Tuesday, July 21, 2009

Use Your Handsfree Device while Driving

Forgeting your bluetooth or handsfree device may cost you $100.00 on your first offense. Be carefull the police are cracking down on enforcing this provision under the Law. I can tell you from firsthand knowledge that if you are caught talking without you handsfree device then you will be ticketed. Dont think it is the next guy who will be pulled over as it may be you.

Friday, February 6, 2009

Termination of Parental Rights

Termination of Parental Rights in the State of Connecticut

Connecticut General Statutes Section 45a-717 (g) provides grounds for the Termination of Parental Rights. The Statute allows for termination based upon several grounds but requires the petitioner to prove only one cause of action exists by clear and convincing evidence. Section 45a-717 provides in relevant part for termination if:
(1) the termination is in the best interest of the child, and (2) (A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child, or (C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child.

Nonconsensual termination proceedings involve a two step process: an adjudicatory phase and a dispositional phase. General Statutes § 45a-717 (g). "In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence." In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). Examples of such statutory grounds are abandonment of the child by the parent, denial of care, guidance and control necessary for the child's well-being or no ongoing parent-child relationship. In re Bruce R., 234 Conn. 194, 204, 662 A.2d 107 (1995). "If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997). In re Drew R., 47 Conn. App. 124, 127, 702 A.2d 647 (1997)." (Internal quotation marks omitted.) In re Lauren R., 49 Conn. App. 763, 768, 715 A.2d 822 (1998).

Whose land is it? Adverse Possesson in the State of Connecticut

Standard of Review for Adverse Possession

"The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible, notorious, and exclusive possession of the claimant without license or consent of the owner. . . . Adverse possession must be proven by the claimant . . . by clear and convincing evidence." (Citations omitted; internal quotation marks omitted.) Gemmell v. Lee, 59 Conn. App. 572, 578 (2000) citing Kramer v. Petisi, 53 Conn. App. 62, 67; cert. denied, 249 Conn. 919 (1999).

A use made under a claim of right is a use made "without recognition of the rights of the owner of the servient tenement. The use must occur without license or permission and must be unaccompanied by recognition of [the right of the owner of the servient tenement] to stop such use. . . . The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement." (Citation omitted; internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 170 (2001) citing Crandall v. Gould, 244 Conn. 583, 590-91 (1998).

"The Defendant must also prove that his use of the land was exclusive. This means that the possession by the Defendant was not shared with the Plaintiff's predecessors in title or anyone else for that matter. The requisite of exclusive possession for the statutory period is not met if the adverse user merely shares dominion over the property with other users.” Highland Associates v. Fohl, 62 Conn. App. 612, 619-620 (2001).

The requirement that an adverse possession be "notorious" in the sense of "being or constituting something that is commonly known: well known" (Webster, Third New International Dictionary) is obviously to give actual notice to an owner that a claim contrary to his ownership is being asserted or to lay a foundation for a finding of constructive notice. Pepe v. Aceto,119 Conn 282, 287 (1934); Schroeder v. Taylor, 104 Conn. 596, 605 (1926).

"Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to found title by adverse use upon it" (Citation omitted; internal quotation marks omitted.) Lazoff v. Padgett, supra, 2 Conn. App. 246, 250 (1984).

Connecticut: Driving under the Influence


New laws recently enacted in Connecticut have toughened DWI laws in an attempt to keep drunk drivers off the roads. These new laws impose higher fines and jail terms for those who are convicted of drunk driving, set lower blood alcohol levels for purposes of determining whether a driver is under the influence of alcohol, and set more stringent requirements for pretrial alcohol education programs.

Under the new laws, the blood alcohol level for determining whether a person is driving under the influence remains at .10 for first-time offenders, but has been lowered for drivers with previous DWI convictions from .10 to .07. In addition, under the new laws, the pretrial alcohol education program available to drivers convicted of driving under the influence now requires the offender to participate in at least fifteen counseling sessions, rather than ten as required under the previous laws, if the blood alcohol level of the offender was .16 or higher. For offenders with a blood alcohol level lower than .16, the law remains the same, requiring participation of at least ten alcohol education sessions for completion of the pretrial alcohol education program.

The most dramatic changes in the new DWI laws are the increased penalties for repeat offenders of the drunken driving laws. For conviction of a first violation, the present law provides for a fine of at least $500.00 to a maximum of $1,000.00 dollars, imprisonment of up to 6 months, which is suspended if the offender performs at least 100 hours of community service as a condition of probation, and suspension of the person’s driver’s license for one year.
However, for conviction of a second or third violation within ten years after a prior drunken driving conviction, the punishment has been significantly increased.

Under the previous law, second-time offenders received a fine from $500.00 to $2,000.00, could be imprisoned for up to one year, ten days of which could not be reduced or suspended in any manner, and had their driver’s licenses suspended for two years. Now, with the recent amendments to these laws, the minimum fine for second-time offenders has been doubled to $1,000.00 dollars, and the maximum fine was also doubled to $4,000.00. In addition, under the new law, second-time offenders can be imprisoned for up to 2 years, 120 days of which cannot be reduced or suspended in any way, and also they are automatically sentenced to a period of probation requiring that they serve 100 hours of community service. Finally, under the new law, the driver’s licenses of second-time offenders are suspended for three years rather than two.

For a third DWI conviction, under the new law, the most significant change is that the third-time offender not only must pay a significantly higher fine (maximum increased from $4,000.00 to $8,000.00) and serve a longer minimum jail term (1 year) than under the previous law, but also, the offender’s driver’s license is permanently revoked upon such third offense. As under the previous law, under the present law, a court can require that an offender participate in an alcohol education and treatment program in addition to imposing any fine, probation and jail term.

Custody Considerations when seeking to Relocate

Relocation out of Connecticut - Custody Issues

The rule for relocation in Connecticut up until the passage of C.G.S. §46b-56d was set forth in Ireland v. Ireland, 246 Conn. 413 (1998). The Court’s approach, in Ireland involved a multiple step test that shifted burdens from the relocating parent to non-relocating parent. The Court borrowed from the American Law Institute in its Principles of the Law of Family Dissolution: Analysis and Recommendations saying that “[a] parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as the parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose.” Ireland v. Ireland at 424. The Court further said that “a relocation motivated by a legitimate purpose should be considered reasonable, unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.” Id. (Internal quotation marks omitted). This rule said the Court, “places the initial burden of proof on the custodial parent, which is the party with the best access to information relevant to the legitimacy of the motives behind the planned location.

Once the legitimacy and reasonableness of the move have been established by the relocating parent the burden shifted to the non-relocating parent to show that the move was not in the best interest of the child. See Ireland v. Ireland. In the end a scheme of shifting burdens was established; each party having to carry their part by a preponderance of the evidence.

C.G.S. §46b-56d Relocation of parent with minor child. Burden of proof. Factors considered by the court, was adopted by the Connecticut State Legislature to overturn the burden shifting scheme described above. The statute is printed in its entirety below:
(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.
(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent's reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the nonrelocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.

Of immediate consequence is the third element described in “(a)”; viz., the relocating parent must prove by a preponderance of the evidence that the relocation is in the best interest of the child. By allocating this burden to the non-relocating parent the Ireland burden shifting scheme is completely done away with.

The end result is that the current state of the law in Connecticut places the entire burden on the relocating parent, to show that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child. C.G.S. §46b-56d

Recognition of a Foreign Divorce in the State of Connecticut

Recognition of a Foreign Countries Divorce in the State of Connecticut:

The Principle of Comity

The concept of securing a divorce in a foreign country, and seeking its recognition in a Connecticut court is far from novel. Connecticut Reporters are replete with cases concerning this issue. The general proposition is that divorce judgments of foreign nations may be recognized by Connecticut courts. The seminal case is Litvaitis v. Litvaitis, 162 Conn. 540 (1972). The Court set forth the rule that is followed, to this day, in Connecticut, “[J]udgments of courts of foreign countries are recognized in the United States because of the comity due to the courts and the judgments of one nation from another.” Id. at 545

Comity is defined by Black’s Law Dictionary as, (1) “courtesy among political entities (as nations, states, or courts or different jurisdictions), involving esp. mutual recognition of legislative, executive, and judicial acts.” Connecticut Courts will follow the decision of a foreign country as a matter of courtesy. Nowhere does the law suggest that principles of comity require the court to respect the decision of a foreign court. In fact the Court was clear in Litvaitis, saying that “[t]he full faith and credit clause of the constitution of the United States does not apply to a divorce obtained in a foreign country.” Id.

With this in mind the Litvaitis, court fashioned four exceptions to the general rule set forth above. First, a “decree of divorce will not be recognized by comity where it was [1] obtained by a procedure which denies due process of law in the real sense of the term, or [2] was obtained by fraud, or [3] where the divorce offends public policy of the state in which recognition is sought, or [4] where the foreign court lacked jurisdiction.” Id. quoting 24 Am. Jur. 2d, Divorce and Separation, § 964.

The fourth requirement, the omnipresent question of jurisdiction can be raised by either party or the Court at any time. The Litvaitis Court addressed jurisdictional issues in divorce cases directly saying that:
[o]ur courts will not recognize a divorce obtained in a foreign country if neither spouse had a domicil in that country. The rule that a domicil of at least one of the spouse in the jurisdiction granting the divorce is essential to give the court jurisdiction to grant a divorce applies to decrees of foreign nations as well as to decrees entered within the Untied States, even though a domicil is not required by the laws of the jurisdiction which grants the divorce” id. at 545; also see 24 Am. Jur. 2d, Divorce and Separation, § 965; Rice v. Rice, 134 Conn. 440 (1948), State v. Cooke, 110 Conn. 348, Gildersleeve v. Gildersleeve, 88 Conn. 689.

The United States Supreme Court has also weighed in on the requirement that domicil of one party must be found in order for a divorce decree to be valid. “The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it.” Williams v. North Carolina, 325 U.S. 226 (1945)

Because domicil is a jurisdictional requirement it is critical to understand what constitutes domicil. In Williams two married defendants, residents of North Carolina, went to Nevada in order to get divorced from their respective spouses. Nevada requires six weeks to establish residency. After six weeks each defendant obtained their divorce; subsequently they were intermarried. Upon returning to North Carolina they were prosecuted for bigamous cohabitation. The North Carolina Court did not recognize the Nevada divorce because neither party was a domiciliary of Nevada. “Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance.” Id.

The Williams case was fairly straightforward in that the parties, after their divorce immediately returned to North Carolina. The Court balanced the issue granting full faith and credit against North Carolina’s rights to address internal social issues. However, what is important is that the Williams Court approved of North Carolina’s authority to deny that domicil existed in Nevada.

The Rice case cited above involved almost the same geographical issues as the Williams case. In each instance, the questionable divorce was obtained in the State of Nevada. However, in Rice the parties involved were Connecticut residents. Moreover, the facts were stronger in favor of finding domicil in Rice than they were in Williams. The defendant who obtained the divorce in Nevada rented an apartment in Reno. He stated that he intended to live there. However, he only remained in the state long enough to complete the divorce action. He then relocated to California, while keeping his apartment in Nevada.

The trial court found that the party seeking to enforce the decree was not a domiciliary of Nevada. “To constitute domicil, the residence at the place chosen for the domicil must be actual, and to the fact of residence there must be added the intention of remaining permanently; and that place is the domicil of the person in which he has voluntarily fixed his habitation, not for a mere temporary or special purpose, but with the present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to induce him to adopt some other permanent home.” Mills v. Mills, 119 Conn. 612 at 617. The defendant’s intention to remain in Nevada definitely, while in Nevada is only part of the equation. “When [a party] left this State with the intention of never returning, their domicil in Connecticut was not thereby changed. The former domicil persists until a new one is acquired. Id. at 446, quoting McDonald v. Hartford Trust Co., 104 Conn 169 Because Rice left Nevada for a job in California and because he only remained in Nevada long enough to obtain a divorce the Connecticut Supreme Court held that he was not domiciled in Nevada and the Nevada divorce decree was invalid because the court lacked subject matter jurisdiction.

Connecticut Unfair Trade Practices Act

Connecticut Unfair Trade Practices Act § 42-110b (CUTPA)

General Statutes § 42-110b (a) provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."

"[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise - whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness, (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] . . . . All three criteria do not need to be satisfied to support a finding of unfairness." (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 785-86, 720 A.2d 242 (1998).