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.