concluding that the family court exceeded its authority by ordering joint legal parental rights and responsibilities where 15 V.S.A. § 665(a) specifically precluded such an arrangement in the absence of agreement by the parties
How later courts described this case
- concluding that the family court exceeded its authority by ordering joint legal parental rights and responsibilities where 15 V.S.A. § 665(a) specifically precluded such an arrangement in the absence of agreement by the parties
- recognizing the difficult task of valuing husband’s interest in limited partnership, and stating that “market value of a share in a partnership, like the value of a closely held business, may be difficult to fix precisely”
- noting that court has discretion to make property award in lieu of maintenance and upholding court’s decision to provide financial independence to parties by awarding wife property from “substantial” marital estate in lieu of maintenance
- affirming trial court decision which “recognized and considered [mother’s] attempts to exclude [father] from the child’s life, but on balance concluded that [mother’s] role as primary care provider . . . outweighed the other concerns.”
Written by the judges who cited it.
The opinion
Morse, J.,
concurring. While I concur in the holding, I write separately to discuss one aspect of the joint custody issue.
I readily agree with the Court’s conclusion that divorced parents must manifest an ability to cooperate and compromise over basic child-care decisions to warrant an award of joint rights and responsibilities. Any other conclusion would be contrary to the best interests of the children, who should not be subjected to ongoing parental strife and continual judicial intervention. Amid such disharmony, the family court’s only reasonable option is to award parental rights and responsibilities “primarily or solely” to one parent. 15 V.S.A. § 665(a).
Even in such cases, however, there may exist circumstances that would warrant the court reserving a specific, discrete area of parental responsibility for the noncustodial parent. The statutory scheme specifically contemplates such an award. See id. § 665(d) (court may order parent who is awarded responsibility for “a certain matter involving a child’s welfare” to inform other parent when major change occurs) (emphasis added). A case where the noncustodial parent feels very strongly about religious upbringing while the custodial parent is neutral or perhaps even assents to the wishes of the other is a good example. Although the situation might otherwise not be suitable for an award of joint custody, it might be appropriate to award rights and responsibilities generally or “primarily ... to one parent,” id. § 665(a) (emphasis added), while awarding a specific area of responsibility to the other. As we recognize in Gazo v. Gazo, 166 Vt. 434 , 697 A.2d 342 (1997), the absence of complete parental agreement “does not mean that the only alternative is an award of all rights and responsibilities solely to one parent. The use of the word ‘primarily’ shows that the Legislature expected that some sharing of responsibilities, short of joint custody, could be ordered.” Id. at 443 , 697 A.2d at 347 .
In the appropriate case there may be advantages to such an award. Chief among them is fostering the noncustodial parent’s sense of responsibility. The parent remains involved with the child not only in the physical sense of visitation, but also in the broader emotional sense of retaining responsibility for an aspect of the child’s upbringing. Enhancement of the parent-child relationship, and ultimately *505 better cooperation between the parents themselves, are also potential long-term benefits. Thus, such an order, where appropriate, serves the express legislative goal of ensuring that the children of divorce continue “to have the opportunity for maximum continuing physical and emotional contact with both parents.” 15 V.S.A. § 650.
Accordingly, while I concur in today’s decision, I believe it is important that it not be interpreted to preclude custodial awards of the kind outlined above.