Habecker v. Giard, No. 2002-334.

• Docket Nº: No. 2002-334.
• Citation: 820 A.2d 215
• Case Date: February 14, 2003
• Court: United States State Supreme Court of Vermont

820 A.2d 215

Kimberly A. HABECKER
v.
Christopher GIARD

No. 2002-334.

Supreme Court of Vermont.

February 14, 2003.

820 A.2d 216

AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND, JJ

ENTRY ORDER

¶ 1. Mother appeals from a Chittenden Family Court order granting legal and physical custody of the parties' four children to father. Mother, who is not married to father, claims that the court erred by: 1) finding a real, substantial and unanticipated change of circumstances when

820 A.2d 217

the evidence did not support such a finding; 2) concluding that transfer of physical custody and legal parental rights and responsibilities to father was in the children's best interests; and 3) improperly placing the burden upon mother to file a motion to modify custody order prior to relocating. We affirm

¶ 2. The family court found the following facts. Mother and father lived together with their children for many years in Vermont, Maine, and New Hampshire; mother and father were never married. In 1996, when the parties had three children, they separated and entered into a stipulation and final order regarding parental rights and responsibilities. Under this order, mother had sole physical custody, and the parties had joint legal custody of the three children. Father was awarded visitation rights on every other weekend and two full weeks during the year, with vacations and holidays to be mutually agreed upon by the parties. In practice, father has the children for an additional three hours one evening per week. After the date of the agreement, mother and father later reunited, and their fourth child was born in 1998. In 2000, the parties separated again. The court issued an order in 2001, which granted mother sole physical and legal custody of the parties' fourth child.

¶ 3. In 2001, mother began to contemplate a move from Vermont to Arizona, and she mentioned this to father in September. In November 2001, mother sent father a certified letter indicating her intention to relocate to Arizona, but he did not receive it. In January 2002, mother applied for a job in the same school system for which father works. Father was aware of this fact, which led him to assume mother had decided to stay in Vermont. One month later, mother became engaged to a man living in Arizona whom she apparently met over the Internet. On March 5, 2002, mother sent father a letter stating that she and the children were moving to Arizona around June 1. One week later, mother wrote father again to notify him that the move would take place on April 1. On March 20, 2002, father filed a motion to modify parental rights and responsibilities accompanied by an emergency motion to prevent the removal of the children from Vermont. The court granted father's emergency motion, denied mother's motion to reconsider, and held hearings on the motion to modify on May 13 and June 21, 2002.

¶ 4. The family court issued a twentyfive page, fact-specific ruling in which it granted father's motion to modify. The court awarded legal and physical custody of all four children to father, finding that 1) the moving party, father, made a showing of a real, substantial and unanticipated change of circumstances, and 2) a modification of the prior parental rights and responsibilities determination was in the best interests of the children.

¶ 5. In order to modify custody, a moving party must first make a threshold showing of a "real, substantial and unanticipated change of circumstances." 15 V.S.A. § 668; deBeaumont v. Goodrich, 162 Vt. 91, 95, 644 A.2d 843, 845 (1994). The court has discretion in determining a change of circumstances for custody purposes. Lane v. Schenck, 158 Vt. 489, 494, 614 A.2d 786, 788 (1992). If the party makes this threshold showing, then the court may change custody only when the best interests of the child so require. 15 V.S.A. § 668; deBeaumont, 162 Vt. at 95, 644 A.2d at 845-46; Lane, 158 Vt. at 497, 614 A.2d at 790. The burden for such a showing remains on the moving party, and, due to the value of stability in a child's life, it is a heavy one. deBeaumont, 162 Vt. at 102, 644 A.2d at 850.

820 A.2d 218

I.

¶ 6. Mother argues that the court erred in holding that father made the required threshold showing of a real, substantial and unanticipated change of circumstances. First, we agree with mother that relocation alone does not automatically constitute a change of circumstances. We have previously made clear that "relocation without more is not per se a substantial change of circumstances." Id. at 97, 644 A.2d at 847 (emphasis added); accord Gazo v. Gazo, 166 Vt. 434, 440, 697 A.2d 342, 345 (1997). It is not appropriate for the court to substitute its judgment for that of the custodial parent with respect to the wisdom of a decision to relocate, McCart v. McCart, 166 Vt. 629, 630, 697 A.2d 353, 354 (1997) (mem.), nor should the court choose where the custodial parent and children must reside. See Gazo, 166 Vt. at 441, 697 A.2d at 346.

¶ 7. Our recent discussion of the relocation issue in Hoover v. Hoover, 171 Vt. 256, 259, 764 A.2d 1192, 1194 (2000), a case in which the parents had shared legal and physical custody, noted:

[W]hen childrearing and its concomitant decision-making are shared, relocation to a remote location by one parent requires at the very least a reassessment of the custodial arrangement and,

...