In the following Superior Court decision the Connecticut Court has now defined what is akin to a parent child relationship:
08-CBAR-2966; Hickey v. Hickey;
Short Name: Hickey v. Hickey
Long Name: Jean Hickey v. Denis Hickey
Other Parties:
Opinion No.: 104881
Conn.Sup. Cite
Docket Number:FA000162519S
As-is Docket Number: FA00-0162519S
Other Docket Numbers:
As-is Other Docket Numbers:
Venue: Judicial District of Waterbury at Waterbury
File Date: November 18, 2008
Caption Date: November 18, 2008
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Cutsumpas, Lloyd, J.T.R.
Opinion Title: MEMORANDUM RE MOTION #152
ISSUE
Does a loving, caring, responsible grandmother, who has had a long and positive relationship with her three grandchildren, have standing to intervene in an effort to seek custody?
The petitioner-grandmother in the instant case has filed a Motion for Custody (#153) in which she alleges that it would be detrimental to her grandchildren's best interest to remain in the care of their mother, who has custody pursuant to a divorce decree entered some seven years earlier, or in the care of their father, who is facing serious criminal charges. In order to pursue a motion for custody of the children, she has filed a Motion to Intervene (#152), seeking to be made a party in the current proceedings before the court. The threshold question which must be answered is whether the grandmother has a relationship with the children akin to that of a parent which would give her standing to pursue her motion for custody.
FACTS
The plaintiff, Jean Hickey, married the defendant, Denis Hickey, on February 13, 1993. Prior to their divorce on May 17, 2001, the parties had three children, Samantha Hickey, born December 11, 1993, Denis T. Hickey, born February 7, 1996, and Amanda Hickey, born July 10, 1998.
On August 11, 2008, the petitioner, Kathleen Hickey, the paternal grandmother of the three minor children, filed a motion to intervene to pursue custody of the minor children. During a two-day evidentiary hearing held before this court on October 15 through October 16, 2008, the petitioner testified as to her relationship with the three minor children. She testified that she has cared for and reared the children since their births, changing their diapers, giving them formula and medication, treating their diaper rash, taking them for walks, going on trips together and watching them for three to four days at a time. She testified that she was familiar with each child's healthcare needs but that the children's mother, the plaintiff, was in charge of all medical decision making. When it came to disciplining the children she stated that she would sit them down and explain to them what they did wrong. She also testified as to her attempts to instill proper table manners in her grandchildren and to keep them clean and polite.
The petitioner further testified as to her role in the children's education, stating how she would help them with their homework when asked. She also stated that she used to read to them when they were younger, would take them to the movies, cook them meals, do their laundry and purchase them back-to-school clothing and supplies. She described her home as a place where the children felt comfortable; they knew where the soda was located and played on the swing-set in her fenced-in yard. She testified as to the children's ability to confide in her about their problems, how she and the children would frequently talk on the phone. She stated that although she may not agree with their tastes in music she was familiar with the genres that they listened to. She also knew their favorite television shows and their favorite subjects in school.
When questioned about the children's religious upbringing, she testified that she would ask them to pray before bedtime. She stressed to the court the importance of family traditions surrounding Good Friday and Christmas Eve, be it coloring Easter eggs for Easter or only eating fish on Christmas Eve. She testified that the children would spend time with her on the Fourth of July and then again on Thanksgiving and the day after.
On a whole, the petitioner painted a picture for the court of a loving and caring person who would do anything for her grandchildren. She is seeking to intervene so that she can pursue custody of the minor children who she believes are living in a tumultuous, unstable environment which is inconsistent with their best interests. The plaintiff mother of the children opposes the intervention while the defendant father supports it.
In her motion to intervene, the petitioner alleges that she has a relationship with the minor children akin to that of a parent. She further alleges that the minor children currently reside with their mother, the plaintiff, which is not in accord with their best interest, as the residence is not a stable or nurturing environment. In her memorandum in opposition to the petitioner's motion to intervene, the plaintiff argues that the vague allegations made by the petitioner are untrue. She further argues that the petitioner lacks standing to intervene as she does not have a relationship with the minor children akin to that of a parent.
LAW
"[I]n cases in which a third party seeks to intervene in a custody proceeding brought pursuant to [General Statutes] §46b-56(a), the party must prove by a fair preponderance of the evidence facts demonstrating [(1)] that he or she has a relationship with the child akin to that of a parent, [(2)] that parental custody clearly would be detrimental to the child and, [(3)] upon a finding of detriment, that third party custody would be in the child's best interest." (Emphasis added.) Fish v. Fish, 285 Conn. 24, 89, 939 A.2d 1040 (2008).
"The relevant statutes concerning visitation and custody are overly broad in exactly the same fashion; they fail to define with particularity those persons who may seek visitation and custody other than parents. For this reason, as in the case of visitation, a literal application of the custody statutes could place them in constitutional jeopardy . . . Accordingly, we conclude that, to avoid constitutional infirmity, the standing requirement that a third party allege a parent-like relationship with the child should be applied for all the reasons described in [Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002),] to third party custody awards and to third parties seeking intervention in existing custody proceedings." (Citation omitted; emphasis added; internal quotation marks omitted.) Fish v. Fish, supra, 285 Conn. 44.
There is little appellate authority providing guidance as to what constitutes a relationship akin to that of a parent or a parent-like relationship. While other courts have been able to determine if a parent-like relationship exists, they have been hesitant to provide a clear-cut definition as to what exactly they were looking for in reaching that determination.(fn1)
In Nye v. Rivard-Nye, Superior Court, judicial district of Tolland, Docket No. FA 06 4004274 (June 16, 2006, Swords, J.), the court looked to General Statutes §45a-717(g)(2)(C) for guidance in determining whether the applicants' allegations, in a visitation context, satisfied the requirement of a parent-child relationship.(fn2) The court was provided with evidence that: "(1) the child and the respondent lived with the applicants for the first year of the child's life; (2) after the respondent and the child moved, the applicants supported the child emotionally and financially; (3) they 'took the minor child every weekend,' often went fishing and camping with the child, allowed the child to visit his friends, took the child on vacation and bought him clothing; (4) they arranged and provided transportation for the child to and from his medical appointments and enrolled the child in extracurricular activities, e.g., cub scouts and t-ball; and (5) that [one of the applicants] was the emergency contact person for the child at school because the respondent had no telephone." Id. The court held that "while the applicants seem to have been an important source of support for the child, the applicants do not tend to the child's continuing, day to day needs." (Emphasis added.) Id.; see also Fortunato v. De Tuya, Superior Court, judicial district of Fairfield, Docket No. FA 08 4024517 (June 6, 2008, Owens, J.T.R.) (ruling against the plaintiff where she had not alleged that she provided any direct financial support to the minor child or that she provided for the daily needs of the minor child) (emphasis added).
Similarly, in Crockett v. Pastore, 259 Conn. 240, 789 A.2d 453 (2002), the Connecticut Supreme Court failed to find a parent-like relationship in the visitation context. It held that the plaintiff "was required to plead and prove that her relationship with the child was such that she acted in a parental type of capacity for an extended period off time . . . " (Emphasis added.) Id., 248. There, the court was provided with evidence that the plaintiff was the child's maternal grandmother, and that she had maintained regular visits and a loving relationship with the child from the time of the child's birth. Id. "The record further indicate[d] that these regular visits occurred twice every week for three hours at the plaintiff's home. In addition, the plaintiff testified that she telephoned the child . . . to ask how the child was doing, to say prayers, to say good night, and to sing songs." Id. Nonetheless, the court found that there was "no evidence in the record that the plaintiff assumed and performed [a parent-like] role." Id. Apparently, there needs to be more than a close relationship for the court to find a relationship akin to that of a parent. Id., see also Roth v. Weston, supra, 259 Conn. 236-37 (where a maternal grandmother and aunt visited regularly with the children, including overnights, participated in the children's birthday celebrations and had the children stay at their homes illustrated that they "were involved in an ongoing relationship with the children" but failed "to establish the type of relationship . . . [in which they have acted in a paternal type capacity to the children] . . . "); Clements v. Jones, 71 Conn.App. 688, 694, 803 A.2d 378 (2002) (where the court determined that the child's grandmother who had alleged that she "maintained a very close relationship with the Minor child . . . spent much time . . . bonding with him, and that she and the child are close emotionally" established that she and child shared a close relationship, but did not establish the jurisdictional prerequisite of a parent-like relationship).
Other jurisdictions also require more than a close relationship. In California, for example, the courts use the term "de facto parent" as opposed to a parent-like relationship or a relationship akin to that of a parent. A "[d]e facto parent means a person who has been found by the court to have assumed on a day-to-day basis, the role of parent, fulfilling both the child's physical and psychological needs for care and affection, and who has assumed that role for a substantial period." (Internal quotation marks omitted.) In re R.J., 164 Cal.App.4th, 219, 223, 79 Cal.Rptr.3d 184 (2008). "A determination of whether or not a person qualifies as a de facto parent is a fact-based assessment, the decision to grant de facto parent status depends on an assessment of the particular individual and the facts of the case . . . Factors courts generally consider in making this assessment include (1) whether the minor is psychologically bonded to the adult; (2) whether the adult has assumed the role of a parent on a day-to-day basis for a substantial period time; [and] (3) whether the adult possesses information about the minor unique from other participants in the process . . . " (Citation omitted; internal quotation marks omitted.) Id.
In New Jersey, the Supreme Court adopted a four-prong test first formulated by the Wisconsin Supreme Court when dealing with the issue of parental duties and the rights of third parties. "Under that test, '[t]o demonstrate the existence of the petitioner's parent-like relationship with the child, the petitioner must prove four elements: (1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation [a petitioner's contribution to a child's support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.' In Re Custody of H.S.H-K., [193 Wis.2d, 649, 658-59, 533 N.W.2d 419 (1995).]" V.C. v. M.J.B., 163 N.J. 200, 223, 748 A.2d 539 (2000).
DISCUSSION
While the court cannot deny that the petitioner is a loving and caring grandmother, it is not persuaded by her claim that she has a relationship with the minor children akin to that of a parent. The petitioner neither has nor has ever had any decision-making authority over any aspect of the children's lives. She is not responsible for controlling the children or their health, education, religion or control. Moreover, the petitioner does not provide any direct financial support to the children nor does she tend to their daily needs. The plaintiff testified that she is the primary source of financial support for the children.
Even though the petitioner was able to testify as to her grandchildren's prior medical history, as previously mentioned, the plaintiff was in charge of all medical decisions regarding the children. As the petitioner and plaintiff testified, the petitioner would have to get approval from the plaintiff when it came to doing anything more then treating a minor injury or illness. The plaintiff testified that she does not consult with the petitioner regarding any of the children's healthcare needs or issues.
A similar response was given to questions about the children's education. Although the petitioner may have helped the children with their homework, the plaintiff testified that she dealt with all school-related issue. She testified that both sets of grandparents as well as herself and the defendant purchased school-related items for the children. She also testified that she was the one who attended parent-teacher conferences, provided transportation to and from school, she signed the children up for extracurricular activities, and helped them with their homework when needed. The plaintiff further testified that she does not consult with the petitioner regarding the children's education.
The role of the petitioner with regards to the religious upbringing of the children is no different than her role in any other aspect of the children's lives; it is the plaintiff who makes all the decisions. It is true that the children spend time with the petitioner for certain holidays. The testimony reveals, however, that these holidays are not just spent with these three grandchildren but with their cousins as well. Her interaction with the children at these times is by no means unique to just these three children. As the plaintiff testified, the children would spend time with both sets of grandparents during the holidays.
In regards to control and discipline over the children, it is the plaintiff who is in charge. The children have resided with the plaintiff since her divorce. The plaintiff testified that she is the chief disciplinarian in their lives. She is the one who grounds them or takes away their phones or computers when they misbehave. The petitioner may have some authority over the children when they visit her, but her control is limited by that of the plaintiff.
CONCLUSION
This court will not deny that the petitioner is a loving, caring, responsible grandmother, who has had a long and positive relationship with her three grandchildren, but it cannot agree with her assertion that she has a relationship with them akin to that of a parent to overcome the jurisdiction hurdle in Fish v. Fish, supra, 285 Conn. 89. "The essence of parenthood is . . . the right to make decisions regarding [the child's] care, control, education, health, religion and association." (Emphasis added; internal quotation marks omitted.) Fennelly v. Norton, 103 Conn.App. 125, 131, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007). This court has not been provided with sufficient evidence to establish that the petitioner has now or has ever had any decision-making authority over any aspect of the children's lives. The petitioner is not responsible for disciplining the children or for their health, education or religion. The petitioner does not provide any direct financial support to the children, nor does she tend to their daily needs. The petitioner's relationship with the children is more akin to that of a grandparent; it is not one akin to that of a parent.
While Connecticut courts have addressed numerous petitions for visitation and custody by non-parents since the Supreme Court's holding in Roth v. Weston, none have delineated with any specificity a definition, or imposed particular criterion by which to determine what constitutes a relationship akin to that of a parent. A relationship akin to that of a parent can be defined as one in which:
1. The parent consented to and fostered the relationship;
2. The child has lived with the third party;
3. The third party has been responsible for the daily care of the child;
4. The third party has been responsible for major decisions concerning the child's health, education, religion, and welfare;
5. The third party has provided financial support for the child; and
6. The child and the third party have established a bonded, dependent relationship.
Not all of the requirements need be present in every case, but obviously the position of the third party would be strengthened if all or most were indicated.
The petitioner's position is not enhanced because of her allegations that the grandchildren are living in an unsatisfactory environment. Put in another way, a third party does not acquire standing to petition the court for custody because of claims that the children are unhappy, or are living in a dangerous, tumultuous, and unsafe environment. The seminal case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and the Connecticut Supreme Court cases of Roth v. Weston and Fish v. Fish, supra, have erected a high and practically impregnable wall around parenthood. A third party must initially satisfy the first prong of the test established in Fish v. Fish, supra, 289 Conn. 89, which states that to avoid constitutional infirmity, a third party must allege and prove by a fair preponderance of the evidence that he or she has a relationship with the children akin to that of a parent before proceeding with custody litigation.
To rule otherwise, would permit any third party who has a relationship with the children, for example a grandparent, aunt, uncle, cousin, friend, neighbor, nanny, baby sitter, and teacher, to bring suit seeking custody. Such a result would be intrusive on the constitutional rights of the parents. Parents have a fundamental right to raise their children as they see fit and should not have to experience the trauma and cost of unwanted litigation until the threshold question of standing is resolved.
In this case, the petitioner has failed to satisfy the threshold question and therefore her motion to intervene is denied.
Cutsumpas, JTR
__________________________Footnotes:
1. It is almost as if other Connecticut courts are imposing an "I know it when I see it" standard to defining a parent-like relationship which has been applied in obscenity cases. See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring) (stating that, although it is difficult to define obscenity, "I know it when I see it").
2. Section 45a-717(g)(2)(C) provides that an "ongoing parent-child relationship . . . 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."
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