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.


                                            2018 VT 54

                                           No. 2017-348

Andrew Alex Bratton                                              Supreme Court

                                                                 On Appeal from
   v.                                                            Superior Court, Windham Unit,
                                                                 Family Division

Laura Holland (Bratton)                                          March Term, 2018


Michael R. Kainen, J.

John C. Mabie of Corum Mabie Cook Prodan Angell & Secrest, PLC, Brattleboro, for
 Plaintiff-Appellant.

Thomas W. Costello and Adam W. Waite of Costello, Valente & Gentry, P.C., Brattleboro,
 for Defendant-Appellee.


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


        ¶ 1.   REIBER, C.J. Father appeals from the denial of his motion to modify legal and

physical parental rights and responsibilities in the parties’ son D.B. Father argues that the court

improperly treated the child’s maternal grandfather as a “fictive parent” and gave him too much

weight in evaluating the statutory best-interests factors. We affirm the court’s finding that changed

circumstances exist, but reverse and remand its best-interests analysis for additional proceedings.

                                       I. Procedural History

        ¶ 2.   We recount the procedural history in detail as it bears on the ruling at issue here.

D.B. was born in January 2007. When parents divorced in November 2011, they agreed that
mother would have physical rights and responsibilities in D.B. and the parties would share legal

rights and responsibilities. The parenting plan contemplated that mother and D.B. would live in

North Carolina. Father would have twice-weekly Skype contact with D.B., five weeks of visitation

during the summer, and the parties would split other school vacations.

       ¶ 3.    Mother did not abide by the parent-child contact order and by June 2012, father

filed his first motion to enforce parent-child contact. Mother did not respond or appear at the

hearing on the motion. In a February 2013 order, the court awarded father an additional week of

summer contact to make up for a week of spring vacation that mother had withheld.

       ¶ 4.    In December 2015, father filed a second motion to enforce. Again, mother did not

appear at a hearing on the motion. In June 2016, the court found that mother had withheld four

weeks of visitation from father, including D.B.’s 2015 spring vacation, his two-week 2015

Christmas vacation, and his 2016 spring vacation. Mother consistently withheld father’s twice-

weekly Skype contact as well. The court expanded father’s 2016 and 2017 summer visits to seven

weeks and ordered mother to abide by the Skype contact. The court directed mother to turn D.B.

over to father on July 9, 2016 for his summer visit and ordered her to facilitate Skype contact.

Mother was advised that her failure to comply could lead to contempt proceedings. A sheriff

served mother a copy of the court’s order. Nonetheless, when father went to retrieve D.B. on the

arranged date, mother and D.B. were nowhere to be found. Father was forced to return to Vermont

without the child.

       ¶ 5.    In July 2016, father filed a third motion to enforce and a motion for contempt; he

also moved to modify parental rights and responsibilities. Mother did not appear at the hearing on

father’s motions. In a September 2016 order, the court found mother in contempt. It found that

mother willfully violated court-ordered visitation in April 2015, December 2015, April 2016, and

July 2016. It made more extensive findings on the record. Based on the evidence presented at the

hearing, the court found that it was no longer in D.B.’s best interests to remain in mother’s custody.

                                                  2
Effective September 24, 2016, it transferred legal and physical custody of D.B. to father and it

ordered mother to turn D.B. over to father. The court scheduled a hearing on October 3, 2016, to

discuss mother’s visitation.

       ¶ 6.    Notwithstanding the court’s order, mother did not turn D.B. over to father. Mother

initially told father’s attorney that D.B. was away for the weekend. Mother did not appear for the

October 3 hearing and made an excuse for her absence that the court did not find credible. In an

October 2016 ruling, the court found that mother failed to abide by its orders or purge herself of

prior contempts. It issued a separate arrest warrant requiring that mother be brought before the

court as soon as she was found. The court asked North Carolina authorities to give its order full

faith and credit and to turn D.B. over to his legal custodian. A North Carolina court subsequently

issued an order for expedited enforcement of a foreign child custody order, 1 and mother finally


       1
           The North Carolina court found that Vermont, as the issuing court, had, and continued
to have, jurisdiction over this matter. Although mother has raised no jurisdictional challenge, we
agree with the North Carolina court that Vermont continues to have jurisdiction over this case.
Vermont issued the initial child custody determination in this case at a time when all parties were
living in Vermont. See 15 V.S.A. § 1071. Because Vermont made the initial child custody
determination, Vermont “has exclusive, continuing jurisdiction over the determination” until “a
Vermont court determines that neither the child nor the child and one parent . . . have a significant
connection with Vermont, and that substantial evidence is no longer available in Vermont
concerning the child’s care, protection, training, and personal relationships,” or a court determines
that the child and both parents, or any person acting as a parent, “do not currently reside in
Vermont.” Id. § 1072(a)(1), (2). “The law is clear that only a court of the issuing state can decide
that it has lost jurisdiction due to erosion of a ‘significant connection’ between the child and the
state.” Ward v. LaRue, 2016 VT 81, ¶ 18, 202 Vt. 499, 150 A.3d 631 (quotation omitted).
Vermont has never relinquished jurisdiction over this matter, and father continues to reside in
Vermont. D.B. also resided in Vermont with father between October 2016 and September 2017.
There is no question that Vermont retains jurisdiction. See id. ¶ 20 (recognizing that Vermont, as
issuing court, retained jurisdiction over child-custody dispute and substantial evidence continued
to be available in Vermont where father remained in Vermont and key issues were father’s access
to information about child and enforcement of his right to parent-child contact).

       Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), “[a]
Vermont court which has jurisdiction under this chapter to make a child custody determination
may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum
under the circumstances, and that a court of another state is a more appropriate forum.” 15 V.S.A.
§ 1077(a). Again, mother did not argue that Vermont was an inconvenient forum, and the court
thus made no ruling on this question. It is apparent, however, that at the time the court rendered
                                                   3
turned D.B. over to father on October 18, 2016. At that point, father had not seen D.B. for fourteen

months.

       ¶ 7.    Counsel for mother entered a notice of appearance on October 31, 2016, and in

November 2016, mother requested parent-child contact. The court later clarified that its transfer

of custody to father in September 2016 had been on a temporary interim basis based on mother’s

failure to facilitate visitation with father and her willingness to ignore court orders to thwart

father’s visitation. While the court had heard limited testimony to ensure that father could safely

and adequately provide for D.B., it did not at that time have any basis for comparison to the

environment that mother provided. The court thus scheduled an evidentiary hearing on what

custody arrangement was in D.B.’s best interests.

                                 II. Ruling on Motion to Modify

       ¶ 8.    Following a hearing, the court issued a September 2017 order concluding that it

was in D.B.’s best interests that mother have primary physical custody. It made the following

findings. Father works as a software engineer. He shares a house with two roommates. D.B. has

friends in the neighborhood and at school. He sees his paternal grandparents at least once a week.

D.B. was doing well in school and he easily managed the transition back to Vermont. Father does



its decision, significant evidence concerning D.B.’s best interests was available in Vermont, D.B.
himself was living in Vermont, the Vermont court was poised to decide the issues before it
expeditiously, and the Vermont court was intimately familiar with the facts and issues in the
pending litigation given its many orders in this case prompted by mother’s ongoing refusal to allow
father to have contact with D.B. See id. § 1077(b)(6)-(8) (identifying factors, including those
cited, as relevant to “inconvenient forum” analysis). We relied on similar factors in Ward, 2016
VT 81, ¶ 23. There, we upheld the trial court’s conclusion that Vermont remained a convenient
forum to resolve a child custody dispute where the father remained in Vermont, “Vermont ha[d]
issued numerous orders since mother relocated, all of which stemmed from mother’s failure to
comply with existing orders,” there were “no disputes about mother’s ability to exercise her
parental rights,” evidence was “easily accessible in Vermont,” “Vermont courts ha[d] decided the
issues expeditiously,” and “Vermont courts [were] also familiar with the facts and issues in [the]
proceedings.” Id. Indeed, not unlike the present case, we emphasized the importance of this final
factor “given mother’s ongoing behavior and the fact that mother was previously warned that her
continued interference with father’s rights [might] trigger a change in custody.” Id. As in Ward,
Vermont continues to be a convenient forum under the UCCJEA.
                                                   4
not have not a driver’s license and his activities with D.B. were more restricted than D.B.’s

activities in North Carolina.

       ¶ 9.    While D.B. was living with mother, mother did not communicate information about

him to father. She has never abided by the Skype time ordered. She ignored father’s texts and

calls and threw away a birthday card that father had sent to D.B., causing D.B. to believe that

father was ignoring him. The court recited detailed evidence showing that father repeatedly asked

for contact, visitation, and information about D.B. and mother ignored him, made excuses why

D.B. was not available, and tried to alter contact dates. Mother treated father’s contact with D.B.

as a nuisance, which she would occasionally grant if father begged enough and if it was convenient.

Mother also interfered with father’s ability to obtain medical information about D.B. and refused

to provide father with D.B.’s health insurance information.

       ¶ 10.   When D.B. returned to Vermont, mother ignored father’s attempts to set up regular

communication with D.B. Despite mother’s behavior, father was very good at ensuring that

mother and D.B. communicated. During this time, mother sent messages to D.B. intimating that

his home was with her and suggesting that she was trying to “rescue him” from Vermont. Mother

also told D.B. that she was going to put surveillance tracking on his iPad so that she would know

that it was really him talking. While mother denied doing these things at the hearing, the court did

not find her credible. The court found that mother clearly had boundary issues.

       ¶ 11.   D.B.’s maternal grandfather is an opthamologist and surgeon, and the court found

that “he frankly tip[ped] the balance” in this case. The court found little positive to say about

mother’s parenting other than that she loved D.B. Grandfather, however, provided mother with a

job and a nice house in a nice neighborhood. The court found that grandfather was “really D.B.’s

fictive parent in North Carolina.” Grandfather took D.B. to most of his activities and often

participated in these activities with D.B. D.B. often spent the night at grandparents’ house or their

summer house. D.B. enjoyed a higher standard of living, better housing, and was engaged in more

                                                 5
activities in North Carolina than in Vermont. The court noted that all of this would evaporate if

something happened to grandfather or if mother became estranged from him. Mother had

apparently hidden father’s attempts to contact D.B. from grandfather. She did not tell grandfather

about the court’s orders. Grandfather thought father was ignoring D.B. Grandfather first learned

otherwise when a warrant issued for mother’s arrest.

       ¶ 12.   Mother is engaged to a new partner with whom she had been living for two years

at the time of the hearing. Mother and her partner have two young children. D.B. benefited from

the partner’s presence. Like grandfather, the partner did not know that mother was denying visits

to father and avoiding contact with father.

       ¶ 13.   The court found that mother had an indescribable flat affect during the hearing, and

her testimony was monotone and not credible. The court questioned whether mother had been

diagnosed with any mental health issues. The testimony indicated that mother had seen the same

therapist for thirteen years and that she had been diagnosed with ADD/ADHD and suffered panic

attacks, and that she experienced some post-partum depression. The court stated its belief that

there was more going on than what it had been told.

       ¶ 14.   The court determined that mother engaged in a calculating and knowing attempt to

thwart visitation and that D.B. was harmed by her actions. Nonetheless, it concluded that the

statutory best-interests factors narrowly favored mother having physical custody of D.B. and “only

due to [grandfather]’s presence in D.B.’s life.” Turning to the specific best-interests factors, the

court found that both parents could provide D.B. with love and affection and guidance and each

adequately provided him food, clothing, medical care, a safe environment, and other material

needs. Mother alone would not do as well as father in providing for D.B.’s developmental needs.

When in North Carolina, however, mother “delegate[d] this to her father . . . who does an

outstanding job.” D.B. did well in school and in his community in both North Carolina and

Vermont. Mother had demonstrated her inability to support contact with father. Father, on the

                                                 6
other hand, encouraged mother to be in contact with D.B.’s school and therapists in Vermont. He

was diligent in ensuring that mother communicated with D.B. Mother had been D.B.’s primary

parent for most of his life; father had done a good job since D.B. arrived in Vermont. D.B. has a

good relationship with father’s parents in Vermont. The court’s decision, however, “turn[ed] on

[D.B.’s] relationship with . . . his maternal grandfather.” Grandfather appeared to occupy most of

D.B.’s nonschool time with enriching activities.

       ¶ 15.   The court acknowledged that its decision had been “an extremely close call.” It

reiterated that its conclusion was based on grandfather’s involvement with D.B. as well as its belief

that going forward, mother would support father’s contact with D.B. The court stated that it would

“not touch” the joint legal rights and responsibilities that the parties had originally agreed to,

observing that it would be difficult for the parties to share custody even if they were not 1000 miles

apart. Father appealed from this order.

                                            III. Analysis

       ¶ 16.   At the outset, we note that no party challenges the court’s finding that there had

been a real, substantial change in circumstances, and we affirm this portion of the court’s ruling.

Father focuses on the court’s best-interests analysis. He argues that mother should not have been

awarded physical custody given her alienating and contemptuous behavior and her delegation of

parenting responsibilities to grandfather. He contends that the court placed too much weight on

grandfather in evaluating the statutory best-interests factors, and its order improperly elevated

grandfather over him, thereby interfering with his constitutional right to parent D.B. Father also

asserts that the court erred by failing to address his request for primary legal parental rights and

responsibilities given the breakdown of communication between the parties.

       ¶ 17.   We agree that the court erred. While the court has broad discretion in evaluating

the statutory best-interests factors, Maurer v. Maurer, 2005 VT 26, ¶ 10, 178 Vt. 489, 872 A.2d

326 (mem.), its approach here was unfair and inconsistent with the plain language of 15 V.S.A.

                                                   7
§ 665(b). The court also failed to fairly account for mother’s egregious behavior toward father

and explain the basis for its belief that mother’s behavior would change going forward. We

conclude that the court abused its discretion, and we therefore reverse and remand for additional

proceedings. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (stating that abuse

of discretion exists where a ruling based “on an erroneous view of the law or on a clearly erroneous

assessment of the evidence”).

       ¶ 18.   In a contested custody case such as this one, the court must compare parent to

parent.2 We recognized this in Miles v. Farnsworth, 121 Vt. 491, 495, 160 A.2d 759, 761-62

(1960). In that case, pursuant to the parties’ agreement, a grandmother was providing the actual

care for a child, although the father had nominal custody. At the mother’s request, the court

modified its order to award custody to mother. We affirmed its decision on appeal. We found it

“apparent that the real issue determined by the court below was whether the mother or the

grandmother should have the actual and active custody of the boy,” but we emphasized that “the

grandmother is actually a third person to this marriage relationship.” Id. at 495, 160 A.2d at 761.

“As between a mother and a third party,” we explained, “the mother must prevail in a custody case,

in the absence of compelling reasons to the contrary which are not present here.” Id. When the

attributes of the father and mother were compared, the court’s findings supported the award of

custody to the mother.

       ¶ 19.   While this case predated the enactment of 15 V.S.A. § 665, the controlling standard

in Miles, and subsequently, has always been the best interests of the child. See Paquette v.

Paquette, 146 Vt. 83, 90, 499 A.2d 23, 28 (1985) (recognizing, as of 1985, that best-interests-of-



       2
          Despite the court’s references to grandfather as D.B.’s “fictive parent” in North Carolina,
the court did not consider or find that grandfather was entitled to status as a “parent” under
Vermont law. Cf. Sinnott v. Peck, 2017 VT 115, ¶ 1, __ Vt. __, 180 A.3d 560 (considering
“whether an individual who is not biologically related to a child, has not legally adopted the child,
and is not married to the child’s legal parent may be the child’s legal parent”).
                                                  8
the-child standard “has been the primary consideration in determining issues of custody for over

sixty years”); see also Miles, 121 Vt. at 493, 160 A.2d at 760 (finding it “well settled that it is the

welfare of the child which in the last analysis is determinative in a custody matter” and equally

well settled that there must be change in circumstances to modify existing custody order (quotation

omitted)); Raymond v. Raymond, 120 Vt. 87, 95, 132 A.2d 427, 431-32 (1957) (“The matter of

custody is not an easy one for the court to determine, and it often involves a balancing of the

advantages and disadvantages incurred by granting custody to one spouse or the other. The good

of the child is the paramount consideration and it is for the court to weigh every circumstance

bearing on the child’s future welfare in passing on this question.”). Certainly, the Miles Court

recognized that the grandmother played an important role in the child’s life; indeed, she had been

the child’s primary caregiver for seven years, beginning when the child was eighteen months old.

It made clear, however, that the grandmother was not a parent, and thus the Court was required to

compare the mother to the father. See Miles, 121 Vt. at 495, 160 A.2d at 761-62; see also Moreau

v. Sylvester, 2014 VT 31, ¶ 30, 196 Vt. 183, 95 A.3d 416 (stating that “crux” of Miles was whether

mother established change of circumstances, but “[t]o the extent that Miles considered third-party

rights, it concluded that short of extraordinary circumstances, a mother’s rights as a natural parent

trumped third-party, and even grandmotherly, interests in the custody of the child”).

       ¶ 20.    The statutory best-interests factors echo this holding, and most of the factors

expressly require a parent-to-parent comparison. See Harris v. Harris, 149 Vt. 410, 417-18, 546

A.2d 208, 213-14 (1988) (noting that “[a]lmost all the [statutory] factors begin with some variation

of the words ‘the ability and disposition of each parent to,’ ” and concluding that 15 V.S.A. § 665

“requires each parent to show his or her relationship with the child in light of the statutory factors,”

rather than simply showing that other parent is inadequate, thereby ensuring “more balanced and

complete analysis” required by statute). Most factors focus on each parent’s ability to accomplish

certain things on behalf of their child. Thus, the court must consider “the ability and disposition

                                                   9
of each parent to meet the child’s present and future developmental needs,” and “the relationship

of the child with each parent and the ability and disposition of each parent to provide the child

with love, affection, and guidance.” 15 V.S.A. § 665(b)(1), (3) (emphases added).

       ¶ 21.   Certainly, grandfather’s relationship with D.B. is important and worthy of

consideration. There is a separate statutory best-interests factor that specifically addresses “the

relationship of the child with any other person who may significantly affect the child.” Id.

§ 665(b)(7). We agree that this can be a critical factor in assessing a child’s best interests and it

may tip the scales in the best-interests analysis. The court here, however, improperly allowed

grandfather’s relationship with D.B. to permeate other best-interests factors that are limited by

their plain terms to an evaluation of parents’ capacities. In considering § 665(b)(3), the court erred

in concluding that although mother “alone” would not do as well as father in providing for D.B.’s

developmental needs, she “delegate[d]” this parental responsibility to her father “who does an

outstanding job.” The court was required to compare father to mother “alone,” not father to a third

party. Grandfather was not being awarded custody, and as the trial court acknowledged, if

anything happened to grandfather, the factors that favored mother “would quickly evaporate.”

       ¶ 22.   As pertains to the court’s reliance upon grandfather’s key role in the best-interests

calculus and mother’s parental responsibilities, § 665(b)(5), there was no evidence or finding as to

grandfather’s orientation to supporting and facilitating a positive relationship and frequent and

continuing contact between D.B. and his father in the face of mother’s alienating behavior, other

than grandfather’s apparent belief, prior to the revelation of mother’s conduct, that father was a

“cold person who never sent his son a birthday or Christmas card,” and to his knowledge “had not

tried to contact his son in a year.” The court similarly failed to square its findings about mother’s

alienating behavior with its conclusion that mother and father could equally provide D.B. with

“love, affection, and guidance.” Id. § 665(b)(1) (emphasis added); see Spaulding v. Butler, 172

Vt. 467, 477, 782 A.2d 1167, 1175 (2001) (concluding that trial court’s finding that this factor

                                                 10
favored father was undermined by its findings that father “was engaged in a long-term, persistent

campaign to cut off any relationship” between child and mother).

       ¶ 23.   As set forth above, the court found little positive to say about mother’s parenting

other than that she loved D.B. Mother engaged in egregious behavior designed to thwart father’s

relationship with the child. She repeatedly denied father visitation with D.B. over the course of

many years. She failed to attend court hearings. She defied numerous court orders designed to

ensure that father had parent-child contact. Her behavior was detrimental to D.B. It took an arrest

warrant and court action in North Carolina for mother finally to abide by the court’s order and

allow father to have contact with D.B. Mother deprived father of parent-child contact for fourteen

months.3


       3
           The dearth of any positive findings concerning mother (to say nothing of the many
negative findings about her) distinguishes this case from the cases cited by the dissent, post ¶¶ 32-
33. In Harris v. Harris, for example, the trial court found that a child’s grandmother “played a
significant role in his life and development,” but it also found that the father “spent a significant
amount of time with [the child]” and “the two engaged in a variety of activities constructive to [the
child’s] emotional development.” 162 Vt. 174, 179, 647 A.2d 309, 313 (1994). The remaining
cases cited by the dissent similarly show some positive attributes of the parent being awarded
custody and they do not rely solely on the child’s relationship with a third party. See Habecker v.
Giard, 2003 VT 18, ¶¶ 10-14, 175 Vt. 489, 820 A.2d 215 (mem.) (recognizing in proposed
relocation case that children’s relationships with maternal and paternal grandparents and aunts
who lived in Vermont was “critical component” of court’s decision to transfer custody to father,
but decision also relied on findings that father was better suited to provide safe environment for
children, father was “ ‘much more likely to assure a positive relationship and ongoing contact with
mother than the reverse,’ ” father offered children more stability than mother, and father was better
able to place children’s needs ahead of his own); deBeaumont v. Goodrich, 162 Vt. 91, 99-100,
644 A.2d 843, 848 (1994) (upholding transfer of custody to father in proposed relocation case, and
explaining that trial court found both parents “dedicated, caring, sensitive, conscientious, moral
and effective” and both were strongly bonded to children, but father had steady disposition, good
job, children could remain in community and school where they had done well, children would
have continuing contact with paternal grandparents who had become very important in their lives,
and father was more likely to foster good relationship with other parent).

        As these cases and the statute reflect, the significance of a third party’s relationship with a
child is one factor among many. It is possible that this factor could provide the “tipping point” in
a custody award, and we do not suggest otherwise. The bulk of the best-interests factors, however,
require the court to consider each parent’s ability to satisfy the relevant best-interests criteria and
they do not allow the court to compare a parent to a third party. The error here was the court’s
comparison of father to grandfather where the statute clearly required it to consider “each parent’s
                                                  11
       ¶ 24.   Certainly, mother’s “sustained course of conduct . . . designed to interfere in the

child’s relationship” with father “casts serious doubt” upon mother’s fitness “to be the custodial

parent.” Miller-Jenkins v. Miller-Jenkins, 2010 VT 98, ¶ 15, 189 Vt. 518, 12 A.3d 768 (mem.)

(quotation omitted); see also 15 V.S.A. § 650 (finding and declaring as public policy that it is in

best interests of child to have “opportunity for maximum continuing physical and emotional

contact with both parents, unless direct physical harm or significant emotional harm to the child

or a parent is likely to result from such contact”). We have recognized that because children thrive

with love and support of both parents, “[o]ne parent’s attempts to hamper the other’s parent-child

relationship therefore typically demonstrates a lack of regard for the child’s best interests and

suggests that a transfer of custody may well be in the child’s best interests.” Miller–Jenkins, 2010

VT 98, ¶ 25; see also Sundstrom v. Sundstrom, 2004 VT 106, ¶ 38, 177 Vt. 577, 865 A.2d 358

(mem.) (recognizing that “obstruction of visitation and attempts at parental alienation are not in a

child’s best interests, and they may form the basis for a change in custody,” and citing cases so

holding).

       ¶ 25.   Although the trial court acknowledged that mother’s refusal to allow visitation was

detrimental to D.B., it believed that going forward, mother would support father’s contact with the

child. The court’s findings do not support such a belief, however, and there is nothing in the record

to show that mother regrets her behavior, has any self-awareness about her conduct, or that she is

committed to ensuring parent-child contact in the future. To the contrary, while D.B. was in

Vermont with father, mother continued to engage in alienating and obstructive behavior. She also

repeatedly lied about her behavior during the hearing in this case and took no responsibility for

her actions or the consequences of her behavior on D.B. or father. She professed not to have read

a court order served on her by a sheriff or know that father was arriving in July 2016 to pick up



ability and disposition” to accomplish certain things. The court considered grandfather in
evaluating statutory best-interests factors that, by their terms, did not involve him.
                                                   12
D.B.; she denied depriving father of parent-child contact, asserting that she had to block father’s

calls because he was “harassing” her and that he should have come up with other ways to contact

her; she testified that she did not feel that she had denied father parent-child contact; she led other

people, including D.B., to believe that father did not want any contact; and she also believed that

her communications with D.B. while he was at his father’s home were appropriate.4

       ¶ 26.   The court’s belief that mother’s behavior would change was a linchpin of its

decision. Because this belief is unsupported by any findings or evidence, and because the court

erred in its evaluation of the statutory best-interests factors, we reverse and remand for additional

proceedings consistent with this opinion. Given the significant passage of time, the court should

take new evidence on what course of action is in D.B.’s best interests. See Engel v. Engel, 2012

VT 101, ¶ 19, 193 Vt. 19, 71 A.3d 1124 (similarly concluding that “[g]iven the significant passage

of time” since prior hearing, trial court on remand “should conduct an additional evidentiary

hearing to assess the current best interests of the children”). Given our conclusion, we do not reach

father’s argument that the court erred by ignoring his request for sole legal rights and



       4
          This case is significantly different from Knutsen v. Cegalis, 2016 VT 2, 201 Vt. 138, 137
A.3d 734 (Knutsen I), cited by the dissent, post ¶ 41, and Knutsen v. Cegalis, 2017 VT 62, __ Vt.
__, 172 A.3d 180 (Knutsen II). In Knutsen I, we concluded that the trial court had properly focused
its analysis on the child’s best interests, and upheld its decision that, despite the father and
stepmother’s egregious alienating acts, the child’s best interests required that he remain in the
father’s custody. The trial court there found by clear and convincing evidence that “the child
would be at significant risk of mental health problems” if reunification efforts with mother
continued, and “it did not matter why the child was at risk; what mattered was that the risk existed.”
2016 VT 2, ¶ 31. In Knutsen II, we recognized that father and stepmother continued to act
egregiously, yet they had also testified “to a change-of-heart as to reunifying [the child] with
mother.” 2017 VT 62, ¶ 11. While the trial court “viewed the stated change-of-heart very
skeptically,” id. ¶ 13, it cited this testimony in its decision and “relied a great deal on father’s and
stepmother’s stated positions as a basis for its ruling.” Id. ¶ 15. We deferred to the trial court’s
credibility assessment and the court’s assessment of the evidence that it “had before it at the time.”
Id. ¶ 22. Unlike Knutsen II, mother here has not disavowed her conduct or promised to change
her behavior going forward. To the contrary, as recounted above, mother does not appear to
believe that she has done anything wrong. The trial court’s “hope” that grandfather would
“encourage” mother to abide by parent-child contact orders is not grounded in any evidence and it
does not suffice to support the court’s key finding here. Cf. post ¶ 42.
                                                    13
responsibilities. We emphasize, however, that on remand, the court must consider the appropriate

award of both physical and legal custody.


       The court’s finding of changed circumstances is affirmed; its best-interests analysis is
reversed and remanded for additional proceedings consistent with this opinion.


                                                  FOR THE COURT:



                                                  Chief Justice


        ¶ 27.   ROBINSON, J., dissenting. I believe the majority has strayed from the applicable

standard of review as well as the Legislature’s directions concerning the “best-interests” analysis.

In particular, the majority fails to give due deference to the weight the trial court assigns to the

child’s relationship with another person who may significantly affect the child, redefining the

statutory best interests standard in the process. In addition, the majority substitutes its own

assessment of mother’s likely future efforts to foster a positive relationship between D.B. and

father for the trial court’s. For these reasons, I respectfully dissent.

        ¶ 28.   Our standard of review in these cases is well established, both as to the trial court’s

findings of fact, and its exercise of discretion in awarding parental rights and responsibilities and

parent-child contact on the basis of its findings. With respect to factual findings, we will uphold

the trial court’s findings “if they are supported by credible evidence.” Maurer v. Maurer, 2005 VT

26, ¶ 10, 178 Vt. 489, 872 A.2d 326 (mem.). In evaluating the evidence, we must “make all

reasonable inferences in support of the court’s judgment.” Bevins v. King, 147 Vt. 203, 206, 514

A.2d 1044, 1046 (1986). We have emphasized that it is the exclusive role of the trial court—not

this Court—to assess the credibility of witnesses and to weigh the evidence. See Kanaan v.

Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995) (explaining that trial court’s findings are

entitled to substantial deference due to its unique position to assess credibility of witnesses and

                                                  14
weigh evidence); Payrits v. Payrits, 171 Vt. 50, 54, 757 A.2d 469, 472-72 (2000) (“[T]he

credibility of the witnesses, the weight of the evidence, and its persuasive effect are questions for

the trier of fact . . . . ”).

         ¶ 29.    Under this framework, a trial court has broad discretion in determining a child’s

best interests. See Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339-40 (1988). This court

cannot set aside the trial court’s decision “because we would have reached a different conclusion

from the facts.” Id. at 579, 547 A.2d at 1339. We have held that the trial court should consider

all the statutory factors in 15 V.S.A. § 665(b) in evaluating parental rights and responsibilities and

parent-child contact. Bissonette v. Gambrel, 152 Vt. 67, 69, 564 A.2d 600, 601 (1989). But we

generally defer to the trial court as to the particular weight each factor warrants in the context of a

particular case.5 See Myott, 149 Vt. at 578, 547 A.2d at 1339 (“The trial court has broad discretion

in a custody matter, and we must affirm unless the discretion is erroneously exercised, or was

exercised upon unfounded considerations or to an extent clearly unreasonable in light of the

evidence.” (quotation omitted)).

         ¶ 30.    Finally, “the focus of the [inquiry] must be the best interest of the child, not equity

between the parties.” Bissonette, 152 Vt. at 70, 564 A.2d at 602; see also Knutsen v. Cegalis, 2016

VT 2, ¶ 30, 201 Vt. 138, 137 A.3d 734 (“The best interests of the child remain paramount in all

custody decisions, and a decision to transfer custody cannot be based on a desire to punish the

alienating parent.” (quoting Miller-Jenkins v. Miller-Jenkins, 2010 VT 98, ¶ 25, 189 Vt. 518, 12

A.3d 768 (mem.))).




         5
            Even the weight to be afforded the “primary care provider” factor, which we have
frequently identified as the most important, is largely within the discretion of the trial court. See,
e.g., Habecker v. Giard, 2003 VT 18, ¶ 14, 175 Vt. 489, 820 A.2d 215 (mem.) (recognizing that
“a primary care provider finding is entitled to great weight,” but noting that “the weight accorded
to [this] factor depends upon the quality of the relationship between the child and custodian, as
well as the likely effect that a change of custodian will have on the child”).
                                                  15
       ¶ 31.    With these standards in mind, I believe the majority’s analysis falls short in

addressing the two factors most in play in this case. First, the majority improperly faults the trial

court for giving too much weight to the relationship between a child and any other person who

may significantly affect the child, even though the trial court clearly concluded that in the

circumstances of this family—with an eye on this child’s best interests—this factor was

dispositive. In doing so, the majority reads out the Legislature’s express instruction that the court

must consider the relationship between the child and other people who may significantly affect the

child. 15 V.S.A. § 665(b)(7). Second, the majority concludes from its independent review of the

evidence that the trial court did not give enough weight to mother’s inability to foster a positive

relationship between D.B. and father. In short, the majority would strike a different balance in this

case rather than deferring to the judgment of the factfinder who had the opportunity to observe the

witnesses and assess the situation.

               I. The Child’s Relationship with Maternal Grandfather and § 665(b)(7)

       ¶ 32.    The Legislature has included among the factors courts must consider in the best-

interests analysis “the relationship of the child with any other person who may significantly affect

the child,” 15 V.S.A. § 665(b)(7), and this Court has frequently recognized that a child’s

relationship with another adult associated with one of the parents—typically a partner or family

member—can be a critical factor in assessing the child’s best interests. In the case of Harris v.

Harris, 162 Vt. 174, 647 A.2d 309 (1994), for instance, the mother argued that the trial court had

erroneously awarded the father custody based on the paternal grandmother’s role caring for the

child, and that the court had essentially chosen the paternal grandmother over the mother as the

custodial parent. The paternal grandmother dressed the child, fed him breakfast after the father

went to work, cared for him during the day until the father got home, and more often than not

served the father and the child dinner. Frequently, the child slept at her house. This Court affirmed

the trial court’s award of custody to the father even though it concluded that the mother had

                                                 16
previously been the child’s primary caregiver. Id. at 177-79, 647 A.2d at 312. The Court noted

the trial court’s findings that the paternal grandmother played a significant role in the child’s life

and development and concluded that “[t]he father should not be disadvantaged for his fortune in

having a mother who operates a day care facility nearby and who is willing and eager to care for

his son while he is at work.” Id. at 179, 647 A.2d at 313.

       ¶ 33.   In Habecker v. Giard, this Court likewise affirmed an order transferring custody

from the mother to the father upon the mother’s relocation based in large part on the child’s

relationships with aunts and grandparents who remained in Vermont. 2003 VT 18, ¶¶ 13-14, 175

Vt. 489, 820 A.2d 215 (mem.). Describing the trial court’s analysis, which this Court affirmed,

we wrote:

                The seventh factor, “the relationship of the child with any other
               person who may significantly affect the child,” was a critical
               component of the court’s decision. The court noted that the
               children’s relationships with their maternal and paternal
               grandparents and aunts were a source of stability for the children
               despite the discord between their parents. The court concluded that
               to deprive the children of these longstanding family ties and frequent
               contacts would be a great loss to the children.

Id. ¶ 13 (quotation and citation omitted); see also deBeaumont v. Goodrich, 162 Vt. 91, 99, 644

A.2d 843, 848 (1994) (relying in part on fact that award of custody to father “allowed continuing

contact with the parental grandparents, who had become very important in the lives of the

children”).

       ¶ 34.   The majority doesn’t deny that this factor may be significant, but seems to suggest

that it shouldn’t be too significant. It’s hard to understand why not. The majority does not take

issue with the trial court’s finding that D.B. has greater opportunity for enriching activity in North

Carolina, due largely to the efforts of D.B.’s maternal grandfather who spends a tremendous

amount of time with D.B. In describing maternal grandfather as D.B.’s “fictive” parent, the trial

court emphasizes the critical role grandfather plays in D.B.’s life. This is precisely the kind of


                                                 17
relationship courts are supposed to consider and value pursuant to § 665(b)(7). In a truly child-

centered best-interests analysis, the fact that D.B.’s relationship with grandfather is so central to

his life would be a reason to assign more, not less, weight to this factor. I may not have assigned

this factor the same weight as the trial court, but it was clearly well within its discretion in

concluding that this factor weighed heavily enough to tip the balance.

       ¶ 35.   The majority’s reliance on a decision from 1960 addressing a very different issue,

at a time before the Legislature even adopted the § 665(b) factors, is misplaced. In Miles v.

Farnsworth, 121 Vt. 491, 160 A.2d 759 (1960), a court had originally awarded custody of a minor

child to his father, subject to the condition that the child live with his paternal grandparents. When

the child was ten, the mother sought modification of custody. In affirming the trial court’s change

of custody to the mother, this Court considered the mother’s remarriage, her new home, and her

changed life circumstances, as well as the paternal grandmother’s advancing age and likely

inability to keep up with the needs of an active ten-year-old. Id. at 494-95, 160 A.2d at 761. The

Court noted that the evidence and findings disclosed that the child had been in the actual care of

his paternal grandmother since the time of the divorce; although the father had nominal custody

and loved the child, he did little to supervise and train him. Id. at 493, 160 A.2d at 760. After

discussing the grandmother’s aging, and its effect on her ability to continue to parent the child, the

Court said that while “the real issue determined by the Court below was whether the mother or the

grandmother should have the actual and active custody of the boy,” the grandmother was actually

“a third person to this marriage relationship.” Id. at 495, 160 A.2d at 761. Comparing the mother

to the father, the court awarded custody to the mother.

       ¶ 36.   This case is inapplicable here for three reasons. First and foremost, in Miles the

grandmother had been acting as the child’s primary care provider for years with only nominal

participation by the father, and pursuant to a court order designed to ensure that the child lived

with her, despite the nominal award of custody to father (grandmother’s son). In that context, the

                                                 18
Court’s statement that the relevant comparison should be between mother and father, and that as

between mother and paternal grandmother mother must prevail, made sense. The Court was not

suggesting that the grandmother’s significant role in the child’s life should not be considered in

that balance, but was recognizing that in that case, the father really had no significant parental role.

In this case, by contrast, grandfather is clearly a central—perhaps the most important—adult figure

in D.B’s life, but mother has her own home and, as the trial court expressly found, has been D.B.’s

primary parent for most of his life. There is no basis in this case to conclude that mother is only

“nominally” seeking parental rights and responsibilities while grandfather is the actual primary

parent. Mother may rely heavily on grandfather to provide significant parenting support—just like

the father in Harris, above—but, as the trial court found, she has acted and continues to act in a

parental capacity. By invoking Miles in this context, the majority seems to hold that the very

significant role of another adult in D.B.’s life cannot be a scale-tipping factor in the best-interests

analysis; Miles does not support that assertion.

       ¶ 37.    Second, and significantly, this case from 1960 long preceded the statute

enumerating the best-interests factors—including § 665(b)(7)—that the trial court must consider

in assigning parental rights and responsibilities. The Miles decision makes no reference to any

statute; it was decided under a different framework. By using Miles in this way, and by suggesting

that D.B.’s relationship with another adult can never tip the balance, the majority essentially

eliminates § 665(b)(7) as a true factor in the best-interests analysis.

       ¶ 38.    Third, the Miles Court’s assessment of the weight to be afforded to the child’s

relationship with the grandmother was driven to a large extent by the Court’s recognition that due

to her age, the grandmother was not in a position to continue in the role of primary caregiver. The

Court did not expressly discuss the weight to be given to the child’s relationship with the

grandmother, as the statute did not at the time require consideration of this factor, but its discussion



                                                   19
makes clear that because of the grandmother’s age and presumed inability to keep up with the

child, his relationship with her was not due much weight.

       ¶ 39.    Nor here is the trial court’s analysis undermined by its recognition that if something

happens to grandfather, the balance would be different. The court was clear in its decision that the

baseline expectations against which a future motion to modify parental rights and responsibilities

should be assessed include grandfather’s continued participation in D.B.’s life. If grandfather

moves or stops engaging with D.B., that would be a changed circumstance, potentially triggering

a modification of the custody arrangement under 15 V.S.A. § 668. This doesn’t undermine the

court’s decision; it reinforces that the court thoughtfully weighed the relevant factors and

concluded that, given the current state of affairs, keeping D.B. with mother, in large part so that

D.B. would have the continued benefit of his relationship with grandfather, was in the child’s best

interests. Any time § 665(b)(7) is a factor in the best-interests analysis, the child’s best interests

are subject to change based on the presence of a third party. That’s inherent in the factor itself.

               II. § 665(b)(5) and Mother’s Failure to Foster a Positive Relationship

       ¶ 40.    The majority’s scrutiny of the trial court’s assessment of mother’s failure to foster

a positive relationship with father likewise departs from the standard of review and our own recent

precedent. In particular, the majority faults the trial court for its expressed hope and belief that

mother’s behavior in undermining D.B.’s relationship with father will change, and it asserts that

the trial court’s conclusion on this point is unsupported by the evidence.

       ¶ 41.    The majority’s approach in this case stands in stark contrast to the Court’s recent

opinion in Knutsen, 2016 VT 2. In that case, the trial court found that by promoting the false belief

that the mother had abused the child, the child’s father and stepmother had effectively destroyed

the child’s formerly good relationship with his mother. Id. ¶¶13-14. After recounting a long

history of intransigence by the father and stepmother, including their continued refusal even during

the appeal before the Court to back away from their claims of abuse by the mother, the Court

                                                 20
affirmed the trial court’s continued award of parental rights and responsibilities to the father and

its temporary suspension of parent-child contact with his mother.             Id. ¶ 33.    The Court

acknowledged that the trial court had considered the relevant statutory factors and provided a

reasoned basis for its conclusions. Id. Noting the mother’s frustration at the father’s failure to

cooperate in facilitating any contact between her and the child, this Court wrote, “We note that

mother is not without recourse should father and stepmother continue to interfere with her attempts

at reunification or should they defy the trial court’s order.” Id. ¶ 34. In addition to deferring to

the factfinder’s assessment concerning the child’s best interests, the majority was willing to

support the trial court’s hope, despite its own skepticism, that this time the father and stepmother

would be sufficiently chastened by the court’s admonition that they would comply with its order

to take specified steps to facilitate the child’s reunification with his mother.

       ¶ 42.   In this case, by contrast, the trial court had ample basis to believe that the future

would not mirror the past. The trial court observed that mother’s partner and grandfather,

apparently the two most influential adults in her life, had been unaware of her prior misbehavior

vis-a-vis father. The court clearly had confidence that they would hold mother’s feet to the fire.

Moreover, the court made it clear to all parties that if mother did not change her ways, the court

would reassign parental rights and responsibilities. By conducting its own review of the record to

reach a contrary conclusion, the majority has failed to afford the trial court the deference it is due.

Although the majority may have weighed the evidence differently, the trial court’s expectation that

mother would improve her conduct had ample support in the record.

       ¶ 43.   For the above reasons, I would affirm the trial court’s decision.



                                                 Associate Justice




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