Falanga v. Boylan

¶ 1.

Reiber, C.J.

In this parentage action, father appeals the superior court’s decision denying, based on the absence of changed circumstances, his motion to modify parental rights and responsibilities with respect to the parties’ young son following mother’s relocation with the child to the State of Georgia. We affirm.

¶ 2. For eight or nine months following the birth of their son on January 17, 2012, the parties lived together in an apartment connected to the home of the child’s maternal grandfather in Springfield, Vermont. In the fall of 2012, mother asked father to leave the apartment, and father moved into his parents’ home in Chester, Vermont.

¶ 3. Father brought the instant parentage action on November 30, 2012. Following a hearing, the family division of the superior court issued a December 7, 2012 interim order providing that the parties’ son, J.B.-F., would reside with mother. Under that order, father had limited parent-child contact, supervised by father’s parents, totaling about six percent of the child’s time, because of concerns about father’s mental stability at the time of the breakup. On February 25, 2013, the family court issued a temporary order granting mother sole legal and physical responsibility for J.B.-F. and increasing father’s parent-child contact to two overnights per week without supervision restrictions. The parties reached an agreement on parental rights and responsibilities at a September 2013 hearing, and the following month the family court issued a final order retaining mother as J.B.-F.’s sole custodian subject to father having parent-child contact that amounted to approximately twenty-five percent of the child’s time.

¶ 4. On March 25, 2014, mother’s attorney notified father’s attorney by letter that mother planned to relocate with her boyfriend to Peachtree City, Georgia on May 3, 2014. The letter included a proposed visitation schedule that consisted of four time periods during the year, totaling seven or eight weeks, during which J.B.-F. could visit Vermont, supplemented by weekly contact through Skype or Facebook. In response, father filed an emergency motion to modify parental rights and responsibilities in which he asked that custody of the child be transferred to him.

¶ 5. A hearing on the motion was held on April 24, 2014. The hearing was restricted to the threshold issue of whether there was a real, substantial and unanticipated change of circumstances sufficient to modify parental rights and responsibilities based on the best interests of the child. See 15 V.S.A. § 668(a) (providing, in relevant part, that family court may modify previous order in best interests of child “upon a showing of real, substantial and unanticipated change of circumstances”).¹ Mother and father were the only witnesses at the hearing. The day after the hearing, the family court issued a decision denying father’s motion to modify based on its finding that father had failed to demonstrate the existence of changed circumstances sufficient to warrant another hearing on whether J.B.-F.’s best interests warranted transferring custody to father. While recognizing that mother’s move would disrupt father’s ability to see J.B.-F. as frequently as he had been under the parties’ then-current schedule, the court concluded that Georgia was sufficiently close to arrange longer visits by air travel of reasonable duration. Noting that the then-current schedule would be unworkable once mother moved to Georgia, the court directed the parties to negotiate a new schedule and the court clerk to schedule a hearing on parent-child contact. That hearing was later canceled when father filed a notice of appeal of the family court’s decision.

¶ 6. Meanwhile, in early May, after the family court issued its decision, mother moved to Georgia with J.B.-F. Following a hearing on August 6, 2014, the court issued a new parent-child-contact order based on the parties’ stipulation in anticipation of father’s planned move to Georgia the next month to be near J.B.-F. The new schedule called for J.B.-F. to stay with father in Vermont from August 12 to September 1, 2014, at which point father would fly to Georgia with the child and thereafter have regular specified parent-child contact in Georgia.

¶ 7. In this appeal from the family court’s April 25 order denying his motion to modify parental rights and responsibilities, father argues that the court’s decision is not supported by the law in light of the evidence presented in the case. In response, mother argues that the case is moot because father decided to move to Georgia to be near the parties’ child, and that, in any event, the family court correctly determined that father failed to meet his burden of showing a real, substantial and unanticipated change of circumstances.

¶ 8. We first address the mootness question. Mother contends that father’s move to Georgia for an indefinite period of time resolved the underlying controversy and thus made this appeal moot. Mother asserts that the predicate bases for father’s claim of changed circumstances — the distance of the move and the cost of travel to see J.B.-F. — no longer exist, and thus there is no live controversy. See In re Moriarty, 156 Vt. 160, 163, 588 A.2d 1063, 1064 (1991) (stating general rule that case becomes moot when issues no longer present live controversy, when parties no longer have legally cognizable interest in outcome, or when reviewing court can no longer grant effective relief).

¶ 9. We conclude that the appeal is not moot. At oral argument before this Court, father stated that he moved to Georgia only temporarily so that he could be near J.B.-F. while the Vermont proceedings on his motion to modify are pending, and that he intends- to return to Vermont and live here with J.B.-F. if he obtains custody as a result of those proceedings. According to mother, father indicated at the August 6 hearing that his stay in Georgia was for an indefinite period of time. These statements are not necessarily inconsistent. In any event, apart from the statements at oral argument, there is nothing in the record before us regarding father’s intent as to the length of his stay in Georgia. Under these circumstances, we cannot assume that the appeal is moot.

¶ 10. We now turn to the merits of father’s appeal from the family court’s decision concluding that he failed to demonstrate changed circumstances as the result of mother’s relocation. The moving party has a heavy burden to demonstrate changed circumstances. Sundstrom v. Sundstrom, 2004 VT 106, ¶ 29, 177 Vt. 577, 865 A.2d 358 (mem.). In Hawkes v. Spence, we clarified our law on relocation in custody cases, particularly with respect to determining the threshold question of whether changed circumstances exist. 2005 VT 57, ¶¶ 16-23, 178 Vt. 161, 878 A.2d 273. This area of the law is not susceptible to application of precise formulas, and thus “we must permit trial courts — guided by the principles set forth in Hawkes — the latitude to exercise their discretion to reach reasonable decisions.” Rogers v. Parrish, 2007 VT 35, ¶ 1, 181 Vt. 485, 923 A.2d 607.

¶ 11. In Hawkes, we adopted “§ 2.17(1) and comment b of the American Law Institute’s (ALI) Principles of the Law of Family Dissolution for determining when changed circumstances exist” in relocation cases. 2005 VT 57, ¶¶ 1, 13. Section 2.17(1) provides that relocation is a substantial change of circumstances justifying a reexamination of parental rights and responsibilities “only when the relocation significantly impairs either parent’s ability to exercise responsibilities the parent has been exercising or attempting to exercise under the parenting plan.” ALI Principles of the Law of Family Dissolution §2.17(1) (2002). Thus, whether a relocation amounts to changed circumstances sufficient to reexamine a child’s best interests “must be determined in the context of all the surrounding circumstances, keeping in mind that the effect on the child is what makes a change substantial.” Hawkes, 2005 VT 57, ¶ 10.

¶ 12. Comment b in § 2.17(1) acknowledges that the relevant factors in making this determination are too numerous and varied to identify, but lists three nonexclusive factors that are particularly relevant in determining whether changed circumstances exist: “[t]he amount of custodial responsibility each parent has been exercising and for how long, the distance of the move and its duration, and the availability of alternative visitation arrangements.”'ALI Principles, supra, §2.17(1) cmt. b. We must determine, then, “whether mother’s relocation would significantly impair father’s ability to continue exercising the rights and responsibilities he has been exercising.” Hawkes, 2005 VT 57, ¶ 16. To answer this question, the family court must address all relevant factors, including those quoted above, to gain insight into “the nature and extent of [each party’s] relationship” with the child and how the proposed move would affect those relationships. Id.

¶ 13. The first of the three changed-circumstances factors cited in comment b of the ALI principles and adopted in Hawkes is the amount of custodial responsibility that the parties have been exercising and for how long. This factor requires the court to consider the nature and extent of the relationship, and how much the move would affect it. Id. The record is undisputed as to this factor. Father lived with mother at the home of the child’s maternal grandfather for the first several months after J.B.-F.’s birth. For the next few months after leaving mother’s home at her request, father had very limited, supervised parent-child contact until the family court issued a temporary custody order in February 2013. Both the temporary order and the final order issued in October 2013 granted mother sole legal and physical parental rights and responsibilities. Under both orders, father had only limited parent-child contact with J.B.-F. — approximately one-quarter of the child’s time at the home of the child’s paternal grandparents, where father was living.

¶ 14. The facts surrounding the second factor are also undisputed. Mother relocated with the parties’ child to Georgia, a distance of approximately 1100 miles from Vermont, and has no plans to return to Vermont.

¶ 15. Regarding the third factor — the availability of alternative visitation arrangements — mother proposed a visitation schedule in which J.B.-F. would go to Vermont to live with father for seven-to-eight weeks a year, mostly in the summer. The proposal indicated that mother would accompany J.B.-F. on the airplane at her own expense until he could fly alone, and that she would bear the cost of the child’s ticket for the first year’s summer and holiday visits to Vermont. Under the proposal, father would bear the costs of J.B.-F.’s travel the second year. This proposal would have reduced father’s parent-child contact time by about nine percent (from twenty-five percent to approximately sixteen percent). Mother acknowledged that her move would alter father’s parent-child contact, but opined that having longer, albeit less frequent, periods of parent-child contact with father would enhance the child’s stability and be better for all concerned.

¶ 16. In concluding that father had failed to meet his burden of demonstrating changed circumstances sufficient to address whether J.B.-F.’s best interests warranted transferring custody to father, the court emphasized that: (1) the vast majority of the child’s time had been spent with mother, who had exercised sole physical and legal parental rights and responsibilities for most of J.B.-F.’s life; (2) father had no legal parental rights or responsibilities and had limited parent-child contact amounting to only one-quarter of the child’s time; (3) although the distance of the relocation is significant, mother is moving to a place that is regularly serviced by airline flights of a reasonable duration, and the parties will remain in the same time zone and thus have similar daily patterns; (4) given J.B.-F.’s young age, he is not as entrenched in his community in Vermont as an older child might be; and (5) the court could create an alternative visitation schedule that would afford father longer, albeit less frequent, periods of time with J.B.-F. and that would not substantially reduce his parent-child contact time.

¶ 17. We conclude that the family court acted within its wide discretion in finding no changed circumstances sufficient to consider a transfer of custody in this case. By all accounts, father has taken full advantage of his parent-child contact with J.B.-F. That time, however, while not insignificant, is only one-quarter of the child’s time and does not include legal rights or responsibilities. Mother is the sole custodian and is with the child for the vast majority of his time. Thus, regarding the first ALI factor, father has been exercising relatively minimal parental responsibilities under the parenting plan. Although the second factor leans in father’s favor, given the distance of the move, the court concluded that, with respect to the third factor, an alternative visitation schedule that continued father’s parent-child contact, albeit in a different form, could be established. Finally, as the family court pointed out, J.B.-F.’s young age would make the move less disruptive in terms of connections to the community.

¶ 18. Mother’s proposed alternative visitation schedule, which she testified was open to negotiation, would have given father seven to eight weeks a year with J.B.-F. in Vermont. On appeal, father makes much of the financial infeasibility of this plan, but the record does not demonstrate that such an alternative schedule could not work due to financial reasons. Father testified at trial that he would have to stop paying all of his bills for at least two weeks to purchase a ticket for J.B.-F. to come to Vermont. He conceded on cross-examination, however, that the only cost he would bear,' other than airline tickets for J.B.-F. twice a year, would be driving to the airport to pick up J.B.-F. He also acknowledged that he had not considered how much those costs compared to his travel costs under his current visitation schedule. In short, there is nothing in the record indicating that the parties and the court could not have worked out a viable alternative visitation schedule.²

¶ 19. Comparing the consolidated cases in Hawkes is helpful in assessing the family court’s decision here. In both eases in Hawkes, the family court found no changed circumstances as the result of the misperception that our law did not allow a finding of changed circumstances based solely on a relocation by the custodial parent. In one case, we reversed the family court and found changed circumstances as a matter of law because: (1) for a period of years, the parents spent equal time with the child and their “arrangement demonstrated their continued desire for each of them to spend an approximately equal amount of time with their child”; (2) the move was not temporary and was out-of-state, hundreds of miles away; and (3) the family court’s revised alternative schedule demonstrated “that mother’s move required a changed parent-child contact schedule that substantially reduced father’s time with his daughter.” Id. ¶¶ 17-18. We found changed circumstances because “each of the ALI factors strongly indicate[d] that mother’s relocation amounted to a substantial change of circumstances at the time of the modification hearing.” Id. ¶ 19. Nonetheless, we reiterated “that custodial parents may change residency without the family court reexamining the division of parental rights and responsibilities when the relocation does not significantly impair substantial rights and responsibilities being exercised by the noncustodial parent.” Id.

¶20. This first case reviewed in Hawkes is distinguishable principally because, unlike the instant case — in which father has no legal parental rights or responsibilities and has had limited parent-child contact over the course of the child’s life — the parents in that case had committed to an approximately equal sharing of their child’s time. Thus, unlike that case, here the family court could fashion an alternate visitation schedule that would not significantly reduce the total amount of time over the course of a year that father had been spending with the child.

¶ 21. Perhaps even more relevant to our case is the second case reviewed in Hawkes. With respect to that case, we declined to find changed circumstances as a matter of law, even though: (1) the noncustodial father had taken full advantage of his parent-child contact, which was approximately thirty-five percent of the children’s time; (2) the distance of the proposed relocation was from Vermont to California on the Mexican border; and (3) the distance of the move might make it difficult for the family court to fashion a visitation schedule that did not substantially reduce the father’s parent-child contact, particularly considering that the father shared legal parental rights and responsibilities with the mother. Id. ¶¶ 21-22. We concluded that applying the ALI standard and factors did “not so unequivocally demonstrate changed circumstances” so as to preclude the family court from revisiting the issue, particularly because the record indicated “that the current circumstances could be markedly different from what was expected at the time of the final modification order.” Id. ¶ 23. Here, in contrast, father has less parent-child contact and no legal parental rights or responsibilities. If that case did not demonstrate changed circumstances as a matter of law, certainly the instant case does not under the circumstances described above.

Affirmed.

¶ 22.

1 Hereinafter, we will use the short form “changed circumstances” to express the term “real, substantial and unanticipated change of circumstances.”

2 Even though father filed the motion to modify parental rights and responsibilities based on changed circumstances, apparently the dissent would place upon mother the burden of proving that father could not afford two airline tickets per year for their son’s travel. That is not our law. See Sundstrom, 2004 VT 106, ¶ 29 (“The moving party bears a heavy burden to prove changed circumstances, and the court must consider the evidence carefully before making the threshold finding that a real, substantial and unanticipated change of circumstances exists.” (quotation omitted)).