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).
Friday, February 6, 2009
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).
"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
CONNECTICUT CRACKING DOWN ON DRUNK DRIVERS
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.
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
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.
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).
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).
Grandparents Rights
Connecticut Courts Definition of '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."
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."
Establishing Custodial Rights for Grandparents in Connecticut
What is Akin to a Parent Child Relationship?
Many states have recognized a parent child relationship under “de facto parent,” “psychological parent,” or “in loco parentis” theories. The question of who may be deemed a psychological parent for purposes of receiving parental responsibilities has been answered differently throughout the United States.
A psychological parent under the laws of the state of Oregon has been defined within ORS 109.119 (10)(a) as:
(a) “Child-parent relationship” means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.
In California, for example, a de facto parent is defined as “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.” Cal. Rules of Court, R. 1401 (8); see also C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me. 2004) (declining to define a de facto parent, but noting “it must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life”).
In California, a de facto parent does not have custody over a dependent child or the right to make any decisions on his or her behalf. Rather, a de facto parent simply has standing to participate as a party in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. (Cal. Rules of Court, rule 5.534(e).) While any grandparent or other relative may in the court's discretion be present at a hearing and address the court (Cal. Rules of Court, rule 5.534(f)), a de facto parent has additional rights. A de facto parent may also present evidence, be represented by counsel and, in the court's discretion, be appointed counsel. (Cal. Rules of Court, rule 5.534(e).)
Factors a court considers in making its decision regarding a request for de facto parent status include: the nature of the applicant's psychological bond with the child; the applicant's adherence to the role of parent over a substantial period of time; whether the applicant possesses unique information about the child; whether the applicant has regularly attended juvenile court hearings; and whether a future proceeding may result in an order that permanently forecloses the applicant's contact with the child. In re Merrick V. (2004) 122 Cal.App.4th 235, 256.
The Alaska Supreme Court has defined a psychological parent as: “[O]ne who, on a day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child’s psychological needs for an adult. This adult becomes an essential focus of the child’s life, for he is not only the source of the fulfillment of the child’s physical needs, but also the source of his emotional and psychological needs . . . . The wanted child is one who is loved, valued, appreciated, and viewed as an essential person by the adult who cares for him. . . . This relationship may exist between a child and any adult; it depends not upon the category into which the adult falls – biological, adoptive, foster, or common-law – but upon the quality and mutuality of the interaction.” Evans v. McTaggart, 88 P.3d 1078, 1082 (Alaska 2004).
Similarly, in In re Clifford K., 619 S.E.2d 138 (W.Va. 2005), the West Virginia Supreme Court defined the nature of the relationship that supports a finding that the third party acted as a psychological parent. The court stated: “A “psychological parent,” who has greater protection under the law in a child custody proceeding than would ordinarily be afforded to one who is not the biological or adoptive parent of the child, is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support.” Id. at 157.
The State of Nebraska has defined a parent child relationship as "a person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent . . . ." Cornhusker Christian Child Home v. DSS, 227 Neb. 94, 416 N.W.2d 551, 561 (1987) (quoting Austin v. Austin, 147 Neb. 109, 112-13, 22 N.W.2d 560, 563 (1946)).
Legal recognition of a de facto or "psychological parent" and child relationship---notwithstanding the absence of any biological ties---also finds support in a recent decision of New Jersey's highest court. In V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2000), the New Jersey Supreme Court held that “the same sex partner of a biological mother who had assumed a parental role in helping to raise the biological mother's child had established a "psychological parenthood" with respect to the child and thus had a legal right to petition for custody and visitation.” See id. at 555.
The New Jersey Supreme Court applied a four-part test to determine whether a "psychological parenthood" existed between a "third party" adult and a child:
"the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged." Id. at 551.
These criteria indicate that a given person's eligibility for "psychological parenthood" with respect to an unrelated child will be strictly limited to those adults who have served literally as one of the child's de facto parents.
Many states have recognized a parent child relationship under “de facto parent,” “psychological parent,” or “in loco parentis” theories. The question of who may be deemed a psychological parent for purposes of receiving parental responsibilities has been answered differently throughout the United States.
A psychological parent under the laws of the state of Oregon has been defined within ORS 109.119 (10)(a) as:
(a) “Child-parent relationship” means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.
In California, for example, a de facto parent is defined as “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.” Cal. Rules of Court, R. 1401 (8); see also C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me. 2004) (declining to define a de facto parent, but noting “it must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life”).
In California, a de facto parent does not have custody over a dependent child or the right to make any decisions on his or her behalf. Rather, a de facto parent simply has standing to participate as a party in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. (Cal. Rules of Court, rule 5.534(e).) While any grandparent or other relative may in the court's discretion be present at a hearing and address the court (Cal. Rules of Court, rule 5.534(f)), a de facto parent has additional rights. A de facto parent may also present evidence, be represented by counsel and, in the court's discretion, be appointed counsel. (Cal. Rules of Court, rule 5.534(e).)
Factors a court considers in making its decision regarding a request for de facto parent status include: the nature of the applicant's psychological bond with the child; the applicant's adherence to the role of parent over a substantial period of time; whether the applicant possesses unique information about the child; whether the applicant has regularly attended juvenile court hearings; and whether a future proceeding may result in an order that permanently forecloses the applicant's contact with the child. In re Merrick V. (2004) 122 Cal.App.4th 235, 256.
The Alaska Supreme Court has defined a psychological parent as: “[O]ne who, on a day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child’s psychological needs for an adult. This adult becomes an essential focus of the child’s life, for he is not only the source of the fulfillment of the child’s physical needs, but also the source of his emotional and psychological needs . . . . The wanted child is one who is loved, valued, appreciated, and viewed as an essential person by the adult who cares for him. . . . This relationship may exist between a child and any adult; it depends not upon the category into which the adult falls – biological, adoptive, foster, or common-law – but upon the quality and mutuality of the interaction.” Evans v. McTaggart, 88 P.3d 1078, 1082 (Alaska 2004).
Similarly, in In re Clifford K., 619 S.E.2d 138 (W.Va. 2005), the West Virginia Supreme Court defined the nature of the relationship that supports a finding that the third party acted as a psychological parent. The court stated: “A “psychological parent,” who has greater protection under the law in a child custody proceeding than would ordinarily be afforded to one who is not the biological or adoptive parent of the child, is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support.” Id. at 157.
The State of Nebraska has defined a parent child relationship as "a person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent . . . ." Cornhusker Christian Child Home v. DSS, 227 Neb. 94, 416 N.W.2d 551, 561 (1987) (quoting Austin v. Austin, 147 Neb. 109, 112-13, 22 N.W.2d 560, 563 (1946)).
Legal recognition of a de facto or "psychological parent" and child relationship---notwithstanding the absence of any biological ties---also finds support in a recent decision of New Jersey's highest court. In V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2000), the New Jersey Supreme Court held that “the same sex partner of a biological mother who had assumed a parental role in helping to raise the biological mother's child had established a "psychological parenthood" with respect to the child and thus had a legal right to petition for custody and visitation.” See id. at 555.
The New Jersey Supreme Court applied a four-part test to determine whether a "psychological parenthood" existed between a "third party" adult and a child:
"the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged." Id. at 551.
These criteria indicate that a given person's eligibility for "psychological parenthood" with respect to an unrelated child will be strictly limited to those adults who have served literally as one of the child's de facto parents.
Information on Connecticut Child Support
Child Support:
Connecticut General Statute §46b-86 provides in relevant part that: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a . . ." (Emphasis added). "[A] support order can only be modified by the court." Brock v. Cavanaugh, 1 Conn.App. 138, 141, 468 A.2d 1242 (1984); see also Lownds v. Lownds, 41 Conn.Sup. 100, 105, 551 A.2d 775 (1988). The reason for this rule is obvious. The court is vested with the ultimate responsibility for determining and safeguarding the best interests of children. Masters v. Masters, 201 Conn. 50, 64-65, 513 A.2d 104 (1986).
"General Statutes §46b-215b(a) does not require the trial courts to apply the Guidelines to all determinations of child support, but creates only a rebuttable presumption as to the amount of child support. It requires only that the trial court consider the Guidelines . . . The purpose of the guidelines is to ensure that a parent responsible for child support does not pay less than the amounts dictated by the guidelines." Amodio v. Amodio, 56 Conn.App. 459, 467, 743 A.2d 1135 (2000). "At the time of the dissolution . . . the court acted properly in awarding more child support than the guidelines provided. The purpose of the child support guidelines is to provide for the adequate support of children. That purpose would be thwarted if a party could not voluntarily agree to pay more than the presumptive amount set by the guidelines as being appropriate . . ." (Emphasis in original) Id., 468.
Connecticut General Statutes §46b-86(a) governs modifications of alimony and child support:
. . . any final order for the periodic payment of periodic alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a . . . In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution . . . No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.
Connecticut General Statute §46b-86 provides in relevant part that: "Unless and to the extent that the decree precludes modification, any final order for the periodic payment of alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a . . ." (Emphasis added). "[A] support order can only be modified by the court." Brock v. Cavanaugh, 1 Conn.App. 138, 141, 468 A.2d 1242 (1984); see also Lownds v. Lownds, 41 Conn.Sup. 100, 105, 551 A.2d 775 (1988). The reason for this rule is obvious. The court is vested with the ultimate responsibility for determining and safeguarding the best interests of children. Masters v. Masters, 201 Conn. 50, 64-65, 513 A.2d 104 (1986).
"General Statutes §46b-215b(a) does not require the trial courts to apply the Guidelines to all determinations of child support, but creates only a rebuttable presumption as to the amount of child support. It requires only that the trial court consider the Guidelines . . . The purpose of the guidelines is to ensure that a parent responsible for child support does not pay less than the amounts dictated by the guidelines." Amodio v. Amodio, 56 Conn.App. 459, 467, 743 A.2d 1135 (2000). "At the time of the dissolution . . . the court acted properly in awarding more child support than the guidelines provided. The purpose of the child support guidelines is to provide for the adequate support of children. That purpose would be thwarted if a party could not voluntarily agree to pay more than the presumptive amount set by the guidelines as being appropriate . . ." (Emphasis in original) Id., 468.
Connecticut General Statutes §46b-86(a) governs modifications of alimony and child support:
. . . any final order for the periodic payment of periodic alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a . . . In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as the result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution . . . No order for periodic payment of permanent alimony or support may be subject to retroactive modification, except that the court may order modification with respect to any period during which there is a pending motion for modification of an alimony or support order from the date of service of notice of such pending motion upon the opposing party pursuant to section 52-50.
Subscribe to:
Posts (Atom)
