Weaver v. Weaver

• Decision Date: 06 April 2018
• Docket Number: 17–208 & 17–326,Nos. 16–417,s. 16–417
• Citation: 186 A.3d 1119
• Parties: Nicola WEAVER v. David WEAVER
• Court: Vermont Supreme Court

186 A.3d 1119

Nicola WEAVER

v.David WEAVER

Nos. 16–417

17–208 & 17–326

Supreme Court of Vermont.

March Term, 2018

April 6, 2018

Nicola Weaver, Pro Se, North Ferrisburgh, Plaintiff–Appellant.

Wanda Otero–Weaver, Lincoln, for Defendant–Appellee.

PRESENT: Reiber, C.J., Skoglund, Eaton and Carroll, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

EATON, J.

¶ 1. In these consolidated appeals, mother, the noncustodial parent, challenges three successive orders of the family division that restricted and then temporarily suspended her contact with the parties' sixteen-year-old son. We affirm the court's restrictions on mother's contact with the child, but reverse its limitations on her access to the child's records and communications with school and medical personnel. We remand that issue for further findings and direct the family court to review its order suspending contact within sixty days.

I. Factual Background

¶ 2. This case has a long and contentious history including two previous appeals to this Court.¹ For purposes of the present appeal, the following facts are relevant. The parties divorced in August 2011 after a long marriage. They have four sons, all of whom were minors at the time of the divorce. The three older sons are now adults. The youngest, N.W., is sixteen years old. In the August 2011 final divorce order, the court awarded sole legal and physical parental rights and responsibilities to mother, who had been the primary caregiver throughout the children's lives. Father was to have contact with the children on three weekends each month. The court ordered each party to refrain from criticizing or disparaging the other parent, and warned that failure to comply could lead to contempt-of-court charges or other remedies including modification of the custody order.

¶ 3. Three months later, in December 2011, the court modified physical parental rights and responsibilities. The court found that mother had interfered with father's parent-child contact by failing to bring the children to father as scheduled, saying that she was terminating all visitation because she was angry with father, having the police call father when he was with the children in Maine on vacation, and scheduling events during father's contact time. Mother was convicted for unlawful trespass and simple assault as a result of her behavior and was placed on probation until 2019. The court ordered the parents to share physical responsibilities so that father "is less at the mercy of mother's whims." It warned that a further change in custody was possible if mother's behavior continued.

¶ 4. In May 2014, father moved to modify parental rights and responsibilities again, alleging that mother had repeatedly violated the court's orders by interfering with his parent-child contact, attempting to alienate the children from him, disparaging him to the children, and harassing him in other ways. Mother responded that father was angry that he was ordered to pay child support and maintenance, and that he and his new wife, who was also his attorney,² were attempting to discredit mother in order to get custody of the children and reduce father's support obligations. The parties agreed to undergo a forensic psychological evaluation to aid the court in deciding the motion. The psychologist interviewed both parents, the children, and certain friends and family, and concluded that both parents loved the children and were able to care for them and meet their needs. However, the psychologist recommended granting sole parental rights and responsibilities to father, who appeared to be better able to execute those responsibilities and to communicate with mother.

¶ 5. After two hearings, in June 2015 the court granted father's motion to modify parental rights and responsibilities. The court found that mother had continued to disparage father to the children and to involve the children in her dispute with father. She had threatened and harassed father's spouse. She refused to permit N.W., the parties' youngest son, to get braces, even though father arranged to pay the entire cost. She told the children they would become homeless because father would not support them. The court concluded that mother's intentional alienation of the children from father and failure to follow court orders constituted a substantial change in circumstances warranting modification of the custody award. The court determined that it would be in the children's best interests to transfer sole legal and physical rights and responsibilities for the children to father. It ordered the then-existing parent-child contact schedule of alternating weeks with each parent to remain in place. Once again, the court admonished mother not to threaten or harass father or his spouse, or criticize father or his spouse in front of the children. Mother did not appeal the June 2015 order.

¶ 6. In February 2016, father filed a motion to modify parent-child contact. An evidentiary hearing was held on September 8, 2016. Mother did not appear. Based on the evidence presented at the hearing, the court issued a written decision on September 20, 2016, finding that mother had "persisted in her unremitting campaign to alienate her sons" from their father. The court found that mother had defied court orders, permitted N.W. to be tardy or absent from school on numerous occasions, and refused to acknowledge or participate in treatment of N.W.'s diagnosed eating disorder, to N.W.'s detriment. Although N.W. had expressed to the court his desire to maintain the current contact schedule, the court concluded that to do so would risk further harm to N.W. and to father's ability to exercise his responsibilities as N.W.'s legal custodian. The court therefore ordered that father would have primary custody of N.W. Mother would have contact with N.W. every other weekend and one weeknight visit each week and was responsible for transporting N.W. to and from father's home for visits. Mother was permitted to speak with N.W. by telephone for up to thirty minutes on each night N.W. was with father, but father could require N.W. to take the calls on speakerphone or monitor the calls, "[t]o ensure that [mother] does not use these calls as opportunities to extend her campaign of attempting to alienate [son] from [father]." The court warned that it could further limit mother's contact if she persisted in her attempts to undermine N.W.'s relationship with his father. Mother did not appeal the September 2016 order.

¶ 7. A few weeks later, father filed a motion to enforce, alleging that mother had refused to comply with the new parent-child contact schedule set forth in the September 2016 order. Following a hearing at which both mother and father appeared, the court, on its own motion, further modified the parent-child contact schedule in an order entered on November 10, 2016. The court found that mother had "enabled, and perhaps even encouraged," N.W.'s disregard of the September 2016 order. The court found that mother had failed to return N.W. to father on each of the Sundays required by that order, with the excuse that she could not force N.W. to return to father's house. She had also violated the restrictions on contact by engaging in repeated electronic communications with N.W. The court found that mother's "persistent attempts to alienate [N.W.] from his father are clear evidence of a relationship that is unhealthy for [N.W.]" and constituted a substantial change in circumstances requiring modification of the parent-child contact order.

¶ 8. The court further limited mother's contact with N.W. to the first and third full weekends of each month. Mother was responsible for picking him up after school on Friday and returning him to school the following Monday. She was permitted to call N.W. on Tuesdays and Thursdays at 8 p.m. for up to thirty minutes, and father could monitor the calls. Mother was prohibited from otherwise contacting N.W. by any electronic means or from responding to him if he contacted her. The court further ordered that mother could have access to N.W.'s medical, dental, and educational records, but that such access would be through father, who would obtain and deliver to mother any records she sought. She was also prohibited from contacting school personnel or N.W.'s medical and dental providers unless father gave her permission to do so. The court ordered mother to provide N.W. with a copy of the September 2016 order and the November 2016 order, to have him sign a written acknowledgement that he had read and understood both orders, and to return the signed acknowledgment to the court. The court stated that it would review the order within ninety days and would consider increasing mother's contact if mother demonstrated compliance. Mother appealed the order to this Court.

¶ 9. The family court held a review hearing in February 2017. Mother admitted that the parent-child contact schedule was not being followed. The court denied mother's requests to amend the temporary order and to allow her to take N.W. to England to visit her family during the summer, although it stated that it would reconsider the requests if mother demonstrated compliance with the November 2016 parent-child contact order.

¶ 10. The court held another hearing on May 10, 2017. Mother again admitted that the parent-child contact schedule set forth in the November 2016 order was not being followed. Father testified that N.W. had been staying at mother's home for most of the previous month and refused to answer his texts or calls. Father testified that he had received a letter from the school notifying him that N.W. had more than ten absences and numerous tardies, almost all of which had occurred while N.W. was staying with mother. The court found that mother had continued to enable or encourage N.W. to violate the order and to violate the order herself. The court accordingly suspended mother's in-person parent-child contact, stating that it would consider reinstating...