Clarifying Vermont Custody Standards: Primary-Care Provider, Relocation Analysis, and Explicit Allocation of Parental Rights and Responsibilities

Introduction

In Sean Gordon v. Katy Fogell, 2025 VT 24, the Supreme Court of Vermont confronted a contentious divorce and custody dispute in which both parents sought primary parental rights and responsibilities for their two young children. The parents, who married in 2016 after a lengthy relationship and moved to Grand Isle, Vermont, faced significant health, financial, and relational challenges—including mother’s thyroid cancer and father’s diagnosis of multiple sclerosis. After the parties separated in April 2021, the family division awarded primary legal rights and responsibilities to father while assigning mother only medical and dental decision-making rights. Both parties appealed. The Supreme Court’s unanimous opinion reverses and remands, establishing critical guidance on (1) consideration of the primary-care-provider factor; (2) proper analysis of proposed relocations; (3) mandatory findings to support any division of legal rights; and (4) explicit award of physical rights and responsibilities.

Summary of the Judgment

The family division’s final divorce order awarded father primary legal parental rights and responsibilities, denied either parent sole physical custody, and granted mother only authority over medical and dental decisions. On appeal:

The Supreme Court affirmed the finding that father was less willing and able to foster a positive parent-child relationship.
It reversed and remanded the custody order, identifying four fatal errors:
1. Failure to identify and weigh the primary-care-provider factor under 15 V.S.A. § 665(b)(6).
2. Erroneous findings and misapplication of relocation law when assessing mother’s plan to move to Michigan.
3. Inadequate reasoning and supporting findings for dividing legal rights and responsibilities.
4. Omission of an explicit award of physical rights and responsibilities, contrary to 15 V.S.A. § 665(a).

The Court remanded for further proceedings consistent with the correct application of statutory factors and required findings.

Analysis

Precedents Cited

15 V.S.A. §§ 664–665 – Governs allocation of legal and physical parental rights and responsibilities based on children’s best interests.
Payrits v. Payrits, 171 Vt. 50 (2000) – Affirms that courts may draw on common sense to decide custody and that primary-care provider receives great weight.
Nickerson v. Nickerson, 158 Vt. 85 (1992) – Holds that primary-care factor must be correctly identified and given due consideration.
Gazo v. Gazo, 166 Vt. 434 (1997) – Defines how courts must compare children’s lives in current and proposed locations when a parent plans relocation.
Paine v. Buffa, 2014 VT 10 – Authorizes consideration of relocation proposals when parents are otherwise equally situated.
LeBlanc v. LeBlanc, 2014 VT 65 – Requires trial courts to “point out what findings tipped the scale” in custody determinations.

Legal Reasoning

The Court emphasized that when parents cannot agree on custody, the statute mandates a two-step process:

Consider the best-interest factors in 15 V.S.A. § 665(b), including the primary-care-provider factor and the quality of adjustment to home, school, and community.
Assign legal and physical rights and responsibilities primarily or solely to one parent under 15 V.S.A. § 665(a), with explicit findings to explain the result.
- The primary-care-provider factor “should be entitled to great weight,” unless unfit (Nickerson).
- Where relocation is proposed, the moving parent must clarify whether the move is certain or not; if certain, courts must compare life in the new location with life with the non-relocating parent (Gazo).
- Courts must articulate findings on each factor and identify those that “tipped the scale” (LeBlanc).

The family division’s order failed at every stage: it neglected to identify the primary caretaker; it found no evidence about mother’s Michigan plan despite ample testimony; it divided legal rights without any factual basis; and it omitted any award of physical custody, rendering the entire decree legally deficient.

Impact

Sean Gordon v. Katy Fogell reinforces rigorous standards for Vermont custody orders:

Court must explicitly identify who, if either, served as primary caretaker and weigh that factor heavily.
When relocation is on the table, findings must reflect an accurate comparison of both scenarios.
Any split of legal decision-making powers requires clear factual support tying the division to the children’s best interests.
Physical rights and responsibilities cannot be omitted; the court must award them to one parent when agreement is lacking.

Future trial courts will be guided to avoid speculation, fill gaps in reasoning, and ensure custody decrees are both transparent and legally sound.

Complex Concepts Simplified

Primary-Care Provider Factor – The parent who did most of the day-to-day childcare; courts must say who that is and give it great weight.
Relocation Analysis – If a parent plans to move far away, the court must compare the kids’ potential life there to their life with the other parent in the current locale.
Legal vs. Physical Rights – Legal rights are decision-making powers (education, medical), while physical rights are where the child lives day-to-day.
“Tipping the Scale” – Courts must say which factors were decisive in granting one parent custody.

Conclusion

The Supreme Court of Vermont’s decision in Sean Gordon v. Katy Fogell sets a new benchmark for custody adjudications. By demanding explicit findings on primary-care status, relocation intentions, and both legal and physical rights allocations, the Court ensures that custody decisions rest on a transparent, fact-driven analysis of children’s best interests. Trial courts must strictly follow this framework or risk reversal and remand. In so doing, Vermont law affirms that where children are concerned, clarity and thoroughness in judicial reasoning are paramount.