172 A.3d 190
Vt.2017Background
- Child born in Vermont on June 6, 2016; mother (Vermont) and father (Virginia) are parents.
- Mother moved with the child to Virginia on July 23, 2016, leasing an apartment, obtaining work and WIC benefits, and transferring medical records; she returned to Vermont with the child on August 9, 2016 and said she intended to stay.
- Father filed a Virginia custody action on August 10, 2016; Virginia district court awarded custody to father on September 9, 2016; mother appealed in Virginia.
- Mother filed a parentage/custody action in Vermont on September 12, 2016; courts in both states held a joint hearing where Virginia conducted a de novo review.
- Virginia concluded the child had no “home state” and that Virginia had significant-connection jurisdiction and substantial evidence; Vermont consulted with Virginia, dismissed the Vermont case under the UCCJEA simultaneous-proceedings / first-in-time rule, and denied reconsideration.
Issues
| Issue | Plaintiff's Argument (Pierce) | Defendant's Argument (Slate) | Held |
|---|---|---|---|
| Whether Vermont must exercise initial-custody jurisdiction under 15 V.S.A. § 1071 | Vermont is the child’s home state; mother’s Virginia move was a temporary absence, so § 1071 requires Vermont to decide custody | Virginia filed first and assumed jurisdiction consistent with UCCJEA; Vermont must defer | Vermont properly dismissed; Virginia’s exercise of jurisdiction was substantially in conformity with the UCCJEA |
| Whether the Vermont court had to perform its own § 1071 findings rather than rely on Virginia’s determination | Vermont must do an independent § 1071 analysis and make express findings | Where another state filed first and assumed jurisdiction, Vermont need not duplicate findings; it must determine conformity under § 1076 | Court may rely on coordinated proceedings and Virginia’s findings; Vermont should have made express findings but error was harmless given record |
| Whether mother’s Vermont filing was treated correctly as a modification vs. simultaneous proceeding | Mother argued Vermont filing sought an initial determination (not modification) | Father/Vermont treated it as simultaneous proceeding under § 1076 because Virginia filed first | Whether called modification or simultaneous proceeding, result is same: Vermont lacked jurisdiction to act because Virginia’s proceeding was first in time and substantially in conformity |
| Whether off-the-record bench conference between judges violated communication rules (15 V.S.A. §1068) | Off-record substantive communication deprived parties of required on-record opportunity and independent adjudication | Statute permits inter-court communication; parties were allowed to present facts; failure to record may be error but mother did not preserve objection | Conference was permissible; failure to record might be error but was not preserved and was harmless because parties had presented facts and arguments |
Key Cases Cited
- In re A.W., 196 Vt. 228, 94 A.3d 1161 (Vt. 2014) (discusses "home state" and temporary-absence analysis under UCCJEA)
- In re Cifarelli, 158 Vt. 249, 611 A.2d 394 (Vt. 1992) (addresses home-state analysis for infants under predecessor statute)
- In re C.A.D., 839 P.2d 165 (Okla. 1992) (explains the first-in-time rule and prevention of jurisdictional squabbles under UCCJA)
- Rocissono v. Spykes, 170 Vt. 309, 749 A.2d 592 (Vt. 2000) (distinguishes full faith and credit/enforcement issues from initial jurisdiction questions)
- Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 752 A.2d 26 (Vt. 2000) (preservation rule—issues not raised below are not preserved for appeal)