Limited Parenting-Time Tie-Breakers Within a Court-Ordered Schedule Do Not Improperly Delegate Judicial Authority

1. Introduction

This parentage dispute concerned the allocation of parental rights and responsibilities and the practical administration of parent-child contact when the parents could not cooperate effectively. Margaret Shugart, the mother, received primary legal and physical custody of the parties’ daughter. William McCann, the father, appealed the custody determination and related rulings.

The appeal presented three principal questions:

1. Whether the treatment of an unsigned parenting agreement developed through mediation required reversal of the final parenting order.
2. Whether an assistant judge’s involvement in a related contempt hearing rendered the court improperly constituted.
3. Whether permitting mother to resolve specified scheduling disagreements improperly transferred judicial authority over father’s contact with daughter.

The Supreme Court rejected all three challenges. Its most practically significant conclusion was that a court may establish a definite parenting schedule while assigning one parent limited responsibility to resolve particular logistical impasses, where the arrangement is supported by findings concerning the child’s interests and the parents’ ability to manage conflict.

2. Background and Procedural History

The parenting relationship and custody findings

The parties’ daughter was born in June 2018. Their romantic relationship ended later that year, but they continued sharing her care. Mother eventually lived in Dummerston, where daughter attended school, while father lived in Mt. Holly. Beginning in August 2022, the parents followed a 2-2-2-5 schedule that included alternating weekends.

Mother commenced the parentage action in May 2023. Following extensive evidentiary proceedings, the family division entered a temporary order in September 2024 and a final order in May 2025.

The trial court recognized substantial strengths in both parents. Daughter was close to each of them, both could provide for her physical and material needs, and both offered emotional support and structure. Father supported her educational development and her relationships with his family. Nevertheless, the court found important differences in the parents’ ability to manage disagreement without placing their own interests ahead of daughter’s.

Father repeatedly criticized mother’s parenting, treated his own views as uniquely rational, and struggled to accommodate reasonable differences in parenting approaches. The court also found that his interactions with daughter’s therapist appeared directed partly toward obtaining information about mother and controlling the account of daughter’s experiences. Mother, by contrast, acknowledged father’s parenting strengths and had consistently supported his relationship with daughter.

Educational continuity also mattered. Daughter had friends, activities, and school connections in mother’s community. During the earlier schedule, father had kept her from attending kindergarten during his parenting time rather than reduce that time. His proposal to care for daughter on weekdays would have required a school change.

The January 2025 incident

A disputed exchange while daughter had influenza illustrated the parents’ conflict. Father wanted to extend his time with her; mother did not agree. Police became involved after father told mother not to enter his property and declined to return daughter. Officers handcuffed father, but subsequently released him after determining that the temporary order was insufficiently clear to establish a violation. Daughter became aware of the incident and was very upset.

The following day, the court granted emergency relief requiring daughter’s return, clarified its order, and suspended father’s visits until he signed an affidavit agreeing to comply. He did so.

The custody significance of this episode did not depend on a criminal conviction or a police determination that father had violated the order. The family court considered his conduct and its effect on daughter when assessing parental judgment and the management of conflict.

The final order and subsequent motions

The court awarded mother primary parental rights and responsibilities and established father’s contact schedule. To reduce recurrent disputes, the order gave mother limited decision-making authority if the parents could not agree about an alternative exchange location, the allocation of specified summer weeks, or necessary scheduling changes caused by illness, severe weather, or similar circumstances. Schedule changes had to be recorded in writing through Our Family Wizard.

Father then sought to enforce an unsigned 2022 mediation agreement, amend the findings and judgment, and obtain other post-judgment relief. He also challenged the denial of contempt proceedings against mother and her attorney and sought to vacate the final order and obtain a new trial based on the court’s composition. Those efforts were unsuccessful.

3. Summary of the Supreme Court’s Decision

• Mediation evidence: Father did not establish a preserved, prejudicial evidentiary error. He had not specifically offered the alleged agreement into evidence, it was not in the appellate record, and testimony had already described the parenting arrangement the parties followed.
• Enforcement and shared responsibility: Father’s post-judgment enforcement position conflicted with his position at trial. Moreover, both parents sought primary responsibility rather than agreeing to share it, bringing the case within the statutory requirement to award responsibility primarily or solely to one parent.
• Court composition: Father failed to establish that an improperly constituted court issued either the contempt order or the final parenting order. The trial judge explained that the assistant judge had not participated in the relevant factfinding.
• Scheduling authority: The limited tie-breaking provisions did not delegate the court’s core responsibility. The court itself allocated parental rights and established contact; mother’s authority addressed defined implementation problems.
• Motion to strike: Father’s post-argument motion concerning allegedly extra-record statements was denied as moot because the Supreme Court did not rely on material outside the record.

4. Legal Reasoning

A. Best interests, rather than historical practice alone, controlled the final allocation

The court evaluated the child’s best interests under 15 V.S.A. § 665. Its reasoning did not turn on whether father loved daughter or could provide adequate material care; those points were acknowledged. Instead, the decisive considerations included developmental needs, community continuity, the ability to support the other parent’s relationship with daughter, and the ability to manage disagreements constructively.

The findings connected parental conduct to consequences for the child. Father’s inflexibility contributed to missed school and activities, conflict over exchanges, and distress during the January incident. Mother’s comparatively cooperative conduct supported the finding that she was better positioned to meet daughter’s needs and preserve her relationship with father.

Section 665(a) supplied an additional legal constraint. When parents cannot agree to divide or share parental rights and responsibilities, the court must award them primarily or solely to one parent. Here, each parent sought primary responsibility. The alleged earlier agreement therefore did not establish the agreement to share responsibility necessary for the disposition father later advocated.

The decision also distinguishes parental rights and responsibilities from parent-child contact. Awarding primary responsibility to mother did not eliminate father’s relationship with daughter; the court separately established a contact schedule designed to preserve that relationship while accommodating school, distance, and conflict concerns.

B. The mediation challenge failed on several independent grounds

The trial court treated mediation communications as privileged under the Uniform Mediation Act, including 12 V.S.A. § 5713, and later relied on § 5716(b) when rejecting reconsideration of its evidentiary rulings. The absence of a signed agreement was important to its conclusion that no applicable exception had been established.

The Supreme Court’s reasoning, however, was not simply a categorical endorsement of excluding every document associated with mediation. Several narrower defects undermined father’s appeal:

1. Preservation was doubtful. At the hearing, father’s counsel expressly said that he was not seeking enforcement and that the supposed agreement did not address the central issues before the court. Counsel then indicated that the evidentiary issue could be revisited later.
2. The document was not properly presented. Father did not show that he specifically offered the agreement itself into evidence, and it was absent from the appellate record.
3. Prejudice was not demonstrated. Both parents testified about their actual post-2022 schedule, and the trial court made findings about it. Father also testified concerning the alleged understanding about kindergarten attendance.
4. The requested substantive outcome did not follow. Even assuming a historical agreement, the court still had to apply the governing custody statute and assess daughter’s interests on the admissible evidence.

The trial court also explained that the parties had not used the process for presenting a signed parenting agreement for incorporation into a court order. They had neither signed nor filed the alleged agreement. Its reference to Vermont Rule for Family Proceedings 4(e) was comparative: that rule addresses a procedure in divorce proceedings, not a directly applicable parentage procedure.

The opinion should therefore not be read as a comprehensive ruling on every possible unsigned settlement or every exception to mediation confidentiality. Its conclusion rests on this record, the way the issue was raised, the absence of demonstrated harm, and the statutory requirements governing the final parenting determination.

C. Court-composition objections required proof of actual improper participation

Father argued that Assistant Judge Partridge’s absence from earlier merits hearings prevented her from participating in the February 2025 contempt hearing once evidence from that hearing was used in the final parenting decision. His challenge invoked 4 V.S.A. § 457 and the principle that orders from an improperly constituted court are void.

The trial court explained that, once the parties agreed that the contempt-hearing evidence could inform the final decision, Assistant Judge Partridge did not participate in the associated factfinding. Her signature on the contempt order indicated attendance at the hearing only. The final parenting order bore only the trial judge’s signature.

The Supreme Court acknowledged that clarifying the assistant judge’s role through a post-decision entry order was “not the best practice.” Nevertheless, it accepted the explanation and concluded that father had not shown an improperly constituted decision-making court.

Nor did the record support father’s suggestion of disagreement between the presiding judge and assistant judge. Section 457(d), requiring a mistrial when those two participating judges disagree on a decision, therefore did not establish a basis for relief.

The decision is correspondingly narrow: it does not resolve every statutory question about assistant-judge participation across successive hearings. It rejects the claimed defect because the necessary factual premise—improper participation in the decision—was not established.

D. Limited logistical authority was not a transfer of the court’s adjudicative function

The central distinction was between determining parental rights and contact and implementing an already determined schedule. The first responsibility belongs to the court. The second may involve practical mechanisms that prevent routine disagreements from repeatedly disrupting the child’s life.

The family court itself made the essential decisions: it selected the primary parent, established father’s contact, and defined the circumstances in which mother could resolve an impasse. Her authority was not a general power to allow or withhold contact according to personal convenience.

Several features supported that conclusion:

• The order established a contact schedule rather than leaving contact undefined.
• The parents first had an opportunity to agree.
• Mother’s tie-breaking role concerned specified logistical matters.
• Changes associated with illness, weather, or similar events depended on circumstances requiring an adjustment.
• Written communication through Our Family Wizard provided a record of changes.
• The allocation rested on detailed findings that mother managed conflict more constructively and father struggled to compromise.

The January exchange dispute supplied a concrete reason for addressing contingencies expressly. The court sought to prevent uncertainty about timing or location from becoming a justification for refusing an exchange. Its order thus promoted certainty and reduced conflict without surrendering control over the basic parenting arrangement.

5. Precedents Cited and Their Influence

Parenting agreements, preservation, and appellate presentation

DeLeonardis v. Page, 2010 VT 52, ¶ 29, 188 Vt. 94

The trial court cited this decision alongside 15 V.S.A. § 666 when explaining the process for enforcing stipulated parenting arrangements through incorporation into a court order. Its role was to support the distinction between an informal arrangement the parties followed and an agreement formally presented for judicial adoption. The Supreme Court did not use the citation to announce an unlimited rule governing all unsigned agreements.

In re White, 172 Vt. 335, 343 (2001)

This decision supplied the preservation principle: an issue must be presented specifically and clearly enough to give the trial court a fair opportunity to decide it. Father’s appellate demand to enforce the agreement differed from his hearing position that he was not seeking enforcement. That discrepancy, together with the absence of an actual evidentiary offer, supported the court’s concern that the asserted error had not been preserved.

In re S.B.L., 150 Vt. 294, 297 (1988)

The court relied on this case for the appellant’s obligation to demonstrate reversible error rather than require the appellate court to search the record. Father identified findings allegedly derived from the contempt hearing but failed to provide supporting record citations for two of them. Together with Vermont Rule of Appellate Procedure 28(a), this precedent explained why unsupported assertions did not establish the alleged defect.

Judicial integrity and the validity of the tribunal

Ball v. Melsur Corp., 161 Vt. 35, 39 (1993)

The court cited this decision by analogy for the presumption of judicial honesty and integrity, expressly identifying its recusal context. That principle supported accepting the trial judge’s explanation of the assistant judge’s limited role absent an adequate contrary showing. The citation did not make court-composition requirements optional; it concerned how the factual account of judicial participation was assessed.

Demag v. Better Power Equip., Inc., 2014 VT 78, 197 Vt. 176

This decision appeared as subsequent-history qualification to Ball v. Melsur Corp., which had been abrogated on other grounds. It supplied no independent rule resolving the parenting dispute. Its significance was to identify that limitation while preserving the relevance of the particular judicial-integrity proposition cited.

Vt. Union Sch. Dist. No. 21 v. H.P. Cummings Constr. Co., 143 Vt. 416, 422 (1983)

This precedent established the serious consequence of an actual composition defect: an order issued by an improperly constituted court is void. The Supreme Court did not reject that rule. Instead, it found that father had failed to demonstrate the predicate defect, given the explanation of the assistant judge’s nonparticipation in factfinding and the trial judge’s sole signature on the final order.

Parent-child contact and discretionary decision-making

Engel v. Engel, 2012 VT 101, ¶ 13, 193 Vt. 19

This case identified the nondelegable judicial responsibility to decide legal and physical parental rights and establish contact for the noncustodial parent. It provided the governing boundary. The challenged order remained within that boundary because the court itself made those decisions and assigned mother only limited implementation authority.

DeSantis v. Pegues, 2011 VT 114, ¶ 26, 190 Vt. 457

This decision recognized trial-court discretion in setting parent-child contact. It supported the court’s ability to account for distance, conflict, predictability, and the child’s interests when designing the schedule. That discretion included crafting workable responses to foreseeable logistical disputes.

Gazo v. Gazo, 166 Vt. 434, 444-45 (1997)

This authority framed the concern about making one parent’s contact dependent on the other’s convenience and discretion. The Supreme Court distinguished that concern from the order before it: father had an established schedule, while mother’s authority addressed specified disagreements and necessary adjustments. The relevant question was the substance and limits of the authority, not merely whether mother could make any scheduling decision.

Meyncke v. Meyncke, 2009 VT 84, ¶ 15, 186 Vt. 571 (mem.)

This decision supplied the concluding appellate principle that disagreement with a court’s reasoning and result does not itself demonstrate an abuse of discretion. Father’s dissatisfaction with the tie-breaking provisions did not overcome the detailed findings supporting them. The precedent reinforced the distinction between identifying legal error and asking the appellate court to prefer a different arrangement.

6. Potential Impact and Limits

Because this decision is nonprecedential, its significance is explanatory rather than lawmaking. It nevertheless highlights several important features of Vermont parenting litigation:

• Conflict-management findings can shape parenting orders. A parent’s ability to compromise and support the other parent’s relationship with the child may matter independently of basic caregiving competence.
• Specific contingency provisions can protect contact. Clear procedures for illness, weather, exchanges, and vacation selection can reduce the uncertainty that fuels disputes.
• Primary responsibility does not create unlimited scheduling control. The decision approved defined tie-breaking powers, not an unrestricted veto over the other parent’s contact.
• Historical practice is not a substitute for proper presentation and current statutory analysis. Following an informal arrangement does not automatically require its incorporation into a final order.
• Appellate success requires a developed record. Specific objections, actual evidentiary offers, record citations, and an explanation of prejudice remain essential.
• Judicial participation should be documented clearly. Although the later clarification sufficed here, the court’s criticism indicates the value of contemporaneous clarity about who participated in factfinding and decision-making.

The opinion does not authorize blanket exclusions of all mediation-related material, resolve every assistant-judge participation issue, or permit courts to leave contact entirely to a custodial parent. Those broader propositions exceed its reasoning.

7. Complex Concepts Simplified

Parental rights and responsibilities (PRR)

The legal and practical authority associated with raising a child, including decision-making and physical care. Here, mother received primary legal and physical responsibility.

Parent-child contact (PCC)

The schedule governing the child’s time with the other parent. It is distinct from the allocation of primary parental responsibility.

Mediation privilege

A protection limiting the use of qualifying mediation communications in later proceedings. Whether an exception applies depends on the governing statute and the circumstances.

Preservation of error

Giving the trial court a clear opportunity to decide an issue before asking an appellate court to correct it.

Prejudice from an evidentiary ruling

A harmful effect on the case, rather than merely an unfavorable ruling. Father did not establish such harm where the court already heard evidence about the actual parenting schedule.

Improper delegation

Transferring a decision the court must make to someone else. Allowing a parent to resolve narrowly defined logistics is different from allowing that parent to decide whether court-ordered contact will exist.

Abuse of discretion

A legally unjustifiable exercise of the trial court’s permitted judgment. A different preferred outcome, without more, does not establish it.

Void order

An order lacking legal validity because of a fundamental defect. Although improper court composition can produce that consequence, father did not establish such a defect here.

8. Conclusion

The Supreme Court affirmed a parenting order grounded in detailed findings about daughter’s needs, educational continuity, and the parents’ markedly different approaches to conflict. It rejected challenges based on an unsigned mediation agreement, alleged improper judicial participation, and limited scheduling authority assigned to mother.

The central distinction is between surrendering judicial control over parenting rights and creating workable procedures for implementing a court-defined schedule. This nonprecedential decision approved the latter, while emphasizing the importance of a sound factual record, properly preserved objections, and child-focused reasoning.