Shea v. Metcalf (97-015) [Filed 3-Apr-1998]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 97-015
Charles Thomas Shea Supreme Court
On Appeal from
v. Addison Family Court
Mary Oliver Metcalf September Term, 1997
Matthew I. Katz, J.
Lucy T. Brown and Dennis R. Pearson of Gravel and Shea, and Lindsey M.
Huddle, Burlington, for Plaintiff-Appellee.
Susan M. Murray of Langrock, Sperry & Wool, Middlebury, for
Defendant-Appellant.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson, and Skoglund, JJ.
AMESTOY, C.J. Mary Metcalf appeals an Addison Family Court divorce
order in which legal rights and responsibilities for her two minor children
were divided between herself and her former husband, Charles Shea. The
family court granted legal responsibility for decisions concerning the
children's medical care and education to father, and legal responsibility
for all other matters to mother. Mother contends that (1) the family
court's order divides legal rights and responsibilities in a manner not
permitted under 15 V.S.A. § 665(a), and (2) even if the statute authorizes
such division, the family court abused its discretion in ordering the
division and not awarding all legal rights and responsibilities to her. We
affirm.
The parties were married in Vermont in 1988 and have two children,
aged seven and five at the time of final hearing before the family court.
Early in their marriage, the parties researched and discussed different
approaches to parenting in such areas as the duration of nursing, whether
the children should sleep with their parents in a "family bed" or in their
own rooms, whether the children should be immunized, and whether they
should attend public school or be home schooled. Mother's research led her
to believe that the health risks associated with immunizing children
against infectious diseases such as diphtheria, whooping cough, polio,
measles and mumps outweighed the benefits. The parties thus agreed to
forego immunizing their children.(FN1)
Although father initially agreed to this decision, he later developed
misgivings and changed his mind.
The parties also decided to educate their children at home, with
instruction and supervision provided by mother, rather than send them to
public school. Father initially agreed to this decision, but after the
eldest child had been home schooled for approximately two years, changed
his mind and decided that the children's needs would be better served by
attending public school.
In seeking a divorce, the parties were able to settle all issues
relating to spousal and child support and property division. The parties
also agreed that mother would continue as the primary custodian with
primary physical responsibilities for the two children. The sole dispute
before the family court centered on assignment of legal rights and
responsibilities for the children. Father sought sole legal rights and
responsibilities over decisions concerning the children's medical care and
education. Mother sought legal rights and responsibilities for all
matters. The central area of dispute concerning legal custody was the
parties' differences over medical and educational decisions for the
children.
The family court heard testimony from the parties and several medical
and education experts. From its consideration of testimony on childhood
immunizations, the family court found that the prevailing medical regimen
of childhood immunizations "is rational and represents the best-informed
judgment" to protect the heath of the children. The court also found that
father was the parent most likely to make sound medical and health care
decisions generally for the children, and accordingly, awarded legal rights
and responsibilities for medical decisions to father.
On educational matters, the court found that the parties' eldest son,
who was at that time their only child of school age, had not been well
served by home schooling with mother. The court found that the child could
not read even basic words despite the fact that he was of second grade age,
and it was normal for children to begin reading at an earlier age. The
court also found that mother's home schooling was not affording the child
enough interaction with peers. Because of mother's ineffective home
schooling, and her insistence that she would continue to home school the
children if given authority over the decision, the court awarded father
legal rights and responsibilities for the children's educational decisions.
Mother appeals.
Mother first argues that the family court was without statutory
authority to divide legal rights and responsibilities between the two
parents. She acknowledges that 15 V.S.A. § 665(a) generally permits such
division, but contends that when the parties cannot agree, the statute
requires that all legal rights and responsibilities be awarded to one
parent.
When adjudicating the divorce of a couple with one or more minor
children, the family court must assign parental rights and responsibilities
for the child or children to one or both of the parents, or a suitable
third party. See 15 V.S.A. § 665(a). Parental rights and responsibilities
are defined as those "rights and responsibilities related to a child's
physical living arrangements, parent child contact, education, medical and
dental care, religion, travel, and any other matter involving a child's
welfare and upbringing." Id. § 664(1). Rights and responsibilities are
comprised of "physical responsibility," and "legal responsibility," which
is defined as "the rights and responsibilities to determine and control
various matters affecting a child's welfare . . . includ[ing] but . . . not
limited to education, medical and dental care, religion and travel
arrangements." Id. § 664(1)(A). The family court may "order parental
rights and responsibilities to be divided or shared between parents on such
terms and conditions as serve the best interests of the child." Id. §
665(a) (emphasis added). Mother argues that the family court's order
violates the statute's requirement that "[w]hen the parents cannot agree to
divide or share parental rights and responsibilities, the court shall award
parental rights and responsibilities primarily or solely to one parent."
Id. § 665(a) (emphasis added).
Our paramount goal in statutory construction is to give effect to the
Legislature's intent. See Burlington Elec. Dep't. v. Vt. Dep't of Taxes,
154 Vt. 332, 335, 576 A.2d 450, 452 (1990). We apply the plain meaning of
a statute where the language is clear and unambiguous, see Conn v.
Middlebury Union High School Dist. No 3, 162 Vt. 498, 501, 648 A.2d 1385,
1387 (1994), and where there is ambiguity, we look to the general context
of the statutory language, the subject matter, and the effects and
consequences of our interpretation, see Paquette v. Paquette, 146 Vt. 83,
86, 499 A.2d 23, 26 (1985). We find unambiguous the applicable provision's
initial phrase: "[w]hen the parents cannot agree to divide or share
parental rights and responsibilities." 15 V.S.A. § 665(a). The parents
here clearly "do not agree" on how best to allocate responsibility for
their children. Nor do we find any question that the family court here
"divided" parental rights and responsibilities between the two parents; the
division gives father responsibility for decisions relating to the
children's medical and educational needs, and responsibility for all other
areas of legal responsibility to mother.
The language of § 665(a), however, is not plain or understandable in
its requirement that the court award legal rights and responsibilities
"primarily or solely" to one parent when parents disagree. Mother
construes the phrase to mean that the entire "bundle" of legal rights and
responsibilities identified in § 664(1)(A) must be assigned to a single
parent. Father, on the other hand, argues that the statute is satisfied so
long as each of the individual rights and responsibilities is awarded
"primarily or solely" to one parent or the other, even if those rights and
responsibilities are divided between the parents. In light of this
ambiguity, we cannot determine the Legislature's intent from the plain
meaning of the words, and must therefore look beyond the language itself.(FN2)
See Langrock v. Dep't of Taxes, 139 Vt. 108, 110, 423 A.2d 838, 839 (1980).
We have said before that, in cases where parents do not agree, §
665(a) reflects a legislative judgment that court-imposed joint
decision-making is not in the best interests of the child. See Bankroft v.
Bankroft, 154 Vt. 442, 448, 578 A.2d 114, 118 (1990). That said, we have
also had occasion to caution against a statutory construction of § 665(a)
which would obligate a court to take an "all or nothing" approach to the
allocation of legal rights and responsibilities. See Gazo v. Gazo, ___ Vt.
___, ___, 697 A.2d 342, 347 (1997); Cabot v. Cabot, ___ Vt. ___, ___, 697
A.2d 644, 650-51 (1997). In Gazo, we concluded that the prohibition
against compelled joint decision-making "does not mean that the only
alternative is an award of all rights and responsibilities solely to one
parent." ___ Vt. at ___, 697 A.2d at 347. In considering this statute, we
also have reaffirmed the family court's "broad discretion to craft parental
rights and responsibilities orders that serve the best interests of the
children." Cabot, ___ Vt. at ___, 687 A.2d at 651.
We find instructive the language of § 665(b)(8) which illuminates the
Legislature's specific concern about dividing and sharing rights and
responsibilities. Under that provision, when a court orders allocation of
parental rights and responsibilities, the court shall consider, among other
things, "the ability and disposition of the parents to . . . cooperate with
each other and make joint decisions concerning the children." 15 V.S.A. §
665(b)(8) (emphasis added).
In Cabot, we stressed that the statute reflects the Legislature's concern
with forcing "unwilling parents to share parental rights and make joint
decisions." ___ Vt. at ___, 697 A.2d at 650 (emphasis added). The family
court in that case imposed upon the parents joint decision-making authority
for legal rights and responsibilities, even though they had not agreed to
such an arrangement. We reversed the order out of concern that the
imposition of joint decision-making responsibility upon unwilling parents
"cannot solve the problem of fighting parents. . . . [and] risks placing a
child in the middle of constant and harmful disputes." Id. We held that,
where the parents cannot agree, "one parent must be given primary
responsibility to make decisions on behalf of the child." Id. at ___ n.4,
697 A.2d at 650 n.4. But that requirement does not lead inexorably to the
conclusion that one parent must be awarded all rights and responsibilities.
See Gazo, ___ Vt. at ___, 697 A.2d at 346-47; see also Cabot, ___ Vt. at
___, 697 A.2d at 656 (Morse, J., concurring) (When parents cannot agree,
circumstances may warrant court "reserving a specific, discrete area of
parental responsibility for the noncustodial parent. The statutory scheme
specifically contemplates such an award.").
In contrast to the family court's order in Cabot, the family court's
order here has awarded each of the rights and responsibilities "solely" to
one parent. In doing so, the order avoids the problems of joint
decision-making while satisfying the Legislature's intent that children
retain "the opportunity for maximum continuing physical and emotional
contact with both parents." 15 V.S.A. § 650. Legal rights and
responsibilities are divided between the parents along discrete lines of
authority; father has exclusive authority for health care and education,
and mother has exclusive authority for religion, travel, and other areas of
responsibility. Had the court compelled joint decision-making in any
individual area of authority, such as education, the court's order would
have run afoul of our prior holdings. By avoiding an "all or nothing
approach," the order keeps both parents in the role of active parenting,
takes full advantage of their individual strengths, and avoids awarding
either parent responsibility for which he or she is not suited. Cf. Osier
v. Osier, 410 A.2d 1027, 1029-30 (Me. 1980) (in custody dispute, although
court regarded mother as parent best suited for day-to-day care of child,
court was constrained to award full legal and physical custody to father
because mother, as Jehovah's witness, refused to authorize necessary blood
transfusion for child). We hold that the family court's division of discrete
legal rights and responsibilities between the parties satisfies the
requirements of § 665(a).
Mother's second argument is that, even if § 665(a) permits division of
legal rights and responsibilities between the parents, the court
nonetheless abused its discretion by not granting her the entire bundle of
legal rights and responsibilities. According to mother, the court ignored
the fact that she had been primarily involved in the children's day to day
needs, including medical care, and that father had expressed approval of
her actions concerning the children. She also contends that the court
ignored her testimony that father had not always made good decisions
regarding health care.
We see no basis to mother's claim that the family court abused its
discretion by awarding father responsibility for medical care and school
decisions. See deBeaumont v. Goodrich, 162 Vt. 91, 103, 644 A.2d 843, 850
(1994) (trial court has broad discretion in child custody matter; Supreme
Court will not set aside result merely because it would have reached
different result). Ample evidence in the record supports the court's order.
To begin with, mother acknowledged the health risks inherent in her refusal
to immunize the children. She stated simply that she had survived
childhood infectious diseases and that "I'd rather my children took the
risks." On the other hand, father communicated his intent to have the
children immunized, and supported his position with testimony from Dr.
Hagen, a Board-certified pediatrician and member of the Immunization
Advisory Committee for Vermont's Department of Health. Dr. Hagen testified
that he believes children should be immunized against infectious diseases.
When asked if a child living in Vermont who is not immunized is at risk,
Dr. Hagen responded "I believe that to be the case. That is my
professional belief." The family court found Dr. Hagen's testimony
credible. In marked contrast is the testimony from mother's witness, Dr.
Incao, whom the family court did not find credible. Dr. Incao expressed the
opinion that the children's health was not at risk by not being immunized, but he
admitted to having no formal training in either pediatrics or immunology,
and to having done no research or publishing on the subject. Assessing the
evidence before it, the family court concluded that mother had
"consistently made decisions in the past which seem to reflect personal
whim, the desire to be different or all-controlling, rather than a
willingness to follow generally accepted, sound medical practice." The
record supports the court's conclusion that father is the parent "more
likely to make sound [medical and health care] decisions in the best
interest of the children in the future."
We similarly find support in the record for the court's conclusion
that mother's home schooling had failed to properly educate her child. As
the court noted, the couple's eldest child could not read even simple words
like "cat" nearly two years after he had been ready to start reading.
During his kindergarten year, the child had attended public school, and
according to his teacher, had mastered everything expected of children by
the end of that year. In subsequent years, however, when mother home
schooled the child, his reading skills stalled. An education expert, Dr.
Hasazi, tested the child at the time of trial and concluded he could not
read. The record supports the family court's conclusion that "home
schooling is having a present, ongoing and substantial detrimental effect"
on the parties' eldest child, and that, accordingly, father should be
granted legal responsibility for decisions concerning the children's
education. See 15 V.S.A. § 665(b)(4) (family court shall consider the
quality of the child's adjustment to the child's present schooling).
We similarly find no merit to mother's contention that the family
court awarded father more legal rights and responsibilities than he
requested. Mother contends that, because father's chief concerns were
immunizations for the children and their enrollment in public school, at
the most he should have been given legal responsibility for only those
specific decisions, rather than medical and education decisions generally.
From the family court's decision, however, it is clear that father was
seeking sole legal rights and responsibilities over medical care and
educational decisions, rather than the limited areas of immunizations and
whether to send the children to public school.
Mother finally argues that the family court's allocation of rights and
responsibilities is "confusing and unworkable." The thrust of her argument
seems to be that, as the primary physical custodian, mother is entitled to
move residence of her and the children to a different town or a different
state. See Lane v. Schenck, 158 Vt. 489, 498, 614 A.2d 786, 791 (1992).
Mother contends that such a move by her would make father's continued legal
authority over medical and educational decisions unworkable. We decline to
address mother's contention except to point out that the court's order
specifically retains mother's authority to "provide day-to-day medical
care for the children." We will not judge the efficacy of a family court's
order on circumstances that could potentially arise in the future. See
deBeaumont, 162 Vt. at 97, 644 A.2d at 846 (family court order should be
based upon parties' current circumstances, not potential changes in the
future).
Affirmed.
FOR THE COURT:
_______________________________________
Chief Justice
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Footnotes
FN1. The parties decided to make an exception and immunize the
children against tetanus because they perceived the benefits to outweigh
the risks.
FN2. A review of the statute's legislative history provides
relatively little guidance to what the Legislature meant by the phrase
"primarily or solely." It is to be noted, however, that an early version
of the House bill set forth the newly developed concept of "parental rights
and responsibilities," and also contained definitions of specific types of
child "custody" that could result from different allocation of parental
rights and responsibilities. Thus "joint legal custody" was defined as
those arrangements where "both parents will share the parental rights and
responsibilities relating to the child," and "sole legal custody" was
defined as "one parent . . . be[ing] allocated rights and responsibilities
relating to the child, subject only to those rights and responsibilities as
are specifically allocated to the other parent." See Vt. Senate Jour. 559
(April 21, 1986) (emphasis added).
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Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 97-015
Charles Thomas Shea Supreme Court
On Appeal from
v. Addison Family Court
Mary Oliver Metcalf September Term, 1997
Matthew I. Katz, J.
Lucy T. Brown and Dennis R. Pearson of Gravel and Shea, and Lindsey M.
Huddle, Burlington, for Plaintiff-Appellee.
Susan M. Murray of Langrock, Sperry & Wool, Middlebury, for
Defendant-Appellant.
PRESENT: Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J., dissenting. An absolute prerequisite to any significant
division of parental rights and responsibilities is an agreement by the
parents to the division. Our law is clear and unequivocal on this point.
See 15 V.S.A. § 665(a) ("When the parents cannot agree to divide or share
parental rights and responsibilities, the court shall award parental rights
and responsibilities primarily or solely to one parent."). The majority
acknowledges the compulsion of the law in the context of shared
responsibilities, yet inexplicably ignores its force in the area of divided
responsibilities. This is a distinction that finds virtually no support in
either the language or the policy underlying the statute. Accordingly, I
respectfully dissent.
The majority faithfully reports the trial court's ruling, but
discreetly omits many telling details. The parties had generally agreed
during the marriage to home school the children and to defer a number of
standard immunizations, but disagreed once the marriage was broken. Each
party offered evidence, including the testimony of experts, to support its
position. Mother had always been the children's primary caregiver, and the
trial court apparently concluded that her care had been sound and should
continue, as evidenced by its award to her of sole physical custody.
Indeed, the court acknowledged that mother had been "a good, caring,
attentive mother on a daily basis."
Nevertheless, the trial court disagreed with mother's decisions in the
areas of schooling and immunizations, as well as breastfeeding and
sleeping. Indeed, the court's opinion delves to an extraordinary degree
into these intimate areas of childrearing, opining, for example, that
"longterm bed sharing and breast feeding . . . are not in the best
interests of the children [and] may foster undue dependency," that home
schooling was "no substitute for five days a week in the classroom, or
perhaps more importantly, the schoolyard," and that mother's medical
decisions "reflect[ed] personal whim . . . rather than . . . sound
medical practice." Accordingly, despite its award of physical and legal
rights and responsibilities to mother, the court determined to carve out
the areas of schooling and health care and award them to father on the
ground that his predilections in these areas represented the best interests
of the children. This, despite the fact that mother had not only failed to
assent to the award to father, but sharply disagreed with his views on both
subjects.
The trial court's decision was untenable. It was untenable under our
law, and it was untenable under the sound common sense that informs it.
Our statutory scheme governing parental rights and responsibilities
reflects a general rule derived from common experience: the parent who is
entrusted with the daily care and control of a child must be afforded the
broadest possible latitude, consistent with health and safety, in decisions
relating to the child's education, medical care, discipline, travel,
residence, and general upbringing. This Court has stated unequivocally
that the custodial parent's decisions in these areas may not be second
guessed by a trial judge: "[W]e cannot condone a process that substitutes
the judgment of a court for that of the custodial parent merely because the
court would have done something different if it had been the parent." Lane
v. Schenck, 158 Vt. 489, 495, 614 A.2d 786, 789 (1992).
The same interest in preserving parental authority and minimizing
parental second-guessing is codified in our statutes, which expressly prohibit the court
from ordering the parties to "divide or share parental rights and
responsibilities" absent their express agreement. 15 V.S.A. § 665(a).
Recently, in Cabot v. Cabot, ___ Vt. ___, ___, 697 A.2d 644, 649-51 (1997),
this Court held that the language and policy underlying the statute
invalidated an award of shared parental rights and responsibilities where
the parents had not agreed to such an arrangement. As we explained:
The Legislature recognized that where parents cannot work together,
one parent must be given primary responsibility to make decisions on behalf
of the child. In terms of the statute, this means that a court cannot award
joint legal parental rights and responsibilities to parents who do not
agree to such an award.
Id. at ___ n.4, 697 A.2d at 650 n.4.
As noted, 15 V.S.A. § 665(a) applies to awards of "joint" as well as
"divided" custody." Thus, parental agreement is just as much a statutory
prerequisite to an order providing for divided legal custody as it is to
one providing for shared legal custody. And the policy underlying the
statute applies with equal force as well: "[W]here parents cannot work
together, one parent must be given primary responsibility to make decisions
on behalf of the child." Cabot, ___ Vt. at ___, 697 A.2d at 650 n.4.
Indeed, common sense teaches that the custodial parent cannot
reasonably be asked to supervise and participate in the child's daily life,
so much of which centers on schooling and health care, dispossessed of
basic decisionmaking authority in these areas. Every primary care provider
of school age children knows that ferrying the children to and from school
represents only the tip of the custodial parent's responsibilities;
supervising and helping with homework, attending parent-teacher
conferences, PTO meetings, and school plays, and participating in school
fundraisers and other events all require strong parental interest and
motivation, and all are fraught with potential conflicts requiring parental
intervention. The custodial parent cannot, and should not, be expected to
undertake these daily responsibilities deprived of essential decisionmaking
authority. The same may be said for such basic areas of childrearing as
medical care, religious upbringing, discipline, travel, and the like.
That is why the Legislature wisely established parental assent as a prerequisite
to both shared and divided custody.
Thus understood, the Court's decision in this case should have been as
obvious as that in Cabot. There was no agreement between the parents to
divide parental rights and responsibilities. Hence, the trial court's
order assigning responsibility for the children's education and medical
care to father, and the balance of legal and physical rights and
responsibilities to mother, was patently invalid and should not be allowed
to stand.
The trial court's decision in this case was unmistakably a choice
between alternative lifestyles under the guise of divided legal rights and
responsibilities. Today's holding affirms the trial court's power to make
such choices by parsing discrete areas of parental authority based upon the
respective views of the custodial and non-custodial parent. The Court's
holding does not endorse the wisdom of such an approach. For the reasons
expressed above, I am hopeful that courts will exercise this new power with
restraint, recognizing that in childrearing decisions parents must speak
with one voice, and that voice should generally be the custodial parent's.
_______________________________________
Associate Justice