Reaffirming the High Threshold for Custody Modification and Limits on Post‑Judgment Relief in Vermont: Commentary on Laura Isham v. Zachary Isham

I. Introduction

This commentary analyzes the Vermont Supreme Court’s entry order in Laura Isham v. Zachary Isham, Case No. 25‑AP‑201 (Dec. Term 2025), a three‑justice panel decision arising from a contested motion to modify parental rights and responsibilities (PRR) and parent–child contact.

The case centers on a father’s attempt to obtain sole custody of the parties’ older son and increased contact with the younger son, based on the older child’s behavioral and educational needs and alleged deficiencies in the mother’s response. The family division denied his motion, as well as his subsequent post‑judgment motions under Vermont Rules of Civil Procedure 59 and 60. The Supreme Court affirmed.

Although the decision is expressly “not to be considered as precedent before any tribunal” because it is a three‑justice entry order, it nonetheless offers a clear and useful restatement of several important Vermont family‑law principles:

The demanding threshold requirement of a “real, substantial, and unanticipated change of circumstances” before modifying custody or contact.
The limited and deferential nature of appellate review in custody modification cases.
The strict evidentiary and procedural limits on post‑judgment motions, especially when used to cure trial‑level strategic or evidentiary failures.
The inapplicability of “ineffective assistance of counsel” arguments in ordinary civil/family proceedings.
A pragmatic view of children’s behavioral challenges as often expected and not, without more, a basis for custody modification.

II. Factual and Procedural Background

The parties are parents of two boys, born in July 2018 and December 2019. They divorced in 2021. At that time:

Mother resided in Vermont with the children.
Father lived in Florida.
The family division awarded mother sole legal and physical parental rights and responsibilities.
Father received parent–child contact, structured to increase as the children grew older.

In 2023, the parties modified their agreement to expand father’s summer contact to two two‑week blocks (four weeks total).

In October 2024, father moved to modify PRR and parent–child contact:

He sought sole custody of the older child.
He sought increased contact with the younger child.
By then he had moved to South Carolina, remarried, and had another child.
He argued there had been a material change in circumstances based on:
- the older child’s behavioral and educational issues and diagnoses,
- mother’s allegedly inadequate response to those needs, and
- an alleged breakdown in communication with mother.

At the modification hearing:

Both parties were represented by counsel and testified.
Father described the child’s diagnoses and behavior, and his concerns with mother’s handling of the situation.
The court refused to admit one medical report for lack of proper authentication but admitted a 44‑page medical history, described by father’s attorney as encapsulating all of father’s concerns.
Mother described the steps she had taken to address the child’s behavior and diagnoses and testified that the children’s behavior regressed after visits with father.

The family division made oral findings and concluded:

Father had not established a “real, substantial, and unanticipated change of circumstances” as required by 15 V.S.A. § 668(a).
Even if the threshold were met, changing custody would not serve the child’s best interests, because it would uproot him from his home, school, routine, services, and sibling in Vermont.

After trial, father’s attorney withdrew. Father, now self‑represented, filed post‑judgment motions under Rules 59 and 60, attaching additional medical records and attacking the adequacy of his prior representation. The family division denied those motions without a hearing or detailed written explanation. Father appealed, challenging:

the family court’s application of the PRR modification standard,
its credibility determinations and weighing of evidence,
its denial of his Rule 59 and Rule 60 motions without a hearing, and
an alleged due process violation arising from the cumulative effect of these rulings.

III. Summary of the Supreme Court’s Decision

The Vermont Supreme Court affirmed across the board.

No obligation to reach best‑interests factors absent threshold change.
Because the family division reasonably found no “real, substantial, and unanticipated change of circumstances” under 15 V.S.A. § 668(a), it was not required to conduct a full statutory best‑interests analysis under 15 V.S.A. § 665(b). The trial court’s decision to treat the older child’s behavioral challenges as not unanticipated—and to find mother’s response adequate—fell within its discretion.
Deference to trial court on credibility and fact‑finding.
Father’s challenge to the credibility of mother’s testimony and his request that the Supreme Court treat certain medical records as disproving her testimony were rejected as impermissible attempts to reweigh evidence. The appellate court reiterated that credibility determinations are for the trial court.
No abuse of discretion in denying Rule 59 and 60 motions without a hearing.
The Supreme Court held that:
- There is no automatic right to a hearing on Rule 59 or Rule 60 motions.
- The family division acted within its discretion in summarily denying father’s motions, which primarily sought to relitigate issues and present additional evidence that could have been presented at trial.
- Claims that father’s attorney mishandled evidentiary issues do not support post‑judgment relief in a civil/family case, because “ineffective assistance of counsel” doctrine does not apply where there is no constitutional right to counsel.
No due process violation.
Father had notice and an opportunity to be heard at the modification hearing, and an additional hearing on post‑judgment motions was not constitutionally required. Thus, no due process violation occurred.

IV. Detailed Analysis

A. Legal Framework for Modifying Parental Rights and Responsibilities

Vermont law governs modification of parental rights and responsibilities and parent–child contact primarily through 15 V.S.A. § 668(a), which codifies a two‑step inquiry:

Threshold Step – Change in Circumstances. The moving party must show a “real, substantial and unanticipated change of circumstances.” If that threshold is not met, the court must deny the motion without altering the existing order.
Best‑Interests Step. Only if the threshold is met does the court proceed to assess the child’s best interests under the factors set forth in 15 V.S.A. § 665(b).

The Supreme Court cited and relied upon Maurer v. Maurer, 2005 VT 26, ¶ 7, 178 Vt. 489 (mem.), emphasizing that:

“There are no fixed standards to determine what constitutes a substantial change in material circumstances; instead, the court should be guided by a rule of very general application that the welfare and best interests of the children are the primary concern in determining whether the order should be changed.”

However, importantly, that best‑interests focus does not eliminate the threshold requirement; it merely informs how the threshold and subsequent steps are applied.

The Court also reiterated, via Gates v. Gates, 168 Vt. 64, 69 (1998), that if the trial court finds no change in circumstances, it “may dismiss the motion without reaching the merits of the action” or the best‑interests factors. This case is a textbook application of that rule.

B. Application of the Change‑of‑Circumstances Threshold

Father’s core contention was that the older child’s “escalating behavioral and educational needs,” combined with mother’s alleged inadequacies and communication failures, constituted a substantial and unanticipated change of circumstances.

The family division, however, found:

Younger children often experience behavioral challenges; such challenges were not unanticipated.
Mother was responding appropriately to those challenges and to the child’s diagnoses.

The Supreme Court reviewed this determination for abuse of discretion and found none. Citing Maurer and Gates, it reiterated that the trial court has considerable discretion in deciding whether a sufficient change of circumstances exists, and the reviewing court will overturn that judgment only when the trial court:

acts on clearly untenable grounds, or
acts to an extent that is clearly unreasonable.

Here, the family division:

considered a lengthy (44‑page) medical history admitted into evidence,
heard testimony from both parents, and
explicitly concluded that the situation, viewed in context, did not represent the sort of unanticipated and substantial change that would justify reopening custody.

The Supreme Court treated these findings as supported by the record and well within the lower court’s discretion.

The decision also makes an implicit but important point: disagreement between parents over how to handle a child’s medical, educational, or behavioral challenges—even significant ones—will not automatically amount to a “real, substantial and unanticipated” change. The law aims for stability in custody orders; normal or even challenging developments in a young child’s life are often foreseeable and, absent evidence of serious endangerment or profound change, will not open the door to re‑litigation.

The family division further noted that, even if the threshold were met, it would not be in the child’s best interests to move him out of Vermont:

He would be uprooted from his existing home, school, routines, and services.
He would be separated from his younger brother.

Although this observation was technically “alternative reasoning” (because the threshold was not met), it underscores Vermont’s strong emphasis on:

continuity and stability in the child’s environment, and
the value of sibling relationships.

C. Treatment of Evidence and Credibility

Father argued on appeal that the trial court erred in crediting mother’s statements that:

their son returned from visits with father “dysregulated, defiant, and chaotic,” and
the child’s behavior “regressed” after visiting father.

He claimed these assertions were contradicted by medical records and should have been rejected.

The Supreme Court rejected this challenge as an attempt to have the appellate court reweigh the evidence. Citing Chickanosky v. Chickanosky, 2011 VT 110, ¶ 14, 190 Vt. 435, the Court emphasized:

“[T]his Court relies on the family court’s determinations of fact and evaluations of credibility. Because of its unique position as the trier of fact, the family court alone may evaluate the credibility of witnesses and the weight evidence should be afforded in making such an assessment.”

Thus:

So long as there is evidence in the record that could reasonably support the trial court’s findings, those findings stand.
Appellate review does not involve deciding anew who is more believable or which interpretation of the evidence is more persuasive.

This principle is reinforced in how the Court handled father’s evidentiary complaints:

Some medical records were excluded at trial for lack of proper authentication, which is a basic evidentiary requirement for documents.
Despite these exclusions, the court did admit a 44‑page medical history capturing father’s concerns.
On appeal, father did not demonstrate that the trial court abused its discretion in applying the rules of evidence.

In short, the Supreme Court found that:

the trial court had ample admissible evidence regarding the child’s behavioral and medical situation,
it weighed that evidence and made credibility determinations within its proper role, and
no reversible error occurred in the handling or assessment of that evidence.

D. Post‑Judgment Motions under Rules 59 and 60

After his motion to modify was denied, and after his attorney withdrew, father filed:

a post‑judgment motion to amend or alter the judgment under Rule 59, and
a motion for relief from judgment under Rule 60.

These motions:

attached additional medical records, and
asserted that father’s trial counsel had failed to competently present key evidence.

The family division denied these motions without a hearing. The Supreme Court affirmed, explaining:

1. Standard of review and no automatic right to a hearing

Both Rule 59 and Rule 60 rulings are reviewed for abuse of discretion. The moving party bears the burden of showing abuse.

Citing Sandgate School District v. Cate, 2005 VT 88, ¶¶ 6, 12, 178 Vt. 625 (mem.), and Jewell v. Dyer, 154 Vt. 486, 488 (1990), the Court made clear that:

No hearing is automatically required for Rule 59 or Rule 60 motions.
A hearing may be dispensed with when:
- the grounds are “frivolous or totally lacking in merit” (Rule 60 context), or
- the moving party fails to show prejudice from the lack of a hearing (Rule 59 context).

Here, father did not show any specific prejudice flowing from the absence of a hearing, particularly given the nature of what he sought—primarily a second opportunity to offer evidence and reargue his case.

2. Proper scope of Rule 59(e) and Rule 60(b)

The Court cited Rubin v. Sterling Enterprises, Inc., 164 Vt. 582, 588–89 (1996), and Veljovic v. TD Bank, N.A., 2025 VT 38, ¶ 16, to emphasize that:

A motion to amend judgment (Rule 59(e)) exists to allow a court to correct its own mistakes, not those of the parties or their counsel.
Rule 59(e) is not a vehicle to relitigate old matters or present evidence that could have been introduced before judgment.
Similarly, Rule 60(b) relief is reserved for exceptional circumstances (such as newly discovered evidence that could not, with due diligence, have been discovered earlier, fraud, or certain procedural defects).

The Court found that father’s motions:

essentially complained that trial counsel had not properly authenticated or introduced some medical records, and
attempted to supplement the trial record post hoc with evidence that could have been offered earlier.

That is not a proper use of Rule 59 or 60. The Supreme Court held that the trial court acted “well within its discretion” in denying these motions without reopening the evidentiary record.

3. Ineffective assistance of counsel is not a basis for relief in civil family cases

Father also implied that his trial attorney’s performance was deficient, suggesting he was entitled to a kind of “second chance” due to ineffective assistance. The Supreme Court rejected this outright, citing State v. Clark, 164 Vt. 626, 627 (1995):

“[A] claim of ineffective assistance of counsel rests on the constitutional right to counsel under the Sixth and Fourteenth Amendments and is not applicable in civil proceedings where there is no constitutional right to counsel.”

In other words:

In criminal cases, a defendant may seek relief on grounds of ineffective assistance because the Constitution entitles them to counsel.
In ordinary civil and family cases (such as custody disputes), there is no comparable constitutional right to counsel, so “ineffective assistance” is not a recognized ground to overturn a judgment.

Thus, dissatisfaction with one’s privately retained or court‑appointed civil counsel is not a valid legal basis for a Rule 59 or 60 motion, nor for appellate reversal of a custody ruling.

E. Due Process Claim

Finally, father argued that the “cumulative effect” of the family division’s rulings—denying his custody modification, excluding some evidence, and denying post‑judgment motions without a hearing—deprived him of due process.

The Supreme Court rejected this, relying on Rich v. Montpelier Supervisory District, 167 Vt. 415, 420 (1998), which defines the core elements of procedural due process:

“The essential elements of due process are notice and an opportunity to be heard.”

The Court held that:

Father received notice and a full hearing on his motion to modify PRR.
He was represented by counsel at that hearing and permitted to testify and present evidence (including a substantial medical record).
The absence of a subsequent hearing on post‑judgment motions did not deprive him of due process, particularly given the limited role of such motions and his failure to show prejudice.

Accordingly, no due process violation was found.

F. Precedents Cited and Their Role in the Decision

The entry order references a cluster of Vermont cases, each serving a distinct function in the Court’s reasoning:

Maurer v. Maurer, 2005 VT 26, 178 Vt. 489 (mem.)
Used to restate the flexible, best‑interests‑oriented approach to determining what counts as a “substantial change in material circumstances” for purposes of modification under § 668(a).
Gates v. Gates, 168 Vt. 64 (1998)
Cited for the rule that if no threshold change in circumstances is found, the court may dismiss the motion without reaching the merits or best‑interests factors.
Chickanosky v. Chickanosky, 2011 VT 110, 190 Vt. 435
Emphasizes appellate deference to the family court’s factual findings and credibility determinations. Used to reject father’s effort to re‑litigate factual disputes on appeal.
State v. Clark, 164 Vt. 626 (1995)
Provides the clear statement that ineffective assistance of counsel claims arise from the constitutional right to counsel in criminal cases and are not available in civil proceedings like custody modifications.
Sandgate School District v. Cate, 2005 VT 88, 178 Vt. 625 (mem.)
Establishes that Rule 60(b) motions are reviewed for abuse of discretion and that a court may deny such motions without a hearing when the grounds are frivolous or wholly lacking in merit.
North Security Insurance Co. v. Mitec Electronics, Ltd., 2008 VT 96, 184 Vt. 303
Restates the abuse‑of‑discretion standard for reviewing Rule 59 motions.
Jewell v. Dyer, 154 Vt. 486 (1990)
Holds that a hearing on a Rule 59 motion is not mandatory, especially when the movant shows no actual prejudice caused by the lack of a hearing.
Rubin v. Sterling Enterprises, Inc., 164 Vt. 582 (1996)
Explains that a motion to amend judgment is intended to correct court errors, not cure the mistakes or negligence of the parties or their counsel, and cannot be used to introduce evidence that could have been offered at trial.
Veljovic v. TD Bank, N.A., 2025 VT 38
Quoted for the proposition that Rule 59(e) does not permit relitigation of matters or late‑presentation of evidence that could have been presented earlier.
Rich v. Montpelier Supervisory District, 167 Vt. 415 (1998)
Cited for the definition of due process as fundamentally requiring notice and an opportunity to be heard.

Collectively, these cases reinforce the core themes of the decision:

Deference to trial courts on fact‑finding and credibility in family cases.
Strict application of threshold standards for custody modifications.
Narrow construction of post‑judgment remedies and strong reluctance to reopen family judgments absent extraordinary circumstances.

V. Impact and Implications

While this entry order is non‑precedential, it reflects and clarifies how existing Vermont law will be applied in future custody modification disputes. Its practical implications include:

A. High bar for modifying custody based on behavioral or educational issues

Parents should not assume that a child’s emerging or escalating behavioral or educational challenges—even with formal diagnoses—will automatically justify a change in custody.
The court will consider whether such developments are unanticipated and substantial in the context of normal childhood development and existing family dynamics.
Absent clear evidence that the child’s welfare is seriously compromised or that circumstances have changed in a dramatic, unanticipated way, the courts will favor stability in existing orders.

B. Emphasis on stability and sibling relationships

The family division’s alternative reasoning—that moving the child out of Vermont would disrupt school, services, daily routines, and the sibling relationship—echoes a central principle of Vermont custody law: continuity matters.
Parents seeking relocation‑based custody changes or unilateral custody of only one sibling should expect close scrutiny of the impact on sibling bonds and the child’s established support network.

C. Limited appellate scope in custody matters

This decision underscores that appellate courts do not re‑try custody cases. They review for legal error and abuse of discretion, not for mere disagreement with how the trial court weighed evidence.
Parties and attorneys must therefore treat the trial as their primary—and often only meaningful—opportunity to present evidence, particularly expert or documentary evidence.

D. Strict boundaries on post‑judgment motions

Rule 59 and 60 are not “second trials” or opportunities to correct litigation missteps, such as failing to properly authenticate documents or call key witnesses at the initial hearing.
Counsel and parties must understand that:
- Evidence that was available but not used at trial generally cannot be used post‑judgment to reopen the case.
- Courts may, and often will, deny such motions without a hearing, particularly when they seek to rehash previously decided issues.

E. No “ineffective assistance of counsel” remedy in family cases

Disappointment with one’s attorney’s performance in a custody case does not create a constitutional or procedural right to have the case redone.
This decision highlights a structural reality: family litigants bear the consequences of their counsel’s strategic and evidentiary choices, absent extreme misconduct that might trigger different kinds of remedies (not at issue here).

F. Due process is satisfied by a single full hearing

As long as parents are given notice and a fair opportunity to present their case at a properly convened hearing, due process is generally satisfied.
Due process does not entitle parties to multiple evidentiary hearings, especially where subsequent motions largely seek to improve upon or redo a prior presentation of evidence.

VI. Clarification of Key Legal Concepts

“Real, substantial and unanticipated change of circumstances”

In custody modification cases, the moving parent must first show that something significant and genuinely new has occurred since the last order—something that:

is real (not trivial or speculative),
substantial (big enough to matter to the child’s welfare), and
unanticipated (not reasonably foreseeable when the original order was made).

Only if this is shown does the court even consider modifying custody or contact.

Best‑interests factors (15 V.S.A. § 665(b))

These statutory factors guide initial and post‑modification custody decisions when the threshold is met. They include, among others, the child’s relationship with each parent, the child’s adjustment to home, school, and community, the ability of each parent to foster the child’s relationship with the other parent, and the child’s developmental needs. In this case, the court never reached these factors because the threshold change‑of‑circumstances test was not satisfied.

Abuse of discretion

A deferential standard of appellate review. A decision is an abuse of discretion only if it is based on clearly untenable grounds (for example, a misunderstanding of the law or ignoring the evidence entirely), or is so unreasonable as to be unsustainable. This is the standard applied to:

change‑of‑circumstances determinations in custody cases, and
rulings on Rule 59 and 60 motions.

Authentication of documents

Before a document (such as a medical record) can be admitted into evidence, the party offering it must show that it is what it purports to be (typically through testimony or appropriate certification). If not properly authenticated, the trial court may exclude it, even if the contents seem important.

V.R.C.P. 59(e) – Motion to Alter or Amend Judgment

A mechanism to ask the trial court to revise its judgment to correct its own mistakes. It is not meant to:

reargue the same points already considered and rejected, or
introduce new evidence that was available at trial but not used.

V.R.C.P. 60(b) – Relief from Judgment

Provides limited, exceptional grounds for overturning or modifying a final judgment (e.g., newly discovered evidence that could not have been found earlier, fraud, certain procedural defects). It is a “safety valve” for extraordinary circumstances, not a general second appeal.

Ineffective assistance of counsel (inapplicable here)

A doctrine from criminal law allowing a convicted defendant to seek relief when counsel’s performance fell below a reasonable standard and prejudiced the defense. It is rooted in the Sixth Amendment right to counsel. It does not apply in ordinary civil/family cases, including custody disputes.

Due process (procedural)

The constitutional guarantee that the government will not deprive individuals of important interests (like parental rights) without fair procedures. At a minimum, this includes:

adequate notice of the proceedings, and
a meaningful opportunity to be heard.

It does not guarantee multiple evidentiary hearings or specific rulings on every argument, so long as the process as a whole is fair.

VII. Conclusion

Laura Isham v. Zachary Isham reaffirms several foundational tenets of Vermont family law:

The threshold requirement of a “real, substantial and unanticipated change of circumstances” is a robust gatekeeper to custody modifications.
Courts will treat many developmental and behavioral issues in young children as expected, not inherently “unanticipated.”
Stability—of home, services, school, and sibling relationships—remains a central value in custody adjudication.
Appellate courts will not second‑guess trial courts’ credibility determinations or reweigh evidence.
Post‑judgment motions under Rules 59 and 60 are tightly constrained and cannot be used to cure trial‑level strategic or evidentiary missteps.
Ineffective assistance of counsel claims are not an avenue for relief in civil family proceedings.
Due process is satisfied where a parent receives notice and a fair opportunity to be heard at a single, properly conducted hearing.

Although non‑precedential, the decision is a clear and instructive application of Vermont’s established custody modification framework. It serves as a practical reminder to litigants and practitioners that:

modification is reserved for genuinely changed and unanticipated circumstances,
the trial is the critical forum for presenting evidence, and
the law strongly favors the continuity and stability of children’s lives unless compelling reasons justify a change.