*1 facts, contend, plaintiffs majority agrees, From these and the although past there had been no with children problem climbing building cemetery, trees or tree forts or around the Cemetery anticipated Association should have that children would tree, cemetery the old boards left in a the idea to build a get see tree fort, cemetery discover an abandoned ladder off haul the grounds, cemetery ladder across the and use it to climb an otherwise cemetery property unscalable tree was but that had straddle, to overhanging high injure branches fence too and then by falling They themselves out of the tree onto the fence. ask too tragic much from reasonable minds. The accident led to this lawsuit was the result of a bizarre sequence events whose likelihood occurring was so remote that the Association cannot be held liable it. If the failing anticipate Cemetery Association can be held circumstances, liable under the instant there are thousands of other landowners Vermont who will be hard-pressed they assure that susceptible will not be to future lawsuits for failing child-proof their property. Mary
Charles Thomas
Shea
Oliver Metcalf
[
Opinion April Filed *2 Shea, T. Lucy Brown and Dennis R. Pearson of Gravel Huddle, Lindsey Plaintiff-Appellee. M. for Burlington, Wool, M. Murray Langrock Susan & Sperry Middlebury, for Defendant-Appellant.
Amestoy, Mary C.J. an Family Metcalf Addison Court appeals in divorce order which for her two minor children were divided between herself and her former hus- band, family granted legal Charles Shea. The responsibility concerning the children’s medical care and education to father, for all other matters to mother. Mother (1) contends that family court’s order divides legal rights and in a permitted 665(a), manner not under V.S.A. (2) division, even if the statute authorizes such abused its discretion in ordering the division and not all awarding legal rights and responsibilities to her. We affirm. parties were married Vermont 1988 and have two
children, aged seven and five at the time of hearing final before the Early court. marriage, parties their researched and discussed approaches different in such parenting areas as the duration of nursing, whether the children should sleep with their in a “family rooms, bed” or in their own whether the children immunized, should be they whether should public attend school *3 or be home schooled. Mother’s research led her to believe that the health risks with immunizing associated against children infectious such diphtheria, diseases whooping cough, polio, measles and mumps outweighed the parties benefits. The thus agreed to forego immunizing their children.1 Although initially father agreed to this decision, he developed later misgivings changed and his mind.
The parties home, also decided to educate their children at with instruction and supervision mother, provided by rather than send them to public decision, school. Father initially agreed to this but after the eldest child had been home schooled for approximately two years, his changed mind and decided that the children’s needs would by
be better served attending public school. divorce, In seeking a parties were able settle all issues relating to and spousal support child and property division. The parties also agreed that mother would continue as the primary custodian with primary physical responsibilities for the two children. The sole dispute family before the court centered on assignment of legal rights and responsibilities for the sought children. Father sole parties exception against 1The decided to make an and immunize the children tetanus they perceived outweigh because the benefits to the risks. chil- concerning over decisions rights responsibilities sought legal rights and care and education. Mother dren’s medical dispute concerning central area of for all matters. The responsibilities medical educa- differences over parties’ was the legal custody decisions for children. tional from the and several testimony parties heard family
The testimony From its consideration experts. medical and education immunizations, that the court found family prevailing childhood rational repre- immunizations “is of childhood regimen medical of the heath judgment” protect the best-informed sents likely also found that father was the most children. The court for the generally and health care decisions to make sound medical children, accordingly, legal rights awarded medical to father. for son, matters, parties’ the court found that the eldest
On educational had not been well only age, was at that time their child school who child schooling mother. court found that the served home with The not basic fact that he was of second despite could read even words at an age, begin reading and it was normal for children to grade court also home was age. schooling earlier found mother’s peers. the child interaction with Because affording enough schooling, mother’s ineffective home and her insistence that she to home children if over the given authority would continue school the decision, legal rights court awarded father the children’s educational decisions. appeals. Mother argues
Mother first that the court was without authority legal rights to divide between the two acknowledges that 15 V.S.A. parents. generally permits She division, such but contends that when the cannot parties agree, that all statute awarded requires responsibilities be to one parent. adjudicating couple
When the divorce one or more children, must minor assign responsibilities for the or children to parents, child one or both 665(a). or a third Parental party. suitable See V.S.A. *4 responsibilities responsibilities are as those “rights defined contact, physical arrangements, related to a child’s child living parent education, care, religion, travel and other any medical dental 664(1). Id. § matter involving upbringing.” child’s welfare Rights responsibilities comprised “physical responsibility,” are of “legal responsibility,” rights respon- which is defined as “the sibilities to determine and control affecting various matters a child’s education, welfare . . . but. . . not including] limited to medical and care, 664(1)(A). religion § dental and travel arrangements.” Id. The family court may parental rights “order and responsibilities to be divided or shared between parents on such terms and conditions 665(a) as serve the § best interests of the child.” Id. (emphasis added). argues Mother that the court’s order violates the statute’s requirement the parents agree “[w]hen cannot to divide or parental rights share and responsibilities, the court shall award parental rights or primarily solely to one par- added). § ent.” Id. (emphasis paramount goal Our in statutory give construction is to effect Legislature’s Burlington intent. See Elec. Dep’t v. Vermont Taxes, 332, 335, 576 (1990). Dep’t 450, 452 154Vt. A.2d applyWe plain meaning a statute where the language is clear and unambig uous, see Conn v. Middlebury 3,# High Union School Dist. 162 Vt. 498, 501, 648 1385, 1387(1994), A.2d and where there is ambiguity, we look general to the context of the language, subject matter, and the consequences effects and interpretation. our See Paquette 83, 86, (1985). v. Paquette, 146 Vt. We find unambiguous applicable provision’s phrase: initial “[w]hen parents agree cannot to divide or share parental rights and respon 665(a). sibilities.” 15V.S.A. parents The clearly agree” here “do not on how best to allocate responsibility for their children. Nor do we any question find court here “divided” parental rights between the two parents; the divisiongives father decisions relating to the children’s medical and needs, educational and responsibility for all other areas of legal responsibility to mother. 665(a), language however, is not plain or understandable
in its requirement that the court award rights responsibil- “primarily ities or solely” to one parent when disagree. Mother construes the phrase to mean that the entire “bundle” of legal 664(1)(A) and responsibilities §in identified assigned must be single Father, hand, to a parent. argues the other that the statute is satisfied so long each of the individual rights is awarded “primarily solely” or other, one or the if even those and responsibilities are divided parents. between the In light ambiguity, we cannot determine the Legislature’s intent words, from the plain meaning of the and must therefore look beyond
499 Taxes, 139 Vt. Langrock Department itself.2 v. language See the of (1980). 110, 838, 108, A.2d 839 423 that, parents agree, do not cases where said before We have 665(a) court-imposed joint a that judgment legislative § reflects of child. See is not in the best interests the decision-making Bancroft (1990). 114, said, 442, 448, 118 That we 154Vt. Bancroft, v. a construction of against to caution have also had occasion nothing” a “all or obligate would take an § which and See responsibilities. allocation of to the approach 342, (1997); 434, 443, Gazo, A.2d 347 v. 166 Vt. 697 Cabot Gazo (1997). Gazo, 485, 494-95, 644, In Cabot, 697 650-51 we 166 A.2d Vt. compelled joint the decision- prohibition against concluded that an of all only not mean that the alternative is award making “does 443, at 697 solely parent.” to one 166 Vt. rights and statute, the considering A.2d at 347. In we also have reaffirmed respon- to craft and parental rights court’s “broad discretion Cabot, the best interests of children.” 166 sibilities orders serve 495, A.2d Vt. at 697 at 651. 665(b)(8) which illuminates language
We find instructive the
of
specific
dividing
sharing rights
concern about
Legislature’s
the
a
responsibilities.
when
court orders
provision,
Under
responsibilities,
allocation of
court shall
parental rights
consider,
among
things,
ability
disposition
other
“the
of
cooperate
joint
. .
with each other and make
parents to .
665(b)(8)
added). In
(emphasis
15 V.S.A.
concerning the children.”
Cabot,
the Legislature’s
we stressed that the statute reflects
concern
parental rights
share
and make
forcing “unwilling parents to
added).
494, 697
166
at 650
joint
(emphasis
decisions.”
Vt. at
A.2d
joint
in that
imposed upon
parents
case
decision-
making authority
rights
responsibilities,
though
even
legal
had
an
reversed
order
they
agreed
arrangement.
to such
We
joint decision-making
out of
imposition
responsi-
concern
of
2
legislative history provides relatively
guidance
A review
little
to what
of the statute’s
noted, however,
solely.”
Legislature
phrase “primarily
meant
or
It is to be
early
newly developed concept
bill
of
that an
version
the House
set forth
responsibilities,”
specific types
“parental rights
and also contained definitions
“custody”
parental
rights
child
that could
from
result
different allocation
“joint
custody”
arrangements
responsibilities.
legal
as
Thus
was defined
those
where
child,”
parents
rights
responsibilities relating
to the
“both
will share the
custody”
be[ing]
rights
parent.
as
. .
allocated
and “sole
was defined
“one
child,
relating
subject
only
to those
21, 1986)
parent.”
(April
specifically
are
allocated to the other
See Vt. Senate Jour. 559
added).
(emphasis
bility upon unwilling parents “cannot solve
problem fighting
parents.
placing
. . .
risks
a child in
[and]
the middle of constant and
that,
disputes.”
harmful
Id.
held
We
where the
cannot agree,
“one parent
given primary responsibility
must be
to make decisions
n.4,
on behalf of the child.” Id. at 493
Mother’s second is even if permits division between the parents, the court nonetheless abused its discretion by granting not her the entire bundle of legal rights and responsibilities. mother, According ignored the fact that she had been primarily involved in needs, day day care, children’s including medical and that father concerning her actions children. She expressed approval had had testimony her that father not ignored that the court also contends health care. good regarding made always family claim that the court abused no basis to mother’s We see medical care and father for by awarding its discretion 103, Goodrich, 91, 162 Vt. decisions. See deBeaumont school (trial (1994) custody in child court has broad discretion A.2d it merely set result because matter; Supreme Court will not aside result). evidence the record Ample have different would reached with, acknowledged To begin the court’s order. mother supports to immunize the children. She risks inherent in her refusal health she had survived childhood infectious diseases simply that stated hand, the risks.” On the other father my that “I’d rather children took immunized, sup the children his intent have communicated Hagen, a board-certified position testimony his from Dr. ported Advisory and member of the Immunization Committee pediatrician Hagen that he of Health. Dr. testified Department Vermont’s infectious diseases. against should be immunized believes children is is not immunized at living asked if a child in Vermont who When is risk, my “I to be the case. That responded Dr. believe that Hagen Hagen’s testimony belief.” The court found Dr. professional witness, testimony In mother’s credible. marked contrast is the from Incao, Dr. whom the court did not find credible. Dr. Incao not expressed the children’s health was at risk opinion *7 immunized, having training to formal in being but he admitted no no having or done research or pediatrics immunology, either to it, publishing subject. family on the the before the Assessing evidence in “consistently court concluded that mother had made decisions the whim, to be past personal which seem to reflect the desire different or accepted, rather than a all-controlling, willingness generally to follow practice.” supports sound medical record the court’s conclusion likely father the make [medical that is “more to sound health decisions interest the children the care] best future.” similarly find the record the court’s support
We failed schooling properly conclusion that mother’s home had to noted, couple’s her As child could educate child. the court eldest nearly not even “cat” he had simple years read words like two after year, ready reading. During kindergarten been to start his child school, teacher, had to had mas- public according attended his of that everything expected by year. tered of children the end In however, child, years, when mother home schooled the his subsequent Hasazi, An reading expert, skills stalled. education Dr. tested the child at of trial and concluded he could not read. the time The record family court’s is supports schooling having conclusion “home a present, parties’ and substantial detrimental effect” ongoing that, child, accordingly, granted eldest father should be legal concerning for decisions education. children’s See 665(b)(4) shall (family quality V.S.A. consider the of the adjustment child’s to the child’s present schooling). similarly find to
We no merit mother’s contention that the family court awarded father more and responsibilities that, than requested. he Mother contends because father’s chief concerns were immunizations for the children and their enrollment in school, public at most he should have been given legal responsi bility decisions, for only specific those than medical rather education generally. decision, From the court’s however, it seeking legal is clear father was sole decisions, medical over care educational rather than the areas of limited immunizations and whether to send the children to school. public finally argues
Mother the family court’s allocation of rights and responsibilities “confusing is and unworkable.” The thrust that, of her argument seems to be primary custodian, physical mother is to entitled move residence of her and the children to a Schenck,
different 489, town or different See Lane state. 158Vt. 786, (1992). Mother contends that such a move her would father’s make continued authority over medical and educational decisions We unworkable. decline to address mother’s contention except point out that specifically court’s order retains authority “provide mother’s day-to-day medical care for the children.” not judge efficacy We will of a court’s order on circumstances that could potentially arise in the future. See deBeaumont, 97, 644 at 162Vt. A.2d at 846 (family court order should circumstances, be based upon parties’ current potential changes future). in the
Affirmed.
Johnson, J., dissenting. An prerequisite any significant absolute *8 division parental rights and responsibilities by is an agreement the parents to the division. Our law is clear and unequivocal point. (“When.the agree to divide or cannot See 15 V.S.A. the court shall responsibilities, award rights and parental share to one solely par- or primarily and of the law in the ent.”). acknowledges the compulsion majority The ignores its force inexplicably responsibilities, yet of shared context that This a distinction finds is responsibilities. of divided the area policy underlying the or the language no either virtually support Accordingly, respectfully I dissent. the statute. ruling, trial court’s but dis- reports the majority faithfully
The generally had parties agreed details. The many telling omits creetly a to defer to home school the children marriage the during immunizations, marriage the disagreed but once number standard evidence, including testimony party was broken. Each offered always had been chil- to its Mother experts, support position. concluded caregiver, apparently and the trial primary dren’s continue, its as evidenced that care had been sound should her Indeed, acknowledged the court physical custody. award to her of sole on a caring, daily “a attentive mother good, that mother had been basis.”
Nevertheless, with mother’s decisions in disagreed the trial court immunizations, schooling breastfeeding as well as the areas Indeed, extraordinary court’s to an sleeping. opinion delves childrearing, opining, example, into areas of degree these intimate . . not in best “longterm feeding. that bed and breast are sharing may dependency,” children foster undue interests [and] in the days was “no substitute for five a week schooling home classroom, schoolyard,” or importantly, more perhaps . personal whim . . rather mother’s medical decisions “reflect[ed] its award of Accordingly, despite than . . . sound medical practice.” mother, the court physical schooling determined carve out the areas of health care ground predilections award them to father on the that his these This, despite represented areas the best interests of children. father, only fact that had not to assent to award mother failed subjects. but with his on both sharply disagreed views trial court’s decision was untenable. It was untenable under law, our and it was the sound common sense untenable under rights governing parental informs it. Our scheme from common general experi- reflects a rule derived is care and control of daily ence: the who entrusted with latitude, be consistent with possible child must afforded the broadest *9 education, in safety, health and to the child’s relating travel, care, residence, discipline, medical and general upbringing. This has unequivocally parent’s Court stated the custodial may guessed decisions in these areas not be second a trial judge: a process judgment “[W]e cannot condone that substitutes the of a of parent merely for that the custodial because the would have done if it had been something parent.” different the Lane v. (1992). Schenck, 489, 495, 786, 158 Vt. 614 A.2d 789 in preserving parental authority The same interest and minimizing statutes, in parental second-guessing is codified our expressly which prohibit court from ordering parties the to “divide or share parental and rights responsibilities” agreement. absent their express 665(a). Cabot, 485, Recently, 493-95, V.S.A. Cabot v. 166 Vt. (1997), 697 A.2d 649-51 held language Court that the and policy underlying parental statute invalidated an award of shared parents where the had not to agreed such an arrangement. As explained: we Legislature recognized parents where cannot work
together, parent one given must be to primary responsibility make decisions on behalf of the child. In of terms statute, this a means that court cannot award joint legal parental rights parents to do not who agree such an to award. n.4,
Id. at 493 n.4. at 650 noted, As 15 V.S.A. applies “joint” to awards of as well as Thus, “divided” custody. parental agreement just is as much a statutory prerequisite providing to an order for legal divided custody as it is to one providing legal custody. for shared And policy “[Wjhere underlying the statute with applies equal force as well: parents cannot work one together, parent must be given primary to responsibility Cabot, make decisions on behalf child.” 166Vt. n.4, at 493 697 A.2d at n.4.
Indeed, common sense teaches that the custodial cannot parent asked reasonably be to supervise participate the child’s daily life, schooling care, so much which centers and health dispos- sessed of decisionmaking authority basic Every these areas. primary provider age care of school children knows ferrying represents only children to and from school tip of the custodial parent’s responsibilities; supervising homework, and helping with conferences, attending parent-teacher PTO meetings, school other events all in school fundraisers and participating plays, motivation, fraught and all are interest require strong parental custodial intervention. The requiring parental conflicts potential daily these cannot, not, expected undertake and should be authority. The decisionmaking deprived essential care, childrearing basic areas medical may be said such same travel, why and the like. That is upbringing, discipline, religious prerequisite assent as Legislature wisely established custody. both and divided shared understood, have in this case should been
Thus the Court’s decision agreement that in There was no between as obvious as Cabot. Hence, the trial parental rights responsibilities. divide order for the children’s education and assigning court’s father, physical medical care to balance *10 mother, not invalid and should be patently was to stand. allowed unmistakably a choice trial court’s decision in this case was
The divided lifestyles guise alternative under the between Today’s holding power affirms the trial court’s responsibilities. parental authority areas of by parsing make such choices discrete respective of the custodial noncustodial upon based views an holding the wisdom of such parent. Court’s does endorse above, I that courts expressed hopeful For the reasons am approach. restraint, recognizing that power will exercise new voice, must with one and that childrearing speak decisions parents parent’s. should be custodial generally voice Craig Nelson, et al. Cook Thomas
[
Present: 13, 1998 Opinion March Filed 7,1998 April Reargument Motion for Denied