NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal 

revision before publication in the Vermont Reports. Readers are requested to notify the Reporter 

of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 

State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made 

before this opinion goes to press.

2018 VT 67

No. 2017-270

State of Vermont Supreme Court

On Appeal from

 v. Superior Court, Bennington Unit,

Criminal Division

Liana M. Roy November Term, 2017

William D. Cohen, J.

Alexander Burke, Deputy State’s Attorney, Bennington, for Plaintiff-Appellant.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Davenport, Supr. J. (Ret.),

Specially Assigned

¶ 1. ROBINSON, J. The central question in this case is whether a parent may be 

convicted of custodial interference under 13 V.S.A. § 2451 for interfering with the custody of the 

Department for Children and Families (DCF) in the absence of a court order specifying the 

schedule and limitations of the parent’s visitation. Defendant Liana Roy was convicted of 

custodial interference for taking her four-year-old daughter, who was then in DCF custody, on a 

two-day trip out of the state without DCF’s permission. After the jury returned its verdict, the trial 

court granted defendant’s motion for a judgment of acquittal, concluding that, in the absence of a 

court order specifying defendant’s parent-child contact, defendant was not criminally liable. We 

hold that § 2451 does not require such an order and that the evidence of defendant’s knowing and 
2

egregious actions in derogation of DCF’s custodial rights support her conviction. Accordingly, 

we reverse.

¶ 2. The State presented the following evidence at trial. In October 2015, the family 

division of the superior court assigned conditional custody of defendant’s juvenile daughter D.B.1

to D.B.’s maternal grandfather in Bennington, Vermont. In January 2016, the court vacated this

conditional custody order and assigned temporary custody of D.B. to DCF. D.B.’s physical 

placement remained with grandfather. The order did not specify the terms of defendant’s parentchild contact. DCF assigned D.B.’s case management to a DCF social worker who had authority

to make decisions regarding family reunification, physical placement, medical treatment, and 

education.

¶ 3. The social worker was also in charge of establishing the schedule and framework

for defendant’s visits with D.B., which she coordinated with defendant. Visits were to be 

supervised by Easter Seals2at the state office building in Bennington on Tuesdays and Thursdays. 

Defendant could have weekend visits supervised by her mother (D.B.’s maternal grandmother), 

but these visits had to occur in Bennington.3 The social worker testified that she spoke with 

defendant on multiple occasions about these visitation rules; in particular she told defendant that 

she could not visit D.B. outside of these guidelines and could not bring D.B. out of the state without 

permission. 

¶ 4. In addition, there was a protocol for D.B.’s medical appointments. D.B. had a local 

pediatrician in Bennington. Defendant could attend these appointments; however, either

 

1

 D.B. was four-years-old at the time of the trial in June 2017. 

2

 DCF contracts with Easter Seals to facilitate and supervise visits. 

3 These visits typically occurred in hotel rooms rented by defendant and her mother.
3

grandfather or Easter Seals had to transport D.B. and supervise the medical appointments. The 

social worker testified that defendant knew of this arrangement. 

¶ 5. This case centers on an incident in March 2016. On the evening of Tuesday, March 

29, defendant and grandmother picked D.B. up at grandfather’s home and took her to 

grandmother’s home in Lanesborough, Massachusetts. Defendant sent the social worker a text 

message asking permission for this visit, but the social worker was on vacation and did not respond. 

On the morning of March 31, 2016, the social worker received a call from D.B.’s preschool that 

D.B. was absent. She called defendant, who stated that she had brought D.B. to her mother’s home

in Massachusetts because D.B. had pneumonia and needed medical treatment. The social worker 

requested that defendant bring D.B. to school by 11:00 a.m. After D.B. failed to arrive by 11:00

a.m., the social worker contacted defendant again and set a new deadline of 1:30 p.m. When D.B. 

failed to arrive at 1:30 p.m., the social worker called the Bennington Police, who contacted the 

Lanesborough Police to conduct a welfare check on D.B. The social worker eventually drove to 

Lanesborough and brought D.B. back to Bennington.4 

¶ 6. After the State rested its evidence at trial, defendant moved for a judgment of 

acquittal, V.R.Cr.P. 29, arguing that the evidence failed to demonstrate that she interfered with 

DCF’s custody to a degree necessary for 13 V.S.A. § 2451. At most, defendant argued, this was 

just “a visit gone bad.” The court denied this motion, holding that the State had established a prima 

facie case.

¶ 7. The defense then presented one witness, D.B.’s grandmother. The grandmother 

testified that the March 2016 visit was the last in a string of visits to Massachusetts stretching back 

to before DCF gained custody of D.B. On one such visit in February 2016, defendant and 

 

4

 The social worker testified that D.B. did not appear ill on the return trip to Vermont. 
4

grandmother took D.B. to Massachusetts for eight days. The grandmother testified that the social 

worker became aware of this visit after the fact and never told her to discontinue these trips.5 

¶ 8. The State called the social worker back to the stand, who said that she had been 

made aware of the visit to Massachusetts in late February 2016, and she had had several subsequent 

conversations with defendant regarding the visitation rules and the fact that she could not take D.B. 

out of the state without permission. 

¶ 9. The State then rested, and defendant renewed her motion for a judgment of 

acquittal, which the court denied. 

¶ 10. The court instructed the jury that the elements of custodial interference include: 

(1) defendant, (2) intentionally, (3) took a relative under the age of eighteen, (4) in a manner that 

unlawfully deprived the custodian of custody. Regarding the fourth element, the court instructed 

the jury:

A legal custodian is someone who has legal custody over a person. 

In this context, a person acts unlawfully if a person violates a 

specific court order. The parent must have been actually or 

constructively aware of that court order, and the specific terms. To 

deprive a legal custodian of custody means more than preventing the 

legal custodian from exercising physical control over the child. 

When considering when there’s a deprivation, you the jury may 

consider the amount of time the child was with the mother, or 

whether the mother attempted to hide the child from the legal 

custodian.

 Legal custody means the legal status created by an order of the 

court which invests the party of the following rights and 

responsibilities: the right to routine daily care and control of the 

child, and determine where and whom the child shall live; the 

authority to consent to major medical, psychiatric, or surgical 

treatment of the child; responsibilities to protect and supervise the 

child; and to provide the child with food, shelter, education, ordinary 

medical care, and the authority to make decisions which concern the 

child and have substantial legal significance.

 

 

5

 Record evidence shows that grandmother and the social worker spoke with some 

regularity. 
5

After deliberating briefly, the jury found defendant guilty.

¶ 11. Defendant subsequently moved to set aside the verdict, V.R.Cr.P. 29(c), or for a 

new trial, V.R.Cr.P. 33. She argued that “[o]ther than DCF’s request that [she] return her daughter 

to Vermont from Massachusetts, there is no particular part of the custody order that specifically 

puts [her] on notice that she [was] acting in violation of the authority of the legal custodian.” As 

such, defendant contended, the State had “failed to demonstrate that [she] had the requisite intent 

to deprive or interfere with DCF’s authority as a legal custodian.” 

¶ 12. The State responded by arguing that, considering the set schedule and rules for 

visits and medical appointments, there was enough evidence to persuade the jury “that defendant 

knew she could not take [D.B.] out of state without permission.” Given these facts, the State 

posited that it “[did] not matter that there was not a written order detailing visitation” and the 

evidence demonstrated defendant’s “intent to interfere with DCF’s rights.” 

¶ 13. The court issued a written decision in July 2017 granting defendant’s motion for a 

judgment of acquittal. The court noted that “the jury’s verdict was reasonable” based on the 

instructions given during the trial. But the court explained that it had erred in not instructing the 

jury that, to prove custodial interference when DCF is the custodian, the State must produce

evidence “of a court order . . . . detail[ing] the parent-child contact parameters.” The detailed order

provides the parent with notice of “when and where they are allowed to have contact with their 

children.” This “bright-line rule,” the court explained, separates mere “non-criminal interference 

with a custodian’s wishes” from an “unlawful deprivation of custody” and tracks § 2451’s original 

purpose—limiting parent-on-child kidnapping as a means to circumvent custody arrangements. 

The court found it dubious that the Legislature intended to impose felonious liability “based only 

on the word of the assigned social worker, even when there is a court order granting DCF custody.” 

Because the State failed to produce this type of court order during the trial, the court granted 

defendant’s motion for a judgment of acquittal. The State filed this timely appeal.
6

¶ 14. The State’s argument on appeal mirrors its argument below: namely, (1) the 

evidence demonstrated the elements of custodial interference; (2) the trial court erroneously added 

an element by requiring evidence of a court order specifying parent-child contact; and (3) the social 

worker provided adequate notice of the visitation guidelines—as evidenced by defendant calling 

to request permission for the trip to Massachusetts.6 

¶ 15. Defendant counters with an argument that largely tracks the reasoning in the trial 

court’s decision: (1) by requiring the State to produce an order detailing parent-child contact, “the 

court was not adding a new element, but finding that without it, the evidence is insufficient to 

prove the requisite element of intent”; and (2) a parent-child contact order is necessary to 

distinguish an act that merely prevents DCF as the legal custodian from exercising physical control 

over the child versus an act that unlawfully deprives custody. 

¶ 16. In deciding whether the evidence below was sufficient to convict defendant of 

custodial interference, “we review the evidence presented by the State viewing it in the light most 

favorable to the prosecution and excluding any modifying evidence, and determine whether that 

evidence sufficiently and fairly supports a finding of guilt beyond a reasonable doubt.” State v. 

Discola, 2018 VT 7, ¶ 18, __ Vt. __, __ A.3d __ (quotation omitted). “We examine both the 

strength and the quality of the evidence; evidence that gives rise to mere suspicion of guilt or

leaves guilt uncertain or dependent upon conjecture is insufficient.” Id. (quotation omitted). We 

review the trial court’s legal determinations without deference. State v. Webster, 2017 VT 98, ¶ 8, 

__ Vt. __, 179 A.3d 149.

¶ 17. Vermont’s custodial interference statute creates felony liability for “taking, enticing

or keeping a child from the child’s lawful custodian, knowingly, without a legal right to do so, 

 

6

 In addition, the State argues that the trial court’s decision violates the Equal Protection 

Clause of the U.S. Constitution because it results in a “a parent whose child is in DCF custody 

[enjoying] higher protections than a parent whose child is not in DCF custody.” As we reverse on 

other grounds, we do not reach this argument. 
7

when the person is a relative of the child and the child is less than 18 years old.” 13 V.S.A. 

§ 2451(a). Broken into its subcomponents, custodial interference entails: (1) an intentional 

(2) taking, enticing away, keeping, or withholding, that (3) unlawfully deprives the custodian of 

custody. See, e.g., State v. Wootten, 170 Vt. 485, 491, 756 A.2d 1222, 1226 (2000); State v. 

Doyen, 165 Vt. 43, 50, 676 A.2d 345, 348 (1996). Although the custodial interference statute was 

originally “intended to respond to the increasing occurrence of parental abduction of children as a 

means to settle a custody dispute or to permanently alter custody,” State v. Petruccelli, 170 Vt. 51, 

59, 743 A.2d 1062, 1068 (1999), we have previously held that DCF qualifies as a “custodian” 

under the statute if it has court-awarded custody. State v. O’Dell, 2007 VT 34, ¶ 8, 181 Vt. 475, 

924 A.2d 87 (explaining that “lawful custodian” for purposes of § 2451 “includes state agencies, 

such as DCF”).

¶ 18. Applying this statutory framework, we reject the trial court’s legal conclusion that 

a defendant can unlawfully deprive DCF of custody under the custodial interference statute only 

if a court order specifies the schedule and limitations on visitation. Such a requirement is not the 

only means of putting a defendant on notice of what might constitute a deprivation of DCF’s 

custody, is inconsistent with our past caselaw, and could undermine flexibility in visitation 

arrangements to the detriment of children in DCF custody and their parents. Moreover, we 

conclude that the evidence in this case was sufficient to demonstrate that defendant unlawfully 

deprived DCF of custody.

¶ 19. We disagree with the trial court’s conclusion that a court order detailing the 

conditions for when and how parent-child contact is to occur was necessary to provide defendant 

with notice of when her actions might violate § 2451. Although such a court order may be one 

means of proving that a defendant had the necessary notice, it is not the only means by which 

notice may be proven. This is a case in point. In January 2016, the superior court granted DCF 

temporary custody of D.B. As the trial court indicated, this custody order did not specify any 
8

schedule or parameters for parent-child contact. However, after the court entrusted temporary 

custody to DCF, DCF (through its social worker) provided clear notice to defendant through 

multiple conversations that visits needed to be supervised, that there was a specific protocol for 

D.B.’s medical appointments, and that defendant could not take D.B. out of the state without 

permission. Defendant demonstrated understanding of the rules laid out in these conversations 

when she attempted to ask for permission before taking D.B. on the trip to Massachusetts. Even 

without a court order expressly addressing visitation, the jury had ample evidence to conclude that 

defendant was on notice that taking D.B. out of the state for several days without permission would 

interfere with DCF’s custodial rights. 

¶ 20. Moreover, this Court has already upheld a custodial interference conviction in the 

absence of an order detailing the parameters of parent-child visitation. In O’Dell, DCF was the 

custodian through an emergency order and defendant refused to transfer her children to DCF for 

approximately two hours. 2007 VT 34, ¶¶ 2, 10. We held that:

[T]he family court, in the interests of the children’s welfare, issued 

an order transferring legal custody of the minor children to DCF. 

DCF was the “legal custodian” of the children when defendant 

refused to allow DCF workers to take the children into their 

protection. Thus, we disagree with defendant that it was legally 

impossible for her to commit custodial interference, and we affirm 

her conviction.

Id. ¶ 10. 

¶ 21. We reject the argument that this case is different because in O’Dell DCF had 

custody through an emergency care order under 33 V.S.A. § 5513(b),7 which usually lasts for only 

a short duration, whereas here DCF had custody through a temporary order under 33 V.S.A. 

§ 5308, which can last far longer and contemplates parent-child contact. See id. § 5308(e)(2)(A) 

(explaining that the order may establish parent-child contact). The trial court concluded that in a 

 

7

 33 V.S.A. § 5513(b) was repealed in 2007, effective 2009, and replaced with 33 V.S.A.

§ 5305.
9

case like this, where DCF has custody through a temporary order under § 5308, the Legislature 

could not have intended to impose felony liability based only on a social worker’s verbal 

instruction. 

¶ 22. We disagree. O’Dell supports the general proposition that the Legislature intended 

for DCF to be included in § 2451 as a “legal custodian.” 2007 VT 34, ¶ 10. Although defendant 

in this case had the right to visit D.B. under terms set by DCF through its social worker, within the 

parameters of the court’s order, she had no custody rights. Whether DCF has custody through an 

emergency order intended to last a short duration, or a temporary order that could last far longer, 

its custodial rights remain the same, and the effect of any custodial interference on both the child 

and the custodian remains the same. See id. ¶ 9 (explaining that “[t]he purpose of the custodial 

interference statute is to protect any custodian from deprivation of his or her rights” and it “is 

designed to protect children, who are victims in these cases and suffer detrimental effects from 

wrongful taking or withholding”). We see no reason to treat DCF’s instructions through its social 

worker as insufficient to establish the limitations on defendant’s visitation. 

¶ 23. A ruling to the contrary would constrain DCF’s flexibility in many cases to set a

visitation schedule that evolves to suit the needs of the child and the capabilities of the parent. 

Sometimes it may make sense for a court to delineate parent-child contact in the order granting 

DCF temporary custody, or to establish a minimum floor of visitation subject to increases in DCF’s 

discretion. But we are reluctant to adopt a rule that would require the family division to establish 

rigid visitation schedules in every case in which DCF has custody. Circumstances change. A

parent pursuing reunification may be able to engage in ever more frequent and less constrained 

visitation. A trial court can reasonably give DCF the flexibility to, for example, increase parental 

visits beyond a court-mandated floor without having to come back to court each time for court 

approval in the form of a written order—especially given the challenges of securing a timely 

response from the court. See In re A.S., 2016 VT 76, ¶ 11, 202 Vt. 415, 150 A.3d 197 (per curiam)
10

(noting “dramatic increase in the juvenile docket and a shortage of resources including judges, 

lawyers, guardians ad litem . . . and courtroom space”). 

¶ 24. Given our legal analysis, we conclude that the State presented sufficient evidence 

to support the jury’s verdict that defendant was guilty of custodial interference. Although we reject 

the trial court’s conclusion that the custodial interference statute only applies in cases in which a 

court order sets forth a specific visitation schedule, we share the trial court’s view that the felony 

statute is not broadly applicable to all manner of disputes between DCF, through its social workers, 

and parents of children in DCF custody. When DCF is a child’s legal custodian, a custodial 

interference charge against a child’s parent requires more than mere failure to strictly adhere to 

every limitation set by the DCF social worker, or by the court for that matter. The family division 

has ample tools within the juvenile docket to manage most instances of parental failure to faithfully 

meet the court’s or DCF’s restrictions concerning a parent’s engagement with a child in DCF 

custody. But the lesson of O’Dell is that in some instances a parent’s interference with DCF’s 

custodial responsibilities may be sufficiently egregious as to support prosecution for custodial 

interference.

¶ 25. In determining when a parent’s conduct is sufficiently egregious to support a 

custodial interference charge in instances where DCF is the temporary custodian, courts should 

consider the totality of the circumstances. Relevant considerations may include the duration of 

the interference, the frequency with which the charged parent has interfered with DCF’s custodial 

rights, the reason for the parent’s interference, evidence of the parent’s intent, and the impact of 

the interference on the safety and wellbeing of the child. In addition, since we share the trial 

court’s concerns that DCF should not have unlimited authority to set parameters that are 

enforceable through a custodial interference charge, rather than the ordinary processes available 

in the child protection docket, courts should also consider the nature of the restriction on contact 
11

violated by a parent, including the reason for the restriction and its significance in protecting the 

child’s well-being.

¶ 26. In this case, the uncontroverted evidence of defendant’s conduct meets the criteria 

for custodial inference under the factors described above. First, DCF’s requirement that defendant 

limit her visits with D.B. to those supervised visits prescribed by the schedule then in place (or 

otherwise specifically authorized by DCF), and that defendant not take D.B. out of the state for 

visits supervised by defendant’s mother, reflected an effort by DCF to ensure that it knew when 

D.B. was with defendant, and to keep D.B. within the jurisdiction. Second, in violation of these 

express restrictions, and knowing she did not have permission or legal authority to do so, defendant 

picked D.B. up outside of her scheduled visitation time; took her out of the state for two nights; 

failed to take D.B. to her regularly scheduled pre-school; and without good cause failed to return 

D.B. immediately upon DCF’s instruction, so that the DCF social worker had to personally travel 

to Massachusetts to retrieve the child. Cf. O’Dell, 2007 VT 34, ¶ 10 (upholding custodial 

interference conviction where defendant deprived DCF of custody for two hours). These 

circumstances collectively support the State’s charge in this case given the duration of the incident, 

defendant’s choice to take the child out of the state for overnight visits knowing that she was not 

supposed to do so, her persistence in continuing the interference even after she was warned, and 

the potential negative impact on the child. This was not a minor failure to adhere to the letter of 

DCF’s restrictions. Defendant did not simply return D.B. late from a scheduled visit or take her 

to a local playground outside of scheduled visitation hours. Defendant’s behavior here was 

sufficiently egregious to rise to the level of unlawfully depriving DCF of custody. See Petruccelli, 

170 Vt. at 59, 743 A.2d at 1068 (explaining that custodial interference demands more than 

“prevent[ing] the legal custodian from exercising physical control over the child” (quotation 

omitted)). As the trial court explained in its written decision, absent a requirement of a court order 

outlining parent-child contact, “the jury’s verdict was reasonable.”
12

¶ 27. For these reasons, we reverse the trial court’s grant of a judgment of acquittal and 

remand for an entry of judgment and sentencing.

Reversed and remanded.

FOR THE COURT:

Associate Justice