Opinion
No. FA11-4058175-S
October 14, 2011
MEMORANDUM OF DECISION re MOTION TO DISMISS
By application dated August 23, 2011, the applicant sought sole legal custody and visitation of the minor child, Madison Taylor (d/o/b 7/1/11).
On September 9, 2011, a motion to cite in party defendants was filed on behalf of the maternal grandparents (MGPs) of Madison. (103.)
On September 14, 2011, the court, Prestley, J., denied the motion to cite in party defendants. On the same date the court entered a pendente lite order for visitation by the applicant with the minor child.
On September 28, 2011, a Motion to Intervene of Maternal Grandparents was filed. (104.) The applicant filed a Motion to Dismiss Maternal Grandparent's Motion to Intervene for Lack of Subject Matter Jurisdiction dated October 5, 2011 (Uncoded as of the date hereof.) The maternal grandparents filed an Objection to Plaintiff's Motion to Dismiss dated October 6, 2011 with an accompanying narrative. (Each of which are uncoded as of the date hereof.) On October 12, 2011, the maternal grandmother filed an Affidavit which was not appended to nor incorporated by reference in and to the earlier filed objection or narrative. (The Affidavit is also uncoded as of the date hereof.)
The court heard argument on October 12, 2011 on the Motion to Dismiss and the objection thereto.
On October 13, 2011, the MGPs filed an Amended Motion to Intervene. (Uncoded as of the date hereof.)
For the reasons stated below the motion to dismiss the motion to intervene is granted and the objection thereto is overruled. The court denies, without prejudice, the Amendment to the Motion to Dismiss as not having been properly filed.
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, 262 Conn. 434, 442 (2002); Labow v. Labow, 171 Conn. 433, 436-37 (1976); Practice Book Sec. 25-13(a)(2). A motion to dismiss admits all well-pleaded facts, and the pleading to which it is addressed is to be construed most favorably toward sustaining jurisdiction. American Laundry Machinery, Inc. v. State, 190 Conn. 212, 217 (1983).
The MGPs seek to intervene do so in reliance upon General Statute § 46b-57 which permits the court to allow any interested third party to intervene in any controversy before the court as to the custody of a minor child. While this statute provides a potential mechanism for the orders the MGPs are seeking, there is a significant issue as to whether the court has jurisdiction in light of the constitutional limitations to the statute's application. In reviewing a related statute, General Statutes § 46b-59 the Connecticut Supreme Court has determined that, in order for the statute to be constitutionally applied, fundamental pleading and proof requirements must be met. Roth v. Weston, 259 Conn. 202 (2002).
General Statutes § 46b-57: In any controversy before the Superior Court as to the custody of minor children, and on any complaint under this chapter or section 46b-1 or 51-348a, if there is any minor child of either or both parties, the court, if it has jurisdiction under the provisions of chapter 815p, may allow any interested third party or parties to intervene upon motion. The court may award full or partial custody, care, education and visitation rights of such child to any such third party upon such conditions and limitations as it deems equitable. Before allowing any such intervention, the court may appoint counsel for the child or children pursuant to the provisions of section 46b-54. In making any order under this section, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference.
General Statutes § 46b-59: 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.
The applicant argues the MGPs lack standing because they do not meet the jurisdictional pleading requirements under the standards set forth in Fish v. Fish, 285 Conn. 24 (2008), for seeking custody of a minor child by intervening in a pending custody proceeding. "The issue of standing implicates the trial court's subject matter jurisdiction;" New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 511, 518, 970 A.2d 583 (2009); and is therefore properly considered on a motion to dismiss.
Practice Book § 25-32(a) provides as follows: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person . . ."
In Roth v. Weston, the Connecticut Supreme Court set the standards in this state for permitting a non-parent to obtain a court order of visitation intruding on "the fundamental liberty interest of parents `in the care, custody, and control of their children.'" Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). To protect that interest, the Roth court established certain pleading requirements as a threshold before a parent would be required to expend significant time or resources to defend against a motion for visitation filed by a non-parent; there are two requirements that must be satisfied in order for a court: to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent; and for the court to grant such a petition. First, the petition must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship. The petition must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child . . . What degree of harm requires more than a determination that visitation would be in the child's best interest. It must be a degree of harm analogous to the kind of harm contemplated by §§ 46b-120 and 46b-129, namely, that the child is "neglected, uncared-for or dependent." 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. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition. Roth v. Weston, supra, 259 Conn. 234-35.
The requirement of "specific good faith allegations" means more than barebones assertions of a parent-like relationship and that denial of visitation would cause real and significant harm to the child. In Fennelly v. Norton, 103 Conn.App. 125, cert. denied, 284 Conn. 918 (2007), a grandparent bringing an action for visitation with her son's child used the standard court form for such actions, on which she checked "a box on the application for-visitation form that provides that `[t]he applicant has/had a relationship with the child(ren) that is similar in nature to a parent-child relationship and denial of visitation would cause real and significant harm to the child(ren).'" The court held that "because the application contained no specific, good faith allegations, the defendant's motion to dismiss properly was granted." Id., 281.
As the Supreme Court later explained in Fish v. Fish, 285 Conn. 24, 39, "[t]he 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."
In Fish v. Fish, the Supreme Court modified the Roth requirements for those seeking to intervene in a custody proceeding because of what it described as "the qualitative difference" between seeking visitation and custody, "namely, that the parent-child relationship itself is at issue in a custody dispute." Id., 61. While maintaining the rule that "a third party allege a parent-like relationship with the child;" id., 44; the court imposed a different standard of harm that must be pleaded and proven: a person seeking to intervene in a custody action "must allege and prove, at the very least, that continued parental custody will be clearly damaging, injurious or harmful to the child." Id., 81. "[T]his does not mean temporary harm of the kind resulting from the stress of the dissolution proceeding itself but significant harm arising from a pattern of dysfunctional behavior that has developed between the parent and the child over a period of time." Id., 56.
The Motion to Intervene filed September 28, 2011 avers, that (i) the MGP's daughter, the respondent in the custody action, and the applicant were never married and had the minor child on July 1, 2011; (ii) the minor child has lived full-time with the MGPs who have provided full time care and financial support for the minor child because the respondent (emphasis added by the court) has not been well enough to care for the minor child: (iii) the applicant visits the minor child but does not provide full-time care and pays no support for the child; (iv) the applicant is a high school student who lives with the paternal grandmother; (v) the parents of the child are not able to competently care for the minor child, the MGPs have a parent/child relationship with the minor child and a denial of the motion to intervene would cause significant harm to the child due their provision of care and support of her; and (vi) it would be in the best interest of the minor child to have the motion to intervene granted.
The totality of the documents filed by the MGPs may establish that they have a parent child relationship — but that is only one of the allegations that must be specifically pled in an application filed by a non-parent to satisfy constitutional safeguards.
The motion to intervene fails to allege with any degree of specificity that parental custody by the applicant would clearly be detrimental to the child. The MGPs do allege the respondent is not well enough to care for the child, but the claims with respect to the applicant being unfit do not establish that it would by "clearly damaging, injurious, or harmful" for the child to be in the care of its parent — the applicant. There is no allegation of "dysfunctional behaviour" by the applicant with respect to the child.
The MGPs have failed to allege any specific facts that would establish that it would be detrimental for the child to be in the custody of the applicant. The MGPs do not allege any exceptional circumstances to rebut the presumption that it is in the best interest of the child to be in the custody of a parent nor have they alleged facts to establish that it would be clearly damaging, injurious or harmful for the child to be in the custody of the applicant.
The MGPs argue that this is a custody battle between grandparents. The court disagrees. The applicant has filed for custody. The applicant may be living with the child's paternal grandmother, but she has not moved to intervene in the custody proceeding. The court cannot support the leap made by the MGPs that because the applicant lives with his mother that his mother is the real party in interest. The pleadings, as they must, speak for themselves. The pending custody action is an action between the parents of the child.
The court concludes that the MGPs lack standing intervene in the custody proceeding under the Fish standards.
Ruling
For the above reasons, the court grants the Motion to Dismiss and overrules the Objection thereto.
As to the Amended Motion to Intervene of the Maternal Grandparents filed after the hearing on the Motion to Dismiss, Practice Book § 10-60(a) provides, in relevant part, that a party may amend its pleadings or other parts of the record or proceedings at any time in the following manner: (1) by order of the judicial authority; or (2) by written consent of the adverse party; or (3) by filing request for leave to file such amendment, with the amendment appended, after service on each party . . . and with proof of service thereon.
In this instance none of the foregoing permissible manners of filing an amendment have been satisfied. The court, accordingly, denies, without prejudice, the Amended Motion to Intervene.
So ordered