2014 VT 65


LeBlanc v. LeBlanc (2012-420)
 
2014 VT 65
 
[Filed 27-Jun-2014]
 
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@state.vt.us 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.
 
 

2014 VT 65

 

No. 2012-420

 

Jasmin LeBlanc


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Orleans Unit,


 


Family Division


 


 


Daniel LeBlanc


October Term, 2013


 


 


 


 


Robert
  R. Bent, J.


 

Bryce Breton of Breton & Simon, PLC,
Stowe, for Plaintiff-Appellant.
 
Daniel LeBlanc, Pro Se, East Hardwick,
Defendant-Appellee.
 
 
PRESENT:   Reiber, C.J.,
Dooley, Skoglund and Robinson, JJ.,
and Crawford, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.           DOOLEY,
J.   Mother appeals from the trial court’s final divorce
order.  She asserts that the court erred in granting the parties a divorce
because the statutory requirements for divorce were not satisfied.  She
also challenges the court’s award of primary legal and physical custody of the
parties’ five children—including her son, but father’s stepchild—to
father.  Finally, she argues that the court abused its discretion in its
award of parent-child contact.  We affirm the court’s order in all
respects with the exception of its decision to award father primary parental
rights and responsibilities in his stepchild.  On this issue, we reverse
and remand.  
¶ 2.           Mother
and father married in 1998, and mother filed for divorce in January 2011. 
Mother and father are the biological parents of four children, born in January
2005, April 2006, February 2008, and January 2010, respectively.  Another
child, born in May 2002, is mother’s child and father’s stepchild.  Following
a multi-day trial, the court granted the parties a divorce; awarded father
primary legal and physical rights and responsibilities with the exception that
mother have primary authority as to medical decisions; and set forth a
visitation schedule.  
¶ 3.           The
court made oral findings and also issued a written order, which was prepared by
mother’s attorney.[1] 
Its findings include the following.  The parties did not have a smooth
marriage.  Throughout the marriage, father was generally passive and
docile, but he would occasionally become angry.  Mother was more
hot-tempered than father, and at times she became very volatile.  
¶ 4.           Mother
became pregnant while married to, but separated from, father.  Father was
present at his stepson’s birth, and mother and father
resumed living together when the stepson was one year old.  The child, for
all intents and purposes, has been parented only by mother and father.  
¶ 5.           Mother
was the primary caregiver for all of the children until shortly after her
youngest child’s birth in January 2010.  Mother developed post-partum
depression and became less functional.  She had a significant
psychological breakdown in April 2010 and was hospitalized for three weeks. 
She later suffered an overdose and returned to the hospital in late May for
several weeks.  She returned to the hospital for several weeks again in
July 2010.  She tried to commit suicide while in the hospital, which
resulted in a longer stay.  
¶ 6.           Mother
entered a six-week outpatient program at Fletcher Allen in August 2010 where
she made significant progress.  When mother was released from the
hospital, she was unable to return home.  She was suffering from
depression with psychotic features and could not care for the children. 
Mother began living in North Troy with a man she met at the Fletcher Allen
program.  The court found the nature of mother’s relationship with the man
unclear.  
¶ 7.           In
November 2011, mother stayed at a crisis bed for three to four weeks.  She
is considered disabled due to her depression for purposes of receiving Social
Security benefits.  Mother continues to take medication for her depression
and sees a counselor weekly.  
¶ 8.           Due
to mother’s illness, father became the children’s primary caregiver. 
Father was also trying to earn a living during this time.  Father was
living in East Hardwick in a house rented to him by his aunt.  Father and
the family had lived there for seven years.  The court regarded father’s
living situation as relatively stable.  While there was a discussion about
the house possibly being sold, the court noted that it had been on the market
for seven years, and it found father’s living situation unlikely to
change.  
¶ 9.           Father
was not as natural a parent as mother, but the evidence indicated that he was
learning.  Although the children and the house were not always clean, no
harm resulted.  The children were all together in a stable
environment.  Father had family support that was both convenient and
functional.  Father’s mother helped with the children, and the children
were close to her.  
¶ 10.       Father was a
longtime marijuana smoker who had four convictions for marijuana
offenses.  Father testified that he did not keep marijuana in the house
and did not smoke in front of the children.  Mother stated that the
children were familiar with marijuana paraphernalia, and knew that father
smoked a pipe.  The court was unable to determine if father smoked in
front of the children; there was no finding on that issue.  It noted,
however, that father’s convictions spoke for themselves, and observed that
father might have an incipient substance abuse problem.  
¶ 11.       While living in
North Troy in early 2011, mother removed her eldest child from school and
brought him to North Troy where she was homeschooling him.  This did not
work out well.  The child missed his siblings, became restive, and
ultimately returned to father’s home.  Both parents saw the need for the
child to return to father’s home.  Although mother was the child’s sole
custodian pursuant to a parentage order, she realized that it was in his best
interests to be with his siblings.  
¶ 12.       Also in early
2011, mother stopped living with the man in North Troy and had no place to
go.  She proposed moving back into father’s home and did so by agreement.
 Mother was increasingly capable of caring for the children and frequently
became their daytime caretaker.  There was some debate, however, given
mother’s illness, as to how much responsibility she should have.  A doctor
had opined that mother should not be left alone with the children.  Father
needed help, however, and found it useful to have mother living in the
home.  Despite progress, mother continued to suffer some ongoing
depression, and father still saw in her some degree of instability. 
Mother told father that she had multiple personalities.  She often slept
late and frequently needed to be alone.  Mother was seeing a counselor
weekly and was still taking certain medicine, including an antipsychotic drug
called Seroquel.  The court expressed concern that mother might have
undiagnosed mental illnesses beyond depression.
¶ 13.       Mother initiated
divorce proceedings while the parties were still living together.  The
main issues in the divorce involved parental rights and responsibilities for
all the children, including the child for whom father is the stepfather. 
The court found that, while the parties were living together in April 2012,
father pushed mother and also struck the wall next to her, which scared
her.  This conduct was the subject of a relief-from-abuse order.  The
court noted that by the time of the court’s divorce order, mother was no longer
living with father.  She was living in temporary housing in St. Johnsbury.  The court viewed the incidence of violence
cited above as a boiling over of emotions due to living together in a confined
space rather than reflective of any pattern of behavior.  Now that the
parties were separated and did not plan on living together, the court found no
likelihood of further abuse.  
¶ 14.       Based on the
findings above and others, the court evaluated the situation of each party
under the statutory best-interest factors.  See 15 V.S.A. § 665(b)(1)-(9).  The court found both parents equally able to
provide the children with love and affection, and to meet their material
needs.  The court found mother better able to meet the children’s
developmental needs.  The court concluded that father’s housing situation
was more stable than mother’s, which it found significant.  The children
were well-adjusted to father’s home.  They had extended family nearby, who
they were close to and who they saw regularly.  Mother did not have stable
housing, and were she awarded custody, the children
might have to change schools frequently.  
¶ 15.       Finally, the
court found that the children had good relationships with both parents, but that
father had supplanted mother’s role as the children’s primary caregiver. 
Although mother had made inroads and become a “regular” caregiver, she had not
displaced father.  The court concluded that both parents had equal ability
to foster a positive relationship and frequent and continuing contact with the
other parent.  
¶ 16.       The court found
this to be a close case, and ultimately concluded that father should have
primary legal and physical rights in the children, with mother having the right
to manage the children’s medical care.  The court found that father had
acted as his stepson’s parent and concluded, without elaboration, that the
factors necessary to support an award of custody to father were present.[2]  The court awarded mother
parent-child contact each week from Monday at 9 a.m. until Wednesday at 5
p.m.  The court reiterated that father provided the children more
stability, and reasoned that the visitation schedule gave father a break and
gave the children plenty of time with mother.  The court found that mother
was not completely well yet, noting that she had needed respite care in
November 2011, but it found that she was close.  The court explained that
its schedule gave mother the respite time she needed.  Finally, the court
granted the parties a divorce on the grounds that the parties had lived
separate and apart for six consecutive months, and that the resumption of
marital relations was not reasonably probable.  See 15 V.S.A. § 551(7). 

¶ 17.       Mother moved for
reconsideration, challenging the court’s custody award and its visitation
schedule.  With respect to father’s stepchild, the motion asserted that
“[t]o merely state the requirements of Paquette are met . . . does not
sustain an award of custody to father.”  The court denied mother’s motion
without explanation.  This appeal followed.  
¶ 18.       We start with
mother’s challenge to the grounds for the divorce.  She asserts that the
evidence did not establish grounds for divorce as a matter of law because the
statutory requirement of six months of separation was not proved.  See 15
V.S.A. § 551(7) (divorce may be decreed where married person has lived apart
from his or her spouse for six consecutive months and court finds that resumption
of marital relations not reasonably probable).  Mother points to her
testimony that she was still living with father as of the first day of trial in
April 2012, and that she and father had engaged in “a sexual relation.” 
Acknowledging that she did not raise this issue below, mother contends that the
court committed plain error.  
¶ 19.       There is no plain
error here.  We recognize plain error in civil cases “only in limited
circumstances, i.e., when an appellant raises a claim of deprivation of
fundamental rights, or when a liberty interest is at stake in a quasi-criminal
or hybrid civil-criminal probation hearing.”  Hanson-Metayer v. Hanson-Metayer,
2013 VT 29, ¶ 40, 193 Vt. 490, 70 A.3d 1036. 
Neither circumstance is present here.  We note, moreover, that it was mother who sought a divorce, and mother who alleged in her
complaint that the parties had lived separate and apart since May 2010, an
allegation that was not disputed.  Both mother and her attorney made clear
at trial that mother wanted to be divorced from father.  In fact, mother’s
attorney stated to the court, in response to the court’s inquiry, that evidence
had been presented as to necessary statutory requirements for divorce,
including the parties living separate and apart.  See Sprague v. Nally, 2005 VT 85, ¶ 3, 178 Vt. 222, 882 A.2d 1164
(party may not predicate error on action that party has induced).  There
was also evidence that mother spent weekends with the man she lived with in
North Troy while residing in the marital home and that the two had plans to
live together on a more permanent basis.  As we have recognized, “a couple
may live separate and apart even under the same roof.”  Scott
v. Scott, 155 Vt. 465, 468, 586 A.2d 1140, 1142 (1990) (citation omitted).
 The court did not commit plain error in granting mother’s request for a
divorce.
¶ 20.       We next consider
mother’s argument that the court erred in awarding legal and physical rights
and responsibilities (except for medical care) to father with respect to his
biological children.  Mother contends that the court’s findings reflect a
scattered view of the evidence and do not support the court’s conclusion. 
In support of this point, she notes that the court repeatedly recognized that
the parties were equal as to the statutory best-interest factors, or that she
had better ability than father in some areas.  Also, she asserts that the
court assumed, without sufficient evidence, that father would continue to have
family support to help him care for the children.  
¶ 21.       The family court
has broad discretion in determining what allocation of parental rights and
responsibilities is in a child’s best interests.  See Myott
v. Myott, 149 Vt. 573, 578, 547
A.2d 1336, 1339 (1988).  We view the evidence “in the light most
favorable to the prevailing party below, disregarding the effect of any
modifying evidence, and we will not set aside the findings unless they are
clearly erroneous.”  Stickney v. Stickney, 170
Vt. 547, 548, 742 A.2d 1228, 1230 (1999) (mem.).
 The court’s conclusions will stand where supported by the findings. 
Hanson-Metayer, 2013 VT 29,
¶ 12. 
¶ 22.       While the court’s
oral findings are somewhat scattered, those findings, as well as the findings
set forth in the written order, support the court’s decision.  This is not
a case, as mother suggests, where it is impossible to determine “what was
decided, and why” on this point.   Id., ¶ 44
(citation omitted).  The court recognized that this was a close
case, but it ultimately decided that father could offer the children more
stability than mother.  As it explained, the family had lived in the East
Hardwick home for seven years, and father had extended family nearby who
offered love and assistance.  Mother did not have extended family in the
area.  Mother had been living in many different places and had not, at the
time of the hearing, finally determined where her next residence would
be.  The court found it concerning that it could not predict where mother
would be in six months, ten months, or two years.  The court’s findings in
this regard are amply supported by the evidence.  Certainly, it is
reasonable to conclude that father would continue to be close to his family and
that they would offer support.  It was reasonable to conclude that
father’s housing situation would remain stable.  
¶ 23.       Mother’s
assertion that the court should have engaged in a more “meaningful balancing”
of the statutory best-interest factors is simply a challenge to the court’s
assessment of the weight of the evidence and the exercise of its discretion,
matters exclusively reserved for the trial court.  Chase v. Bowen,
2008 VT 12, ¶¶ 15, 36, 183 Vt. 187, 945 A.2d 901.   While mother
disagrees with the result reached by the court, she fails to show any abuse of
discretion.  Where, as here, the “court’s award of
custody reflects its reasoned judgment in light of the record evidence, its
decision may not be disturbed.”  Kasper v.
Kasper, 2007 VT 2, ¶ 5, 181 Vt. 562, 917 A.2d 463 (mem.).
¶ 24.       Mother also
challenges the court’s visitation award with respect to these children. 
Mother asserts that the court made inadequate findings to support its decision,
and that the findings, and the evidence, do not support the court’s
conclusions.  According to mother, the court recognized that she was more
involved with the children than father, and thus, it had to grant her more
visitation time than it did.  She cites trial testimony to support her
assertion that she is more involved with the children, and complains that the
court “irrationally brush[ed] such issues aside” in
favor of father’s more stable living situation and the assistance he received
from his extended family.  Mother maintains that it is contrary to
legislative policy to order “such a meager amount of visitation” where the
court has found both parents equal in their parenting abilities.  
¶ 25.       We find no
error.  The court has discretion in setting a visitation schedule, and its
decision will not be reversed unless that discretion “was exercised upon
unfounded considerations or to an extent clearly unreasonable upon the facts
presented.”  Cleverly v. Cleverly, 151 Vt. 351,
355-56, 561 A.2d 99, 102 (1989) (citation omitted).  The court
explained the basis for its decision here.  It sought to impose a schedule
that relieved father from providing childcare, and also allowed mother
appropriate time with the children as well as adequate time to continue to
recover from her depression.  To this end, it provided mother with
visitation three days each week.  The court indicated that the parties
could file a motion to alter and amend if they could agree on a schedule that
would better suit them, but this did not happen.  We also note that the
visitation schedule was based, in part, on the court’s assessment of the state
of mother’s mental health.  If circumstances change with respect to her
mental health, mother is free to file a motion to amend on her own.  
¶ 26.       While mother
would like more time with the children, she has not demonstrated that the
court’s decision is unreasonable.  What she characterizes as the “brushing
aside” of certain evidence is more accurately seen as the trial court weighing
the evidence and exercising its discretion in deciding what pattern of
visitation was in the children’s best interests.  As previously discussed,
it is for the trial court to weigh the evidence, and we defer to its judgment
on appeal.  See Hanson-Metayer, 2013 VT
29, ¶ 12.  We reject mother’s assertion that the visitation schedule
violates the Legislature’s directive that children should “have the opportunity
for maximum continuing physical and emotional contact with both parents.”
 15 V.S.A. § 650.  While mother may not
have as much time with the children as father does, she has been granted ample
contact, consistent with what the court found appropriate under all of the
circumstances.  The schedule here does not contravene the statute.  
¶ 27.        Finally,
mother argues that the court failed to make sufficient findings to support its
decision awarding father primary legal and physical rights and responsibilities
in his stepson.  While we apply a highly deferential standard of review to
the court’s decision, Hanson-Metayer, 2013 VT
29, ¶ 12, the court made no findings in support of its conclusion on this
point and did not explain how the circumstances necessary to support such an
award were present.  See id. (explaining
that trial court’s findings will stand on review if supported by evidence;
conclusions will stand if supported by findings).  
¶ 28.       We held in Paquette
that: 
if
a stepparent stands in loco parentis to a child of the marital household,
custody of that child may be awarded to the stepparent if it is shown by clear
and convincing evidence that the natural parent is unfit or that extraordinary
circumstances exist to warrant such a custodial order, and that it is in the
best interests of the child for custody to be awarded to the stepparent.
 
146 Vt. at 91, 499
A.2d at 29.  We explained that it would not serve a child’s best
interests, for example, “to be placed with a parent who is unfit because of
severe mental illness, incapacitating physical disability, or persistent
neglect, abuse, or abandonment of the child.”  Id. at 91, 499 A.2d at 29.  We cited Bennett v. Jeffreys, 356 N.E.2d 277 (N.Y. 1976), as a case
illustrating “extraordinary circumstances.”  In that case, an eight-year
old child had been separated from her mother for most of her life, the mother
was unmarried and did not have an established household, and the child was
strongly attached to her custodian.  We also cited In re Allen,
626 P.2d 16 (Wash. Ct. App. 1981), where a court
concluded that the growth and development of a deaf child would be
detrimentally affected by placement with his father where the father, who was
an otherwise fit parent, did not know sign language.  In that case, the
court determined that the child’s best interests required placement with his
stepmother and her children from a prior marriage, all of whom had learned sign
language to help educate the deaf child and integrate him into the family. 

¶ 29.       In the instant
case, there is no question that father stood in loco
parentis with respect to his stepchild.  At the same time, however, father
has not claimed that the record supports a finding that mother is unfit to
parent this child; indeed, the court’s findings and conclusions are
inconsistent with such a claim.  Thus, the only ground on which parental
rights and responsibilities could be awarded to father is the presence of
extraordinary circumstances.
¶ 30.       Father sought
custody of his stepson and acknowledged the applicability of Paquette,
but presented no position on how the circumstances required by Paquette
were present in this case.  The trial court explicitly made its findings
based on a “more likely than not” standard and not based on the clear and
convincing evidence standard required by Paquette, 146 Vt. at 92, 499
A.2d at 30.  Thus, we are left with no asserted position on how the
requirements of Paquette are met, no specification by the trial court of
the basis on which it found that the requirements of Paquette are met,
and no findings under the clear and convincing evidence standard as required by
Paquette.  
¶ 31.       We have
consistently stated that we will not uphold a custody decision where we must
speculate on the basis for that decision.  See, e.g., Maurer v. Maurer,
2005 VT 26, ¶ 16, 178 Vt. 489, 872 A.2d 326 (mem.); Pigeon
v. Pigeon, 173 Vt. 464, 465-66, 782 A.2d 1236, 1237-38 (2001) (mem.); Nickerson v. Nickerson, 158 Vt. 85, 88-89,
605 A.2d 1331, 1333 (1992); Price v. Price, 149 Vt. 118, 121, 541 A.2d
79, 81 (1987); Gustin v. Gustin, 148 Vt. 563, 565, 536 A.2d 933, 935
(1987).  As we held in Gustin, where the
findings on custody could support an award to either parent, “it is incumbent
on the trial court to point out what findings tipped the scale in favor of the
award it made. . . .  In failing to do so, the trial court leaves this
Court to speculate as to the basis for its decision, and this is something we
will not do.”  148 Vt. at 565, 536 A.2d at 935. 
The decision here leaves us in the exact situation we found unacceptable in Gustin and later cases.  We cannot uphold the
trial court’s decision with respect to father’s stepson.
¶ 32.        The
dissent, also without specifying the grounds for a finding of exceptional
circumstances, argues that we should affirm “[b]ecause
the oral findings are . . . extensive.”  Post,
¶ 43.  To support this argument, the dissent cherry-picks the
facts and relies only on those negative to mother.  In fact, the trial
court found this to be a close case, with two of the statutory best-interest
factors favoring each parent and the rest neutral.  The dissent relies
heavily on mother’s mental health issues, but the court found that “mother has
generally succeeded in her recovery” and while mother was not completely
healthy, “it’s close.”  The doctor’s letter on
which the dissent relies, post, ¶ 42, was solicited by mother because
she feared at the time that father was leaving the children alone with her too
often and too early in her recovery process.  Mother was regularly taking
care of the children. 
¶ 33.       The dissent also
relies on an incident where mother took her eldest child to live with her and
homeschooled him, but returned him to father’s home because he missed the other
children.  This occurred when there was no formal visitation schedule so
the child was totally separated from the other children.  In our view,
mother’s recognition that the child needed interaction with the rest of the
children shows she properly placed his needs above her interests.  In any
final divorce order, irrespective of whether mother or father is awarded
primary physical rights and responsibilities, the visitation order can ensure
all the children are together as appropriate.
¶ 34.       The evidence
suggests reasons why father’s stepson might be treated separately from the
other children.[3] 
He is three years older than his nearest sibling and is attending a different
school than his siblings.[4] 

¶ 35.       The dissent has
also relied on cases that require the least additional justification for an
award of custody to a person who is not a biological or legal parent.[5]  We emphasize our view that based on
the trial court’s existing findings of fact, this case appears unlike those
cases from other jurisdictions cited in Paquette.  A good example
is Allen, 626 P.2d 16, as explained in In re B.M.H., 315 P.3d 470
(Wash. 2013), both cases cited in the dissent.  Allen has a lengthy
discussion of what circumstances could meet the exceptional circumstances test:
“where circumstances are such that the child’s growth and development would be
detrimentally affected by placement with an otherwise fit parent, parental
rights may be outweighed.”  626 P.2d at 22. 
The court explained: “There must be a showing of actual detriment to the child,
something greater than the comparative and balancing analyses of the ‘best
interests of the child’ test.”  Id. at 23. 

¶ 36.       The Allen
court cited two circumstances that together met the exceptional circumstances
test—“[the father’s] inadequacy in sign language and lack of opportunities for
interaction and communication would set back [the child’s] intellectual
development” and the child had “become integrated into the family unit” that
also consisted of the stepmother’s three children, who had been adopted by the
father, so the custody award kept the unit intact.  Id. at
22-23.  In B.M.H., the Washington Supreme Court stressed that the
first consideration was necessary to show exceptional circumstances and an
actual detriment to the development of the child.  315
P.3d at 476.
¶ 37.       The foregoing
discussion is not intended to debate with the dissent whether mother should be
awarded custody of her eldest child, but to stress that the trial court’s
findings and conclusions do not explain the basis for its decision, as our
precedents require, and do not meet the requirements of Paquette, even
if we ignore the requirement of a heightened standard of proof.   Put
in the wording of Allen, the findings may support that awarding father
custody of his stepson is in the child’s best interests but not that an award
of custody to mother would detrimentally affect the child’s growth and
development, especially in combination with a parent-child contact
provision.  We must reverse and remand the court’s decision regarding
father’s stepson to enable the trial court to make additional findings, if
necessary, and explain its reasoning, or to make a different custody award. 
¶ 38.       The dissent
recognizes that even if it overcomes the trial court’s failure to identify and
explain its rationale regarding father’s stepson, its view still cannot prevail
under Paquette because the trial judge used a
preponderance-of-the-evidence standard of proof in reaching its decision and Paquette
requires that the decision be based on a clear-and-convincing evidence standard
of proof.  To avoid this hurdle, the dissent argues that we should
overrule Paquette on this point.  Post, ¶
41.
¶ 39.       The first time
that the overruling of Paquette has ever been advanced in this case is
in the dissent.  It was not argued below, never considered by the trial
judge—who purported to comply with Paquette—and it was not raised by
either party on appeal.  This is a particularly inappropriate case to
ignore preservation requirements because each party has struggled to obtain
affordable legal representation and, as a result, has been self-represented for
part of these proceedings.  If we are going to overrule a clear precedent
to decide this case, the litigants should have notice to address the question
and we should have the benefit of briefing by counsel.  See DeSantis v. Pegues, 2011 VT
114, ¶ 31 n.3, 190 Vt. 457, 35 A.3d 152 (declining to consider dissent’s
position to overrule the clear-and-convincing evidence standard in Mullin v.
Phelps, 162 Vt. 250, 647 A.2d 714 (1994) because
the position was raised for the first time by the dissent and had not been
raised by appellant either in the trial court or this Court).
The decision
to order a divorce is affirmed.  The decision with respect to parental
rights and responsibilities and visitation is affirmed, except that the court’s
custody and visitation award concerning father’s stepson is reversed and
remanded for additional proceedings consistent with this opinion.  
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
¶ 40.       REIBER, C.J., dissenting.   The majority’s opinion is a
remand for reconsideration in name only, in that it sends a strong message to
the trial court that the Paquette standard has not been met in this case
as a matter of law.  Because the majority upholds the placement of the
younger siblings with stepfather,[6]
the effect of the decision is to separate the life-long siblings and place the
oldest child with a parent who has serious unresolved mental health issues—even
though the trial court determined that he should remain with stepfather and his
siblings.  I believe that the trial court’s findings are sufficient to
support its custody decision concerning the oldest child under the test set
forth in Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23 (1985).  And
I am particularly concerned about this Court’s de facto transfer of the oldest
child from stepfather to an unstable mother, against the judgment of the factfinder, with no consideration of how the transfer will
impact both him and his siblings.  See In re Shields, 136 P.3d 117,
129 (Wash. 2006) (Bridge, J., concurring) (stating that child’s right to stable
family life “should include independently valued protections of a child’s
relationship with siblings . . . with whom the child has
formed a critical bond”).  I would affirm the trial court’s decision as
within its broad discretion.  Accordingly, I respectfully dissent.
¶ 41.       Moreover, for the
reasons explained below, I would overrule Paquette to the extent that it
requires clear-and-convincing evidence of parental unfitness or extraordinary
circumstances before a stepparent can be granted parental rights and
responsibilities.  A preponderance-of-the-evidence standard is more
consistent with the polestar of custody proceedings—the welfare of the
children.  Indeed, applying the more rigorous clear-and-convincing
standard elevates the interests of parents over the safety and welfare of the
children involved, which the Legislature has designated as the guiding
principle in custody matters.
¶ 42.       Among the trial
court’s oral findings were the following[7]:
(1) the son has had no contact with his biological father and had been parented
only by mother and stepfather in the family home along with his younger
siblings, the four biological children of stepfather and mother; (2) the son
and siblings currently reside in a home rented by stepfather from his aunt
where the family has been living for seven years and where stepfather’s family
provides support and nurturing of the children; (3) mother was hospitalized in
2010 after suffering a nervous breakdown and attempted suicide while in the
hospital; (4) in early 2011, she abruptly removed the son from the family home
and brought him to live with her, but it did not work out well because he
missed his siblings and mother herself concluded that the best thing for her
son was to be with his family in the family home; (5) in 2011 a doctor
recommended not leaving the children alone with mother, who may have some
undiagnosed mental health issues beyond depression with psychotic features; (6)
she spent several weeks living at a crisis center in November 2011, just a few
months before the divorce hearing took place, and the trial court concluded at
the time of the final divorce hearing that her housing situation was in flux;
and (7) although she appeared to be getting better, she continued to show signs
of instability.
¶ 43.       After making
these findings, examining the statutory best-interests factors, and awarding
stepfather primary[8]
parental rights and responsibilities over the parties’ other children, the
trial court concluded that the Paquette test had been satisfied with
respect to the son.  The court did not state whether it was basing its
decision on mother’s unfitness or extraordinary circumstances, but either way,
the court’s determination rests on the findings noted above, which support the
court’s determination that the Paquette test has been satisfied in this
case.  See In re April C., 760 N.E.2d 85, 95 (Ill. App. Ct. 2001)
(stating that because consequences of termination proceeding and
removal-of-guardian proceeding differ, “the meaning of the term ‘unfit’ as it
relates to each proceeding is different as well”); In re Mittenthal,
235 N.Y.S.2d 729, 739 (N.Y. Fam. Ct. 1962) (stating that “concept of unfitness
and neglect must be viewed with more flexibility when custody is involved, as
distinguished from permanent termination of parental rights either immediate or
inevitable”).  Because the oral findings that support the trial court’s Paquette
decision are extensive, I would not remand the matter for the trial court to
designate which aspect of the Paquette test it relied upon.  The
court’s findings are sufficient to support its decision, and any remand of the
matter for further consideration will only prolong this litigation.  The
son was fourteen years old at the time of the final hearing—he needs a prompt
resolution of his best interests. 
¶ 44.       To the extent
that the trial court’s ruling regarding the son is based on extraordinary circumstances,
I disagree with the majority’s suggestion that the present case is not
comparable to the two cases cited in Paquette.  One of those cases
described the extraordinary circumstances requirement as “a
middle ground” that demands “more than the ‘best interests of the child’
involved, but less than a showing of [parental] unfitness.”  In re Marriage of Allen, 626 P.2d 16, 23 (Wash. Ct. App.
1981).  Each case addressing whether extraordinary circumstances
exist will involve unique facts that must be considered on a case-by-case
basis.  See In re B.M.H., 315 P.3d 470, 476 (Wash. 2013) (stating
that whether placement with parent would result in actual detriment to child’s
growth and development is highly fact-specific inquiry that must be determined
on case-by-case basis).  Courts weighing the circumstances of each case to
determine whether extraordinary circumstances exist ultimately must be guided
by the paramount concern in custody cases—the welfare of the child.  Brown
v. Burch, 519 S.E.2d 403, 412 (Va. Ct. App. 1999) (“Although each dispute
concerning custody and visitation presents unique
circumstances[,] . . . the trial court’s judgment in every case
is guided by a single, unvarying standard that the welfare of the child is the
primary, paramount, and controlling consideration of the court.”).
¶ 45.       In custody
proceedings, the trial court, not this Court, is in the best position to assess
the credibility of the witnesses, weigh the evidence, and determine whether
circumstances justify not adhering to the presumption that the children’s best
interests align with those of the parent rather than the stepparent.  See Hanson-Metayer v. Hanson-Metayer,
2013 VT 29, ¶ 12, 193 Vt. 490, 70 A.3d 1036 (“When considering the
trial court’s analysis and decision in awarding parental rights and
responsibilities, this Court applies a highly deferential standard of
review.”); Chickanosky v. Chickanosky, 2011 VT 110, ¶ 14, 190 Vt. 435, 35
A.3d 132 (“In the highly fact-intensive context of a custody determination, we rely
on the family court’s determinations of fact and evaluations of
credibility.”).  Even if the trial court is called upon to apply the
higher evidentiary standard to the facts, our role is to defer to its
discretion.  We may provide direction consistent with legislative intent,
but at the same time must respect the trial court’s discretion regarding this
most highly sensitive of human concerns—the child’s welfare.  The trial
court’s discretion lies in evaluating the circumstances to make what is often a
difficult determination as to safety and best interests of the children. 
See McDermott v. Dougherty, 869 A.2d 751, 809 (Md. 2005) (citing factors
for determining extraordinary circumstances to award custody to nonparent); Brown,
519 S.E.2d at 411 (same); cf. Stanley D. v. Deborah D., 467 A.2d 249,
251 (N.H. 1983) (affirming trial court order granting stepfather physical
custody and joint legal custody with natural mother where parties were married
when child was one year old, stepfather was only father child had ever known,
strong psychological bond existed between child and stepfather, and child had
strong sibling bond with parties’ other child).
¶ 46.       Even if I were to
accept the majority’s conclusion that in this case the Paquette test was
not satisfied by clear-and-convincing evidence, I would affirm on a
preponderance-of-the-evidence standard.  The higher clear-and-convincing
standard of proof is not constitutionally compelled and, as exemplified by the
majority’s decision here, shifts the focus away from the paramount concern—the
welfare of the children.  We recently declined to judicially adopt an
equitable de facto parent doctrine that would apply to third parties with no
legally defined relationship to the child, but distinguished Paquette. 
See Moreau v. Sylvester, 2014 VT 31, ¶ 1, ___ Vt. ___, ___ A.3d
___.  In Paquette, we construed the then-existing statutory law to
allow “courts to award custody to [still-married] stepparents standing in loco
parentis” to children of the marriage in extraordinary circumstances and cases
of parental unfitness.  Id. ¶ 10; cf. In re Nelson, 825
A.2d 501, 504 (N.H. 2003) (declining to grant custodial rights to unrelated
third person over express objection of natural parent, but making exception for
stepparents, “who under certain circumstances have been recognized as having
the right to seek custody if it is in the best interests of the child”).
¶ 47.       Within the
context of the legal relationship established by married stepparents and
parents, we recognized in Paquette the primacy of the best interests of
children in custody matters.  146 Vt. at 90, 499 A.2d at 28 (“In Vermont,
the legislature has clearly stated that, in considering issues of child
custody, the courts are to be guided by the best interests of the
child.”).  We explained that courts have “accorded precedence to the best
interests of the child when those interests conflicted with the rights of a
natural parent.”  Id. at 89, 499 A.2d at 28; see In re Custody
of N.M.O., 399 N.W.2d 700, 703 (Minn. Ct. App. 1987) (“The principle that
the custody of young children is ordinarily best vested in the [parent] . . .
is distinctly subordinate to the controlling principle that the overriding
consideration in custody proceedings is the child’s welfare.” (quotation omitted)).
¶ 48.       While emphasizing
in Paquette the primacy of the children’s welfare in custody matters, we
required stepparents to prove parental unfitness or extraordinary circumstances
by clear-and-convincing evidence before being given an opportunity to obtain
parental rights and responsibilities.  Paquette was a split
decision in which the dissenters argued that the Legislature had given Vermont
courts the authority to make custody orders concerning only natural
parents.  146 Vt. at 93, 499 A.2d at 30 (Billings, J.,
dissenting).  Our requirement that married stepparents show
parental unfitness or extraordinary circumstances by clear-and-convincing
evidence to overcome the presumption favoring custody with the “natural” parent
appeared to rely upon the then recently decided U.S. Supreme Court decision in Santosky v. Kramer, 455 U.S. 745
(1982).  See Paquette, 146 Vt. at 92, 499 A.2d at
30.  The Court in Santosky held
that “[b]efore a State may sever completely and
irrevocably the rights of parents in their natural child, due process requires
that the State support its allegations [of unfitness] by at least clear and
convincing evidence.”  455 U.S. at 747-48.
¶ 49.       Santosky, however, was a
termination-of-parental-rights case.  It did not involve custody
proceedings, but rather concerned a New York statute permitting the state’s
termination of parental rights based on a showing of the natural parent’s
unfitness by a preponderance of the evidence.  Weighing the due process factors
set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Court in
Santosky emphasized the finality of the
threatened loss in state-initiated termination proceedings.  455 U.S. at 758-59.  The instant case, in contrast,
involves a custody dispute in a divorce proceeding in which the focus is on the
children’s best interests rather than the right of parents to avoid state
termination of their parental rights. 
¶ 50.       To be sure, we
held in Mullin v. Phelps, 162 Vt. 250, 267, 647 A.2d 714, 724 (1994),
“that in divorce or custody proceedings the family court may not terminate
child-parent contact of either parent absent clear and convincing evidence that
the best interests of the child require such action.”  But, notably, we
did not disturb the trial court’s finding in that case—by a preponderance of
the evidence—that father had sexually abused the parties’ children.  Id. 
Rather, based on our conclusion that the trial court’s custody order
effectively terminated father’s parental rights and responsibilities
permanently, id. at 263, 647 A.2d at 721, we reversed the court’s order,
holding “that due process required the court [on remand] either to find the
existence of sexual abuse by clear and convincing evidence or to permit, at
minimum, continued contact between father and the boys consistent with their
safety,” id. at 267, 647 A.2d at 724.
¶ 51.       In the present
case, in contrast, the superior court awarded mother significant parent-child
contact, in addition to legal responsibility for the children’s medical
needs.  This is not a case in which the court completely and irrevocably
terminated a natural parent’s parental rights.  Accordingly, I see no
constitutionally compelled basis for imposing a clear and convincing standard
that elevates the natural parents’ rights above the safety and welfare of
children.  See Tailor v. Becker, 708 A.2d 626, 628-29 (Del. 1998)
(rejecting constitutional challenge to statute permitting custody to be given
to custodial stepparent over noncustodial parent after custodial natural
parent’s death, based on conclusion that statute did not irrevocably terminate
natural parent’s rights but rather permitted parent-child contact and requests
for modification of custody order); cf. Stanley D., 467 A.2d at 251
(stating that order awarding joint custody to stepparent and natural parent was
not equivalent to termination of parental rights and therefore did not require
proof of extraordinary circumstances or natural parent’s unfitness).[9]
¶ 52.       Nor does the U.S.
Supreme Court’s decision in Troxel v.
Granville, 530 U.S. 57 (2000), pose a constitutional impediment to
requiring stepparents to prove extraordinary circumstances or the natural
parent’s unfitness by only a preponderance of the evidence.  In Troxel, the Supreme Court affirmed a state court
decision striking down a “breathtakingly broad” state statute that allowed
courts to grant visitation to any person at any time based solely on a
best-interest analysis.  Id. at 67, 69-70.  Here, in contrast,
we are dealing with a narrow class of third persons—stepparents—and we are not
eliminating the threshold requirement that they show extraordinary
circumstances or parental unfitness before being able to obtain parental rights
and responsibilities.  See, e.g., Gray v. Chambers, 614 N.Y.S.2d
591, 592 (App. Div. 1994) (noting stepparents’ threshold burden of showing
extraordinary circumstances or natural parent’s unfitness, but not indicating
clear and convincing burden of proof); B.M.H., 315 P.3d at 475 (same).
¶ 53.       In sum, I would
overrule our holding in Paquette to the extent that it requires a
married stepparent of a child of the biological parent-spouse to prove
unfitness of the parent or extraordinary circumstances by clear and convincing
evidence.  See also Bancroft v. Bancroft, 154 Vt. 442, 447, 578
A.2d 114, 117 (1990) (citing Paquette standard); In re S.B.L.,
150 Vt. 294, 298-99, 553 A.2d 1078, 1081-82 (1988) (same).  The result,
with respect to in loco-parentis stepparents, would be similar to an Oregon
statute recognizing “a presumption that the legal parent acts in the best
interest of the child,” but providing that if there is a child-parent
relationship and the presumption “has been rebutted by a preponderance of the
evidence,” the court is authorized to grant parental rights and
responsibilities to the person having the parent-child relationship if doing so
is in the best interest of the child.  See Or. Rev. Stat. § 109.119(2)(a), (3)(a).  In any event, I believe that the trial
court did not abuse its broad discretion in concluding that the Paquette
test was satisfied in this case.  Therefore, I respectfully dissent. 

¶ 54.       I am authorized
to state that Justice Crawford joins this dissent.
 

¶ 55.      
   


 


 


 


 


Chief Justice

 





[1]  Some
of the issues on appeal were created or aggravated by the drafting of the final
order by the lawyer for the party who did not prevail and the failure of the
trial court to edit the draft to fully reflect its findings and
conclusions.  We cannot recommend this practice.


[2]
 In the oral decision, the court stated: “Dad . . . has been [his
stepson]’s parent.  And the court finds that the factors that allow the
court to do this are present as per the Paquette decision.”  See Paquette
v. Paquette, 146 Vt. 83, 92, 499 A.2d 23, 30
(1985).


[3]
 We are referring to the evidence because, pursuant to our mandate, the
trial court can make additional findings to support its decision.  There was
extensive evidence, particularly from the testimony of mother and of the eldest
child’s biological father, that bear on father’s
relationship with his stepson.
 


[4] 
Father’s stepson has been attending a Christian school and the other school-age
children have been attending a public school.  Mother particularly has
wanted him to attend a religious school. 
 


[5]
 The most extreme example is Stanley D. v. Deborah D., 467 A.2d 249
(N.H. 1983), in which the New Hampshire Supreme Court held that the trial court
could award custody of a stepchild without “requiring proof of the natural
parent’s unfitness or other extraordinary circumstances.”  Id. at
251; see post, ¶ 45.  The holding in Stanley D. is directly
contrary to Paquette, and, for that reason, its factual analysis is not
relevant here.


[6] 
We refer to father as “stepfather” because that is his legal relationship to
the oldest child, and this dissent concerns the trial court’s ruling regarding
that relationship.  See 15A V.S.A. § 1-101(22) (defining stepparent as
“person who is the spouse or surviving spouse of a parent of a child but who is
not a parent of the child”).  


[7] 
I realize that the trial court made other findings that may be construed
as inconsistent with its Paquette decision, but I cite only the above
findings because they are the ones that support its discretionary
decision.  Trial court findings must be construed as consistent if it is
reasonably possible to do so, and “this Court must construe those findings so
as to support the judgment.”  Rogers v. W.T. Grant Co., 132 Vt.
485, 489, 321 A.2d 54, 58 (1974); see also Jeffords v. Poor, 115 Vt.
147, 153, 55 A.2d 605, 608-09 (1947) (stating that trial court’s “findings are
to be construed as consistent whenever . . . reasonably possible to do so” and
further must “be construed to support the judgment”).  I believe that the
trial court’s findings can be construed as consistent, and that we are
bound to construe them favorably to the trial court’s judgment.  
 
The majority states that the trial court made its
findings by a preponderance of the evidence, but refers only to the trial
court’s general statement informing the pro se parties that it is required to
make findings only by a preponderance of the evidence.  The court made no
pronouncement as to what standard it was applying here with respect to its Paquette
decision, and my interest in modifying the standard in Paquette has
nothing to do with the notion that the trial court applied a
preponderance-of-the-evidence standard in this case.  Indeed, in this
case, each of the findings cited above supporting the trial court’s Paquette
decision was entirely undisputed by the parties.  For this reason, we
should not disturb the trial court’s decision.  See Moran v. Byrne,
149 Vt. 353, 355, 543 A.2d 262, 263 (1988) (“As the findings of the trial court
are supported by the evidence, and we must construe the findings to support the
conclusion, we find no basis on which to disturb the decision below.”). 
   


[8] 
The trial court stated that it was awarding stepfather sole physical and legal
parental rights and responsibilities, but in fact the court awarded mother
legal responsibility on all medical matters and also awarded her significant
parent-child contact. 


[9] 
I do not advocate lowering the standard of proof in Paquette because the
higher standard is not constitutionally compelled, as the majority
posits.  Rather, I believe doing so would be more consistent with the
legislative policy of placing the emphasis in custody matters on the welfare of
the children instead of their parents.  Because the standard is not
constitutionally compelled and was judicially implemented, we can and should
change it.  Paquette was a 3-2 decision decided thirty years ago
when courts were only beginning to recognize the significance of legal nonparents,
such as stepparents, in children’s lives.  As for the majority’s
preservation concern, this Court can and does act sua
sponte when vital interests are at stake. 
Indeed, we did so in Mullin v. Phelps itself.  See 162 Vt. at 263
n.2, 647 A.2d at 722 n.2.  



