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Rule 4.1 – Cases Involving Minor Children

May 14, 2021 | Family Law, Vermont

(a)Complaint; Service; Case Management Conference.

(1)Complaint.

(A) If a proceeding under Rule 4.0 involves one or more minor children, the complaint or an accompanying affidavit must contain the information required by the Uniform Child Custody Jurisdiction and Enforcement Act, 15 V.S.A. § 1079.
(B) Recipients of Public Assistance.

(i) In any action for divorce or parentage, when either party receives a grant for public assistance from or through the Economic Services Division of the Vermont Department for Children and Families on behalf of the children involved in the action, the complaint must recite that fact and a copy of the summons and complaint must be served on the Office of Child Support by certified mail, return receipt requested.
(ii) If during the pendency of the action either party applies for and receives a grant for public assistance from or through the Economic Services Division of the Vermont Department for Children and Families on behalf of the children involved in the action, the plaintiff must file an amended complaint reciting that fact and must serve the summons, complaint and amended complaint on the Office of Child Support by certified mail, return receipt requested.
(iii) In any action in which the Commissioner avers that a party is, or during the pendency of the action has become, such a recipient, the Office of Child Support may intervene as a party to protect the interests of the Department. Such intervention must be accomplished by timely filing and service of a notice, together with any affidavit, on all parties as provided in V.R.C.P. 5.
(iv) In any action under this rule which is commenced by the Office of Child Support as assignee of rights to child support, the complaint must recite that fact, and the Office of Child Support will provide the court clerk with a current mailing address for the assignor. The clerk must serve the summons, complaint, and notice of hearing on the assignor by certified mail when arranging for service on the defendant.
(2)Commencing an Action: Service. If either party is or may be obligated to pay child support to the other party or to the Office of Child Support, the action must be commenced, and service of process must be made, as provided in this paragraph.

(A) The complaint must be filed and a hearing or case manager’s conference must be scheduled before the complaint is served.
(B) After filing, the family division clerk will complete a notice of hearing or notice of case manager’s conference and must attempt to schedule the hearing or case manager’s conference so that it is held from 42 to 60 days after the summons and complaint were filed, unless because of unavailability of magistrates, judges, or case managers or because of a subsequent failure to complete service, it is not practical to do so.
(C) After a hearing or case manager’s conference has been scheduled, prompt service on the defendant must be made as follows:

(i) by a designated representative of the Office of Child Support (OCS) when OCS is providing Title IV-D services on a case;
(ii) in all other cases by the clerk, or upon request, the plaintiff’s attorney.
(D) Service may be made by personally serving the defendant by any method provided in V.R.C.P. 4(d), (e), or (k) with a summons, complaint, and the notice of hearing or case manager’s conference signed by the clerk.
(E) In the alternative, the summons, complaint, and notice of hearing or case manager’s conference may be served by mailing them to the defendant at one or more of the addresses supplied by the plaintiff or by the defendant or otherwise, by certified mail, return receipt requested and delivery restricted to the addressee. The plaintiff must pay the expense.
(F) If certified mail is refused by the defendant, the notice of hearing or case manager’s conference, summons, and complaint may be served by mailing it to the defendant by ordinary first-class mail and by certifying that such service has been made. Any service must be made:

(i) by a designated representative of the Office of Child Support (OCS) when OCS is providing Title IV-D services on a case;
(ii) in all other cases by the clerk.
(G) Service may be made by publication by order of the court, as provided in V.R.C.P. 4(g) .
(H) At any time, service may be made by delivering to the defendant by any method chosen by the plaintiff the summons and a request that the defendant waive service by any other method. The summons and request must be accompanied by the complaint, the notice of hearing or case manager’s conference if applicable, and a waiver of service form. The defendant must sign and date the waiver of service and return it to the court no later than 21 days from the date the documents were delivered, or 60 days from that date if the documents and request are delivered to the defendant outside a state or territory of the United States. If the defendant answers the complaint, the defendant must do so within 21 days of the date that the defendant signed the waiver or, if the waiver is undated, within 21 days of the date that the waiver is filed with the court. Failure to comply with a request to waive service may result in the imposition of costs, including reasonable attorney’s fees, against the defendant for expenses incurred in effecting service by another means.
(3)Case Management Conference. If either party is or may be obligated to pay child support to the other party or to the Office of Child Support, a case management conference will be held unless the conference is waived as provided in subparagraph (C). The purpose of the conference is to consider all financial and other issues pending between the parties to encourage settlement and clarify and simplify the issues for hearing.

(A) The conference will be conducted by a case manager assigned to the family division or by another family division staff member designated by the judge.
(B) The conference must be held after the date of service of process on the defendant and not later than the date set for hearing.
(C) If, before the scheduled date of the conference, the parties have filed and exchanged all information and material required under paragraph (b)(4), a stipulation approved by the court as to any issues that have been resolved, and a statement setting forth issues that have not been resolved, the presiding judge or magistrate or, if approved by the judge, the case manager, may waive the conference.
(b)Discovery and Required Information.

(1) In actions under this rule, discovery may be taken as provided in Rule 4.0(g)(1)-(6), except as provided in paragraphs (2)-(4).
(2) In any action under this rule in which parentage or child support is in issue, when an order is entered each party must file with the court information on location and identity of the party, including Social Security number, residential and mailing addresses, telephone number, driver’s license number, and name, address, and telephone number of employer. Each party must inform the court of any changes in the information provided. Any information filed pursuant to this paragraph will be available only to the parties and their counsel. The court, for good cause, may withhold any or all information provided by a party from any other party or counsel.
(3) In parentage proceedings under 15 V.S.A. §§ 301-308, the parties must comply with 15 V.S.A. § 304.
(4) Affidavit of Income and Assets.

(A) In any action under this rule in which a party is or may be obligated to pay child support to the other party or the Office of Child Support, each party must file the affidavit of income and assets required by 15 V.S.A. § 662 on or before the date of the case management conference scheduled pursuant to Rule 4.1(a)(3) or, if no conference is scheduled, at least 7 days before the date of the first scheduled hearing before the magistrate.
(B) An affidavit filed pursuant to subparagraph (A) must be accompanied by: — that party’s pay stubs for the four most recent pay periods in which employment income was received, if any; — monthly income and expense statements or equivalent documents covering the period following a self-employed person’s last-filed income tax return; and — documentation of all other income received during the period following any person’s last filed income tax return (including social security, workers’ compensation, unemployment compensation, disability, and pensions). On or before the date when the affidavit must be filed, the patties must exchange tax returns for the two most recent years in which returns were filed, together with all schedules and other documentation that were submitted to the Internal Revenue Service.
(c)Delay Where Minor Children Are Involved. No divorce action in which minor children of the patties are involved will be heard on the merits sooner than six months from the date of service unless the court otherwise orders because:

(1) the parties have demonstrated by joint motion and affidavit that a stable and effective agreement for parental rights and responsibilities has existed and has been in operation for at least six months, or
(2) extraordinary circumstances exist.
(d)Magistrates. Except as provided in 4 V.S.A. §§ 462, 463, and Rule 4.3(b), a magistrate will hear and determine all proceedings to establish or modify child support. However, when a superior judge assigned to the family division may hear and determine an issue of child support under 4 V.S.A. §§ 462, 463, and Rule 4.3(b), the family division will have all of the powers provided by law or by rule to magistrates.
(e)Exception for Uncontested Proceedings Involving Minor Children.

(1) If the parties have minor children, or any other children for whom there is or may be a duty of support under 15 V.S.A. § 658, the stipulation required in Rule 4.0(e)(1)(B) must also specifically include:

(A) the names and dates of birth of the children for whom there is or may be a duty of support;
(B) a parenting agreement that provides for parental rights and responsibilities of the parties and addresses such matters as parent-child contact by the noncustodial parent, transportation, medical care, and schooling;
(C) a statement that both parents are in compliance with all provisions of a final child support order, a copy of which is on file or attached to the stipulation; and
(D) a statement that both parties are represented and have been assisted by counsel in this agreement. In cases where parental rights and responsibilities are shared or divided, the stipulation must also contain a statement that the parents have been and will continue to be able to communicate effectively and work together cooperatively in matters affecting the child or children and a dispute resolution provision requiring mediation or arbitration in the event the parties themselves are unable to resolve disputes concerning parental rights and responsibilities.
(2) In any action for parentage under this rule, the court, without a hearing, may accept and approve the parties’ stipulation, which will become an order of the court.
(f)Orders of Support.

(1) Every child support or spousal maintenance order made or modified under this rule must, if contested, contain findings and conclusions and must, in all cases, contain a separately captioned order. Child support orders must also be mailed to the registry.
(2) In uncontested cases if the court does not issue findings the court will attach to and incorporate into the ruling a worksheet setting forth the figures used in calculating support under 15 V.S.A. § 656, including childcare costs. The order must contain the information required by 15 V.S.A. § 663 and every order must also set forth each child’s date of birth, the total arrearage (if any) as of a given date, the date or dates on which payments of support and arrearage are to commence and the amount thereof, and termination and reduction dates. Every order and set of findings also must contain the order for immediate wage withholding or the findings and provisions for future wage withholding set forth in 15 V.S.A. § 781. Every order of support must be served on each party and the registry in accordance with V.R.C.P. 5.

Vt. R. Fam. Proc. 4.1

Adopted Aug. 25, 2016, eff. Dec. 5, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018; amended Aug. 7, 2020, eff. Oct. 1, 2020.
Former Rule 4 was abrogated and replaced by Rules 4.0–4.3, eff. Dec. 5, 2016

Reporter’s Notes-2018 Amendments

Rule 4.1 is amended to change its 45-, 20-, and 5-day time periods to 42, 21, and 7 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to simultaneous amendments of V.R.F.P. 1.

Reporter’s Notes

Rule 4.1 is adopted as part of the replacement of fonner Rule 4 by Rules 4.0–4.3 to make the provisions of the former rule more accessible by reorganizing them in a functional order and by “restyling” them. See Reporter’s Notes to simultaneous adoption of Rule 4.0. Rule 4.1 supplements and modifies the general provisions of Rule 4.0 in cases involving minor children and parentage.

Rule 4.1(a) carries forward in restyled format the last sentence of fonner Rule 4(b) (1 )(A), with an updated statutory reference, and fonner Rule 4(b)(1)(C), (2)(B), and 2(0). Rule 4. 1(a)(2)(H) was derived from former Rule 4(b)(2)(B)(vi), which was a permitted form of service in cases involving minor children. The new rule makes clear that the waiver of service procedure may be initiated by any delivery method that the plaintiff elects and that the defendant is not required to file an answer in the waiver situation.

Rule 4.1(b) generally incorporates the provisions of Rule 4.0(g) concerning discovery with the exceptions from former Rule 4(g)(2)(C), (D)(i) and (iii), and (5) in restyled format.

Rule 4.1(c) carries forward the provisions of former Rule 4(h) in restyled format.

Rule 4.1(d) carries forward the provisions of former Rule 4(q) in restyled format.

Rule 4.1(e) carries forward the provisions of former Rule 4(e)(1)(C) and (2) in restyled format.

Rule 4.1(f) carries forward the provisions of former Rule 4(1) in restyled format. The terms “child support” and “spousal maintenance” are used consistent with revisions of Rule 4.0(d)(3). Only child support orders need to be mailed to the registry.