Lane v. Schenck
| Decision Date | 22 May 1992 |
| Docket Number | No. 91-447,91-447 |
| Citation | 158 Vt. 489,614 A.2d 786 |
| Parties | Nancy LANE v. James L. SCHENCK, Jr. |
| Court | Vermont Supreme Court |
Dorothy L. Helling, Montpelier, for appellants minor children.
Steven A. Adler of Gensburg Axelrod & Adler, St. Johnsbury, for plaintiff-cross-appellant.
M. Jerome Diamond and Kimberly R. Elia of Diamond & Associates, P.C., Montpelier, for defendant-appellee.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
Plaintiff-mother appeals a family court order modifying her parental rights and responsibilities (custody) by imposing a condition that she reside in a location requiring no more than a four-hour drive from defendant-father's residence. The modification was the court's response to father's request for custody of the couple's three children after mother announced her intent to attend law school in Iowa. We must decide what standard applies in a proceeding brought under 15 V.S.A. § 668 (modification of custody) when, without agreement, a custodial parent decides to move a significant distance from the noncustodial parent. The family court determined that it was in the children's best interests to remain in mother's custody relatively near father's home. The court fashioned its order as it did because of mother's testimony that she would not move to Iowa without the children and that keeping custody was her first priority. We reverse and remand because the court failed to show sufficient deference to the mother's decision to relocate. The proper test is whether the children's best interests would be better served if they were placed in father's custody in Vermont given mother's choice to live and go to school in Iowa.
The parents in this case were divorced in 1989, after nine years of marriage. The court awarded mother the parental rights and responsibilities of the three minor children, who were eleven, eight, and seven years old at the time of the modification hearing in the summer 1991. Father was given parent-child contact (visitation) with the children on alternate weekends and holidays, and at such other times as agreed by the parties. Since then, mother and children have lived in Cabot, Vermont, and father has remarried and resides nearby.
After the divorce, mother announced that she was preparing to move with the children to Iowa City in order to attend law school at the University of Iowa. Father then sought, in accordance with 15 V.S.A. § 668, to modify the divorce judgment, requesting a change in custody. Father also requested, in the event custody was not changed, a modification of the visitation and child support portion of the divorce judgment to account for the burdens of increased travel time and cost.
The family court found that both parents were fit custodians, but that
the children have a better and healthier relationship with Ms. Lane. They love their mother, strongly prefer the present custodial situation, would be devastated by a change in custody and want to accompany her to Iowa City.
....
Ms. Lane is the primary care provider. This fact is beyond dispute, and is acknowledged by Mr. Schenck. The children have a warm, loving relationship with her, and would be adversely affected if removed from her custody. They want to remain with her, and should....
Father, according to the court, is
a sterner disciplinarian and has consistently used corporal punishment on the children. On at least two occasions, his disciplining of [one of the children] has been excessive (slap in face and holding off ground against wall). The children, especially [this child], believe their father is unfair and unpredictable in his displays of anger and use of discipline, and occasionally fear him. Nevertheless, the children generally enjoy their time with him. Mr. Schenck is generally a constructive force in their lives.
....
Mr. Schenck's displays of anger and use of physical discipline have been excessive and unpredictable at times. This has not been good for the children's physical and emotional well being. Thus, the environment is safer in their mother's home.
In addition, the court found that the children had not adjusted well to the divorce, "are not rooted in the community[, and] leaving Cabot would not be detrimental to them." The court did not think father would be able to "meet the children's developmental needs" without counselling. The court also concluded that "Mr. Schenck's primary goal is not to be awarded physical responsibility for the children but to prevent Ms. Lane from moving to Iowa with them." The mother's commitment to the children was described by the court:
If Ms. Lane were required to choose between 1) going to Iowa Law School and losing custody, or 2) remaining in Vermont (or going to some closer school) and keeping custody, she would opt, without hesitation, for the latter alternative. Maintaining custody is paramount.
The court framed the critical issue as follows:
The question is whether it is in the children's best interest to make the move. If the answer is yes, then of course the children would accompany their mother to Iowa City. If the answer is no, then the children would continue to live with Ms. Lane since she would not go to Iowa without them.
The move to Iowa, according to the court, would not necessarily be beneficial due to adjustment demands of a new community, mother's busy schedule, and the present emotional problems of the children. Under these circumstances, the court concluded, the children's needs could not adequately be met with mother in law school and in the absence of father's presence. The order of the court provided:
Defendant's motion to modify the custody order is granted as follows: Ms. Lane's custodial rights shall be subject to the right of Mr. Schenck to have meaningful contact with the children. For purposes of this case, meaningful contact is physical contact that can be achieved by a drive of no more than four hours one way.
Because of the emotional problems that the children are now suffering, they shall be enrolled in counseling. Mr. Schenck shall also enroll in counseling to improve his relationship with his children and his parenting skills.
Mother's first argument is that the family court erred in finding that changed circumstances existed to justify modification under 15 V.S.A. § 668. That statute gives the trial court authority to modify a custodial order "upon a showing of real, substantial and unanticipated change of circumstances ... if it is in the best interests of the child." Mother argues that father knew of her intentions to attend law school long before the divorce was granted. Contrary to her assertions, however, the trial court found the change was unanticipated. Although her plans to attend graduate school were the subject of ongoing discussions between the couple, mother never indicated that she still intended to return to school during separation and while the parties were going through divorce proceedings, which included a contested custody dispute. In addition, mother had taken a full-time job at the Cabot Creamery and had set up residence in Cabot.
The court found that, at the time of the divorce, father reasonably concluded mother had abandoned her educational plans. Mother's reinitiation of her plans, involving a move to another jurisdiction, was a changed circumstance found by the court to be "unanticipated." The threshold determination for a motion to modify is discretionary, Hayes v. Hayes, 144 Vt. 332, 336, 476 A.2d 135, 138 (1984), and we conclude that the court did not abuse its discretion in reaching the merits of the motion.
Mother next argues that the trial court unconstitutionally abridged her right to travel by conditioning her retention of custody on her agreement to attend law school at a location within a four-hour drive from father's residence. We do not view the issue as falling solely within the right to travel, since either party is free to move wherever the party wants. The issue actually involves a determination of the proper parental custodian, given the best interests of the children. While freedom of movement from state to state is implicated, it is unnecessary to elevate the issue presented here to a constitutional dimension. Where a parent lives in relation to the other parent is just one factor of many to be considered in formulating a custody decision. Certainly, the visiting parent could not defeat the custodial parent's rights and responsibilities by asserting a constitutional right to travel.
Our determination turns on the appropriateness of the court's order in light of Vermont's provisions on parental rights and responsibilities. Section 664(1) of Title 15 defines parental rights and responsibilities as "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 and upbringing." The phrase "parental rights and responsibilities" in 15 V.S.A. § 665 replaced the word "custody" contained in an earlier version of the statute. See 15 V.S.A. § 652 (repealed 1986). We continue to use the words "custody" and "custodial parent" as shorthand, while recognizing that their popular sense may denote "dominion" over the children by the custodian to the exclusion of the other parent. See Note, A Critical Look at Vermont's New Child Custody Law,11 Vt.L.Rev. 671, 671 n. 3 (1986) (). Section 665(a) also mandates what was not addressed in its predecessor, that parental rights and responsibilities be granted to one parent "[w]hen the parents cannot agree to divide or share" them, as was the case here.
Because of the impracticality of substituting the judgment of a court for that of the custodial parent, a court must employ...
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