In a contested hearing held in Vermont Family Court, Mother and Father each request sole parental rights and responsibilities of their minor children.
Mother brings with her pictures of Father partying, drinking, and in compromising poses with the opposite sex, along with comments about how much he enjoys his night life, all posted on Facebook.
Father is appalled, first because he doesn’t know how Mother got those pictures, and second because he is afraid that they will negatively impact his case for custody of his children. He had never “friended” Mother on Facebook; so he thought he was safe.
This scenario is being played out more and more in the courts. Facebook has taken on an important role in many disputes, and lawyers have found Facebook postings can contain information that is useful in a court proceeding.
For those of you involved in divorce or parentage proceedings regarding parental rights, you can be rest assured that your mutual friends and your relatives—many of whom are your “friends” on Facebook, have taken sides, and some will inevitably take the other parent’s side in any custody dispute.
In addition, those “friends” who have taken the other parent’s side will be eager to let the other parent know about your postings on Facebook, especially the ones that make you look like a bad parent.
The first lesson is, then, for any litigant: imagine the item you are posting being presented as an exhibit in court—because if it is online, it will likely be easily accessible by your courtroom opponent. If you would be embarrassed to have a judge see what you are about to put online, do not click “post”.
Father’s second concern—the impact of the Facebook pictures and commentary on his case—turned out to be groundless. Why? Because under Vermont law, what your nightlife is like is not admissible in evidence unless it impacts your children.
Title 15, section 667 (a) provides as follows:
” Evidence of conduct of a parent not related to the [parental rights and responsibilities] factors in section 665 of this title shall only be admissible for the purposes of determining parental rights and responsibilities if it is shown that the conduct affects the parent’s relationship with the child.”
Thus if a parent goes out partying, that evidence will only be admissible if it can be shown that the children are neglected or otherwise adversely impacted as a result.
Facebook and other online social networks can be dangerous for any litigant. However, if the information is only about a person’s social life not related to the care of their children, the information will not be admissible in any custody action in Vermont.
In the first question, respondents are asked if a child should be able to choose which parent he or she lives with. Most said yes. In fact, the plurality said children should be able to choose at any age. Only a small fraction said the child should never have a say. Yet, in Vermont, the statutes do not allow children to express a preference for which parent they want to live with at any time. Indeed, one person told me privately that they felt a sibling had been damaged as a child because the sibling did not have a say as to which parent the child could live with. I have always thought it was best for children not to have a say as to where they live. In my experience, there is a danger to allowing children to express a preference because I have seen children who want to take care of a needy parent, and children who want to please an abusive parent. And even good parents can unconsciously manipulate a child. However, my opinion has changed somewhat based on this survey.
In the second question, respondents were asked how a child should be able to express a preference. The vast majority said that children should be able to talk to judges in chambers. That would not be allowed, unless the parties or their attorneys are present. It is a matter of due process for the parties to be able to at least have a representative in chambers. Parents have constitutional rights to the care and companionship of their children, and I do not believe allowing children to talk to a judge alone would pass constitutional muster. In any case, in my 32 years of experience in Vermont family courts, children have only testified once–not about their preferences, which is not allowed, but about some observations they had that no one else could testify to. So, this answer was markedly different than what happens in Vermont family courts.
The third question involved whether there should be a preference for sole custody with one parent, or joint custody. The vast majority said it should be in the judge’s total discretion, recognizing, I think, that each family is different. Vermont statutes do not allow any discretion when it comes to joint legal custody–the parties have to agree, or the court cannot order joint legal custody. In regard to physical custody, in Vermont, the statute outlines nine factors the courts must take into account when determining physical custody, and because those factors are quite general, judges have wide discretion. So the respondent’s answers matched what the statute contemplates. In my experience, judges used to routinely award custody to mother with every other weekend to father. That pattern has changed in recent years, with fathers being awarded custody more often than in the past, and with visitation much more frequent. However, in my experience, mothers still have an advantage, particularly when there are small children.
The fourth question asked whether parents should be able to request modification of custody and visitation as the children got older. The vast majority of respondents said yes, with a plurality indicating parents should go to mediation first. In Vermont, before there can be any modification of custody or visitation, a party must show there is a “substantial unanticipated change in circumstances”. In my experience, judges consider a child growing older not to be an unanticipated change in circumstances; thus custody and visitation cannot be changed. Indeed, in a recent case where a teenager had refused to stay with a parent for over a year, even though the order provided for 50/50 custody. The parent where the child lived filed a motion to modify, citing a substantial unanticipated change in circumstances. The judge refused to modify the order, because he found that teenagers often have a falling out with a parent, so he determined this was not an unanticipated change in circumstances!
Because of the changes that are happening in family courts, and because of the different approaches in Vermont and New Hampshire, I thought it would be interesting if we did a survey of the public to see what you think.
Here is the link to the survey. Particularly for those of you whose parents were divorced or separated during your childhood, or those who are now in a divorced or separated households with minor children, we hope this survey will give voice to your concerns and opinions.
>If you are trying to obtain custody of your children (called Parental Rights and Responsibilities in Vermont), there is one major mistake to avoid. Many parents believe that they must prove that the other parent is unfit in order to obtain custody, so they focus on the other parent’s failings. In a divorce or parentage action, that is easy to do, as the parties are usually not happy with each other and can easily find fault with the other parent. However, Vermont Title 15 section 665, which outlines the factors a court reviews in determining custody, contains a factor that must be reviewed and taken seriously by every parent in a custody dispute. The factor is as follows: “The ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact, except where contact will result in harm to the child or to a parent.”
Thus, unless the other parent is abusive to you or abusive or neglectful to your children, it is not a good idea to disparage the other parent as a part of presenting your case to the court. If you do, it may backfire, as the court may find you are unable to foster a positive relationship between the children and their other parent.
Similarly, you should make every effort to provide contact between the children and the other parent. If you limit contact, and the court finds no good reason for you to limit such contact, then the court may award the other parent custody.
Limiting contact with the other parent is also generally not good for your children. Children lose a great deal in a divorce–stability, family traditions, family routines, to name a few–and losing contact with their other parent adds greatly to their sense of loss.
Parents in custody and parent child contact disputes often tell the court that their children do not want to see the other parent. That representation can have the opposite effect of what you intend. Judges have heard hundreds of times parents tell them that their children do not want to see the other parent. Unless you have concrete reasons for the children to say they don’t want to visit, judges often assume it is because you are encouraging, either overtly or subconsciously, the children’s attitude towards the other parent. The courts know that children will often tell you what you want to hear, and if you feel devastated and betrayed by the other parent, the children will certainly pick up on your feelings. So children often want to make you feel better by saying they do not want to see the other parent.
Here are some tips for fostering a positive relationship between you children and the other parent:
- Any disputes you have with the other parent should be out of earshot of your children
- Do not disparage the other parent in front of the children, and tell your family not to do so either (Your family is often more angry at the other parent than you are.)
- Try to be cooperative and flexible regarding parent child contact.
- Try to work out issues regarding the children, such as house rules and after school activities, with the children’s other parent; and then present a united front, if possible regarding the issues. (This is good advice for any parent, but especially parents who are separated.)
- If custody is going to be contested, be prepared to offer a reasonable parent child contact schedule to the court. The parent who offers a more generous parent child contact schedule to the other parent often has a better chance of obtaining custody, all other things being equal.
- Be prepared to testify about the other party’s good parenting qualities.
- In your testimony, focus on the children and their needs, not on your grievances with the other parent.