Opinion
No. FA00-033 93 26 S
June 3, 2003
MEMORANDUM OF DECISION
HISTORY OF THE CASE
The Plaintiff and Defendant were divorced on March 26th, 2001. The parties entered into a Stipulation that date which was made an order of the court and was incorporated by reference in the dissolution decree. The Stipulation provided for joint custody of the minor child Kyle, with primary residence to the Defendant Mother. On June 6, 2001, the Defendant Mother filed a Motion to Modify Visitation Postjudgment, citing her contemplated move to Massachusetts as the reason for the modification. Plaintiff Father countered with a Motion for Residential Custody filed June 15, 2001. On June 26th, 2001, the parties stipulated that the Defendant's Motion to Reopen be granted, that the issues of custody and visitation be referred to Family Relations for a study and that Attorney Julie Irene Foster would be appointed as attorney for the minor child.
The matter was heard by Hon. Howard J. Moraghan, Judge Trial Referee, who considered the relocation issue under the Ireland standards and denied the motion on August 7, 2001. On September 17, 2001, the parties entered into a Stipulation approved by Hon. Deborah Frankel. The September Stipulation provided that Kyle would attend his first grade year in New Milford, Connecticut, established a five-month access schedule, enabled daily telephone contact between Mother and child, and initiated therapy for the minor child with Douglas Scarth, Psy.D.
On March 20, 2002, Plaintiff Father filed a Motion to Reopen Judgment and Modify Parenting Plan and Refer the Matter to Family Relations. On March 22, 2002, Defendant Mother filed a Motion for Order and Modification Postjudgment. Mother's motion claimed the parenting access plan, pursuant to the September 17, 2001 Stipulation, terminated at the end of 2001. She also claimed that the Father had engaged in conduct alienating the child from her. On April 15, 2002, Judge Frankel referred the case to Family Relations for a custody and visitation study. The parties entered into a Stipulation regarding summer access on June 4, 2002.
The matter was referred to the RFTD on September 19, 2002. This matter was tried before the Regional Family Trial Docket on April 7-8, 2003. The Plaintiff and Defendant testified and numerous exhibits were introduced. The court has considered all of the credible evidence presented to it and carefully considered the respective criteria for orders of modification of custody and parental access to a minor child. The court makes the following findings of facts and orders.
FINDINGS OF FACT
The Defendant Mother testified that there were a number of reasons residential custody should be changed. She testified that the child had to awaken between 5:45 and 6:00 a.m. He was then delivered to his paternal grandmother's house between 6:15 and 6:30 a.m. so that Father could arrive at work on time. She claimed that Kyle is enrolled in an afterschool program and is picked up by his Father between 4:30 and 6:00 p.m. Kyle attends an Early Bird Program (an early reading intervention program) on Mondays and Wednesdays. Mother testified that Kyle's grandmother frequently delivered Kyle late or not at all to the Early Bird Program. Mother objected to Kyle attending the afterschool program because she felt the child should have homework supervised by a parent at home and have the opportunity to play with friends in the neighborhood. Mr. Fish testified that the afterschool program includes Kyle's friends and they play or do arts and crafts until approximately 5:00 p.m. when he picks his son up. Mr. Fish also testified that Kyle doesn't begin his homework until he is home with his father.
Mother testified that her new career as a Realtor would allow her complete flexibility and that if Kyle resided with her in Massachusetts he wouldn't have to get up as early in the morning and she would be home afternoons to supervise his homework.
The defendant mother testified that her home in Abington, MA was in a residential area where Kyle already had friends and where he would be able to ride his bike.
The defendant testified that on one occasion, Mr. Fish took Kyle to a work site and held him on his lap while he operated heavy equipment. Mother objected to this as a safety hazard.
The September 2001 Stipulation ordered ongoing psychotherapy for Kyle with Dr. Douglas Scarth, Psy.D. The defendant mother testified that the father had not been taking Kyle as required. Mother and father both admitted that Kyle hadn't had an appointment since November 2002, nearly five months ago. The defendant claimed that Mr. Fish had the money to purchase a personal watercraft (jet ski) the summer of 2002 yet didn't have the money to pay for his son's court-ordered therapist. Mr. Fish testified that the personal watercraft was owned by his family and that he had not yet paid for it. He testified that the failure of getting an appointment with Dr. Scarth was due to an insurance payment snafu. During the course of the trial, on the day of a snowstorm, Mr. Fish drove to Dr. Scarth's office and paid $500.00 towards the bill and made appointments for Kyle.
In contrast to the neglect she accused the father of, the mother claimed that she had been instrumental in having Kyle placed in a children's divorce support group at school and for scheduling a PPT to obtain Special Education services. Patricia Dolan, a School Counselor, and Linda Meeker, a classroom teacher, both testified that Kyle is essentially a happy, sweet, cooperative boy who has difficulty paying attention and focusing in class.
Mother testified that when Kyle was with her he was often very emotional, cried a lot, was defiant, explosive if reprimanded, and distraught when it was time for him to return home after visiting with her.
Mother also had concerns about her son's medical care, claiming that he had complained of stomach problems for months. When she scheduled a doctor's appointment for Kyle, she claimed that Mr. Fish rescheduled it for a time when she could not be present.
The defendant mother has an older son Christopher, not of this relationship, who suffers from Fragile X Syndrome, a leading cause of mental retardation. Since Kyle developed learning difficulties in school, she has made arrangements to have genetic testing performed on Kyle. That testing has been delayed due to Mr. Fish changing the version of the Husky insurance plan covering Kyle.
Mother reported that Kyle arrived for visitation dirty, long hair uncombed, and not having bathed for four days. Ms. Benedict also complained that Mr. Fish signed Kyle up for baseball in New Milford. The games are held on the weekends, meaning that Kyle would miss a minimum of 2-3 games per month under the present visitation plan. She testified that this made her the "bad guy" when Kyle had to miss a game and thus discouraged visitation.
Family Relations Counselor, Leslie L. Raider, completed a custody evaluation on August 28, 2002. Ms. Raider testified that Kyle repeated first grade the year custody changed from Mother to Father. The fact that Kyle failed first grade, while residing primarily with his mother, mitigates the mother's complaint that the father is responsible for the problems Kyle is experiencing in school. According to Ms. Raider's report (Plaintiff's Exhibit 1, p. 10), Kyle comes to school "well rested and clean, dressed in appropriate clothing for the weather." Kyle's teacher, Miss Jones, is of the impression that Kyle is very well cared for and appears content. The findings in the Family Relations Counselor's report contradict the mother's allegations at trial that the child is woken up too early, is tired in school and is inappropriately groomed and dressed.
Dr. Douglas Scarth has been Kyle's therapist since 2001. Dr. Scarth advised Ms. Raider that the child was having a difficult time accepting the fact that his parents did not live close enough to each other to share time equally. However, both Ms. Raider and Dr. Scarth reported that when asked about attending school in the fall of 2002, Kyle stated that he wanted to return to the Hill and Plain School in New Milford, Connecticut. (Plaintiff's Exhibit 1, p. 10, 11.)
Ms. Raider's report and testimony clearly indicated that Kyle has been through a number of difficult transitions in the past several years: his parents' divorce; his mother's remarriage and relocation; the introduction of a stepbrother as a result of his mother's remarriage; a change of custody from mother to father; a reduction of time he spends with his mother and older half-brother Christopher; and a new school and community. The Family Relations Counselor's conclusion was that the father has provided adequate care for Kyle since September 2002 and it did not appear in Kyle's best interest to make another major transition at this time.
ISSUE
Is it in the best interest of the child to modify the custody and visitation plan that has been in effect since September 2001?
PRINCIPALS OF LAW
The authority to render orders concerning custody and visitation is found in General Statutes § 46b-56, which provides in relevant part: "(a) In any controversy before the Superior Court . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . ." That section further provides that in "modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . ." General Statutes § 46b-56 (b). "[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change in circumstances which alters the court's finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child." (Internal quotation marks omitted.) Walshon v. Walshon, 42 Conn. App. 651, 657, 681 A.2d 376 (1996). Kelly v. Kelly, 54 Conn. App. 50, p. 55, 732 A.2d 808 (1999).
"Before a trial court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child." Brubeck v. Burnes-Brubeck, 42 Conn. App. 583, p. 585, 680 A.2d 327 (1996); Stewart v. Stewart, 177 Conn. 401, 407-08, 418 A.2d 62 (1979).
"To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order. In making such an inquiry, the trial court's discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided . . . Rather, the trial court's discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties." (Citations omitted.) Borkowski v. Borkowski, 228 Conn. 729, 737-38, 638 A.2d 1060 (1994); Kelly v. Kelly, 54 Conn. App. 50, 55-56, 732 A.2d 808 (1999).
ANALYSIS
Custody was transferred from the defendant mother to the plaintiff father in September 2001. Since the initial change of custody, Kyle has led a relatively stable life with his father as his primary caretaker. The motion before the court is essentially the mother's attempt to get a second bite at the apple in terms of her relocation to Abington, Massachusetts. Her first attempt to relocate with the minor child was denied by Judge Moraghan in August 2001 and referenced in paragraph 3 of the September 17, 2001 Stipulation. Mother claims that the stipulation of September 17th, 2001, was only intended to cover custody for the child's first grade year. The Stipulation states as follows in paragraph 4: "Kyle shall attend his first grade year in New Milford, Connecticut. All documents pertaining to the school have been made available to JoAnn at the office of Attorney Foster." Paragraph 11 details a visitation schedule for five months and concludes "[t]his schedule shall be revisited and modified in the best interest of Kyle."
The court finds no evidence to indicate that the parties contemplated a change of custody in the middle of the school year when the visitation schedule ended. In fact, the parties generally followed the same schedule during the school year from December 2001 to the present.
The language in the Stipulation regarding modification simply restates the principal that the ultimate test (for custody and visitation modifications] is the best interest of the child. Brubeck v. Burnes-Brubeck, 42 Conn. App. 583, p. 585, 680 A.2d 327 (1996).
The evidence introduced by the defendant mother at trial simply demonstrates that her parenting style is different from the plaintiff father's. The court finds that no evidence was introduced to sustain the burden of proof of either a substantial change of circumstances or that it is in the child's best interest to change custody at the present. Specifically, the court finds that it would not be in Kyle's best interest to modify the current custody arrangement.
The court agrees with Family Relations Counselor, Leslie Raider, that Kyle has been through a number of difficult transitions in the past several years: his parents' divorce, his mother's remarriage and relocation; the introduction of a stepfather and stepbrother as a result of his mother's remarriage; a change of custody from mother to father; a reduction of time he spends with his mother and older half-brother Christopher; and a new school and community. The court finds that the father has provided adequate care for Kyle since September 2002 and it is not in Kyle's best interest to make another major transition at this time.
ORDERS
1. Custody
The Court denies the Defendant Mother's motion to modify primary residential custody. The parties shall share joint legal custody of the minor child, Kyle, born April 23, 1994. The minor child's primary residence shall continue to be with the Plaintiff Father in New Milford, Connecticut, and he shall continue to go to school in New Milford, Connecticut.
2. Visitation
The Court grants the Plaintiff Father's motion to modify visitation as follows: the minor child shall spend two weekends per month with the defendant in her home in Abington, Massachusetts, from Friday evening (at or about 6:00 p.m.) through Sunday evening (at or about 5:00 p.m.) The defendant mother shall meet the plaintiff father, for the visitation exchange, in Tolland, Connecticut, at Exit 69 on I-84 at the gas station/deli mart. The parties shall continue to follow their existing pattern of alternating weekends in Massachusetts.
The minor child shall spend one weekend per month with the defendant mother in Connecticut from Friday evening (at or about 6:00 p.m. or from after school) through Sunday evening (at or about 6:00 p.m.) The mother shall pick up and drop off the minor child at the father's residence in New Milford. Mother shall have the right to choose the weekend for visitation in Connecticut and shall take the child to any activities scheduled on that weekend.
The mother shall have daily telephone contact with the minor child when he is with the father and the father shall have daily contact with the minor child when he is with the mother. The calls shall be placed around 8:00 a.m. each morning.
3. Holidays
The parents shall alternate the major holidays of Thanksgiving and Christmas so that the minor child spends Thanksgiving with the plaintiff father in even-numbered years and with the defendant mother in odd-numbered years. The minor child shall spend Christmas Eve overnight with the plaintiff father in even-numbered years, and with the defendant mother in odd-numbered years.
The plaintiff father shall have the minor child for the July 4th holiday and Labor Day holiday. The defendant mother shall have the minor child for all other Monday legal holidays and school holidays and can combine these days with the weekend parenting time either in Massachusetts or Connecticut as the schedule permits. The parties may swap these holidays by mutual agreement.
The minor child shall spend Father's Day with the plaintiff father and Mother's Day with the defendant mother. Whenever possible, the minor child shall be with the plaintiff father on his birthday and with the defendant on her birthday, and the parties shall annually alternate time with the minor child for his birthday.
The minor child shall spend school vacations during the year with the defendant mother.
During the school year, both parties shall be diligent in making certain that the minor child is able to participate in his school and social activities and each shall monitor his homework assignments when the child is with that party. Neither parent shall register the child for any activity that will take place during the other parent's time with the child. The child shall not be registered for any activity that meets or has games scheduled on the weekends without the advance written consent of the other parent.
Each party shall have one uninterrupted week of vacation with the minor child during the summer and the parties shall give each other the planned dates no later than one month prior to the planned vacation.
The parties shall follow a rotating schedule during the summer vacation wherein the minor child spends all weekdays and alternating weekends with the defendant mother in Massachusetts and alternating weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. with the plaintiff father in Connecticut. The defendant mother's time shall start as soon as the school year ends, and the plaintiff father shall always have the minor child for the week before school starts in late August.
The parties shall refrain from having any discussions in front of the minor child other than logistical issues pertaining to the visitation during drop-off and pick-up times. Neither party shall make any disparaging comments, to or in front of the minor child, about the other parent or other parent's family members. Neither party shall discuss the pending custody issues with the minor child, except in the presence of the attorney for the minor child, Julie Irene Foster.
COPARENTING THERAPY: The parties shall seek the assistance of the PEACE Program, established by Beacon Behavioral Services LLC, Avon, CT; Kids First, established by Hiebel and Roeder, Family and Child Associates in Middletown, CT; The PACT Program (Parents Allied and CoParenting Together) facilitated by Lauren Behrman, Ph.D., in New Rochelle, NY; Dr. Nina Rossomando, Ph.D., in Waterford, CT; Steven Anderson, Ph.D., at the Center For Marital and Family Therapy at the University of Connecticut in Storrs, CT; the Connecticut Resource Group of Waterbury, CT; or a similar program to facilitate the parents' attempts to peacefully confer with each other on all important matters pertaining to the child's health, education, welfare and upbringing. The Father and Mother shall each pay half the cost associated with the selected program or therapist. The child's counsel shall confer with both parents and contact the program to make the initial appointment for the parties. Thereafter, the parties shall be responsible for scheduling weekly appointments in compliance with the program requirements. Said mediation shall begin within 30 days of the date of this decision. The parties shall continue to participate in the program for as long as deemed necessary by the therapist.
The minor child shall remain in counseling with Dr. Douglas Scarth, and both parties shall cooperate in that process. Plaintiff father shall be responsible for making appointments with Dr. Scarth and providing transportation to those appointments during the school year. Defendant mother shall be responsible for making appointments with Dr. Scarth and providing transportation to those appointments during the summer months. Kyle shall attend therapy as frequently as suggested by Dr. Scarth and the plaintiff father is ordered to submit all forms required for medical insurance reimbursement required by his insurer. If there is a problem with insurance reimbursement to Dr. Scarth, plaintiff father shall have 30 days to resolve the problem with the insurer. If he fails to resolve the reimbursement issue with the insurance carrier, he shall be solely liable for the immediate payment to Dr. Scarth of all sums owed so the child's therapy is not interrupted.
4. Child Support
The Defendant Mother shall pay child support to the Plaintiff Father in accordance with the Connecticut Child Support Guidelines, as well as contribute to the child's unreimbursed medical expenses in accordance with the Child Support Guidelines. The plaintiff father shall continue to maintain medical insurance for the benefit of the minor child that is presently available to him through HUSKY. In addition, the defendant mother shall be responsible for her proportionate share of all qualifying daycare expenses incurred on behalf of the minor child in accordance with the Child Support Guidelines.
5. Tax Exemption
The Defendant Mother shall be entitled to the dependency exemption for Federal and State tax purposes for the minor child commencing with 2003 as long as her child support and medical reimbursement payments are current by December 31st of each year. The Plaintiff Father shall sign any forms required by the IRS.
6. Attorneys fees
Each party shall be responsible for his or her own attorneys fees. The parties shall each pay 50% of the fees for the attorney for the minor child, Julie Foster, within 30 days of the date of this decision
7. Interim Postjudgment Orders
These orders shall be considered interim postjudgment orders in the event of an appeal by either party.
8. Jurisdiction
The Regional Family Trial Docket shall retain jurisdiction over any postjudgment motions involving the custody, visitation, therapy, support and welfare of the minor child for a period of one year from the date of this decision.
By the Court,
Holly Abery-Wetstone, Presiding Judge