyzing how IMJ's interests would be best served, the court awarded Janet sole physical and legal custody of IMJ. Lisa appealed to this Court. 2

[¶9] Lisa makes three arguments in support of reversing the family court's decision awarding Janet custody. One argument is a broad-based challenge to various findings of fact and conclusions of law made by the family court. Lisa also makes two specific constitutional arguments: (1) that a transfer of custody to Janet violates her fundamental parental rights as the sole biological parent of IMJ;

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and (2) that the family court deprived Lisa of due process in the custody transfer.

I.

[¶10] We first address Lisa's challenges to the family court's findings of fact and legal conclusions. Lisa argues that the transfer of custody is against IMJ's best interests. As an initial matter, we raise two principles of law that guide this Court when we address appeals on family court matters. First, it bears repeating that the family court's sole focus in a custody [189 Vt. 521] dispute must be the best interests of the child. See, e.g., Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998). Although the parents are the ones who appear before the court in a custody dispute, and it is therefore " easy to become caught up in their rights and interests rather than the child's welfare," Price v. Price, 149 Vt. 118, 125, 541 A.2d 79, 83 (1987), the family court must not take into consideration the competing, often antagonistic, desires of the parents without upsetting the delicate nature of custody proceedings and trivializing the welfare of the child. In determining what is in the best interests of a child, it is appropriate and necessary to look at the parents' past actions to determine whether they will be able to abide by whatever visitation schedules and other requirements the court determines are in the child's best interests.

[¶11] The second principle is that this Court is deferential to family court findings of fact. In the face of a motion to modify parental rights...

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