Family Law

How do Judges Decide Child Custody in Vermont

By Kristina Otterstrom, Attorney
Understanding child custody orders in Vermont.

Overview of Custody in Vermont

When parents separate or divorce, they will need a custody order in place, which will set forth each parent’s rights and responsibilities related to physical and legal custody. Physical custody refers to where a child lives, while legal custody involves a parent’s right to make medical, legal, or educational decisions on a child’s behalf.

Vermont law encourages custody orders that maximize each parent’s physical and emotional contact with the child. Obviously, there are exceptions if granting joint custody would harm a child’s best interests. Even in cases where one parent has a history of domestic violence or abuse, a judge usually won’t cut off that parent’s visitation completely. Instead, a court may order supervised visits until a parent can prove that traditional, unsupervised visits are in the child’s best interests.

How Will a Judge Decide Custody?

A judge will evaluate nearly all areas of your family life in a custody hearing because many factors impact a child’s emotional and physical needs. Specifically, a judge may examine at least the following:

  • the child’s relationship with each parent
  • each parent’s willingness and ability to provide the child with love, affection and guidance
  • each parent’s ability to meet the child’s present and future developmental needs
  • the child’s adjustment to school and community
  • each parent’s willingness to foster a relationship between the child and the other parent
  • the child’s relationship with any other person who may significantly affect the child, including grandparents, siblings, and stepparents
  • the parents’ ability to communicate and cooperate with one another
  • evidence of child abuse or domestic violence, if any, and
  • any other factor relevant to the child’s best interests.

When possible, a custody order will give parents equal time and equal responsibilities over a child. In addition to the above custody factors, a judge may also consider each parent’s work and travel schedule, the parents’ geographical proximity, and the child’s wishes if of a sufficient age. Under Vermont law, in cases where one parent is the victim of sexual assault or abuse by the other parent and the child is a result of that assault, the court can deny any contact between the child and abusive parent.

Joint physical and legal custody is usually appropriate where there is no history of abuse, the parents have a cooperative relationship, and they live close to one another. Despite what the name implies, joint physical custody doesn’t necessarily mean the parents will have equal time with the child. Instead, a joint physical custody award may award one parent 4-5 nights per week with the child, while awarding the other parent 2 nights per week and 3 months in the summer. In other words, your custody award will depend on your family’s unique needs.

Can My Ex and I Make Our Own Custody Agreement?

Yes, you can create your own custody agreement as long as it is reasonable, complete and serves your child’s best interests. In fact, judges encourage parents to work out their own custody agreements when possible. In some divorce a custody cases, a judge may require parents to attempt mediation before the court will schedule a custody trial.

Whether you work out an agreement on your own or with the help of a mediator, it must address all custody issues to be complete. Often, local court websites will have custody or parenting agreement forms on their website. A mediator can also be helpful to ensure that you’ve resolved all custody issues. However, neither a mediator nor court forms are a replacement for an attorney’s advice. Generally, a custody agreement is complete if it addresses the following:

  • physical custody, including where a child lives
  • legal custody
  • visitation during holidays, birthdays and school vacations
  • child support
  • medical insurance
  • visitation and custody if one parent relocates, and
  • communication between the child and parent when not in that parent’s care.

You can submit a finalized and complete agreement to a judge for approval. Make sure that your complete custody agreement is in writing and contains your ex’s and your notarized signatures. If a judge determines that your agreement serves your child’s best interests, he or she will turn it into an official court order. Both parents must follow the custody order until or unless it is modified by a judge or a child reaches the age of majority.

When Can I Modify My Custody Order?

Custody orders are permanent until a judge modifies the order. Most custody orders are adjusted at least once before the child turns 18, because life is full of changes. Either parent can file a motion to modify custody if a certain period of time has lapsed since the original custody order, and there’s been a material and substantial change in circumstances.

Some life changes won’t automatically justify a change to your custody order. For example, one parent’s remarriage or a move across town probably isn’t enough to adjust custody. If you’re the parent seeking the custody change, you must show that one parent’s remarriage, illness, new job, out of state move, substance abuse, or other substantial change in circumstance is affecting your child’s well-being such that a change in custody is necessary. Your child’s best interests are central to a custody modification proceeding.

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