Opinion
No. FA-04-4005260 S
October 31, 2005
MEMORANDUM OF DECISION
BACKGROUND
The captioned matter is one in which the plaintiff is seeking, pursuant to C.G.S. Sec. 46b-59, court-ordered visitation with a minor child who is not his biological child, but with whom he asserts he has a close relationship. Plaintiff was married to Julie Briere on June 15, 1996 and the couple divorced on August 2, 2002. The couple has a son, born on September 12, 1996, and a shared parenting plan is in place for that child, pursuant to the dissolution judgment.
Sec. 49b-59. Court may grant right of visitation to any person. The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court's best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights.
Julie Briere also has a daughter from a prior relationship, born on February 27, 1995, and the plaintiff has known that child since she was six months old. Plaintiff has no legal relationship with the girl, however there does not appear to be any dispute that plaintiff has a close relationship with her indeed, Plaintiff visits simultaneously with his son and Julie's daughter frequently. In addition, there has not been any action on the part of Julie Briere to block this relationship or otherwise impair Plaintiff's access to her daughter. Indeed, in Plaintiff's Motion to Establish Parenting Plan, Plaintiff admits that "the Defendant has generally permitted . . . (the girl) to visit with the Plaintiff during the same times the Plaintiff visits with his biological son" and that the girl calls Plaintiff "dad." (July 22, 2005)
Julie Briere moves to dismiss the Plaintiff's Application for Visitation (and Plaintiff's Motion to Establish Parenting Plan) on the basis that the court lacks subject matter jurisdiction.
DISCUSSION
A motion to dismiss is the appropriate vehicle to address the issue of the court's personal or subject matter jurisdiction. Blumenthal v. Barnes, 261 Conn. 434, 442 (2002) Labow v. Labow, 171 Conn. 433, 436-37 (1976); Practice Book Sec. 25-13(a)(2).
While C.G.S. Sec. 46b-59 provides a potential mechanism for a court-ordered visitation of minor children by "any person," the statute has been interpreted narrowly in light of parents' constitutional rights vis-a-vis their children. The right to family autonomy and privacy is well established in the common law and, indeed, has been recognized as so entrenched and as sufficiently fundamental to warrant constitutional protection. Castagno v. Wholean, 239 Conn. 336, 344 (1996). In Castagno, the Connecticut Supreme Court held that a trial court does not have subject matter jurisdiction to entertain a petition for visitation under C.G.S. Sec. 46b-59 unless, as a threshold matter, there is a demonstration of an already existing family disruption sufficient to justify state intervention.
Thereafter, in reviewing a similar statute from the state of Washington, the United States Supreme Court devised an even stricter standard. In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the nation's high court held that the federal constitution does not permit the state to interfere with the fundamental right of parents to rear their children based on an asserted claim of best interests of the child and set forth some preliminary requirements in recognition of the presumption that a parent is fit and is acting in the best interests of the child. The Troxel holding is premised on the parents' right to family integrity the fundamental right of parents to make decisions concerning the care, custody and control of their children and the presumption following therefrom that parents act in their children's best interest.
After Troxel, the Connecticut Supreme Court revisited this issue in Roth v. Weston, 259 Conn. 202 (2002). In Roth this state's high court first recognized the "standing" requirements of the visitation statute the petitioner must have a "parent-like relationship" with the child. Roth, supra, 259 Conn. at 221. The second jurisdictional factor enunciated by the Roth court is the necessity of a specific good faith allegation that the child will suffer real and substantial emotional harm without the requested visitation. Id. at 226. "In sum . . . there are two requirements that must be satisfied in order for a court: (1) to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent and (2) to grant such a petition." The first is the allegation of a parent-child relationship, and the second is the allegation that denial of visitation will cause real and significant harm. Id. at 234-35 "The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation." Id. At 235. It cannot go unnoted that "the best interests of the child" is not the measure in this matter, and that, even if the "best interests" factor were established, that will not permit the requested visitation over the fit parent's objection.
Once these jurisdictional hurdles have been overcome the petitioner must then prove these allegations by clear and convincing evidence in order for the visitation to be permitted under C.G.S. Sec. 46b-59.
In the instant matter, there is an allegation of a close relationship between the petitioner and defendant's daughter, perhaps even a relationship that somewhat approximates a parent-child relationship. There is no allegation, however, that suffices to begin to meet the second requirement of the Roth test that is, that defendant's daughter will suffer real and significant harm if the petitioner is not permitted to pursue visitation through the present action. In other words, there is nothing alleged in the application that brings the court anywhere near the point at which it can consider interfering with the mother's judgment as to appropriate visitation. The court lacks jurisdiction to consider the applicant's request.
Furthermore, in this case, there is the additional fact that, to date, the petitioner has been permitted visitation with the defendant's daughter. Consideration here is intertwined with the "event" threshold required by Castagno. In Roth the Connecticut Supreme Court stated that it was overruling Castagno to the extent that Castagno required no more than an already existing disruption in the family. However, the Castagno requirement cannot be disregarded in light of the compelling rationale and the limiting directives of Roth. The "event" requirement of Castagno should continue to be adhered to in order for the court to exercise jurisdiction for constitutional application of C.G.S. Sec. 46b-59 in situations such as the instant case.
The defendant's motions to dismiss are granted.