Hawkes v. Spence

• Decision Date: 06 May 2005
• Docket Number: No. 03-304, No. 04-233.
• Citation: 878 A.2d 273
• Parties: Sandra L. HAWKES v. Scott J. SPENCE. Charlann Lacaillade v. Demian J. Hardaker.
• Court: Vermont Supreme Court

878 A.2d 273

Sandra L. HAWKES v. Scott J. SPENCE.

Charlann Lacaillade v. Demian J. Hardaker.

Nos. 03-304, 04-233.

Supreme Court of Vermont.

May 6, 2005.

Catherine E. Clark and Laurie A. LeClair (On the Brief) of Clark, Long, Werner & Flynn, P.C., Burlington, for Plaintiff-Appellee (03-304).

Charlann Lacaillade, Pro Se, Barre, Plaintiff-Appellee (04-233).

Matthew J. Buckley, Richmond, for Defendant-Appellant (03-304).

Demian J. Hardaker, Pro Se, Barre, Defendant-Appellant (04-233).

Present: AMESTOY, C.J.,¹ DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ., and ALLEN, C.J. (Ret.),² Specially Assigned.

¶ 1. REIBER, J.

In each of these two separate cases,³ the family court determined that a divorced parent seeking to prevent the other parent from moving out of state with the parties' children failed to meet the threshold requirement for modifying parental rights and responsibilities by showing a real, substantial and unanticipated change of circumstances. The family court's decisions in these cases highlight the need for us to clarify an area of the law governing seemingly irreconcilable conflicts in which the custodial parent's interest in building a new life with the children is often pitted against the noncustodial parent's interest in maintaining a close relationship with the children. We conclude that the standard and factors set forth in § 2.17(1) and comment b of the American Law Institute's (ALI) Principles of the Law of Family Dissolution for determining when changed circumstances exist are generally consistent with our law and will provide valuable guidance to the family court in making that threshold determination. In both cases before us, the family court erred by holding that relocation alone can never support a finding of changed circumstances. In Hawkes, we reverse the family court's decision and remand the matter for the court to consider the best interests of the child in light of the parties' motions to modify. In Lacaillade, we reverse the family court's decision and remand the matter for the court to reconsider whether changed circumstances exist and, if so, to examine the best interests of the children in light of the parties' motions to modify. We emphasize, however, that when one parent has parental rights and responsibilities for a significant majority of the time, the other parent challenging relocation bears a heavy burden of demonstrating that the severe measure of transferring primary rights and responsibilities from one parent to another is necessary to serve the children's best interests.

I. The Facts

A. Hawkes v. Spence

¶ 2. The parties divorced in 1999, when their daughter was two and one-half years old. At the time of the divorce, mother lived in Colchester, Vermont, and father lived a relatively short distance away in Richmond, Vermont. The final divorce order, which was based on the parties' stipulation, provided that mother would have sole legal parental rights and responsibilities, and that the parties would share physical rights and responsibilities on a fifty-fifty basis until their daughter started kindergarten in 2002, at which time the child would stay with mother for ten days and with father the other four days during each two-week period.⁴

¶ 3. The parties abided by the parental responsibility arrangement established in the final order until, in March 2003, mother notified father in writing that she and her fiancé intended to move to Maryland in June with the parties' daughter so that mother's fiancé could be near his family and work with his father in the family business there. Mother had lost her teaching job because of budget cuts and was looking for a teaching position in Maryland. Recognizing that the move would require a change in the parent-child contact schedule established in the final divorce order, mother filed a motion to modify parent-child contact. Father opposed mother's motion and filed his own motion seeking primary legal and physical rights and responsibilities so that he could keep the parties' daughter with him in Vermont. Following a hearing, the family court granted mother's motion and denied father's motion based on its conclusions that (1) no change of circumstances other than relocation existed, and (2) relocation alone by a parent who holds sole legal parental rights cannot be the basis for modifying parental rights. Accordingly, the court did not consider the best interests of the child. See 15 V.S.A. § 668 (allowing court to modify previous divorce order upon showing of real, substantial and unanticipated change of circumstances, if it is in child's best interests).

¶ 4. On appeal, father argues that the family court erred by determining that (1) mother's proposed relocation was not a real, substantial and unanticipated change of circumstances; (2) mother had a right to move out of state with the parties' child because she had sole legal parental rights and responsibilities; and (3) changed circumstances existed with respect to mother's motion but not father's motion.

B. Lacaillade v. Hardaker

¶ 5. The parties married in December 1993 and divorced in February 2001. Their children were born in September 1990 and April 1996, respectively. Pursuant to the parties' stipulation, the final divorce order provided that mother would have sole physical rights and responsibilities, but that the parties would share legal rights and responsibilities. The parent-child contact schedule contained in the stipulated order provided that father would have the children from Thursday afternoon to Tuesday morning every other week — approximately five days every two weeks.

¶ 6. The parties followed the parental responsibility arrangement contained in the final divorce order until January 2004 when mother filed a motion to modify parent-child contact. She sought sole legal rights and responsibilities and a change in the parent-child contact schedule because her new husband had accepted a position with the Department of Homeland Security as a border patrol officer, which would require the family to move to Calexico, California, on the Mexican border. Mother anticipated that the parties' children would make the move after completing the 2003-2004 school year. Father opposed mother's motion and filed his own motion seeking sole legal and physical parental rights and responsibilities. Following a hearing, the family court granted mother's motion, except for continuing shared legal parental rights and responsibilities, and denied father's motion based on its conclusion that relocation alone cannot meet the threshold requirement of showing a real, substantial and unanticipated change of circumstances. Accordingly, the court declined to reach a best-interests analysis.

¶ 7. On appeal, father argues that the trial court erred in determining that (1) mother's intended relocation did not meet the threshold requirement of showing a real, substantial and unanticipated change of circumstances; (2) the final divorce order gave mother sole physical rights and responsibilities, thereby allowing her to unilaterally move out of state with the parties' children; and (3) changed circumstances existed with respect to mother's motion but not father's motion.

II. The Law

¶ 8. As noted, two legitimate interests — the custodial parent's interest in making unfettered decisions for the benefit of the new nuclear family and the noncustodial parent's interest in maintaining a close bond with the parties' children — often clash in relocation cases, thereby causing seemingly irreconcilable conflicts. Appellate courts have struggled mightily to create a legal framework in which to resolve such conflicts while keeping in mind the paramount interests of the children. See generally Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653, 657-62 (2003) (reviewing prominent decisions in other jurisdictions that have grappled with relocation issues); In re Marriage of Lamusga, 32 Cal.4th 1072, 12 Cal.Rptr.3d 356, 88 P.3d 81, 90-99 (2004) (reviewing California courts' struggles with relocation cases). The difficulty is establishing standards that are flexible enough to allow trial courts to weigh the complex variables that come into play in relocation cases, and yet not so flexible that they fail to provide guidance to the trial courts and predictability to the litigants and lawyers involved. Compare Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575, 665 N.E.2d 145, 151 (1996) (explaining that children's interests are not served by viewing relocation cases through "prisms of presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another"; rather, "courts should be free to consider and give appropriate weight to all of the factors that may be relevant to" determination of whether proposed relocation would serve best interests of children), with Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676, 683 (1998) (requiring custodial parent to demonstrate that relocation is for legitimate purpose and is reasonable in light of that purpose; if custodial parent is able to make out prima facie case in support of relocation, burden shifts to noncustodial parent to prove that relocation would not be in children's best interests). See generally C. Ford, Untying the Relocation Knot: Recent Developments and a Model for Change, 7 Colum. J. Gender & L. 1 (1997); C. Bruch, The Relocation of Children and Custodial Parents: Public Policy, Past and Present, 30 Fam. L.Q. 245 (1996).

¶ 9. In Vermont, several general principles have emerged from our previous relocation cases that address the statutory test requiring a threshold showing of real, substantial and unanticipated changed circumstances before parental rights and responsibilities can be modified based on the children's best interests. See 15 V.S.A. § 668. One principle is that because the physical custodian has a right to determine the children's residence, and because allowing the new family unit to flourish...