Opinion
No. TTD FA 01 0075020
October 19, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO MODIFY PRIMARY RESIDENCE POSTJUDGMENT (DKT. 145)
The instant Memorandum of Decision on Defendant's Motion to Modify Primary Residence Post Judgment constitutes an articulation for the Court's Order dated August 20, 2010 in which the court granted the defendant's Motion to Modify Primary Residence Post Judgment.
I. FACTS AND PROCEDURAL HISTORY
The record reveals the following relevant facts and procedural history. The plaintiff, Megan Kingsbury, and defendant, Matthew Hatfield, were never married but have one minor daughter in common, Julianna Marie Kingsbury, born on December 2, 2000. The minor child was born while the plaintiff and defendant were both teenagers and as a result of a brief relationship.
The plaintiff filed a paternity petition on or about March 8, 2001 and an application seeking sole custody of the minor child. On April 9, 2001 the Court (Graziani, J.) awarded sole custody of the minor child to the plaintiff and ordered that the primary residence of the minor child be with plaintiff. The parties later agreed by stipulation dated May 5, 2003 (which was entered as a judgment of the Court) that the parties would share joint legal custody of the minor child and that the primary residence of the minor child would remain with the plaintiff mother.
Since the judgment awarding joint legal custody of the minor child, the parties have made numerous modifications to the parties' custody and access agreement. The most recent custody and access agreement prior to the Court's August 20, 2010 Order was dated July 9, 2007.
On or about November 2, 2009 the defendant filed a Motion to Modify Primary Residence Post Judgment. In his motion, the defendant requested that the primary residence of the minor child be awarded to him citing a substantial change in circumstances. The defendant alleges, inter alia, that the plaintiff mother: (i) has failed to "provide a safe, appropriate and stable home"; (ii) has failed to "provide the minor child with adequate sleeping arrangements"; (iii) "has expressed a desire to live life as a `twenty year old' without the constraints of her children — to the detriment and well-being of the minor child"; and further, (iv) that the minor child and father "have expressed a strong desire to spend significantly more time together." On the same date, the defendant also filed a Motion for Referral to Family Relations for a Focused Evaluation, Post Judgment seeking an issue-based evaluation concerning the primary residence of the minor child. The parties agreed to the evaluation by stipulation dated December 12, 2009.
Family Relations conducted its evaluation and performed and completed a report in connection therewith. The report, prepared by Jean D. Gosslin, a Family Relations Counselor, concluded that a change in the minor child's primary residence was in the minor child's best interests. Between August 5, 2010 and August 19, 2010, a lengthy hearing was held on the defendant's Motion to Modify. The court heard testimony from the plaintiff, defendant, Ms. Gosslin, Patricia Kingsbury (plaintiff's mother), Sean Kingsbury (plaintiff's brother), Jason Willette (plaintiff's ex-husband) and Caryl Walker (the guardian ad litem for the minor child). On August 20, 2010, after careful consideration of all of the evidence presented and the relevant standards of law, the Court issued an Order granting defendant's Motion to Modify and advised the parties that a Memorandum of Decision would be forthcoming. The Order was issued without a Memorandum in light of the approaching commencement of the school year which necessitated the need for the Court's prompt decision on the issue of primary residence.
The instant Memorandum of Decision articulates the Order issued on August 20, 2010.
II. LEGAL DISCUSSION
"The authority to render orders of custody and visitation is found in General Statutes § 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 . . . Before a 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." Feinberg v. Feinberg, 114 Conn.App. 589, 594 (2009); Payton v. Payton, 103 Conn.App. 825, 833, 930 A.2d 802, cert denied, 284 Conn. 934, 935 A.2d 151 (2007).
A finding of a material change in circumstances must be based on circumstances that have arisen since the previous order of custody. "If such a material change is found, the court may then consider past conduct as it bears on the present character of a parent and the suitability of that parent as custodian of the child." Simons v. Simons, 172 Conn. 341, 342-43 (1977). "The burden is on the party seeking modification to show the existence of a substantial change in circumstances." Jaser v. Jaser, 37 Conn.App. 194, 204 (1995); Emerick v. Emerick, 28 Conn.App. 794, 802, cert. denied, 224 Conn. 915 (1992); see also Walshon v. Walshon, 42 Conn.App. 651 (1996) (dismissing plaintiff's motion for modification for failure to make out a prima facie case of a material change in circumstances).
"[T]he best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of [the child's] environment." Id.; In re Ryan R., 102 Conn.App. 608, 625-26, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007), 284 Conn. 923, 924, 933 A.2d 724 (2007); Feinberg, supra, 114 Conn.App. 589, 593 (2009). Although our legislature has recently promulgated a series of criteria that a court may consider in determining a child's best interests, the best interest standard remains "inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare." In re Diane W., Superior Court for juvenile matters, Child Protection Session at Middletown (December 21, 2002). No single statutory provision is controlling nor is the court limited to the criteria specified by the legislature in deciding what is best for a particular child in a particular situation. As our courts have long emphasized, a best interest determination "involves weighing all the facts and circumstances of the family situation. Each case is unique." Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981).
Section 46-b-56(c) of the General Statutes, provides, in relevant part:
(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (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 child's 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, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (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 interests 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 the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers.
In the present case, the Court finds that the defendant has met his burden of proving a substantial change in circumstance that warrants the change in the primary residence of the minor child. The Court also finds that it is in the minor child's best interests that the minor child's primary residence be with the defendant.
Since the last issuance of custody orders in July 2007, there have been several significant changes to the parties' lives that contribute to the Court's decision to award primary residence to the defendant. Both parties have been married and divorced. Both parties have moved their primary residences. The plaintiff was married to Jason Willette in April 2009 and divorced less than a year later in March 2010. The defendant was divorced in 2008 and remarried in February 2009. In or about August 2009, the plaintiff moved with the minor child and a son, Joshua, who she and Willette have in common, from Waterbury, Connecticut to her parents' house in Coventry, Connecticut. Plaintiff, the minor child and her son, who is presently four years old, share a three-bedroom home with plaintiff's parents, plaintiff's brother and several pets. In 2009, the defendant moved with his current wife, Jessica, to a two-bedroom home in East Haddam, Connecticut.
The Court finds that the defendant presently has a greater capacity to understand and meet the minor child's developmental needs. The minor child is nine years old. There is a growing need for the minor child to be in an environment where parental supervision and discipline are present and where age-appropriate independence is encouraged. The Court finds that the defendant can best provide this environment for the minor child. The testimony and evidence revealed a loving and close relationship between the defendant and minor child and a relationship in which appropriate discipline and guidance are present. The defendant is aware of the minor child's need for independence and her own space. The defendant has a separate bedroom for the minor child with age-appropriate decor and furnishings. The defendant engages in activities with the minor child that foster development of life skills such as learning to prepare and cook meals. He also appreciates, and is supportive of, the minor child's interest in extracurricular activities such as dancing which are typical for a child her age.
By contrast, the plaintiff's relationship with her daughter has been observed as lacking in "depth and warmth." The testimony and evidence revealed that the relationship between the plaintiff and the minor child appeared more like a peer relationship than a parent-child relationship. The plaintiff has understandably had to deal with many issues relating to her recent divorce. In doing so, however, the plaintiff has not only allowed her own parents to accept a greater responsibility for the care of the minor child (which will be discussed later), she has also relied upon the minor child to assist her with her parenting responsibilities of her son. These responsibilities include preparing food for him, putting him to bed at night and supervising him while the plaintiff is at home. Under these circumstances, the minor child has become parentified. The minor child's living arrangements also indicate that the plaintiff has failed to establish appropriate parent-child boundaries. The minor child's living arrangements at the plaintiff's home are more akin to a college dormitory than a room for a young child in need of personal space. The plaintiff and the minor child share a room furnished with among other things, a bunk bed and a computer. The minor child sleeps on the top bunk and the plaintiff sleeps on the bottom bunk. There is little to no privacy for the minor child under these circumstances.
See Family Relations Report dated March 12, 2010.
The Court also finds that the changes in the defendant's social and employment status enable him to provide a stable living environment, to be actively involved in the life of the minor child and to be attentive to the minor child's needs. Since the issuance of the July 2007 custody orders, the defendant secured a job that allows him to work from home and to arrange his own work schedule to accommodate the minor child's educational and extracurricular activities. The defendant appeared to be in a stable, loving relationship with his current wife. The testimony revealed that the defendant's wife is active in the minor child's life and is supportive of and helpful to the defendant in his parenting responsibilities. Although the defendant's wife is present in the minor child's life, the defendant has made it clear to the minor child that the plaintiff is the minor child's only mother. He has done so by, among other things, requiring that the minor child call his wife by her first name.
The changes in the plaintiff's employment status, however, has detracted and hindered her ability to be actively involved in the minor child's life. The plaintiff, who did not work outside the home prior to July 2007, presently has a job working the third shift (10 p.m. — 7 a.m.) at a retail store. This schedule significantly affects the amount of time that she can spend with the minor child and requires reliance upon other family members to care for the minor child. The plaintiff testified that she is often not home when the minor child gets up in the morning because of her job and that she relies upon her parents to care for the minor child during this time. Testimony from the plaintiff, plaintiff's mother and guardian ad litem revealed that that the plaintiff cares for her son at times throughout the day which preclude her from obtaining adequate sleep while the minor child is at school. The mother testified about the need to take a nap in the afternoon before returning to work. The guardian ad litem, who favored a change in the primary residence of the minor child, expressed concern about the amount of sleep that the plaintiff gets each day and noted that the minor child had commented about that her mom was often tired.
The plaintiff's social status has also affected her ability to be actively engaged as a parent and raises significant concern about her sensitivity to the emotional and stability of the minor child. Since the July 2007 custody orders, the plaintiff was in a marriage that lasted less than a year (between 2009-2010). The plaintiff lived with her ex-husband prior to the marriage as well as during their brief marriage. The plaintiff also dated men during her marriage, including a married man with a criminal history who she introduced to the minor child shortly after they began dating in early 2010. The plaintiff allowed this man to interact with the minor child on several occasions. The plaintiff has, according to her own testimony, since ended the relationship. The testimony also revealed that the plaintiff spends a significant amount of time on her computer, including using the internet as a means to meet men. In addition to the married man who the plaintiff dated, the plaintiff introduced at least one other man to the minor child who had a criminal history and provided at least two other men with personal information, including her home address. The Court shares the concern of the guardian ad litem that routinely involving the minor child in the plaintiff's personal life not only reflects a lack of sensitivity to the feelings of the minor child, but also creates confusion about the relationships that the minor child forms with others.
The Court has considered the willingness and ability of each parent to facilitate and encourage the continuing parent-child relationship between the child and the other parent. It is apparent that the plaintiff makes little to no effort to foster or encourage the minor child's relationship with her father. An obvious example of this is that while the minor child resided with the plaintiff, there was no regular phone schedule for the minor child and defendant. During the plaintiff's brief marriage to Willette, the plaintiff encouraged and allowed the minor child to call her ex-spouse "daddy" over the repeated objections of both the defendant and the guardian ad litem. Since the issuance of the July 2007 custody orders, there have also been several occasions where the plaintiff has excluded the defendant from significant events involving the minor child. For example, in 2008, the plaintiff chose not to apprise the defendant of a father-daughter dance that the minor child wanted to attend. The plaintiff minimized this event as "just a dance." Instead of informing the defendant of this event, the plaintiff had her brother accompany the minor child to this event. On at least one occasion since July 9, 2007, the plaintiff failed to apprise the defendant of a doctor's visit involving the minor child.
Most significant, however, is the plaintiff's efforts to involve the minor child in the parties' dispute over the primary residence of the minor child. The plaintiff admitted that, on at least two occasions, she discussed the defendant's Motion to Modify with her daughter. She testified that the minor child should not be "left out" of the discussions with regard to this issue. The plaintiff, however, engaged in these discussions without first consulting the defendant or affording him the opportunity to be present during those discussions. Not only does this raise significant concern about the plaintiff's willingness to facilitate and encourage the continuing parent-child relationship between the minor child and the defendant, it calls into question the plaintiff's willingness to comply with Court orders such as the Court's order dated March 12, 2010 which provides, in relevant part, "Neither [party] shall discuss any pending court matters and/or any other matters relating to the parenting plan or custody with the minor child . . . either directly or indirectly." The Court is concerned with the apparent unwillingness of the plaintiff, including members of her family, to facilitate and encourage the continuing parent-child relationship between the minor child and the defendant but is hopeful that the Orders issued on August 20, 2010 will assist the parties with their respective parenting responsibilities.
At the hearing, the plaintiff's mother, Patricia Kingsbury, testified that any relationship that she had with the defendant ended when her daughter broke up with the defendant. Ms. Kingsbury also testified that she does not speak with the defendant, rhetorically asking "Why should we talk?"
The Court has also considered the length of time that the child has lived with her mother and the stability of that living arrangement. Prior to August 27, 2010, the primary residence of the minor child had been with plaintiff. Although it appears from the testimony that the minor child is a well-adjusted, engaging child, she has moved at least two times, most recently, in 2009 following the plaintiff's divorce from Jason Willette. Since the issuance of the last custody orders, the minor child has been subjected to the ups and downs of her mother's social life. She has been introduced to several men who are not her father and has formed a relationship with at least one of them, who is no longer part of her life, who she has called "daddy." She has accompanied her mother on dates, including dates with a married man. She has moved from a home in Waterbury to a house with her grandparents and uncle. She has changed schools. She has also had to adjust to a parent who has transitioned to the work force and has shouldered responsibilities for the care of her half-brother. Given these circumstances and the defendant's relative stability, the Court finds that the defendant's home is more stable and better suited for the primary residence of the minor child.
III. CONCLUSION
After careful consideration of all of the evidence and relevant standards of law, the defendant's Motion to Modify is granted. The Orders specific to the granting of this motion have already been issued and are hereby incorporated herein.
SO ORDERED.