Opinion
No. FA 09-4011751S
November 23, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTIONS TO DISMISS #129 and #139
This decision addressees the level of specificity required of a motion to intervene in a custody action between parents of a minor child. The plaintiff, who is the mother of Autumn Remillard, born on April 15, 2008, brought this custody action against the child's father just before she was deployed on military duty in the middle east. When the plaintiff learned she was going to be deployed, she left the home she had been sharing with the defendant and, taking the child with her, moved into the home of her mother, Sherry Oraczewsky, who has filed two motions to intervene in this action, file numbers 121 and 126. The defendant has now moved to dismiss those motions to intervene. The defendant, the proposed intervenor and their counsel appeared at short calendar on November 16, 2009, for hearing on the motions. For the reasons stated below, the motions to dismiss are granted.
The defendant's motions claim that the court lacks subject matter jurisdiction to consider the motions to intervene. This brief argues that the grandmother lacks standing because she does not meet the jurisdictional pleading requirements under the standards set forth in Fish v. Fish, 285 Conn. 24, 939 A.2d 1040 (2008), for intervening in a custody proceeding. When the grandmother's counsel made clear at argument on the motion to dismiss that Ms. Oracezewski does not seek custody but merely access to the minor child, the defendant also cited Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), for the standing requirements governing motions by a non-parent for visitation with a minor child. "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: (1) to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent; and (2) 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 . . . [T]hat 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, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (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, supra, 285 Conn. 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.
Our rules of court require a party moving to dismiss to file a supporting memorandum of law and, where appropriate, ". . . supporting affidavits as to facts not apparent on the record;" Practice Book § 25-32(a); and "an adverse party [who] objects to this motion" to file "five days before the motion is to be considered on the short calendar . . . a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record." Practice Book § 25-32(b). The motion to intervene alleges that "the maternal grandmother has provided care for the minor child consistently since the child's birth such that their relationship is akin to that of a parent and child." The defendant's motion to dismiss and accompanying memorandum of law placed Ms. Oraczewsky on notice that the defendant was claiming her motion to intervene fails to satisfy the Fish pleading criteria. Although Ms. Oraczewsky did not file a memorandum in opposition to the motion to dismiss or an affidavit specifically addressing that motion, an affidavit of the plaintiff mother in the court file essentially states that the maternal grandmother has taken care of the child when the plaintiff was unavailable or unable to do so:
I never left Autumn with Jason for long, or for an overnight . . .
When Jason and I lived together, we always delivered her to my mother each morning when I worked and picked her up at night. I would take her to the park to play on weekends.
Whenever I was away at Training Camp, Autumn lived with my mother 24/7.
During those times when I was gone, Autumn remained in the care of my mother 24/7 and Jason Remillard made no effort to see her or even to telephone to inquire about her.
Plaintiff's affidavit appended to plaintiff's memorandum of law in support of plaintiff's requests/objection to defendant's motion to vacate court order, filed August 13, 2009, and appended to plaintiff's motion for a stay. These allegations do not provide a sufficient basis for establishing that the maternal grandmother has a parent-like relationship with the minor child.
Although there is no brightline test for such a relationship, there are numerous factors that may be relevant, some of which were outlined by the court in Hickey v. Hickey, docket no. FA00-0162519S, Superior Court, judicial district of Waterbury, (Cutsumpas, J.T.R., November 18, 2008) [ 46 Conn. L. Rptr. 689]:
1. The parent consented to and fostered the relationship;
2. The child has lived with the third party;
3. The third party has been responsible for the daily care of the child;
4. The third party has been responsible for major decisions concerning the child's health, education, religion, and welfare;
5. The third party has provided financial support for the child; and
6. The child and the third party have established a bonded, dependent relationship.
In Nye v. Rivard-Nye, docket number FA 06-4004274, Superior Court, judicial district of Tolland, (Swords, J., June 16, 2006), the court also noted that statutes governing termination of parental rights describe an "ongoing parent-child relationship . . . as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child." See General Statutes § 45a-717 and § 17a-112. Here, in contrast, the facts essentially allege that the maternal grandmother has cared for the child, who lived with both parents until recently, when the mother worked or was unavailable. There is no allegation that the maternal grandmother has acted as a parent, been treated like a parent, or made decisions like a parent.
Section 45a-717(g)(2) of the general statutes provides, in pertinent part that "the court may approve a petition terminating the parental rights . . . if it finds, . . . (C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child; . . ."
Section 17a-112(j) of the General Statutes provides, in pertinent part, that "[t]he Superior Court . . . may grant a petition [for termination of parental right] filed pursuant to this section if it finds . . . that . . . (3) . . . (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . ."
The court thus concludes that the maternal grandmother lacks standing to bring either an action for visitation or custody under the Roth and Fish standards. The defendant's motions to dismiss are therefore GRANTED.