Chris and Pat have a daughter. They split up. The basic child custody rule is that the choice of which parent should have custody must be based on the best interests of the child. And if one parent has taken the lead childrearing role, and had the most contact with the child, that tends to cut strongly in favor of maintaining custody with that parent.
But assume Chris refuses to give Pat access to the child, either before the custody hearing or in defiance of the custody order. And assume that, when Pat seeks to get custody, Chris points out that the child no longer has much of a relationship with Pat — precisely because Chris has barred any such relationship.
On one hand, giving Pat custody might seem to be against the child’s best interests, because the child would be moving to the home of a parent whom the child hasn’t known in years. (Say, for instance, that the child is now eight, and has barely seen Pat for three years.) On the other hand, letting Chris profit from Chris’s misconduct seems wrong, too, and may be against the child’s best interests: Chris has behaved in a way that reflects badly on Chris’s character, and it seems likely that Chris will continue to bar the child from having a relationship with Pat (in a way that Pat might not do with respect to Chris, if Pat got custody). What to do?
In any case, that’s one of the issues in Miller-Jenkins v. Miller-Jenkins (Vt. Oct. 29, 2010). That litigation has long been in the news because the parents are two women — the biological mother (Lisa) has now turned away from lesbianism, partly on religious grounds — and because there has been a complicated jurisdictional question involving Virginia and Vermont. For more on the earlier stages of the litigation, see here, here, and here. In the latest phase, the Vermont Supreme Court reaffirmed that the nonbiological mother (Janet) had the same parental rights as Lisa, because Lisa voluntarily let Janet play the role of parent (that’s the “psychological parent” or “de facto parent” doctrine, which strikes me as quite correct). And the court also upheld the trial court’s shifting custody to Janet:
We affirm the family court’s order to transfer custody from Lisa. We are, however, under no delusions that a transfer of custody is simple under even the best of circumstances. We are mindful of the fact that much time has passed since Janet and IMJ spent a significant amount of time together. We are also aware that the family court found that Lisa is the cause of this estrangement. As reflected below, the family court should have great discretion at the hearing called for in the mandate of this order to reevaluate Janet’s relationship with IMJ at that time and ensure a transition that comports with the law’s intent to defend and protect IMJ’s best interests. Cf. Matter of Stacks, 406 So.2d 979, 980-81 (Ala.Civ.App.1981) (holding that where child was in care of grandmother for much of his life, trial court was correct in delaying permanent transfer of custody to child’s mother to allow child to become re-acquainted with her and to “prevent the trauma to him of an abrupt removal”).
Because this Court desires to minimize any further trauma to IMJ, we anticipate her best interests will be met only by way of a specific plan to ensure a successful and safe transition. We therefore direct that, at the time that IMJ is located and the transfer of custody occurs, the family court shall (1) hold a hearing to reevaluate Janet’s current relationship with IMJ and establish a plan for the transfer of physical custody to Janet; and (2) set a visitation schedule for Lisa with IMJ, if feasible. In all of these matters, the court will continue to keep IMJ’s best interests paramount.
Justice Skoglund concurred and said more about this:
As a result of one parent’s efforts to deny another parent contact with their child, at the time of the trial court’s decision Janet Jenkins had essentially not seen her then seven year old daughter for over two years. The trial judge acknowledged that Lisa Miller’s repeated interference with Janet’s visitation rights had reached a point “where [Janet] is no longer a part of her daughter’s life.” The court also noted in its June 2007 Order that it had already found the relationship between the child and Janet had been significantly affected by Lisa’s refusal to allow parent-child contact. The court concluded in 2009 that “[t]his situation has only become worse since that time.” Even so, the family court and majority both conclude that Janet “has a good relationship with IMJ” for the purposes of a best-interest analysis under 15 V.S.A. § 665(b). Ante, ¶ 23. Given the length of time in this child’s short life without any real relationship with her mother, Janet, I cannot find support for this conclusion. Cloutier v. Blowers, 172 Vt. 450, 452, 783 A.2d 961, 963 (2001) (“We will … reverse if the court’s findings are not supported by the evidence, or if its conclusions are not supported by the findings.” (quotations omitted)). While I concur with the majority’s decision — especially in light of the hearing the Court mandates to reevaluate Janet’s relationship with IMJ before transitioning custody — I write to highlight the necessary inconsistency in the family court’s ruling.
¶ 36. The pertinent findings in this case are uncontested. Lisa has prevented Janet from seeing their daughter IMJ for, now, the past three years. The family court found that Janet had had twenty-four hours of contact with IMJ in all of 2008 and again only twenty-four hours in 2009. Indeed, from the family court findings, it appears that apart from these two visits, Janet has not had contact with her daughter since August 2007 and had only limited contact before then. The court concluded that Janet has a good relationship with her daughter by viewing the evidence “from the perspective of the time preceding [Lisa]’s initial termination of parent-child contact.” While we have held that the best-interests inquiry should focus on all relevant periods of a child’s life and not exclusively on the period immediately preceding trial, Nickerson v. Nickerson, 158 Vt. 85, 90, 605 A.2d 1331, 1334 (1992) (“A contrary holding may cause a primary-care-provider wishing to leave the home to uproot children from the marital residence solely to remain, in the view of the court, the primary-care-provider.”), I suggest it is illogical and potentially harmful to simply ignore the reality of this child’s experience. I do not understand how a court can draw any conclusions about the current relationship between a mother and her daughter when the two have not spent significant time together for more than two years–a large portion of the daughter’s life.
I do not lightly note this inconsistency. As we have recognized in the past, the family court should not construe the application of the § 665(b) best-interest factors in a manner that gives incentive for wrongdoing by a parent. See, e.g., id. That said, we likewise cannot ignore the plight of children whose relationships are significantly disrupted and/or distorted when one parent chooses to prevent another from contact. Parental kidnapping is the most common form of abduction in the United States with more than 200,000 children victims each year. Office of Juvenile Justice & Delinquency Prevention, U.S. Dep’t of Justice, The Crime of Family Abduction: A Child’s and Parent’s Perspective iii-iv (2010), available at http://www.ncjrs.gov/pdffiles1/ojjdp/229933.pdf. Its impacts last far longer than the search for and recovery of a missing child, especially for a child whose trust in both parents may have been seriously damaged. See id. at 37 (“To many parents, the recovery might seem like a moment of celebration, but to the child, it may feel like another abduction.” (citation omitted)). Simply because Janet had a strong relationship with her daughter before the current estrangement, the family court cannot assume that such a bond still exists.
I concur with the majority’s result because exclusion of this factor would not shift the family court’s ultimate conclusion.
My tentative sense is that this is an area where the broad best interest of children is better served by setting aside the best-interests-of-the-child standard as such, and having a general rule that parents who flout custody orders should lose custody. That, I think, will serve the children’s interests best going forward, by removing what would otherwise be an incentive for parents to break the law and injure the child’s relationship with the other parent. Generally speaking, the law should make sure that people can’t profit by their own unlawful activities. But I’m not sure I’m right, and in any case this issue strikes me as quite interesting and important.