The Law Firm of Bucknam Black Davis PC

Joint Legal parental rights and responsibilities—A good Idea?

15 V.S.A. Section 664 defines legal parental rights and responsibilities as follows:

” ‘Legal responsibility’ means the rights and responsibilities to determine and control various matters affecting a child’s welfare and upbringing, other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements.”

This statue went into effect in 1985.  Prior to that, one parent or the other was awarded sole “custody” with no distinction between legal and physical parental rights.   So when the provision was first put into the Vermont statutes,  parties often agreed that one parent would have sole physical parental rights and responsibilities, and the parties would enjoy joint legal parental rights and responsibilities.  It seemed like a good way for  parents to feel as if they had a say in their children’s lives, and the agreement of the  parent who had sole physical parenatal rights to share legal responsibilities often resulted in settlement of contested custody cases.

Joint legal parental rights and responsibilities has proven to be problematic, however if the parents disagree regarding any legal issues involving their children.  If a parent has sole legal rights and responsibilities, that parent can make any decision about his or her children’s school, medical care, or religion without input from the other parent.  While this can cause friction, it does not result in court intervention, because the noncustodial parent has no legal rights in this area.

On the other hand, parents who enjoy joint legal parental rights and responsibilities and who disagree about a legal issue involving their children have no recourse except to go to court.  Moreover, the rules require mediation prior to filing any motions with the court, which often delays decisions on vital legal issues.  In the most common example,  parents who disagree as to where their children should go to school often are delayed for months while they go through a mediation process, and then have to wait for a court hearing date, then a decision from the court after the hearing is concluded.  This process often results in no decision until after the school year starts, resulting in a chaotic and stressful situation for the family.

Children with special needs or talents are often the victims of this system, as parents disagree on whether and what kind of special schooling should be put in place to meet the children’s needs.  And the agreement to share legal rights and responsibilities is often made without much thought about issues like this which may arise in the future.

In my experience, some of the most contentious court hearings have been between parents who share legal parental rights and responsibilities, and are disputing how a child is educated.

Finally, disagreeing about a legal issue involving children is often not considered by the courts to meet the “ substantial unanticipated material change in circumstances”  that would allow the court to modify joint legal parental rights and order  sole legal parental rights to one parent.   The court must find that the disagreement between the parties is a “substantial unanticipated” change in the way the parents have historically interacted with each other, and if their disagreement over schooling is merely a continuation of ongoing disputes the parents have had, then the court will likely conclude that there is not a change in circumstances.  In addtion, if the parties are continuing to agree in other aspects of their children’s lives, then the court will likely conclude that there is no need for change in joint legal parental rights and responsibilities.

So, if parents agree to joint legal parental rights and responsibilities, then they will likely have to live with that decision during their children’s minority, and risk having the court making major decisions about their children’s education, medical care, and other legal issues.

There are some ways to mitigate the risks of disagreements between parents who enjoy joint legal parental rights.  First, the parties can agree that legal rights be apportioned to one parent or the other.  For example, one parent may retain sole legal rights to determine their children’s education,  but the parties may agree to joint legal rights to all other issues concerning their children.  Parties can agree to even more detailed detailed decisionmaking scenarios, such as one parent having sole decisions over certain school activities, or agreeing to certain travel restrictions. Second, parents may enjoy joint legal responsibilties, but if there is a disagreement, one parent would make the final decision–either about all legal decisions, or about one in particular, such as education.   This suggestion was made recently during mediation by mediator and  Attorney Brice Simon, of Breton & Simon  .  Hats off to Brice for the creative solution.

Mediation can also be helpful, if the parties have a skilled mediator, and both are willing to work out a solution.  Mediation should be set up as early as possible, however, since many of these decisions, such as schooling, are time sensitive, and parents should not be rushed into making a hasty decision.   In addition, the parents should be prepared to present at mediation all the facts about their proposal, including information about the proposed school, medical or mental health  treatment, or travel arrangements.  It is respectful to the other parent if you have factual information to present, and that in turn will facilitate agreement.

In conclusion, joint legal parental rights and responsibilities can work if parents can work together to resolve their differences.  However, parents should be thinking carefully about the risks of sharing legal parental rights, and carefully fashion an agreement that will reduce the risk of court involvement if the parties disagree, while retaining as much joint decisionmaking as possible.


Parental Rights and Responsibilities in Vermont in the Age of Facebook


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.



Major Mistake to Avoid in Custody Disputes

>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.

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