Children should not lose the shared care of a safe and involved parent simply because the adults cannot agree.
Yet Vermont law prevents family courts from ordering shared parental rights and responsibilities unless both parents consent—even when both parents are fit, both have played substantial caregiving roles, and sharing reflects the life the child has actually known.
Did You Know?
Vermont courts cannot order shared custody unless both parents agree.
If either parent refuses, the court must place parental rights and responsibilities primarily or solely with one parent.
That result does not require a finding that the other parent is abusive, neglectful, or unfit.
What Vermont Law Says
Vermont uses the term parental rights and responsibilities for what is commonly called child custody.
These responsibilities include:
- Legal responsibility: authority over education, medical and dental care, religion, travel, and other major decisions.
- Physical responsibility: responsibility for the child’s daily care, living arrangements, and routine decisions.
Both legal and physical responsibility may be shared—but only when the parents agree.
Under 15 V.S.A. § 665:
“When the parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent.”
The court may determine which parent should receive those responsibilities, but it cannot decide that continued sharing would be best for the child and order the parents to share.
One Parent Can Prevent a Shared Order
The phrase “when the parents cannot agree” may sound as though both parents have proved incapable of sharing responsibility.
That is not necessarily what it means.
The parents may have shared parenting successfully for years. Both may have provided daily care. One may have stayed home to raise the child. The child may be securely attached to both parents and accustomed to both playing substantial roles.
But once either parent withholds agreement, the court loses the authority to preserve shared parental rights and responsibilities.
One parent’s refusal therefore operates as a veto.
The court must move from a shared structure to one in which parental rights and responsibilities are held primarily or solely by one parent—even when no court has found that sharing harmed the child.
What the Child Can Lose
An award of primary or sole parental rights and responsibilities does not necessarily end the child’s contact with the other parent. But it can fundamentally alter that parent’s role.
The child may lose:
- The continuation of an established shared-care arrangement
- The equal involvement of both parents in major decisions
- Time and daily life with one parent
- Stability across both homes
- Access to relationships and traditions connected to one side of the family
- The sense that both parents remain fully responsible for raising them
The legal structure changes one parent from a shared caregiver into the parent who has contact with the child but does not hold the same responsibility or authority.
For a child raised by two active caregivers, that can be a profound disruption.
The Law Can Reward Refusal Instead of Cooperation
The current statute does more than respond to parental conflict. It can shape how parents behave once litigation begins.
If shared responsibility is available only by agreement, a parent seeking primary control may gain an advantage by refusing to agree. Cooperation becomes risky because one parent may obtain primary status while the other loses the shared role they previously held.
That structure can encourage parents to:
- Compete for primary status rather than compromise
- Use noncooperation strategically
- Destabilize an existing shared arrangement
- Prolong litigation
- Exhaust family resources that should instead support the child
Justice Marilyn Skoglund identified this problem in Cabot v. Cabot, warning that the statute:
“provides further incentive for divorcing parents who are primary caregivers to refuse to cooperate with their spouses on sharing parental rights and responsibilities.”
She concluded that this incentive undermined the policy of maximizing children’s continuing physical and emotional contact with both parents after divorce.
The statutory problem and its practical consequences are examined further in our 15 V.S.A. § 665 Issue Brief.
Shared Parenting Does Not Mean Automatic 50/50 Custody
Reform should not require the same schedule in every family.
Children have different ages, needs, schools, activities, family histories, and relationships. Some cases involve abuse, neglect, coercive control, substance misuse, or other genuine safety concerns. Courts must retain the authority to protect children and parents from harm.
A rebuttable presumption of shared parenting would create a starting point—not an inflexible outcome.
It would allow courts to begin with the principle that children generally benefit from the continuing care and responsibility of both safe and capable parents, while permitting a different arrangement when the evidence shows that sharing would not serve the child’s best interests.
What Reform Should Accomplish
Balanced legislation should:
- Permit courts to order shared parental rights and responsibilities without requiring both parents’ consent
- Begin with a rebuttable presumption favoring the substantial involvement of both safe and capable parents
- Consider the child’s actual caregiving history and established relationships
- Prevent a parent from benefiting from conflict or noncooperation that the parent created
- Require significant restrictions on a parent’s role to be supported by evidence and specific findings
- Provide clear protections where abuse or genuine safety risks are present
- Allow parenting schedules to be tailored to the individual child
A Child-Centered Starting Point
Disagreement between parents should not automatically require the law to create a primary parent and a secondary parent.
The central question should be what arrangement will best protect the child’s safety, stability, continuity, and important family relationships.
Vermont courts should have the authority to preserve shared parenting when the evidence shows that it is safe and serves the child—not be prohibited from doing so because one parent refuses to agree.