§§ 451-454. Repealed. 2009, No. 154 (Adj. Sess.), § 238, effective July 1, 2010.
§ 455. Transfer of probate proceedings
(a) Any guardianship action filed in the probate division of the superior court pursuant to chapter 111, subchapter 2, article 1 of Title 14 and any adoption action filed in the probate division pursuant to Title 15A may be transferred to the family division of the superior court as provided in this section.
(b) The family division shall order the transfer of the proceeding on motion of a party or on its own motion if it finds that the identity of the parties, issues, and evidence are so similar in nature to the parties, issues, and evidence in a proceeding pending in the family division that transfer of the probate action to the family division would expedite resolution of the issues or would best serve the interests of justice. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990; amended 2009, No. 154 (Adj. Sess.), § 28a, eff. Feb. 1, 2011.)
§ 456. Repealed. 2009, No. 154 (Adj. Sess.), § 238.
§ 457. Participation and availability of assistant judges
(a) Application. This section shall apply in all proceedings in which the family court consists of one presiding judge and two assistant judges.
(b) Questions of law and fact. In all proceedings, questions of law shall be decided by the presiding judge. Mixed questions of law and fact shall be deemed to be questions of law. The presiding judge alone shall decide which are questions of law, questions of fact, and mixed questions of law and fact. Written or oral stipulations of fact submitted by the parties shall establish the facts related therein, except that the presiding judge, in his or her discretion, may order a hearing on any stipulated fact. Neither the decision of the presiding judge under this subsection nor participation by an assistant judge in a ruling of law shall be grounds for reversal unless a party makes a timely objection and raises the issue on appeal.
(c) Availability of assistant judges. If two assistant judges are not available, the court shall consist of one presiding judge and one assistant judge. If neither assistant judge is available, the court shall consist of the presiding judge alone, and the unavailability of an assistant judge shall not constitute reversible error.
(d) Mistrial. In the event that court is being held by the presiding judge and one assistant judge, and they do not agree on a decision, a mistrial shall be declared. If the case is retried, the court shall consist of the presiding judge alone or the presiding judge and two assistant judges.
(e) Method of determining availability. Before commencing a hearing in any matter in which the court by law may consist of the presiding judge and assistant judges, the assistant judges shall determine whether they are available for the case. A schedule of proceedings in family court in which the assistant judges by law may participate shall be made available sufficiently in advance to give assistant judges reasonable opportunity to determine in which cases they will participate. If two or more cases are being heard at one time, and assistant judges may by law participate in either, each assistant judge may determine in which case he or she will participate.
(f) Duty to complete hearing or trial. After an assistant judge has decided to participate in a hearing or trial, the assistant judge shall not withdraw therefrom except for cause. However, if an assistant judge is not available for a scheduled hearing or trial or becomes unavailable during trial, the matter may continue without that assistant judge's participation, and he or she may not return to participate.
(g) Emergency relief. A presiding judge may hear a petition for emergency relief when the court is not sitting, and may issue temporary orders as necessary. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990.)
§ 458. Venue
The place of trial in the family division of the superior court shall be in the county in which one of the parties resides, if one party resides within the state. If no party resides within the state, the place of trial may be in any county. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990; amended 2009, No. 154, § 238.)
§ 459. Powers of assistant judges
Nothing in this chapter shall be construed to restrict the constitutional powers of assistant judges. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990.)
§ 461. Office of magistrate; jurisdiction; selection; term
(a) The office of magistrate is created within the family division of the superior court. Except as provided in section 463 of this title, the office of magistrate shall have nonexclusive jurisdiction to hear and dispose of the following cases and proceedings:
(1) Proceedings for the establishment, modification, and enforcement of child support, including contempt proceedings instituted against an obligated party for the limited purpose of enforcing a child support order.
(2) Cases arising under the Uniform Interstate Family Support Act.
(3) Child support in parentage cases after parentage has been determined.
(4) Cases arising under 33 V.S.A. § 5116, when delegated by a presiding judge of the superior court.
(5) Proceedings to establish, modify, or enforce temporary orders for spousal maintenance in accordance with 15 V.S.A. §§ 594a and 752.
(6) Proceedings to modify or enforce temporary or final parent-child contact orders issued pursuant to this title.
(7) Proceedings to establish parentage.
(8) Proceedings to establish temporary parental rights and responsibilities and parent-child contact.
(b) A magistrate shall be an attorney admitted to practice in Vermont with at least four years of general law practice. Magistrates shall be nominated, appointed, and confirmed in the manner of superior judges.
(c)(1) Terms of office of magistrates, except in the case of an appointment to fill a vacancy or unexpired term, shall be for a term of six years from and including April 1 in the year of the magistrate's appointment or retention. A magistrate shall remain in office until a successor is appointed and qualified, unless sooner removed for cause or unless he or she resigns.
(2) A magistrate may file in the office of the secretary of state, on or before September 1 of the year preceding the expiration of the term for which he or she was appointed or retained, a declaration that he or she will be a candidate to succeed himself or herself. However, a magistrate appointed and having taken the oath of office after September 1 of the year preceding the expiration of the term of office shall automatically be a candidate for retention without filing notice. When a magistrate files such a declaration, his or her name shall be submitted to the general assembly for a vote on retention. The general assembly shall vote upon one ballot on the question: "Shall the following magistrates be retained in office?" The names of the magistrates shall be listed followed by "Yes____ No____." If a majority of those voting on the question vote against retaining a magistrate in office, upon the expiration of the term, a vacancy shall exist which shall be filled in accordan
ce with the constitution and chapter 15 of this title. If the majority vote is in favor of retention, the magistrate shall, unless removed for cause, remain in office for another term, and at its end, shall be eligible for retention in office in the manner herein prescribed.
(3) The court administrator shall notify the secretary of state whenever a magistrate is appointed and takes the oath of office after September 1 of the year preceding the expiration of the term of office to which the magistrate has succeeded, thereby resulting in automatic notification of an intention to continue in office. Whenever a magistrate files a declaration under subsection (a) of this section or when notification occurs automatically, the secretary of state shall notify the president of the senate, the speaker of the house, and the legislative council forthwith.
(d) Magistrates shall be exempt employees of the judicial branch, subject to the Code of Judicial Conduct, and, except as provided in section 26 of this title, shall devote full time to their duties. The supreme court shall prescribe training requirements for magistrates.
(e) A magistrate shall have received training on the subject of parent-child contact before being assigned to hear and determine motions filed pursuant to subdivision (a)(6) of this section.
(f) [Repealed.] (Added 1989, No. 221 (Adj. Sess.), § 1; amended 1991, No. 189 (Adj. Sess.), § 4, eff. July 5, 1992; 1993, No. 227 (Adj. Sess.), § 21; 1995, No. 63, § 139a; 1995, No. 181 (Adj. Sess.), § 19; 1999, No. 54, § 2; 2009, No. 154 (Adj. Sess.), § 29; No. 156 (Adj. Sess.), § E.319.)
§ 461a. Essex county; powers of assistant judges and magistrates in family court proceedings
(a) Notwithstanding any other provision of law to the contrary, an assistant judge of Essex County who has satisfactorily completed the training provided by the Vermont supreme court pursuant to Sec. 20 of Act No. 221 of the 1990 (Adj. Sess.), or a similar course of training that has been approved by the supreme court, shall act as a magistrate and hear and dispose of proceedings for the establishment, modification and enforcement of child support and establishment of parentage in all cases filed or pending in the family division of the superior court in Essex County.
(b) The administrative judge may appoint and may specially assign a magistrate to serve as the presiding judge in the family division of the superior court in Essex County.
(c) No Vermont family court action filed or pending in Essex County, except for temporary abuse prevention proceedings and juvenile proceedings under Title 33, shall be heard at or transferred to the family division in another unit of the superior court. (Added 1993, No. 59, § 27e, eff. June 3, 1993; amended 2009, No. 154 (Adj. Sess.), § 29a.)
§ 461b. Repealed. 2009, No. 154 (Adj. Sess.), § 238.
§ 461c. Powers of assistant judges in divorce proceedings
(a) Notwithstanding any other provision of law to the contrary, an assistant judge may elect to hear and determine a complaint or action which seeks a divorce, legal separation, or civil union dissolution in cases where a final stipulation of the parties has been filed with the court.
(b) When an assistant judge elects to hear such cases, the clerk shall set it for hearing before the assistant judge if available.
(c) Prior to hearing an uncontested domestic matter, an assistant judge shall sit with a superior judge on domestic proceedings for a minimum of 100 hours, satisfactorily complete a minimum of 30 hours of training on subjects relevant to domestic proceedings and the code of judicial conduct, and conduct a minimum of three uncontested domestic hearings with a superior judge who shall, in his or her sole discretion, certify to the administrative judge that the assistant judge is qualified to preside over matters under this section. Upon application of an assistant judge, some or all of these requirements may be waived by the administrative judge based on equivalent experience. The requirements set forth herein shall only apply to assistant judges who elect to conduct uncontested final hearings in domestic cases after July 1, 2010. An assistant judge already conducting hearings under this section as of July 1, 2010, shall be deemed to have complied with these requirements. (Added 1993,
No. 237 (Adj. Sess.), § 10, eff. Nov. 1, 1994; amended 1995, No. 59, § 3; 1997, No. 90 (Adj. Sess.), § 1; 2009, No. 154 (Adj. Sess.), § 29b.)
§ 462. Findings; orders; stipulations
(a) The magistrate shall make findings of fact, conclusions, and a decision and shall issue an order. An order issued by a magistrate may be enforced by the family division of the superior court in the unit in which the magistrate hearing was held.
(b) A magistrate may issue an order based on a stipulation regarding any preliminary matter necessary to issue a child support order.
(c) If the stipulation of the parties regarding child support includes matters other than preliminary matters necessary to issue a child support order, the stipulation may be accepted and approved by the magistrate in respect to those preliminary matters and signed by the magistrate as an order of the family division of the superior court.
(d) A magistrate shall issue an order for child support based upon the actual physical living arrangements of the children during the prior three months if the parties have not stipulated concerning parental rights and responsibilities. If parental rights and responsibilities are contested, the family division of the superior court shall make an order allocating parental rights and responsibilities. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990; amended 1993, No. 228 (Adj. Sess.), § 9; 1995, No. 59, § 14; 2009, No. 146 (Adj. Sess.), § C14; No. 154 (Adj. Sess.), § 30.)
§ 463. Jurisdiction of family division of superior court over child support
Upon motion of either party, upon motion of the magistrate, or upon the court's own motion, a judge of the family division of the superior court may hear and determine the issue of child support, provided there is a prior existing support order in effect or an interim or temporary order and the court finds one of the following:
(1) The support matter is so intrinsically tied to an action that must be heard by a judge that hearing before a magistrate would unduly delay the proceedings.
(2) The identity of the parties, issues and evidence are so similar in nature that consolidation with an already scheduled matter would in fact expedite resolution of the support issue.
(3) A material legal issue must be resolved for which there is no legal precedent.
(4) Such good and substantial cause as the court may find, consistent with the principle that support cases shall be heard in a timely manner. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990; amended 2009, No. 154 (Adj. Sess.), § 31.)
§ 464. Representation
(a) Any person or other legal entity, including the state, shall be entitled but not required to be represented by an attorney before a magistrate. Nonattorney employees of the office of child support who have been duly qualified by the office of child support may sign complaints and motions, and may participate in child support hearings before a magistrate, including those arising under 33 V.S.A. § 5533 subject to the conditions in subsections (b) and (c) of this section. Such participation shall not be considered the unauthorized practice of law.
(b) Participation in a proceeding shall consist of:
(1) presentation of current and material evidence relative to both parents' income and resources;
(2) computation of parental support obligations based upon child support guidelines, and recommendations for any deviations from that amount after consideration of the best interests of the child;
(3) relevant supporting documentation and legal justification for the recommendation.
(c) A current roster of qualified office of child support staff shall be furnished to the court by the office of child support. Such staff may be denied the right to participate in child support proceedings upon notice to the office of child support from the court administrator. The notice shall indicate the basis for the decision. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990; amended 1993, No. 105, § 2; 1995, No. 63, § 139b, eff. July 1, 1996.)
§ 465. Appeals
An appeal from a decision of a magistrate shall be on the record to the family division of the superior court. At the request of a party, the family court shall hear additional evidence. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990; amended 2009, No. 154, § 238.)
§ 466. Procedure
(a) A proceeding before a magistrate shall, in cases involving child support, be initiated by the filing of a petition. If a proceeding for divorce, annulment, or separation has been commenced before the family division of the superior court, the magistrate shall have jurisdiction to determine a temporary amount of child support on the basis of the complaint or petition filed in family division of the superior court.
(b) A magistrate hearing shall be conducted according to rules adopted by the supreme court, subject to review by the judicial rules committee. The rules shall include post-judgment procedures and deadlines for the establishment of support orders which comply with the requirements of federal law.
(c) The Vermont Rules of Evidence shall apply to magistrate proceedings, except that evidence not admissible under those rules may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs and is not precluded by statute or privilege.
(d) Witnesses shall be sworn. Hearings shall be electronically recorded. The magistrate shall assist the parties in developing relevant and reliable evidence.
(e) The family division of the superior court clerk shall provide for personal service or shall mail to the respondent, at one or more of the addresses supplied by the respondent, by certified mail, return receipt requested and delivery restricted to the addressee, the expense being paid by the petitioner, a notice signed by the clerk. If acceptance of service is refused, the clerk may serve the notice on the respondent by sending it to the respondent by ordinary first class mail and by certifying that such service has been made. In the alternative, the clerk may provide for mail service as provided in Rule 4( l) of the Vermont Rules of Civil Procedure.
(f) When an obligor is referred to an employment services program, the magistrate may require the program to file periodic written reports with the court regarding the obligor's progress and cooperation with the program requirements. Such reports shall be admissible in an enforcement or contempt proceeding without the appearance of a witness from the program unless there is a dispute with respect to the authenticity of the report or the obligor disputes the facts set forth in the report concerning the obligor's performance and the facts in dispute are relevant to the determination of the issues before the court. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990; amended 2009, No. 154, § 238; 2011, No. 119 (Adj. Sess.), § 1.)
§ 467. Forms; office of child support; IV-D services
(a) The court administrator shall prepare and make available to the public forms for proceeding before a magistrate, including forms for the filing of an action, responding to a petition and filing motions. The purpose of the standardized forms is to make the magistrate hearing accessible to all parties in a dispute without the assistance of counsel.
(b) The form for filing a petition with the magistrate shall include provision for the petitioner to request IV-D services from the office of child support established in 33 V.S.A. § 4101. If the petitioner requests IV-D services, the court shall immediately notify the office of child support.
(c) The court administrator and the office of child support shall jointly prepare and make available to the public a booklet describing the services available to both custodial and noncustodial parents and the judicial procedure applicable to child support and parentage cases.
(d) The court administrator and the office of child support shall prepare a standardized child support order. (Added 1989, No. 221 (Adj. Sess.), § 1, eff. Oct. 1, 1990.)