Vermont Child Custody And Visitation Guidelines
Parental Rights and Responsibilities (Custody)
Vermont family courts call custody “parental rights and responsibilities” (PR&R). This term means the same thing as custody, just with a different name. PR&R refers to the care and control of a child under 18 and a Court order will address:
• Who gets to make important decisions about the child’s life
and how your child is raised and
• Who will physically take care of the child.
Parents can make an agreement about PR&R and ask the court to turn that agreement into a court order. If the parents cannot agree, a judge can make a decision about PR&R as a part of a contested hearing. Family courts in Vermont will order custody based on the best interests of the child. A Vermont family court will not make a custody determination on the basis of a parent’s gender. Additionally, if parents cannot agree on custody, a Vermont family court will order sole, shared or even split physical custody.
Physical responsibility or physical custody refers to the parent the right to have the child live and stay overnight with you. The parent with physical responsibility takes care of the child’s day-to-day needs. When the child lives with one parent, that parent has sole physical responsibility or sole custody. A parent with sole physical responsibility has the child live with him or her for most of the time. When parents share the responsibility for taking care of a child, this is called shared physical responsibility. For example:
• your child spends one week with you and then one week with the other parent
• your child spends weekdays with you and weekends with the other parent.
A judge can also order split physical responsibility or split custody when there’s more than one child involved. When parents have split physical responsibility, some of the children live with the mother while the rest live with the father.
Joint Child Custody in Vermont
In Vermont, joint custody based on parental agreements is considered to be in the best interest of the child. A joint custody agreement in Vermont will include the following information:
- The child’s physical living arrangements
- Details regarding when and where the child will have physical contact with each parent
- Details regarding the education of any minor children
- Details regarding medical, dental, and health care
- Details regarding how travel arrangements will be handled by each parent
- Procedures for communicating about the child’s welfare and procedures for resolving disputes. A court may order mediation or binding arbitration if there is a disagreement
A family court in Vermont will reject a joint custody agreement that is not considered to be in the best interests of the child.
Best Interests of the Child Standard in Vermont
A family court in Vermont will order custody based on the best interests of the child which uses the following factors:
- The child’s relationship with his/her parents
- Each parent’s ability to provide the child with love, affection, and proper guidance
- The child’s adjustment to present housing, school, and community, and the potential effect on any change
- Each parent’s ability to provide financially for the child
- Each parent’s ability to provide a safe environment for the child
- Each parent’s willingness to encourage a positive and continuous relationship with the other parent
- Any history of abuse and the impact of that abuse on the child and on the relationship between the child and the abusing parent
Custody Action in Vermont
In Vermont, if the parents are married, one or both of the parents usually files for PR&R as part of a divorce action. If the parents were never married or if either is filing before seeking a divorce, either parent can file for PR&R in the county in which the child has been living for at least six months.
If both parents can come to an agreement on PR&R, the parents can make an arrangement on PR&R that works for both of them. One parent can have all of the parental rights and responsibilities, or the parental rights and responsibilities can be split between the parents in some way. If the parents cannot come to an agreement about PR&R, there will be a contested hearing in front of a judge. A judge makes a decision that s/he thinks will be in the child’s best interests.
Vermont laws say that after parents have separated or divorced, it is in the child’s best interests to have continuing, regular physical and emotional contact with both parents. The courts do not choose one parent over the other because of the gender of the child, the gender of either parent, or the financial resources of a parent.
In certain cases, someone other than a parent may be able to get guardianship (custody) over a child through the probate court if one of the following applies:
- No parent objects and transfer of custody is in the best interest of the minor and is not solely for the purpose of establishing a residence for school purposes;
- The child has no living parent who is authorized to act as a guardian;
- The parent is under guardianship or shown to be incompetent or unsuitable to have custody of the child; or
- The parent lives outside of Vermont for 3 years and has not contributed to the child’s support during this period (and the child must have lived in Vermont for three years)
Modification of a PR & R (Custody) Order in Vermont
Either party can try to modify (change) a PR&R order if you can show a “real, substantial and unanticipated change of circumstances” has happened since the order was issued. If the judge modifies an order for physical responsibility, s/he is supposed to set a date for a child support modification hearing. At the same time, the judge can issue a temporary support order pending the modification hearing so that the amount of child support reflects the change in physical responsibility. “Real, substantial and unanticipated change of circumstances” may include: disability; illness; relocation due to job or emergency; a communication breakdown, or situations involving abuse.
Vermont Visitation OR “Parent-Child Contact.”
In Vermont, visitation is referred to as “Parent-child contact” — it is the right to spend time with your child that doesn’t live with you. If one parent has sole physical responsibility for a child, the other parent will usually have some form of parent-child contact. If you and the other parent cannot agree about PR&R and/or parent-child contact, you will have a court hearing where a judge will decide who gets physical custody and how much parent-child contact the non-custodial parent will get. Judges usually want children to contact with both of their parents, unless it would harm the children. If a parent harm’s a child, the judge may limit parent-child contact or order no contact if the situation warrants such severe action.
Enforcement of Visitation
Vermont also has specific laws to enforce visitation for both parents. When a noncustodial parent who is ordered to pay child support or alimony and who is awarded visitation rights fails to pay child support or alimony, the custodial parent shall not refuse to honor the noncustodial parent’s visitation rights. When a custodial parent refuses to honor a noncustodial parent’s visitation rights, the noncustodial parent shall not fail to pay any ordered child support or alimony.
If a custodial parent refuses to honor a noncustodial parent’s visitation rights, the court will enforce such rights unless it finds good cause. Enforcement includes the restoration of the amount of visitation improperly denied.
When a custodial parent refuses to honor a noncustodial parent’s visitation rights without good cause, the court may modify the parent-child contact order if found to be in the best interests of the child. A custodial parent, upon a showing of good cause . . . may receive an ex parte order suspending a noncustodial parent’s visitation rights until a court hearing is held. A hearing is usually held within 10 days from the issuance of the order.
Vermont is very strict with language regarding failure to comply with Court Orders:
“A PERSON WHO FAILS TO COMPLY WITH ALL TERMS OF THE CURRENT ORDER GOVERNING PARENT-CHILD CONTACT MAY BE SUBJECT TO CONTEMPT OF COURT CHARGES. THE COURT MAY IMPOSE ADDITIONAL REMEDIES, INCLUDING A MODIFICATION OF THE CURRENT PARENT-CHILD CONTACT ORDER IF FOUND TO BE IN THE BEST INTERESTS OF THE CHILD.”
In Vermont, there are four instances in which a man will be presumed the father of a child:
- he refuses to submit to requested genetic testing as part of a paternity court case;
- genetic testing proves he is the child’s father with 98 percent or more certainty;
- he and the child’s mother were married at the time the child was conceived or born;
- and he as the father has signed and submitted a voluntary acknowledgment of parentage form.
The father can choose to sign a voluntary acknowledgment of parentage form, with the mother’s consent, and the form must be filed with the Vermont Department of Health.
If paternity is contested, the mother, child or alleged father all have the legal right to request a genetic test to establish the child’s biological father. These results can be used in a paternity hearing. The mother, child, and/or father must seek to declare parentage before the child turns 21.
Legal paternity is the legal connection between father and child and is the premise for every parental right that a parent has including the right to seek visitation and/or custody.
Vermont’s Home State Rule
You can file for custody in the “home state” of the child or a state where the child has significant connections. The “home state” is the state where your child has lived with a parent or a person acting as a parent for at least six months in a row. (Leaving the state for a short period of time does not change your child’s home state). If your child is less than 6 months old, then your child’s home state is the state where he or she has lived since birth. However, there are exceptions to the “home state” rule, If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months.
If you have a custody order and you move to another state, you will generally still have to return to the original state and ask the court that issued the order to make any modifications (changes) to the order. However, it is possible that your new state would agree to modify the order if:
– the original court decides that it cannot modify (change) the order; or
– the original court agrees to transfer the case to your new state; or
– there are no longer any interested parties (the child, a parent, or an individual acting as a parent) living in the original state
If Vermont is your child’s home state, you may be able to file for temporary emergency custody in a different state if:
- the child is present in that state, and
- the child has been abandoned or it is necessary in an emergency to protect the child because the child, a parent, or sibling is subjected to or threatened with mistreatment or abuse.*
MILITARY DEPLOYMENT CIRCUMSTANCES
Vermont provides specific language for temporary modification of custody when a parent is deployed in the military.
Temporary Modification Action
A person deployed in the military may file a motion requesting that the court enter a temporary order modifying parental rights and responsibilities or parent-child contact during the period of deployment or mobilization when:
(1) a military parent who has shared, sole, or primary legal or physical parental rights and responsibilities for a child or who has parent-child contact pursuant to an existing court order has received notice from military leadership that he or she will deploy or mobilize in the near future; and
(2) the deployment or mobilization would have a material effect upon his or her ability to exercise such parental rights and responsibilities or parent-child contact.
Motions for modification because of deployment are generally heard by the court as expeditiously as possible. In addition, the deploying parent may ask the court to delegate his or her parent-child contact rights, or a portion of them, to a family member, a person with whom the deploying parent cohabits, or another person with a close and substantial relationship to the minor child or children for the duration of the deployment, upon a finding that it is in the child’s best interests.
Further, Vermont law requires that the nondeploying parent make the child reasonably available to the deploying parent they have leave; and strive to facilitate opportunities for telephonic, electronic mail, and Skype, etc.
Vermont Resource Information Line:
Note: The foregoing information is provided as general family law guidelines in Vermont and should not be considered as legal advice specific to your case. After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.org
Submitted by Linda O’Marie, Paralegal
About The Children (800) 787-4981