The issue in plain language
Vermont law is not putting kids first.
Vermont law says a child’s best interests are paramount. It also presumes shared custody is in the child’s best interests when parents agree. But if either parent refuses, the judge cannot even consider shared custody—regardless of what the child-specific evidence shows.
That rule puts one parent’s custody preference ahead of the child’s best interests, creates an incentive not to cooperate, and can unnecessarily sever safe family relationships. Courts should be able to consider every safe, workable arrangement and decide based on the evidence.
THREE contradictionS
One parent’s preference comes before the child’s best interests.
In Vermont, either parent can prevent the court from considering shared custody for a child simply by withholding agreement. That rule conflicts with the child’s best interests, the State’s own policy, and the constitutional rights it protects elsewhere.
1. The paramount standard
✓ The Rule
The child’s best interests stand above every competing consideration.
“The court’s paramount consideration in awarding parental rights and responsibilities is the best interests of the child.”
Begins v. Begins, 168 Vt. 298, 301 (1998)
VS
❌ The Parental Veto
The statute gives one parent’s refusal priority.
When either parent withholds agreement, § 665(a) removes shared or divided responsibility from the court’s options. The judge cannot decide whether that arrangement would best serve the child.
On that threshold question, the parent’s preference—not the child’s best interests—controls.
2. Vermont’s shared-responsibility policy
✓ The Rule
The law presumes sharing serves the child’s best interests.
Vermont presumes agreed sharing is in the child’s best interests and favors maximum continuing contact with both parents unless harm is likely.
VS
❌ The Parental Veto
One parent’s refusal is treated as if it changes what serves the child.
The child’s needs, circumstances, and family history do not change when a parent withholds agreement. Yet § 665(a) makes that refusal decisive without requiring any finding that sharing would be unsafe, unworkable, or contrary to the child’s best interests.
3. The constitutional double standard
✓ The Rule
Parental custody is a fundamental liberty interest.
“The interest of parents in the care, custody, and control of their children … is perhaps the oldest of the fundamental liberty interests.”
Troxel v. Granville, 530 U.S. 57, 65 (2000)
In grandparent-contact cases, a court may interfere with a fit parent’s liberty interest in the care, custody, and control of the child only upon compelling circumstances, such as unfitness or significant harm to the child.
VS
❌ The Parental Veto
No harm. No unfitness. No reason required.
Under § 665(a), either parent’s refusal forces the court to choose: one receives primary or sole custody, while the other loses shared custody and the exercise of that liberty interest.
The objecting parent need not allege, prove, or explain a reason. Only after shared custody has been eliminated does the court apply the child’s best interests to decide which parent receives authority.
A parental veto should not outrank the child’s best interests, Vermont’s own policy, or fundamental parental liberty.
Vermont law can turn cooperation into a strategic risk.
When refusing to share can improve a parent’s position, the law creates an inverted incentive: it rewards the very disagreement it then treats as proof in itself that shared parenting cannot work.
✓ Cooperation
Can put a parent at a disadvantage
1 · Custody status
Agreement means giving up the immediate opportunity to seek primary or sole custody.
2 · Decision-making
Shared authority requires communication and compromise.
3 · Financial position
Shared status may provide less leverage involving child support, the family home, and related benefits.
4 · later disputes
The approved shared arrangement becomes the baseline in later disputes.
VS
❌ Refusal
Can be rewarded
1 · Custody status
Refusal preserves the possibility of receiving primary or sole custody while the other parent becomes secondary.
2 · Decision-making
Primary or sole authority can allow one parent to make major choices without shared consent.
3 · Financial position
Primary status may provide greater leverage involving child support, the family home, and related benefits.
4 · later disputes
Primary status becomes the baseline in later disputes and modification proceedings.
The costs fall on children and families.
Connection
Less time and fewer shared relationships
Conflict
More reason to display it and assign blame
Resources
More legal expense; less left for children
1997
A Vermont Supreme Court warning
Justice Marilyn Skoglund identifies the law’s incentive to refuse cooperation.
2012
A reform proposal
Michelle A. Tarnelli explains how the same framework promotes adversarial behavior and fails contemporary families.
NOW
The restriction remains
Nearly three decades later, one parent’s objection still removes shared custody.
Read the visual explainer: Why Vermont custody law rewards disagreement →
The national context
Vermont stands alone.
Other states allow courts to consider some form of shared legal custody, shared physical custody or both when the evidence supports it. Vermont removes both categories upon one parent’s objection.
49
states allow courts to consider some form of shared custody
Courts can weigh the child’s needs, the parents’ history and safety evidence before deciding what arrangement fits.
1
state lets one parent veto
In Vermont, one parent’s refusal to agree ends the inquiry into shared legal and physical custody.
Families evolved. The custody law did not.
Vermont modernized family equality—except after separation.
Vermont recognizes that families take many forms. A Reagan-era custody restriction still pushes those families toward one primary caregiver and one secondary parent.
2000
Civil unions
Vermont expanded legal recognition for same-sex couples.
2009
Marriage equality
Marriage law caught up with Vermont families.
2018
parentage act
Parentage law recognized more ways families are formed.
NOW
Modernize Custody
Custody law should reflect the families Vermont already recognizes.
The principle is family continuity
Children should not unnecessarily lose the people they love.
That principle applies when parents separate—and when a parent dies.
After separation
A safe and involved parent brings care, guidance, family history, cultural identity and relationships with siblings and extended family.
After a parent dies
Safe relatives can preserve memories, traditions and the child’s continuing bond with the parent who died—without displacing the surviving parent’s authority.
Go deeper
Explore the visual explainers.
Short, sourced guides make each part of the case easy to understand, print and share.
1-page visual explainer
Two families. Two legal outcomes.
See how one river—and one state line—changes the options available to a child’s family.
1-page visual explainer
Why Vermont is a national outlier.
Compare Vermont’s complete parental veto with the options courts retain in every other state.
2-page visual guide
Eight myths about shared custody.
Separate common assumptions from what the law, research and real-world experience show.
The time has come