Nathan Illsley v. Janeen Fickert

VERMONT SUPREME COURT Case No. 23-AP-352
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

MAY TERM, 2024

Nathan Illsley* v. Janeen Fickert } APPEALED FROM:
} Superior Court, Rutland Unit,
} Family Division
} CASE NO. 21-DM-02225
Trial Judge: David A. Barra

In the above-entitled cause, the Clerk will enter:

Father appeals the family division’s final order granting sole legal and physical rights and
responsibilities for the parties’ three minor children to mother. We reverse and remand for the
family division to reconsider its order consistent with the views expressed in this opinion.

The family division made the following findings in its order. The parties met on
Facebook. Mother told father that she and her then-husband were having domestic issues and
that her husband had pulled her hair. Father suggested mother come to Vermont to live with
him, which she did. They were married in 2010, two days after mother’s divorce from her
previous husband was finalized.

The parties have three minor children together. Mother’s daughter from a previous
relationship, who has fetal alcohol syndrome, resided with the family during their marriage.
Father did most of the housework and provided most of the income during the marriage. The
parties were both involved in the children’s medical appointments and schooling. Father had a
strong, loving relationship with each child.

In the spring of 2021, mother started working at an amusement park in Lake George,
New York. She began dressing more revealingly, spending long hours playing online games,
and chatting with people father did not know. She took a trip to Illinois by herself, which she
described as training for her job. The court did not find her explanation for the trip to be
credible.

In September 2021, mother left the marital residence after calling the police and reporting
that father had hurt her, pulled her hair, and broken her phone. Mother obtained a relief-from-
abuse (RFA) order which prevented father from returning home and having contact with the
children. Father was also charged with domestic assault.1

The following morning, and unbeknownst to father, mother left Vermont with the
children. She left the marital home in disarray but appeared to have packed a U-Haul trailer and
moved her and the children’s belongings out of the home almost immediately after obtaining the
RFA order. She moved directly in with her boyfriend in his home in Illinois. The children
began attending school in Illinois pursuant to arrangements mother had made prior to leaving
Vermont. Neither party had family in Illinois and the children had not previously been to
Illinois.

The court found that mother left Vermont as part of a long-planned move to be with her
then-boyfriend, to whom she is now married. She had acted in a similar manner when she left
her previous husband to be with father and had made similar abuse allegations against that
husband as she did against father. The family division did not find mother’s testimony about
father’s alleged assault to be credible. It credited father’s testimony that mother had been
communicating with someone else prior to the incident. She had thrown her phone, causing it to
break, and called 911 from her watch. It also found credible father’s claim that he had called his
own father during the incident to come support him.

The children left friends and family in Vermont, including similarly aged cousins with
whom they had developed good relationships. They also were close to father’s mother, who had
contact with them nearly every day when they lived in Vermont.

After mother left Vermont, father filed for divorce. He obtained an amendment to the
RFA order allowing him to live in the marital residence and communicate with the children by
phone and text message. During the winter, father spoke to the children during a power outage
at the Illinois residence. There were no adults present and the children had nothing to eat.
Mother and her current husband eventually returned home after several hours.

In July 2022, the children gave father a virtual tour of their Illinois residence which
caused him to become concerned about how they were being treated. Food was kept behind
padlocks, and the children had no access to food unless adults were present. Mother testified that
she padlocked the food cabinets because the children were diabetic and were eating too much
sugar. After father learned about the padlocks, mother took the children’s phones and prevented
them from contacting father for an extended period of time. This was contrary to the temporary
parent-child contact order issued by the court in March 2022, which allowed father to have a
daily phone call with the children.2

1
The RFA order expired in October 2022. The domestic-assault charge against father
was dismissed in April 2023.
2
The March 2022 order also stated that if permitted by the criminal division, the
children were to spend the summer with father in Vermont. However, in July 2022 the criminal
division denied father’s motion to amend the conditions of release to allow the children to have
in-person contact with him.

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In November 2022, the court issued an order in which it granted the divorce and divided
the marital property.3 It reserved final judgment on parental rights and responsibilities and
parent-child contact because father’s criminal charge remained pending, and his conditions of
release prevented him from having in-person contact with the children. The court found in the
divorce order that mother was not credible in her allegations of abuse by father against herself or
the children.

The State dismissed the domestic-assault charge against father in April 2023. The
children spent the summer of 2023 with father in Vermont, pursuant to the temporary custody
order. The children were happy, well-cared-for, safe, and healthy. They did not display any of
the food-related behavior that mother reported. Mother’s older daughter also spent the summer
with father by agreement of the parties. Father did not interfere with mother’s contact with the
children.

The children returned to Illinois in August 2023. The padlocks remained in place in
mother’s home, although she testified that they were not locked. Father had little contact with
the children after they left Vermont. The children had school-required physicals and
vaccinations while in mother’s care, and the oldest child was involved in band at school.

The court considered the factors set forth in 15 V.S.A. § 665(b). It found that both
parents were disposed to provide love, affection, and guidance to the children, but mother
currently had the stronger bond and acted as the primary caregiver more of the time than father.
Both parents were able to provide the children with adequate food, clothing, medical care, and
other needs, and a safe environment. Mother had more difficulty meeting the children’s dietary
needs, as evidenced by the padlocks. Mother was presently more involved in the children’s
schooling and social development but both parents were able to meet their developmental needs.
The court found that the children appeared to be adjusted to their surroundings and that
disrupting the existing schedule would not be in their best interests. Mother had difficulty
fostering a positive relationship between father and the children, but the converse was not true of
father. Mother had been the more recent and consistent primary caregiver, and it would be
detrimental to the children to change that relationship. The children had important relationships
with friends and family in Vermont. The parents were not able to make joint decisions, but this
was not relevant because they had not agreed to share custody. There was no evidence of abuse.

The court concluded that the first, third, fourth, and sixth § 665 factors weighed in favor
of mother, while the second fifth and seventh favored father and therefore awarded mother sole
legal and physical rights and responsibilities without further explanation. It ordered that the
children spend summer vacation, as well as February and April and alternating Christmas
vacations, with father. Father appealed the order to this Court.

Father argues that the family division’s decision must be reversed because it failed to
sufficiently consider mother’s interference with his parent-child contact. He claims that the
court’s reliance on mother’s status as the current primary caregiver essentially rewarded her for

3
The court made numerous findings about the parties’ relationship with each other and
the children in the divorce order. It repeated some of these findings in the final parental-rights-
and-responsibilities order but omitted others, without explaining why. For example, it found in
the divorce order that a return to Vermont would be beneficial for the children and that mother
had ignored court orders relating to parent-child contact, but did not include these findings in the
custody order.
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relocating with the children under false pretenses. He argues that the court made no findings
about the children’s life in Illinois to support its conclusion that they were well-adjusted to their
new surroundings, and that the record demonstrates otherwise.

“The trial court has broad discretion in a custody matter, and we must affirm unless the
discretion is erroneously exercised, or was exercised upon unfounded considerations or to an
extent clearly unreasonable in light of the evidence.” Myott v. Myott, 149 Vt. 573, 578 (1988)
(quotation omitted). “We will uphold factual findings if supported by credible evidence, and the
court’s conclusions will stand if the factual findings support them.” Spaulding v. Butler, 172 Vt.
467, 475 (2001) (quotation omitted). “We will, however, reverse if the court’s findings are not
supported by the evidence, or if its conclusions are not supported by the findings.” Wright v.
Kemp, 2019 VT 11, ¶ 19, 209 Vt. 476 (quotation omitted).

We are unable to affirm the family court’s award of parental rights and responsibilities to
mother because its findings do not support its conclusions. The court found that father was a
capable caregiver who had a strong bond with the children and had participated fully in their
upbringing before mother left. The children also had strong ties to their family and community
in Vermont. Mother secretly planned to move to Illinois with the children to be with her new
boyfriend, and then falsely accused father of abuse to facilitate that move. Mother then
prevented the children from contacting father when they were in Illinois. The court found that
on more than one occasion, the children were left hungry while in mother’s care, and that mother
falsely accused father of kidnapping her oldest child. The court made virtually no findings
regarding mother’s relationship with the children or their life in Illinois other than its conclusory
statement that mother currently had the stronger bond with them. These findings, viewed as a
whole, would seem to favor an award of custody to father rather than mother.

This case is akin to Begins v. Begins, in which we reversed and remanded a decision
awarding custody of the parties’ children to the father. 168 Vt. 298, 303 (1998). In that case, the
family court found that the mother would seem to be the better custodian because she was the
primary caregiver and was more likely to foster a positive relationship with the father, but that
the children’s current hostility to the mother, which was encouraged by the father, precluded an
award to her. We held that the court’s findings “raise[d] serious doubts about [the father’s]
fitness to serve as the custodial parent,” and essentially condoned the father’s willful alienation
of the children from the mother, thereby undermining “the principle that the best interests of the
child are furthered through a healthy and loving relationship with both parents.” Id. at 302. We
concluded that “[a]n award so flagrantly at odds with the findings simply cannot be allowed to
stand.” Id. at 303.

Similarly, the court here appeared to conclude, in essence, that mother should be awarded
custody because she was currently the primary caregiver and the children were now used to
living in Illinois. However, the court’s other findings make clear that these circumstances were
the direct result of mother’s unilateral decision to take the children to Illinois without permission,
which was enabled by her false accusation that father had abused her. The court’s decision
essentially condones mother’s attempt to become the de facto primary care provider by moving
far away from father and interfering with the children’s relationship with him. We have held that
“[t]his kind of parental strategizing is inimical to the best interests of children.” Nickerson v.
Nickerson, 158 Vt. 85, 89-90 (1992) (explaining that “mere physical custody by one of two fit
parents . . . should not in itself cause a former primary-care-provider to lose that status”); see also
Renaud v. Renaud, 168 Vt. 306, 309 (1998) (“[A] child’s best interests are plainly furthered by
nurturing the child’s relationship with both parents, and a sustained course of conduct by one

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parent designed to interfere in the child’s relationship with the other casts serious doubt upon the
fitness of the offending party to be the custodial parent.”). Further, the court’s consideration of
the best-interests factors in §665 was devoid of analysis beyond a mere counting of them in favor
of one parent or the other. In making an award of parental rights and responsibilities, the factors
in §665 must be weighed, not simply counted.

For these reasons, we reverse the court’s final order on parental rights and responsibilities
and parent-child contact and remand for reconsideration of those issues in light of this opinion as
well as any change in circumstances that may have occurred while this matter was pending.

Reversed and remanded for further proceedings consistent with this opinion.

BY THE COURT:

Harold E. Eaton, Jr., Associate Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

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