Here is what to know if you’re engaged in a Vermont child custody action.
- What are the Types of Child Custody in Vermont?
- Determining Child Custody in Vermont
- What is Vermont’s Best Interests of the Child Standard?
- What to Know About Parenting Plans
- How Do I Modify a Vermont Custody or Visitation Order?
- Vermont Child Custody FAQs
What are the Types of Child Custody in Vermont?
Vermont child custody laws do not use the term “custody.” State legislators replaced that term with “parental rights and responsibilities.” Also, the legislature changed the term “visitation” to “parent-child contact.” However, these terms are interchangeable and still work toward fostering a policy of continued physical and emotional support between separated or divorced parents and their children.
There are two types of parental rights and responsibilities in Vermont:
Legal responsibility means the authority to decide matters affecting a child’s welfare, other than routine daily care. The most common examples are decisions about education, nonemergency medical and dental care, religion, and travel.
In some cases, legal responsibility is divided, with each parent sharing legal responsibility for most matters, but one parent may have sole legal responsibility for medical care. In most cases, parents share all legal responsibilities or are assigned to one parent only. Sometimes, when a parent cannot carry out these duties, one of the parents will be assigned all legal decisions creating a sole legal custody arrangement.
Physical responsibility means providing routine daily care, controlling the child and making daily decisions. Where the child physically lives is included in this physical responsibility.
The place where the child lives most of the time means that parent is considered the custodial parent. The other parent with whom the child spends less time is the non custodial parent.
When parents share the responsibility for caring for a child and having the child live with them, this is called shared physical responsibility. This could include instances where a child spends one week with one parent and then one week with the other parent, or a child spends weekdays with one and weekends with the other.
A judge can also order split physical responsibility or custody when more than one child is involved. When parents have split physical responsibility, some children live with the mother while the rest live with the father.
Because courts favor frequent and continuing contact with both parents in a custody situation, the noncustodial parent usually receives visitation rights. These are spelled out in detail in a parenting plan.
Courts prefer that parents work out custody and visitation between themselves. Sometimes this requires help from a mediator or a family law attorney who will draft a plan and submit it to the court for approval.
When parents can’t agree, the court will decide based on the child’s best interests.
If the court awards parental rights and responsibilities to one parent, it does not mean that the other parent cannot access the child’s medical, law enforcement, or school records. A court can limit access to such records if it is determined to be in the best interest of the child or to protect the other parent.
But generally, one parent cannot deny the other parent access to these records just because that parent does not have legal or physical parental rights and responsibilities.
The court cannot force either parent to spend time with a child. If that is an issue, education or counseling will help more than a court order.
Child support and custody are two separate issues. If you are not paying child support, you are still allowed contact with your child. Also, paying child support does not determine the amount of contact a parent has with their children.
Visiting might be denied or severely restricted when a parent’s behavior puts a child at risk, visitation might be denied or severely restricted. That is sometimes the case if domestic abuse or violence, drug abuse, or criminal activity is taking place. Sole physical responsibility is weighted heavily under Vermont law. However, sole custody is rare, despite the presence of these issues.
Visitation may still occur, but protecting a child may require supervised visitation. A third party must be present when the child and parent spend time together. This can be a family member, friend, or someone appointed by the courts.
Judges can also issue temporary orders while a divorce is progress. These are sometimes referred to as pendente lite custody orders. They are in force until the final divorce decree is issued. In most cases, parents have to live separate lives for at least six months before a final divorce hearing can be held.
Read More: Vermont Divorce Guide
Determining Child Custody in Vermont
When children are involved in a divorce, a judge or magistrate will decide who has physical custody, who has legal custody, who will pay child support, and how much the child support will be. The court order will also say when and where your child or children will see the parent that they don’t live with.
Courts prefer parents to create a custody agreement. When they agree, the joint parenting plan can be presented to the court for approval.
When parents disagree, the court must decide who gets physical and legal responsibilities. This happens at a contested hearing which is a trial in front of a judge.
Several factors help the court decide what is just and fair. These include:
- The child’s relationship with each parent, including each parent’s ability to provide love, affection, and guidance
- Each parent’s ability to provide the child with enough food, clothing, medical care, a safe environment, and other needs
- Each parent’s ability to meet the child’s present and future developmental needs
- The child’s present housing, school, and community and how the child would be affected by any change and adjustment to new surroundings
- Each parent’s ability to create and keep a positive relationship with the other parent, and to see the other parent often and regularly. That includes seeing the other parent in person, not just over the phone, except where physical contact could result in harm to the child or a parent
- The quality of the relationship between the child and whoever takes care of the child most of the time
- The child’s relationship with anyone else who might significantly affect the child such as relatives, babysitters, friends, etc.
- Each parent’s ability to communicate and cooperate with the other parent and to make decisions together with the other parent about the child’s life
- Evidence of an abusive parent or a family or household member, the impact of the abuse on the child, and the relationships between the child and the abusing parent
- Any other factor relevant to the case
As part of the custody agreement, a Vermont court may order parents to take part in a family court program. These programs are designed to help parents, or the court, decide about the children. That may include mediation, home study, parent coordination, a children’s panel, visitation masters, and a forensic evaluation.
The court may also appoint a guardian ad litem. This is an attorney appointed to represent the child’s interests in the case.
The court does consider the child’s reasonable wishes when determining which parent wins custody. The judge may take the child’s age, maturity, and judgment into consideration when considering the child’s custody preference. This preference is advisory only. Judges retain the right to make all final decisions.
What is Vermont’s Best Interests of the Child Standard?
In all Vermont custody cases, decisions are guided by the child’s best interests. Judges have broad discretion on how to apply this standard using the factors listed above.
To decide what is best for a child, the judge considers the law and the information they have about the child. The judge will take evidence in court from all the witnesses who testify and consider it before reaching a decision after applying the best interest standard.
What to Know About Parenting Plans
Parenting plans are detailed instructions about parents’ rights and responsibilities for their children during and after a divorce or legal separation. Courts prefer that parents develop a plan on their own but will make decisions when parents can’t agree.
Most plans contain the following elements:
- Physical custody details, including the number of overnight visits for each parent.
- Legal custody and how those responsibilities are allocated between parents.
- The manner of exchanging children, including when, where, and time of day
- Transporting children for visitation and other necessary movements
- Holiday and school break schedules
- Vacation and travel approval and advance notifications
- How will a child communicate with both parents
- How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
- Child support payment amounts and recourse if a parent falls behind.
- How is communication between parents handled?
- The child’s relationship and contact with other family members and friends
- Parental access to records and information
- Children’s use of technology and online activities
- How to address child discipline and mental health issues
- Guidelines when a new partner is involved
- Grooming and dress guidelines
- Drinking or drug use in the presence of the children
How Do I Modify a Vermont Custody or Visitation Order?
Either parent can ask a judge to modify a parental rights and responsibilities order.
Before asking the court to change your order, it is usually a good idea to work out an agreement with the other parent. If you agree, you can file your agreement to ask the court to change the order using this agreement form.
If you cannot work out an agreement with the other parent, you may need to go to mediation before filing anything with the court. Many orders have a section that says that you must participate in mediation before asking the court for changes. Check your current order to see if you need mediation before asking the court to change your order.
Under Vermont law, the requesting parent must file a Modify Parental Rights and Responsibilities. Many orders have a section that says you must participate in mediation before asking the court for changes.rm with your local family court. You will need to demonstrate through convincing evidence there has been a real, substantial, and unanticipated change of circumstances from when the court issued the current order.
Reasons may include if one of the parents has to move out of state for work-related reasons, ongoing medical issues, a job loss, or other similar events.
The key is that abiding by the current parental rights and responsibilities order may no longer be in the child’s best interests.
Also, if the order being modified involves “physical responsibility,” the court will order a hearing to see whether child support needs to be adjusted.
Read More: How to Prepare for a Divorce Hearing
Vermont Child Custody FAQs
What happens if a parent does not bring a child back after a visit or refuses to bring a child to a court-ordered visit?
Parents must follow the parent-child visitation schedule in a legally binding child custody order. It’s a crime not to bring a child back after a visit or to refuse to bring a child to a court-ordered visit. If a parent keeps a child away from the parent who has custody, it is called “custodial interference.” This is a felony with a maximum sentence of five years in jail. It’s also a crime for another relative to keep the child away from the parent who has custody.
If you are afraid for your child’s safety, this is a defense you can use against custodial interference. You can act this way in good faith to protect your child from immediate physical harm. However, you can’t leave Vermont with your child to protect them and you must file a motion in court within 72 hours describing the imminent danger you were protecting your child from.
If you are the custodial parent, you must make your child available for visits with the other parent, even if that parent has missed several visits. Refrain from violating the court order because you are mad that the other parent is not following the order.
How is custody handled when a mother and father are not married?
If the mother and the child’s father were not married, then only the mother has legal and physical responsibility for the child until parentage is established. This is done in court and may require DNA testing or other parental acknowledgment.
What happens if no formal custody order is put in place?
Some people decide not to get a custody order in Vermont because they don’t want to get the courts involved. They may think going to court will provoke the other parent or already have an informal agreement that works well for them. The problem is that the courts cannot enforce an informal custody agreement. They can only enforce a legal and binding court order.
Can I get visitation if I’m the child’s grandparent?
Sometimes, grandparents can ask the court for visitation. If the court is considering custody and visitation issues, grandparents can file a written request with the court to ask for visitation. The court may approve the request if it is in the child’s best interest.
If there is no case going on regarding custody or visitation, a grandparent can start their own case only if a parent of the child is deceased, physically or mentally unable to make a decision about visitation, or has abandoned the child.
When deciding whether or not visitation with the grandparent would be in the child’s best interest, a judge may look at several of the same factors used to make a parental custody decision.
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