Hawkes v. Spence, No. 03-304

Docket NºNo. 03-304
Citation878 A.2d 273
Case DateMay 06, 2005
CourtUnited States State Supreme Court of Vermont

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.


878 A.2d 274
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

878 A.2d 275
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

878 A.2d 276
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,

878 A.2d 277
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...

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20 practice notes
  • Fabiano v. Cotton, No. 20-011
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 25, 2020
    ...required to support a modification of physical rights and responsibilities. See, e.g., Hawkes v. Spence, 2005 VT 57, ¶ 20, 178 Vt. 161, 878 A.2d 273 ("The burden of showing changed circumstances with respect to a motion to alter parent-child 249 A.3d 1278 contact is ‘not as high’ as the hea......
  • Wener v. Wener, No. 15-316
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 16, 2016
    ...such that the ability of the other parent to have parent-child contact is impaired. See Hawkes v. Spence , 2005 VT 57, 178 Vt. 161, 878 A.2d 273 ; Lane v. Schen c k , 158 Vt. 489, 614 A.2d 786 (1992). We have observed that "when childrearing and its concomitant decision-making are shared, r......
  • Fabiano v. Cotton, No. 2020-011
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 25, 2020
    ...required to support a modification of physical rights and responsibilities. See, e.g., Hawkes v. Spence, 2005 VT 57, ¶ 20, 178 Vt. 161, 878 A.2d 273 ("The burden of showing changed circumstances with respect to a motion to alter parent-child contact is 'not as high' as the heavy burden of s......
  • Barrows v. Easton, No. 19-149
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 17, 2020
    ...that "the physical custodian has a right to determine the children's residence." Hawkes v. Spence, 2005 VT 57, ¶ 9, 178 Vt. 161, 878 A.2d 273 ; see also Quinones v. Bouffard, 2017 VT 103, ¶ 24, 206 Vt. 66, 179 A.3d 173 (noting that parent with physical rights and responsibilities has author......
  • Request a trial to view additional results
20 cases
  • Fabiano v. Cotton, No. 20-011
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 25, 2020
    ...required to support a modification of physical rights and responsibilities. See, e.g., Hawkes v. Spence, 2005 VT 57, ¶ 20, 178 Vt. 161, 878 A.2d 273 ("The burden of showing changed circumstances with respect to a motion to alter parent-child 249 A.3d 1278 contact is ‘not as high’ as the hea......
  • Wener v. Wener, No. 15-316
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 16, 2016
    ...such that the ability of the other parent to have parent-child contact is impaired. See Hawkes v. Spence , 2005 VT 57, 178 Vt. 161, 878 A.2d 273 ; Lane v. Schen c k , 158 Vt. 489, 614 A.2d 786 (1992). We have observed that "when childrearing and its concomitant decision-making are shared, r......
  • Fabiano v. Cotton, No. 2020-011
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 25, 2020
    ...required to support a modification of physical rights and responsibilities. See, e.g., Hawkes v. Spence, 2005 VT 57, ¶ 20, 178 Vt. 161, 878 A.2d 273 ("The burden of showing changed circumstances with respect to a motion to alter parent-child contact is 'not as high' as the heavy burden of s......
  • Barrows v. Easton, No. 19-149
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 17, 2020
    ...that "the physical custodian has a right to determine the children's residence." Hawkes v. Spence, 2005 VT 57, ¶ 9, 178 Vt. 161, 878 A.2d 273 ; see also Quinones v. Bouffard, 2017 VT 103, ¶ 24, 206 Vt. 66, 179 A.3d 173 (noting that parent with physical rights and responsibilities has author......
  • Request a trial to view additional results

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