Moreau v. Sylvester

Decision Date04 April 2014
Docket Number12–154.,Nos. 12–152,s. 12–152
Citation2014 VT 31,95 A.3d 416
CourtVermont Supreme Court
PartiesChristopher MOREAU v. Noel SYLVESTER. Noel Sylvester v. Christopher Moreau.


Steven A. Adler and Daniel D. McCabe of Axelrod & Adler, PLLC, St. Johnsbury, for PlaintiffAppellant (12–152) and DefendantAppellant (12–154).

Noel Sylvester, Pro Se, Morrisville, DefendantAppellee (12–152) and PlaintiffAppellee (12–154).



¶ 1. In this consolidated appeal defendant Christopher Moreau contests the Washington family court's dismissal of his emergency petition for child custody and parentage complaint over children with whom he shares no biological or other established legal connection, as well as the Caledonia family court's issuance of a relief-from-abuse (RFA) order denying him visitation with the children.1 Defendant contends that he is the children's de facto parent and entitled to assert and be heard on custody, parentage and visitation rights. We disagree and affirm.

¶ 2. The following background is drawn from findings of fact made by the Caledonia family court at the final RFA order hearing. Plaintiff and defendant were in an on-again-off-again relationship for eight to ten years; they never married. Plaintiff is the mother of two children, born in 2003 and 2006. Defendant is not the biological father of either child. Nevertheless, he played a significant, father-figure role in both of the children's lives. Although plaintiff and defendant separated in February 2009, they had an ongoing arrangement for shared responsibility for the children. For example, the children lived with defendant for a period of time in May 2011 when flooding rendered plaintiff's residence uninhabitable. During the periods of care assigned to defendant, he was sometimes unwilling to return the children to their mother, and plaintiff testified credibly that this created a dangerous situation on at least one occasion.

¶ 3. The incidents giving rise to the present appeals occurred on March 5, 6 and 7, 2012. The parties' rapport had deteriorated in the preceding days, and the children were with plaintiff in the home she shared with her new partner. On March 5, defendant sent plaintiff a text message at 8:05 p.m. stating “I promise you, for the rest of my life, I will find my girls and I will never stop, ever.”

¶ 4. In the early hours of March 6, defendant and a friend drove to the new partner's place of employment to confirm he was at his job and not at plaintiff's residence. Defendant and his friend then drove to plaintiff's home, arriving at approximately 2 a.m. They proceeded to knock on plaintiff's door for at least ten minutes. Defendant claimed that he did this out of concern for the children. Plaintiff was at home with her children without a vehicle or a cell phone she believed to be operable. Plaintiff was also aware that defendant owned a gun.

¶ 5. Twenty-four hours later, on March 7, defendant and his friend again drove to the new partner's place of employment to verify he was not at plaintiff's residence. Defendant and his friend arrived at plaintiff's home at 2 a.m., and defendant directed his friend to bang on plaintiff's door. Defendant then joined his friend and together they banged on the door until the police arrived. Defendant claimed that the purpose of the visit was to drop off some of the children's belongings so they could have them for school. Defendant gave these belongings to police officers who placed them in plaintiff's possession. Defendant was then served with a temporary RFA order, which plaintiff had obtained the day before.

¶ 6. At the final RFA hearing on April 3, 2012, the trial court concluded that defendant had placed plaintiff and her children in imminent fear of serious physical harm. The trial court issued an RFA order prohibiting defendant from contacting or interacting with plaintiff as well as the children for one year, noting that [d]efendant is not their biological father.” Defendant appeals this order in docket 2012–154.

¶ 7. Meanwhile, before the final RFA hearing and evidently unbeknownst to plaintiff, defendant filed in the Washington family court an emergency petition for visitation and a parentage complaint seeking sole physical and legal custody of plaintiff's children. The trial court dismissed both actions on April 24, 2012 because defendant is not related to the children in any way. Defendant appeals this dismissal in docket 2012–152.

¶ 8. On appeal, defendant requests a remand for evidentiary findings as to whether he is a de facto parent of plaintiff's children and, if so, whether visitation is in the children's best interest. Defendant argues that: (1) we should apply the best-interest-of-the-children principle contained in Vermont custody statutes “to create enforceable visitation between children and de facto parents”; (2) we should reexamine our reasoning in Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997), denying equitable relief to persons asserting de facto parentage because “changing demographics in Vermont necessitate a modernized interpretation of the law”; and (3) in the past, this Court has interpreted existing statutes and the Vermont Constitution to expand custody and marriage laws.2 Plaintiff, representing herself, did not file a responsive brief.


¶ 9. Some background on the development of parental rights and visitation law in Vermont, especially outside the context of divorce proceedings for persons not related by blood to children, will assist the reader. In 1984 the Legislature enacted the Parentage Proceedings Act, giving putative fathers the right, denied at common law, to establish paternity and thus pursue custody or visitation. 15 V.S.A. §§ 301–306.

¶ 10. In 1985, this Court recognized that 15 V.S.A. §§ 291 and 293 empowered courts to award custody to still-married stepparents in cases of desertion, nonsupport, or living separately. Paquette v. Paquette, 146 Vt. 83, 85, 499 A.2d 23, 25–26 (1985). The Paquette Court also acknowledged that former 15 V.S.A. § 652, which set forth custody guidelines for any “child of the marriage” in divorce proceedings, allowed courts to award custody to stepparents standing in loco parentis, but only upon a showing “by clear and convincing evidence that the natural parent is unfit or that extraordinary circumstances exist to warrant such a custodial order, and that it is in the best interests of the child.” Id. at 86, 92, 499 A.2d at 26, 30.

¶ 11. Eight years later, we interpreted two provisions of Vermont's then-existing adoption statute, 15 V.S.A. §§ 431 and 448, to allow adoption by an unmarried, same-sex partner of the child's birth mother without having to terminate the natural mother's parental rights. In re B.L.V.B., 160 Vt. 368, 369–70, 628 A.2d 1271, 1272–73 (1993). The statute authorized adoption by an unmarried “person,” but, read literally, required terminating the “natural” parent's rights in favor of the adopting person's parental rights, except when the adopting person was a stepparent married to the natural parent. Id. at 370–71, 628 A.2d at 1273. We explained that, by “allowing same-sex adoptions to come within the step-parent exception of § 448, we are furthering the purposes of the statute as was originally intended by allowing the children of such unions the benefits and security of a legal relationship with their de facto second parents.” 3Id. at 375, 628 A.2d at 1276. Thus, our holding corrected an “unreasonable and unnecessary” application of the statute that would thwart an adoption in the child's best interests by a person otherwise qualified to adopt, but for her partnership with the mother. Id. at 369, 628 A.2d at 1272. In 1996 the Legislature confirmed the B.L.V.B. holding in the new Adoption Act, 15A V.S.A. §§ 1–101– 8–101, providing that [i]f a family unit consists of a parent and the parent's partner, and adoption is in the best interest of the child, the partner of a parent may adopt a child of the parent” without terminating his or her parental rights. Id. § 1–102(b).

¶ 12. The concept of de facto parents was revisited in Titchenal v. Dexter, 166 Vt. 373, 693 A.2d 682 (1997), the case that is the focus of defendant's appeal here. Titchenal involved two women in a relationship who jointly participated in raising a child adopted by only one of them. The parties' relationship disintegrated, and the adoptive mother would not allow the plaintiff contact with the child. Lacking a statutory provision under which she could petition the family court, the plaintiff filed a complaint requesting the general civil court 4 to exercise its equitable power to establish parent-child contact. The complaint was dismissed for lack of jurisdiction. Id. at 375–76, 693 A.2d at 683. On appeal, the plaintiff urged this Court “to grant ‘nontraditional’ family members access to the courts by recognizing the legal rights of de facto parents”—those persons who share a bond with a child but otherwise no legally cognizable connection, either through biology, marriage, statute or court order. See id. at 376, 376 n. 1, 693 A.2d at 683–84, 684 n. 1 (explaining “de facto parent” as a person with psychological bond to child, and doctrine of “in loco parentis” as entailing emotional and financial support, and that [f]or purposes of this opinion, we see no need to draw fine lines between the doctrines. Plaintiff's point is that though she is not the legal parent of [the child], in all other respects she has acted as the child's parent.”).

¶ 13. The precise issue addressed in Titchenal was whether equity provided an avenue for the civil court to adjudicate visitation claims within the then-exclusive jurisdiction of the family court, but incapable of being brought in family court under Vermont statutes. Id. at 375, 693 A.2d at 683. The Titchenal plaintiff posited that the family court retained jurisdiction to adjudicate parent-child contact disputes...

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