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
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before this opinion goes to press.


                                            2016 VT 124

                                           No. 2016-135

Kerry Clark                                                      Supreme Court

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

Kyle Bellavance                                                  October Term, 2016


Kevin W. Griffin, J.

Barbara R. Blackman of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for
 Plaintiff-Appellant.

Allison A. Ericson of Law Offices of Sedon & Ericson, P.C., Chelsea, for Defendant-Appellee.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   EATON, J. Mother appeals from a family court order modifying parental rights

and granting father sole legal and physical rights and responsibilities for their daughter. Mother

argues that the family court’s decision modifying parental rights was based on erroneous facts and

improper consideration of the child’s bests interests and resulted from bias against her by the court.

We affirm.

        ¶ 2.   Mother and father are the parents of a daughter, who was born in 2009. Mother

and father were never married and their relationship ended before daughter was born; daughter

lived exclusively with mother for the first twenty-one months of her life. In April 2011, the parties

entered into a parenting agreement, accepted by the court as an order, that gave mother sole legal

and physical rights and responsibilities for daughter, subject to father’s parent-child contact. The

court found that when the parties entered into the original parenting agreement, they “were
committed to a healthy, respectful and supportive co-parenting relationship where the parties

agreed to make good faith efforts to foster a positive relationship between [daughter] and each

parent and to the extended family,” and although mother and father had “markedly different views”

of the stability of their co-parenting arrangement, neither party sought modification until 2015.

       ¶ 3.    On January 26, 2015, mother called the Department for Children and Families

(DCF) to report that daughter had allegedly disclosed that father sexually abused her. According

to mother, daughter told her that father had hurt her and “touched her privates and butt a lot.”

Mother took daughter to the emergency room, where she was examined by physician Dr. Matthew

Greenberg. Dr. Greenberg noted that “[daughter] appear[ed] pain free, eating and smiling,” and

although mother asked daughter to tell hospital personnel about the alleged abuse, daughter made

no disclosures. Given the severity of the allegations, Dr. Greenberg recommended that mother

take daughter to the University of Vermont Medical Center (UVMMC) for a pediatric sexual

assault (SANE) evaluation, which she did. Daughter did not disclose any abuse and the results of

the exam revealed “[n]o obvious signs of acute or chronic trauma.” An evaluation with Dr. Karen

Patno, a child sexual abuse specialist, was scheduled to take place on February 18, 2015. Mother

did not tell father about the alleged disclosures or examinations until she met with him on January

28. Within a week, DCF opened an investigation based on mother’s report, and an investigator

conducted a forensic interview with daughter on February 3. DCF did not substantiate any abuse

by father and the agency took no further action. On February 18, mother took daughter to Dr.

Patno who, without consulting the doctors at UVMMC, the DCF investigators or father, conducted

an “unremarkable” physical exam and an unrecorded interview with daughter; Dr. Patno told

mother that during the interview daughter disclosed abuse.

       ¶ 4.    In the meantime, mother had demanded that father voluntarily suspend his parent-

child contact with daughter and when he refused, she unilaterally withheld father’s parent-child

contact on January 28, 2015, and filed an emergency motion to modify parent-child contact. The

court did not immediately rule on the motion and ordered that the existing 2011 parenting order
                                              2
remain in place. Nevertheless, over the course of the next ten days, mother filed for emergency

ex parte relief on behalf of daughter and withheld father’s parent-child again on February 4. In

response, father retained counsel, filed for temporary emergency relief, and requested a forensic

mental health evaluation. The court rejected father’s request for emergency relief but warned

mother that “Father’s parent-child contact shall remain in place unless or until this court modifies

the order in place.” Despite the court orders, between January 25 and February 18, mother

unilaterally withheld father’s parent-child contact rights on four separate occasions, and on

February 19, 2015, the court granted father’s motion for temporary emergency relief, awarding

father sole legal and physical rights for daughter and suspending mother’s parent-child contact.

       ¶ 5.    On February 23, 2015, the court held a hearing and received testimony from Dr.

Greenberg and Dr. Patno. The court found that Dr. Patno’s testimony was not credible and found

that “to date there was no credible evidence that Father had sexually abused [daughter].” After

impressing upon mother the importance of obeying court orders, the court permitted limited

supervised parent-child contact between mother and daughter and the parties agreed to submit to

a family forensic evaluation with Dr. William Halikias that would involve detailed interviews with

various members of mother’s and father’s families. On April 6, 2015, the court issued an amended

order on a temporary basis regarding parental rights and responsibilities. Under the amended

order, father retained sole legal and physical rights and responsibilities but mother was awarded

unsupervised parent-child contact two days a week, plus every other weekend.

       ¶ 6.    On October 5 and 7, 2015, the court held evidentiary hearings and took testimony

from the parties, experts, and fact witnesses. Based on that testimony and the testimony adduced

at the February 23, 2015, hearing, the court made a sequence of findings that resulted in father

permanently acquiring legal and physical rights for daughter. Those findings and the court’s

conclusion are the subject of this appeal.

       ¶ 7.    First, the court found that “Mother [had] embarked on a mission that would have

destroyed Father’s relationship with [daughter] had it succeeded,” and that mother’s behavior had
                                                3
caused “a total breakdown in the parenting plan.” The court specifically noted a portion of the

Halikias report, which was admitted by stipulation of the parties: “Mother had difficulty organizing

and deploying rational thoughts” and “Mother’s fixated belief that Father has sexually abused

[daughter] makes it unlikely that Mother can exercise sound judgment or perceptual skills while

interacting with [daughter].” The court concluded that, although mother had “shown significant

improvement,” she nevertheless “still firmly believe[d] that Father molested [daughter]” and her

“belief that [daughter] was molested by Father has not abated.” The court further found that

“Mother is accepting of the fact that ‘charges aren’t going anywhere’ so ‘she has to cope,’ ” but

found mother’s testimony about her daughter’s alleged disclosure not credible. Additionally, the

court found that “Mother is invested in the belief that [daughter] has been sexually abused and

traumatized by Father, so she needs [daughter] to be ill to support her feelings and beliefs about

Father.” The court noted Dr. Halikias’s concern “that [daughter] ‘stands at extraordinary risk for

future social and mental health problems, particularly depression and anxiety, or maladaptive

personality traits.’ ” According to the court, “the most insightful but disturbing part of Mother’s

testimony was when she acknowledged that she now ‘understands the game . . . and the dance,’ ”

and “the court s[aw] little progress on Mother’s part since the completion of the Halikias

assessment in April 2015.”

       ¶ 8.    Second, the court found, based on the Halikias report, that father “supports fostering

a positive relationship between [daughter] and mother.”         “Father has been responsive and

cooperative” in coordinating daughter’s counseling with daughter’s therapist and with mother,

although the court found that “[f]or Father, the most concerning aspect of his relationship with

Mother is her failure to acknowledge or apologize for her conduct that brought about the change

in custody status.” Third, the court found that since father gained temporary custody of daughter,

“she seems more relaxed and happy,” “[s]he eats well and no longer fears the police,” “[h]er level

of anxiety has diminished,” and she “is more confident and more open to meeting people.” The

court concluded that “[daughter] has lived primarily with Father for the past 14 months and her
                                               4
transition to Father’s home has gone surprisingly well. After an initial adjustment period where

[daughter] missed seeing her Mother on a daily basis, she has relaxed and grown comfortable with

Father as the primary caretaker.” As a result, the court found that “[i]t would not be in [daughter]’s

best interest to return her to Mother’s primary care.”

       ¶ 9.    Based on those findings, the court concluded that there had been a real, substantial,

and unanticipated change of circumstances since the original parenting order went into place in

April 2011. Specifically, the court identified mother’s ongoing belief that father is a pedophile

who has molested daughter as contributing to a breakdown in the parenting plan and cited to the

fact that mother violated court orders by unilaterally preventing father from exercising his parent-

child contact rights. The court found that mother’s behavior, changed belief system, and inability

to co-parent with father constituted changed circumstances. The court then addressed, in order,

the nine statutory best-interests factors outlined in 15 V.S.A. § 665 and found that of the eight

factors that applied, all favored father. The court granted father’s motion to modify parental rights

and responsibilities and permanently transferred to father sole legal rights and responsibilities,

subject to mother’s parent-child contact rights. Mother appealed.

       ¶ 10.   Mother now raises four arguments. She asserts the trial court (1) made erroneous

factual findings on issues that were central to its changed-circumstances determination; (2) erred

in its changed-circumstances determination because she alleges that there is insufficient evidence

in the record, excluding the findings that she argues were erroneous, to support the court’s

conclusion; (3) misapplied the primary caregiver factor under 15 V.S.A. § 665(b); and

(4) improperly considered testimony on the parties’ pre-order relationship.

       ¶ 11.   Our review of a previous child-custody determination begins with the controlling

statute, 15 V.S.A. § 668(a), which creates a two-step analysis: “On motion of either parent . . . and

upon a showing of real, substantial and unanticipated change of circumstances, the Court may

annul, vary, or modify an order [regarding child custody] if it is in the best interests of the child.”

Thus, the moving parent bears the burden of making “a threshold showing of a ‘real, substantial
                                             5
and unanticipated change of circumstances.’ ” Habecker v. Giard, 2003 VT 18, ¶ 5, 175 Vt. 489,

820 A.2d 215 (mem.) (quoting 15 V.S.A. § 668(a). If the moving parent meets that burden, “the

court may change custody only when the best interests of the child so require.” Id. (citing 15

V.S.A. § 668). “The burden for such a showing remains on the moving party, and, due to the value

of stability in a child’s life, it is a heavy one.” Id.

        ¶ 12.   Additionally, “[i]n the highly fact-intensive context of a custody determination, we

rely on the family court’s determinations of fact and evaluations of credibility.” Chickanosky v.

Chickanosky, 2011 VT 110, ¶ 14, 190 Vt. 435, 35 A.3d 132. “That a different weight or conclusion

could be drawn from the same evidence may be grist for disagreement, but does not show an abuse

of discretion,” and although one party “would rely on different evidence, interpret the evidence

differently, or offer new evidence for the first time on appeal, these are not grounds for reversal.”

Knutsen v. Cegalis, 2011 VT 128, ¶ 13, 191 Vt. 546, 35 A.3d 1059 (mem.).

                                      I. Change of Circumstances

        ¶ 13.   The family court has discretion in determining whether a substantial change in

circumstances has occurred, and “we will not disturb the court’s determination unless it exercised

its discretion on grounds or for reasons clearly untenable, or if its exercised discretion to a clearly

unreasonable extent.” Maurer v. Maurer, 2005 VT 26, ¶ 8, 178 Vt. 489, 872 A.2d 326 (mem.).

Our evaluation of the exercise of that discretion is premised on an understanding that “[t]he statute

and our cases regarding change in custody reflect the policy that giving stability to a child’s life,

to the extent possible under the circumstances, is so important that custody ought not to be

modified without critical justification.” Kilduff v. Willey, 150 Vt. 552, 553-54, 554 A.2d 677,

678-79 (1988). “There are no ‘fixed standards to determine what constitutes a substantial change

in material circumstances,’ ” Maurer, 2005 VT 26, ¶ 7 (quoting Wells v. Wells, 150 Vt. 1, 4, 549

A.2d 1039, 1041-42 (1988)), but examples of relevant considerations include the parties’ inability

to share parental rights and responsibilities if that inability is a new development, id. ¶ 8, “a

breakdown in communication between parents,” id., efforts by one party to interfere with the
                                          6
other’s visitation rights, especially when those efforts violate court orders, Wells, 150 Vt. at 4-5,

549 A.2d at 1042-43, and evidence of one party’s changed mental condition or ability to effectively

parent, Habecker, 2003 VT 18, ¶ 9.

       ¶ 14.   In this case, the family court concluded that there was a real, substantial, and

unanticipated change of circumstances based on its finding that, as of October 2015, mother

continued to believe that father molested daughter and mother’s response to that belief—in terms

of both how she treated daughter and how she interacted with father—caused a “complete

breakdown” in the 2011 parenting plan. On appeal, mother challenges the court’s factual findings

and argues that the “court erred when it held that Mother continues to believe that Father sexually

abused [daughter].” Specifically, mother identifies various factual findings that she argues were

in error—perhaps because the court did not issue its decision until six months after the October

2015 hearing—and urges this Court to reverse because, she claims, the errors she alleges were

central to the court’s changed-circumstances finding. Additionally, mother argues that the court

abused its discretion when it found a real, substantial, and unanticipated change in circumstances

because, according to her, the court misinterpreted the record and impermissibly made factual

findings about events that transpired before the original parentage order.

       ¶ 15.   We have considered the specific factual errors alleged by mother and, if erroneous

at all, they do not, either individually or in combination, rise to the level of reversible error. We

address each alleged error in turn. Mother argues that the court erred when it found that mother

had daughter examined by multiple professionals after initial examinations failed to confirm

mother’s belief that father abused daughter and mother disputes the court’s finding that daughter

did not disclose sexual abuse until she was interviewed by Dr. Patno. However, the record is clear

that, as a result of mother’s allegations, daughter was examined by multiple professionals.

Moreover, mother’s argument—that daughter disclosed to a professional in the emergency room—

is an inaccurate interpretation of the record. Mother claims that the emergency room record notes,

which were admitted into evidence, show that daughter “disclosed that her father had touched her
                                              7
‘on her bottom and privates.’ ” In fact, the note merely describes mother’s own recitation of events

to the treating physician. The trial court was not in error when it declined to recast mother’s

statements as having been made by the emergency room physician. Cf. Krupp v. Krupp, 126 Vt.

511, 514, 236 A.2d 653, 655 (1967) (“A recitation of evidence in findings is not a finding of the

facts contained in the testimony related and it cannot be so construed.”). Although mother urges

this Court to accept her version of events, the only record evidence that supports her position is

testimony from her and from Dr. Patno and the trial court found that neither witness was credible.

“We reiterate that our role in reviewing findings of fact is not to reweigh evidence or to make

findings of credibility de novo.” Mullin v. Phelps, 162 Vt. 250, 261, 647 A.2d 714, 720 (1994).

       ¶ 16.   Mother also argues that the court erred when it found that father, not mother,

enrolled daughter in counseling, and when it found that father effectively communicated with

daughter’s therapist but made no finding about mother. Even if we assume that the trial court did

err on these points, we nonetheless cannot discern a basis from which to disturb its decision

because the alleged errors were collateral to the findings, discussed below, that formed the basis

for the court’s changed-circumstances determination. See Peckham v. Peckham, 149 Vt. 388, 390,

543 A.2d 267, 269 (1988). Specifically, the court found that a real, substantial, and unanticipated

change of circumstances took place for three clearly articulated and well-supported reasons.

       ¶ 17.   First, the court found that when the parties entered into the original parenting

agreement in April 2011, they “were committed to a healthy, respectful and supportive co-

parenting relationship where the parties agreed to make good faith efforts to foster a positive

relationship between [daughter] and each parent and to the extended family.” By the time of the

evidentiary hearing, however, the court found that “Mother [had] embarked on a mission that

would have destroyed Father’s relationship with [daughter] had it succeeded.” Specifically, the

court found that mother’s belief that father “is a pedophile who has molested [daughter] on

multiple occasions despite the absence of any credible evidence to support the allegations” was a

new development that caused “a total breakdown in the parenting plan.” Cf. Maurer, 2005 VT 26,
                                             8
¶ 8 (holding that breakdown in communication and inability to share parental rights and

responsibilities established changed circumstances); Meyer v. Meyer, 173 Vt. 195, 197-98, 789

A.2d 921, 923 (2001) (holding that complete breakdown in communication established changed

circumstances).

       ¶ 18.   Even if it is true, as mother argues, that when she originally raised her concerns

about father concerning sexual abuse there was a sufficient basis for the court to treat her

allegations as being made in good faith,1 the court made two findings in particular that render the

purported good faith of mother’s initial allegations immaterial. First, the court found the testimony

presented by mother’s expert, Dr. Patno, not credible and concluded that Dr. Patno’s interview

with daughter “violated the accepted norms and professional standards on sexual abuse interviews

of children.” Second, based on testimony from Dr. Marilyn Turcotte, mother’s therapist, the court

found that “after 21 sessions with Dr. Turcotte, Mother still firmly believes that Father molested

[daughter]” and that “Mother’s belief that [daughter] was molested by Father has not abated, but

Mother is accepting of the fact that ‘charges aren’t going anywhere’ so ‘she has to cope.’ ”2


       1
          We agree with mother, of course, that if daughter did disclose sexual abuse, “[i]t was her
responsibility, her duty and moral obligation as a Mother, to follow-up on her daughter’s
disclosure, seek medical guidance and intervention of the court.” We emphasize that our holding
today in no way implies that parents who report abuse in good faith should be penalized by the
court system for reporting it.
       2
         Mother argues that “[t]here is no credible evidence to support the family court’s essential
findings concerning Dr. Marilyn Turcotte” and in particular, mother argues that the court “erred
when it held that Dr. Turcotte believes that Mother continues to feel that Father abused [daughter].”
However, Dr. Turcotte testified as follows:

                THE COURT: Okay. So during the course of your twenty
               sessions, has mother changed her view [that father sexually abused
               daughter]?

               DR. TURCOTTE: What I can say is that I think she realizes that the
               abuse charges aren’t going anywhere and that it’s unproductive to
               continue along that line and that she does want her daughter safe and
               protected. She’s willing to co-parent.

               THE COURT: But she still thinks something happened, the charges
               just aren’t going anywhere?
                                             9
Additionally, although mother testified at the October 7, 2015, hearing and had an opportunity to

renounce her belief that father molested daughter, mother never expressly denied that she

continued to believe that father molested daughter.3

       ¶ 19.   From that evidence, the court found that even if mother’s initial allegations of

sexual abuse were made in good faith, her beliefs had not changed despite her awareness of

substantial evidence that father did not abuse daughter. Mother’s continued insistence that father

abused daughter in light of significant credible evidence to the contrary—not her initial concerns

regarding of abuse—is what formed the basis of the court’s finding that there had been “a total

breakdown in the parenting plan.” As the court noted, “[f]or Father, the most concerning aspect

of his relationship with Mother is her failure to acknowledge or apologize for her conduct,” and

that failure on mother’s part has contributed to a breakdown in the parties’ ability to communicate

and effectively co-parent. The court did not abuse its discretion in concluding that the parties’

inability to effectively communicate or follow the parenting plan amounted to changed

circumstances. See Maurer, 2005 VT 26, ¶ 8.




               DR. TURCOTTE: I do believe she thinks something happened.
               Again going back to what she told me initially, until [daughter]
               disclosed that it was her father, she didn’t know who had molested
               her.

The court interpreted Dr. Turcotte’s testimony—“I do believe she thinks something happened”—
to mean that “Mother’s belief that [daughter] was molested by Father has not abated.” The weight
and credibility of this testimony is a matter reserved for the trial court. Chickanosky, 2011 VT
110, ¶ 14. Although mother would direct this Court to consider different portions of Dr. Turcotte’s
testimony, the fact that mother urges us to “rely on different evidence [or] interpret evidence
differently” is “not grounds for reversal.” See Knutsen, 2011 VT 128, ¶ 13.
       3
           Specifically, mother testified that she “did what [she] thought was right, but in that
minute, it was the only right thing to do.” Although mother argues that her testimony shows that
at the time of the October hearing she did not believe that father was presently sexually abusing
daughter, this Court cannot identify any part of mother’s testimony that expressly rejects the notion
that mother continued to believe that father had abused daughter in the past. If mother came to
believe that daughter had not been abused or that father was not responsible for it, her testimony
on these points was tenebrous at best.
                                                 10
       ¶ 20.   Second, the court found that mother’s persistent belief that daughter had been

abused caused mother to treat daughter as a victim and to subject daughter to “multiple invasive

medical examinations and investigative interviews focused on whether Father abused [daughter].”

Again, mother challenges the weight that the family court gave to the testimony of various experts

about the impact on daughter of repeated forensic interviews and trips to the doctor to investigate

sexual abuse. Specifically, mother characterizes the court’s finding as one only “based on the

opinion of the court-appointed expert.” We interpret the decision below more broadly. The court

considered mother’s allegations of sexual abuse and her persistent treatment of daughter as an

abused child in light of its conclusion that the court-appointed expert—who testified that because

of mother’s behavior, daughter “stands at extraordinary risk for future social and mental health

problems, particularly depression and anxiety, or maladaptive personality traits”—was credible

and that his testimony was “sound, well reasoned and convincing.” The court’s findings, then,

were that mother’s allegations and persistent beliefs undermined her ability to effectively co-parent

with father and posed a real threat of harming daughter in a way that the parties had not envisioned

when they entered into the parenting agreement in April 2011. The court did not abuse its

discretion in finding that mother’s treatment of daughter as a sexual abuse victim threatened

daughter’s well-being and undermined the goals of the parenting plan, and that those factual

determinations likewise demonstrated changed circumstances. See Habecker, 2003 VT 18, ¶ 9.

       ¶ 21.   Third, the court found that “Mother unilaterally breached Father’s parent-child

contact rights despite repeated warnings from the court not to do so.” As mother acknowledges,

she ignored court orders and prevented father from having scheduled parent-child contact with

daughter on four occasions. Mother’s “willful and unilateral decisions to violate th[e] court’s

orders” resulted in the court granting father’s request for emergency relief and suspending

mother’s parent-child contact in February 2015. In addition, when father attempted to exercise his

right to parent-child contact, mother interfered on at least two occasions. The first instance

occurred when father had a weekend visit with daughter in February 2015. Mother gave daughter
                                              11
a phone and made numerous calls to daughter over the course of the weekend, resulting in a court

order that daughter “not have a cell phone while she is with Father.” The second instance involved

mother misleading father as to the location of a pre-scheduled psychiatric evaluation for daughter,

and while mother now argues that her attorney unintentionally misinformed father of the location,

the court below found that “Mother is simply not credible on this issue.” Based on these incidents

as well, the court concluded that mother’s repeated interference in father’s right to parent-child

contact weighed in favor of a finding of changed circumstances. See Maurer, 2005 VT 26, ¶ 8;

Wells, 150 Vt. at 4-5, 549 A.2d at 1042-43. Thus, the court’s determination that a material change

of circumstances had occurred was not dependent upon its findings about which party enrolled

daughter in counseling or how the parties communicated with daughter’s therapist, but was instead

based on independent evidence amply supported in the record.

       ¶ 22.   Finally, mother’s argument that the court was biased against her and that its

decision was tainted by what she characterizes as “unflattering and prejudicial findings” about her

relationship with father prior to the original parenting order is unavailing. First, mother argues

that the court erred when it concluded that mother continues to believe that father’s family has

influence over the court. Mother produced nothing to support her initial allegation and produced

no evidence to contradict the court’s interpretation of record testimony that mother had at least

initially believed that father’s family had influence over the court. Second, there was an objection

to testimony related to the parties’ pre-order relationship, and the court ruled that it would admit

the testimony because it “want[ed] some of that context” in order to “[evaluate] the alleged change

of circumstances.” Trial courts have broad discretion in making evidentiary rulings, and we will

not revisit those rulings absent an abuse of discretion. Soutiere v. Soutiere, 163 Vt. 265, 269, 657

A.2d 206, 208 (1995). There was no abuse of discretion here. Mother has not offered any evidence

that the court below relied on its brief discussion of events that transpired prior to the original

parenting agreement, nor has she done anything more than to “apparently suggest[] that any

testimony taken at the modification hearing about events preceding the original decree constitutes
                                               12
per se reversible error.” Hayes v. Hayes, 144 Vt. 332, 337, 476 A.2d 135, 139 (1984). As it

indicated it would do, the court based its decision on evidence of events that transpired after the

original parenting agreement; any brief recitation of testimony about events that transpired prior

to the original parenting order did not affect its ultimate findings on changed circumstances. See

Gokey v. Gokey, 127 Vt. 334, 335, 248 A.2d 738, 739 (1968) (reasoning that trial court’s is limited

to question of “whether a substantial change in circumstances and conditions have developed

subsequent to the divorce decree”). The court’s reasons for finding changed circumstances were

clear, and we cannot conclude that the court “exercised its discretion on grounds or for reasons

clearly untenable” or “exercised discretion to a clearly unreasonable extent.” Maurer, 2005 VT

26, ¶ 8.

                                       II. Child’s Best Interest

           ¶ 23.   Section 665(b) provides the framework for the second step of a court’s custody

modification analysis—the best interests of the child—and instructs courts to consider nine

statutory factors, as well as any other relevant evidence. See Osmanagic v. Osmanagic, 2005 VT

37, ¶ 6, 178 Vt. 538, 872 A.2d 897 (mem.). The family court “is entitled to draw upon its own

common sense, experience in life, and the common experience of [human]kind,” Kasper v. Kasper,

2007 VT 2, ¶ 6, 181 Vt. 562, 917 A.2d 463 (mem.) (quotation and alterations omitted), in

determining what is in the child’s best interests, and so long as the “court’s award of custody

reflects its reasoned judgment in light of the record evidence, its decision may not be disturbed.

Id. ¶ 5. Here, the court considered each of the nine statutory factors and, looking to evidence in

the record that the court found credible, concluded that father was the primary caregiver and that

it was in daughter’s best interests to remain in father’s permanent custody. Mother appeals the

court’s best-interests analysis, claiming that the court was in error in its consideration of “the

quality of the child’s relationship with the primary care provider, if appropriate given the child’s

age and development.” 15 V.S.A. § 665(b)(b).


                                                  13
       ¶ 24.   This Court has “not enunciated a definitive standard for determining the identity of

the primary-care-provider under § 665(b)(6),” and mother is correct that the Court has expressly

rejected an invitation to adopt “a per se rule that the parent with physical custody at the time of the

divorce hearing is the primary-care-provider.” Nickerson v. Nickerson, 158 Vt. 85, 89-91, 605

A.2d 1331, 1333-34 (1992). Mother is also correct that the weight to be given to the primary-

caregiver factor must be determined in light of the likely effect on the child, and that where one

parent is the primary caretaker, “this factor should be entitled to great weight unless the primary

custodian is unfit.” Harris v. Harris, 149 Vt. 410, 418-19, 456 A.2d 208, 214 (1988). Mother is

incorrect, however, in her claim that the trial court in this case applied a per se rule. Although the

court was not especially clear in its discussion of the primary-caregiver factor, it did conclude that

daughter “has relaxed and grown comfortable with Father as the primary caretaker,” and there is

sufficient evidence in the record to support the court’s finding that this factor favors father.

       ¶ 25.   The court explicitly found that “[a]t this point [the primary-caretaker factor] favors

Father.” Contrary to mother’s assertion, the court did not make that determination solely because

father had physical custody of daughter at the time of the modification hearing. It would have

been improper for the court to do so since this would result in the temporary order creating a

primary caretaker hurdle that mother could not overcome. However, the court went beyond the

custodial relationship, finding that “[s]ince Father gained primary custody of [daughter], he has

met her needs and has a close and loving relationship with her. They are strongly bonded and

Father continues to provide a safe and nurturing home that allows [daughter] to thrive.” The court

also acknowledged that “[m]other had been [daughter’s] primary caretaker since birth” but that the

changed circumstances described above resulted in father obtaining primary custody. The court

therefore appropriately considered the roles that both parents had played during the crucial period

“between the [initial parenting order] and the filing of the motion to modify” and thereafter,

concluding that although mother was the primary caretaker until the temporary modification order,

father became the primary caretaker in the period between the filing of the motion and the
                                            14
modification hearing. In assessing the primary-caretaker factor, the court should consider all

relevant periods in the child’s life and while the period between the original parenting order and

the filing of the motion to modify is most relevant, consideration of the child’s relationship with

both parents until the time of the hearing on the modification motion is also a period the court was

free to consider. See deBeaumont v. Goodrich, 162 Vt. 91, 101, 644 A.2d 843, 849 (1994). It is

evident here that the court did not determine that the primary-caretaker factor favored father solely

because he had primary custody of the child at the time of the modification hearing. On the

contrary, the court noted the bond that had developed between father and daughter, which need

not necessarily result simply from having primary custody of the child for a period of time. While

mother may disagree with the court’s finding on this point, the finding that father is the primary

caretaker “is supported by the evidence and is not clearly erroneous.” Id.

       ¶ 26.   To the extent that mother challenges the court’s findings with respect to father’s

relationship with daughter, we emphasize again that so long as the “court’s award of custody

reflects its reasoned judgment in light of the record evidence, its decision may not be disturbed.”

Kasper, 2007 VT 2, ¶ 5. Specifically, the court credited the testimony of witnesses on the

following points: daughter “was much more relaxed when with Father,” daughter “has been

outgoing and friendly to her new peers and appears happy,” daughter “seems more relaxed and

happy,” and daughter’s “level of anxiety has diminished.” Additionally, the court found that

daughter’s “transition to Father’s home has gone surprisingly well” and that “she has relaxed and

grown comfortable with father as the primary caretaker.” Moreover, the changed circumstance

that the court identified—mother’s persistent belief that father molested daughter—formed the

basis for its best-interests analysis, and in determining what was in daughter’s best interests, the

court relied heavily on Dr. Halikias’s report. The court found Dr. Halikias credible and admitted

his report into the record. According to Dr. Halikias, “[mother] is certain [father] sexually abused

[daughter]” and mother “will act, covertly or overtly, on her convictions and convey to [daughter]

that her father hurt her and is dangerous.” “[Father] proved more able and willing to foster a
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positive relationship between [daughter] and her mother than vice versa.” Finally, “[mother] needs

[daughter] to play the role of an injured child with severe emotional problems. . . . [Daughter]

acting happy with or attached to her father violates that script.” Thus, there was more than

sufficient evidence in the record to support the trial court’s conclusion that it was in daughter’s

best interests that she remain in her father’s custody.

       Affirmed.

                                                FOR THE COURT:



                                                Associate Justice




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