Vermont Family Law

  1. Introduction

    The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce or possibly a separation. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sex photos/videos may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.

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  2. Child Custody

    1. Introduction

      If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, he or she may use evidence of this type of misconduct to establish abuse or harassment by his or her former spouse or lover. When determining child custody, the court’s primary consideration is to decide what is in the “best interest(s) of the child.”1

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 15, § 666 — Agreements between parents

        (a) Any agreement between the parents which divides or shares parental rights and responsibilities shall be presumed to be in the best interests of the child.

        (b) An agreement between the parties which is a complete agreement on parental rights and responsibilities shall include provisions that address at least the following:

        (1) Physical living arrangements;

        (2) Parent child contact;

        (3) Education of the minor child;

        (4) Medical, dental, and health care;

        (5) Travel arrangements;

        (6) Procedures for communicating about the child’s welfare; and

        (7) If parental rights and responsibilities are to be shared or divided, procedures for resolving disputes. Such procedures may include but shall not be limited to mediation and binding arbitration.

        (c) If the court finds that an agreement between the parents is not in the best interests of the child or if the court finds that an agreement was not reached voluntarily the court shall refuse to approve the agreement.

      2. Vt. Stat. Ann. tit. 15, § 665 — Rights & responsibilities order; best interests of the child

        (a) In an action under this chapter, the court shall make an order concerning parental rights and responsibilities of any minor child of the parties. The court may order parental rights and responsibilities to be divided or shared between the parents on such terms and conditions as serve the best interests of the child. When the parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent.

        (b) In making an order on this section, the court shall be guided by the best interests of the child, and shall consider at least the following factors:

        (1) the relationship of the child with each parent and the ability and the disposition of each parent to provide the child with love, affection and guidance;

        (2) the ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment;

        (3) the ability and disposition of each parent to meet the child’s present and future developmental needs;

        (4) the quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change;

        (5) the ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact, except where contact will result in harm to the child or to a parent;

        (6) the quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;

        (7) the relationship of the child with any other person who may significantly affect the child;

        (8) the ability and disposition of the parents to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided; and

        (9) evidence of abuse, as defined in section 1101 of this title, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

        (c) The court shall not apply a preference for one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent.

        (d) The court may order a parent who is awarded responsibility for a certain matter involving a child’s welfare to inform the other parent when a major change in that matter occurs.

        (e) The jurisdiction granted by this section shall be limited by the Uniform Child Custody Jurisdiction and Enforcement Act, if another state has jurisdiction as provided in that act. For the purposes of interpreting the act and any other provision of law which refers to a custodial parent, including but not limited to 13 V.S.A. § 2451, the parent with physical responsibility shall be considered the custodial parent.

      3. Vt. Stat. Ann. tit. 15, § 667 — Shared or split physical custody

        (a) When each parent exercises physical custody for 30 percent or more of a calendar year, the total child support obligation shall be increased by 50 percent to reflect the additional costs of maintaining two households. Each parental support obligation shall be determined by dividing the total support obligation between the parents in proportion to their respective available incomes and in proportion to the amount of time each parent exercises physical custody. The parental support obligations shall then be offset, with the parents owing the larger amount being required to pay the difference between the two amounts to the other parent.

        (b) When one parent exercises physical custody for 25 percent or more but less than 30 percent of a calendar year, each parent’s respective share of the total support obligation shall be determined in accordance with a shared costs table and adopted by the agency of human services by rule. The shared costs table shall be developed in such a way as to minimize economic disputes over parent-child contact or visitation and shall reflect the additional costs of maintaining two households by increasing the total support obligation by 50 percent.

        (c) In no event shall a parent be required to pay child support under subsection (a) or (b) of this section in an amount greater than the amount that would have been ordered under the support guidelines.

        (d) For purposes of this section, “physical custody” means keeping the children overnight. The parent having custody for the greater period of time shall be considered the custodial parent for the purposes of section 661 of this title.

        (e) When each parent has physical custody of at least one of the children, a theoretical support payment shall be determined for each parent for the children in the custody of the other, prorating the obligations among all children in the household. The obligations shall then be offset, with the parent owing the larger amount being required to pay the difference between the two amounts to the other parent.

    3. Cases

      1. Kierstead v. Bartholomew, No. 2003-542, 2004 WL 5582093 (Vt. June 2004)

        • Procedural Posture: Father appealed from the lower court’s decision granting mother (his ex-wife) primary custody of the parties’ daughter.

        • Law: custody laws

        • Relevant Facts: The parties were married and had one daughter. The father was injured and could not work, and the mother traveled from Vermont to Georgia to find a reliable job. While the mother was at her training in Georgia, the father filed a relief from abuse petition against her, and kept their child with him when he relocated to Virginia, where he had family. The parties had a two-day custody hearing. During the hearing, the mother presented evidence that the father had posted a document purporting to be the results of a polygraph examination to which he had voluntarily submitted to a website. He then invited members of the mother’s family, friends and neighbors to access it. It provided information relating to mother’s alleged adultery, father’s marital fidelity and mother’s allegations of physical abuse. The court held that the father’s posting of the document on the website was humiliating for both the mother and the parties’ child and ultimately granted the mother sole legal custody and physical rights and responsibilities. The father appealed.

        • Outcome: The court affirmed the decision granting the mother sole legal custody. The father contended that the court erred in failing to give credence to statements contained in the document purporting to be the results of a polygraph examination. But the court affirmed the lower court’s determination that the father’s act of posting the polygraph results to a website for public consumption was abusive.

        • Special Notes: Nothing relevant.

    4. Practice Pointers

      Nothing relevant at this time.

    1. Vt. Stat. Ann. tit. 15, § 665(b). 

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  3. Divorce

    1. Introduction

      Evidence of misconduct may be considered in a divorce proceeding in Vermont, so a WMC victim may try to bring in evidence regarding any actions by the defendant including, but not limited to, threats to publish private intimate images without the victim’s consent, and other improper behavior on the part of the victim’s spouse/former spouse.

    2. Text of the Statutes

      1. Vt. Stat. Ann. tit. 15, § 551 — Grounds for divorce from bond of matrimony

        A divorce from the bond of matrimony may be decreed:

        (1) For adultery in either party;

        (2) When either party is sentenced to confinement at hard labor in the state prison in this state for life, or for three years or more, and is actually confined at the time of the bringing of the libel; or when either party being without the state, receives a sentence for an equally long term of imprisonment by a competent court having jurisdiction as the result of a trial in any one of the other states of the United States, or in a federal court, or in any one of the territories, possessions or other courts subject to the jurisdiction as the result of a trial in any one of the other states of the United States, or in a federal court, or in any one of the territories, possessions, or other courts subject to the jurisdiction of the United States, or in a foreign country granting a trial by jury, and is actually confined at the time of the bringing of the libel;

        (3) For intolerable severity in either party;

        (4) For willful desertion or when either party has been absent for seven years and not heard of during that time;

        (5) On complaint of either party when one spouse has sufficient pecuniary or physical ability to provide suitable maintenance for the other, and, without cause, persistently refuses or neglects so to do;

        (6) On the ground of incurable insanity of either party, as provided for in sections 631-637 of this title;

        (7) When a married person has lived apart from his or her spouse for six consecutive months and the court finds that the resumption of marital relations is not reasonably probable.

      2. Vt. Stat. Ann. tit. 15, § 519 — Decree of nullity

        A decree of nullity of civil marriage, if pronounced during the lifetime of the parties, shall be conclusive evidence of the invalidity of the marriage in all courts and proceedings. If such decree is pronounced after the death of either of the parties to the civil marriage, it shall be conclusive only as against the parties in the action and those claiming under them.

    3. Cases

      Research is ongoing. A search of Vermont cases citing these statutes did not reveal any cases that are factually relevant or analogous to WMC’s target situations.

    4. Practice Pointers

      Nothing relevant at this time.

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