Vt. Sup. Ct. Promulgation Order of Nov. 4, 2024: VRFP4.1(a)(2)(I),(a)(3)(D)and4.3(g)

STATE OF VERMONT

VERMONT SUPREME COURT

NOVEMBER TERM, 2024

Order Amending Rules 4.1(a)(2) and (3) and 4.3 of the

Vermont Rules for Family Proceedings

Pursuant to the Vermont Constitution, Chapter II, § 37, and 12 V.S.A. § 1, it is hereby

ordered:

1. That Rule 4.1(a)(2) and (3) of the Vermont Rules for Family Proceedings be amended as

follows (new matter underlined):

RULE 4.1. CASES INVOLVING MINOR CHILDREN

(a) Complaint; Service; Case Management Conference.

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(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 must be made, as provided in this paragraph.

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(I) In actions wherein a petition for special findings pursuant to 14 V.S.A. § 3098 has

been filed, service of the petition may be waived by order of the court as provided in Rule

4.3(g).

(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) or (D). 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.

(D) If a party has filed a petition for special findings pursuant to 14 V.S.A. § 3098(c),

the matter will immediately be set for hearing on the motion and the case manager

conference postponed until the petition has been decided. If the petition is granted, the court

may waive the conference.

Reporter’s Notes—2025 Amendment

In 2020, the Vermont Legislature enacted legislation on

proceedings related to vulnerable noncitizen children. 14 V.S.A.

§ 3098. The Vermont legislation applies in any court with

jurisdiction over an unmarried individual or individuals under the

age of 21 and not a citizen of the United States. In the family

division this includes all proceedings governed by Rule 4.1 in

which custody of a noncitizen child is at issue and a petition for

special findings has been filed. The Federal Immigration and

Nationality Act (INA) allows a noncitizen youth to file for Special

Immigrant Juvenile Status (SIJS), which if granted, provides a

pathway to permanent residency for the child. 8 U.S.C. § 1101 et

seq. A filing for SIJS status with the U.S. Citizenship and

Immigration Services (USCIS) must demonstrate that the child

meets certain criteria one of which is that a state court with

jurisdiction over the youth has made “special findings” in four

specific areas: (1) the child is a dependent of the court or legally

committed to or placed under custody of a state agency or an

individual or entity appointed by the court; (2) the child has

suffered from abuse, neglect, abandonment, or similar

circumstances; (3) the child may not be viably reunified with one

or both parents due to abuse, neglect, abandonment, or similar

circumstances; and (4) that it is not in the child’s best interests to

be returned to the child’s or the child’s parents previous country of

national residence or habitual residence. 14 V.S.A.

§ 3098(c)(1)(A)-(D); see 8 U.S.C. § 1101(a)(27)(J). Section 3098

confers jurisdiction on Vermont courts to issue findings that

address these four areas whenever a petition for special findings is

filed.

Rule 4.1(a)(2)(I) is added to permit the court to waive service of

the petition for special findings as provided in Rule 4.3(g).

Section 3098(d) specifically authorizes the court to use any

appropriate alternative method of service or to waive service

altogether. The procedure for a motion to waive service is outlined

in Rule 4.3(g). See Rule 4.3(g), Reporter’s Notes—2025

Amendment.

V.R.F.P. 4.1(a)(3)(D) is added to permit the postponement of a

case manager conference in cases where a petition for special

findings has been filed until the court has heard and decided the

petition. A determination by the court with respect to findings

related to a child’s status as a vulnerable noncitizen is critical to

the ability of the case manager to conduct an appropriate

conference. If the status is confirmed by special findings, a

conference may not be necessary. Further, as the statute makes

clear time is of the essence in many such cases. Section 3098(e)

requires the court to hear, adjudicate and issue findings on such

petitions as soon as it is administratively feasible whenever it is in

the best interest of the vulnerable noncitizen child.

2. That Rule 4.3 of the Vermont Rules for Family Proceedings be amended as follows (new

matter underlined):

RULE 4.3 SPECIAL PROCEDURES

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(g) Procedure to Waive Service by Court Order in Actions Subject to 14 V.S.A. § 3098.

(1) Motion to Waive Service. In an action under Rules 4.1 or 4.2 wherein a petition

for special findings pursuant to 14 V.S.A. § 3098 is filed, the petitioner may file a

motion to waive service. The motion shall be accompanied by an affidavit setting

forth:

(A) The names of the child’s parents, if known. If unknown, the motion shall so

specify.

(B) The location of each parent including each parent’s current address, if

known. If unknown, the motion shall so specify.

(C) If the name or location of a parent is unknown, a detailed description of

efforts that have been made to identify the parent or determine the parent’s

location including the parent’s address and country of residence.

(D) The reasons why service cannot with due diligence be made by any other

prescribed method including service by publication.

(2) Order to Waive Service. If the court determines pursuant to 14 V.S.A. § 3098(d)

that service of the petition cannot with due diligence be made by any other

prescribed method, the court shall issue findings and a written order.

Reporter’s Notes—2025 Amendment

In 2020, the Vermont Legislature enacted legislation on

proceedings related to vulnerable noncitizen children. 14 V.S.A.

§ 3098. The Vermont legislation applies in any court with

jurisdiction over an unmarried individual or individuals under the

age of 21 and not a citizen of the United States. In the family

division this includes all proceedings governed by Rule 4.1 in

which custody of a noncitizen child is at issue and a petition for

special findings has been filed. The federal Immigration and

Nationality Act (INA) allows a noncitizen youth to file for Special

Immigrant Juvenile Status (SIJS), which, if granted, provides a

pathway to permanent residency for the child. 8 USC § 1101 et

seq. A filing for SIJS status with the U.S. Citizenship and

Immigration Services (USCIS) must demonstrate that the child

meets certain criteria one of which is that a state court with

jurisdiction over the youth has made “special findings” in four

specific areas: (1) the child is a dependent of the court or legally

committed to or placed under custody of a state agency or an

individual or entity appointed by the court; (2) the child has

suffered from abuse, neglect, abandonment, or similar

circumstances; (3) the child may not be viably reunified with one

or both parents due to abuse, neglect, abandonment or similar

circumstances; and (4) that it is not in the child’s best interests to

be returned to the child’s or the child’s parents previous country of

national residence or habitual residence. 14 V.S.A. §

3098(c)(1)(A)-(D); see also 8 U.S.C. § 1101(a)(27)(J). Section

3098 confers jurisdiction on Vermont courts to issue findings that

address these four areas whenever a petition for special findings is

filed.

Section 3098(d) specifically authorizes the court to use any

appropriate alternative method of service or to waive service

altogether. This authorization to permit a waiver of service applies

only to the petition for special findings and reflects a recognition

by the Legislature that in a majority of SIJS cases one or both

parents are located outside of the United States making it difficult

to locate foreign addresses, particularly if a parent has abandoned

the family and may have fled to another country. In addition, in

many cases there is a heightened need for expedited treatment by

the court as reflected in 14 V.S.A. § 3098(e).

Because petitions for special findings pursuant to § 3098 are by

their nature “special procedures” and because a request to waive

service altogether is not available in any other proceeding under

Rule 4.0, the procedure related to motions to waive service is set

forth as an amendment to Rule 4.3, Special Procedures. The

procedure requires that the motion be accompanied by an affidavit

describing any efforts that have been made to complete service and

explaining why service cannot be made by any other prescribed

method. This requirement reflects the due process principle that

service should only be waived in extreme cases where no

alternative method of service will be effective.

3. That this amendment be prescribed and promulgated, effective on January 3, 2025. The

Reporter’s Notes are advisory.

4. That this Order must be promulgated without using an effective date of January 1 or July 1

as ordinarily required by Administrative Order 11, § 9, because there is an immediate need for

rules to comply with the statutory requirements of 14 V.S.A. § 3098, including waiver of service.

5. That the Chief Justice is authorized to report this amendment to the GeneralAssembly in

accordance with the provisions of 12 V.S.A. § 1, as amended.

Dated in Chambers at Montpelier, Vermont, this 4th day of November, 2024.

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Signed by the Vermont Supreme Court Karen R. Carroll, Associate Justice

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William D. Cohen, Associate Justice

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Nancy J. Waples, Associate Justice