“Temporary” Custody Transfers Without a Time Limit May Be Treated as Final Orders, Shifting the § 668 Burden to the Parent Seeking to Undo Them

Case: Michelle Kendall v. James Kendall (Vt. Supreme Court, May 8, 2026) (Entry Order; three-justice panel)
Lower Court: Superior Court, Caledonia Unit, Family Division (Case No. 76-4-14 Cadm)

1. Introduction

This appeal concerns which parent bore the burden to justify changing custody after the family division entered a January 2024 “temporary” emergency order transferring physical custody of the parties’ youngest child from mother (the long-time custodial parent) to father. The key dispute on appeal was not merely whether circumstances had changed, but which order was the operative baseline for modification and therefore which party carried the “heavy burden” under 15 V.S.A. § 668.

The parties divorced in 2018, with mother holding primary physical and legal parental rights and responsibilities (PRR) while living in California with the children; father remained in Vermont. After father’s earlier modification attempts failed (2021 dismissed; 2023 denied), mother later sought an emergency change in January 2024, stating she could not care for the children due to destabilizing health and financial circumstances, and asked that father take custody immediately. The resulting order was labeled “temporary” and contemplated later “details,” but no follow-up stipulation or prompt evidentiary finalization occurred.

The conflict reignited when mother retained the youngest child in California after summer 2024 parent-child contact (PCC). After enforcement proceedings, mother moved to vacate the January 2024 order. At a March 2025 hearing, the trial court treated the case as if father had filed a motion to modify (he had not), placed the change-of-circumstances burden on him, and ultimately vacated the January 2024 order—returning the child to mother. Father appealed.

2. Summary of the Opinion

The Vermont Supreme Court reversed and remanded. It held that:

• The March 2025 hearing was “flawed” because the trial court proceeded as though father had filed a motion to modify when he had not, misallocating the burden of proof.
• Under the “unique circumstances” presented, the January 2024 order transferring physical custody to father—though labeled “temporary”—was “constructively a final order,” because mother unequivocally requested an immediate custody change without a stated time limit, and the parties and court treated the transfer as operative without scheduling prompt further proceedings.
• Accordingly, on remand, mother bears the burden under 15 V.S.A. § 668 to modify the January 2024 custody arrangement (either via a new motion to modify or by supplementing her motion to vacate with updated facts).
• The trial court’s best-interests analysis must be conducted with the correct baseline order and correct burden allocation.

3. Analysis

3.1 Precedents Cited

Sundstrom v. Sundstrom, 2004 VT 106, ¶¶ 28-29, 177 Vt. 577 (mem.)

The Opinion quotes Sundstrom for the familiar two-step structure under 15 V.S.A. § 668:

• Threshold: the court must first find a “real, substantial and unanticipated change of circumstances” before it may reach best interests.
• Merits: only after the threshold is met does the court reconsider the child’s best interests.

Sundstrom also supplies the “heavy burden” concept and emphasizes discretion at the threshold stage. In this case, the Supreme Court used that framework to identify the central procedural error: the trial court applied the Sundstrom burden to the wrong party by treating father as the movant when he was not.

deBeaumont v. Goodrich, 162 Vt. 91 (1994)

The Opinion relies on deBeaumont in two ways:

• Standard of review: the Supreme Court reiterates it will affirm unless discretion was erroneously exercised or based on unfounded considerations.
• Stability principle / “critical justification”: the Court emphasizes the “heavy” burden to modify custody because stability is paramount and custody should not be modified without “critical justification.”

That stability-focused framing is pivotal to the Court’s conclusion that the January 2024 transfer should be treated as effectively final: doing otherwise would allow a parent to obtain an emergency transfer, let the child’s life reorganize around it, and then unwind it without facing the stability-protective burden that deBeaumont contemplates.

Kilduff v. Willey, 150 Vt. 552, 553 (1988)

The Court cites Kilduff for the “critical goal” of providing stability for the child. This citation supports the Court’s doctrinal move: even where an order is labeled “temporary,” the functional realities—an unequivocal custody transfer, absence of a time limit, and the parties’ subsequent conduct treating it as operative—can justify treating it as the baseline order for § 668 purposes.

3.2 Legal Reasoning

(a) The court cannot adjudicate a fictive “motion to modify” and assign its burdens

The Supreme Court’s first holding is straightforward due-process and basic civil-procedure logic applied in the family context: burdens follow motions. Father did not file a motion to modify; the trial court nonetheless treated him as though he had. That error mattered because, under 15 V.S.A. § 668 and Sundstrom, the moving party bears a “heavy burden” at the threshold stage.

The trial court’s confusion was compounded by its incorrect belief that father’s earlier 2021 and 2023 motions were still pending. They were not. The Supreme Court thus framed the March 2025 hearing as “fundamentally flawed,” requiring a new hearing with correct pleadings and burden allocation.

(b) A “temporary” emergency custody transfer may be “constructively a final order”

The core doctrinal contribution is the Court’s functional characterization of the January 2024 order. Although titled “temporary” and anticipating later “details,” the Court held it was “constructively a final order” because:

• Mother’s request was unequivocal and urgent: she asked for an immediate custody change because she “could not care for the children.”
• No temporal limitation: mother did not describe a short-term arrangement; she proposed father assume responsibility “as long as the children are safe.”
• Need for a binding change was recognized: father expressed concern that mother might change her mind; the court acknowledged that concern.
• No prompt finalization occurred: no stipulation followed and no follow-up hearing was scheduled, yet the family’s arrangements proceeded under the transfer.
• Party conduct treated it as operative: the parties “filled in the blanks” through performance (including PCC arrangements) without timely objection until enforcement litigation erupted.

With those facts, the Court treated the January 2024 order as the operative custody baseline. This is not merely a label-versus-substance point; it is a stability-protective rule: once custody has been transferred in a manner functionally indistinguishable from a final change, the party seeking to undo it must satisfy § 668 rather than re-litigate from the pre-transfer decree as if the intervening custody period were legally weightless.

(c) Burden allocation on remand: mother must satisfy 15 V.S.A. § 668 to modify the January 2024 arrangement

The Court’s remand instructions are explicit: mother bears the burden to modify the January 2024 order. The Court also anticipates the factual theory mother may pursue—i.e., that the “crisis situation has now passed”—but stresses her burden remains “heavy” given the stability concerns articulated in deBeaumont.

Only if mother meets the threshold change-of-circumstances showing does the court reach best interests, and that best-interests analysis must be performed with the correct baseline (the January 2024 custody placement), not the 2018 divorce order.

3.3 Impact

Practical effects on Vermont family litigation (especially emergency “temporary” PRR orders)

• Substance over caption: Parties and courts should expect that an order labeled “temporary” may nonetheless become the operative baseline for § 668 if it transfers custody without a clear endpoint and is treated as such in practice.
• Stability-protective burden shifting: A parent who requested (or agreed to) a custody transfer as an emergency measure may later face a heightened practical hurdle to reverse it, because the law’s stability principle disfavors oscillation absent “critical justification.”
• Case-management discipline: Trial courts are implicitly cautioned to promptly schedule follow-up proceedings when issuing emergency transfers that contemplate later “details,” and to ensure the pleadings match the issues actually tried.
• Motion clarity: Litigants should file explicit motions to modify (or to vacate) and not rely on informal understandings; conversely, courts should not recharacterize disputes in ways that silently move burdens.

Child-centered consequence

The Court’s approach seeks to reduce the risk that a child’s living situation becomes a pendulum driven by adult crisis-response followed by adult reconsideration. By treating the January 2024 transfer as effectively final, the Court centers stability and makes reversal contingent on a properly proven, post-transfer change plus best-interests findings.

4. Complex Concepts Simplified

• PRR (Parental Rights and Responsibilities): Vermont’s term for “custody” decision-making. It includes legal PRR (who makes major decisions) and physical PRR (where the child lives day-to-day).
• PCC (Parent-Child Contact): The schedule governing time spent with each parent (similar to “visitation/parenting time”).
• 15 V.S.A. § 668: The statute governing modification of PRR orders. A court cannot modify unless there is a “real, substantial and unanticipated change of circumstances,” and the modification is in the child’s best interests.
• Threshold finding (change in circumstances): A gatekeeping step. If the gate is not opened, the court should not reweigh best interests.
• “Heavy burden” to modify custody: Because frequent custody changes can harm children, the law requires strong justification before changing an established arrangement.
• “Constructively a final order”: Even if an order is called “temporary,” it can function as a final custody placement when it lacks a clear time limit and the case does not promptly return to court for finalization—especially when the family lives under that order as the governing reality.
• Motion to vacate vs. motion to modify: A “vacate” request asks the court to undo an order; a “modify” request asks to change custody based on new circumstances. This Opinion treats mother’s post-transfer request as requiring the same § 668 threshold showing because the January 2024 transfer is treated as the operative baseline.

5. Conclusion

The Supreme Court reversed because the family division (1) misidentified what was being litigated, (2) placed the § 668 burden on a parent who had not moved to modify, and (3) analyzed best interests from the wrong baseline order. The Opinion’s central takeaway is functional and stability-driven: when a custodial parent requests an immediate custody transfer without a stated time limit and the case proceeds without prompt finalization, the “temporary” transfer may be treated as effectively final—so the parent seeking to undo it bears the heavy § 668 burden to prove a real, substantial, and unanticipated post-transfer change and that modification serves the child’s best interests.