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.

2016 VT 106

No. 2015-444

Charles Groves Supreme Court

On Appeal from

 v. Superior Court, Windham Unit,

Family Division

Tasaday Green May Term, 2016

Katherine A. Hayes, J.

James A. Valente of Costello, Valente & Gentry, P.C., Brattleboro, for Plaintiff-Appellant.

Jean Anne Kiewel of Jean Anne Kiewel, PC, Brattleboro, for Defendant-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. DOOLEY, J. Father appeals an order from the Family Division, that awarded 

mother sole legal and physical parental rights and responsibilities but did not award father any 

parent-child contact at the time. The order contained a provision permitting father to file a motion 

for parent-child contact, even without any change in circumstances, within forty-five days after 

the pending criminal charges against him had been resolved. On appeal, father contends that: (1)

the court effectively terminated his parental rights without finding by clear and convincing 

evidence that doing so was in the best interests of the children; and (2) that the court erred in 

creating a prerequisite to the resumption of contact—that is, the resolution of the criminal 

charges—beyond his control. We affirm. 

¶ 2. Father filed a parentage action on March 19, 2015. On April 8, 2015, mother filed 

a stipulation of parentage and a motion that she be granted sole parental rights and responsibilities 
2

for the children and that father be denied any right to parent-child contact pursuant to 15 V.S.A. 

§ 665(f). A hearing on the parties’ parental rights and responsibilities was held on June and August 

2015. Both parties were present and represented by counsel. Because of the allegations made by 

the mother in her motion, both parties agreed that the mother should present her evidence first, and 

father would present his evidence second. 

¶ 3. According to the testimony of both parties, they met in the fall of 2005 and moved 

into an apartment together in January 2006, remaining together until February 28, 2015. Both 

parties stipulated that they were the biological parents of L.G., born in October 2008, and C.G., 

born in November 2006. 

¶ 4. Mother testified that she continued in the relationship because she was physically 

and psychologically coerced to do so and that she felt she had “no choice.” Mother testified that 

father repeatedly forced her to overconsume alcohol and attempted to force her to use marijuana, 

contrary to mother’s wishes. Mother stated that she was intimidated by father’s statement that he 

was mentally disabled and living in a halfway house. After father was forced to leave his place of 

residence, mother said she felt that she had to let him move into her apartment in Saratoga Springs. 

In testimony that the trial court characterized as credible, mother stated that father was often drunk 

during the first years of their acquaintance. According to mother, she repeatedly told father that 

she did not want a relationship with him, but he did not desist from his advances. When mother

attempted to call the police, father took the phone away from her. Mother further stated that father

boasted of assaulting his stepfather and of his status as a registered sex offender, which he received 

after having sex with a sixteen-year-old girl. 

¶ 5. Mother testified that her sexual relationship with father was wholly coerced and 

that father physically abused her from the beginning of their relationship, with a succession of 

assaults occurring between November 2005 and January 2006. Mother described an instance 

where she ran away from father, who caught her and knocked her down in the street, resulting in 
3

a large abrasion and scab. On one occasion, mother succeeded in fleeing to a friend’s apartment, 

but did not seek help from the police. On another occasion, father reportedly dragged mother

across a parking lot by her backpack. Finally, father once assaulted mother and locked her in a 

closet, where her screams were overheard by a neighbor who called the police. The trial court 

supplemented this testimony with its own observations, noting that father is physically much larger 

than mother, whom the court characterized as “slender and . . . frail,” while describing father as 

“muscular and strong.” 

¶ 6. Father pled guilty and was convicted of third-degree assault with intent to cause 

physical injury to mother on February 3, 2006. He was placed on probation for three years as a 

result of his conviction. C.G. was conceived at some point around the time of the conviction. 

¶ 7. Mother also outlined the high degree of control father exercised over her life: father

would walk her to work every day, spend time at the Saratoga Springs Starbucks coffee shop where 

she worked (until barred from doing so by coffee-shop management), and meet her there after 

work. Father rarely left mother alone, and mother did not go to the police or tell others about her 

physical abuse, testifying that she felt trapped. Mother was afraid that father might injure their 

children, and she stayed with him to protect the children. Mother also stated that she feared that 

father’s mother would take custody of the children, though she did not explain this sentiment. The 

court found that mother was the primary caregiver for the children, and had homeschooled them 

for their entire lives. 

¶ 8. In the spring of 2008, the parties moved to Brattleboro to be closer to mother’s 

family. Prior to the move, mother wrote a supportive letter about father addressed to father’s 

probation officer. Mother also met with the probation officer, because father needed the officer’s 

permission to leave New York State. Mother stated that her letter was not truthful and that she 

had written it only out of a desire to move to Vermont, where she had friends and family and 

believed she had a better chance of exiting the relationship. After the move, father began working 
4

at the Brattleboro Food Co-op, where he has worked consistently since. The court found father to 

be the primary breadwinner for the family since the move, noting that his earnings were put in a 

bank account to which mother did not have access, limiting her options for leaving the relationship. 

Mother also began attending classes at Greenfield Community College for the 2010 academic year, 

despite father’s disapproval. She attended classes for approximately three hours a day for three 

days a week, leaving the children in father’s care during this time. Mother testified that in the 

months before their separation, father was often too rough with C.G. when they played, hurting 

him when they wrestled and throwing him over his shoulder. Mother also began working as a 

tutor for up to 10 hours per week beginning in the spring of 2014. While not commuting, attending 

class, or tutoring, she spent all of her time with the children. This pattern continued until the 

parties separated in February 2015. 

¶ 9. Mother testified that on February 28, 2015, she was studying in her room when 

father attempted to coerce her into smoking marijuana. Mother resisted, and father became angry, 

yelling and throwing mother’s books against the wall, damaging it. Mother testified that L.G. was 

standing nearby when this happened and could have been injured. Mother attempted to call 911, 

but father took the phone away from her. L.G. attempted to call from another phone downstairs, 

but father followed and took that phone away, throwing it down on the floor and breaking it. 

Mother testified that both children shouted at father to leave. Father eventually did leave, staying 

for several days with a friend, and then returned, after which mother and children went to stay with 

the children’s maternal grandmother. 

¶ 10. After leaving the home, mother obtained a temporary relief-from-abuse (RFA)

order against father, and the parties agreed to a “no findings” final RFA order on March 18, 2015. 

That order gave mother parental rights and responsibilities and barred father from having contact 

with the children, pending a subsequent parentage action. 
5

¶ 11. As a result of mother’s allegations of abuse arising from the incident on February 

28, father was arraigned on April 8, 2015, on charges of domestic assault and interference with 

emergency services. Father was barred from having any contact with mother or children as part 

of the conditions of release in that criminal case. Due to father’s prior conviction for assault in 

New York, the first count of domestic assault was amended to a felony charge of aggravated 

domestic assault, second degree. On August 24, 2015, the State filed additional charges in the 

same case alleging aggravated sexual assault, based on repeated, nonconsensual acts between 2011

and 2015 and a violation of an abuse prevention order on July 21, 2015. Father was arraigned on 

the new charges on September 17, 2015. At the time of the Family Division hearings in this matter, 

father’s criminal charges were still pending with a hearing set for January 21, 2016, and conditions 

of relief in the RFA order remained in effect. In order to preserve his Fifth Amendment rights in 

his criminal case, father ended testimony in the Family Division after hearing of the new felony 

charges, and his testimony was struck from the record and not considered in the Family Division’s

findings. 

¶ 12. According to the docket entries in the criminal case, father’s criminal charges were 

resolved on May 12, 2016.1 He pled guilty to one misdemeanor count of domestic assault, one 

misdemeanor count of interference with access to emergency services, and one felony count of 

second or subsequent violation of an abuse prevention order. The State dismissed the felony 

charge of aggravated, repeated sexual assault. Father was sentenced to serve zero to twelve months 

all suspended on the misdemeanors and one to three years suspended for the felony and was placed 

on probation under standard and special conditions, with the probation warrant set to expire on 

May 20, 2020. 

 

1

 The events recorded in this paragraph occurred after the order on appeal in this case. We 

have not considered the outcome of the criminal case in resolving the issues before us.
6

¶ 13. Photographic evidence entered in the superior court shows father, mother, and the 

children appearing “happy, comfortable and contented.” Mother acknowledged that over the ten

years of their relationship, she had repeatedly told father that she loved him and had given him 

notes with loving statements, but testified that these instances were all lies told only to protect 

herself and the children. 

¶ 14. Neither child was in counseling at the time of the final Family Division hearing, 

although mother testified that she had intended to get both children into counseling after the 

separation. At the time of the Family Division hearings, both children were on the waiting list for 

counselors at the local community mental health provider, and mother had also contacted a private 

therapist recommended by the children’s attorney. 

¶ 15. The court began its analysis by noting that in 2014, the Legislature added 

subsection (f) to 15 V.S.A. § 665, which highlights the factors a court must consider in crafting a 

parental rights and responsibilities order. Subsection (f) was intended to address the state’s 

“compelling interest in not forcing a victim of sexual assault or sexual exploitation to continue an

ongoing relationship with the perpetrator of the abuse” and permits a court to bar a parent from 

having any contact with his or her children if it finds: by clear and convincing evidence, that the 

child was conceived through sexual assault and by a preponderance of the evidence, that such an 

order is in the best interests of the child. 15 V.S.A. § 665(f)(2). The court acknowledged mother’s 

request that the court apply this standard to preclude father from having any contact with the 

children. However, the court ultimately concluded that although mother had provided significant 

evidence that “most, if not all, of the sexual acts engaged in between these parties were probably 

non-consensual,” the court was nevertheless “unable to find that [mother] ha[d] proved by clear 

and convincing evidence that the children were conceived as a result of sexual assault.” 

¶ 16. Consequently, the court turned to the best interests of the child factors itemized by 

§ 665(b). The court determined that: mother is better able to meet the children’s physical, 
7

emotional, and developmental needs; the children are well-adjusted to their home and community; 

mother has been and continues to be the children’s primary caregiver and; there was no evidence 

of other close relationships that needed to be considered. The court also found that while mother

did not wish to foster a positive relationship between the children and father, her opposition was 

based on “legitimate concerns” stemming from father’s history of alcohol and drug abuse; his 

physical, emotional, and sexual abuse of mother; and his violent threats in the children’s presence. 

Accordingly, the court found that the parties could not share legal or physical rights as they were 

unable to communicate effectively with one another. Finally, because father was convicted of 

domestic assault against mother less than ten years prior to the hearing, the court considered 15 

V.S.A. § 665a(a), which allows for the perpetrator of domestic violence to have parent-child 

contact “if the court finds that adequate provision can be made for the safety of the child and the 

parent who is a victim of domestic violence.” 

¶ 17. Recognizing that the court had “heard only [mother’s] side of the history of the 

relationship,” as father’s pending felony charges meant he was unable to testify without waiving 

his rights against self-incrimination, the court declined to make a final, unmodifiable order. The 

court issued a temporary parental rights order awarding mother sole legal and physical parental 

rights and responsibilities with no provision for parent-child contact with father. The court’s 

reasons for denying parent-child contact were as follows:

[T]he court is persuaded that the existing limitations on [father’s]

contact with the children, barring him from all contact with them, 

are in the children’s best interests, at least until the felony charges 

of aggravated domestic assault and sexual assault against [father]

have been resolved. The nature of the charges themselves supports 

the continuation of a requirement that [father] have no contact with 

the children. Also, [L.G.] is an eye witness in the domestic assault 

case, and it would potentially create significant emotional distress 

for her if she were regularly communicating with [father] and also 

being forced to testify about his abuse in court. [C.G.] was also 

present in the home at the time of the domestic assault, and may be 

a witness. [Father] likely faces potentially long periods of 

incarceration and extensive programming and rehabilitation 

requirements if convicted of either of the felony offenses. If [father]
8

is convicted, the court concludes that it will make more sense for the 

children’s relationship with [father] to be reestablished, if it can be, 

with the assistance of such programming and rehabilitation efforts, 

in order to improve the chances of safe, appropriate resumption of 

contact, after [father] has been screened and assessed, and if 

necessary, has accepted responsibility for his actions, and gotten 

substance abuse treatment and counseling about how to avoid 

further violence and controlling behavior. If [father] is not 

convicted of any criminal conduct, the court may still order him to 

complete counseling to protect the children, under 15 V.S.A. § 

665a(b), as noted above. The court believes that although [father]

and the children might benefit emotionally in the short term from 

reestablishing a connection now, and that it might be possible for 

limited, safe, supervised contact to occur through the local 

supervised parent-child contact program, nonetheless the risk that 

this relationship will be cut off by the criminal process is very 

significant, and the harm that would cause to the children after 

renewing the relationship outweighs its benefit.

We note that at the time of this decision, parent-child contact was also prohibited by the abuse 

prevention order and by the conditions of defendant’s release imposed in the criminal case.

¶ 18. The court order provided that within forty-five days of the resolution of his criminal 

charges and imposition of his sentence, father could file a motion for contact and could seek an 

additional hearing to demonstrate contact is in the best interests of the children. It also provided 

that if father did not file such a motion, he would have no right to parent-child contact except after 

a motion to modify and a showing of real, substantial, and unanticipated change in circumstances 

and that such contact would be in the best interests of the children. This appeal followed. 

¶ 19. On appeal, father raises two issues2for review: whether the court erred in 

terminating his parental rights without finding by clear and convincing evidence that the best 

interests of the children required termination, and whether the court erred in requiring resolution 

of his pending criminal charges and instituting future conditions father needed to meet in order to 

resume contact. We affirm. 

 

2 Father has not challenged the court order granting mother sole physical and legal rights 

and responsibilities for the children, and we do not consider that part of the decision and order.
9

¶ 20. Father relies for his first point on Mullin v. Phelps, in which we held that a court 

may not terminate parent-child contact “absent clear and convincing evidence that the best interests 

of the child require such action.” 162 Vt. 250, 267, 647 A.2d 714, 724 (1994); see also Knutsen 

v. Cegalis, 2016 VT 2, ¶ 38 __ Vt. __, 137 A.3d 374 (same). Father argues that the court acted on 

allegations that he had abused mother almost ten years prior as well as a “single incident wherein 

he yelled, had thrown some books into a wall, then taken a phone held by his daughter and broken 

it” despite making no finding as to whether these allegations had been proven by clear and 

convincing evidence. Father contends that the record evidence of writings, photographs, and 

testimony from other parties showing a “healthy and constructive relationship” between father and 

his children was “merely discussed” in the court’s findings of fact with no indication of how it was 

weighed in relation to mother’s testimony. He maintains that the trial court disregarded evidence 

from his witnesses and from the guardian ad litem and attorney that supervised contact would not 

harm the children, that he had been a good father, and that he had been the primary caregiver for 

three days a week before the parties ended their relationship and provided “minimal explanation” 

as to why termination was in the children’s best interests. 

¶ 21. Father’s arguments would have more force if the court order he appealed was a 

final order—the situation in both Mullin and Knutsen. Instead, the order was temporarily put in 

place, as the court explained, until the resolution of defendant’s criminal case.3 Temporary orders 

 

3 We acknowledge that the trial court described the order in question as a final order. 

However, because the trial court provided that the parent-child contact provision in the order could 

be modified without a showing of a real, substantial, and unanticipated change of circumstances 

up to forty-five days after resolution of the criminal charges, it was functionally a temporary order 

until expiration of the forty-five day period after resolution of the criminal charges. At that time, 

in the absence of a motion by father, and without further hearing, the order would become final. 

For that reason, we have determined father may appeal this case. See Iannarone v. Limoggio, 2011 

VT 91, ¶ 17, 190 Vt. 272, 30 A.3d 655 (noting liberality of finality standard in family cases, as 

“we have routinely allowed appeals from the disposition of post-judgment motions in family 

cases”, and practice is “consistent with the law from other jurisdictions,” where exception to rules 

on appealable judgments have been recognized with regard to “ongoing family court cases” 

(quoting Carlisle v. One (1) Boat, 195 P.3d 1177, 1186 (Haw. 2008)); see also Boisvert v. 

Harrington, 173 Vt. 285, 287, 796 A.2d 1102, 1105 (2002) (addressing appeal from superior court 
10

in divorce and parentage actions are specifically authorized by 15 V.S.A. § 594a.4 A temporary 

order “is designed to provide quick temporary to the parties in between the initiation of the divorce 

proceeding and the final decree.” Frazer v. Olson, 2015 VT 84, ¶ 16, __ Vt. __, 127 A.3d 86. 

¶ 22. Mullin established the clear and convincing evidence standard because the award 

of custody to the mother, with no right of parent-child contact in the father, “effectively terminated 

the father’s parental rights.” 162 Vt. at 263, 647 A.2d at 722. Thus, we applied the due process 

analysis in Santosky v. Kramer, 455 U.S. 745, 747-48 (1982), where the United States Supreme 

Court held a state could not obtain an order terminating parental rights unless it proves by clear 

and convincing evidence that such termination was in the best interest of the child. Mullin, 162 

Vt. at 265-67, 647 A.2d at 723-24. In reaching this decision, we recognized that we had held in 

In re A.D., 143 Vt. 432, 435-36, 467 A.2d 121, 123-24 (1983) that due process as found in 

Santosky did not require an elevated proof standard in child-in-need-of-care-or-supervision

CHINS cases because “parental rights are only temporarily curtailed.” Id. at 265, 467 A.2d at 723. 

Recently, we applied A.D. in In re B.C. in which a parent challenged the suspension of parentchild contact with a child who had been adjudicated CHINS under a statute that allowed such a 

suspension where necessary for the protection of the physical safety or emotional well-being of 

the child. 2013 VT 58, ¶¶ 16-17, 194 Vt. 391, 81 A.3d 1152. Based on A.D., we held that this 

provision “clearly contemplates a temporary deprivation of rights, and therefore may be satisfied 

 

order denying motion to terminate guardianship even though “there is no final judgment in the 

case” as Court has discretion to consider cases where “dismissal would most likely result in another 

appeal after remand, the merits of the question of law were fully briefed and argued, and the Court 

has expended valuable time on the case” (quotation omitted)); Matthews v. Riley, 162 Vt. 401,

404 n.2, 649 A.2d 231, 234 n.2 (1994) (allowing appeal from interim order rather than awaiting 

issuance of final order as further proceedings “would not develop controlling questions of law, 

further delay might prove detrimental to the child’s best interest, and judicial economy would best 

be served by hearing the appeal”). 

4 Section 594a applies specifically to divorce proceedings. We have applied divorce 

provisions with respect to rights to children to parentage actions. See Heffernan v. Harbeson, 2004 

VT 98, ¶¶ 9-11, 177 Vt. 239, 861 A.2d 1149.
11

by a preponderance of the evidence showing that a suspension of contact is necessary for the 

protection of the child’s physical or emotional safety.” Id. ¶ 16. We distinguished Mullin because 

the suspension was temporary and did not “permanently cut off [the parent’s] . . . parental rights.” 

Id. ¶ 17. For the same reason that the holding of Mullin did not apply to B.C., it does not apply 

here.

¶ 23. In answer to father’s second claim on appeal, we conclude that the reasons for 

which the court temporarily cut off father’s parent-child contact fully supported the decision, 

including the provision delaying resolution of father’s parent-child contact until after the criminal 

proceeding was resolved. On this point, we are applying a deferential standard of review. Because 

of “its unique position to assess the credibility of witnesses and weigh the evidence, we will not 

set aside the [family] court’s findings if supported by the evidence, nor its conclusions if supported 

by the findings.” Begins v. Begins, 168 Vt. 298, 301, 721 A.2d 469, 471 (1998) (citations omitted). 

Granting, modifying or denying parent-child contact lies “within the discretion of the family court, 

and we will not reverse the court’s decision unless its discretion was exercised upon unfounded 

considerations or to an extent clearly unreasonable upon the facts presented.” DeSantis v. Pegues, 

2011 VT 114, ¶ 26, 190 Vt. 457, 35 A.3d 152 (quotation omitted). 

¶ 24. The reasons given by the trial court, quoted above, supported the court’s parentchild contact decision. The court could not receive a full evidentiary presentation on which to 

make a fully informed decision until the criminal case was resolved. We particularly note the 

court’s concern about the interrelationship of this case and the criminal proceeding and the 

presence of an order from the criminal division prohibiting father from contacting mother and the 

children.

¶ 25. This case also raised a unique situation because of the nature of the charges against 

father. Under 15 V.S.A. § 665a(a), enacted in 2008, the allowance of parent-child contact to a 

parent may be specially regulated if “within the prior ten years” the parent is convicted of domestic 
12

assault or aggravated domestic assault against the other parent or found to have committed abuse 

against a family or household member if “adequate provision can be made for the safety of the 

child and the parent who is a victim of abuse.” Seven specific conditions are authorized including 

ordering the perpetrator of domestic violence to participate in a program for perpetrators or other 

counseling as a condition of visitation; ordering where drugs or alcohol are involved in the abuse 

the perpetrator not to be under the influence during the visitation or during the preceding 24 hours; 

and imposing any other condition appropriate to provide for the safety of the child, the victim of 

domestic violence, or another family or household member. Id. §§ 665a(b)(3),(4) & (6). The 

statute would apply if father was convicted of the charges against him.5 The trial court was rightly 

concerned that the application of the statute would change the nature and content of any parentchild contact order and would not be known until the criminal case reached its conclusion.

¶ 26. In affirming the temporary order despite the absence of a right for father to have 

parent-child contact, we recognize that this is not the only way the court might have proceeded to 

protect father’s right of self-incrimination in the criminal case but obtain the needed evidence to 

fully resolve the parentage proceeding. Father could have sought Begins immunity. In State v. 

Begins, we held that when a defendant is charged with misconduct that constitutes the basis for 

both revocation of probation and an independent criminal charge, a trial court has two options. 

147 Vt. 295, 514 A.2d 719 (1986). The court can either continue the probation hearing until after 

 

5 The court found that the statute applied at the time of its decision because the 2006 New 

York assault conviction was a “domestic assault” conviction under § 665a(a) and occurred within 

ten years of the decision. We infer from the court’s observations about restrictive conditions in a 

final parent-child contact order after the resolution of the criminal case that the court believed that 

§ 665a(a) was unlikely to apply because the passage of time put the New York conviction beyond 

the ten-year trigger from the date of the final order. There is an open question whether the statute 

applied as a result of the abuse prevention order because the order made no finding of abuse instead 

providing that “findings waived by stipulation of the parties.”

The parties have not briefed or argued the interpretation of § 665a in this case. Thus, we 

accept for purposes of this opinion the implied conclusion that the statute would apply to the final 

parent-child contact order only if father were convicted of domestic assault from the charges 

pending against him. 
13

the trial, or if it must hold the hearing before the trial, thereby forcing a defendant to choose 

between testifying at the hearing and remaining silent so as to avoid self-incrimination, a 

defendant’s testimony at the revocation hearing will be “subject to an exclusionary rule” modeled 

on the federal use and fruits immunity rule. Id. at 299, 514 A.2d at 722; see Kastigar v. United 

States, 406 U.S. 441, 462 (1972) (requiring grant of amnesty where government “coerces a 

defendant into incriminating himself”). Begins thus provides that when a witness in a proceeding 

asserts his or her Fifth Amendment privilege, the witness may be compelled to testify but “will be 

protected by use and fruits immunity”; to that end, the State “may not use such testimony as a 

springboard to a future criminal proceeding” and the witness “may object to the introduction of 

any evidence taken or derived from his or her testimony.” In re Hill, 149 Vt. 431, 439-40, 545 

A.2d 1019, 1025 (1988). We have since applied Begins at sentencing hearings to admissions of 

uncharged crimes and acknowledgements of culpability when mandated as a condition of a 

probation. See State v. Drake, 150 Vt. 235, 237, 552 A.2d 780, 781 (1988) (uncharged crimes); 

State v. Loveland, 165 Vt. 418, 427, 684 A.2d 272, 278 (1996) (sex offender acknowledgements 

of culpability). 

¶ 27. While we have never explicitly extended Begins to testimony proffered in family 

division proceedings, such a procedure could be well-suited to cases like the present one. As in 

Begins, and the subsequent cases, the State’s ability to use father’s testimony in the family division 

created an “inevitable tension” between two fundamental rights: the right to remain silent at trial 

and the right to contact with one’s child. Begins, 147 Vt. at 298, 514 A.2d at 722; see Santosky, 

455 U.S. at 753 (noting that natural parents have a “fundamental liberty interest” in custody of 

their children). A lesser burden of proof is required by family courts to revoke or limit parental 

rights. Moreover, we believe that the first solution proposed in Begins—that of postponing the 

non-criminal hearing until the criminal trial—is undesirable for family proceedings involving 

parental rights and responsibilities and parent-child contact, as we favor the resolution of custody 
14

cases as quickly as possible in order to provide children with stability and security. See, e.g.,

J.D.S. v. Franks, 893 P.2d 732, 735 (Ariz. 1995) (noting “need for a quick resolution” in cases 

involving custody and placement of young children). Similarly, a family proceedings judicial 

system wherein parents are afraid to testify out of fear of criminal charges will preclude courts 

from gathering the evidence necessary to make informed child custody determinations. 

¶ 28. In affirming the order here, we recognize that immunity is not an acceptable answer 

in all cases. For reasons discussed above, the court found it important to know the resolution of 

the criminal case in crafting a final order with respect to parent-child contact so the issuance of a 

temporary order, to be followed by a permanent order after the criminal case was resolved was 

appropriate. While Begins immunity might have allowed for more evidence in this proceeding, it 

may have had no effect on the outcome given the presence of the no-contact order from the 

criminal division and concerns about the children as witnesses. Thus, while use immunity may be 

a tool for a parent or the court, we see it only as an option to be considered, not a requirement.

¶ 29. We find no error in requiring father to make a separate motion for parent-child 

contact and discussing some of the provisions that may be in a parent-child contact order if such 

contact were authorized after the resolution of the criminal case. Because father had the 

information to determine that the criminal case was resolved, and the consequences of that 

resolution, it was reasonable for him to have the burden of filing a motion to bring parent-child 

contact again before the court. In seeking a permanent order on parent-child contact, he did not 

have to show a change of circumstances and was not bound by the findings that supported the 

temporary order.6 Frazer, 2015 VT 84, ¶ 16.

 

6 We recognize that if father did nothing at the conclusion of the criminal case the 

temporary order denying parent-child contact would become permanent even though there was no 

finding by clear and convincing evidence that the denial of such contact was in the best interest of 

the children. This would, however, be equivalent to the situation where he never sought parentchild contact at all. If his failure to seek parent-child contact was as a result of a prohibition of 

such contact in his sentence in the criminal case, he would have grounds to show change of 

circumstances once the legal prohibition expired.
15

¶ 30. Nor do we find error in the court’s observations on what may be included in a 

parent-child contact order depending upon whether father was convicted of the charges against 

him. As we stated in DeSantis, 2011 VT 114, ¶ 38, “the passage of time without any contact, 

coupled with the allegations of abuse and the effect such allegations had on [a child’s] wellbeing, 

required the court to reexamine what level of parent-child contact would most benefit [the child].”

We view the court’s words as observations rather than a binding future order. The observations 

noted that if father was convicted, parent-child contact could be restricted “to improve the chances 

of a safe, appropriate resumption of contact” and suggested some of the possible restrictions 

consistent with 15 V.S.A. § 665a. They also noted the court’s power even if father was not 

convicted. These observations were made without knowledge of the evidence and circumstances 

that would be before it at a hearing on the final order with respect to parent-child contact. We do 

not view the observations as binding the court to any parent-child contact order, including binding 

it to allowing parent-child contact, based on the evidence and arguments at the final hearing, and 

the findings based on the evidence and findings. Nor do we view the court’s observations as 

restricting the evidence either party could present, or the arguments they could make, at the 

hearing.

Affirmed.

FOR THE COURT:

Associate Justice