Quinones v. Bouffard, 2016-337

• Decision Date: 26 October 2017
• Docket Number: No. 2016-337,2016-337
• Citation: 2017 VT 103
• Parties: Tracy McIntire Quinones v. Patrick C. Bouffard
• Court: Vermont Supreme Court

2017 VT 103

Tracy McIntire Quinones v. Patrick C. Bouffard

No. 2016-337

Supreme Court of Vermont

April Term, 2017

October 26, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Chittenden Unit, Family Division

Barry D. Peterson, Acting Superior J., Specially Assigned

Mary P. Kehoe of The Kehoe Law Firm, P.C., Burlington, for Plaintiff-Appellant.

Harley Brown, Richmond, for Defendant-Appellee.

PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Carroll, Supr. J., Specially Assigned

¶ 1. ROBINSON, J. At issue in this appeal is whether a family court may, after concluding that a custodial parent's relocation constitutes an unanticipated change in circumstances, maintain physical rights and responsibilities with that parent but then decline to modify parent-child contact, effectively barring the custodial parent from moving because it determined that the move is not in the child's best interests. Custodial mother appeals the family court's denial of her motion to modify parent-child contact to facilitate her relocation with the child. We conclude that the family court applied the wrong framework in evaluating mother's motion, and reverse and remand.

¶ 2. The family court found the following facts. Mother and father have one child together, born in January 2007, but were never married. When the parties separated in 2007, they entered into a stipulation and final order regarding parental rights and responsibilities. The order provided that the parties would share legal rights and responsibilities and mother would have sole physical rights and responsibilities. It also provided that father would have "daily contact by agreement" with their child, and that vacations and holidays would be determined by agreement.

¶ 3. Following the parents' separation, they continued living together until 2011. After the parents started living separately, the child spent most nights with mother but continued to have almost daily contact with father. For example, father would often pick the child up in the mornings to go to school. Father also had the child overnight on Fridays and Sundays; the child stayed with the maternal grandmother on Saturday nights and with mother the rest of the week. The child has a close relationship with both parents, and mother and father each testified that the other was a good parent. In addition, the court found that the child had many relatives in Vermont, including grandparents, aunts, uncles, and cousins, with whom the child has close relationships.

¶ 4. In January 2015, mother married her partner whom she met in Vermont in 2010 and who now lives in Staten Island, New York. Soon thereafter, mother lost her job; she has been unemployed ever since. The parties testified that father began spending less time with the child after mother got married and lost her job, but father continued having the child overnights on Fridays and Sundays.

¶ 5. In April 2016, mother filed a motion to modify parent-child contact and legal rights and responsibilities, announcing her intent to move to Staten Island to live with her spouse. Mother asked the court to issue an order that would permit her to relocate to New York with the child and to establish a new parent-child contact order. She also requested that the court grant her sole legal rights and responsibilities, citing a breakdown in communication between the parents since her marriage, father's refusal to attend mediation, and the impracticality of sharing legal rights if shemoved to New York. Mother proposed an alternate parent-child contact schedule that would allow father to have the child every other weekend and two weeks in the summer, plus half of the child's school vacations. Father opposed mother's motions, and requested that the court modify physical rights and responsibilities and award them to him.

¶ 6. The family court held a hearing in August 2016. In its findings and order, the family court first found that mother's marriage to someone who lived in New York City constituted a change in circumstances. Considering the best-interest factors, the court determined that the majority of them did not favor granting either parent sole rights and responsibilities. It determined that the fourth and seventh factors favored father. See 15 V.S.A. §§ 665(b)(4), (7). The fourth statutory factor considers "the quality of the child's adjustment to the child's present housing, school, and community and the potential effect of any change." Id. § 665(b)(4). The court determined that all of the child's relatives lived in Vermont and thus the child's ability to spend time with them would be greatly reduced, that a move from Vermont to an apartment in Staten Island would be a "dramatic change," and that the reduction in time with father would affect the child's relationship with him. The seventh factor considers "the relationship of the child with any other person who may significantly affect the child." Id. § 665(b)(7). The court concluded that if the child moved with mother, the child's contact with father as well as other family members and friends would be greatly reduced, which would not be in the child's best interest.

¶ 7. However, the court determined that the sixth statutory factor favored mother. That factor considers "the quality of the child's relationship with the primary care provider, if appropriate given the child's age and development." Id. § 665(b)(6). The court noted that father was engaged in the child's life and that the child was close to both parents. However, it concluded that, "[b]ased solely on the amount of time [the child] spends with each parent," mother was the child's primary caregiver.

¶ 8. The court then opined that mother's proposal to move the child to New York would reduce parent-child contact with father by over fifty percent, would require the child to spend twelve to fourteen hours in the car visiting father every other weekend, and would take the child away from family and friends in Vermont. Accordingly, the court concluded that the move was "clearly not in [the child's] best interest." Furthermore, the court concluded that it was in the child's best interest that the parents "continue to share legal parental rights and responsibilities, and that [mother] retain physical rights and responsibilities subject to [father's] rights to parent child contact as previously ordered." The court therefore denied mother's motion to modify father's parent-child contact, stating that the original final order would remain in place and that "substantial changes to [the child's] residence must be by mutual agreement of the parties."¹

¶ 9. On appeal, mother raises three primary arguments. First, she argues that the family court was required to modify legal rights and responsibilities and parent-child contact once it concluded that there was a substantial change in circumstances. Second, she argues that the court failed to give sufficient weight to her role as the primary caregiver with sole physical rights and responsibilities. Third, she argues that some of the court's factual findings were not supported by the record.² For the reasons set forth below, we conclude that the court failed to apply the proper analysis when it awarded mother physical rights and responsibilities but then essentially ordered her to remain in Vermont with the child.

¶ 10. The family court "has broad discretion both in assessing whether there has been a change in circumstances and in evaluating what parenting arrangement is in a child's best interests." Wener v. Wener, 2016 VT 109, ¶ 31, ___ Vt. ___, 157 A.3d 1108. The court's factual findings must stand unless, "viewing the record in the light most favorable to the prevailing party and excluding the effect of modifying evidence, there is no credible evidence to support the findings." Sochin v. Sochin, 2005 VT 36, ¶ 4, 178 Vt. 535, 872 A.2d 373 (mem.) (quotation omitted). We uphold the court's legal conclusions if "they are supported by its findings." Id.

¶ 11. When considering a motion to modify legal or physical rights and responsibilities or parent-child contact, the family court must follow a two-step analysis. First, the moving party must show that there is a "real, substantial and unanticipated change of circumstances." 15 V.S.A. § 668(a); see also Sochin, 2005 VT 36, ¶ 5. If the party meets that burden, the court may modify legal and/or physical rights and responsibilities or parent-child contact "if it is in the best interests of the child." 15 V.S.A. § 668(a). In determining the best interests of a child, the court considers the nine factors listed in 15 V.S.A. § 665(b). Sochin, 2005 VT 36, ¶ 6.

¶ 12. Although the family court has great discretion in this area, its authority is not boundless. We have held that "we cannot condone a process that substitutes the judgment of a court for that of the custodial parent merely because the court would have done something different if it had been the parent." Lane v. Schenck, 158 Vt. 489, 495, 614 A.2d 786, 789 (1992).

¶ 13. Our caselaw establishes that, in the face of a relocation that amounts to a change in circumstances, and when there are competing requests for physical rights and responsibilities,³ thefamily court must determine, in light of the proposed move, which custodian and parent-child contact schedule will serve the child's best interests, not whether the move itself is in the child's best interests. The court may not determine that it is in the child's best interests to remain with the custodial parent but restrict the custodial parent's ability to relocate with the...