Child Custody and Visitation (Parental Rights and Responsibilities)

In Vermont, the court uses the phrase “parental rights and responsibilities” to describe custody. There are two parts of parental rights and responsibilities: physical responsibility and legal responsibility.

Physical responsibility

Physical responsibility is where your child lives. The person who has physical responsibility takes care of the child’s day-to-day needs. A court can order that physical responsibility be in one or both parents. However, a court can only order this if both parents agree. If a court is asked to choose, they have to pick one parent.

Legal responsibility

Legal responsibility is who has the right to make major decisions about the child’s life. A court can order that legal responsibility be in one or both parents.

What are “major decisions”? Here are some examples of major decisions:

• Where your child goes to school
• What religion your child practices
• Which doctor your child goes to
• Whether your child can travel outside of Vermont

If there is no court order about your child, who has custody (physical and legal responsibility) of the child depends on your situation. We list two common situations below. If you are in a dispute with someone who claims to be a parent, check our Parentage page to determine the rights of the parties.

I’m married to my child’s biological parent

If there isn’t a court order about custody, then both parents have physical and legal responsibility for the child until a court issues a custody order.

I’m not married to the father of my child

If there isn’t a court order about parentage, only the mother has legal and physical responsibility. This is called guardianship. The father may be able to get legal and physical responsibility but he must file for parentage first.

In any of these three kinds of court cases, a judge or magistrate will decide who has parental rights and responsibilities. That means they decide who has physical custody, who has legal custody, who will pay child support, and how much the child support will be. The court order will also say when and where your child or children will see the parent that they don’t live with.

Typically parents get divorced when at least one of them knows they do not want to live together any more. In most cases, parents have to be living separate lives for at least six months before a final divorce hearing can be held.

Vermont has a process for legal separation. A legal separation case follows the same process as a divorce case. The main difference is that at the end of a legal separation case the parents are not divorced and can’t marry anyone else. If people with a legal separation want to marry other people, they will have to file for divorce. Sometimes people choose a legal separation for religious reasons.

If parents have never been married, a parent can file a parentage action. If you are in a dispute with someone who claims to be a parent, check our Parentage page to determine the rights of the parties.

What if we agree about the children?

Do the parents agree about who will have physical and legal responsibility? Do the parents agree about parent-child contact? The court will probably make your agreement be the court order. But the judge has to agree that your plan is good for your child or children.

What if we don’t agree about the children?

What if the parents can’t agree about what should happen with your child or children? The court will decide who gets physical and legal responsibilities. This happens at a “contested hearing.” A contested hearing is a trial in front of a judge. You will have to present evidence to the court about why you should get custody. The evidence is usually testimony from parents, teachers, doctors and other people who know your child, you and the other parent.

The court considers certain factors to make its decision. The most important factor is what the court believes will be best for your child. This is called the “best interests” of your child. “Best interests” is what the judge believes the law and the facts say would be the best for your child. Learn more on our Best Interests of the Child page.

The court may order you to take part in a family court program. These programs are designed to help parents, or the court, decide about the children. These are some of the court programs the court could order:

• mediation
• home study
• parent coordination
• children’s panel
• visitation masters
• forensic evaluation

If you are getting divorced, separated or there is a parentage case, the court will issue an order about parental rights and responsibilities. The order will say who your child or children will live with. It will also say who has legal responsibility for your child or children.

Parents can agree to share legal or physical responsibility. Or the court can order that only one parent will have legal and physical responsibility. The court can’t order the parents to share physical or legal responsibility if they don’t agree.

Example of what could happen for a family

Susan and John are getting divorced. They have one daughter named Emily and one son named Joseph. What will happen with the children? Here are some different things the court could order about Emily and Joseph.

The court could order that one parent has sole physical and legal responsibility for both children. If Susan gets sole custody, Emily and Joseph will live with Susan. Susan will make all of the decisions about Emily and Joseph. If John gets sole custody, Emily and Joseph will live with John. John will make all of the decisions about Emily and Joseph. Both parents can have access to educational and medical records.

Or John and Susan could make an agreement about Emily and Joseph. Susan and John could agree that Susan will have physical responsibility, and they will share legal responsibility. They will also agree to a regular parent-child schedule. In this example, Emily and Joseph will live with Susan. John and Susan will make major decisions about Emily and Joseph together. John will get to see the children on a regular schedule. Susan and John will put the parent-child contact agreement in their agreement about parental rights and responsibilities. Their agreement will become a court order.

Visitation is when your child sees the parent that she doesn’t live with. In Vermont, the court calls visitation “parent-child contact.”

If a court orders that one parent has sole physical responsibility (custody) of a child, the court will order parent-child contact. The court order spells out when parent-child contact will happen.

The law assumes that it is in a child’s best interests to have contact with both parents. Has the other parent harmed you or your children? Then the court may limit or deny visitation. The court may limit or not allow visitation if the visiting parent is convicted of certain sex crimes or kidnapping.

Not bringing a child back or refusing visits

Important: It’s a crime not to bring a child back after a visit or to refuse to bring a child to a court-ordered visit.

Parents have to follow the parent-child schedule. If you keep your child away from the parent who has custody, it is a crime. The crime is called “custodial interference.” This is a felony with a maximum sentence of five years in jail. It’s also a crime for another relative to keep the child away from the parent who has custody.

What if you are afraid for your child’s safety? There is a defense to custodial interference. You can refuse a visit if you honestly believe, in good faith, that you need to protect your child from immediate physical harm. You can’t leave Vermont with your child to protect him or her. You must file a motion in court within 72 hours. The motion must describe the imminent danger that you were protecting your child from.

Note: If you are the custodial parent, you have to make your child available for visits with the other parent even if that parent has missed many visits. Do not violate the court order because you are mad that the other parent is not following the order.

Visitation rights and child support are not related at all. They have nothing to do with each other.

Do you have custody? Is there a parent-child contact order? You have to follow the order. Even if the other parent refuses to pay child support, you can’t refuse contact.

What can you do if the other parent isn’t paying child support? File a motion in court. Ask the court to make the other parent the child support order. You can also get help from the Vermont Office of Child Support.

Have you been ordered to pay child support? If so, you have to pay the child support. What if the other parent has custody and won’t let you see your child? You still must pay child support. What can you do if the custodial parent isn’t letting you see your child? File a motion in court. Ask the court to make the other parent follow the parent-child contact order.

You can visit our Child Support page to learn more.

Often the court issues a Temporary Order about custody at the beginning of the case. The Temporary Order is only in place until there is a Final Order. The parents can agree about what the Temporary Order will say about their children. Do you and your ex agree where your child or children should live until the Final Order? You can write an agreement or tell the judge what you want. What if you can’t agree? You should file a motion with the court asking the court to decide who has custody until the Final Order.

At the end of the divorce, separation or parentage case there will be a Final Order about physical and legal responsibility (custody). It’s very difficult to change the Final Order later.

What if you want to change the final order later? You have to file a motion in court. You have to prove to the court that there has been a “substantial and unanticipated” change. This means you have to show that something important has changed. And you also have to show that the thing that changed is something you didn’t expect to happen.

Has the other parent of your child physically or emotionally abused you? Then you aren’t in a good position to work out an agreement about custody. Abuse victims are often intimidated by their abuser. Victims sometimes agree to an order that isn’t in their child’s best interest because they are afraid. If you have been abused, you should get an attorney to help you with your case if you can.

Has another parent abused you or your child?

You may be able to get free legal help.
Fill out our form or call us at 1-800-889-2047.
Your information will be sent to Legal Services Vermont, which screens requests for help for both Vermont Legal Aid and Legal Services Vermont. 

Child abuse

Did the other parent abuse your child? You may need to tell the court about the child abuse so the court can issue orders that protect your child from more abuse.

When a parent abuses another parent, it’s very likely that the abuser will also abuse the child. Children suffer emotionally when their parent is abused. Even if the child doesn’t directly witness the abuse, the child can be emotionally harmed.