¶ 1. Mоther appeals from a family court order granting father sole physical and legal rights and responsibilities of their child. She contends that: (1) the family court’s findings and legal conclusions are inconsistent with the evidence presented at trial and are based on inadmissible evidence; (2) the family court erred in failing to consider her argument that father’s reason for moving should be considered when deciding whether there has been a change in circumstance, such that the co-parent’s rights to physical custody are reduced; and (3) the family court erred in failing to consider her argument that mother should maintain physical custody when father decided to move and mother had the majority of physical custody. We affirm.
¶ 2. Mother and father were divorced in 2005. Pursuant to the original divorce order, the parties shared legal and physical rights and responsibilities in their daughter, who was five years old at the time of the judgment. Following their divorce, mother and father generally shared time with daughter: she was with mother for four overnights per week and with fathеr for three. During the school year, she was with father from Wednesday to Saturday and with mother from Saturday to Wednesday. During the summer, she was with father from Friday to Monday and with mother from Monday to Friday. They also co-parented daughter during this time. Nonetheless, mother and father have had an especially contentious post-divorce relationship. Both parents have new part
ners and children, and this has caused additional tension in their relationship. Daughter’s participation in extracurricular
¶ 3. As a result of the pаrties’ disputes, father moved to modify parental rights and responsibilities in January 2008. Following a five-day hearing, the court issued a written order in January 2009 awarding primary legal responsibility to father. The court found that because parents could not agree, daughter was being denied the opportunity to participate in extracurricular activities she had previously enjoyed. In addition, the parties could not agree on a counselor or dentist for daughter, whether she should see an orthodontist, and how her religious upbringing should occur. Overall, the court found that daughter’s welfare was negatively affected by the parties’ inability to cooperate or reach agreements.
¶4. Based on its findings, the court concluded that it had become necessary to grant primary legal responsibility of daughter to one parent. It further concluded that it was in daughter’s best interest that father be awarded primary responsibility with certain “caveats,” including that father not remove daughter from her current school unless the parties agreed, nor change her current church membership without mother’s approval. The court specifically ordered that father would be the primary decision-maker for nonschool-related extracurricular activities. At the same time, the court denied father’s request for primary physical responsibility of daughter, concluding that it would be traumatic for daughter if her residential schedule were altered. Given the parties’ co-parenting arrangement, a change of custody was not necessary to sоlve the dispute before the court.
¶ 5. Nevertheless, mother appealed the family court order awarding father primary decision making responsibility over daughter’s extracurricular activities, as well as a subsequent order denying her motion to modify, claiming that the orders impermissibly infringed on her shared physical rights and responsibilities. We affirmed both family court decisions in Chickanosky v. Chickanosky, Nos. 2009-094 & 2009-444 (Vt. May 21, 2010) (unpub. mem.), http://vermontjudiciary.org/d-upeo/eo09-094.pdf.
¶ 6. In October 2009, while mother’s appeals were pending before this Court, father again petitiоned the family court for primary physical responsibility of daughter because of a planned relocation to Missouri. He asserted that the relocation was a real, substantial, and material change in circumstances warranting a change in the award of physical rights and responsibilities. Father further asserted that it would be in daughter’s best interest that he be awarded primary physical responsibility so that she could move with him and his wife to Missouri and that mother be awarded reasonable parent-child contаct. Mother contended that it would be in daughter’s best interest to remain with her in Vermont.
¶ 7. Following a four-day hearing, the court issued a written decision in July 2010. The court made extensive findings, relying on a court-ordered forensic evaluation by Dr. Joseph Hasazi, its January 2009 order and related findings and conclusions of law, and the testimony of multiple witnesses. The court found that father’s primary motivation for moving to Missouri was to be closer to his wife’s family. Other factors influencing father’s decision to move included Missouri’s lower cost of living, the tensе situation with mother and its impact on daughter, and the cost of the ongoing litigation regarding their daughter.
¶ 8. The court found that mother continued to make it ‘Very difficult for [daughter]
¶ 9. In contrast, the court found that father was “much more likely to make decisions that [were] based on [daughter’s] best interest [and] not influenced by his feelings for [mother].” Indeed, the court found that father was much better at keeping “adult issues” away from the child. The court also found that father had “a better understanding of the boundaries between adult and child and [could] provide [daughter] with better guidance.”
¶ 10. The court found, too, that daughter had strong ties to her community in Monkton, where mother lived, and that she was closеr to her Vermont friends and relatives than to her relatives in Missouri. The court found in this regard that a move from her Monkton home would “cause [her] some emotional upset.”
¶ 11. Relying on our decision in
Hawkes v. Spence,
¶ 12. Having concluded that father met his threshold burden of proving changed circumstances, the court then granted father’s motion to modify based on the best interests of the child and the factors outlined in 15 V.S.A. § 665(b). It determined that, based on its findings, the majority of the factors favored father and concluded that it was in daughter’s best interest for father to be awarded primary legal and physical rights and responsibilities. Accordingly, the court granted father primary legal and physical responsibility of daughter subject to mother’s right of parent-child contact. Mother subsequently filed a motion to correct findings of fact. Following a hearing, the court issued a written order addressing each challenged finding. The court did not substantively change any findings.
¶ 13. Mother argues on appeal that the family court erred by: (1) making findings that were inconsistent with the evidence presented at trial or based on inadmissible evidence; (2) applying an incorrect legal standard to determine if there had been a change in circumstances; and (3) applying an incorrect legal standard to determine what custody arrangement would be in daughter’s best interests.
¶ 14. We address at the outset mother’s argument that the family court’s findings were inconsistent with the evidence presented at trial or were based on inadmissible evidence. In general, we defer to family court findings of fact.
Miller-Jenkins v. Miller-Jenkins,
¶ 15. Mother challenges two findings, which we review in turn. 1 First, mother argues that the family court incorrectly found that father moved to Missouri to be near family. The court specifically found that “[father’s] primary motivation for moving to Missouri is because his wife is from there and her support base is there.” It found that “other factors exist but are secondary.” Mother moved to correct this finding of fact, but the court declined to do so, еxplaining that the finding was supported by the credible testimony of both father and father’s wife. Father testified that family was “very, very important to us” and that his wife’s family was in Missouri. Father’s wife testified that daughter had friends and family in Missouri. As noted, we rely on the family court’s determinations of credibility and will not overturn findings if credible evidence supports them. The finding that father moved to Missouri to be near family is not clearly erroneous.
¶ 16. Mother also argues that the family court incorrectly found that she does not foster independence in daughter. Mоther’s primary contention is that the court’s finding improperly relied on hearsay testimony from interviews contained in Dr. Hasazi’s report. We agree that the court erred in using hearsay statements from Dr. Hasazi’s report as substantive evidence to support this finding. Because, however, independent evidence in the record supports the court’s overall findings and conclusions, notwithstanding its improper use of hearsay from Dr. Hasazi’s report, we conclude that the family court did not err in its ultimate award of primary legal and physical custody to father.
¶ 17. By statute, reports of an expert “evaluating the best interests of the child” are admissible in determining parental rights and responsibilities if the expert is available for cross-examination. 15 V.S.A. § 667(b);
Velardo v. Ovitt,
¶ 18. Contrary to the family court’s analysis, the admission of Dr. Hasazi’s report does not render substantively admissible the facts forming the basis of his opinions that are not otherwise admissible or admitted into evidence. It is true that in writing his report Dr. Hasazi could
¶ 19. Dr. Hasazi’s use of inadmissible hearsay evidence as a basis for his expert opinion as expressed in his report does not make that hearsay suddenly admissible for its substance. Id. Rather, as we clarified in Recor:
Under Rule 703, if an expert relies on the out-of-court statements of another in forming his or her opinion and if such statements are of a type reasonably relied on by experts in the particular field, then the statements — even if not independently admissible for their substance — will be admissible for the limited purpose of demonstrating the basis for the expert’s opinion.
Id. We emphasized there that Vermont Rule of Evidence 703 “is not to be treated as either an auxiliary hearsay exception, or as a backdoor to an expansive reading of existing hearsay exceptions.” Id. In the case at hand, the family court’s justification for using otherwise inadmissible statements contained within the report was based on the fact that Dr. Hasazi’s report was entered into evidence by stipulation and, according to the court, “without any restrictions.” This does not overcome the limits of the rule and statute governing the report’s admission. V.R.E. 703; 15 V.S.A. § 667(b).
¶ 20. Nonetheless, independent evidence in the record supports the court’s finding that mother does not foster independence in daughter. See
Miller-Jenkins,
¶21. In addition, father’s wife testified that mother did not allow daughter to be alone at extracurricular activities when father and his wife were present. Mother’s husband also testified that he believed mother would reapply for a teaching position at the high school daughter would attend if she remained in Vermont. Despite the evidence mother cites to the contrary, given the record evidence supporting the court’s finding that mother’s involvement in the classroom, at recess, and with extracurricular activities was “smothering,” we have no reason to overturn it.
¶22. We turn now to mother’s arguments regarding the legal standards applied by the family court. We
¶ 23. Mother argues that the court should have considered father’s reasons for moving in deciding whether there has been a change in circumstances allowing reconsideration of the custody arrangement. The crux of her argument is that father’s motivation for moving is invalid based on the American Law Institute’s Principles of the Law of Family Dissolution (2002) (ALI Principles), and that, therefore, father did not meet his burden of showing changed circumstances. We disagree and decline mother’s invitation to change the legal standard in this regard.
¶ 24. The statute allows that “upon a showing of real, substantial and unanticipated change of circumstances, the court may annul, vary or modify an order [regarding parental rights and responsibilities] if it is in the best interests of the child.” 15 V.S.A. § 668. We have held that several general principles guide a court’s evaluation of this statutory test, which requires a threshold showing of changed circumstances before parental rights and responsibilities can be modified based on the child’s best interests.
Hawkes,
¶ 25. To further clarify the circumstances in which relocation alone may satisfy the threshold requirement of showing changed circumstances, we adopted § 2.17(1) of the ALI Principles, specifically noting that we were adopting only this particular subsection.
Hawkes,
¶ 26. Here, the family court applied the correct legal standard, looking to
Hawkes
and our adoption of § 2.17(1) of the ALI Principles. The court found that a “true co-parenting situation” existed because father had primary legal responsibility for daughter and mother and father shared рhysical responsibility for her, with daughter residing for four days with mother and for three days with father. In addition, the court considered that father’s
¶ 27. Mother contends, however, that the court made a mistake of law when it failed to consider father’s “true reason for moving” in determining whether father met his burden of showing changed circumstances. She suggests that father is moving for an invalid reason — “to get away [frоm mother]” — and therefore the court incorrectly found that father met his burden. 2 To support her claim, she cites § 2.17(4)(a)(ii) of the ALI Principles.
¶ 28. We have not yet adopted § 2.17(4) of the ALI Principles, but more importantly, this subsection does not address the threshold question of changed circumstances, but rather the modification of parenting plans once changed circumstances have been found. Section 2.17(4)(a)(ii) lists “valid” reasons for relocation for purposes of § 2.17(4), which offers guidelines for a court modifying a parenting plan “[w]hen a relocation constituting changed circumstances . . . renders it impractical to maintain the same proportion of custodial responsibility to each parent.” ALI Principles § 2.17(4). Lastly, this subsection calls only for a court to consider whether purposes for relocation are valid when “a parent who has been exercising the clear majority of custodial responsibility” seeks to relocate with the child, not when there is a co-parenting situation, such as that found by the cоurt here. Id. For all these reasons, the court made no error in its determination of whether changed circumstances existed.
¶ 29. We turn next to mother’s argument that the family court erred in failing to consider her argument that, pursuant to the ALI Principles, mother had and should maintain the majority of physical custody. As before, mother relies on portions of the ALI Principles that we have not yet adopted: § 2.17(4)(a) and comment d to § 2.17, which elaborates on § 2.17(4)(a). Section 2.17(4)(a) states that a court “should allow a parent who hаs been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose.”
¶ 30. Mother suggests that the inverse should be applied — a primary physical custodian who is not relocating should continue to determine the child’s residence. Again, mother’s citation to the ALI Principles does not support her case. The court did not find mother was the primary physical custodian. It found that the parties co-parented daughter and shared custody, even though father had only three days per week to mother’s four. Given the change of circumstances and parents’ shared custody of daughter, the
¶ 31. The family court’s application and analysis of the best interests of the child standard and related factors outlined in § 665 was well within its broad discretion. See
DeLeonardis,
¶ 32. Mother specifically challenges the court’s conclusion that the third factor, “the ability and disposition of each parent to meet the child’s present and future developmental needs, favors father.” 15 V.S.A. § 665(b)(3). Her argument hinges on her contention that the court’s finding that mother does not foster independence in daughter was without support. As discussed, this finding was well-supported by evidence in the record unrelated to the inadmissible interviews contained within Dr. Hasazi’s report. We therefore have no reason to overturn the court’s conclusion regarding this factor.
¶ 33. In addition, mother challenges the cоurt’s assessment of factor five, “the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact.” Id. § 665(b)(5). The court’s conclusion is supported by the court’s findings, which are, in turn, supported by the evidence. The court’s findings cited Dr. Hasazi’s conclusion that father has continued to be more supportive of mother’s relationship with daughter than mother has been of father’s relationship with daughter. The court quoted Dr. Hasazi’s opinion that “some of [mother’s] behavior during many of [daughter’s] activities may compete with and/or detract from [daughter’s] ability to relate to [father] and other family members in a comfortable manner” and that “[t]hese things and others noted previously in the report likely send a message to [daughter] that [father] and his family are less able to support her, understand her, or competently meet her needs than [mother].” (Quotation omitted.)
¶ 34. The court also noted Dr. Hasazi’s conclusion that if daughter were to reside with mоther during' the school year, father’s worries about parental alienation would be well-founded. Although mother highlights what she terms the “speculative” nature of these findings, we conclude that they support the court’s determination of this factor, which was well within its discretion. The court was aware that the difficulties stemming from mother’s behavior regarding father and his family were longstanding, and, if anything, had increased since its last decision on parental rights and responsibilities. Nor does the other evidence cited by mother persuadе us that the court acted outside its discretion to reach its conclusion. See
Miller-Jenkins,
¶ 35. Upon consideration, the court concluded that the one factor favoring mother — the quality of the child’s adjustment to her present housing, school, and community, and the potential effect of any change — was significant in the context of this case but, ultimately, not determinative. See 15
Affirmed.
Notes
Although mother terms it a “finding,” she also challenges the court’s conclusion as part of its best-interests analysis that father hаs the better ability to foster a positive relationship and frequent and continuing contact with mother. We address below the family court's application and analysis of the best-interests standard.
We note that mother’s claim regarding father’s motivation for moving is contradicted by the family court’s finding that father’s primary motivation for moving to Missouri is because his wife is from there and her support base is there and that other existing factors are secondary. As discussed above, we do not overturn this finding, which is supported by evidence in the record.