Vermont's 1986 Divorce Act

VERMONT'S 1986 DIVORCE ACT
A HEALTH VALUE SYSTEM

JUNE 30, 1986

By:

Kimberly B. Cheney, BA Yale University, 1957, LLB Yale Law School, 1964
Trine C. Bech, BA Mills College, 1972 JD Vermont Law School, 1979

On July 1, 1986 Vermont law abandons the legal concept of Child Custody in Divorce cases. A concept of division of parental rights and responsibilities (RAR) towards children between parents is used instead. Agreements between parents which allocate RAR are given a preference, and judicially ordered joint custody against the wishes of a parent is repudiated.

The new law enacts carefully enumerated factors, for determining a child's best interests and requires use of the criteria in allocating RAR. The criteria direct judicial inquiry into those factors which promote healthy growth of children. In addition, new evidentiary requirements for child testimony are created, and rules governing parental agreements are provided.

The law will certainly change most aspects of divorce law where children are involved. It was drafted by the Family Proceedings Advisory Committee (FPAC) in response to the Legislature's request for an in-depth study of divorce and custody law.

PURPOSE OF THE LAW

The law's stated purpose is to encourage divorcing parents to maintain the maximum possible contact with their children, unless there is evidence that this would be harmful to either a parent or a child. This goal is consistent with social research findings which suggest that children's outcome after divorce is effected positively by a continuation of a loving relationship with both parents, and adversely by parental conflicts, Wallerstein and Kelley, Surviving the Breakup, Basic Book (1980).

Its second purpose is to provide children with adequate child support. Child support, however, is not a part of RAR. The law gives preferential status to agreements between parents concerning allocations of RAR, but does not give any preference to agreements regarding child support. Support is not a matter of contract. The court will determine for itself appropriate support because it protects the children. Thus the policy of Barbour v. Barbour, 146 Vt. (January 1986) is continued. Simultaneously with passage of the Divorce Act, the Legislature passed revisions to the statutes governing child support which establishes a presumptive level of payments. That act, however, is not effective until April 1, 1987, and is not considered in detail here. Its existence, however, accounts for the omission of support as a RAR.

Vermont's use of the concept of rights and responsibilities (RAR) towards children is modeled on Florida (§ 61.13) and Maine (19 MSA § 751) statutes. It is closer to the Maine statute in that both laws abolish the term custody while Florida's does not.

The concept of custody was abolished because it had become a winner take all proposition which did not account for the reality that divorce with children alters, but does not eliminate, ongoing parental rights and duties. Custody became an attitude which reflected the idea that a child is a chattel to be awarded to the most meritorious spouse. Custody implied that the totality of rights resided in one parent. That concept is antithetical to parental sharing of love and duty. It is also inconsistent with the concept of RAR and so was discarded. Just as allocation of child care responsibilities is changing within marriages, it is also changing within divorces. The new Act, seeks to accommodate the changing nature of divorce and the relationships it generates by refracting custody into its component parts.

PARENTAL AGREEMENTS

A central policy of the act is to continue the kinds of parent-child contact, including shared parenting, which existed prior to divorce, and to give a preference to parental agreements. All agreements, however, are subject to judicial scrutiny. Courts must disapprove them if they are not in the best interests of a child. The criteria for determining what is in the best interests are those used in contested cases. They logically form the basis for the mandated review of parental agreements as well as contested cases.

The statute attempts to help parents focus on the practical implications of planning for their children by mandating that agreements of RAR include provisions that address at least the following:

1. Physical living arrangements;
2. Parent child contact;
3. Education of the minor child;
4. Medical, dental and health care;
5. Travel arrangements;
6. Procedures for communication about the child's welfare; and
7. If parental rights and responsibilities are to be shared or divided, procedures for resolving disputes. Such procedures may include but shall not be limited to mediation and binding arbitration.

Although dispute resolution mechanisms are only required in cases where RAR are to be shared or divided (where possibilities for disputes are abundant), they are recommended as a standard feature of agreements in general. It is difficult to foresee and guard against all possible areas of future disputes. Where agreement exists on methods for resolving them, it is probable that disputes will be settled earlier.

REASONS FOR NEW CRITERIA

The act makes consideration of the criteria in 15 V.S.A. § 605 mandatory. Under prior Vermont law, based on the Uniform Marriage and Divorce Act, the custody criteria were entirely precatory. Moreover, they were so vague as to be useless for predicating relevant evidence in custody decisions. For example, in Mayer v. Mayer 144 Vt. 214 (1984) the Supreme Court held that the trial court's duty was merely to make findings revealing the basis for its decision so it could be reviewed on appeal. The court suggested no substantive criteria. All the Supreme Court attempted to do was require an explicit statement of the trial court's bias; it did not attempt to define what factor the decision should be based on. See e.g. Ohland v. Ohland, 141 Vt. 39 (1982), Korshak v. Korshak, 140 Vt. 547 (1982). Also, see Davis v. Davis, 143 Vt. 100 (1983) where the Court remanded for new findings in a custody case, but only to have the trial judge give his reasons for the decision. The cases are legion confirming the wide discretion of the trial judge. No case can be found in which the Supreme Court reviewed the trial judges' discretion based on statutory factors. That will now change.

Vermont will join such states as Washington and Montana which require the trial courts to make specific findings on each of the pertinent criteria. See e.g. Murray v. Murray, 28 Was App 187, 622 P.2d 1288 (1981); Markegard v. Markegard, Montana 616 P.2d 323 (1980). Under prior law every custody case was a plot designed by lawyers to fit the presumed individual idiosyncrasies of the trial judge. Now, evidence tailored to the best interest criteria should give every case a similar plot, and it will be analyzed in the same framework. The intent of the law is to reverse the judicial habit of making wide ranging social value choices as happened in Lafko v. Lafko, 127 Vt. 609 (1969) where Dad lost custody because he was living with a divorcee — a fact not deemed conducive to the child's moral welfare. Entirely omitted from that case and virtually every other Vermont appellate decision, is any discussion of how the facts relied on affect the child's growth. Now, decision makers will be required to focus on factors affecting the healthy physical and emotional growth of children. The touchstone of decision is to concentrate on facts allowing children to reach their own potential as autonomous adults. No parental preference is accorded the sex of the parent or the child.

A corollary to that purpose is the new evidentiary rule which prohibits the introduction of evidence of parental conduct which cannot be shown to affect the parent's relationship with the child. 15 V.S.A. § 667. Hopefully this rule will bring an end to using the court room as a place where parental character assassination is sanctioned. Thus Vermont, through a rule of evidence, joins an evolving majority rule that, parental conduct, such as sexual variation, alone, does not disqualify a parent from being awarded physical control of or substantial contact with a child, unless evidence exists that it interferes with the parent-child relationship or is detrimental to the child. See Doe v. Doe, 222 Va. 736, 284 S.E. 2d 799 (1981); Schuster v. Schuster, 90 Wash. 2d 626, 585 P.2d 130 (1978); D. H. v. J. H., 418 N.E. 2d 286 (Ind. App. 1981); Ashling v. Ashling, 42 Or. App. 47, 599 P.2d 475 (1979), DiStefano v. DiStefano, 60 A.D.2d 976, 401 N.Y.S.2d 636 (1978).

Before examining the criteria themselves, a key provision of 15 V.S.A. § 665 (a) must be emphasized, viz:

When parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent.

The provision is not intended to permit courts to repeat the disastrous California experience where the law empowered courts to order joint custody even where one parent objected. The consequences of forced joint parenting was validly described in Lumbra v. Lumbra, 136 Vt. 529 (1978). Such orders perpetuate strife, and while the limited available research indicates that continued contact with both parents is beneficial to children, research also suggests that continued interparental conflict is bad. When parents are unable to agree, and ask the court to intervene, the court must choose squarely between competing spouses and give one or the other full authority for child rearing. This thrust of Barbour, supra is also confirmed by the law.

The court does have discretion to award the parent without physical responsibility some aspects of parental rights, such as, perhaps, religious guidance; so long as the rights awarded do not interfere with the primacy of control of the other parent. Such orders, however, are subject to criteria 8 (15 V.S.A. § 665(b)(8):

(8) the ability and disposition of the parents to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided.

This criterion requires the judge to assess the ability of the parents to cooperate. Thus if religious training is a battleground which would disrupt other parenting functions, that aspect of RAR should not be divided.

ANALYSIS OF CRITERIA

The criteria for awards of rights and responsibilities expressed in 15 V.S.A. § 665(b)(1) through (8) are unique to Vermont. Some of the individual criteria are found in other state laws, but no state contains all of them. The theoretical basis for the criteria is health of the child, both physical and emotional. They rest on the assumption that the parent who provides the optimal opportunity for a child to grow up as a healthy autonomous individual should be preferred.

All the criteria will not apply in all cases. The evidence and the individual situations of the parties will dictate which criteria apply. The law orders the criteria in logical sequence, parental love, for example, is implicit in all criteria. Judicial discretion, however, will still be required to determine the weight to be given each factor in each case.

Criteria 665(b)(1) provides the court shall consider:

The relationship of the child with each parent and the ability and disposition of each parent to provide the child with love, affection and guidance.

There are two aspects to this criterion: (1) the relationship between parent and child and (2) the ability and disposition to love. The law does not specifically direct courts to consider the mental health of the parties. That aspect of personality is implicit, however, in considering the parent-child relationship and the ability to provide love, affection and guidance.

This ability and disposition is of paramount concern. It is obvious that healthy growth of children requires parental love, affection, and guidance. The statute purposely does not refer simply to love; it links together love, affection, and guidance. These words are a familiar lexicon. To give them meaning, however, we need to know about the kind and quality of their character. For example, although a parent might profess love for a child, he might use that child as a spy to report on the activities of the other spouse. Such acts would indicate a need to use the child for that spouse's own advantage to meet his needs rather than the child's. The kind and quality of love would therefore, be suspect. Professed love, without acts of affection such as actively enjoying aspects of a child's personality would not suffice. Similarly, love, without guidance is of little value in nurturing a child. Guidance implies some action to develop an ethical sense of right and wrong in a child. A simple example, perhaps, would be telling a child who strikes out in a baseball game that throwing the bat in anger is not okay, while vowing to do better next time and to control his anger is okay. The goal of this criterion is to direct the inquiry to the realities of a loving relationship. It directs the court to prefer that parent who is most able to support the child as an autonomous being by providing that love, affection, and guidance which will allow the child to develop his or her own personality.

The House version of the act included the modifier continuous prior to love, affection, and guidance. The word was deleted by conferees for fear evidence of an occasional burst of anger might disqualify a parent. The House version included the word to emphasize that intermittent expressions of love by word or deed did not reflect a healthy parental love. For example, the parent who punctuates absences with gifts and expressions of love would not demonstrate a healthy relationship. The conferees agreed the word was unnecessary because the term love itself implied an act of continuity.