Miller-Jenkins v. Miller-Jenkins

Supreme Court of Vermont · 2010 · Family Law

Family LawChild CustodyModification of Parental Rights and ResponsibilitiesBest Interests of the ChildVisitationConstitutional Claimscustody modificationbest interests

Facts

Lisa and Janet entered a Vermont civil union, jointly decided to have a child through artificial insemination, and raised IMJ together during the first seventeen months of IMJ's life. After separation, Vermont family court orders granted Lisa temporary custody and Janet visitation, but Lisa repeatedly refused to comply; by the time of the modification hearing, the family court had found Lisa in contempt seven times and found that Janet and IMJ had only about forty-eight hours of contact during 2008 and 2009. The family court found Lisa had interfered with more than eight weeks of court-ordered visitation, intended to terminate all parent-child contact between Janet and IMJ, and had also limited IMJ's contact with Janet's parents. Based on that conduct, the family court found a substantial change in circumstances and transferred custody to Janet.

Issue

Whether the family court erred in concluding that Lisa's willful interference with Janet's court-ordered parent-child contact justified modifying custody and awarding Janet sole physical and legal custody under the child's best interests. The court also considered whether Lisa's constitutional objections to transferring custody to Janet were reviewable and, if so, warranted reversal.

Rule

In Vermont, modification of custody proceeds in two steps: the moving party must first show a real, substantial, and unanticipated change in circumstances, and only then may the court determine whether a custody change serves the child's best interests under 15 V.S.A. § 665(b). Appellate review is deferential to family court factfinding, and findings will stand if supported by any reasonable and credible evidence. Issues, including constitutional claims, must be raised with specificity in the trial court or they are waived, except for limited review to determine whether there has been a fundamental miscarriage of justice affecting fundamental rights.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Portland, Maine, a divorce decree gave Nina Ortiz primary physical custody of her son and granted Evan Brooks weekend parenting time. Over the next year, Nina ignored six court-ordered exchanges, was held in contempt three times, and texted Evan that she intended to make sure the child would "forget he has another parent."

If Evan moves to modify custody, which is the strongest basis for finding the threshold requirement for modification satisfied?

Explanation. Modification proceeds in two steps: first, the moving parent must show a real, substantial, and unanticipated change in circumstances; second, the court asks whether modification serves the child’s best interests. The majority held that sustained, willful, calculated obstruction of court-ordered contact with the other legal parent can satisfy the changed-circumstances requirement. A transfer is not automatic, and the inquiry does not depend on proof of neglect of basic physical needs or on the child’s stated preference alone. (Derived from Miller-Jenkins v. Miller-Jenkins (n.d.).)