Results on custody and visitation survey


We received a total of 81 responses to our survey about child custody and visitation.  You can view the results here and here(We sent out surveys to two separate lists; hence the two results.)Some preliminary comments:  first,  my comments will compare the results only with Vermont law. Second, I asked respondents about “custody” and “visitation”.  Those terms are no longer used in Vermont; “parental rights and responsibilities”  are used for custody; and “parent child contact” is used for visitation.  I used the former terms as they are generally understood by the public, and are more concise terms.  Third, there was a large response and many comments.  So these issues are important to many folks. Finally,  in three out of four questions, the majority of respondents recommended options which are not allowed or provided for in Vermont domestic relations statutes.   Domestic relations statutes are enacted based on what lawyers, judges and legislators believe is best for families–with little or no input from the families affected. This survey demonstrates that that these issues–which affect most families at some point in their lives–should be discussed with the public, and not just left to the legal community and legislators.

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!