Vermont law is based on the assumption that children are best served when both parents take part in their lives after a separation or divorce.
When parents come to court, they have to make many decisions about their children. The court makes sure the decisions are consistent with the law and are “in the best interests of the child” according to Vermont law. The legal issues are complex and can have long-term effects on families. For this reason, it is often a good idea to consult with a lawyer.
Parental rights and responsibilities are commonly referred to as custody.
There are two types of parental rights and responsibilities:
- 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 can be divided. For example, you might share legal responsibility for most matters, but one of you may have sole legal responsibility for medical care. In most cases parents share all legal responsibilities, or they are all assigned to one parent only.
- Physical responsibility means the responsibility to provide routine daily care and control of the child and to make day-to-day decisions. Where the child physically lives is included in physical responsibility.
The court encourages parents to agree on a parenting plan. Your plan should address both legal responsibility and physical responsibility. You can share both, assign both to one parent, or agree to different things for each kind of responsibility. For example, you might share legal responsibility, but agree to assign physical responsibility to one parent only. The more you agree to, the better.
If you can’t agree about something, the court will decide for you. The law says that if you do not agree to share physical responsibility, legal responsibility, or both, the court cannot order you to share. In that case the court will assign legal and/or physical responsibility to one parent.
Just because the court awards parental rights and responsibilities to one parent does not mean that the other parent cannot have access to 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.
Parent–child contact refers to the time the child spends with each parent. Some people use the term visitation, although that term isn’t totally accurate. Children are parented, not visited by their parents.
Generally, children need to be able to spend as much time as possible with each of their parents. When parents live apart, their children should have the opportunity to spend quality time with both of them.
Child support and parent–child contact are two separate issues. If you are not paying child support, you are still allowed contact with your child. Payment of child support does not determine the amount of parent–child contact. Your child needs both financial and emotional support.
You may need to discuss and reevaluate your parenting plan if one of you is considering moving. The court may order you to resolve the issues before moving the child. This can involve going to mediation before you come to court. You can find more information about modifying a final divorce order here.
The court cannot force either of you to spend time with your child. If that is an issue, education or counseling will help more than a court order.
Sometimes a parent’s behavior can put a child at risk. If there is a risk to your child, the court may impose conditions to ensure their safety. For example, the judge may order supervised contact.
In most cases, everyone is better off when the parents can agree on a parenting plan.
For a judge to approve it, your parenting plan must be in your child’s best interests. Protecting your child should always be your first priority. Your child needs to know that you are both responsible for taking care of them and spending time with them. When working on an agreement, consider these areas:
- Physical living arrangements: This has to do with where the child stays and when. It is important that you decide which home your child will sleep at on which nights.
- Parent–child contact: This plan is usually for the parent who does not have physical custody, or when custody is shared. Parents often work out a holiday and school vacation schedule. If you have difficulty communicating with the other parent, you may want a more detailed schedule so that fewer disputes happen.
- Legal responsibilities: Will you make decisions jointly about major matters such as your child’s schooling, medical care, travel, and religious upbringing? If not, which parent will be responsible?
- Medical and dental care and health insurance: Will one parent be responsible for taking the child for nonemergency medical care?
- Travel arrangements: Who will provide transportation for parent–child contact, and who will pay the costs? Under what circumstances can the child travel out of state or out of the country?
- Communicating with each other: Parenting doesn't stop with separation. You will need to consider how you will communicate about your child’s schedule, school progress, extracurricular activities, and child care. Your child should not be responsible for passing information about these issues between you.
- Resolving disagreements: You need decide how you will resolve any disputes that arise about your child. The court should not be the first option to resolve a dispute. This is because it is not usually in the child’s best interest, and court hearings cannot always be set quickly. If you can’t agree, a mediator, a therapist, or a counselor might be able to help you.
Mediation provides a structure for communicating at a time when working together is often difficult. Parties work with a mediator to try to reach an agreement, which is then written down. Mediation is less formal than a public hearing in court. The Vermont Superior Court Family Mediation Program provides subsidized mediation services to qualifying people. You can find more information about family court mediation here.
If you and your ex-spouse are having difficulty communicating, the court may refer you for parent coordination—a process that gives both of you and your child a chance to be heard regarding a range of issues. Those issues could include visitation and exchanges, health and safety issues, how parenting decisions are made, and how the two of you communicate. At the end of the process, the parent coordinator will submit a report to the court that describes your agreement. If you do not agree, it will make recommendations to the court. You can find more information about parent coordination here.
Even if you don’t agree on all parenting issues, you should try to agree on as many as you can. For example, you might agree to share major decisions or legal rights and responsibilities. But you may not be able to agree about where your child will live from day to day, and how much time they will spend with each of you. In that case, you can tell the court that you agree on legal rights and responsibilities, and ask the court to decide the other questions.
If you just can’t agree, the court will decide for you. Every case is unique, but the court considers the same factors in most cases when parental rights and responsibilities are in dispute:
- The relationship of the child with each parent and their responsibility to provide the child with love, affection, and guidance
- Each parent’s ability to ensure that the child receives adequate food, clothing, medical care, other material needs, and a safe environment
- Each parent’s ability to meet the child's present and future developmental needs
- The quality of the child's adjustment to the child's present housing, school, and community, including the potential effect of any change
- Each parent’s ability to foster a positive relationship and frequent and continuing contact with the other parent (except when contact with the other parent will result in harm to the child or to the parent)
- The quality of the child's relationship with the primary care provider. In many cases, this is the most important factor. But the weight of this factor depends on the child’s age and development. It can be outweighed by other factors.
- The relationship of the child with any other person who may significantly affect the child
- If the parents plan to share or divide parental rights and responsibilities, how well they communicate and cooperate in making joint parenting decisions
- Evidence of abuse and its impact on the child
If you ask the court to decide about legal or physical parental rights and responsibilities, you should focus on these factors when making your case to the court. Remember, the court cannot order you to share legal or physical parental rights and responsibilities unless you both agree. The court will not prefer one parent because of the sex of the parent or the child. And the court will not prefer one parent because they have more money than the other.
In cases of domestic violence, the court may make special orders in connection with parent–child contact to protect the child. The Legislature has identified several conditions the court may impose, which can be found here.