Mirto v. Bodine

Full title: MARGARET MIRTO ET AL. v. ERNEST E. BODINE

Court: Superior Court, Fairfield County at Bridgeport

Date published: Apr 19, 1972

29 Conn. Supp. 510 (Conn. Super. Ct. 1972)

294 A.2d 336

Opinion

File No. 144756

Visitation rights of grandparents, discussed. The defendant demurred to the complaint for a declaratory judgment on the ground it did not allege that there was a complaint for divorce pending, in accordance with § 46-23, which provides that, on any complaint for a divorce, the court may grant visitation rights to any person having an interest in the welfare of the child. Since the plaintiffs stated their cause of action under general law rather than under § 46-23, the demurrer was overruled.

Memorandum filed April 19, 1972

Memorandum on demurrer to complaint. Demurrer overruled.

Meuser, Gentile Biafore, of Bridgeport, for the plaintiffs.

Richard W. Pinto, of Bridgeport, for the defendant.

LEVINE, J.

The defendant has demurred to the plaintiffs' complaint on the ground that it is legally insufficient since it does not state that there was or is a complaint for divorce pending, in accordance with Public Acts 1971, No. 50 (General Statutes § 46-23). That act provides for a court in its discretion to grant reasonable visitation rights to any person having an interest in the welfare of the child on any complaint for a divorce.

The complaint is an action seeking a declaratory judgment determining the grandparents' rights of visitation with their deceased daughter's child, now in the custody of the defendant father. It makes no claim of rights of visitation by virtue of Public Acts 1971, No. 50.

So far as a grandparent's receiving visitation rights from a court is concerned, there are opinions in some jurisdictions which hold that a court may order such visitation and there are opinions in other jurisdictions to the opposite effect. It has never been denied that this court may grant custody of children to grandparents under certain circumstances, i.e. if it is best for the child's interests, and from that it may follow that the court has the right to grant a grandparent visitation rights if it is for the best interests of the child. This rule would seem to be a logical extension of Howarth v. Northcott, 152 Conn. 460, and Claffey v. Claffey, 146 Conn. 104.

While the defendant's argument is correct that a judgment such as is sought here requires a divorce action pending or past, the plaintiffs do not allege their cause of action under Public Acts 1971, No. 50, but rather under the general law.