Can a divorce Court give sole physical rights to Dad for two children, but give him legal rights for one, those rights to Mom for the other? Vermont law requires a court to allocate between the parents "legal rights" - the ability to make medical, educational, and religious decisions, and "physical responsibility" - the ability to determine where the children will live subject to contact rights with the other parent. The trial Court awarded Dad both legal and physical rights to Nolan, the 17-year-old boy, but gave Dad physical rights to Masen, age 6, and legal rights to him to Mom. Dad appealed saying the trial court overstepped its authority.

The Supreme Court ruled for Mom. The trial court found that Dad had alienated both children from Mom, to the extent that Nolan would no longer converse with Mom so she could not exercise legal rights over him. But Masen was different. If Dad had all the decision making rights it was likely Masen would lose any meaningful relationship with Mom. Even though Mom had mental health issues that prevented her from having physical responsibility, that issue did not prevent her from exercising legal responsibility.

The Supreme Court will affirm a trial court if the award is reasoned in light of the evidence. The trial judge can draw on "common sense, experience in life, and the common experience of mankind" in making a reasoned decision. This standard is really a non standard. It expresses a conceit. However, it reflects the reality that an appellate court is reluctant second guess a trial judge who has actually seen and evaluated the parties. In this case, though, it is clear the trial judge showed real subtlety in fashioning an award in a family split by divorce, mental illness, and a Dad who alienated the children from their mother. While Mom may have had some difficulties because of her mental condition, she is still the only mother Masen will ever have. Out of this conflict of attitude and personalities, the trial judge created an opportunity for him to have a positive relationship with his mother. Children of divorce who have the uncensored ability to love both parents are most likely to have a successful outcome.

Seen from Masden's perspective the future for him was either to have only one parent, like Nolan, or have the chance to have two. Kasper v. Kasper 2007 VT 2