Custody

If both parents can come to an agreement on PR&R, the parents can make an arrangement on PR&R that works for both of them. One parent can have all of the parental rights and responsibilities, or the parental rights and responsibilities can be split between the parents in some way. If the parents cannot come to an agreement about PR&R, there will be a hearing (trial) in front of the judge where both parents get to present evidence and witnesses. The judge will make the final decision.

If the parents cannot agree about PR&R, there will be a contested hearing in front of a judge.  A judge makes a decision that s/he thinks will be in the child’s best interests.  Vermont laws say that after parents have separated or divorced, it is in the child’s best interests to have continuing, regular physical and emotional contact with both parents.  The exception to this, however, is when the child or the parent will suffer direct physical harm or significant emotional harm from seeing an abusive parent.¹

If the parents cannot agree to divide or share parental rights and responsibilities, the judge will usually award rights and responsibilities to just one parent - but the other parent may still have parent-child contact.²

In Vermont, the courts do not choose one parent over the other because of the gender of the child, the gender of either parent, or the financial resources of a parent.³

A judge will consider factors like these when determining the child’s best interests:

• the relationship of the child with each parent, including each parent’s ability to provide love, affection and guidance;
• each parent’s ability to provide the child with enough food, clothing, medical care, a safe environment, and other needs;
• each parent’s ability to meet the child’s present and future developmental needs;
• the child’s present housing, school and community and how the child would be affected by any change and adjustment to new surroundings;
• each parent’s ability to create and keep a positive relationship with the other parent, and to see the other parent often and regularly. This includes seeing the other parent in person, not just over the phone, except where physical contact could result in harm to the child or to a parent;
• the quality of the relationship between the child and whoever takes care of the child most of the time (“the primary caretaker”);
• the relationship of the child with anyone else who might significantly affect the child (this could include relatives, babysitters, friends, etc.);
• if the responsibility is shared or divided, the judge compares each parent’s ability to communicate/cooperate with the other parent and to make decisions together with the other parent about the child; 
• evidence of abuse of a family or household member; and
• how the abuse of a family or household member affects the child and the relationship between the child and the abusing parent.⁴ 

 ¹ VT ST 15 § 650
 ² VT ST 15 § 655
 ³ VT ST 15 § 665(b)
 ⁴ VT ST 15 § 665(c)

The Vermont Judiciary website posts a list of fees for certain cases.  Click here to access it.  If you do not see the fee for the case you are filing, or have questions, you can call the local courthouse to ask what the fee is and, if you are a low-income person, you can ask if there is a fee waiver available.  Go here to find the courthouse near you: VT Courthouse Locations.

Although you do not need a lawyer to file, it is almost always best to have a lawyer help you if you can get one.  This can help make sure that your rights and your children’s rights are protected.  If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our VT Finding a Lawyer page.

If you are unable to get a lawyer, you can get the forms you need at the local courthouse or you can visit our Download Court Forms Page for links to some of these forms online.

You should know that court workers cannot tell you whether you should bring your case to court or what will happen if you do.  Even if you plan on representing yourself, it may be helpful for you to have a lawyer review your forms before you file them.

If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.

There are exceptions to the home state rule. In some cases, you can file for custody in a state where the children and at least one parent have “significant connections.”  If you don’t think that Vermont would meet the traditional requirement for a “home state,” you may still be able to file for custody in Vermont if: 

• No other state is the “home state” according to the definition, and the court thinks that it is in the best interest of the child to decide the issue and
• The child and at least one parent have significant ties to the state and
• There is substantial evidence concerning the support of the child available in the state. 

If Vermont is your child’s home state, you may be able to file for temporary emergency custody in a different state if:

1. The child is present in that state; and
2. The child has been abandoned or it is necessary in an emergency to protect the child because the child, a parent, or sibling is subjected to or threatened with mistreatment or abuse.¹

For more information on getting a custody order transferred to another state, see Changing a final custody order.  This can be very complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this - you can find free and paid lawyers in your state here: VT Finding a Lawyer.  Or you can write to our Email Hotline for other resources.

¹ UCCJEA § 204(a)