Opinion
No. FA 06-4104845-S
February 2, 2009
RULING ON MOTION #195
Subsequent to the court's ruling of December 18, 2008, the Guardian ad Litem ("GAL") filed a Motion for Clarification, P.L., which was heard on January 12, 2009. The GAL is seeking clarification and an order prohibiting the defendant from proceeding with his request for relief. The GAL cites Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 146-47, 470 A.2d 246 (1984), and Rubenstein v. Rubenstein, 48 Conn.Sup. 492 (2004), arguing that the defendant should be precluded from requesting any relief from the court regarding the care and custody of the two minor children. The GAL argues that the defendant can either go forward on his motion for access or assert the privilege with regard to his psychiatric and psychological records.
The motion for clarification is granted such that the court's ruling does not preclude the defendant from pursuing his motion. In connection with the defendant's request for visitation, he is merely prohibited from offering any evidence with regard to his mental or physical health on the question of the best interest of the children unless he has disclosed the records sought. Again, the court notes that mental and physical health of a parent is one of the specifically enumerated statutory factors to be considered by the court in determining the best interest of the children. C.G.S. § 46b-56(c)(12). The defendant is not precluded from offering other evidence relevant to the court's determination.
While the GAL correctly notes that in both Pavlinko and Rubenstein the parties were prohibited from seeking relief, those cases are distinguishable. In Rubenstein, the mother invoked her fifth amendment privilege refusing to provide any information regarding the mental and physical health, education, safety, welfare and whereabouts of the child for a five-year period of time. The court noted that this information was not available from any other sources. In contrast, in this case, all relevant information regarding the children is readily available. In Pavlinko, a complaint was dismissed in a civil case due to the plaintiff's failure to answer questions about missing hospital records, asserting his fifth amendment privilege. In affirming dismissal of the action, the Supreme Court found that "[a]n order establishing facts or precluding evidence would be inapplicable to the problem at issue." 192 Conn. at 145. Pavlinko is distinguishable in that the records were central to the claimed negligence in the care and treatment of the decedent. In the instant case, however, there are many statutorily enumerated factors for the court's consideration in determining issues of custody and visitation. Specifically, they include:
The court stated:
The defendant is the proponent of the present motion to modify access with the minor child. She has repeatedly and intentionally refused to answer questions concerning the time period she left Connecticut with the minor child until her extradition and return to Connecticut. The defendant is the only individual known to the parties with the information that is needed to defend her claim for increased and unsupervised visitation.
This court concludes that the minor child should not be subjected to any change in access with the defendant until she answers the questions concerning the minor child's whereabouts. His physical, medical and psychological treatment, education and the like, during the five year period she fled with the minor child, must be examined by the parties and ultimately the court.
. . . The present case involves the growth and development of a young boy who has been moved around the world while his parents wage a war in the criminal and civil courts. The best interest of the minor child requires that the parties (and ultimately the court) have all of the evidence available concerning his prior care and custody. 48 Conn.Sup. at 500-01.
(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 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, . . .; (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 interest 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 a child has been abused or neglected . . .; and (16) whether the party satisfactorily completed participation in a parenting education program . . . C.G.S. § 46b-56(c).
Thus, a parent's mental and physical health is one of many relevant factors for the court's consideration in determining visitation. While a parent's mental and physical health is certainly a significant, and possibly determinative factor, it is not necessarily determinative. Therefore, although Pavlinko and Rubenstein support the request to limit the evidence which the defendant may offer at the hearing on this matter, they do not require complete preclusion of his request in the circumstances of the present case.
The court has considered the GAL's difficulty in meeting its obligations without access to the requested records. However, the GAL can nevertheless fulfill its obligations, with the understanding that it will be limited in this area if the defendant continues to assert the privilege. The inability to have access to the information will of necessity be taken into account by the GAL. The defendant asserts his privilege, if he continues to do so, at the risk of severely limiting the evidence he can offer in support of his request for visitation.
In view of this ruling, if the defendant wishes to consent to disclosure, he must provide any such records to the GAL and opposing counsel on or before February 17, 2009.
So Ordered, this 2nd day of February 2009.