Opinion
TTDFA185009784S
01-02-2019
Ryan BOLAND v. Rachel ROWAN
UNPUBLISHED OPINION
Armata, J.
I
BACKGROUND AND HISTORY OF THE CASE
On March 13, 2018, the plaintiff filed a visitation application pursuant to General Statutes § 46b-61, seeking weekly visitation with his two children, Brayden, born in 2012, and Jade, born in 2017. On April 13, 2018, the defendant filed an answer and cross complaint. In her answer and cross complaint, the defendant admits the jurisdictional allegations as set forth by the plaintiff. However, in her cross complaint, the defendant seeks "sole custody and sole physical custody" of the minor children, child support, and such other legal or equitable relief that this court may deem appropriate. On May 7, 2018, the court, K. Murphy, J., ordered that the case be referred for a comprehensive evaluation by Family Services. The evaluation was assigned to Lynn Gamache, who completed the same on November 28, 2018. A hearing on this matter was held on December 14, 2018. Present at the hearing were the plaintiff, who was self-represented, and the defendant, who was represented by counsel. Both parties testified at the hearing. The court also heard testimony from Gamache, Angela Palko-Coombs, who is the mother of the plaintiff’s other two children, and Trent Gerbers, who is the defendant’s present husband and the father of her other child.
II
EVIDENCE PRESENTED AT THE HEARING
The plaintiff, who presented no witnesses, testified briefly. He stated that he suffers from alcohol addiction but that since November 15, 2018, he has been in a period of sobriety. He is currently attending intensive outpatient treatment at Natchaug Hospital, and he recently had negative breathalyzer and urine screens. He indicated that he would like to see Brayden and Jade "any way possible" "supervised or not." He admitted he has not seen the children in two years and that Jade may not recognize him due to her age. He is currently studying manufacturing through a program at Goodwin Technical School. The plaintiff indicated that he has served a six-month period of incarceration, is currently on probation, and has had a longstanding alcohol problem. The plaintiff indicated that he has multiple convictions for felonies, driving while intoxicated, and for violation of a protective order relative to the defendant. He testified that he has been charged with risk of injury to minor children in the past. He also testified that he is not currently seeing his older children, who are age fourteen and eleven, but that he can see them in reunification counseling once he can provide his share for the costs for the same. The plaintiff admitted that he had completed a "Relapse and Recovery" program but that, notwithstanding the same, he relapsed as recently as October 18, 2018. He testified that he began this round of treatment on November 5, 2018, which was the earliest date he could get into a program. The plaintiff testified that he has attended five rehabilitation programs prior to being incarcerated and that he believes he drinks as a means of "self-sabotaging" himself. He testified that his mother was an alcoholic and that he has not had a relationship with her since age five.
The plaintiff testified that his probation, which ends in March 2021, requires him to do 100 hours of community service, attend a MADD victim impact panel, comply with all ignition interlock device requirements, not operate under suspension, and undergo substance abuse evaluation and treatment programs as recommended by the office of Adult Probation.
The plaintiff testified that he has been drinking since he was fourteen and, until now, has only had a brief period of sobriety from 2010 to 2012.
Under cross examination, the plaintiff admitted that it would not be in his children’s best interests to develop a relationship with him and then see him relapse or go to jail. He indicated he currently has a driving while intoxicated charge pending in Massachusetts, but he believes that all he has to do is pay a fine associated with the same. He believes that it is best for the children to have their father in their life. The plaintiff also testified as to his employment status, most recently working from July 2018, until September 2018, for Green Moving and Storage, a moving company, and that he was earning approximately $ 40, 000 per year. He testified that he quit that job because between working, the intensive outpatient rehabilitation, and attending school, it was too much stress on him thereby jeopardizing his sobriety. He is not currently working. Given the plaintiff’s current condition, the court finds he has only a minimum wage earning capacity.
The court also heard the testimony of the defendant, now known as Rachel Gerbers. The defendant currently works at Bouvier Insurance as a "Commercial Lines Marketing Specialist," and makes the income reflected on her financial affidavit. See Exhibit A. She testified about her history with the plaintiff, which was troubling. She indicated there was a history of domestic abuse by the plaintiff which was often alcohol-related. She testified that he indicated that he would kill her or himself and that, if she left, he would take the children and she would not see them again. She testified that the plaintiff was controlling and that she tried to break up with him "fifty times." She also testified that she would find "nips" hidden around the house by the plaintiff when they were together. She also worried for the safety of her children while in his care because at times, when she returned home from work, she would find the plaintiff drunk. She indicated that the plaintiff, while intoxicated, broke into her home, notwithstanding an order of protection.
The defendant testified that the plaintiff has no relationship with the children, that Brayden barely remembers him and refers to him as his "old Daddy," and that Jade has no recollection of the plaintiff at all.
The defendant testified that the children are doing great and "thriving." She indicated that she has a structure and routine in place from which they benefit. She described Jade as a "happy little girl with a strong personality." She further testified that Brayden is "hitting all his milestones," and that the children are well adjusted and respectful. She testified about how raising the children is a balancing act with her new husband in that there are three children and both she and her husband work full-time jobs. She confirmed that the children have no relationship with plaintiff. She indicated that the plaintiff has had a longstanding struggle with alcoholism and his sobriety. She recounted how he relapsed following the birth of their son because of the stress of a newborn, financial pressure, lack of sleep, etc. She is worried that it could happen again and will detrimentally affect her children. She voiced concerns about how the children would do if the plaintiff started seeing the children but then failed to show for a visit, showed up under the influence of alcohol, or was "ripped out of their lives." She also testified that she has always made all of the decisions for the children and met all of their needs, such as taking them to doctor’s appointments. The court finds the defendant’s testimony credible.
The defendant also presented the testimony of Gamache, who described the process and results of her comprehensive evaluation. The evaluation came into evidence as a full exhibit, court’s number 1. The court finds that Gamache, to the extent that the parties cooperated with her, was thorough and credible relative to her testimony. Gamache indicated that the plaintiff "somewhat participated in the study" in that he failed to attend certain appointments. Of note, at one meeting, Gamache described smelling "an overwhelming odor of alcohol on plaintiff," although the plaintiff denied the same. Gamache testified that the defendant was fully cooperative with the study. Gamache also noted in her report that there is currently a full no-contact order between the parties that expires in April 2019. Gamache conducted a home visit at the defendant’s home, where the children reside. Gamache testified that, based on this visit, she had no concerns relative to the defendant’s home. She testified that she observed appropriate and healthy bonds between the children, the defendant, and her new husband. Gamache also testified that the children referred to Trent Gerbers as "daddy," and that their interactions were natural and appropriate. She testified that the children consider the defendant’s current husband to be the "psychological father." Gamache also testified that Brayden reported no memory of the plaintiff. Gamache indicated that the children are doing well; they are stable, healthy, and happy, and do not have a memory of the plaintiff. However, Gamache indicated she had concerns relative to their well-being if a course of reunification was started and then abruptly terminated due to an alcohol relapse by the plaintiff or his being incarcerated. She testified that it could "profoundly" impact and confuse the children, especially given how well the children are doing now and the period of time that there has been no contact with the plaintiff. Gamache testified that she has specific concerns relative to the plaintiff’s sobriety, especially given the number of relapses he has had, some of which she was not aware. She was also concerned because the plaintiff has a history of legal avoidance and may have an outstanding warrant in Massachusetts. Gamache testified that the plaintiff may suffer from "anxiety disorder, not otherwise specified," and that although he was prescribed medication for the same, he was not taking said medication or otherwise dealing with the diagnosis. Gamache stated that the plaintiff’s recovery is "precarious." Although Gamache found the plaintiff to be honest and transparent, and that she was glad about his current sobriety, she testified that his current period of sobriety is too new and that he needs additional time before engaging with the children. Gamache recommended that the defendant should have sole custody of the children, that the plaintiff should not have access at this time, and that the court review the same after the plaintiff has maintained a consistent period of sobriety for a minimum of six months.
In its discretion, the court has ordered the comprehensive evaluation sealed pursuant to General Statutes § 46b-11, which provides, in relevant part: "The records and other papers in any family relations matter may be ordered by the court to be kept confidential and not to be open to inspection except upon order of the court or judge thereof for cause shown." See also Myles v. Myles, 136 Conn.App. 483, 488-89, 46 A.3d 301 (2012).
The court will note that Trent Gerbers and the defendant are the parents of Brityn Gerbers, Brayden’s and Jade’s half-sister, who is one year old.
During the defendant’s case, her attorney reviewed the plaintiff’s relapse history and Gamache confirmed that there were additional relapses of which she was not aware.
Gamache testified that the plaintiff did not disclose the same to her, but that she found reference to the same in intake notes she reviewed from the plaintiff’s treatment provider.
The defendant presented the testimony of Angela Palko-Coombs. Palko-Coombs testified that the plaintiff presently has no access to the two children that they had together. She testified that their children, ages fourteen and eleven, do remember the plaintiff. She also testified about an incident at an October 18, 2018 soccer game that the plaintiff attended so that he could see his eleven-year-old daughter, with whom he has had little contact. Palko-Coombs indicated that the plaintiff, whom she believed was intoxicated on that date, caused a commotion at the field that resulted in their daughter becoming visibly upset. Palko-Coombs testified that she and the coach had to comfort the daughter following the incident. Palko-Coombs also confirmed that the plaintiff has had a troubled history with alcohol and at times was intoxicated when interacting with their children.
The defendant also presented the testimony of Trent Gerbers, the defendant’s present husband and the father of their thirteen-month-old daughter. Gerbers confirmed that Brayden and Jade are doing well, and that Gerbers admires the defendant’s parenting skills in that she is nurturing and comforting. He also indicated that Brayden and Jade are well adjusted, healthy, and happy. He also admitted that he has not seen the plaintiff interact with the children.
It should also be noted that both parties testified that had they remained intact, it would have been more likely than not that they would have provided for their children’s postsecondary educations, and that educational programs after secondary school were important to them. Accordingly, the court finds the same.
III
BURDEN OF PROOF AND APPLICABLE LAW
The court is charged with deciding these matters based upon the statutory criteria set forth in General Statutes § 46b-56(c), which provides, in relevant part, that when making any order regarding the custody, care, education, visitation, and support of children, the court shall "consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more of the [sixteen enumerated] factors ... The court is not required to assign any weight to any of the factors that it considers."
The factors set forth in General Statutes § 46b-56(c) are: "(1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b."
In considering these matters, the court must weigh the credibility of the parties who testify. "The sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). "The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Id.
IV
DISCUSSION
In D’Amato v. Hart-D’Amato, 169 Conn.App. 669, 681-83, 152 A.3d 546 (2016), the Appellate Court found that the evidence was sufficient to support the trial court’s finding that granting the plaintiff father sole legal custody of the parties’ child was in the child’s best interests. The custody order was based on evidence establishing that, despite a period of sobriety, the defendant mother had been drinking during the majority of her adult life, had minimized the significance and extent of her alcohol-related difficulties, and had no contact with the child. Id. See also Hylinski v. Hylinski, Superior Court, judicial district of Fairfield, Docket No. FA-00-0378131-S (January 11, 2002, Dewey, J.) (2002 WL 194491, at *2).
Further, in deciding issues of custody and parental access, "the ultimate test is the best interests of the child." Kennedy v. Kennedy, 83 Conn.App. 106, 113, 847 A.2d 1104, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004). "In exercising its discretion, the court considers the rights and wishes of the parents and may hear the recommendations of professionals in the family relations field, but the court must ultimately be controlled by the welfare of the particular child." Gallo v. Gallo, 184 Conn. 36, 43-44, 440 A.2d 782, 786-87 (1981); Seymour v. Seymour, 180 Conn. 705, 713, 433 A.2d 1005 (1980); Stewart v. Stewart, 177 Conn. 401, 408, 418 A.2d 62 (1979); Palmieri v. Palmieri, 171 Conn. 289, 290, 370 A.2d 926 (1976). "This involves weighing all the facts and circumstances of the family situation. Each case is unique. The task is sensitive and delicate, and involves the ‘most difficult and agonizing’ decision that a trial judge must make." Berdon, "Child Custody Litigation: Some Relevant Considerations," 53 Conn.B.J. 279, 280 (1979). The trial court has the great advantage of hearing the witnesses and in observing their demeanor and attitude to aid in judging the credibility of testimony." Gallo v. Gallo, supra, 184 Conn. 44.
While the court applauds the plaintiff’s recent efforts to maintain sobriety and address the issues that face him, the court cannot overlook the plaintiff’s history with alcohol and its effect on the defendant and the children. The court is persuaded by the recommendations of the family relations counselor and the defendant relative to the plaintiff’s access to the children. The court is impressed with the various witnesses’ descriptions of the children as healthy, happy, and well adjusted, and the court does not wish to jeopardize that until the plaintiff has had a period of sustained sobriety. Maintaining that sobriety will demonstrate his commitment to his children.
V
FINDINGS AND ORDERS
After consideration of all the evidence presented, including the testimony of the parties, the testimony of the witnesses, a review of the court file, the exhibits offered, all applicable statutes including, but not limited to, General Statutes § 46b-56, the applicable case law, and the child support guidelines in effect from July 2015, the court concludes that the plaintiff has met her burden of proof by a preponderance of the evidence and makes the following orders, which the court finds to be in the best interests of the minor children:
1. Sole legal and physical custody of the minor children is awarded to the defendant.
2. The plaintiff shall have no contact with the minor children at this time, but may seek to modify this order if he can demonstrate a one-year period of sobriety and consistent treatment, and that all of his criminal matters have been resolved.
3. At any time the plaintiff seeks to modify this order, the court will review the situation of the family at the time, including determining how well the children are doing and the stability of the parties.
4. Notwithstanding this order, the defendant shall be allowed access to the academic, medical, hospital or other health records of such minor children.
General Statutes § 46b-56(a) provides, in relevant part, "In any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45 ... (g) A parent not granted custody of a minor child shall not be denied the right of access to the academic, medical, hospital or other health records of such minor child, unless otherwise ordered by the court for good cause shown."
5. The plaintiff shall continue to participate in ongoing therapy with a licensed provider to address the issues raised in this decision and the family relations evaluation.
6. The plaintiff shall pay the defendant child support in the amount of $ 100 per week for the two children, which amount is consistent with the child support guidelines as filed herewith. See Defendant’s Exhibit B. Said orders are retroactive to December 14, 2018.
Said orders are based on the plaintiff having a minimum wage earning capacity, as reflected on the child support guidelines submitted by defendant.
7. The plaintiff shall also pay 20 percent of any unreimbursed medical expenses and child care contribution, with the plaintiff to bear responsibility for the remaining 80 percent. See Defendant’s Exhibit B.
8. The defendant shall be entitled to claim or benefit from any and all tax benefits associated with the children, including credits, deductions, etc.
9. The court reserves jurisdiction pursuant to General Statutes § 46b-56e.
ORDER
SO ORDERED.