Child Custody and Visitation Laws in Vermont

When parents are splitting up, questions about their children's futures are usually their most pressing concerns. Where will the kids live most of the time? How much time will each parent have with them? Which parent will have the right to make important decisions about the children's lives? Here's how Vermont law deals with these and other issues related to child custody.

Types of Child Custody in Vermont

Vermont law uses the term "parental rights and responsibilities" to refer to what's traditionally called child custody. Those parental rights are broken up into two areas of responsibility (commonly known as legal and physical custody):

• Legal responsibility means the right to decide and control important matters affecting the child's welfare and upbringing, including education, health care, and religion.
• Physical responsibility determines where a child will live and which parent has the right to provide the child's routine, daily care.

Parents may share either or both types of responsibility, or one parent may have sole legal or physical responsibility (or both). Even when one parent has sole physical responsibility, the other parent will normally have the right to visit with the child (more on that below).

(Vt. Stat. tit. 15, § 664 (2024).)

Parents' Custody Agreements and Parenting Plans

Courts generally prefer that parents agree on how to share or divide their rights and responsibilities. But Vermont law sets out requirements for these agreements (often called "parenting plans"). They must at least include provisions dealing with:

• the child's physical living arrangements
• parent-child contact (visitation) for the parent who doesn't have physical responsibility
• how the parents will communicate with each other about the child (such as by text, email, or phone)
• the child's education and health care
• how the parents will handle travel arrangements when the child goes back and forth between them, and
• how they'll resolve any disputes concerning the child, such as through mediation.

It's also a good idea to include more details in a parenting plan, including:

• a detailed schedule of when the children will stay overnight with each parent during the school year and vacations
• how you'll handle holidays and celebrating birthdays
• how you'll communicate with your children when they're with the other parent, and
• how you'll share or divide decision-making responsibilities over important areas of the child's life.

As a general rule, judges will presume that the parents' agreement is in the child's best interests. But if the evidence otherwise—or the agreement wasn't entirely voluntary—the judge won't approve it. (Vt. Stat. tit. 15, § 666 (2024).)

How Vermont Judges Decide About Parental Rights and Responsibilities

Without a custody agreement, a judge will have to decide on the parental rights and responsibilities under the requirements in Vermont law.

No Shared Custody Without an Agreement

If the parents haven't been able to agree about how they'll divide or share their rights and responsibilities, judges in Vermont may not order shared custody. Instead, the judge must award parental rights and responsibilities solely or primarily to one parent.

The idea behind this requirement in Vermont law is that shared custody requires a level of cooperation and willingness to work together, at least when it comes to the children. It's counterproductive—and more importantly, not good for the kids—to force unwilling parents into that arrangement. But the law doesn't require judges to award all rights and responsibilities to the same parent. In appropriate cases, a judge may award legal responsibility to one parent and physical responsibility to the other.

A judge may also divide up discrete areas of legal responsibility—for instance, by giving one parent decision-making authority about the child's health care, while the other parent has responsibility over the other areas. And even when a parent has sole legal responsibility over certain areas, the judge may order that parent to inform the other parent about any major changes.

(Vt. Stat. tit. 15, § 665 (2024); Chase v. Bowen, 945 A.2d 901 (Vt. 2008); Shea v. Metcalf, 712 A.2d 887 (Vt. 1998).)

Custody Decisions Must Be in the Children's Best Interests

The overarching concern in all custody decisions will be the child's best interests. When judges are deciding which custody arrangements would be best for children, they must consider at least all of the following factors:

• the child's relationship with both parents and with anyone else who's important in the child's live
• each parent's ability and willingness to provide the child with love, guidance, food, clothing, medical care, and a safe environment, and to meet the child's developmental needs
• each parent's ability and willingness to encourage the child's positive relationship with the other parent, including frequent and continuing contact (unless it would cause harm)
• the parents' ability and willingness to communicate and cooperate with each other about the child
• how well the child is adjusted to the current environment (including housing, school, and the community), as well as the potential impact of changes to that environment, and
• either parent's history of domestic violence or abuse, as well as the impact of that abuse on the child.

(Vt. Stat. tit. 15, § 665(b) (2024).)

Emergency Custody Orders to Protect Children From Abuse

Judges in Vermont may issue temporary, emergency custody orders if a parent has abused the other parent or their children, and there's an immediate danger of physical or emotional harm to the children. (Vt. Stat. tit. 15, § 1104 (2024).)

Does Gender or Financial Status Play a Role in Custody Decisions?

Vermont law specifically prohibits judges from giving one parent a preference in custody decisions because of the parent's or the child's sex, or because of either parent's financial situation. (Vt. Stat. tit. 15, § 665(c) (2024).)

Parent-Child Contact (Visitation)

It's a public policy in Vermont that when parents are separated or divorced, it's in their children's best interests to continue having a maximum amount of contact with both parents—unless that contact would cause direct physical harm or significant emotional harm to the child or one of the parents.

This means that when children primarily live with one parent, there should be a schedule for the other parent to spend time with the kids. There's no there's no one-size-fits-all template for that schedule. It depends on the parents' agreement or what the judge believes is appropriate under the circumstances.

In some situations, the judge will place restrictions on parent-child contact. When a parent has been convicted of domestic violence against the other parent within the past ten years, or has committed abuse against any member of the household in that time, the judge may allow that parent to have contact with the child only if there are adequate measures (such as supervised visitation) to protect the safety of the child or the parent who was the victim.

If the custodial parent interferes with the other parent's visitation rights without good cause (such as a reasonable fear for the child's safety), it could lead to serious consequences for that parent, including punishment for contempt of court. It might also be a qualifying reason to change custody (more on that below).

(Vt. Stat. tit. 15, §§ 650, §668a (2024).)

Modifying Existing Custody Orders in Vermont

If you find that your current parenting plan isn't feasible any more—for instance, because you (or your co-parent) plans to move far away, or one of you can no longer care for the kids because of serious, long-term illness—you may file a motion with the court asking for a modification in your parental rights and responsibilities order. But you'll need to meet two sets of requirements.

• First, any parent requesting a custody modification in Vermont must show that there's been a "real, substantial, and unanticipated change of circumstances." Pay careful attention to the word "unanticipated." The changed circumstances must be a new development that you didn't foresee when the judge issued your current order.
• Second, it's not enough simply to prove that there have been qualifying changed circumstances. That's a prerequisite before the judge will go on to consider whether the requested modification would be in the child's best interests based on the circumstances (including the same factors that go into an original custody decision, as discussed above).

Also, be aware that when a modification order will change when parents have the children, the judge will schedule a hearing to address whether child support also needs to be changed. That's because the parents' physical custody arrangements play a role in the calculation of child support in Vermont.

(Vt. Stat. tit. 15, § 668 (2024); Sundstrom v. Sundstrom, 865 A.2d 358 (Vt. 2008); Bell v. Squires, 845 A.2d 1019 (Vt. 2003.)

Do Grandparents Have Visitation Rights in Vermont?

Most parents welcome the chance to have their children spend time with grandparents. But when a parent limits or cuts off that contact, grandparents may seek court-ordered visitation rights. Courts have set out rules for when judges may grant those requests.

First, let's look at what Vermont's laws say on the subject:

• Filing grandparent visitation requests. Grandparents may file a request for visitation in Vermont as part of the parents' divorce or other custody case, or if one of the child's parents has died, has abandoned the child, or is mentally or physically unable to make decisions.
• Best interest factors for awarding grandparent visitation. Under the law in Vermont, judges will grant the grandparents reasonable visitation if it would be in the child's best interests. The statute lists a number of factors that judges must consider when making that decision, including the nature of the grandparents' existing relationship with the child, the child's reasonable preference (if the child is mature enough to express it), and the "moral fitness" of the parents and grandparents.

However, the Vermont Supreme Court has followed the lead of the U.S. Supreme Court to hold that courts must presume fit parents will make decisions that are in the child's best interests. So even though the criteria listed in the Vermont statute don't include a parent's decision about whether to allow visits with grandparents, the court held that judges must presume those decisions are valid—they shouldn't simply substitute their own opinion for the parent's decision about what's best for the child. Otherwise, granting visitation requests over a parent's objection would violate the parent's constitutional rights.

Still, grandparents might be able to overcome the presumption in favor of parental decisions if they can provide compelling evidence—such as evidence that the parent is unfit or that the child will suffer significant harm without a court order for grandparent visitation. It's not enough just to show that the child would benefit from spending time with the grandparents.

(Vt. Stat. tit. 15, §§ 1011, 1012, 1013 (2024); Glidden v. Conley, 820 A.2d 197 (Vt. 2003), Troxel v. Granville, 530 U.S. 57 (U.S. Sup. Ct. 2000).)

Resources and Help With Custody

If you're having trouble agreeing on parenting plan but want to avoid a costly, time-consuming trial, you might consider custody mediation. If you haven't reached an agreement by the time you file for divorce or custody, the judge may refer you to mediation. In that case, the court might help pay for the cost, depending on your financial circumstances. (Learn more about Vermont's Family Mediation Program.)

But mediation isn't always appropriate, especially when there's been domestic violence, there's a serious imbalance of power between the parents, or one parent simply refuses to go along. When that's the case—or when mediation hasn't been successful—you should seriously consider speaking with a lawyer to get help with your custody dispute. An experienced family law attorney can explain your options, help gather the kind of evidence you'll need, and protect your rights in the legal system.