Summary
The Vermont Supreme Court held that an assistant judge was required to recuse herself under Canon 3E(1) of the Vermont Code of Judicial Conduct because the guardian ad litem was her sister. The court vacated the family court’s custody determination and remanded for a new trial, applying a context-specific analysis informed by the risks of injustice and undermining public confidence in the judiciary.
Topics
Practice areas
Questions Presented
- Whether an assistant judge must recuse herself under Canon 3E(1) of the Vermont Code of Judicial Conduct when the guardian ad litem in a contested custody proceeding is her sister.
- Whether the family court's custody order must be vacated and the matter remanded for a new trial because the disqualified assistant judge participated in the factual findings and custody decision.
- Whether the family court had discretion to admit the stipulated forensic expert's report despite hearsay contained in the report.
- Whether the expert report was impermissibly distributed before trial or should be treated like a guardian ad litem report.
Holdings
- A guardian ad litem in a contested custody proceeding falls within the relationship-based recusal provisions of Canon 3E(1)(d). Because the guardian ad litem and assistant judge were sisters, the assistant judge was required to disclose the relationship and recuse herself, or the court was required to appoint a different guardian ad litem.
- The custody order must be vacated and the case remanded for a new trial. The court cannot treat the assistant judge's participation as harmless surplusage because assistant judges participate in the factual findings on which the presiding judge bases the custody determination, and the reviewing court cannot determine whose work influenced the result.
- Actual bias or prejudice is not required to obtain relief for a violation of the appearance-based recusal requirement. The court rejected a rule that would permit a judge's ruling to stand absent proof of actual bias, while also rejecting an absolute rule that every failure to recuse is never harmless.
- The family court had discretion to admit the forensic expert's report. Under the applicable statute and evidence rule, an expert evaluating the child's best interests may rely on facts not independently admissible, including hearsay, when those facts are of a type reasonably relied upon by experts in the field, provided the expert is available for cross-examination.
Key quotations
“We hold that the undisclosed sibling relationship between the assistant judge and the GAL required recusal of the assistant judge pursuant to Canon 3E(1) of the Code of Judicial Conduct.” (182 Vt. 180-181)
“We hold, therefore, that the duties of GALs in contested custody cases such as the parentage proceeding before us bring them within Canon 3E(l)(d).” (182 Vt. 186)
“Because of our disposition, we do not address father's argument that the court's conclusions were not supported by its findings.” (182 Vt. 195)
Factual background
Father and mother had a contentious custody dispute concerning their young child, including allegations by father that mother had abused the child. The family court appointed a guardian ad litem, who recommended supervised visitation for father, while a stipulated forensic evaluation recommended that mother receive primary physical and legal responsibility. The family court awarded mother sole legal and physical custody and father supervised visitation. After trial, father learned that the guardian ad litem and Assistant Judge Teresa Manahan were sisters; neither had disclosed the relationship before or during the proceedings.
Procedural history
Father filed a parentage action seeking custody. After multiple hearings, the family court awarded mother sole legal and physical custody and father supervised visitation. Following post-trial disclosure that the assistant judge and the guardian ad litem were sisters, father moved for disqualification and a new trial; those requests were denied or not ruled upon. The Vermont Supreme Court held that the assistant judge should have recused herself, vacated the custody order, remanded for a new trial, and addressed the expert-report issue because it was likely to recur.
Remand instructions
Vacate the family court's custody order and conduct a new trial before a properly constituted and impartial court, with appropriate disclosure and recusal procedures. The opinion does not prescribe how the Tyler report must be used on remand, leaving its admission and use to the family court's discretion.