Opinion
No. FA 10-4051036
May 23, 2011
MEMORANDUM OF DECISION
I
BACKGROUND
This is an action for the custody of the parties' minor child, Camren Gallimore, filed by the plaintiff on June 24, 2010. A trial of this matter was heard by the court on May 12, 2011. The plaintiff was self-represented and the defendant was represented by legal counsel at the hearing. Although a Family Relations Evaluation was completed, it was not admitted into evidence, based upon the defendant's objection that the author of the report was not subpoenaed to the hearing or otherwise available for cross-examination. See Practice Book § 25-60.
The court finds the following facts to be relevant to its decision to order joint custody to the parties, with primary residence to the plaintiff. First and foremost, the court finds both parties to be caring and competent parents, with strengths and weaknesses in both of their claims for primary residential custody of their son, who is four years old and was born on September 25, 2006.
The parties raised Camren while they were together as a couple and have had a, de facto, shared parenting arrangement since they separated several years ago. Despite some child rearing problems alleged against the defendant, both parties are devoted to their child and each steadfastly believes their child's welfare is better served in their own, primary care.
The precipitating problem in this custody dispute is the defendant's unenviable position of remaining in Hartford with her child and extended family, or maintaining her marriage by following her husband to his new Army base in Colorado, which they selected from a number of other, more distant locations. At this time, she and her husband are maintaining two residences, one in East Windsor and the other in Colorado. She has decided to move to Colorado for a variety of reasons. First, as stated previously, to maintain her marriage and family life. She and her husband share one child and she is now 32 weeks pregnant with their second child. In addition, she has a nine-year-old daughter from a previous relationship who appears to be fully integrated and engaged in her new family, as her biological father is not currently involved in her life. In fact, while the parties were an intact couple, previously, the plaintiff acted in a parental relationship with the defendant's oldest child during their years together and they remain on good terms. Similarly, Camren shares a good and constructive bond with his half-sister.
The defendant believes with good cause that Colorado provides an opportunity for her to live her life with all of her children and, in her view, improve their lives together. The Army base is in the mountains of Colorado, which she views as providing clean air, good schools, convenient and affordable child care and an opportunity for the defendant to advance her career by attending college under the GI Bill. It is clear that the defendant is a thoughtful person who has considered this opportunity from many perspectives. Under the circumstances, the court agrees with the defendant that this is indeed a reasonable and positive opportunity for her and her family.
In her choice to leave with her family and move to Colorado, the defendant will leave behind an extended family along with their ongoing support. Both the paternal grandparents and maternal grandmother have been substantially involved in the care and shelter of Camren, as well as the defendant herself. In fact, Ms. Gallimore, the paternal grandmother, claims to love the defendant as she would her own daughter.
The plaintiff resides with his mother, Ms. Gallimore, who assists him during his visitation with Camren. She describes herself as acting in the role of a mother when Camren is not with his own mother. It is undisputed that Ms. Gallimore is actively involved in Camren's life, from enforcing bathroom protocols to picking him up from school, whenever necessary. In fact, her involvement with Camren is seen by the defendant as the primary flaw in the plaintiff's claim for primary residential custody in this case. It is asserted that Ms. Gallimore, the plaintiff's mother, will in fact be the primary residential custodian of Camren and not his father. The court also shares this concern, but the plaintiff's devotion to his son and his experience as an involved father is uncontroverted.
The plaintiff is an intelligent and articulate young man. He is employed on a full-time basis and has earned an associate's degree. He attends church regularly with his family, including Camren. There is no question of fact that Camren and his father share a strong bond and that he is well cared for while in his custody. The plaintiff is unwavering in his assertion, and it is arguably true, that he is the more responsible parent. He views the defendant as inconsistent and wholly dependant upon her new husband for stability in her life. With three children with three fathers and one more child on the way with her husband, both assertions may be true, but certainly are not disqualifying considerations. By contrast, the plaintiff asserts, essentially, that he is the more steady and reliable parent.
In support of his claims, the plaintiff has shown to the court that the defendant has been moderately violent toward him in the past on more than one occasion and in the presence of Camren, resulting in her arrest. Domestic violence charges against the defendant have been dismissed, however, upon her successful completion of the Family Violence Education Program. The plaintiff also has a criminal history. He is on probation, with a one year suspended sentence, for evading responsibility after leaving the scene of an accident. By all available accounts and by inference from the conviction itself, the plaintiff accidentally hit and killed a reputed drug dealer with his car in a parking lot. The fact that the fatality involved someone perceived to be a drug dealer is only relevant because there was, for a time, a reasonable fear of retribution. Although the plaintiff waited for an ambulance to arrive, he left the scene without waiting for the police.
Although the plaintiff is otherwise clear-minded and directed in his thinking, these qualities have led him to approach the parenting of Camren in a somewhat unilateral manner. This approach, for example, led him to conclude that he would go to New York with Camren on Mother's Day weekend, returning him to the defendant after church on Sunday. Further, he has done no research to determine whether Colorado would provide a positive opportunity for Camren. These factors, along with his initial application in this case for sole custody, are the likely causes of the deeper than necessary division between the parties in this case. But for these factors, the decision to leave Camren in his father's care would be far easier and they remain a concern for future co-parenting by these two parties.
II
DISCUSSION
In judgments involving contested relocations of custodial parents, trial courts are required to consider the best interests of minor children in making initial determinations of custody. In determining the best interests of minor children in Connecticut, the court is guided by the provisions of General Statutes § 46b-56 and, more specifically, the sixteen (16) factors specified in subsection (c) of the statute.
In Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), the Supreme Court established a burden shifting rule for post-judgment relocation cases, as well as specific factors to be considered, referred to as the " Tropea factors." Subsequently, the legislature modified the Ireland burden-shifting rule by enacting General Statutes § 46b-56d, which sets forth the required considerations in post-judgment relocation cases. In Ford v. Ford, 68 Conn.App. 173, 789 A.2d 1104 (2002), cert. denied, 260 Conn. 910, 796 A.2d 556 (2002), the Appellate Court held that the, now overruled, two-step burden shifting analysis in Ireland did not apply to relocation orders entered at the time of dissolution. In making this determination, the Appellate Court reasoned that "[a]t a trial for the dissolution of a marriage, unlike at postjudgment proceedings, the interdependence and relationship between a custodial parent and child has presumably not yet been formed." Id. at 180.
In Ford, the Appellate Court specifically held "that burden-shifting scheme in Ireland, and the additional Tropea factors, do not pertain to relocation issues that arise at the initial judgment for the dissolution of marriage. Rather, we find that Ireland is limited to postjudgment relocation cases. We conclude that because the Ireland court did not expand its holding to affect all relocation matters, relocation issues that arise at the initial judgment for the dissolution of marriage continue to be governed by the standard of the best interest of the child as set forth in § 46b-56. While the Ireland factors may be considered as "best interest factors" and give guidance to the trial court, they are not mandatory or exclusive in the judgment context." Id. at 184.
General Statutes § 46b-56(c) provides "In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (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. The court is not required to assign any weight to any of the factors that it considers."
In Ford v. Ford, 68 Conn.App. 173, 789 A.2d 1104 (2002), cert. denied, 260 Conn. 910, 796 A.2d 556 (2002), the Appellate Court held that the relocation analysis of Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998), was inapplicable to initial custody judgments because "unlike at postjudgment proceedings, the interdependence and relationship between a custodial parent and child has presumably not yet been formed." Id. at 180. In the present case, the parties have engaged in a mutually agreed-upon shared parenting arrangement since their separation approximately three years ago. Therefore, the existing interdependence and relationships between the children and both parents would be less "formed" with one parent over the other. Based upon the facts of this case and the applicable law, the court finds it is in the best interest of Camren to remain in Hartford with his father.
The court finds it to be in the best interest of Camren to remain within the continuity of the supportive family environment that has embraced him throughout his entire life here in Connecticut. Colorado does offer significant family and community support; however, on balance, the court conservatively chooses continuity over opportunity, but only because there is a strong family system of support remaining in Hartford. But for the conviction for evading, the plaintiff provides to Camren a positive role model as he grows into an adult. Although this may be true as well for Mr. Johnson, the defendant's husband, the right for a natural parent to raise his own child must be given greater consideration. The only serious problem with the decision of this court is, of course, that the defendant will not be with her son on a consistent basis, as would otherwise be her right, but for the difficult choice she has made to move to Colorado.
III
ORDERS
A. Custody and Access
1. The parents shall share joint legal custody of the minor child, Camren.
2. The plaintiff shall have primary residential custody of the minor child. The defendant shall have liberal visitation as further provided in these orders.
3. Both parties shall immediately notify each other of any change in address or phone number. The defendant shall not move her residence from the State of Colorado without thirty (30) days' advance notice to the plaintiff.
4. Both parents shall notify one another of any Emergency Room visits within a reasonable amount of time but no later than 24 hours.
5. When in the custody of one parent, the other parent shall have access to Camren every day, by means of a phone call or video chat, after school but before bedtime. The parties shall also ensure Camren's availability at a regularly scheduled time for an hour each day, without interference by the other parent, but subject to the duration the child feels comfortable continuing the phone call or chat. The defendant shall determine the method of electronic communication used and the plaintiff shall reasonably ensure that the corresponding method of electronic communication is made available for Camren's use.
6. The parents shall both join Our Family Wizard to facilitate the communication between the parties and provide a record for the court should it be necessary.
a. Both parties intend that Our Family Wizard system will be used to provide information about the child's schedule, doctor's visits, physician's names, teacher's names, grades and any other information which co-parenting requires.
b. Both parties shall keep each other informed of the progress of Camren through Our Family Wizard system.
c. The plaintiff shall provide to the defendant all initial school information and shall contact the school to ensure that she has access to school records and that copies of all grades and other school information are delivered to her home.
7. Neither party shall disparage one another through any means of communication, nor shall they allow individuals to disparage the other in the presence of the minor child.
8. Family photographs and videos shall reasonably be shared between the parties, either through e-mail or other reasonably agreeable mode of communication.
9. Camren shall not be allowed to travel alone until both parents have agreed that Camren is mature and capable of travel with the assistance of airline personnel or any other agreed-upon form of transportation. Until then, Camren shall be accompanied by a willing and appropriate adult, agreed-upon by the parties. If the parties cannot agree upon the accompanying adult, other than a parent, the defendant shall make the final decision.
10. The parties shall equally share Camren's reasonable travel expenses to and from Colorado, as well as the reasonable travel expenses of an accompanying adult, exclusive of food and lodging for such accompanying adult. Any visitation that is in addition to the court ordered schedule, initiated by the defendant or otherwise agreed upon by the parties, shall be at the defendant's expense. This subsection shall be subject to the arrearage provision in section III B. For these extraordinary travel expenses, the court may follow a deviation criterion for purposes of any future child support order.
11. Summer Vacation.
The defendant shall determine the summer visitation schedule, involving one visit to Colorado, which shall occur no earlier than one week after the school vacation begins and no later than one week before the regular school schedule begins. The defendant shall utilize Our Family Wizard to provide thirty (30) days' advanced notice to the plaintiff of her summer visitation schedule.
12. Holiday Schedule.
a. The plaintiff shall have Thanksgiving, unless the parties otherwise agree in writing, utilizing "Our Family Wizard." This access determination is based upon the short duration of the Thanksgiving holiday vacation, involving interstate travel.
b. The defendant shall have access for the Christmas holiday, unless the parties otherwise agree in writing, utilizing "Our Family Wizard."
13. Other School Vacations
In addition to the Christmas holiday, the defendant shall have access during any break from school for one week or more. If she exercises this right for more than one week, in addition to the Christmas week, it shall be at her option and expense. The defendant shall utilize Our Family Wizard to provide thirty (30) days' advanced notice to the plaintiff of this visitation schedule.
14. At any time the parties plan to leave their home state with the child for a period of 24 hours or more, they shall utilize Our Family Wizard to provide a travel itinerary, including the dates of travel, phone numbers, and location including local hotel name.
15. At any time the defendant visits Connecticut, she shall have access to Camren. For any such visit of more than one week, the parties shall share access with Camren, so long as his ordinary school and extracurricular schedule is followed.
B. Child Support
In his custody application, the plaintiff indicated that he would seek a child support order, which was not pursued at trial. The court nonetheless notes that there is an order for child support as well as medical and dental insurance, entered by the court, Prestley, J., on November 10, 2010. This child support order is in the weekly amount of $79, payable from the plaintiff to the defendant, with unreimbursed medical expenses paid by the ratio of 75% by the plaintiff and 25% to be paid by the defendant. This child support order is terminated; however, the court finds there is an arrearage owed of $2,100, based upon the testimony of the defendant that no payments have been made by the plaintiff. In its place, the court orders no child support, except that the plaintiff shall be responsible for 100% of unreimbursed medical expenses.
In view of the fact that the defendant is not working and will be delivering a child in the very near future, the plaintiff shall pay for the defendant's half of reasonable travel expenses for her to exercise her rights under these visitation orders, as well as any accompanying adult, until the arrearage is paid in full. During the period the plaintiff is paying all of Camren's travel expenses in lieu of the arrearage, he shall have the option of accompanying Camren at his own expense for the purpose of visitation. He shall inform the defendant of his decision to exercise this option within 72 hours of being notified by her of the visitation schedule, otherwise she shall then select the accompanying adult, whose reasonable travel expenses shall be paid by the plaintiff. The parties shall utilize Our Family Wizard to provide such notification.
SO ORDERED.