McCart v. McCart

McCart v. McCart  (96-399); 166 Vt. 629; 697 A.2d 353

[Filed 5-Jun-1997]

                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-399

                         APRIL TERM, 1997


Michelle McCart (LaRoche)       }     APPEALED FROM:
                                }
                                }
     v.                         }     Franklin Family Court
                                }
Kenneth Ross McCart             }
                                }     DOCKET NO. 239-7-93 FrdmH


       In the above-entitled cause, the Clerk will enter:

       Plaintiff-mother appeals from an order of the Franklin Family Court
  modifying parental rights and responsibilities by prohibiting her from
  moving to New Mexico with the minor children.  We reverse.

       The parties were divorced in 1994 after nine years of marriage.  The
  court awarded mother sole parental rights and responsibilities of the two
  minor children, who were eight and three years old at the time of the
  modification hearing in the summer of 1996.  The parties live about seven
  miles apart in Franklin County.  Father has maintained a regular and
  frequent visitation schedule with the children since the divorce.

       In January 1996, mother informed father that she had become engaged
  and planned to move with the children that summer to New Mexico, where her
  fiancé was employed.  A few months later, father sought, in accordance with
  15 V.S.A. § 668, to modify the divorce judgment to obtain sole legal and
  physical custody of the children.  Following a hearing, the court found
  that mother's move represented a substantial and unanticipated change of
  circumstances.  As to the interests of the children, the court found the
  considerations to be closely balanced, but on the whole favored maintaining
  custody with mother.  Although, as the court observed, the loss of frequent
  contact with father would "have a substantial, adverse impact on the
  children . . . [they] would suffer even more of a loss if they were taken
  from [mother's] care and placed with [father] since she has been their
  primary caregiver."

       Balanced against these concerns, the court weighed mother's reason for
  the move -- to be with her fiancé in New Mexico -- and found it to be
  "trivial compared to the substantial loss the children will suffer as a
  result of their ongoing separation from [father.]"  Based on these
  findings, the court concluded that mother should be prohibited from moving
  to New Mexico with the children, and entered an order accordingly.

       The court's order prohibiting mother's move was improper under Lane v.
  Schenck, 158 Vt. 489, 614 A.2d 786 (1992).  There, we held that the court
  may not substitute its judgment for that of the custodial parent with
  respect to the wisdom of a decision to relocate.  Rather,

     [t]he proper inquiry was for the court to determine the appropriate
     custodial parent in light of the change in circumstance -- the move to a
     distant location. If the court concludes that the best interests of the
     children would be better served by continuing to live with the custodial
     parent in the new location rather than with the non-custodial parent in
     Vermont, the motion to modify must be denied.

 

  Id. at 497-98, 614 A.2d  at 790-91.  Conversely, if the court determines
  that the move would prove more detrimental to the children, then a change
  of custody is warranted.

       These were the choices available to the family court; disallowing the
  move was not a permissible disposition.  However much one may sympathize
  with the court's desire to maintain the family unit, it could not
  substitute its judgment for that of the custodial parent.  See id. at 499,
  614 A.2d  at 791 ("While the policy promoting visitation must be considered,
  concerns relating to it must not overshadow the proper role of the
  custodial parent.").  Having found, on balance, that the children's best
  interests lay with maintaining custody in mother, the court abused its
  discretion in prohibiting the move rather than denying the motion.  Of
  course, the court remains free on remand to modify the visitation or child
  support schedules to accommodate any additional costs or burdens occasioned
  by mother's relocation to New Mexico.

       Reversed and remanded for further proceedings consistent with
  this opinion.


                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice