Opinion
No. FA-07-4014596S
July 25, 2008
MEMORANDUM OF DECISION
By complaint dated July 5, 2007, the plaintiff husband commenced this action seeking a dissolution of marriage on the ground of irretrievable breakdown, and seeking sole custody of the minor child.
This court heard evidence over a protracted period of time beginning on July 30, 2007. The case continued for special hearing dates in February 2008 and continued through May 29, 2008. This court has reviewed all of the evidence presented including testimony and exhibits and makes the following findings of fact.
Findings of Fact
The plaintiff and defendant were married on July 26, 2002 in Waterbury, Connecticut. The marriage ceremony was conducted by an Imam and the parties never obtained a marriage license. The parties had been residents of Connecticut for at least one year prior to the filing of this complaint, although they are originally from Macedonia. The court has jurisdiction of this matter. All statutory stays have expired. No state or municipal agency has or is contributing to the support of the parties or their child. The marriage has broken down irretrievably with no hope of reconciliation. One child Ersan Adziovski, was born to the parties on January 10, 2004.
This court made temporary orders early on in this case, awarding the primary residence of the child to the defendant. At some point after the court began hearing the case, the defendant and her father were anonymously reported to the Immigration and Naturalization Service as being in the United States illegally. Neither party is in the United States legally although the court is not aware of any action that has been taken by the INS to deport the plaintiff husband.
As a result of this anonymous report, and during the pendency of this trial, the defendant and her father were taken into custody on August 16, 2007 and pursuant to a July 2006 deportation order, were deported in October 2007 to Macedonia where they presently reside. Until the deportation date, the defendant had resided in the United States from the time that she was three years of age. The maternal grandmother and defendant's sisters (who are United States citizens) were not taken into custody or deported.
The minor child was born in the United States and is a United States citizen. During the course of the marriage, the defendant mother and extended family provided the primary care for this child. After the parties separated but prior to the defendant's deportation, the child was cared for primarily by his mother and her extended family and had visitation with the plaintiff and his family. On September 10, 2007 this court ordered the temporary custody of the child to be with the plaintiff due to the defendant's detention prior to her deportation. Since that time, the child has lived in the plaintiff's home, primarily cared for by his paternal aunts and other extended family members. He also has extensive visitation with his maternal extended family. The defendant has not seen her son since she was deported on October 16, 2007.
The plaintiff has been employed as a mason and is, by all accounts, a hard worker and he works long hours. The defendant is seeking employment as an English teacher in Macedonia.
Testimony established that, as a result of the deportation of the defendant, she will be unable to apply to travel to the United States for at least ten years. The plaintiff however, is not precluded from returning to Macedonia. Rather, he would be unable to return to the United States as a result of his status.
Validity of the Parties Marriage
The plaintiff asserts that he and the defendant were never legally married because they never obtained a marriage license and because they were married by an Imam. Our Supreme Court has held that the absence of a marriage license does not render a marriage void. Carebetta v. Carebetta, 182 Conn. 344, 349 (1980). The court noted that an unbroken line of Connecticut cases upheld marriages with statutory deficiencies when the statute in question did not explicitly state that a violation would render the marriage void.
With respect to the Imam who conducted the marriage ceremony, Connecticut law provides that [a]ll marriages solemnized according to the forms and usages of any religious denomination in this state . . . are valid. Conn. Gen. Stat. 46b-22. Further, marriages conducted by an Imam, without a marriage license, have been upheld as valid by other Connecticut courts. Defendant's Ex. C is a marriage certificate that contains the signatures of both parties and witnesses and the Imam. It establishes that, under Islamic law, the parties were married legally by an Imam. They lived together as husband and wife and had a child together. The husband is in fact the plaintiff in this case which suggests that he acknowledged that the parties had a valid marriage. Therefore, based upon review of the exhibits and testimony, this court finds that the parties' marriage was solemnized in accordance with their religious denomination and the marriage of the parties is valid under the laws of Connecticut and the United States.
Custody
The plaintiff seeks sole custody of the minor child and requests that the court order that the child reside in the United States and visit the defendant for some weeks during the summers. The Guardian ad litem supports this request.
The instant case is somewhat unique in that a party who was deported to her country of origin while in the midst of a dissolution action is requesting that the child's custody be awarded to her and that the child be sent to Macedonia. This case is complicated by the fact that both parties have resided illegally in the United States for a lengthy period of time. The plaintiff remains in the United States illegally and there was no testimony offered to indicate that he is insulated from a deportation action himself. Yet he seeks sole custody, requesting that the child remain in the United States in his care.
"The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child . . . In determining what is in the best interests of the child, the court is vested with a broad discretion." (Citations omitted.) Ford v. Ford, 68 Conn.App. 173, 187-88, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002). "The authority to render orders of custody and visitation is found in General Statutes [Rev. to 2003] § 46b-56, which provides in part: (a) In any controversy before the Superior Court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . . (b) In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . ." (Internal quotation marks omitted.) Kennedy v. Kennedy, 83 Conn.App. 106, 113, 847 A.2d 1104, cert. denied, 270 Conn. 915, CT Page 12340 853 A.2d 530 (2004). An making a determination of custody . . . the trial court is bound to consider the child's present best
interests and not what would have been in her best interests at some previous time . . . [T]he court must . . . take account of the parent's past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children's growth, development and well-being." (Citation omitted; internal quotation marks omitted.) Blake v. Blake, 207 Conn. 217, 224-25, 541 A.2d 1201 (1988).
The plaintiff argues that Macedonia is a dangerous place to live, that there are scorpions, the roads are bad, the winters have a lot of snow and that it would be better for the child to be raised in the United States. He also argues that if he leaves the United States to be with the child, he will not be able to return because he is not here legally.
This court has reviewed the evidence presented regarding living conditions in Macedonia. According to the Department of State (Ex. 3), Macedonia is a parliamentary democracy which generally respects the human rights of its citizens. There are few governmental restrictions on academic freedom, freedom of association, and some minor restrictions on freedom of religion. According to the World Fact Book (ex. 2), Macedonia's literacy rate is quite high (98% for males). The climate is similar to some parts of the United States and is not unduly harsh. According to the Department of State, the Republic of Macedonia is a signatory to the 1980 Hague Convention.
In Macedonia, the defendant resides in the family home with her father. She has been offered a position as a teacher of English. Her father has significant assets and land in Macedonia. The home is made of brick and mortar. The bathroom and kitchen in the home are modern with indoor plumbing and electricity. There is a school within walking distance of the home. Medical facilities are available, modern, and geographically close by. The government pays for medical care until a child is 16 years of age. A family member who lives close by is a neurosurgeon. There are grocery stores and convenience stores. The town where the defendant lives has a police station and there is little crime. Indeed, one relative credibly testified that where the defendant and her family lives is safer than Staten Island, New York. People vacation from other countries to Macedonia in August and other times of the year as well.
The plaintiff's immigration status notwithstanding, this court is mindful of the benefits of American life and the fact that this child is an American citizen. But with respect to the upbringing of a child, and the parental functions of meeting on an ongoing basis the emotional, physical, spiritual and psychological needs of that child, the question of which parents can better fulfill that role as the custodial parent is more significant in determining the best interests of the child than the particular country in which that role will be fulfilled. Presutti v. Presutti, 181 Conn. 622 (1980).
Ersan is four years of age and is a United States citizen by virtue of his birth here in the US. He was primarily raised by the defendant prior to her deportation in October 2007. The defendant had been in the United States since the age of three. She was separated from her child when a call was made to INS by an anonymous reporter and she was taken into custody. She was then deported to Macedonia with her father. She is now legally prevented from coming to the United States for at least ten years. By the plaintiff's own testimony, there is nothing to prevent him from returning to Macedonia to share in the parenting of his child in that country except that his current illegal status would prevent him from reentering the United States.
There was some suggestion that the defendant's family was hopeful that they could affect her return at some point prior to the ten-year period. Such a possibility would be speculation at best and this court must assume, based on the evidence, that her deportation will prevent her from returning for a lengthy period of time.
The court is aware that the Guardian Ad Litem's recommendation is for the child to remain with the plaintiff in the United States as well. While a court may take into consideration the opinion of the Guardian Ad Litem, Janik v. Janik, 61 Conn.App. 181, 763 A.2d 65 (2000), cert. denied, 955 Conn. 940, 768 A.2d 949 (2001), the court is not bound by the testimony of any witness as to individual best interest factors or to their opinion as to the ultimate issue here — whether the child's custody with the defendant in Macedonia or custody with the plaintiff here in the United States is in the best interest of this child.
In Ford v. Ford, 68 Conn.App. 173 (2002), for example, the Appellate Court expressly upheld the trial court's decision rejecting a recommendation against relocation by the Guardian Ad Litem and court-appointed psychologist. "[A] trial court is not bound to accept the expert opinion of the family relations officer . . . [A] trial court is free to rely on whatever part of the expert's opinion the court finds probative and helpful." Ford v. Ford, supra, 68 Conn.App. 190, citing Yontef v. Yontef, supra, 185 Conn. 281. "In weighing the testimony of an expert, the trier of fact may accept part of the testimony of an expert without being bound by the opinion of the expert." Johnson v. Healy, 183 Conn. 514, 517, 440 A.2d 765 (1981), quoting United Aircraft Corporation v. International Ass'n. of Machinists, 169 Conn. 473, 490, 363 A.2d 1068 (1975), cert. denied, 425 U.S. 973 (1976).
While it might be argued that the schools in the United States are "better," and the medical treatment available here is "more advanced," even assuming that that is true, the court finds that the benefits to Ersan in remaining in the United States do not outweigh the detriment to the child caused by being separated from his primary caregiver for the majority of his childhood. Testimony established that the defendant is a "first class mother" to her son and that while the plaintiff works very hard, he takes a minimal role in caring for the child who is primarily cared for by his aunts. Accordingly, this court finds that it is in the child's best interests to return to the defendant's care in Macedonia.
Orders
The court has considered all of the testimony and exhibits entered at trial as well as the factors set forth in Connecticut General Statutes §§ 46b-81, 46b-82, and 46b-62 and other pertinent statutes, the parties' earnings, and earning capacity differentials, causes of the breakdown of the marriage, length of the marriage, and the consequences
of the financial awards set forth below. The court has also considered Connecticut General Statutes 46b-56 through 46b-61.
Judgment shall enter dissolving the marriage of the parties on the ground of irretrievable breakdown. It is further ordered that:
1. Alimony
There shall be no alimony ordered to either party.
2. Custody and Parenting Plan
Joint custody of the minor child shall be awarded to both parents, primary residence with the defendant in Macedonia. While the plaintiff is residing in the United States, he shall have six weeks of vacation with the child at his home during the summer. The child shall be transported by the defendant's family members to and from Macedonia, the child's ticket at the plaintiff's expense, the family member's ticket at the defendant's expense. It is expected that during the plaintiff's parenting time, the child shall have some contact with his maternal extended family residing here in the United States.
The child shall be returned to the plaintiff's care no later than August 20, 2008.
3. Child Support, Health Insurance and Education
Pursuant to Connecticut child support guidelines, the plaintiff shall pay to the defendant 566.00 per week for the benefit of the minor child. There shall be no modification to that amount during the child's summer visits with the plaintiff.
Both parties are ordered to provide health insurance as available through their place of employment and at reasonable cost to them, up to 7.5% of their net weekly wage. If it is not available, the parties shall pursue the Husky plan or its equivalent. They shall share any unreimbursed medical, dental, orthodontia, psychological, and other health-related expenses equally.
4. Miscellaneous CT Page 12343
a. The defendant's personal property as set forth in exhibits shall be returned to her.b. Each party shall be responsible for their respective
attorneys fees.
c. The court shall retain jurisdiction on post-majority educational support.