Barbour v. Barbour

505 A.2d 1217, 146 Vt. 506, 1986 Vt. LEXIS 319
CourtSupreme Court of Vermont
DecidedJanuary 24, 1986
Docket83-555
StatusPublished
Cited by11 cases

This text of 505 A.2d 1217 (Barbour v. Barbour) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barbour v. Barbour, 505 A.2d 1217, 146 Vt. 506, 1986 Vt. LEXIS 319 (Vt. 1986).

Opinions

Hill, J.

Defendant, James Barbour, appeals an order of the trial court claiming that the court abused its discretion in refusing to incorporate the terms of the parties’ stipulation into the final divorce decree. We affirm in part, reverse in part and remand the case for further proceedings.

The parties to the divorce, Kay and James Barbour, entered into a stipulation which they asked the court to incorporate into the final order. The stipulation provided that the Barbours would have joint custody of their two children, then aged 14 and 13. The [508]*508children were to spend alternate weeks living with each parent, except during summers and vacation periods, when the. schedule would be more flexible. The stipulation contained detailed provisions for the sharing of expenses relating to the children. The parties also agreed that if either of them should leave the Burlington area, the departing parent would relinquish joint custody in favor of the remaining parent. At the time of the agreement the parties lived three miles apart.

At final hearing the parents testified in detail concerning the shared custody arrangement under which they had operated prior 'to the hearing. The testimony indicated that the arrangement had worked to the satisfaction of both the children and the parents. A psychologist testified that the arrangement was the most beneficial custodial scheme for the children, and a guidance counselor testified that both children had adjusted well to the custodial arrangement.

Following the hearing, the court, acting through a majority consisting of the two assistant judges, disapproved the stipulation and awarded custody to the mother, with visitation rights at all reasonable times and places in the father. The presiding judge dissented.

I.

In Lumbra v. Lumbra, 136 Vt. 529, 532, 394 A.2d 1139, 1142 (1978), this Court expressed its view that “[j]oint custody is rarely the best solution to a custody dispute” and held that “joint custody should only be decreed in cases where there is a finding of extraordinary circumstances.” It did not, however, intend to discourage judges from incorporating joint custody agreements into final orders in appropriate cases where, as here, custody is not in dispute. As was stated in Berlin v. Berlin, 139 Vt. 339, 340, 428 A.2d 1113, 1114 (1981):

The court does not stand in opposition to joint custody; it merely recognizes that the same lack of agreement that requires that the courts be asked to settle domestic difficulty also indicates that the possibility of a cooperative custody solution is usually remote.

We do not suggest that the court in this case was bound to accept the terms of the stipulation submitted by the parties. [509]*509“Agreements between the litigating parties in divorce actions are not conclusive or binding upon the courts where the interests of the children are concerned.” Korshak v. Korshak, 140 Vt. 547, 550, 442 A.2d 464, 466 (1982). Courts involved in divorce litigation are bound to “make an order concerning the custody of any minor child of the marriage”; in fulfilling this duty they are to be “guided by the best interest of the child . . . .” 15 V.S.A. § 652(a).

In Lumbra, supra, 136 Vt. at 532, 394 A.2d at 1142, we noted that the fitness of the parents, their ability to cooperate, the age of the child and the distance between the houses were some of the key concerns that should be reviewed by trial courts considering joint custody awards. In light of these factors, the total inadequacy of the majority’s findings of fact below is apparent. There were no findings as to the fitness of the parents; their ability to cooperate in the raising of their children; the relationship of the ages of the children to the proposed joint custody arrangement; or the appropriateness of the arrangement in general. The court simply laid out the basic terms of the custody agreement and then summarily rejected them. Since facts essential to the disposition of the custody issue have not been stated, that portion of the court’s order dealing with custody is reversed and the matter is remanded for further proceedings on this issue.

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Barbour v. Barbour
505 A.2d 1217 (Supreme Court of Vermont, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
505 A.2d 1217, 146 Vt. 506, 1986 Vt. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barbour-v-barbour-vt-1986.