## Facts

- Ann Marie DeSantis (mother) and John E. Pegues (father) married in 1991, adopted a daughter in 1996, and separated in 2004; the child lived primarily with DeSantis.
- During the marriage, Pegues and the child regularly engaged in highly physical play, including tickling, belly kisses, face kisses, and the child climbing on him; as the child grew older, DeSantis became concerned the contact was no longer appropriate.
- Shortly before the separation, Pegues began drinking heavily. DeSantis frequently found him asleep in the child’s room and once found him in the child’s bed with his hand on the child’s bare buttocks.
- After separation, Pegues moved into a condominium. The parents arranged informal visitation, but there were no overnight visits because of DeSantis’s concerns about Pegues’s drinking.
- The child described a closet area associated with her room at Pegues’s condominium as the “secret closet” and told DeSantis that she and Pegues played kissing and tickling games there, including a game involving removing clothes (described as “How naked can you get?”).
- DeSantis reported the allegations to New York State Child Protective Services (CPS), which investigated; the child did not report sexual assault to CPS investigators.
- A social worker retained by DeSantis reported that the child disclosed sexual abuse during an initial clinical session.
- Pegues was charged with felony aggravated sexual assault. While the criminal case was pending, he voluntarily agreed to an interim family court order suspending all parent-child contact.
- About eighteen months later, the State dismissed the criminal charge. Pegues then moved in family court to dissolve the interim suspension and reestablish visitation.
- After hearing evidence, the family court concluded the evidence did not establish sexual abuse by clear and convincing evidence, but did establish sexual abuse by a preponderance of the evidence, and denied Pegues’s motion—continuing a no-contact arrangement with no definite end point.
- Pegues appealed to the Vermont Supreme Court.

## Issues

1. When a family court order completely and indefinitely denies parent-child contact and is functionally equivalent to terminating the parent’s relationship with the child, must the factual basis for that result (here, sexual abuse) be proved by clear and convincing evidence rather than by a preponderance of the evidence?
2. Did the family court err by continuing a total, open-ended denial of contact after expressly finding the evidence insufficient under the clear-and-convincing standard?

## Decision

- The Vermont Supreme Court reversed and remanded.
- The Court held that a finding of sexual abuse by a preponderance of the evidence could not support an order that effectively terminated Pegues’s parental right to contact.
- Because the family court declined to find sexual abuse by clear and convincing evidence but nonetheless continued an open-ended, complete no-contact order, the order could not stand as entered.

## Legal Principles

- Parents have a constitutionally protected liberty interest in the care, custody, and management of their children; a state-ordered, complete and indefinite cut-off of contact triggers heightened due process concerns.
- Although parent-child contact disputes are generally resolved under a best-interests analysis, when the practical effect of the order is the equivalent of terminating the parent-child relationship, the grounds supporting that outcome must be proved by clear and convincing evidence.
- Vermont’s policy favoring “maximum continuing physical and emotional contact” with both parents after separation yields only when contact is likely to cause direct physical harm or significant emotional harm; a total ban on contact requires a strong evidentiary basis and careful findings.
- A court may impose safety-based limits on contact, but it cannot impose a de facto termination through an open-ended no-contact order while simultaneously finding that the alleged abuse is not established by clear and convincing evidence.

## Conclusion

DeSantis v. Pegues holds that when a family court’s visitation ruling leaves a parent with no contact for an indefinite period and effectively ends the parent-child relationship, the allegations used to justify that result must be proven by clear and convincing evidence; because the trial court found only a preponderance of proof yet continued a total no-contact order after the criminal case was dismissed, the Vermont Supreme Court reversed and remanded for further proceedings under the proper standard.


DeSantis v. Pegues, 35 A.3d 152 (2011)