Background
Michelle and James Kendall divorced in October 2018 after relocating separately — mother to California with the couple’s three children, father remaining in Vermont. Under the divorce decree, mother held primary physical and legal parental rights. Father filed motions to modify custody in 2021 and 2023, both of which were ultimately denied or dismissed.
In January 2024, the situation changed dramatically. At a hearing on mother’s motions, mother herself declared that she had experienced a substantial and unanticipated change in circumstances: she had lost her job, was in financial crisis, had lost the person managing her household, and was suffering debilitating side effects from post-surgery medication. Mother asked the court to grant father emergency physical custody of the children “as long as the children are safe,” without stating any temporal limitation. The trial court issued a “temporary order” transferring physical custody to father and directing the parties to work out remaining details and file a stipulation — which they never did.
In summer 2024, father sent the youngest child to California for a visit mirroring the prior PCC schedule. Mother refused to return the child to Vermont, prompting father to file an emergency motion to enforce. The court ordered the child returned to Vermont. Mother then moved to vacate the January 2024 order. At a March 2025 hearing — at which the court mistakenly treated father as having filed a motion to modify, which he had not — the court denied father’s purported motion and granted mother’s motion to vacate, reinstating mother’s primary custody under the 2018 order. Father appealed.
The Court’s Holding
The Vermont Supreme Court reversed and remanded, holding that the trial court committed two related errors. First, the court erred in treating father as the moving party and imposing on him the burden of proving a real, substantial, and unanticipated change of circumstances under 15 V.S.A. § 668. Father had never filed a motion to modify; the court itself had sua sponte framed him as having done so. Because father was not the movant, the burden should not have fallen on him.
Second, and more significantly, the court held that the January 2024 temporary order was constructively a final custody order, not a mere interim arrangement. Mother — as the then-custodial parent — had unequivocally requested that father assume immediate custody without any stated time limit, explicitly agreeing that his earlier modification motion should have been granted. Father had conditioned his acceptance on a binding change, a concern the trial court acknowledged. The parties thereafter proceeded as though the order was final, filling in procedural gaps through their own conduct, with no objection until father’s 2024 enforcement motion. Under these circumstances, the panel held, the order effectively became final.
On remand, the burden of proof falls on mother under 15 V.S.A. § 668 to establish a real, substantial, and unanticipated change in circumstances since the January 2024 order warranting modification, and to show that modification is in the youngest child’s best interests. The court noted that burden will be a heavy one, given Vermont’s strong policy of ensuring stability in children’s lives and deference to the decisions of the custodial parent.
Key Takeaways
- A “temporary” custody order can be treated as constructively final where the custodial parent requests the change without temporal limitation, the parties act as though the order is permanent, and no follow-up proceedings are scheduled or stipulation filed.
- A trial court may not sua sponte recast a non-movant as the moving party and impose the burden of proving changed circumstances on a party who filed no modification motion.
- When a custodial parent initiates a custody transfer based on her own admitted changed circumstances, it is that parent — not the recipient of custody — who must later bear the burden to modify the resulting order.
- Vermont courts apply a heavy burden to modification requests to protect the critical goal of stability in children’s lives, with the custodial parent’s residential decisions entitled to deference.
Why It Matters
This decision clarifies that the formal label attached to a custody order — “temporary” versus “final” — is not necessarily dispositive. Vermont courts will look to the substance of the parties’ agreement and their subsequent conduct to determine whether an order has effectively become permanent, with significant consequences for who must carry the burden of proof in any future modification proceeding. Practitioners should ensure that any genuinely temporary custody arrangement is clearly documented as such, with explicit time limits or scheduled review hearings.
The case also serves as a caution against trial courts reshaping the procedural posture of a hearing without a proper record. Assigning the burden of proof to the wrong party — here, to a father who never filed a motion — can infect the entire proceeding and require a full do-over. On remand, mother must affirmatively demonstrate changed circumstances since January 2024 and that returning the youngest child to her custody serves the child’s best interests, a threshold that will not be easy to meet given the child’s established life with father in Vermont over the preceding year and a half.