Aron C. Vance v. Miranda Locke

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
2022 VT 23No. 2021-132
Aron C. Vance Supreme Court
On Appeal from
v. Superior Court, Orange Unit,
Family Division
Miranda Locke February Term, 2022
Thomas A. Zonay, J.
Brittany A. LaBerge and Charles S. Martin, Supervising Attorney, of Martin Delaney & Ricci
Law Group Barre, for Plaintiff-Appellee.
Stacey Adamski of Adamski Law, PLLC, Castleton, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Johnson, J. (Ret.),
Specially Assigned
¶ 1. REIBER, C.J. Mother appeals the family division’s order modifying legal
parental rights and responsibilities and parent-child contact as to son. We affirm.
¶ 2. The court first issued a parental rights and responsibilities order in 2015, based on
the parties’ agreement. Under this order, mother had primary legal responsibility and the parties
shared physical custody. The parties had a week-on/week-off custody schedule alternating on
Thursdays. Mother picked up son from school and had him until 5:00 p.m. on all weekdays.
¶ 3. In October 2017 father filed emergency motions to modify legal and physical
parental rights and responsibilities and parent-child contact, alleging that mother was suicidal and
unable to care for son. On the same day, the court granted a temporary modification solely on the
basis of father’s filings, awarding sole legal and physical parental rights and responsibilities to
father pending a hearing to determine whether a longer-term modification would be appropriate.
Mother filed a response to father’s motions, seeking to end the emergency order and modify the
original 2015 order to restrict father’s parent-child contact. Following a hearing in January 2018
the court ordered the parties to return to the terms of the original 2015 parentage order, pending a
final determination on the motions to modify.
¶ 4. Following a status conference in April 2018, the trial court issued an entry order
addressing a number of issues. Although the record contains no indication that either party had
proposed appointment of a guardian ad litem, the court concluded that appointment of a guardian
ad litem for the child was appropriate. It reasoned as follows:
Although the child is not expected to testify, a [guardian ad litem]
may provide the parties and their counsel information to help obtain
an outcome in the best interest of the child. Although the [guardian
ad litem] would not testify (except in rare occasions allowed under
the rule), he or she may at pretrial conferences orally suggest matters
that will help the court formulate issues for the final hearing
(V.R.F.P. 7(f)(1)(B)), or in appropriate circumstances move for
appointment of counsel for the child.
The court, of its own accord, appointed an attorney for son in May 2018 and a guardian ad litem
in June 2018. No written order or other explanation accompanied these appointments. Other than
the April 2018 entry order, the record contains no information regarding the purpose or parameters
of these roles. No one objected to either appointment.
¶ 5. Both son’s attorney and guardian ad litem participated in subsequent pre-trial
proceedings without objection. The court’s entry orders from 2018 and 2019 reflect input from
son’s attorney and guardian ad litem on various pre-trial issues, including particularly the family
forensic evaluation that the court ordered in June 2018. Both son’s attorney and guardian ad litem
opined on the need to order such an evaluation. The court charged son’s attorney with obtaining
records from the Department for Children and Families (DCF) related to prior child-protection
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matters involving son and mother’s other two children and providing them to the forensic
evaluator. In January 2020, when the evaluator could not complete her report because of a dispute
with DCF regarding the appropriate level of redaction for case files, son’s attorney moved the
court to order DCF to produce unredacted records. The evaluator finally issued her report in
February 2020.
¶ 6. The court held merits hearings in March 2020 and March 2021 on the competing
motions to modify. During the hearing, neither guardian ad litem nor son testified, but both
guardian ad litem and son’s attorney were present. Mother’s attorney objected to son’s attorney
making objections, as well as examining and cross-examining witnesses. Mother’s attorney
argued that son was not made a party to the case and that Family Rule 7 does not specifically allow
a child’s attorney to participate outside of juvenile cases. She contended further that Civil Rule
43 implies that only parties (or their attorneys) may question witnesses. Mother’s attorney also
suggested that son’s attorney in this case was biased against mother because the same attorney
represented son and her two other children in prior child in need of care or supervision (CHINS)
proceedings. The court overruled mother’s attorney’s objection, reasoning that neither Family
Rule 7 nor Civil Rule 43 expressly prohibited a child’s attorney from participating actively in
custody hearings. It determined that Civil Rules 1 and 81 and Evidence Rule 611 empowered the
court to allow son’s attorney to participate because no other rules prohibited such participation and
doing so was appropriate and helpful to the court.
¶ 7. Son’s attorney participated primarily by raising various objections and cross-
examining witnesses called by the parties. Son’s attorney did not call any witnesses, present oral
or written argument, file motions during or after trial, or participate in any other meaningful way
except to respond orally to queries from the presiding judge. During cross-examinations of mother
and father, son’s attorney adduced non-cumulative testimony bearing on the crux of father’s
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allegations, namely, father’s personal observations of mother’s mental health issues, association
with unsafe individuals, and substance use, and how these affected son.
¶ 8. The family division granted father’s motions to modify in part. The court found
that the events surrounding mother’s suicide attempt constituted a real, substantial, and
unanticipated change of circumstances. It also made findings on the statutory best-interests factors
and concluded that they weighed in favor of modifying parent-child contact and parental rights
and responsibilities. The court’s order divided legal responsibility for son between the parties,
awarding father responsibility for educational matters and mother responsibility for all other
matters. Physical parental rights and responsibilities remained shared, but the court modified the
parent-child contact schedule so that the parties alternated weeks on Fridays instead of Thursdays
and mother would only care for son after school every other week.
¶ 9. On appeal, mother argues this order should be reversed because the court:
(1) abused its discretion by dividing legal rights and responsibilities between the parties;
(2) impermissibly relied on DCF history; (3) erred in allowing son’s attorney to participate at the
merits hearing; and (4) did not make sufficient findings relative to son’s best interests.
¶ 10. When presented with a motion to modify legal or physical rights and
responsibilities or parent-child contact, the family court must follow a two-step analysis:
First, the moving party must show that there is a “real, substantial
and unanticipated change of circumstances.” 15 V.S.A. § 668(a). If
the party meets that burden, the court may modify legal and/or
physical rights and responsibilities or parent-child contact “if it is in
the best interests of the child.” 15 V.S.A. § 668(a). In determining
the best interests of a child, the court considers the nine factors listed
in 15 V.S.A. § 665(b).
Quinones v. Bouffard, 2017 VT 103, ¶ 11, 206 Vt. 66, 179 A.3d 173 (additional citations omitted).
¶ 11. The family division has broad discretion to determine whether changed
circumstances exist and what parenting arrangement is in the child’s best interests. Id. ¶ 10. So
long as it applied the correct legal standards, we will uphold the court’s factual findings unless
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they are clearly erroneous and will affirm its legal conclusions if supported by the findings. Sochin
v. Sochin, 2005 VT 36, ¶ 4, 178 Vt. 535, 872 A.2d 373 (mem.).
¶ 12. Mother contends the trial court erred in awarding father responsibility for son’s
education. She asserts that father was untruthful during his testimony, that the court failed to
account for father’s history of harassing her and interfering in her parent-child contact, and that
the evidence showed she was not deficient in her decision-making responsibility but father was.
Because this Court does not reweigh the evidence or make findings of credibility de novo, Mullin
v. Phelps, 162 Vt. 250, 261, 647 A.2d 714, 720 (1994), we reject mother’s arguments regarding
father’s truthfulness and the weight of certain evidence.
¶ 13. Mother also argues that the court ran afoul of 15 V.S.A. § 665(a) by ordering
parents into a shared decision-making arrangement without their agreement. Because son’s
mental-health conditions are such that his educational and medical needs are intertwined, mother
contends that awarding educational responsibility to father and medical responsibility to mother
will inevitably require joint decision-making. The statute provides that “[t]he court may order
parental rights and responsibilities to be divided or shared between the parents on such terms and
conditions as serve the best interests of the child.” 15 V.S.A. § 665(a). It states further that
“[w]hen the 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.” Id. In
interpreting this statute, we have held that it is not in a child’s best interests to order parents to
share one or more parental rights and responsibilities absent their mutual assent. Shea v. Metcalf,
167 Vt. 494, 499, 712 A.2d 887, 890 (1998). However, we have also held it is consistent with the
Legislature’s intent and within the trial court’s discretion to split up and allocate legal rights and
responsibilities between the parents if doing so would be in the child’s best interests. See id. at
500, 712 A.2d at 891 (affirming family court’s decision that “awarded each of the rights and
responsibilities ‘solely’ to one parent” and noting that such an order “avoids the problems of joint
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decision-making while satisfying the Legislature’s intent that children retain ‘the opportunity for
maximum continuing physical and emotional contact with both parents’ ” (quoting 15 V.S.A.
§ 650)). As in Shea, where the mother had argued that the practical logistics of divided legal rights
and responsibilities would be “confusing and unworkable,” mother’s concerns here are logistical
and hypothetical. Id. at 502, 712 A.2d at 892. “We will not judge the efficacy of a family court’s
order on circumstances that could potentially arise in the future.” Id.
¶ 14. To the extent mother challenges the sufficiency of the evidence on this issue, the
record supports the court’s findings both that parents could adequately work together to allow for
divided legal responsibilities and that father was better suited to have responsibility for education
decisions. The family forensic evaluator concluded that although both parents were fit to parent
son, a division of parental responsibility would best support son’s educational and medical needs.
The evaluator determined that father was engaged with son’s educators at school and had
demonstrated an ability to follow through on educational matters. Although the court noted
mother’s improvement with her mental health through engagement with appropriate services, the
court found based on the evaluator’s report and other relevant evidence that mother’s history of
safety concerns—including her 2017 suicide attempt, mental health issues, substance use, and
relationships with people who pose a potential safety risk to son—may undermine her ability to
provide the same consistent and stable environment for son as father does. Finally, though both
parties acknowledged difficulty communicating with each other, father testified that he believed
the parties’ communication had improved since beginning counseling together in 2019. This
evidence supports the trial court’s decision to award father educational decision-making and
mother other legal responsibilities.
¶ 15. Mother next argues that the court should not have relied on reports from DCF to
evaluate the child’s best interests. Mother contends that: not all DCF files were provided to the
family forensic evaluator in a timely manner, no one from DCF testified at the hearing, and father
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was allegedly having a sexual relationship with a DCF investigator. She relies on cases
establishing that DCF has different aims and applicable standards in its investigations than the
family division has in parentage proceedings, and that DCF’s substantiations may not necessarily
be congruous with the family division’s analysis on the same issues because of the different
contexts in which they operate. See Chase v. Bowen, 2008 VT 12, ¶ 14, 183 Vt. 187, 945 A.2d
901 (“DCF’s substantiation, and whatever investigative effort it represented, constituted no actual
proof of any issue to be decided by the family court.”); Siegel v. Misch, 2007 VT 116, ¶ 6, 182 Vt.
623, 939 A.2d 1023 (mem.) (“While it may seem incongruous to litigants, DCF and family courts
may come to different conclusions as to whether abuse has taken place, even when the evidence
confronting both bodies is overlapping, as it is in this case.”).
¶ 16. We need not address the merits of mother’s argument because we conclude that any
error in crediting the reports was harmless, as the court did not rely on the information in the
reports and the court’s findings were supported by other evidence in the record. See In re A.F.,
160 Vt. 175, 178-79, 624 A.2d 867, 869 (1993) (stating that erroneous finding does not require
reversal where other evidence supports court’s decision). The trial court’s decision here has scant
reference to the DCF reports and does not appear to rely in any significant way on their substance.
Besides noting that the family forensic evaluator had reviewed available DCF files, the court’s
decision mentions DCF only once—in the context of parents’ ability to communicate effectively
with each other:
From 2014 through the filing of the pending motion Mother and
Father have had difficulty communicating. Father has also had
safety concerns and made numerous reports to DCF about Mother
and her care of [son]. These include concerns regarding drug and
alcohol use, as well as her exposing [son] to people . . . who posed
a safety risk to the child. Father believes that since beginning
counseling with Mother in late 2019 their communication has
improved. Mother does not agree with Father’s view that her
behaviors being a potential safety risk to [son]. The Court finds from
the evidence that Father’s concerns derive from his desire to protect
his child and that there was a reasonable basis for the reports and
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concerns, some of which, the Court observes, were substantiated by
DCF.
As this excerpt demonstrates, the court was focusing not on the substance of DCF investigations
but rather on the fact that father had reported mother’s behavior to DCF, the reasonableness of his
reports, and how these circumstances affected parents’ communication with each other.
¶ 17. To the extent the court relied directly on DCF’s substantiations regarding these
safety concerns, we need not analyze the propriety of this evidence because there was other
evidence in the record to support the court’s relevant findings on son’s best interests. Chickanosky
v. Chickanosky, 2011 VT 110, ¶ 14, 190 Vt. 435, 35 A.3d 132 (“[F]indings will stand if any
reasonable and credible evidence supports them.”). In particular, father testified to his personal
observations of mother’s substance use and relationships with unsafe individuals and his concerns
about these behaviors as a safety risk for son. This evidence independently supported the court’s
findings regarding safety issues.
¶ 18. Mother also contends that the court erred in relying on the family forensic
evaluator’s report because the evaluator did not have all DCF records pertaining to the family.
Mother asserts that if the evaluator had reviewed all DCF records, her conclusions may have been
different. However, mother does not identify which records were allegedly missing or explain
why she did not seek to have those records provided to the evaluator at some point before the
report was complete. It is clear from the record that the evaluator did review numerous DCF
records. But nothing in the applicable rules or statutes dictates precisely what information a
forensic evaluator must or must not review. The evidentiary statute pertaining specifically to
parentage proceedings states in relevant part that “[r]eports prepared by a person qualified as an
expert under the Vermont Rules of Evidence, evaluating the best interests of the child, shall be
admissible for the purposes of determining parental rights and responsibilities provided that the
expert is available for cross-examination.” 15 V.S.A. § 667(b). Mother does not contest the
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evaluator’s qualifications. To the extent mother thought that the evaluator’s assessment was
flawed, she had a full opportunity to challenge it at trial. Indeed, her attorney cross-examined the
evaluator extensively at the merits hearing. Ultimately, it was up to the trial court to assess the
weight and credibility to assign to the report.
¶ 19. Mother next argues the family division erroneously interpreted statutory and
procedural provisions when it allowed son’s attorney to participate in the hearing over her
objections. We review evidentiary rulings for abuse of discretion. Clark v. Bellavance, 2016 VT
124, ¶ 22, 204 Vt. 111, 162 A.3d 679. “The interpretation of a statute is a question of law that we
review de novo.” State v. Therrien, 2011 VT 120, ¶ 9, 191 Vt. 24, 38 A.3d 1129. Likewise, we
review the trial court’s interpretation of a procedural rule de novo. Weitz v. Weitz, 2019 VT 35,
¶ 7, 210 Vt. 248, 213 A.3d 1102.
¶ 20. Mother contends that by allowing a nonparty to present evidence and objections,
the court “broke away from the natural adversarial process” and therefore erred. She relies on our
statement in Simpson v. Rood, 2003 VT 39, 175 Vt. 546, 830 A.2d 4, that “[w]e have placed our
confidence in the adversary system, entrusting to it the primary responsibility for developing
relevant facts on which a determination . . . can be made.” Id. ¶ 12 (quoting United States v.
Nobles, 422 U.S. 225, 230 (1975)). Both Simpson and Nobles addressed circumstances where one
party’s right to effective cross-examination was constrained: in Simpson the plaintiff’s key witness
was permitted to testify by telephone out of the jury’s sight, 2003 VT 39, ¶ 13; in Nobles the
criminal defendant was allegedly deprived of critical impeachment information in the hands of the
prosecution, 422 U.S. at 230-31. These cases emphasized the importance of the adversarial
process, in particular cross-examination, as a means to ensure the “full disclosure of all the facts.”
Nobles, 422 U.S. at 231; see also id. (noting importance of “full benefit of cross-examination” so
that “truth-finding process may be enhanced”). To that end, both decisions acknowledged that the
court is not limited to reliance on the parties to adduce evidence. Simpson, 2003 VT 39, ¶ 12
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(“While the adversary system depends primarily on the parties for the presentation and exploration
of relevant facts, the judiciary is not limited to the role of a referee or supervisor. Its compulsory
processes stand available to require the presentation of evidence in court . . . .” (quoting Nobles,
422 U.S. at 230)). Mother does not contend that her right of cross-examination was curtailed in
any way or that the court was deprived of any relevant information. Quite the opposite, she
suggests that the court received too much evidence because son’s attorney was allowed an equal
opportunity as mother’s and father’s attorneys to question their witnesses. These cases thus do not
support mother’s argument but instead instruct that the adversarial process is a means, not an end.
The end is the ascertainment of truth.
¶ 21. Although the prototypical court case involves two parties—each adverse to the
other and each presenting competing evidence—custody matters present unique circumstances.
On one hand, arguably no one has a greater interest in a custody matter than the child himself.
Indeed, by legislative design “the paramount issue in the custody proceeding is not the mother’s
best interest, nor the father’s, but the children’s.” Cloutier v. Blowers, 172 Vt. 450, 455, 783 A.2d
961, 965 (2001) (quotation omitted). On the other hand, only the parents—not the child—are
automatically afforded party status by statute. See Ihinger v. Ihinger, 2003 VT 38, ¶ 7, 175 Vt.
520, 824 A.2d 601 (mem.) (“Although minor children are affected by the decisions courts must
make concerning parental rights and responsibilities in the course of divorce proceedings, minor
children are not normally parties to such proceedings.”). The family court is vested with broad
discretion to allocate parental rights and responsibilities and parent-child contact, based on the
child’s best interests. DeLeonardis v. Page, 2010 VT 52, ¶ 20, 188 Vt. 94, 998 A.2d 1072. The
trial court must make factual findings as to the child’s best interests with reference to nine statutory
factors. 15 V.S.A. § 665(b). It must do so based on the evidentiary record before it. Rutanhira v.
Rutanhira, 2011 VT 113, ¶ 12, 190 Vt. 449, 35 A.3d 143 (“[W]hen a trial court relies on
information taken from outside of the proceeding, especially where it involves the central issue
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before the court, it commits error.”). Thus, with regard to these critical questions affecting the
child’s life, the child is at the mercy of the trial court, which must decide what parental arrangement
is in the child’s best interests based on evidence adduced primarily by the parents or their attorneys.
¶ 22. States across the country have wrestled with these issues and have taken a variety
of approaches that break from the traditional adversarial arrangement in furtherance of the child’s
best interests. See generally L. Elrod, Child Custody Prac. & Proc. § 12:4 (June 2021 Update)
(discussing various state laws regarding counsel for children in custody matters). Some states have
carved out a role for attorneys of nonparty children through statute, with varying degrees of
specificity. Compare, e.g., Iowa Code Ann. § 598.12(1)(a) (West 2017) (stating that “[u]nless
otherwise enlarged or circumscribed by a court having jurisdiction over the child or by operation
of law . . . [the hybrid attorney-guardian ad litem] may cause witnesses to appear, offer evidence,
and question witnesses on behalf of the best interests of the child” and “may offer proposed or
requested relief and arguments in the same manner allowed the parties by the court,” but “shall not
testify, serve as a witness, or file a written report in the matter”) with Colo. Rev. Stat. Ann. § 14-
10-116(2)(a) (West 2021) (explaining that trial court has discretion to appoint attorney for child in
custody cases and once appointed, child’s attorney “shall actively participate in all aspects of the
case involving the child, within the bounds of the law” and shall comply with Colorado rules of
professional conduct) and Conn. Gen. Stat. Ann. § 46b-54(e) (West 2021) (“Counsel or a guardian
ad litem for the minor child or children shall be heard on all matters pertaining to the interests of
any child, including the custody, care, support, education and visitation of the child, so long as the
court deems such representation to be in the best interests of the child. To the extent practicable,
when hearing from such counsel or guardian ad litem, the court shall permit such counsel or
guardian ad litem to participate at the beginning of the matter, at the conclusion of the matter or at
such other time the court deems appropriate so as to minimize legal fees incurred by the parties
due to the participation of such counsel or guardian ad litem in the matter.”). Others have
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addressed the participation of a child’s attorney through procedural rules. See, e.g., Ariz. Rules of
Fam. L. Proc. 10(e) (stating that child’s attorney appointed in custody case “must participate in the
proceeding to the same extent as an attorney for any party”). Still others have allowed standards
to develop through case law, based on broadly worded statutes. See, e.g., N.Y. Fam. Ct. Act § 241(McKinney 2010) (stating simply that “minors who are the subject of family court
proceedings . . . should be represented by counsel”); Newton v. McFarlane, 103 N.Y.S.3d 445,
450-51 (App. Div. 2019) (interpreting this statute to mean that “the appointed attorney for the child
has the right, equal to the right of the attorneys for the litigants, to fully appear and participate in
the litigation, including the right to call, examine, and cross-examine witnesses, and the right to
advance arguments on behalf of the child,” including the right to appeal). Vermont has both a
statute and a procedural rule that address the appointment of an attorney for a nonparty child in
parental rights and responsibilities cases. 15 V.S.A. § 594; V.R.F.P. 7.
¶ 23. Mother does not contest the trial court’s appointment of counsel for son in this case.
She argues that the power to appoint counsel does not entail the power to confer any rights for
counsel to participate except in one limited circumstance. She contends that a child’s attorney can
participate at a custody trial only to represent the child if and when the child testifies, which did
not happen here. Section 594 of Title 15 provides that “[t]he court may appoint an attorney to
represent the interests of a minor or dependent child with respect to child support and the allocation
of parental rights and responsibilities.” 15 V.S.A. § 594(a).
Our primary objective in construing a statute is to effectuate the
Legislature’s intent. In accomplishing this, our first step is to
examine the statute’s language because we presume that the
Legislature intended the plain, ordinary meaning of the statutory
language. If a statute is clear on its face, we accept its plain meaning
and will not rely on statutory construction, but where the language
creates ambiguity or uncertainty, we resort to statutory construction
to ascertain the legislative intent. In construing legislative intent,
“we must consider the entire statute, including its subject matter,
effects and consequences, as well as the reason for and spirit of the
law.”
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Shires Hous., Inc. v. Brown, 2017 VT 60, ¶ 9, 205 Vt. 186, 172 A.3d 1215 (quotations and citations
omitted).
¶ 24. Although the plain language of 15 V.S.A. § 594(a) does not expressly define the
scope of a child’s attorney’s participation, accepting mother’s argument would render this
provision meaningless. Baldauf v. Vt. State Treasurer, 2021 VT 29, ¶ 19, __ Vt. __, 255 A.3d 731(“We consider the whole and every part of the statute and avoid a construction that would render
part of the statutory language superfluous.”). Section 594 clearly envisions a role for the child’s
attorney in two distinct circumstances: subsection (a) provides the court with discretion to appoint
an attorney “with respect to . . . the allocation of parental rights and responsibilities”; subsection
(b) requires the court to appoint an attorney for the child before the child is called as a witness in
a custody case. 15 V.S.A. § 594. Thus, for any custody case where a child does not testify, the
Legislature saw fit to provide the trial court with discretion to appoint an attorney for the child.
The Legislature clearly contemplated some role for the child’s attorney in such cases; otherwise
this assignment of discretion would make no sense.
¶ 25. We discussed the intent of 15 V.S.A. § 594 in Ihinger v. Ihinger, which is
instructive here. We held in Ihinger that nonparty children do not have standing to appeal the
family division’s custody order. Ihinger, 2003 VT 38, ¶ 10. In so holding, we explained that the
Vermont Legislature “did not intend for the minor children of divorcing parents to be statutory
parties in the divorce proceeding,” but that the Legislature “has devised alternative means by which
children’s interests are protected during a divorce,” including giving the family division
“discretion to appoint a guardian ad litem and an attorney for the children to assure the children’s
best interests are met.” Id. ¶ 8 (citing 15 V.S.A. §§ 594, 669; V.R.F.P. 7). Because the purpose
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of 15 V.S.A. § 594 is to protect the child’s best interests, it follows that the scope of the child’s
attorney’s participation in the custody matter should be guided by the child’s best interests.1
¶ 26. This understanding is bolstered by the structure and context of Vermont’s child-
custody statutes. See Ihinger, 2003 VT 38, ¶ 7 (“Divorce is a creature of legislative enactment,
and courts may adjudicate matters in a divorce only in accordance with statute. We examine the
statutes governing divorce proceedings in pari materia to ascertain and give effect to the
Legislature’s intent.” (citation omitted)). The Legislature designated “[t]he judges of the Superior
Court [as] triers of questions of fact as well as of law” in custody cases. 15 V.S.A. § 591. It also
tasked the family division with determining what parental arrangement is in the child’s best
interests—a mixed question of fact and law. Id. § 665(b). To assist the court in this critical
endeavor, the Legislature provided it with discretion to appoint a guardian ad litem and an attorney
to represent the child, even where the child is not called as a witness. 15 V.S.A. §§ 594, 669.
These two roles are distinct. “[T]he court may appoint a guardian ad litem to assist the child in
understanding the process and to provide the parties and their attorneys with information that can
assist the parties in reaching an outcome that is in the best interest of the child. The guardian ad
litem may be an attorney but shall not serve as the child’s attorney.” V.R.F.P. 7(b); see also In re
D.B., 155 Vt. 580, 585, 587 A.2d 966, 969 (1991) (“[T]he roles of attorney and guardian ad litem
1
We also interpreted 15 V.S.A. § 594 in Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139(1978), observing that the children’s “attorney stands in the same relationship to the children and
to the court as any other attorney representing his client. He may present evidence, cross-examine
witnesses, and argue on the evidence on behalf of his clients.” Id. at 533, 394 A.2d at 1142.
However, this observation was dictum, without further analysis or discussion of authority. We did
not have occasion in Lumbra to analyze the bounds of the trial court’s discretion either in
appointing an attorney to represent a child in custody matters or in determining the scope of that
attorney’s participation. To the extent our decision today conflicts with this dictum in Lumbra,
we do not follow it. See Roy v. Woodstock Cmty. Tr., Inc., 2013 VT 100A, ¶ 56 n.12, 195 Vt.
427, 94 A.3d 530 (“Because, as noted, our earlier decisions did not address the question presented
here, their broad language was essentially nonbinding dicta, and as such need not be specifically
overruled.”).
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for a minor are separate in order to avoid the conflict that could result where legal counsel is cast
in the quandary of acting as both attorney and client.” (quotation omitted)). That the Legislature
provided for these two independent positions strongly suggests an intent for the child’s attorney—
if appointed—to take on a role distinct from the guardian ad litem. Both roles are meant to assist
the court in its goal of ascertaining the child’s best interests.
¶ 27. Applicable procedural rules provide further, albeit limited, guidance regarding the
permissible scope of a child’s attorney’s participation in custody matters. Because both the Civil
and Family Rules apply in parentage cases, we look to both. V.R.F.P. 4.0(a)(2)(A) (providing that
Vermont Rules of Civil Procedure apply to parentage cases). Contrary to mother’s assertion,
neither Civil Rule 17 nor Family Rule 7 prohibits a nonparty child’s attorney from examining
witnesses in a custody proceeding. Civil Rule 17 addresses the capacity of various persons to sue
and be sued, but it does not speak to the court’s discretion regarding examination of witnesses.
V.R.C.P. 17. Family Rule 7 requires the court to appoint an attorney for a child “[i]f issues related
to the child are contested and the guardian ad litem recommends the appointment of an attorney
for the child” and otherwise gives the court discretion to appoint an attorney for the child “[i]n
appropriate circumstances.” V.R.F.P. 7(c). It does not limit the participation of a child’s attorney
once appointed. Mother suggests that the 2014 amendments to Family Rule 7—which narrowed
the role of the guardian ad litem and removed language requiring the guardian ad litem to be an
advocate for the child—somehow also narrowed the child’s attorney’s role. See Reporter’s
Notes—2014 Amendment, V.R.F.P. 7. Mother implies that these amendments recognize that a
child never needs an advocate in custody cases. No such intent is evident. Rather, because these
two roles are complementary and because advocacy is a core function of any attorney, see
V.R.Pr.C. Preamble, [2] (describing role of advocate among lawyer’s primary functions), the
amendment clarifying that a guardian ad litem cannot act as an advocate signifies that any
advocacy lies solely within the purview of the child’s attorney.
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¶ 28. The trial court here recognized that no procedural rule expressly dictated
parameters for a nonparty child’s attorney’s participation in a custody trial, and it instead relied on
various catchall rules, including V.R.C.P. 1 and 81, as grounds for permitting son’s attorney to
raise objections and cross-examine witnesses.2 It is not clear from the hearing transcript exactly
how the court interpreted these catchall rules. Rule 1 provides that the Civil Rules “shall be
construed, administered, and employed by the court and the parties to secure the just, speedy, and
inexpensive determination of every action.” V.R.C.P. 1. This sentence “establish[es] a canon of
liberal construction.” Nelson v. Russo, 2008 VT 66, ¶ 8, 184 Vt. 550, 956 A.2d 1117 (mem.); see
also Leger v. Dessureault, 733 F. Supp. 786, 789 (D. Vt. 1990) (citing Rule 1 to conclude “our
foremost objective whenever we interpret the Vermont Rules of Civil Procedure must be to do
justice”). For example, we cited Rule 1 to rely on the “broader purposes” of Rule 56 in holding
that a verified complaint may be used in place of an affidavit to oppose summary judgment.
Johnson v. Harwood, 2008 VT 4, ¶ 10, 183 Vt. 157, 945 A.2d 875.
¶ 29. Rule 81 works in tandem with Rule 1 to some extent. It provides in relevant part
that “[w]hen no procedure is specifically prescribed, the court shall proceed in any lawful manner
not inconsistent with the Constitution of the State of Vermont, these rules, or any applicable
statutes.” V.R.C.P. 81(d). The Reporter’s Notes explain that “Rule 81(d) gives the court a limited
2
The court also relied on Vermont Rule of Evidence 611, which provides in relevant part
that trial courts “shall exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and presentation orderly and
effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.” V.R.E. 611(a). This rule is typically
invoked to change the mode or order of presentations or to limit, rather than expand, the scope of
evidence presented. See, e.g., Varnum v. Varnum, 155 Vt. 376, 390, 586 A.2d 1107, 1115 (1990)
(“[T]he power granted by Rule 611(a) includes the authority to set reasonable limits on the
consumption of time in examining witnesses.”); see also In re H.A., 153 Vt. 504, 511-12, 572 A.2d
884, 888-89 (1990) (affirming, based on V.R.E. 611(a), trial court’s ruling that limited scope of
cross examination and prevented one party’s attorney from directly testifying). We need not
decide the rule’s application to mother’s claim that the court impermissibly expanded the
presentation of evidence because other legal provisions support the court’s ruling on mother’s
objection.
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discretion to improvise procedures in unforeseen situations which the rules do not cover. It is not
intended as a general power to enlarge the rules.” Reporter’s Notes, V.R.C.P. 81(d). Thus, neither
Rule 1 nor 81 was an independent source of authority for defining the scope of son’s attorney’s
participation.
¶ 30. Instead Rule 1 provided a lens through which the trial court could liberally interpret
other potentially applicable Civil Rules—for example, Civil Rule 43, which mother raised below
but not on appeal. For its part, Rule 81 empowered the trial court to improvise a procedure—
integrating the limited participation of a nonparty’s attorney into the sequence of proceedings at
trial—to effectuate the substantive authority established by V.R.F.P. 7(c) and 15 V.S.A. § 594.
Viewed in this light, the trial court’s reliance on Civil Rules 1 and 81 was well-placed.
¶ 31. Collectively Family Rule 7 and 15 V.S.A. § 594 establish the trial court’s discretion
to appoint an attorney for a child in any custody case, regardless of party status, under “appropriate
circumstances.” V.R.F.P. 7(c). Because the overarching purpose of these provisions is to protect
the child’s best interests, Ihinger, 2003 VT 38, ¶ 8, we hold that the extent of the child’s attorney’s
participation, if appointed, should be clearly articulated at the outset and dictated by the trial
court’s assessment of the child’s best interests. The court must exercise discretion to make this
determination, and explain its reasoning, on a case-by-case basis, considering the totality of
circumstances.
¶ 32. Unfortunately the trial court did not define the role or purpose of son’s attorney
when it initially appointed him nearly two years before the first merits hearing. Not only did this
lack of explanation leave the parties uncertain as to the potential extent of son’s attorney’s
participation, it also makes our task in reviewing the court’s exercise of discretion more difficult.
See ABA Section of Fam. L., Standards of Practice for Lawyers Representing Children in Custody
Cases, 37 Fam. L.Q. 131, 154 (2003) [hereinafter “ABA Standards”] (explaining that where
appointing counsel for child is discretionary, it is important for court to provide clear explanation
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of scope and purpose of appointed counsel to provide fair notice to all parties and allow court to
make informed decisions and exercise effective oversight throughout case). Nevertheless the
record supports the conclusion that the court did not abuse its discretion in overruling mother’s
objection at trial and permitting son’s attorney to raise objections and cross-examine witnesses.
To guide our review, we refer to but do not adopt the ABA Standards, which describe
circumstances or allegations that, if present in a custody case, should weigh in favor of appointing
counsel for the child. Id. at 153. Many attend this case: alleged “[h]arm to the child from illegal
or excessive drug or alcohol abuse by a child or a party”; “[p]ast or present mental health problems
of the child or a party”; “[s]pecial physical, educational, or mental health needs of a child that
require investigation or advocacy”; “[a] high level of acrimony”; and alleged “[i]nterference with
custody or parenting time.” Id.
¶ 33. The court, on its own accord, appointed an attorney and guardian ad litem for the
child a few months after a contentious emergency hearing on cross motions to modify parental
rights and responsibilities. The hearing illuminated serious allegations against both parties—that
father was interfering with the custody arrangement and trying to alienate son from mother, and
that mother was a danger to herself and son because she attempted suicide, abused alcohol and
drugs, and had relationships with unsafe men. Throughout the objection-laden hearing, parents’
attorneys tussled over DCF records pertaining to the family and criminal and DCF records of
individuals with whom mother had close relationships. Counsel also extensively debated the
admissibility of evidence regarding then-four-year-old son’s description of what happened the first
night mother was hospitalized. In addition, son had potential mental-health diagnoses and parents
disagreed about the need for medication. All of these circumstances militated in favor of
appointing an attorney for son to actively represent the son’s best interests through at least some
level of participation in the case. We note further that at the merits hearing, son’s attorney adduced
non-cumulative testimony relevant to several of the statutory best interests factors. See id. (“In
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some cases the court’s capacity to decide the case properly will be jeopardized without a more
child-focused framing of the issues, or without the opportunity for providing additional
information concerning the child’s best interests.”). In light of the above, we cannot say that the
family division abused its discretion in allowing son’s attorney the limited opportunity to
participate by way of raising objections and cross-examining witnesses called by each parent.
¶ 34. We reiterate the narrowness of our holding in this case. We do not opine on whether
further participation by son’s attorney, short of party status, may have been appropriate, or what
circumstances, beyond those present in this case, might justify appointment of counsel for a child.
We conclude merely that based on the record before the trial court—and its authority to compel
the services of an attorney to represent the child where appropriate to fulfill its obligation to uphold
the child’s best interests—the court acted within its discretion in allowing son’s attorney to
participate to the extent it did.
¶ 35. We turn briefly to mother’s contention that the particular attorney appointed to
represent son was biased against her. Mother does not explain what relief she sought from the trial
court, how the court erred by appointing or allowing this particular attorney to represent son, or
what remedy she seeks on appeal. Mother baldly states that the participation of this attorney
impacted her “substantial right” to have a hearing based solely on the parties’ presentations and
without the appearance that son was antagonistic to her position, but she fails to develop this
assertion or provide any legal support. We therefore reject the contention as inadequately briefed.
See V.R.A.P. 28(a) (appellant’s brief shall contain specific claims of error, contentions of
appellant, how they were preserved, and citations to authorities, statutes, and parts of record relied
on); Johnson v. Johnson, 158 Vt. 160, 164 n.*, 605 A.2d 857, 859 n.* (1992) (Supreme Court will
not address contentions so inadequately briefed as to fail to minimally meet standards of V.R.A.P.
28(a)).
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¶ 36. Mother’s final argument is that the court made insufficient findings as to son’s best
interests. She concedes that the court made findings as to the factors in 15 V.S.A. § 665, but she
recasts her previous arguments regarding the weight and credibility of evidence. As we do not
reweigh evidence or assess credibility de novo on appeal, Mullin, 162 Vt. at 261, 647 A.2d at 720,
we see no basis to overturn the court’s order.
Affirmed.
FOR THE COURT:
Chief Justice
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