deBeaumont v. Goodrich

Annotate this Case

DEBEAUMONT_V_GOODRICH.92-586; 162 Vt. 91; 644 A.2d 843

[Opinion Filed May 27, 1994]

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 92-586

Gail (Goodrich) deBeaumont Supreme Court

On Appeal from
v. Orange Family Court

Mark D. Goodrich September Term, 1993

Shireen Avis Fisher, J.

Norman R. Blais, Burlington, for plaintiff-appellant

Peter F. Welch of Welch Graham & Manby, White River Junction, for
defendant-appellee

Charlene R. Bohl, Chelsea, for children

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

DOOLEY, J. This is an appeal taken by plaintiff-mother Gail
deBeaumont from a modification order of the Orange Family Court that shifted
parental rights and responsibilities of the parties' children from Ms.
deBeaumont to the defendant-father, Mark Goodrich. We affirm.
The parties were married for eight years before separating in 1990 and
divorcing in August 1991. They had two children during their years
together: Stephen, born in December 1985, and Molly, born in May 1988.
Prior to separation, the mother provided care during the day for the
children while the father worked, and both parents shared caregiving
responsibilities during evening and weekend hours. After the separation,
the mother returned to culinary school and worked periodically, with the

parties splitting care. The children also continued to visit their paternal
grandparents two to three times a week as they had been doing since birth.
Upon divorce, the mother was granted sole legal and physical
responsibility for the children. The father was granted parent-child
contact that allowed him to have the children for three days each week.
This arrangement permitted continuation of the parties' practice of co-
parenting. As part of the final decree, the court included a paragraph
drafted by the parties stating: "If either party moves more than fifty (50)
miles from their current homes in Thetford and Norwich, it shall constitute
a change in circumstances so the Court may reconsider existing parental
responsibilities and visitation."
On January 25, 1992, the mother chose to leave her home in Thetford and
move to Milford, Pennsylvania, to join her companion, John Diefenbach. She
consulted her attorney before doing so and was told that a move with the
children would lead only to a reopening of parental-child contact issues,
not a redetermination of all parental rights and responsibilities matters.
Thereafter, the mother picked the children up from the father's home, and
informed him for the first time that she and the children were leaving the
state. She had not told the children they were moving to Pennsylvania, nor
did she tell her son's school that she was taking him out of state. The
mother refused to give the father the children's mail address or telephone
number for a week after the move and continued to refuse to give him her
street address.
In response to a February 5 order of the family court, the children
were returned to Vermont in early March. On March 25, the family court
awarded the father temporary parental rights and responsibilities and gave
the mother parent-child contact every weekend and Easter vacation. For

purposes of assessing parental care, the court required a family evaluation.
This evaluation was performed in May by Dr. Donald Hillman, who found that
the children did not perceive either parent as the primary caretaker;
rather, they considered both equally caring and committed. On August 24,
1992, the family court modified its earlier order and granted sole legal and
physical responsibility to the father, subject to parent-child contact with
the mother.
On appeal, the mother argues that the family court's decision to modify
should be reversed because the court's findings were insufficient to warrant
the modification, that the modification violated the teachings of Lane v.
Schenck, 158 Vt. 489, 614 A.2d 786 (1992), and that it was error for the
court to adopt many of the findings of the family evaluator but reach a
conclusion contrary to the evaluator's recommendation.
In order to modify a custody determination, a moving party must
traverse two hurdles. First, the moving party must make "a showing of real,
substantial and unanticipated change of circumstances." 15 V.S.A. { 668.
Once that threshold is met, the moving party must then show that annulling,
varying or modifying a prior parental rights and responsibilities
determination is in the best interests of the child.(FN1) Id.; see Kilduff v.
Willey, 150 Vt. 552, 553, 554 A.2d 677, 678 (1988) (only if court finds
substantial change of circumstances may it consider best interests of
child).

In this case, the father argued that his burden to overcome the first
hurdle was met by a provision of the divorce order, based on a stipulation
of the parties, concerning the impact of either parent moving more than
fifty miles from their respective homes in Vermont. The provision stated
specifically that such a move "shall constitute a change in circumstances so
the [family] Court may reconsider existing parental responsibilities and
visitation." We agree that the provision provided the family court with a
reasonable basis to find changed circumstances.
There is no specific statutory authority for the divorce order to
define changed circumstances for purposes of a future modification; nor have
we considered such a provision. Without deciding whether such provisions
will always be effective, we conclude that this provision was effective in
this case for two main reasons.(FN2) First, it was based on a stipulation of
the parties. The Legislature has provided that an agreement between parents
concerning the division or sharing of parental rights and responsibilities
is presumed to be in the best interests of the children. See 15 V.S.A. {
666. The changed circumstances provision was part of such an agreement and
is entitled to that presumption. There is no reason to overcome such a
presumption in this case.
Second, the provision established a reasonable benchmark to determine
changed circumstances. Although physical responsibility for the children
was awarded in the divorce decree to the mother, the time allocation for

each parent was nearly equal so that a co-parenting arrangement was
present.(FN3) Through the stipulation, the parties specified the limit to which
their residences could be separated and still make the co-parenting
relationship work. They agreed that if the distance limits were exceeded,
the arrangement would break down so it would be necessary to reconsider the
custody and visitation provisions in the divorce order. The specific
distance standard enabled the parents to plan their lives with a clear
understanding of the expectation of the other and the possible consequences
of a decision to relocate.
In reaching the conclusion that the provision provided a basis to
determine changed circumstances, we want to distinguish the provision from
one that would automatically change custody because of a relocation by the
physical custodian. We would not give effect to an "automatic change"
provision "because it is premised on a mere speculation of what the best
interests of the children may be at a future date." Hovater v. Hovater, 577 So. 2d 461, 463 (Ala. Ct. Civ. App. 1990); see also Wilson v. Wilson, 408 S.E.2d 576, 579 (Va. Ct. App. 1991) ("predetermined" change of custody based
on future move is an abuse of discretion). Here, the provision dealt only
with the threshold; any changed custody had to be based on an independent
assessment of the best interests of the children.
The mother argues that even if the provision is valid, it does not
authorize a change of physical responsibility, as opposed to a change in
visitation. The language of the provision covers both "visitation" and
"parental responsibilities." Compare Dunning v. Meany, 4 Vt. L.W. 351, 352-

53 (Nov. 5, 1993) (agreement that change in circumstances could necessitate
change to "the visitation schedule" was not applicable to modification of
parental rights and responsibilities). The changed circumstances
determination applied to custody as well as visitation.
Even if there had not been a provision in the divorce order, we would
uphold the family court's conclusion that the mother's move of the children
from Thetford to Milford, Pennsylvania, was a real, substantial and
unanticipated change of circumstances. There are no fixed standards for
determining what meets this threshold. Kilduff, 150 Vt. at 553, 554 A.2d at
678. We have emphasized, however, that in order to ensure stability in the
lives of the children, the burden of showing changed circumstances is
"heavy." Id. Although relocation "often triggers jurisdiction under the
modification statute," Lane, 158 Vt. at 496, 614 A.2d at 790, the physical
custodian has a right to determine the child's residence, and relocation
without more is not per se a substantial change of circumstances. See
Lenders v. Durham, 564 So. 2d 1186, 1188 (Fla. Dist. Ct. App. 1990); Smith
v. Mobley, 561 N.E.2d 504, 506 (Ind. Ct. App. 1990); Vanname v. Vanname, 419 S.E.2d 373, 374-75 (S.C. Ct. App. 1992). Any relocation will, as a matter
of course, involve disruption and change in children's lives, but a court
must not confuse its analysis of changed circumstances with its
determination of the children's best interests. Rather, "'[w]hether or not
any given change is substantial must be determined in the context of the
surrounding circumstances.'" Smith, 561 N.E.2d at 507 (quoting Poret v.
Martin, 434 N.E.2d 885, 890 (Ind. 1982)). Further, "it is the effect upon
the child which renders a change substantial." Ohman v. Ohman, 557 N.E.2d 694, 696 (Ind. Ct. App. 1990).

We also emphasize that the "threshold decision for a motion to modify
is discretionary," Lane, 158 Vt. at 494, 614 A.2d at 788, just as the
initial parental rights determination is within the court's discretion, see
Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988). As a result,
whether an initial determination or a modification, this Court "must affirm
unless the discretion [was] 'erroneously exercised, or was exercised upon
unfounded considerations or to an extent clearly unreasonable in light of
the evidence.'" Id. (quoting Jensen v. Jensen, 141 Vt. 580, 581-82, 450 A.2d 1155, 1156 (1982)).
We upheld a trial court's determination of changed circumstances in
Lane when the mother proposed to move to Iowa with the three minor children
to attend graduate school. 158 Vt. at 494, 614 A.2d at 788. In that case,
the father was entitled to visitation during alternate weekends and
holidays. The change in circumstances is even more substantial here.
Although the distance was greater in Lane, the distance is great enough in
this case to prevent extensive visitation. Here, the mother unilaterally
terminated the parties' co-parenting arrangement by removing the children to
Pennsylvania. In so doing, she deprived the children of day-to-day contact
with their father and with their paternal grandparents, subverting, as the
trial court found, "[t]he financial, education, housing, and co-parenting
plans agreed upon by the parties [which] had as a central element that [the
mother] would be residing in the marital home in Thetford and that [the
father] would be living in close proximity to her." Additionally, the son
changed schools, leaving a school in which he was a recognized leader, and
both children left a supportive community, which included their father's
church community. The move triggered a breakdown in communication, and the
father was unable to contact the children at all in the first few weeks.

See Day v. LeBlanc, 610 So. 2d 42, 45 (Fla. Dist. Ct. App. 1992) (A move may
constitute a substantial change of circumstances if the distance is far and
the visitation of the other parent will be subject to significant
interference as a result). There was no abuse of discretion in finding
changed circumstances.
Having met the initial hurdle of showing real, substantial and
unanticipated changed circumstances, a parent moving for modification of
custody still faces the burden of showing that a change in parental
responsibilities is in the children's best interest. 15 V.S.A. { 668. As we
discussed at length in Lane, a finding of changed circumstances does not
alone mean that custody should be modified. See 158 Vt. at 496, 614 A.2d at
790. The residency decision of the custodial parent is entitled to
deference and "giving stability to a child's life, to the extent possible
under the circumstances, is so important that custody ought not to be
modified without critical justification." Kilduff, 150 Vt. at 553, 554 A.2d
at 678-79.
The trial court made extensive findings in support of its decision that
it was in the best interest of the children to shift legal and physical
responsibility to the father. We can summarize only the highlights of these
findings. The most important finding was that prior to the mother's move
neither parent was more "primary" than the other and that both were fit
parents. The court found both parents to be dedicated, caring, sensitive,
conscientious, moral and effective; and both have strong and natural bonds
with the children. The children desired to stay together.
In favor of the father, the court found that he was content in a good
job and has a steady disposition with the children. Custody with the father
allowed the children to remain in a community, and in the case of the son a

school, in which they had done well. It also allowed continuing contact
with the parental grandparents, who had become very important in the lives
of the children. The father was more likely to foster a good relationship
between the children and the mother than vice versa.
The court emphasized the strong parenting skills of the mother and
found that she has greater insight into her emotional problems than the
father so that she "can provide emotional richness and variety to her
children's lives in a way that [the father] cannot." It found, however,
that the move to Pennsylvania was made solely for the convenience of her
companion and was not done in a way to allow an orderly transition for the
children. Overall, it found that the mother "has had difficulty gaining her
own direction since the separation, which has led to a fairly high degree of
instability in her life." It was concerned that the mother had allowed the
companion to use corporal punishment on the children, although the mother
was opposed to such punishment. The move weakened the mother's financial
circumstances because she gave up a mortgage subsidy on her home in Thetford
in order to move into an apartment costing $500 more per month although she
earned only $5.25 per hour. The court found she was less willing than the
father to foster cooperation and a positive relationship with the other
parent.
Each parent exhibited some behavior which the court labeled as a risk
factor. In each case, the court found that the behavior was not displayed
before the children and thus did not affect the custody determination.
The mother faults the custody determination in three respects: (1) it
is inconsistent with the decision in Nickerson v. Nickerson, 158 Vt. 85, 605 A.2d 1331 (1992) because it gives inadequate weight to her role as primary
caregiver; (2) it is inconsistent with the standard for changing custody

announced in Lane; and (3) it improperly deviates from the recommendation of
the family evaluator. We take these claims in order.
The mother first argues that Nickerson and Harris v. Harris, 149 Vt.
410, 546 A.2d 208 (1988) direct the family court to determine who was the
primary caregiver in the pre-separation period, and to award custody to that
person unless he or she is unfit. She argues that she was the primary
caregiver both before and after the parties' separation.
The language on which the mother relies is in Harris:
We do agree, however, that this factor should be
entitled to great weight unless the primary custodian is
unfit. The exact weight cannot be determined unless
there is evidence of the likely effect of the change of
custodian on the child. In the absence of such
evidence, the court should ordinarily find that the
child should remain with the primary custodian if that
parent is fit.

Id. at 418-19, 546 A.2d at 214 (footnote omitted). She interprets Nickerson
to hold that the period for determining the primary custodian is prior to
the separation.
For three reasons, this argument is unavailing. First, the Harris and
Nickerson decisions involve determining the physical custodian in the
initial divorce decree. The question of who is the primary caregiver prior
to separation, even assuming it can ever have the overwhelming weight the
mother desires, cannot determine who should have physical responsibility in
a modification decision. The whole point of the modification process is
that changed circumstances may have made the initial decision inappropriate,
so a reexamination of the interests of the children is warranted. See 15
V.S.A. { 668. To give special weight to the pre-separation, pre-divorce
caregiver would make modification unlikely even if circumstances had changed
and the interests of the child clearly warranted modification. In short, it
would introduce a factor irrelevant to those in the statute.

Moreover, the argument misreads Nickerson. In Nickerson, we
specifically avoided a per se rule, "declin[ing] to follow the unyielding
approach of some courts which bifurcate the pre- and post-separation periods
in determining the primary-care-provider." 158 Vt. at 90, 605 A.2d at 1334.
Rather, we held that a court's "inquiry should focus on all relevant periods
of the child's life." Id. at 91, 605 A.2d at 1334. For purposes of a
modification motion, of course, the most relevant period is that between the
divorce and the filing of the motion to modify.
Second, the trial court specifically found that neither parent was the
primary caregiver in the post-divorce period. The specific finding of the
court was "neither [parent] is more 'primary' than the other, either by
virtue of the quality of the care each provides or the amount of time each
has spent providing it." Although the mother disagrees with this finding,
it is supported by the evidence and is not clearly erroneous. The finding
defeats her argument that the decision is inconsistent with Harris and
Nickerson.
Third, Harris specifically decided that the weight to be given to
primary caregiving is to be determined in light of the "effect of the change
of custodian on the child." Harris, 149 Vt. at 419, 546 A.2d at 214. Only
when there is no evidence of that effect should the court ordinarily find
that the child must remain with the primary caregiver if fit. Here, there
was extensive evidence of the effect of change in the lives of the children,
including the effect of a change of primary custodian to the father. The
court's decision analyzed the impact of change at length. The Harris
analysis of the decision-making process in the absence of such evidence and
consideration does not apply here.

The mother's next argument is that the trial court's decision is
inconsistent with Lane. She stresses the standard Lane announced to modify
custody because of a relocation: "To prevail, the noncustodial parent must
prove that the children's best interests would be so undermined by a
relocation with the custodial parent that a transfer of custody is
necessary." Lane, 158 Vt. at 499, 614 A.2d at 792. She argues that the
findings the court made in support of the modification would be true in any
relocation case: the children would be removed from their former friends and
classmates, it would be more difficult for the noncustodial parent to visit
with the children, and there would be less contact with the parental
grandparents. She emphasizes that Lane holds that she is entitled to
determine the place of residence of the children, and the court may not
second guess that determination. Id. at 495-96, 614 A.2d at 789-90.
Therefore, she argues, custody cannot be modified because she exercised her
right to determine the residence of the children, and the normal
consequences of that decision ensued.
This case arises in a context different from that in Lane, and that
difference is critical to the application of Lane. In Lane, the court did
not modify physical responsibility. It modified the divorce order to impose
a condition that the mother not reside more than a four-hour drive from the
father's residence. In essence, this order was no more than a "you may not
move" order, and we rejected the court's failure "to show sufficient
deference to the mother's decision to relocate." Id. at 491, 614 A.2d at
787. Specifically, we refused to "condone a process that substitute[d] the
judgment of a court for that of the custodial parent merely because the
court would have done something different if it had been the parent." Id.
at 495, 614 A.2d at 789.

The mother is arguing here that Lane, although not directly about
modification of custody, imposes a special standard for such modification in
relocation cases. We disagree.(FN4) The modification statute imposes only one
standard: whether modification "is in the best interests of the child." 15
V.S.A. { 668. As discussed above, because of the value of stability in a
child's life, we impose a heavy burden on a non-custodial parent to show
that the best interests of the child have so changed that the extraordinary
step of custodial change is warranted. That burden is neither greater nor
different in custodial-parent relocation cases.
Contrary to the mother's argument, four factors differentiate this case
from the ordinary consequences of relocation and underlie the court's
modification order. The most important is the co-parenting relationship,
which meant both that the loss to the children from the relocation was very
great and that the father was prepared to assume the responsibilities of
custody with little modification of his life.
Second, the father's parents played an unusually strong role in the
lives of the children. The family evaluator found:
[The grandparents] appear to have been a strong source
of nurturance and support over the years. They appear
firmly and positively bonded with the children,
connections equally experienced by the children. They
(and their rural setting) seem to have been a source of
stability for the children.

The court adopted this finding. The relocation necessarily reduced the
value of this resource to the children. The change of custody restored it
in part.
Third, the manner in which the mother relocated was not in the best
interest of the children since she did not prepare them for the move, and it
unnecessarily interrupted their relationship with the father.
Fourth, the mother's actions since the divorce, and the reasons and
consequences of the relocation, pointed to continuing instability in the
lives of the children, as well as financial hardship. The father's life
promised greater stability. See Kilduff, 150 Vt. at 554, 554 A.2d at 679
("It is hard enough to give children of a broken home some semblance of an
ordered life, while at the same time maintaining adequate contact with both
parents, without subjecting them to the further disruption of moving to a
new home . . . ."); Wells, 150 Vt. at 5 n.*, 549 A.2d at 1042 n.*
(importance of stability in lives of children of divorced parents widely
recognized).
The trial court has broad discretion in a custody matter; we cannot set
aside its decision "because we would have reached a different conclusion
from the facts." Myott, 149 Vt. at 578, 547 A.2d at 1339. The court made
an extensive review of the custody factors set out in { 665(b) in
evaluating the best interests of the children. It acknowledged the heavy
burden on the noncustodial parent and required him to meet it. It
emphasized the considerations other courts have used to order a change of
custody in relocation cases. See, e.g. Smith, 561 N.E.2d at 507 (change of
custody promoted stability in schooling, community, social, church and
family relationships); Schubring v. Schubring, 476 N.W.2d 434, 436 (Mich.
Ct. App. 1991) (stability and success in school); KR(S)D v. CDS, 646 S.W.2d 428, 431 (Mo. Ct. App. 1983) (family ties and support for visitation by
noncustodial parent); McMahon v. McMahon, 607 A.2d 696, 702 (N.J. Super. Ct.
1991) (co-parenting); Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990)
(close relationship between noncustodial parent and children). We do not
agree with the dissent that the petition to modify should have been
dismissed as a matter of law because no view of the evidence could support
modification. We find no abuse of discretion. See Dunning, 4 Vt. L.W. at
352 (as long as findings reasonably support judgment, family court's
decision must be upheld).
Finally, the mother argues that the court was in error for adopting
findings of the family evaluator, Dr. Hillman, but making a modification
ruling contrary to his recommendations. In fact, Dr. Hillman's main
recommendation was that the parties attempt to reach a joint custody
arrangement for the sake of the children. After discussing the benefits of
a mediated custody agreement, Dr. Hillman stated that "[w]ith John
[Diefenbach]'s support and involvement, together with individual counseling,
[the mother] would seem to be in a slightly better position to be the parent
with primary physical custody, if that has to be the case." After citing
positive reasons for placing the children with the mother, such as her
greater comfort with and knowledge of younger children than the father
displayed, Dr. Hillman cited certain negative aspects of the mother's
personality, such as the mother's dependency needs and insecurity that she
was likely to project on to the children and the father. Dr. Hillman did
note that the negative factors were actually a reason to keep the children
with the mother, on the theory that losing physical responsibility would
exaggerate the negative factors, and particularly the mother's inclination

to charge the father with sexual abuse, charges which she had made in the
past and had proved to be unfounded.
The court may disregard the recommendations of the expert. See
Bissonette v. Gambrel, 152 Vt. 67, 71, 564 A.2d 600, 602 (1989). The
findings make clear that the court did not see the mother's companion as a
resource to make her the better custodian. Indeed, the court specifically
rejected consideration of the companion as a resource because he had "no
legal obligation, family tie or emotional bond to the children." It also
rejected that it should determine custody based on the mother's reaction to
a loss of custody. In fact, the court found that the mother's stress over
the divorce and separation from her children was a negative factor to be
weighed against the father's ability to provide a stable home life and
continuity in relations with the other parent. The court adopted many of
the findings of the family evaluator, and considered his recommendation, but
the ultimate responsibility to decide lies on the court, not the expert
witness. There is no error in the use of the expert opinion.
Affirmed.

FOR THE COURT:

_____________________________
Associate Justice

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Footnotes

FN1. The concurring opinion urges that we collapse these two deter-
minations into one in parental relocation cases. The two-step analysis is
statutorily required and has no exception for relocation cases. However
desirable may be the approach of the concurrence, we conclude it would
require a legislative amendment to implement.

FN2. The issue is not, as the dissent argues, whether an agreement of the
parties would be valid to confer jurisdiction on the court. This agreement
is embodied in a court order and it is the order, not the agreement, we
uphold. Moreover, the effect of the order was not to create grounds for
modification where none existed. Instead, it was to specify the
expectations of the parties with respect to their living arrangements at the
time of the divorce. Such expectations represent the baseline for
determining when changes are anticipated and are real and substantial.

FN3. The characterization of the actual contact situation as a "co-
parenting arrangement" was adopted from the evidence by the family court
and, as a finding of fact that is not clearly erroneous, is controlling on
this Court.

FN4. Both the concurring and dissenting opinions appear to accept this
argument in part. If we understand their position, even if a change of
custodian is found to be in the best interest of the children, the change
should be denied in order to defer to the parent's relocation decision.
Nothing in Lane or the statute, 15 V.S.A. { 668, says this. Nor is it
justified by an attempt to shift the focus from the interest of the children
to whether the mother is "labeled a wrongdoer." The policies developed in
Lane are fully realized in the traditional two-step analysis for considering
modification of custody awards.

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Concurring

No. 92-586

Gail (Goodrich) deBeaumont Supreme Court

On Appeal from
v. Orange Family Court

Mark D. Goodrich September Term, 1993

Shireen Avis Fisher, J.

Norman R. Blais, Burlington, for plaintiff-appellant

Peter F. Welch of Welch Graham & Manby, White River Junction, for
defendant-appellee

Charlene R. Bohl, Chelsea, for children

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J., concurring. I concur in the Court's result but for a
different reason. I suspect that a modification-of-custody proceeding is
made more confusing given the two-prong test so often enunciated in the case
law. The rubric of bifurcation surrounding the "modification" process is
illusive generally and even more so in a case like this. The Court's
twists and turns through it today does not help resolution of the dispute.
It would be preferable to decide a motion to modify by merging the
jurisdictional "threshold hurdle" of Kilduff v. Willey, 150 Vt. 552, 553,
554 A.2d 677, 678 (1988), with the best interest test. After all, it is
impossible to evaluate "real, substantial and unanticipated change of

circumstances" without considering how the events and circumstances impact
on the child's best interests.
That observation made, I depart from the Court's point of view and
focus rather on the trial court's analysis, with which I agree. If the
mother here had been the unconditional legal custodian (the parent with sole
legal rights and responsibilities), Lane v. Schenck, 158 Vt. 489, 614 A.2d 786 (1992), would control. The mother's decision to move with the children
to Pennsylvania would be entitled to deference and, even though the mother's
reason for the move was exceedingly weak, her decision to move might have
been -- as the dissent so persuasively argues -- protected under the
standard announced in Lane.
In this appeal, however, we are not dealing with the usual sole custody
situation. Mother's custody was conditioned by a stipulation:
If either party moves more than fifty (50) miles from
their current homes in Thetford and Norwich, it shall
constitute a change in circumstances so that the Court
may reconsider existing parental responsibilities and
visitation.

The trial court stated:
The financial, education, housing, and co-parenting
plans agreed upon by the parties all had as a central
element that Ms. DeBeaumont would be residing in the
marital home in Thetford and that Mr. Goodrich would be
living in close proximity to her.

The trial court held:
In this case, Ms. DeBeaumont [had], by the Court's
order, sole parental rights and responsibilities.
However, in reality the parties had shared parental
rights and responsibilities since the separation . . . .

It was the parenting arrangement that gave the
children's lives stability, not the designation of one
as having sole parental rights and responsibilities.

(Emphasis added).

In essence, then, the mother's move reopened the custody question as if
it were governed by the usual considerations in awarding custody and was not
governed by the more rigorous standard demanded in Lane.

______________________________
Associate Justice
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Dissenting

No. 92-586

Gail (Goodrich) deBeaumont Supreme Court

On Appeal from
v. Orange Family Court

Mark D. Goodrich September Term, 1993

Shireen Avis Fisher, J.

Norman R. Blais, Burlington, for plaintiff-appellant

Peter F. Welch of Welch Graham & Manby, White River Junction, for
defendant-appellee

Charlene R. Bohl, Chelsea, for children

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

Johnson, J., dissenting. Today the Court decrees that a divorced
parent with sole physical and legal rights and responsibilities for two
young children may not exercise her judgment to relocate with the children
to another state. The penalty for exercising her discretion, which the
Court upholds, is loss of custody of her children. Because this decision is
directly contrary to our recent holding in Lane v. Schenck, 158 Vt. 489, 614 A.2d 786 (1992), to the explicit statutory meaning of a custodial parent's
rights and responsibilities, and to common sense and sound public policy, I
must dissent.

I.
Just two years ago, we reversed and remanded a trial court's decision
on a petition to modify custody for failure to show "sufficient deference to
the [custodial] mother's decision to relocate." Lane, 158 Vt. at 491, 614 A.2d at 787. In Lane, the father moved to modify custody when the mother
announced her intent to attend law school in Iowa. Because the mother
stated that custody was her first priority, the trial court did not modify
custody. Instead, opining that the mother could just as well attend law
school closer to home, the court conditioned the mother's right to retain
custody on her remaining within a certain distance of the father's home.
The order essentially enforced the status quo to preserve the father's
visitation schedule. The court's rationale rested on its conclusion that it
was not in the best interests of the children to move to Iowa because of the
adjustment demands of a new community, the mother's busy schedule and what
the trial court viewed as a deteriorating relationship between the children
and their father.
Despite our own well-established appellate standard of review, that we
will not substitute our own judgment for that of the trial court on custody
and modifications of custody, Myott v. Myott, 149 Vt. 573, 578, 547 A.2d 1336, 1339 (1988), we reversed because we could not "condone a process that
substitutes the judgment of a court for that of the custodial parent merely
because the court would have done something different if it had been the
parent," Lane, 158 Vt. at 495, 614 A.2d at 789. In other words, when a
parent has sole physical and legal rights and responsibilities, Lane teaches
that it is the custodial parent who is entrusted to make decisions regarding
where the family will live. Lane was supported by the Legislature's

determination that a parent's rights and responsibilities include those
"related to a child's physical living arrangements, parent child contact,
education, medical and dental care, religion, travel, and any other matter
involving a child's welfare and upbringing." 15 V.S.A. { 664(1). See
Bancroft v. Bancroft, 154 Vt. 442, 448, 578 A.2d 114, 118 (1990) (when
custody is not joint, "it is in the children's best interest for one parent
to have ultimate responsibility for directing their lives").
The Lane decision expressed sound reasons for deference to the
custodial parent's decision to move. It obviates reconsideration of the
custody issue, it maintains the children in the family unit to which they
have belonged since custody was initially decided, it minimizes judicial
interference with family decisions, and it places the decision with the
person best able to consider the child's needs -- the custodial parent.
Lane, 158 Vt. at 495, 614 A.2d at 789.
As we recognized in Lane,
[a]fter dissolution of a marriage, a new family unit, consisting
of the custodial parent and children, is created. Allowing the
new family to flourish is in itself conducive to the best
interests of the children involved. . . . An appraisal of the
custodian's decision to relocate should take into account both the
family's needs in the short term and the family's benefit in the
more distant future.

Id. at 498, 614 A.2d at 791 (citations omitted). Thus, preserving the
location of the family in the name of stability should not necessarily be
the ultimate goal of the family court.
In view of the interests that are implicated, and the fact that a
change in custody, not location, involves a "violent dislocation," Kilduff
v. Willey, 150 Vt. 552, 555, 554 A.2d 677, 680 (1988), the Lane standard for
modifying custody when the custodial parent is relocating is high. "[T]he

noncustodial parent must prove that the children's best interests would be
so undermined by a relocation with the custodial parent that a transfer of
custody is necessary." Lane, 158 Vt. at 499, 614 A.2d at 792. It is true,
as the majority emphasizes, that the best interests of the children is the
overriding standard in custody decisions, but the majority fails to
recognize that Lane was intended to provide guidance for consideration of
the best interests of children in relocation circumstances, and that a best
interests determination should not be grounded on the disruption inherent in
any relocation. Today's decision trivializes Lane, rejects the sound
public policy on which it was based, and provides zero predictability to
litigants and lawyers about what to expect from the family court if
custodial parents want to make new lives for themselves in a location other
than that of the marriage.
Here, the majority uses the abuse of discretion standard to uphold
exactly the kind of family court interference with lifestyle decisions that
we condemned in Lane as an abuse of discretion. Although the majority
gives lip service to the significant burden that a parent moving for
modification of custody must meet, in fact, no burden was imposed at all.
Rather, the mother was impliedly labeled a wrongdoer because relocating
meant she was abandoning a "co-parenting agreement." The majority then
upholds the view of the family court that because co-parenting was in the
best interests of the children, the mother's actions in withdrawing from
that arrangement were, per se, not in their best interests. Thus, it was
the custodial parent who was required to justify her retention of custody,
while the non-custodial parent was required to do no more than show that
moving to another state would be disruptive to the children's lives.

II.
Today's decision cannot be justified on the ground that the mother
waived her right to contest whether there was a substantial change in
circumstances by entering into a final divorce order containing the
following provision:
If either party moves more than fifty (50) miles from
their current homes in Thetford and Norwich, it shall
constitute a change in circumstances so the Court may
reconsider existing parental responsibilities and
visitation.

(Emphasis added.) This provision appears in what the majority
characterizes as a "co-parenting agreement," which is merely a partial final
order that was apparently based on a stipulation of the parties. It quite
clearly awards physical and legal responsibilities, or custody, to the
mother, and parent-child contact, or visitation, to the father. It sets
forth the visitation schedule, which permitted visitation with the father
from Wednesday evening to Saturday evening on alternate weeks, and Thursday
evening to Sunday evening on the remaining weeks. But there is no language
in the order that discusses "co-parenting" at all, and certainly not in the
sense that the mother's custodial rights were to be diminished by the fact
that the father would have visitation three days per week. In short, it was
not a joint custody arrangement.
It is simply not fair to imply a waiver of the mother's custodial
rights on the language of this provision. First, the language is poorly
drafted and does not indicate clearly that custodial rights will be
implicated if a move is made. Indeed, the mother sought legal advice as to
the meaning of the provision before she made the move and was told that
visitation only would be reconsidered. Second, as reflected in the legal

advice, the order incorporated two inconsistent concepts -- one is that the
mother is the custodial parent with all those areas of discretion ordinarily
accorded to custodial parents by the statutes, including the right to choose
the residence of the family -- and the other is that the mother's custodial
rights with respect to choice of residence are waived. Waiver should not be
implied lightly, especially in view of the interests at stake here. Eastman
v. Pelletier, 114 Vt. 419, 423, 47 A.2d 298, 301 (1946) ("A waiver is the
intentional relinquishment of a known right, and since it involves both
knowledge and intent, and its essence is a voluntary choice the party must
have acted with a knowledge of all the material facts affecting his [or her]
rights.").
Moreover, by allowing parties to define "real, substantial and
unanticipated change of circumstances," the majority is taking what is
essentially the unprecedented step of allowing litigants to confer subject
matter jurisdiction on a court.(FN1) The family court is empowered to modify a
custody order only "upon a showing of real, substantial and unanticipated
change of circumstances." 15 V.S.A. { 668. The majority alters this test
for modification by (1) concluding that any such provision has a statutory
presumption of validity pursuant to 15 V.S.A. { 666, and (2) applying a
"reasonable benchmark" test to determine the validity of the provision. The
presumption is not supported by 15 V.S.A. { 666, which creates a "best
interests" presumption for parental agreements regarding rights and

responsibilities in the first instance -- when the parties are divorcing --
and does not apply to the circumstances of modification. Nonetheless, under
the majority's scheme, the presumption lowers the statutory threshold
showing of "real, substantial and unanticipated change of circumstances" by
allowing the parties to select a definition and then requiring the family
court to uphold the definition if it is "reasonable." Thus the test
collapses the two-tier inquiry of changed circumstances and best interests
that 15 V.S.A. { 668 mandates.
The existence of a "real, substantial and unanticipated change of
circumstances," however, is a jurisdictional prerequisite to consideration
of the merits of a modification petition. Kilduff v. Willey, 150 Vt. at
553, 554 A.2d at 678 (such a finding is "a critical threshold finding,
without which the court is precluded from considering the 'merits of the
parties' claims' regarding the best interest of their child" (quoting Haynes
v. Haynes, 144 Vt. 332, 335, 476 A.2d 135, 137-38 (1984))); see also
McCormick v. McCormick, 150 Vt. 431, 436, 553 A.2d 1098, 1101 (1988) (under
15 V.S.A. { 661(e) (current version at 15 V.S.A. { 660), which permits
modification of a child support order only upon the same showing required
for modification of a custody order -- "real, substantial and unanticipated
change of circumstances" -- "[t]he presence of a change in circumstances is
a jurisdictional prerequisite to consideration of a petition to modify").
And it is axiomatic that "[j]urisdiction over the subject matter of a suit
cannot be conferred by agreement or consent of the parties when it is not
given in law." Suitor v. Suitor, 137 Vt. 110, 111, 400 A.2d 999, 1000
(1979) (emphasis added). The majority abandons this longstanding principle

even though doing so was unnecessary in light of its conclusion that even
without consideration of the stipulation, father had met his burden.
This dicta, if followed, has several egregious implications in the
child custody field. First, it undermines the very purpose for the high
jurisdictional threshold for modification -- to give "stability to a child's
life." Kilduff, 150 Vt. at 553, 554 A.2d at 678. Second, it creates the
anomalous result that parties can stipulate to the existence of changed
circumstances but cannot stipulate to their absence. See White v. White,
141 Vt. 499, 503, 450 A.2d 1108, 1110 (1982) (parties may not bargain away
court's authority to modify child support order). Third, this potential
recognition of stipulations to changed circumstances injects a new
bargaining chip to be used as leverage in divorce and custody negotiations.
Finally, such provisions, even if written in language that applies to both
parents, as here, are not mutually enforceable. Instead, the noncustodial
parent is free to move beyond the mileage limit specified to seek better or
different opportunities without the custodial parent's consent and
regardless of the impact on the child. Meanwhile, the custodial parent has
to restrict the family's movement to enable the noncustodial parent to
exercise parental rights or risk losing custody. For all of these reasons,
the court deciding a modification petition should make an independent
evaluation of whether the moving party has established a real, substantial
and unanticipated change of circumstances before reaching the merits of the
modification petition. Absent such a change, the modification court should
not reach the question of whether a change of custodian is in the best
interest of the children.

III.
Assuming that father met the threshold showing for reconsideration of
custody, he still had to meet the Lane standard for modification -- whether
the relocation so undermined the best interests of the children that a
transfer of custody was necessary. I would hold that it was an abuse of
discretion to conclude that father met his burden.
It is abundantly clear from the family court's findings and conclusions
of law that, despite individual deficiencies, the mother and the father are
both fit parents. What qualities each may lack as a parent are filled by
the strengths of the other. All things being equal, this made the custody
decision a difficult one. Unfortunately, it also tended to overemphasize as
wholly negative all of the disruptions associated with relocating the
family away from one of the parents. But there is nothing in this record to
suggest that the children would not be safe and well cared for in Milford,
Pennsylvania, or that they would not make an adequate adjustment to new
schools and circumstances.(FN2) In short, the father did not come close to
demonstrating anything other than that the move would be disruptive to his
visitation. I do not imply that interference with visitation is to be
disregarded out of hand, or that this father would not have suffered an
emotional loss if he had not won custody of the children for whom he deeply
cares, but interference with visitation is not the standard by which we

ought to judge the custodial parent's relocation. Unless we expect to start
granting modification orders routinely, there must be something more than an
interruption to visitation, even when that is substantial.
The majority cites four factors that it claims differentiate this case
from the ordinary consequences of relocation, and therefore justify the
family court's interference. None of these reasons withstands analysis or
meets the burden established in Lane. First, it found that the existence of
the "co-parenting" relationship was the most important reason to uphold the
trial court's decision. The majority reasons that because the father had
three days of visitation per week, which may be more than the usual contact
between the non-custodial parent and the children, the loss of parent-child
contact from relocation is therefore greater. Whether or not this is a
"greater loss" than in other cases, it is an irrational justification for
depriving the children of the mother, who had the children four days per
week.
The majority also contends that the visitation granted to the father
meant that the father had demonstrated he was capable of handling custody.
No one disputes in this case that both parents are fit custodians. The
question is whether we should transfer custody from one fit parent to
another simply because the parent with the legal right to decide where the
children live effectuates a change. Obviously, if the father were not fit,
the family court would have had no option to disapprove the mother's
decision. Because the father is fit does not justify its intrusion here.
Most importantly, however, the notion that significant visitation
imposes an obstacle to the custodial parent's right to move supports the
worst possible public policy. We start with the proposition that if parents

can agree to significant parent-child contact, it is obviously beneficial to
the children. But, after today's decision, it would be poor legal advice to
suggest agreement to such an arrangement to a custodial parent, unless that
parent is confident that he or she will want to remain in the location of
the marriage until the children reach majority. We recently upheld a
family court decision in which exactly the opposite public policy was
advanced to support a mother's move to take advantage of an educational
opportunity, despite the fact that the parties had informally agreed that
the father could have parent-child contact fifty per cent of the time.
Dunning v. Meaney, 4 Vt. L.W. 351, 352 (1993). In Dunning, the father
argued that he had become, de facto, a joint custodian and, therefore, a
move out of state was a change in circumstances of such magnitude that
custody should be modified. The family court disagreed, concluding that to
"find a change in circumstances on the basis of increased contact would
penalize [the mother] for her willingness to allow the contact." Id.
Today, this Court apparently takes the opposite view in using significant
parent-child contact as an obstacle to relocation.
Moreover, an agreement to share care of the children works only when
parents can agree. When the arrangement is falling apart, as it was here,
it makes little sense to rely on it as a continuing relevant factor.
Second, the majority also points to the unusually strong role played by
the paternal grandparents in the lives of the children. Actually, the
father's ability to handle custody was greatly enhanced by his parents, upon
whom he was quite dependent psychologically and financially. Since the
separation, the grandparents have shouldered the major custodial burden of
the father's visitation. It is wonderful when children are able to draw on

their relationship with grandparents as a resource in their lives, but to
use a relationship with the grandparents to justify the transfer of custody
from a fit mother, who has cared for these young children their entire
lives, and, indeed, was the primary caretaker until the co-parenting
arrangement,(FN3) cannot be our law.
Third, the majority emphasizes the manner in which the mother made the
move. To be sure, the mother should have discussed the move with the father
first, but should the penalty for that single omission be loss of custody?
Although couched in terms of best interests of the children, that is the
only conclusion one can draw after reading the record. In reality, even
with notice to the father, the father would have moved to modify custody and
we would have the same issue before us -- whether the children's best
interests were so undermined by a move to Milford, Pennsylvania that
custody should be transferred. The penalty does not fit the crime.
Fourth, the majority points vaguely to "continuing instability in the
lives of the children, as well as financial hardship." There is nothing in
the record to support the statement that the children's lives with their
mother would be unstable in Pennsylvania. They were enrolled in school and
daycare, their emotional and physical needs were being met, and they
received medical care when they were sick.
As to financial instability, the court's reference is to the mother's
decision to move to Pennsylvania for a job that paid $5.25 per hour and to

the loss of a mortgage subsidy on the marital home.(FN4) This conclusion is
exactly the kind of second-guessing of lifestyle decisions in which the
court should not engage. Was not this mother entitled to make the decision
that a $300 per month mortgage subsidy was not worth remaining in a small
town, continuing largely in the circumstances of the marriage, in the milieu
of a religion that she rejected,(FN5) in disagreement with a former husband, in
favor of a new start with a new partner, necessarily in a new location? Did
not the family court engage in the same kind of "you are better off in
Thetford" analysis as the family court in Lane? Even more troubling is the
implication left by the majority opinion that we will support a mother's
move to attend law school, but we will penalize a mother's attempt to
terminate her dependence on public assistance by taking a low-paying job.

In spite of what I view in this case as unwarranted interference with
an appropriate family decision by a fit parent, I recognize that the
custodial parent's decision to relocate is not absolute. Certainly, family
courts should not support the parent's exercise of discretion to relocate if
it is motivated solely by an intent to frustrate the non-custodial parent's
right to visitation. See 15 V.S.A. { 665(b)(5) (ability of parent to foster
contact with other parent is a factor in custody decision). Nor should the
custodial parent's decision to relocate the children to a place where their
physical safety is seriously jeopardized be without review in the family
court. Neither of those circumstances is present here. It is true that
relocation often involves disruption in visitation, other local
relationships and school. Unless Lane is completely meaningless, however,
the fact that children will be uprooted from a community and visitation may
be altered significantly cannot provide the justification for modification.
We accepted in Lane that the pros and cons of the inevitable disruption are
for the custodial parent to weigh, not the family court. In my view, the
father produced insufficient evidence to warrant a change in custody from
one fit parent to another.
Finally, I am troubled by the Court's willingness to abandon so quickly
its effort in Lane to set some guidelines on the exercise of discretion in
relocation cases, especially in light of the fact that such cases are
proliferating. The lack of standards inhibits appellate review and does not
provide the kind of predictability and stability that lawyers and litigants
should expect from recent decisions. Without guidelines, we will quickly
produce a hodgepodge of decisions with no consistent thread other than the
"trial court did not abuse its discretion." The reality of this kind of

decision-making is that very similar cases will result in very different
decisions, and a custodial parent's ability to relocate will depend on the
vicissitudes of individual judges. Because of factual differences in
cases, we will always be forced to tolerate some inconsistency in decision-
making, but we ought not to create the circumstances in which it will
flourish.

____________________________________
Denise R. Johnson, Associate Justice

------------------------------------------------------------------------------
Footnotes

FN1. The Court tries to sidestep this effect by saying that the parties'
agreement was embodied in a court order and it is the order that the Court
upholds. deBeaumont v. Goodrich, No. 92-586, slip. op. at 4 n.2 (May 27,
1994). This is a distinction without a difference. Courts routinely adopt
the final agreement of the parties in the final order, as was done in this
case.

FN2. The majority refers to a finding of the family court indicating it
was concerned about the use of corporal punishment by Mr. Diefenbach, with
which the mother disagreed, but was apparently willing to allow. In fact,
the finding acknowledges that a single incident discussed in the testimony
did not result in corporal punishment being administered and that the
concern was that the mother would not exercise "independent judgment." To
the extent the same finding refers to "two occasions," unspecified, it is
completely without support in the record and, I presume, simply a mistake.

FN3. The majority makes reference to the fact that the parties here "co-
parented" even before the divorce. The record reveals, however, that the
mother was unquestionably the primary caretaker until the divorce. She
cared for the children while the father was at work and when the father was
regularly away for other activities, such as church meetings.

FN4. The testimony showed that the mother was on welfare because she was
unable to find work in Vermont for some months. She filed applications with
several banks in the area and with Grand Union. No work was available and
she did not want to remain on welfare. She had begun a relationship with a
new partner, John Diefenbach, who lived in Milford, Pennsylvania. The
mother decided to look for work there. After spending a couple of days
going to every store and business in town, she was offered and accepted a
job as a bank teller at $5.25 per hour.

FN5. During the marriage, the mother and father lived with their two
children in the small community of Thetford. The father's parents lived in
a nearby community and the family belonged to the Christian Pentecostal
Church, of which the father's father is pastor. The church tenets are built
on a belief in the literal interpretation of the Bible, including the tenet
that women are subject to the authority of their husbands. Although the
father and his parents attempted to downplay this tenet in their testimony,
they reaffirmed, on cross-examination, that in a dispute between husband and
wife, the husband's authority is absolute. Although the mother was a member
of the church, she came to reject this religion and these religious
differences contributed to the breakdown of the marriage. Moreover, the
mother testified that she was dominated by the "male prerogative" in her
marriage and was isolated "because of the church." She feared that her son
and daughter were being raised in a religion where women were not given the
same autonomy as men.

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