DOOLEY, J.
¶ 1. Father appeals an order from the family division that awarded mother sole legal and physical parental rights and responsibilities but did not award father any parent-child contact at the time. The order contained a provision permitting father to file a motion for parent-child contact, even without any change in circumstances, within forty-five days after the pending criminal charges against him had been resolved. On appeal, father contends that: (1) the court effectively terminated his parental rights without finding by clear and convincing evidence that doing so was in the best interests of the children; and (2) that the court erred in creating a prerequisite to the resumption of contact — that is, the resolution of the criminal charges — beyond his control. We affirm.
¶ 2. Father filed a parentage action on March 19, 2015. On April 8, 2015, mother filed a stipulation of parentage and a motion that she be granted sole parental rights and responsibilities for the children and that father be denied any right to parent-child contact pursuant to 15 V.S.A. § 665(f). A hearing on the parties' parental rights and responsibilities was held in June and August 2015. Both parties were present and represented by counsel. Because of the allegations made by the mother in her motion, both parties agreed that the mother should present her evidence first, and father would present his evidence second.
¶ 3. According to the testimony of both parties, they met in the fall of 2005 and moved into an apartment together in January 2006, remaining together until February 28, 2015. Both parties stipulated that they were the biological parents of L.G., born in October 2008, and C.G., born in November 2006.
¶ 4. Mother testified that she continued in the relationship because she was physically and psychologically coerced to do so and that she felt she had "no choice." Mother testified that father repeatedly forced her to overconsume alcohol and attempted to force her to use marijuana, contrary to mother's wishes. Mother stated that she was intimidated by father's statement that he was mentally disabled and
¶ 5. Mother testified that her sexual relationship with father was wholly coerced and that father physically abused her from the beginning of their relationship, with a succession of assaults occurring between November 2005 and January 2006. Mother described an instance where she ran away from father, who caught her and knocked her down in the street, resulting in a large abrasion and scab. On one occasion, mother succeeded in fleeing to a friend's apartment, but did not seek help from the police. On another occasion, father reportedly dragged mother across a parking lot by her backpack. Finally, father once assaulted mother and locked her in a closet, where her screams were overheard by a neighbor who called the police. The trial court supplemented this testimony with its own observations, noting that father is physically much larger than mother, whom the court characterized as "slender and... frail," while describing father as "muscular and strong."
¶ 6. Father pled guilty and was convicted of third-degree assault with intent to cause physical injury to mother on February 3, 2006. He was placed on probation for three years as a result of his conviction. C.G. was conceived at some point around the time of the conviction.
¶ 7. Mother also outlined the high degree of control father exercised over her life: father would walk her to work every day, spend time at the Saratoga Springs Starbucks coffee shop where she worked (until barred from doing so by coffee-shop management), and meet her there after work. Father rarely left mother alone, and mother did not go to the police or tell others about her physical abuse, testifying that she felt trapped. Mother was afraid that father might injure their children, and she stayed with him to protect the children. Mother also stated that she feared that father's mother would take custody of the children, though she did not explain this sentiment. The court found that mother was the primary caregiver for the children, and had homeschooled them for their entire lives.
¶ 8. In the spring of 2008, the parties moved to Brattleboro to be closer to mother's family. Prior to the move, mother wrote a supportive letter about father addressed to father's probation officer. Mother also met with the probation officer, because father needed the officer's permission to leave New York State. Mother stated that her letter was not truthful and that she had written it only out of a desire to move to Vermont, where she had friends and family and believed she had a better chance of exiting the relationship. After the move, father began working at the Brattleboro Food Co-op, where he has worked consistently since. The court found father to be the primary breadwinner for the family since the move, noting that his earnings were put in a bank account to which mother did not have access, limiting her options for leaving the relationship. Mother also began attending classes at Greenfield Community College for the
¶ 9. Mother testified that on February 28, 2015, she was studying in her room when father attempted to coerce her into smoking marijuana. Mother resisted, and father became angry, yelling and throwing mother's books against the wall, damaging it. Mother testified that L.G. was standing nearby when this happened and could have been injured. Mother attempted to call 911, but father took the phone away from her. L.G. attempted to call from another phone downstairs, but father followed and took that phone away, throwing it down on the floor and breaking it. Mother testified that both children shouted at father to leave. Father eventually did leave, staying for several days with a friend, and then returned, after which mother and children went to stay with the children's maternal grandmother.
¶ 10. After leaving the home, mother obtained a temporary relief-from-abuse (RFA) order against father, and the parties agreed to a "no findings" final RFA order on March 18, 2015. That order gave mother parental rights and responsibilities and barred father from having contact with the children, pending a subsequent parentage action.
¶ 11. As a result of mother's allegations of abuse arising from the incident on February 28, father was arraigned on April 8, 2015, on charges of domestic assault and interference with emergency services. Father was barred from having any contact with mother or children as part of the conditions of release in that criminal case. Due to father's prior conviction for assault in New York, the first count of domestic assault was amended to a felony charge of aggravated domestic assault, second degree. On August 24, 2015, the State filed additional charges in the same case alleging aggravated sexual assault, based on repeated, nonconsensual acts between 2011 and 2015 and a violation of an abuse prevention order on July 21, 2015. Father was arraigned on the new charges on September 17, 2015. At the time of the family division hearings in this matter, father's criminal charges were still pending with a hearing set for January 21, 2016, and conditions of relief in the RFA order remained in effect. In order to preserve his Fifth Amendment rights in his criminal case, father ended testimony in the family division after hearing of the new felony charges, and his testimony was struck from the record and not considered in the family division's findings.
¶ 12. According to the docket entries in the criminal case, father's criminal charges were resolved on May 12, 2016.
¶ 13. Photographic evidence entered in the superior court shows father, mother, and the children appearing "happy, comfortable and contented." Mother acknowledged that over the ten years of their relationship, she had repeatedly told father that she loved him and had given him notes with loving statements, but testified that these instances were all lies told only to protect herself and the children.
¶ 14. Neither child was in counseling at the time of the final family division hearing, although mother testified that she had intended to get both children into counseling after the separation. At the time of the family division hearings, both children were on the waiting list for counselors at the local community mental health provider, and mother had also contacted a private therapist recommended by the children's attorney.
¶ 15. The court began its analysis by noting that in 2014 the Legislature added subsection (f) to 15 V.S.A. § 665, which highlights the factors a court must consider in crafting a parental rights and responsibilities order. Subsection (f) was intended to address the state's "compelling interest in not forcing a victim of sexual assault or sexual exploitation to continue an ongoing relationship with the perpetrator of the abuse" and permits a court to bar a parent from having any contact with his or her children if it finds: by clear and convincing evidence, that the child was conceived through sexual assault and by a preponderance of the evidence, that such an order is in the best interests of the child. 15 V.S.A. § 665(f)(2). The court acknowledged mother's request that the court apply this standard to preclude father from having any contact with the children. However, the court ultimately concluded that although mother had provided significant evidence that "most, if not all, of the sexual acts engaged in between these parties were probably non-consensual," the court was nevertheless "unable to find that [mother] ha[d] proved by clear and convincing evidence that the children were conceived as a result of sexual assault."
¶ 16. Consequently, the court turned to the best interests of the child factors itemized by § 665(b). The court determined that: mother is better able to meet the children's physical, emotional, and developmental needs; the children are well-adjusted to their home and community; mother has been and continues to be the children's primary caregiver; and there was no evidence of other close relationships that needed to be considered. The court also found that while mother did not wish to foster a positive relationship between the children and father, her opposition was based on "legitimate concerns" stemming from father's history of alcohol and drug abuse; his physical, emotional, and sexual abuse of mother; and his violent threats in the children's presence. Accordingly, the court found that the parties could not share legal or physical rights as they were unable to communicate effectively with one another. Finally, because father was convicted of domestic assault against mother less than ten years prior to the hearing, the court considered 15 V.S.A. § 665a(a), which allows for the perpetrator of domestic violence to have parent-child contact "if the court finds that adequate provision can be made for the safety of the child and the parent who is a victim of domestic violence."
We note that at the time of this decision, parent-child contact was also prohibited by the abuse prevention order and by the conditions of defendant's release imposed in the criminal case.
¶ 18. The court order provided that within forty-five days of the resolution of his criminal charges and imposition of his sentence, father could file a motion for contact and could seek an additional hearing to demonstrate contact is in the best interests of the children. It also provided that if father did not file such a motion, he would have no right to parent-child contact except after a motion to modify and a showing of real, substantial, and unanticipated change in circumstances and that such contact would be in the best interests of the children. This appeal followed.
¶ 19. On appeal, father raises two issues
¶ 20. Father relies for his first point on
¶ 21. Father's arguments would have more force if the court order he appealed was a final order — the situation in both
¶ 22.
¶ 23. In answer to father's second claim on appeal, we conclude that the reasons for which the court temporarily cut off father's parent-child contact fully supported the decision, including the provision delaying resolution of father's parent-child contact until after the criminal proceeding was resolved. On this point, we are applying a deferential standard of review. Because of "its unique position to assess the credibility of witnesses and weigh the evidence, we will not set aside the [family] court's findings if supported by the evidence, nor its conclusions if supported by the findings."
¶ 24. The reasons given by the trial court, quoted above, supported the court's parent-child contact decision. The court could not receive a full evidentiary presentation on which to make a fully informed decision until the criminal case was resolved. We particularly note the court's concern about the interrelationship of this
¶ 25. This case also raised a unique situation because of the nature of the charges against father. Under 15 V.S.A. § 665a(a), enacted in 2008, the allowance of parent-child contact to a parent may be specially regulated if "within the prior ten years" the parent is convicted of domestic assault or aggravated domestic assault against the other parent or found to have committed abuse against a family or household member if "adequate provision can be made for the safety of the child and the parent who is a victim of abuse." Seven specific conditions are authorized including ordering the perpetrator of domestic violence to participate in a program for perpetrators or other counseling as a condition of visitation; ordering where drugs or alcohol are involved in the abuse the perpetrator not to be under the influence during the visitation or during the preceding 24 hours; and imposing any other condition appropriate to provide for the safety of the child, the victim of domestic violence, or another family or household member.
¶ 26. In affirming the temporary order despite the absence of a right for father to have parent-child contact, we recognize that this is not the only way the court might have proceeded to protect father's right of self-incrimination in the criminal case but obtain the needed evidence to fully resolve the parentage proceeding. Father could have sought
¶ 27. While we have never explicitly extended
¶ 28. In affirming the order here, we recognize that immunity is not an acceptable answer in all cases. For reasons discussed above, the court found it important to know the resolution of the criminal case in crafting a final order with respect to parent-child contact so the issuance of a temporary order, to be followed by a permanent order after the criminal case was resolved, was appropriate. While
¶ 29. We find no error in requiring father to make a separate motion for parent-child contact and discussing some of the provisions that may be in a parent-child contact order if such contact were authorized after the resolution of the criminal case. Because father had the information to determine that the criminal case was resolved, and the consequences of that resolution, it was reasonable for him to have the burden of filing a motion to bring parent-child contact again before the court. In seeking a permanent order on parent-child contact, he did not have to show a change of circumstances and was not bound by the findings that supported the temporary order.
The parties have not briefed or argued the interpretation of § 665a in this case. Thus, we accept for purposes of this opinion the implied conclusion that the statute would apply to the final parent-child contact order only if father were convicted of domestic assault from the charges pending against him.