WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action.To find help, please go to the VT Places that Help page. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
What is custody (known as parental rights and responsibilities - "PR&R")?
What are the options for physical responsibility (physical custody)?
Physical responsibility or physical custody refers to the right to have your child live with you and stay overnight with you. The parent with physical responsibility takes care of the child’s day-to-day needs.1
When the child lives with one parent, that parent has sole physical responsibility or sole custody. A parent with sole physical responsibility has the child live with him or her for most of the time. Legally, a parent with sole custody is responsible for the child’s care for between 75% and 100% of the child’s time.2
When parents share the responsibility for taking care of a child and having the child live with them, this is called shared physical responsibility. Here are some examples of shared physical responsibility:
- your child spends one week with you and then one week with the other parent
- your child spends weekdays with you and weekends with the other parent.
A judge can also order split physical responsibility or split custody when there’s more than one child involved. When parents have split physical responsibility, some of the children live with the mother while the rest live with the father.
1 VT ST T. 15 § 664
2 VT ST T. 15 § 657(a)(d)
What are the options for legal responsibility (legal custody)?
Legal responsibility means who has the right to make important decisions about your child and decide how your child is raised. Some examples of these types of decisions are:
- what kind of education your child receives;
- how your child receives medical and dental care;
- what type of religious training your child will receive; and
- if your child can travel outside of Vermont.1
Judges usually give this decision-making ability to one parent. That is called having sole legal responsibility or sole legal custody. When parents share the right to make important decisions about the child’s life (usually due to an agreement between the parents) this is called shared legal responsibility. If there’s more than one child, a judge can also order split legal responsibility, where the mother has the decision-making ability for some of the children but the father has the decision-making ability for the other children.
1 15 V.S.A. § 664(1)(A)
What is parent-child contact (visitation)?
“Parent-child contact” refers to visitation of the child – it is the right to spend time with your child that doesn’t live with you. If one parent has sole physical responsibility for a child, the other parent will usually have some form of parent-child contact.
If you and the other parent cannot agree about PR&R and/or parent-child contact, you will have a court hearing where a judge will decide who gets physical custody and how much parent-child contact the non-custodial parent will get.
Judges usually want children to contact with both of their parents, unless it would harm the children. If the child’s other parent has harmed your child in some way, the judge may limit parent-child contact or say there won’t be any contact at all. Judges usually order at least some parent-child contact. If you want a judge to order no parent-child contact for the other parent, you usually have to show the judge that the other parent is a serious and immediate threat to your child. A lawyer may be able to help you with this. To find a lawyer please visit the VT Finding a Lawyer page.
What are some advantages and disadvantages of getting a court order addressing PR&R?
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to VT Finding a Lawyer to seek out legal advice.
Who can get custody and visitation
Can a parent who committed violence get parental rights and responsibilities (custody) or parent-child contact (visitation)?
It is possible, yes. Evidence of abuse, and the impact of abuse on the child is only one of the factors that the court will use in determining parental rights and responsibilities.1 It is important to note that for these purposes, “abuse” can be any one of the following: attempting to cause or causing you physical harm; placing you in fear of immediate serious physical harm; child abuse; stalking; or sexual assault.2
Evidence of abuse is considered in the following manner. If the other parent has been convicted of domestic assault against you within the past 10 years or a court found that the parent committed abuse against you, or a member of your family or household, then the judge can only let the abusive parent have contact with the child if protections can be put in place to keep you and the child safe.3 These are some of the protections that the court can order:
- the exchange of the child will occur in a protected setting;
- visitation with the child will be supervised by another person or by an agency (with the agency’s fee to be paid by the abuser);
- the abuser must go to counseling;
- the abuser must stop using alcohol or drugs during the visitation and 24 hours before it begins (if alcohol or drugs were involved in the domestic abuse);
- the abuser cannot have overnight visits;
- keeping the address of the child confidential; and
- any other condition to keep you and the child safe.4
Note: If your child was conceived as a result of sexual assault by the other parent, there are different laws that apply. For more information, see If my child was conceived as a result of sexual assault, can the offender get parental rights and responsibilities?
1 15 V.S.A. § 665(b)(9)
2 15 V.S.A. § 1101(1)
3 15 V.S.A. § 665a(a)
4 15 V.S.A. § 665a(b),(c)
If my child was conceived as a result of sexual assault or human trafficking, can the offender get parental rights and responsibilities?
If your child was conceived due to sexual assault or as the result of human trafficking, the other parent (the offender) can be denied all contact with the child. However, the situation is slightly different if the offender was convicted in criminal court of the sexual assault or not.
When there is a criminal conviction:
If the other parent was convicted in a criminal court of one of the following crimes, and your child was conceived as a result, the judge can grant you sole parental rights and responsibilities and deny all parent-child contact to the offender:
- sexual assault as explained in subsections (a), (b), (d), (e);
- aggravated sexual assault;
- aggravated sexual assault of a child;
- lewd and lascivious conduct with a child;
- human trafficking; or
- similar crimes in other states.1
If a judge issues an order granting you sole custody and denying parent-child contact, the order is permanent and cannot be modified. If there was a prior parental rights and responsibilities order in place regarding the child and the offender, the judge is supposed to end (terminate) that order.2
When there is not a criminal conviction:
Even if the other parent was not convicted of a crime related to sexual assault or human trafficking but you can still prove to a judge by clear and convincing evidence that you were sexually assaulted, trafficked, or sexually exploited and the child was conceived as a result, the judge can still grant you sole custody, deny all parent-child contact to the other parent, and terminate any existing parent-child contact order between the child and the offender. However, the judge has to first determine whether or not it would be in the child’s best interests to do so and it may be possible to modify the order in the future if the party can prove there are extraordinary, real, substantial, and unanticipated change of circumstances.3 For the purpose of this part of the law, you must prove that even though the other parent was not convicted of any of these crimes, s/he committed one of the following against you:
- sexual assault as explained in subsections (a), (b), (d), (e);
- aggravated sexual assault;
- aggravated sexual assault of a child;
- lewd and lascivious conduct with a child; or
- sexual exploitation of an inmate;
- sexual exploitation of a minor;
- sexual abuse of a vulnerable adult; or
- similar crimes in other states.4
Note: Getting an order under either of these above scenarios that denies the offender all parent-child contact does not affect your right to file for child support against him/her. You can still seek child support if you choose to do so.5
1 VT ST T. 15 § 665(f)(1)
2 VT ST T. 15 § 665(f)(4)
3 VT ST T. 15 § 665(f)(2), (f)(4)
4 VT ST T. 15 § 665(f)(2)(A), (f)(2)(B)
5 VT ST T. 15 § 665(f)(3)
Can I get temporary custody as a part of a relief from abuse order (restraining order) against the other parent?
Maybe. If a judge believes that there is immediate danger of physical or emotional harm to children under 18, the judge court may award temporary custody of these minor children to the non-abusive parent or to other persons.1 Under the Vermont Abuse Prevention law, if you go to court and the court finds enough evidence of abuse, the judge must make a temporary order to protect you, your child or both, which may include:
1. a temporary award of parental rights and responsibilities (custody), or
2. an order which restricts parent-child contact in whatever way is necessary to protect you or your child, or both, from abuse. This order could include conditions under which you may deny parent-child contact until going back to court.2
If the court finds that there is an immediate danger of physical abuse, an order of emergency relief may be granted requiring the abuser:
1. To refrain from abusing the victim, the children, or both, and
2. To refrain from abusing the victim’s personal liberty, the personal liberty of the children, or both.
For more information on relief from abuse orders and how to get one, see our VT Restraining Orders page.
1 VT ST T. 15 § 1104
I am the child's grandparent. Can I get visitation?
In certain cases, grandparents can ask the court for visitation. If there is a court which has considered or is considering the custody or visitation of a child, the grandparent can file a written request with the court to ask for visitation. The court can grant it if it would be in the best interest of the child.1
If there is no such case going on regarding custody or visitation, a grandparent can start his/her own case for visitation in superior court ONLY if a parent of the child:
- is deceased (dead),
- is physically or mentally unable to make a decision about visitation, or
- has abandoned the child.2
When deciding whether or not visitation with the grandparent would be in the child’s best interest, a judge may look at:
- the love, affection and other emotional ties existing between the grandparent and the child;
- the ability and willingness of the parties involved to give the child love, affection and guidance;
- the nature of the relationships between the grandparent and the grandchild and the desirability of maintaining the relationship;
- the moral fitness of the parties;
- the mental and physical health of the parties;
- the child’s reasonable preference, if the court believes the child is old enough to express a preference;
- the willingness and ability of the grandparent to help and encourage a close and continuing relationship between the child and the other parties and; and
- any other factor which the court considers to be relevant.3
If you are denied visitation by the judge, you have to wait one year before you can file for it again unless there has been a substantial and unanticipated change of circumstances since you were denied the visitation – then you can re-file before the one year period is up.4
1 VT ST T. 15 § 1011
2 VT ST T. 15 § 1012
3 VT ST T. 15 § 1013
4 VT ST T. 15 § 1015
If I have moved away from the home where the father and children currently live, will this hurt my chances of gaining custody?
Perhaps. It will depend on the facts of the case. If you left the home due to abuse, and your children were also being abused, the judge might fault you for leaving your children with the abuser. However, if there is a valid reason that you were unable to take the children with you, the judge might consider this as well. If you are considering moving away from the home where your children and the father live, you may want to speak with an attorney for advice first about how it will impact your case. For a list of legal resources, go to our VT Finding a Lawyer page.
How the process works
How are parental rights and responsibilities decided?
If both parents can come to an agreement on PR&R, the parents can make an arrangement on PR&R that works for both of them. One parent can have all of the parental rights and responsibilities, or the parental rights and responsibilities can be split between the parents in some way. If the parents cannot come to an agreement about PR&R, there will be a hearing (trial) in front of the judge where both parents get to present evidence and witnesses. The judge will make the final decision.
If both parents can agree about PR&R, what will the agreement look like?
If both parents agree to divide or share parental rights and responsibilities, the court will usually assume that the agreement is in the child’s best interests and will enforce the parents’ agreement. If you want an agreement between you and the other parent to be complete and enforceable, the agreement must include statements about the following:
- where the child will live;
- when and how often there will be contact between the child and the non-custodial parent (parent-child contact);
- who will make decisions about the child’s education;
- who will provide for and decide about the child’s medical, dental and health care;
- travel arrangements for the child;
- how the parents will communicate with each other about the child; and
- if PR&R are shared between the parents, how the parents will resolve disputes about the child when they cannot agree (such as mediation or binding arbitration).1
1 VT ST T. 15 § 666
If the parents can’t agree about PR&R, what factors will a judge consider?
If the parents cannot agree about PR&R, there will be a contested hearing in front of a judge. A judge makes a decision that s/he thinks will be in the child’s best interests. Vermont laws say that after parents have separated or divorced, it is in the child’s best interests to have continuing, regular physical and emotional contact with both parents. The exception to this, however, is when the child or the parent will suffer direct physical harm or significant emotional harm from seeing an abusive parent.1
If the parents cannot agree to divide or share parental rights and responsibilities, the judge will usually award rights and responsibilities to just one parent - but the other parent may still have parent-child contact.2
In Vermont, the courts do not choose one parent over the other because of the gender of the child, the gender of either parent, or the financial resources of a parent.3
A judge will consider factors like these when determining the child’s best interests:
- the relationship of the child 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. This includes seeing the other parent in person, not just over the phone, except where physical contact could result in harm to the child or to a parent;
- the quality of the relationship between the child and whoever takes care of the child most of the time (“the primary caretaker”);
- the relationship of the child with anyone else who might significantly affect the child (this could include relatives, babysitters, friends, etc.);
- if the responsibility is shared or divided, the judge compares each parent’s ability to communicate/cooperate with the other parent and to make decisions together with the other parent about the child; and
- evidence of abuse of a family or household member, and the impact of the abuse on the child and on the relationships between the child and the abusing parent.4 (See VT ST T. 15 § 1101(1) for the definition of “abuse.”)
1 VT ST T. 15 § 650
2 VT ST T. 15 § 655
3 VT ST T. 15 § 665(b)
4 VT ST T. 15 § 665(c)
What is mediation? What is a parent coordination?
In Vermont, mediation is not mandatory. Parents might be referred to mediation by the family court after you file for PR&R or parents sometimes choose mediation before filing in court. Mediation means that a neutral third party (a mediator) tries to help the arguing parties agree on a solution without going to a judge. If you try mediation and you don’t come to an agreement, you can always go to court and see a judge, because mediation is not binding. Mediation is also called conciliation, case evaluation and facilitated negotiation. When there is current or past abuse between the parties, mediation may not be a good solution since you cannot have an open exchange of ideas and make compromises with someone who intimidates you.
The family court judge might also refer you to parent coordination in which a parent coordinator meets with the parties separately and might meet with the children, teachers, counselors and others who know the children to help come up with an agreement about PR&R. If the parents agree to a plan, it would be referred to the judge to be signed and turned into an official order.
Both mediation and parent coordination cost money but the fee is adjusted according to the parties’ income. The Vermont Judiciary website has more information on mediation, parent coordination and the specific costs.
Filing for custody (PR&R)
How do I file for parental rights and responsibilities?
How much does it cost to file? Do I need a lawyer?
The Vermont Judiciary website posts a list of fees for certain cases. Click here to access it. If you do not see the fee for the case you are filing, or have questions, you can call the local courthouse to ask what the fee is and, if you are a low-income person, you can ask if there is a fee waiver available. Go here to find the courthouse near you: VT Courthouse Locations.
Although you do not need a lawyer to file, it is almost always best to have a lawyer help you if you can get one. This can help make sure that your rights and your children’s rights are protected. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our VT Finding a Lawyer page.
If you are unable to get a lawyer, you can get the forms you need at the local courthouse or you can visit our Download Court Forms Page for links to some of these forms online.
You should know that court workers cannot tell you whether you should bring your case to court or what will happen if you do. Even if you plan on representing yourself, it may be helpful for you to have a lawyer review your forms before you file them.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
What happens if I recently moved to Vermont - can I still file here?
What are the exceptions to the “home state rule”?
There are exceptions to the home state rule. In some cases, you can file for custody in a state where the children and at least one parent have “significant connections.” If you don’t think that Vermont would meet the traditional requirement for a “home state,” you may still be able to file for custody in Vermont if:
• No other state is the “home state” according to the definition, and the court thinks that it is in the best interest of the child to decide the issue and
• The child and at least one parent have significant ties to the state and
• There is substantial evidence concerning the support of the child available in the state.
If Vermont is your child’s home state, you may be able to file for temporary emergency custody in a different state if:
1. The child is present in that state; and
2. The child has been abandoned or it is necessary in an emergency to protect the child because the child, a parent, or sibling is subjected to or threatened with mistreatment or abuse.1
For more information on getting a custody order transferred to another state, see Changing a final custody order. This can be very complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this - you can find free and paid lawyers in your state here: VT Finding a Lawyer. Or you can write to our Email Hotline for other resources.
1 UCCJEA § 204(a)
Can I change the state where the case is being heard?
Maybe. If you move to another state, you may be able to change the state where the custody case is being heard. However, if the other parent disagrees with moving the case or if the court has already spent a lot of time and resources on the case, it may be hard to get it transferred. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. For more information on getting a custody order transferred to another state, see Changing a final custody order. For legal advice, go to VT FInding a Lawyer. You can also write to our Email Hotline for more information.
After an order is in place
If a court denies a request for PR&R, does the judge have to explain why?
Can a parent who does not have PR&R have access to the child’s records?
If a PR&R order is already in place, how can I get it changed?
Either party can try to modify (change) a PR&R order if you can show a “real, substantial and unanticipated change of circumstances” has happened since the order was issued. If you can prove this, then the the judge will evaluate whether changing the order would be in the child’s best interests.1 (Note: The law regarding modification is different for orders issued when a child is conceived as the result of a sexual assault. For more information, go to If my child was conceived as a result of sexual assault, can the offender get parental rights and responsibilities?)
Note: If the judge modifies an order for physical responsibility, s/he is supposed to set a date for a child support modification hearing. At the same time, the judge can issue a temporary support order pending the modification hearing so that the amount of child support reflects the change in physical responsibility.2
Some examples of “real, substantial and unanticipated change of circumstances” may include:
- Relocation due to a job or a family emergency;
- A complete breakdown in communication between parents who have shared custody; or
- The other parent becomes abusive toward the child.
However, there can be many other situations that meet the definition of “real, substantial and unanticipated change of circumstances” that are not mentioned here. Talk to a lawyer in your area to find out if your situation might qualify you to get the custody order changed. Go to VT Finding a Lawyer for free and paid legal resources.
1 VT ST T. 15 § 668(a)
2 VT ST T. 15 § 668(b)
If I have PR&R, can I take my kids out of the state?
This may depend on the terms of the order. Your order may say you can take the children out-of-state; it may say you can’t take the children out-of-state; or it may not address the issue at all. If your order does not specifically allow you to leave the state, you may need to get permission from a judge before leaving. You may want to have an attorney look over your specific order, to get legal advice about whether or not you can leave the state with your children.
If you take your children out of state in violation of a custody order, you could possibly be charged with custodial interference or the other parent could file for contempt of court. Contempt of court is when a judge finds that you’ve violated a court order and takes steps to try to force you to follow the order. Custodial interference is a criminal charge where one parent takes the minor child away from the other parent who has a legal right to see the child.1
Custodial interference and contempt of court can have serious legal consequences. If you are considering taking your child away from an abusive parent, please talk to an attorney. For a list of legal resources, please see our VT Finding a Lawyer page.
1 VT ST T. 13 § 2451(a)