Barrows v. Easton
| Decision Date | 17 January 2020 |
| Docket Number | No. 2019-149,2019-149 |
| Citation | 2020 VT 2 |
| Court | Vermont Supreme Court |
| Parties | Jason C. Barrows v. Jessica Easton |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from Superior Court, Windham Unit, Family Division
Sharon L. Annis of Buehler & Annis, PLC, Brattleboro, for Plaintiff-Appellant.
Jessica Easton, Pro Se, Brattleboro, Defendant-Appellee.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.)1 and Morris, Supr. J. (Ret.), Specially Assigned
¶ 1. In this parentage case, father appeals an order purporting to grant him primary physical rights and responsibilities but granting mother parent-child contact amounting to 64% of parenting time. We conclude that this allocation of physical rights and responsibilities and parent-child contact is internally inconsistent, and remand for the trial court to amend its findings and order.
¶ 2. Father filed this parentage action in July 2017, when the child was approximately six months old. Pursuant to the parties' stipulation, the court entered an interim order providing that parents would share legal rights and responsibilities, and assigning mother "full physicalparental rights and responsibilities." The stipulated order provided that father and child had parent-child contact every weekend from Friday to Sunday evening or, in alternate weeks, Friday to Monday morning. It provided that the child would be in day care at early education services from 8:30 a.m. to 3:00 p.m. five days per week. That general schedule remained in place throughout the trial court proceedings.
¶ 3. In January 2019, following a contested hearing, the court issued a final order regarding parental rights and responsibilities and parent-child contact. The parents did not agree to share legal or physical parental rights and responsibilities, so the court was required to award parental rights and responsibilities "primarily or solely" to one parent. 15 V.S.A. § 665(a). The court found that both parents had a significant role in the child's life and that the child "has a strong and enduring bond with both his parents." The court concluded that most of the statutory factors guiding the best-interests analysis, including the "primary care provider" factor, did not favor either parent. See id. § 665(b). However, two factors—"[t]he ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment," and "the ability and disposition of each parent to meet the child's present and future developmental needs"—slightly favored father.2 See id. § 665(b)(2)-(3). Accordingly, the court concluded that, on balance, the child's best interests supported awarding father sole legal and physical rights and responsibilities, with substantial parent-child contact for mother.
¶ 4. The court's parent-child contact schedule left the existing schedule, established by the interim order, in effect. That is, the child was to be with father over the weekends—from Friday to Sunday evening, or until Monday morning in alternate weeks. The order included additional provisions for holidays and birthdays. Under this schedule, mother had approximately 64% of overnights with the child, and father approximately 36%.
¶ 5. Father filed a motion for reconsideration. He argued that because the court granted him primary physical rights and responsibilities, it was legally required to grant him 50% or more of parenting time. The trial court, quoting Chase v. Bowen, 2008 VT 12, ¶ 42, 183 Vt. 187, 945 A.2d 901, reasoned that "physical custody is not simply about the time a child spends with a parent." In the trial court's view, "physical responsibility" as described in 15 V.S.A. § 664(1)(B) also refers to "primacy in decision making regarding routine daily matters." It reiterated its findings that maintaining the existing schedule was in the child's best interests, based on the parents' work schedules and the child's interest in consistency. The court did make some minor modifications to the parenting schedule regarding holidays, but otherwise left the schedule intact.
¶ 6. On appeal, father argues that the court's parent-child contact order essentially amounted to an award of physical rights and responsibilities to mother, despite the court's award of physical rights and responsibilities to father. He contends that the court's establishment of a schedule pursuant to which the child resides primarily with mother impermissibly infringes on father's right to exercise primary physical rights and responsibilities. Father asks this Court to remand to the trial court to establish a parent-child contact schedule that affords mother parent-child contact that is less than or equal to father's time with the child.
¶ 7. The trial court has broad discretion in allocating parental rights and responsibilities and in setting a parent-child contact schedule. MacCormack v. MacCormack, 2015 VT 64, ¶¶ 4, 26, 199 Vt. 233, 123 A.3d 383. We review these discretionary rulings for abuse of discretion. Lee v. Ogilbee, 2018 VT 96, ¶ 9, ___ Vt. ___, 198 A.3d 1277. We review the legal question of whether the trial court's order is internally inconsistent as a matter of law without deference. See Engel v. Engel, 2012 VT 101, ¶ 13, 193 Vt. 19, 71 A.3d 1124 (). We substantially agree with father as to the error in the trial court's analysis, but part ways with respect to the proper remedy.
¶ 8. We agree that the court's award of physical rights and responsibilities to father implies that the child will spend at least fifty percent of the time with father, and that the trial court's order awarding father primary physical rights and responsibilities but mother nearly two-thirds of the time with the child is thus internally inconsistent. We base this conclusion on several considerations. First, the language, structure, and history of the relevant statutes support the conclusion that the parent with physical responsibility is the parent with whom the child lives at least fifty percent of the time. Second, this Court has consistently recognized that the parent entrusted with physical rights and responsibilities has the authority to determine where the child lives. Third, a contrary interpretation would render the concept of "physical responsibility" meaningless. Finally, the trial court's use of the term "parental rights and responsibilities" could give rise to confusion and incongruous outcomes where other statutory schemes assign significance to a parent's custodial status.
¶ 9. The trial court is correct that the statutory definitions of physical rights and responsibilities and parent-child contact do not expressly mandate that the child reside with the parent awarded primary physical rights and responsibilities for any particular amount of time. But implicit in the language, structure, and history of the relevant statutes, and this Court's general understanding of them, is that the child resides with the parent entrusted with physical rights and responsibilities at least half the time.
¶ 10. The structure of our parental-responsibilities statute is based on the premise that the parent with primary physical responsibility will live with the child at least half the time. The overarching category of "parental rights and responsibilities" comprises "the rights and responsibilities related to a child's physical living arrangements, parent child contact, education, medical and dental care, religion, travel and any other matter involving a child's welfare andupbringing." 15 V.S.A. § 664(1) (emphasis added). This category of rights and responsibilities is broken into two components. "Legal responsibility" involves major decisions affecting the child's welfare and upbringing, such as "education, medical and dental care, religion and travel arrangements." Id. § 664(1)(A).3 " 'Physical responsibility' means the rights and responsibilities to provide routine daily care and control of the child subject to the right of the other parent to have contact with the child." Id. § 664(1)(B). Unless parents agree to share physical rights and responsibilities, the court must entrust these rights and responsibilities "primarily or solely to one parent." Id. § 665(a). It is hard to imagine how one parent could effectively be the primary or sole person providing routine daily care and control for a child if the child is living more than half of the time with the other parent.
¶ 11. The definition of "parent-child contact" reinforces this understanding. " 'Parent child contact' means the right of a parent who does not have physical responsibility to have visitation with the child." Id. § 664(2) (emphasis added). The court does not provide for parent-child contact for the parent who has physical rights and responsibilities; rather, the definition presumes that the parent who does not live with the child the majority of the time is the one exercising the opportunity for visitation.
¶ 12. The history of the term "parental rights and responsibilities" also suggests that primary physical responsibility includes a majority of parenting time. "The phrase 'parental rights and responsibilities' in 15 V.S.A. § 665 replaced the word 'custody' contained in an earlier version of the statute." Lane v. Schenck, 158 Vt. 489, 495, 614 A.2d 786, 789 (1992). This change in language reflected an important rhetorical shift: the Legislature ...
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Hinkson v. Stevens
...(not just isolated words or phrases) in the respective statutes mean two different things would be incongruous. See, e.g., Barrows v. Easton, 2020 VT 2, ¶ 16, ___ Vt. ___, 227 A.3d 1030 (construing statute to avoid inconsistent definitions of "custodial parent" for parentage, child support,......
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What’s New
...has clarified that the parent (s) with physical rights and responsibilities are the custodial parents in CHINS cases. Barrows v. Easton, 2020 VT 2. It has also ruled that a juvenile court is not authorized to order child support or allocate travel expenses. In re A.M. 2019 VT 79. In other n......