Court says child case belongs in Canada
The Associated Press | August 24,2008
MONTPELIER — A divided Vermont Supreme Court says a Canadian court should have jurisdiction in a long-running international child custody case.
The 3-2 decision issued Friday reverses a 2002 ruling by Judge John Wesley that gave custody of a son born to a Bennington couple to the father and said the Canadian court was right to give the mother custody.
"This is one of those rare cases where the best interests of the child must take precedence over the policy goal of deterring parental wrongdoing," said the majority decision, written by Justice Marilyn Skoglund. "Canada was the more appropriate forum to resolve this matter."
But a dissent written by Justice Brian Burgess said the ruling sent the wrong message.
"The majority rewards the kidnapper, and encourages others, by equating unlawful frustration of family court jurisdiction with the best interests of the child," Burgess said.
The couple, Michelle Favreau and Keith Miller, of Bennington were divorced in 1999. In 2000 Favreau, who had legal custody of their son, fled Vermont.
In 2002 Wesley found Favreau in contempt of court for denying Miller visitation rights and awarded custody to Miller. Favreau claimed she was in Canada and was not notified about the Vermont court proceeding.
The Canadian court's award of custody to Favreau was based on a psychological evaluation of her and the conclusion that the child was better off with her.
"The Canadian court's judgment ... rested on a relatively recent, comprehensive evaluation of the emotional and physical health of the mother and the child; the child's adjustment at school ... and the likely emotional impact on the child of an abrupt reunification with father," said the Vermont Supreme Court majority decision.
But Burgess said the Vermont Family Court's decision was the correct course.
"While mother's criminal interference with father's parent-child contact was extraordinary, she demonstrated no extraordinary circumstances warranting relief from the family court's order on jurisdiction," wrote Burgess.
Favreau is serving a year's probation. She and Miller both live in the Bennington area. Their son, now 14, is living with friends of Favreau in Quebec.
"There's no way to compel the kid to come down here," said Miller's lawyer Sigismund Wysolmerski. "The child is now old enough to make his own decisions about where he goes and who he lives with. As a practical matter, the ruling changes nothing."
Favreau's lawyer Maureen O'Reilly of Rutland wouldn't comment on the details of the case.
"Obviously, Michelle is pleased with the decision and that the court agreed with our legal analysis, but that's all we're going to say," O'Reilly said.