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                                            No. 2019-149

Jason C. Barrows                                                  Supreme Court

                                                                  On Appeal from
   v.                                                             Superior Court, Windham Unit,
                                                                  Family Division

Jessica Easton                                                    October Term, 2019


John R. Treadwell, J.

Sharon L. Annis of Buehler & Annis, PLC, Brattleboro, for Plaintiff-Appellant.

Jessica Easton, Pro Se, Brattleboro, Defendant-Appellee.


PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.)1 and
         Morris, Supr. J. (Ret.), Specially Assigned


        ¶ 1.     ROBINSON, J. In this parentage case, father appeals an order purporting to grant

him primary physical rights and responsibilities but granting mother parent-child contact

amounting to 64% of parenting time. We conclude that this allocation of physical rights and

responsibilities and parent-child contact is internally inconsistent, and remand for the trial court to

amend its findings and order.

        ¶ 2.     Father filed this parentage action in July 2017, when the child was approximately

six months old. Pursuant to the parties’ stipulation, the court entered an interim order providing

that parents would share legal rights and responsibilities, and assigning mother “full physical


        1
            Justice Burgess was present for oral argument but has since recused himself.
parental rights and responsibilities.” The stipulated order provided that father and child had parent-

child contact every weekend from Friday to Sunday evening or, in alternate weeks, Friday to

Monday morning. It provided that the child would be in day care at early education services from

8:30 a.m. to 3:00 p.m. five days per week. That general schedule remained in place throughout

the trial court proceedings.

        ¶ 3.     In January 2019, following a contested hearing, the court issued a final order

regarding parental rights and responsibilities and parent-child contact. The parents did not agree

to share legal or physical parental rights and responsibilities, so the court was required to award

parental rights and responsibilities “primarily or solely” to one parent. 15 V.S.A. § 665(a). The

court found that both parents had a significant role in the child’s life and that the child “has a strong

and enduring bond with both his parents.” The court concluded that most of the statutory factors

guiding the best-interests analysis, including the “primary care provider” factor, did not favor

either parent. See 

However, two factors—“[t]he ability and disposition of each parent

to assure that the child receives adequate food, clothing, medical care, other material needs and a

safe environment,” and “the ability and disposition of each parent to meet the child’s present and

future developmental needs”—slightly favored father.2 See 

Accordingly, the

court concluded that, on balance, the child’s best interests supported awarding father sole legal

and physical rights and responsibilities, with substantial parent-child contact for mother.

        ¶ 4.     The court’s parent-child contact schedule left the existing schedule, established by

the interim order, in effect. That is, the child was to be with father over the weekends—from

Friday to Sunday evening, or until Monday morning in alternate weeks. The order included

additional provisions for holidays and birthdays. Under this schedule, mother had approximately

64% of overnights with the child, and father approximately 36%.



        2
            The child has some special medical needs.
                                                 2
        ¶ 5.    Father filed a motion for reconsideration. He argued that because the court granted

him primary physical rights and responsibilities, it was legally required to grant him 50% or more

of parenting time. The trial court, quoting Chase v. Bowen, 

, ¶ 42, 

, 

, reasoned that “physical custody is not simply about the time a child spends with a

parent.” In the trial court’s view, “physical responsibility” as described in 15 V.S.A. § 664(1)(B)

also refers to “primacy in decision making regarding routine daily matters.” It reiterated its

findings that maintaining the existing schedule was in the child’s best interests, based on the

parents’ work schedules and the child’s interest in consistency. The court did make some minor

modifications to the parenting schedule regarding holidays, but otherwise left the schedule intact.

        ¶ 6.    On appeal, father argues that the court’s parent-child contact order essentially

amounted to an award of physical rights and responsibilities to mother, despite the court’s award

of physical rights and responsibilities to father. He contends that the court’s establishment of a

schedule pursuant to which the child resides primarily with mother impermissibly infringes on

father’s right to exercise primary physical rights and responsibilities. Father asks this Court to

remand to the trial court to establish a parent-child contact schedule that affords mother parent-

child contact that is less than or equal to father’s time with the child.

        ¶ 7.    The trial court has broad discretion in allocating parental rights and responsibilities

and in setting a parent-child contact schedule. MacCormack v. MacCormack, 

, ¶¶ 4,

26, 

, 

. We review these discretionary rulings for abuse of discretion. Lee

v. Ogilbee, 

, ¶ 9, __ Vt. __, 

. We review the legal question of whether

the trial court’s order is internally inconsistent as a matter of law without deference. See Engel v.

Engel, 

, ¶ 13, 

, 

(reviewing legal question under 15 V.S.A.

§ 665 anew, without deference). We substantially agree with father as to the error in the trial

court’s analysis, but part ways with respect to the proper remedy.



                                                   3
    I. The Relationship Between Physical Rights and Responsibilities and the Child’s Living
                                        Arrangements

        ¶ 8.    We agree that the court’s award of physical rights and responsibilities to father

implies that the child will spend at least fifty percent of the time with father, and that the trial

court’s order awarding father primary physical rights and responsibilities but mother nearly two-

thirds of the time with the child is thus internally inconsistent. We base this conclusion on several

considerations. First, the language, structure, and history of the relevant statutes support the

conclusion that the parent with physical responsibility is the parent with whom the child lives at

least fifty percent of the time. Second, this Court has consistently recognized that the parent

entrusted with physical rights and responsibilities has the authority to determine where the child

lives. Third, a contrary interpretation would render the concept of “physical responsibility”

meaningless. Finally, the trial court’s use of the term “parental rights and responsibilities” could

give rise to confusion and incongruous outcomes where other statutory schemes assign

significance to a parent’s custodial status.

        ¶ 9.    The trial court is correct that the statutory definitions of physical rights and

responsibilities and parent-child contact do not expressly mandate that the child reside with the

parent awarded primary physical rights and responsibilities for any particular amount of time. But

implicit in the language, structure, and history of the relevant statutes, and this Court’s general

understanding of them, is that the child resides with the parent entrusted with physical rights and

responsibilities at least half the time.

        ¶ 10.   The structure of our parental-responsibilities statute is based on the premise that the

parent with primary physical responsibility will live with the child at least half the time. The

overarching category of “parental rights and responsibilities” comprises “the 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


                                                  4
upbringing.” 15 V.S.A. § 664(1) (emphasis added). This category of rights and responsibilities is

broken into two components. “Legal responsibility” involves major decisions affecting the child’s

welfare and upbringing, such as “education, medical and dental care, religion and travel

arrangements.” 

“ ‘Physical responsibility’ means the rights and responsibilities

to provide routine daily care and control of the child subject to the right of the other parent to have

contact with the child.” 

Unless parents agree to share physical rights and

responsibilities, the court must entrust these rights and responsibilities “primarily or solely to one

parent.” 

It is hard to imagine how one parent could effectively be the primary or sole

person providing routine daily care and control for a child if the child is living more than half of

the time with the other parent.

       ¶ 11.   The definition of “parent-child contact” reinforces this understanding. “ ‘Parent

child contact’ means the right of a parent who does not have physical responsibility to have

visitation with the child.” 

(emphasis added). The court does not provide for parent-

child contact for the parent who has physical rights and responsibilities; rather, the definition

presumes that the parent who does not live with the child the majority of the time is the one

exercising the opportunity for visitation.

       ¶ 12.   The history of the term “parental rights and responsibilities” also suggests that

primary physical responsibility includes a majority of parenting time. “The phrase ‘parental rights

and responsibilities’ in 15 V.S.A. § 665 replaced the word ‘custody’ contained in an earlier version

of the statute.” Lane v. Schenck, 

, 495, 

, 789 (1992). This change in

language reflected an important rhetorical shift: the Legislature “discarded the word custody


       3
          We see no inconsistency in the award of legal rights and responsibilities to father and the
parent-child contact schedule, and confine our analysis here to whether the court’s award of
physical rights and responsibilities and its parent-child contact schedule are inconsistent. See
Chase v. Bowen, 

, ¶ 41, 

, 

(holding that statutes authorized
court to assign physical rights and responsibilities to one parent and legal rights and responsibilities
to the other because the respective categories vest authority regarding different areas of parenting).
                                                   5
because the term implied that the child was a prize to be awarded to the most meritorious parent.”

A Critical Look at Vermont’s New Child Custody Law, 

. Rev. 671, 671

n.3 (1986) (quotation marks omitted)). But it did not transform the practical application of the

statute. In fact, we have continued to use the word “custody” as “shorthand” for parental rights

and responsibilities. 

have treated the phrase “physical custody” as interchangeable

with “physical rights and responsibilities.” See, e.g., Wright v. Kemp, 

, ¶ 20, __ Vt.

__, 

; Weaver v. Weaver, 

, ¶ 1, 

, 

; Chase, 

, ¶¶ 16-21.

       ¶ 13.   Accordingly, we have repeatedly recognized that “the physical custodian has a right

to determine the children’s residence.” Hawkes v. Spence, 

, ¶ 9, 

, 

; see also Quinones v. Bouffard, 

, ¶ 24, 

, 

(noting

that parent with physical rights and responsibilities has authority to decide where parent and child

will live together); deBeaumont v. Goodrich, 

, 97, 

, 847 (1994) (“[T]he

physical custodian has a right to determine the child’s residence . . . .”); 

, 614

A.2d at 789 (“The place of residence for a family is central to childrearing, and thus that decision

is understandably entrusted to the parent awarded parental rights and responsibilities.”).

Moreover, our discussions of physical rights and responsibilities reflect an assumption that

physical responsibility for a child is synonymous with living with a child. See, e.g., Gates v. Gates,

, 68, 

, 797 (1998) (contrasting impact of modifying legal rights and

responsibilities with “violent dislocation realized by a change in physical custody”).

       ¶ 14.   Given this case law, it is difficult to discern what an award of physical rights and

responsibilities to father even means in this case, where mother has the lion’s share of the time

with the child. The trial court’s explanation that father is still the custodial parent and retains

authority regarding the child’s daily care and control, even while the child is in the physical care

of his mother, misapprehends the extent of a custodial parent’s authority to make routine, day-to-

                                                  6
day decisions when a child is in the care of the noncustodial parent. A parent exercising parent-

child contact is “entrusted the routine daily care and control of the children.” Gazo v. Gazo, 

, 445, 

, 348 (1997). During parent-child contact time, a noncustodial parent

can generally make decisions concerning the activities that will occur during parent-child contact

time, sign releases or waivers, or arrange travel for the child. Patnode v. Urette, 

,

¶¶ 12, 14, 

, 

. Parents generally cannot place limits or exercise control

over each other’s parenting time, even if one has primary responsibility for the child. 

, 697 A.2d at 348-49. “If the custodial parent were allowed to establish routines and

restrictions within a noncustodial parent’s time at her whim, the contact with [the noncustodial

parent] would be little more than a babysitting function with [the custodial parent] having filled

the time with instructions and conditions.” Miller v. Smith, 

, ¶ 7, 

, 

(mem).

       ¶ 15.   We have acknowledged that the trial court can deviate from these presumptions in

appropriate cases. See 

(“There are certainly times when the parent awarded parental rights

and responsibilities will want to establish conditions, such as where the child has a strict vegetarian

diet . . . .”). But it is generally not true that a parent with primary physical responsibilities can

exercise routine daily care and control of the child while the child is with the other parent, and the

trial court here did not suggest any intent to depart from this general rule by assigning father

authority over the child’s activities while in mother’s care. For that reason, even though the trial

court purported to assign physical rights and responsibilities to father in this case, the practical

effect of its parent-child contact order is to leave father with a label that has little to no actual

meaning.4


       4
          Our holding in Chase v. Bowen, relied upon by the trial court, does not require a contrary
conclusion. 

. In that case, a mother challenged a trial court order awarding her sole
physical rights and responsibilities but awarding the father contact with the parties’ two children
fifty percent of the time. We rejected the argument that by dividing the children’s time equally
                                                7
       ¶ 16.    To permit an inconsistent order like the one in this case could lead to confusion or

incongruities where other legal rights or obligations are tied to a parent’s status as custodial or

noncustodial. For the purposes of child support, mother would be the child’s custodial parent,

even though the court nominally assigned father physical rights and responsibilities. See 15 V.S.A.

§ 657(d).5     Likewise, although the court entrusted father with primary physical rights and

responsibilities, mother would be considered the custodial parent for federal and state tax purposes.

See 26 U.S.C. § 24(a), (c) (permitting credit only for “qualifying child”); 

(defining “qualifying child” as residing with taxpayer for more than half the year); 32 V.S.A.

§§ 5822(d)(1), 5828c (applying same standards for Vermont purposes).

       ¶ 17.    Similarly, in Child in Need of Services (CHINS) proceedings custodial and

noncustodial parents have very different rights. See, e.g., 33 V.S.A. § 5302(a) (custodial parent,

but not noncustodial parent, has right to immediate notification if an officer takes child into

custody); 

(requiring delivery of temporary order to custodial parent, but only

“reasonable efforts to locate” noncustodial parent); 

(assigning different rights to

custodial and noncustodial parents who do not receive notice of temporary care hearing); 

(requiring judicial summons for preliminary hearing for custodial parent, but only

“reasonably diligent efforts to serve a noncustodial parent”). The definition of “custodial parent”

for CHINS proceedings “means a parent who, at the time of the commencement of the juvenile



between the parents the trial court ran afoul of the statute precluding the court from imposing
shared physical rights and responsibilities without the parties’ agreement. 

(applying 15
V.S.A. § 665(a)); see also MacCormack, 

, ¶ 28 (upholding parent-child contact
schedule that allocated fifty percent of child’s time to noncustodial parent). Our decision in Chase
does not support the trial court’s conclusion that a court can allocate more than half of the parenting
time to a noncustodial parent.
       5
           We recognize that in cases in which parents share physical rights and responsibilities,
only one of them may be considered the custodial parent for child support purposes depending on
the allocation of the child’s time between the parents. But to designate one parent as the child’s
sole custodian for child support purposes and the other one sole custodian for other purposes would
create further confusion in the meaning of “custodial parent.”
                                                 8
proceeding, has the right and responsibility to provide the routine daily care and control of the

child.” 

It is not at all clear how this definition would apply in a case where the

child spends more time living with the “noncustodial” parent. It is also unclear whether giving

effect to father’s nominal “custodial” parent’s legal status would be consistent with the purposes

of the differential treatment in the CHINS statute.

        ¶ 18.   For the above reasons, we conclude that the trial court’s order in this case cannot

stand because its assignment of parental rights and responsibilities and its parent-child contact

order are incompatible.6 An award of sole or primary physical rights and responsibilities to one

parent generally means, at a minimum, that that parent is responsible for the day-to-day care of the

child at least half the time.7

                                            II. Mandate

        ¶ 19.   Father argues that because he appealed only the parent-child contact schedule, and

not the court’s assignment of parental rights and responsibilities, the only issue preserved for

resolution on remand is the parent-child contact schedule. He further contends that based on the

trial court’s unappealed analysis of the best-interests factors, he is the proper custodial parent,

leaving only the question of mother’s parent-child contact.


        6
          This case involves the assignment of parental rights and responsibilities in the first
instance. We note that in the context of a motion to modify, a motion to increase a non-custodial
parent’s parent-child contact time to more than 50% of the child’s time would likewise be
tantamount to a motion to modify physical rights and responsibilities, even if captioned as a motion
to modify parent-child contact. The movant’s burden to establish changed circumstances to
support such a change would accordingly be that required to modify physical rights and
responsibilities. See Weaver, 

, ¶ 18 (“ ‘The burden of showing changed circumstances
with respect to a motion to alter parent-child contact is not as high as the heavy burden of showing
changed circumstances with respect to a motion seeking a change of custody.’ ” (quoting Hawkes,

, ¶ 20)).
        7
          We can imagine cases in which a child does not physically live with the custodial parent
50% of the time—such as a child who is in boarding school or who lives in an institutional setting.
But in this case there are no such factors supporting a departure from the general presumption that
the parent with physical rights and responsibilities is the one a child lives with at least half the
time.
                                                  9
         ¶ 20.   We disagree. In reconsidering its order on remand, the trial court may consider

both its assignment of physical rights and responsibilities and its parent-child contact schedule.

The trial court concluded that the child’s best interests supported awarding primary physical rights

to father, but also that the child’s best interests supported awarding mother the majority of

parenting time (having the effect of an award of primary physical rights). Given our clarification

of the law, we cannot discern how the trial court would exercise its discretion in this case—that is,

whether the court would revise its parent-child contact schedule or its award of physical rights and

responsibilities in light of our conclusion that these disparate aspects of the court’s final order

cannot both stand as is. If the court were to name mother as the primary-physical-responsibilities-

holder, the court would have to explain what factors weighed in mother’s favor and why it gave

more weight to those factors. See Nickerson v. Nickerson, 

, 89, 

, 1333

(1992) (statutory list of best-interests factors is “nonexhaustive”). But we cannot deny the trial

court the ability to reconsider physical responsibilities, given that it must fashion a new parenting

plan.8

         ¶ 21.   The trial court must grant parental rights and responsibilities “primarily or solely”

to one parent. 15 V.S.A. § 665(a). The court’s order in this case purported to grant father primary

physical responsibilities, but its division of parenting time in mother’s favor rendered father’s

physical responsibility virtually meaningless. We remand to the trial court to resolve this

inconsistency in light of this opinion. In doing so, it may exercise its “broad discretion to craft


         8
          This case is very different procedurally from those cases in which we have considered
whether a trial court could properly revisit established parental rights and responsibilities in the
context of a motion to modify an existing parent-child contact schedule. Compare Bonk v. Bonk,

, ¶¶ 1, 14, 

, 

(holding that trial court abused discretion in
modifying parental rights and responsibilities in response to mother’s motion to modify parent-
child contact where mother’s relocation would not impair the other parent’s ability to exercise
parent-child contact) with Chase, 

, ¶ 20 (holding that trial court did not abuse its
discretion in awarding father sole legal custody in proceeding on mother’s motion to modify where
mother’s motion to modify put existing shared custody arrangement in issue and father requested
award of sole custody at hearing).
                                                  10
parental rights and responsibilities orders that serve the best interests of children.” Shea v. Metcalf,

, 499, 

, 890 (1998) (quotation omitted).

       The final order of the family division is vacated, and the case is remanded for further
proceedings consistent with this opinion. The temporary order approved by the court on December
20, 2017, is reinstated until further order of the family division.



                                                 FOR THE COURT:



                                                 Associate Justice




                                                  11