Kilduff v. Willey, No. 85-092

• Docket Nº: No. 85-092
• Citation: 150 Vt. 552, 554 A.2d 677
• Case Date: November 23, 1988
• Court: United States State Supreme Court of Vermont

Page 677

554 A.2d 677 150 Vt. 552 William KILDUFF
v.
Faye Kilduff WILLEY. No. 85-092. Supreme Court of Vermont. Nov. 23, 1988.

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Chimileski & Associates, P.C., Newport, for plaintiff-appellee.

Rexford & Kilmartin, Newport, for defendant-appellant.

Before ALLEN, C.J., PECK and DOOLEY, JJ., BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned.

BARNEY, Chief Justice (Ret.), Specially Assigned.

This is an appeal by defendant, Faye Kilduff Willey, from a modification of a child custody order. We remand for further hearings.

The parties were divorced in the state of New York in 1980. Custody of their adopted infant son, Liam, was awarded to them jointly, as they wished, with physical custody in the defendant-mother and liberal visitation rights in the plaintiff-father. In 1981, by stipulation, the parties agreed to a modified order, continuing joint custody but setting up a different visitation schedule based on defendant's residence in northern Vermont. Physical custody remained with defendant. Both parties have remarried.

Difficulties arose involving the handling of visitation rights, and in 1984 plaintiff brought suit in Vermont to enforce the New York order. Defendant answered and filed for modification seeking [150 Vt. 553] full custody of Liam. Plaintiff responded with a similar request for modification to give full custody to him. The trial court appointed an attorney for Liam below, but the child is not represented separately here on appeal. After several lengthy hearings, the trial court issued findings and an order transferring custody to plaintiff, the child's father, with visitation rights in the mother. Defendant challenges the findings and the order.

At the time of these proceedings, the statute governing modification of custody decrees provided:

(d) On petition of either parent or any other person to whom custody has previously been granted, and upon a showing of a real, substantial, and unanticipated change of circumstances, the court may annul, vary, or modify an order made under this section if it is in the best interest of the child, whether or not such order of custody is based upon a stipulation or an agreement.

15 V.S.A. § 652(d). ¹ Consistent with the statutory language and prior case law, the trial court must first determine whether there has been a real, substantial and unanticipated change of circumstances; only if such a change is found may the court move on to the question of the best interest of the child. Wells v. Wells, 150 Vt. 1, ----, 549 A.2d 1039, 1041 (1988); Hayes v. Hayes, 144 Vt. 332, 335-36, 476 A.2d 135, 137-38 (1984); Gerety v. Gerety, 131 Vt. 396, 399, 306 A.2d 693, 694 (1973). It is a critical threshold finding, without which the court is precluded from considering the "merits of the parties' claims" regarding the best interest of their child. Hayes, 144 Vt. at 335, 476 A.2d at 138. A two-stage inquiry therefore must precede any court-ordered modification.

While there are "no fixed standards to determine what constitutes a substantial change in material circumstances," Gerety, 131 Vt. at 402, 306 A.2d at 695, the burden on the moving party to prove changed circumstances is heavy. The statute and our cases regarding change in custody reflect the policy that giving stability to a child's life, to the extent possible under the circumstances,

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is so important that custody ought not to be modified without critical justification. See Wells, 150 Vt. at ---- n. *, 549 A.2d at 1042 n. * (citing to legal and child development literature on the vital importance of continuity in child's life). Otherwise, if [150 Vt. 554] moved on the basis of only momentary changes of advantage or benefit, children might be rendered totally insecure by frequent switches in home and custody. See Hayes, 144 Vt. at 336, 476 A.2d at 138. It is hard enough to give children of a broken home some semblance of an ordered life, while at the same time maintaining adequate contact with both parents, without subjecting them to the further disruption of moving to a new home and a...