Opinion
No. FA 05-4008026S
Memorandum Filed March 19, 2007
Marriage Dissolution — Custody and Support — Modification — Opinion Discusses the Rule Adopted in 2005 Requiring that a Motion for Modification of Custody or Visitation Be Accompanied by a "Request for Permission to File a Motion to Modify" and Establishes a Probable Cause Requirement for the Approval of Such a Request. This opinion discusses the new procedure adopted in 2005 for modifications of final custodial and visitation orders entered in marriage dissolution proceedings — the "request for leave" to file a motion for modification supported by sufficient facts to "demonstrate probable cause that grounds exist for the motion [for modification] to be granted," P.B. § 25-26(g). This opinion denies a request for leave to file based on the court's conclusion that the movant had failed to establish probable cause. The opinion notes there is little judicial authority construing this new procedure.
The defendant has, pursuant to Practice Book § 25-26(g), filed a request for leave to file a motion to modify the custodial orders, entered by the court, Munro, J., on July 7, 2005, pursuant to a written agreement of the parties, that they would share joint legal custody of their child Joshua, born December 11, 1995, that the plaintiff would have final decision-making authority and primary physical custody, and that defendant would have weekend visitation alternating between full weekends and Sundays for four hours. The parties appeared with counsel for hearing on the present matter for seven days between September 25, 2006, and February 16, 2007. The court has carefully considered all the testimony of the witnesses, considered their demeanor and credibility, and weighed all the other evidence presented according to the relevant standards of law. For the reasons stated below, the defendant's request for leave is denied and the plaintiffs objection is sustained.
The request for leave procedure is relatively new in the Connecticut courts. Practice book § 25-26(g) provides that:
Any motion for modification of a final custody or visitation order or a parental responsibility plan shall be appended to a request for leave to file such motion and shall conform to the requirements of subsection (e) of this section. The specific factual and legal basis for the claimed modification shall be sworn to by the moving party or other person having personal knowledge of the facts recited therein. If no objection to the request has been filed by any party within ten days of the date of service of such request on the other party, the request for leave may be determined by the judicial authority with or without hearing. If an objection is filed, the request shall be placed on the next short calendar, unless the judicial authority otherwise directs. At such hearing, the moving party must demonstrate probable cause that grounds exist for the motion to be granted. If the judicial authority grants the request for leave, at any time during the pendency of such a motion to modify, the judicial authority may determine whether discovery or a study or evaluation pursuant to Section 25-60 shall be permitted.
Under this section, the relevant criterion for permitting the defendant to file her proposed motion for modification is whether she has demonstrated probable cause to believe that grounds exist for the motion to be granted. As this procedure and provision of the practice book are relatively new, there is no binding judicial authority construing this rule. The probable cause standard, however, is a familiar one. As the court noted in Calfee v. Usman, 224 Conn. 29, 37, 616 A.2d 250 (1992), probable cause "is a standard widely used to validate a preliminary impairment of a broad range of personal and property rights." It is the standard for determining whether a criminal prosecution or civil action was properly brought. See, e.g., Falls Church Group v. Tyler, Cooper and Alcorn, LLP, 281 Conn. 84, 912 A.2d 1019 (2007) (stating that lack of probable cause is an element for proof of vexatious litigation or malicious prosecution). The term is also used, as in the present instance, to describe the standard for a preliminary threshold to be surmounted before certain judicial or administrative matters may proceed. See, e.g., Nolan v. Nolan, 76 Conn.App. 583, 585 (2003) (court must find probable cause before permitting postjudgment discovery to substantiate allegations of fraud); General Statutes § 54-46a (requiring probable cause hearing before an accused person may be put to plea or tried for offense punishable by death or life imprisonment); Ezikovich v. Commission on Human Rights Opportunities, 57 Conn.App. 767, 771, 750 A.2d 494 ((2000) (stating that reasonable cause standard under General Statutes § 46a-83 for finding of discrimination or retaliation "is synonymous with the term probable cause").
Running throughout all the cases describing the probable cause standard are certain constants. The standard is described, on the one hand, as "a modest one," 36 DeForest Ave. v. Creadore, 99 Conn.App. 690, 696 (2007); more than mere belief, suspicion or conjecture, Heussner v. Day, Berry Howard, LLP, 94 Conn.App. 569 (2006), "no matter how sincere"; but "substantially less than proof beyond reasonable doubt necessary for conviction," State v. Clark, 255 Conn. 268, 291-94, 764 A.2d 1251 (2001); and "not as demanding as proof by a fair preponderance of the evidence." Newtown Associates v. Northeast Structures, Inc., 15 Conn.App. 633, 636-37, 546 A.2d 310 (1988). The United States Supreme Court has described probable cause as "a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Our own Supreme Court has repeatedly emphasized, in a variety of contexts, that probable cause "is a flexible common sense standard." 36 DeForest Ave. v. Creadore, supra, 99 Conn.App. 695 (application to discharge mechanics lien); Morris v. Cee Dee, LLC, 90 Conn.App. 403, 411 (2005) (prejudgment remedy); Donenfeld v. Friedman, 79 Conn.App. 64, 877 A.2d 899 (2003) (application for discharge of lis pendens); Ezikovich v. Commission on Human Rights Opportunities, supra, 57 Conn.App. 771 (finding of reasonable cause regarding discrimination or retaliation necessary before Commission may undertake certain actions). The most frequent articulation of the probable cause standard in Connecticut cases is that
The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.
36 DeForest Ave. v. Creadore, supra, 99 Conn.App. 695.
Where probable cause is a preliminary barrier that must be surmounted before further proceedings,
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the trial court's hearing on probable cause is not intended to be a full scale trial on the merits of the plaintiffs claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim. . . The court's role in such a hearing is to determine probable successes by weighing probabilities.
(Internal quotation marks omitted.) William Beazley Co. v. Business Park Associates, Inc., 34 Conn.App. 801, 805-06, 643 A.2d 1298 (1994). In judging the probabilities, a court must weigh the evidence, assess the credibility and demeanor of the witnesses, and evaluate exhibits offered. Evidence offered by the party subject to that standard is not to be accepted uncritically or presumed to be true; nor is the evidence necessarily construed, as would be true on a motion to dismiss at the end of a plaintiff's case in chief in a full-blown trial, in the light most favorable to the plaintiff.
It should be observed that "probable cause to sustain the validity of the plaintiff's claim" differs significantly from the probable cause standard used in criminal cases. See, e.g., State v. Wilson, 153 Conn. 39, 41-42, 212 A.2d 75. In the latter, defenses are not weighed because there is no opportunity for the defendant to be heard before the determination of probable cause is made, but at a prejudgment remedy hearing a good defense, such as infancy or the running of the statute of limitations, will be enough to show that there is no "probable cause that judgment will be rendered in the matter in favor of the plaintiff." General Statutes 52-278c(A)(b). Thus the court, at the hearing on an application for a prejudgment remedy, must evaluate the arguments and evidence produced by both parties.
The hearing, however, is not intended to be a fullscale trial on the merits. The court, without making any final decision on these matters, may weigh the oral testimony and the documentary proof submitted. In reaching its determination of probable success on the merits it is essentially weighing probabilities. . .
Augeri v. C.F. Wooding Co., 173 Conn. 426, 428-30, 378 A.2d 538 (1977).
There are two prongs to a motion for modification of custody. First, the party seeking such a modification must show either a material change in circumstances since the last custody order or that the order sought to be modified was not in the child's best interest when entered. Kelly v. Kelly, 54 Conn.App. 50, 55-56, 732 A.2d 808 (1999). Secondly, the party must show that the proposed modification is in the best interest of the minor child. Although our legislature has recently promulgated a series of criteria that a court may consider in determining a child's best interest, 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 factor is controlling; nor is a 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). In the present matter, the defendant must show probable cause as to both elements.
Section 46b-56(c) of the General Statutes, as modified by Public Act 05-258, § 3, provides as follows: "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-69b46b-69b."
The defendant's original request to leave claimed that there has been a substantial change of circumstances since the previous order, specifically that "Presence of other child is gone. Mother has been in therapy as has Joshua and both are doing well. Support will be needed." During this hearing, the court permitted an amendment to the motion for modification revising the claim of substantially changed circumstances. The amended motion claims four bases for a substantial change in circumstances:
1. "The child who molested Joshua is gone and has no contact with him since early 2005."
2. The defendant "has rigorously undertaken a program of inpatient, outpatient and continuing care for her bi-polar disorder, and is currently taking reduced prescription medications and has had visits to her therapist reduced very significantly and can provide a stable living environment for Joshua."
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3. Joshua wishes to live with his mother.
4. "Joshua's living conditions with his father have deteriorated. As a result, he is now in an environment that involves (a) hostility from Mr. Malave's current wife and from relatives of Mr. Malave; (b) risks that are not in the best interests of the child; and (c) risks of alienation from his father for refusal to let him live with his mother."
The plaintiff's claim necessarily requires consideration of the facts and circumstances leading up to the previous custody order. For the first nine years of his life, Joshua lived with the defendant. Between 2000 and 2005, the defendant went though, as she acknowledged at hearing, "very hard times"; Transc., 9.25.06, at 58; and suffered from mental illness. Until 2002 they lived in her Hartford home and the defendant, who has three years of college, was employed as a surgical assistant at Hartford Hospital. But that year her long-standing rheumatoid arthritis became overwhelmingly severe and, also suffering from depression and bipolar disorder, she became unable to continue working. From then on, her life, and Joshua's became tumultuous. Joshua was sexually molested by his older brother, whom the defendant sent to live with other relatives. Between 2002 and 2005 Joshua attended seven schools in six different communities as the defendant moved with him from Hartford to Mansfield Center to California, then back to Mansfield Center, to Meriden, and then to New Haven. At the hearing before this court, the defendant acknowledged that all these changes and transitions had not been "a good thing" for her son. Id., 66. In early 2005 Joshua, who was in therapy himself because of significant mental problems including attention-deficit disorder, bipolar problems, hyperactivity, and great anxiety, disclosed that he had been molested a second time, this time by a child of the defendant's domestic partner, but the defendant and Joshua continued living with that person and her son.
In February 2005 the Department of Children and Families filed a neglect petition in Juvenile Court on the grounds that the defendant and Joshua both had severe mental problems, that the defendant continued to reside with her paramour and the alleged molester, that "mother did not implement an appropriate safety plan when she became aware that Joshua was sexually abused," and that the numerous medications she took caused her to be "too tired to provide adequate supervision" for her son. Shortly afterward, the defendant left that household and lived in a homeless shelter for six weeks with her son. While in the shelter she was arrested for driving under the influence and briefly incarcerated on a weekend that Joshua was spending with his father. Joshua's therapist concluded that Joshua needed stability in his life. When a DCF investigator told the plaintiff that the defendant was planning to leave the state with Joshua, the plaintiff filed an application with the Superior Court for custody, which resulted on March 7, 2005, in a pendente lite agreement approved by the court, Munro, J., that the plaintiff would have primary physical custody and the mother would have only supervised visitation. On June 6, 2005, the court, Munro, J., approved a second agreement, "without prejudice to either party," that the mother would have alternating weekend visitation, from Friday to Sunday one week and on Sunday from 11:00 a.m. to 3:00 p.m. the next week. On July 7, the court entered a "final order," again pursuant to a written agreement of the parties, adopting the provisions of the two earlier orders, except that, "upon reasonable advance notice," the plaintiff "would have the minor child on the Sundays when the mother is scheduled for visitation from 11 a.m. to 3 p.m." That remains the operative order.
At the time of the first order transferring physical custody from the defendant to the plaintiff, she was already living in a shelter and no longer residing with the woman whose child had been Joshua's second abuser. Thus, the first of the defendant's claims of a substantial change of circumstances — that neither Joshua nor she has had recent contact with the other child — was already true at the time of the first custody order and does not present any change of circumstances. The same is true of the third reason — that Joshua wants to live with his mother. There is no indication that this has not always been true, and no probable cause to demonstrate a substantial change of circumstances has been shown on either ground.
The defendant's second claim for a substantial change of circumstances interweaves claims that through intensive therapy her bipolar condition has improved to the point that she is now able to "provide a stable living environment for Joshua." Failure to establish this claim is probably dispositive of the present matter, for ability to provide a safe and stable environment for her son would be a prerequisite for a transfer of physical custody to her. When she filed the amended motion, she may still have been in therapy, but by the end of hearing in this matter she no longer was. She testified that after a 10-day psychiatric hospitalization less than two years ago, she was in intense 4-times per week treatment for a year afterward, and then saw a therapist weekly, but that ongoing therapy had ended, by agreement with her therapist, last December. After first claiming that she was no longer depressed and not receiving any mental health treatment, she then acknowledged continuing to see a clinician periodically and to take two medications to treat her anxiety and depression.
There is some indication in the evidence that the defendant's living situation has stabilized somewhat. She no longer lives in a homeless shelter but instead leases an apartment in New Haven. Still unable to work, she receives social security disability benefits. She wears a fentenyl patch that has reduced the pain she experiences from her rheumatoid arthritis, although that pain is still so disabling that she cannot squat, stand for long periods, or clean her own bathtub and feels pain when she uses a blow dryer on her hair. Even with the patches, she said, "the pain in my joints. . . The pain in my knees and my ankles is like very, like unbearable. It just hurts too much." Trans., 1.30.07, at 52.
In view of all the evidence, however, the defendant's claim that her mental condition has improved sufficiently to establish probable cause that she is now able to provide her son with an adequate home environment simply was not credible or proven, for a number of reasons. The defendant's own testimony about the degree of improvement in her mental status and condition was not credible. She had difficulty remembering significant dates, such as, for example, whether her son was molested the second time before or after she moved with him to the shelter. Transc., 9.25.06, at 8. She contradicted herself on other matters as well, such as initially claiming that she was "one hundred percent pain free," then later acknowledging that the pain was still "pretty bad." She falsely testified, at least twice, that mental illness was not one of the reasons that she had been found disabled by the Social Security Administration. Early in the hearing she testified that the "only reason" she was awarded social security disability benefits was "because of my rheumatoid arthritis," denied that her psychiatric condition had also been a reason, and refused to give the plaintiff's attorney access to her social security records until the court ordered her to do so. Transc., 11.29.06, at 89-91. Although the court expressly ordered the parties not to discuss this case or the issues involved with Joshua, almost immediately afterward she did so and yet later claimed she could not remember the court issuing such an order. Either she was lying about not remembering the order or her mental condition is so impaired that she cannot remember or obey court orders; either one of these weighs strongly against finding probable cause in her favor.
Some of the conduct she admitted while testifying raises serious questions about her present ability to take care of Joshua. For example, she has never talked with any of his teachers or counselors at Joshua's school in Hartford, never visited the school except once for a dance recital, does not know how Joshua is doing in school, has only talked to his present therapist once, and yet, though a joint legal custodian, blames the father for her lack of contact with the therapist. Moreover, her demeanor on the witness stand raises serious questions about her mental condition: she sometimes twitched and appeared skittish, she did not always show an ability to understand or answer questions, and her speech was often hesitant and halting. In view of her background of substance abuse and serious psychiatric issues, psychiatric hospitalizations, the resulting neglect of her son, the resulting danger and turmoil that he faced while living in her household and under her care, her testimony and demeanor in court, and her unwillingness or inability to follow court orders meant to protect her son, the court cannot find probable cause that grounds exist to establish, at least in the absence of expert evidence, that her mental condition has sufficiently improved and stabilized that she is able to follow court orders and can take proper care of son.
She also claims that the parties' son, Joshua, is "doing well" now. The evidence suggests, however, that Joshua's progress and improvement are due to the father's steady hand in caring for him. Even if Joshua has adjusted satisfactorily to the two sexual molestations that occurred in his mother's household and his other mental problems are under control, the critical question is not whether he has improved, but whether his mother's condition and ability to care for him have done so sufficiently that he will be safe and properly cared for in her physical custody.
The court understands that there is strong evidence that Joshua desperately wants to live with his mother. His preference relates primarily to the second prong of the custody modification standard — whether a change of custody would be in his best interest. Even on that prong, which this court need not address since no probable cause has been shown on the first element, however, there is serious question as to whether Joshua's desire to live with his mother stems from a parentification on his part — a desire to take care of his mother, which his mother acknowledged; yet such a role reversal would not serve Joshua's best interest. An 11-year-old child still needs to be taken care of by his parent, not to take care of the parent.
As for the fourth claim of substantially changed circumstances, that "Joshua's living conditions with his father have deteriorated," there was no credible evidence whatsoever on two of her bases for this claim — hostility from the plaintiff's wife and relatives or risk of alienation from the father for his refusal to let Joshua live with his mother. The claim of relative hostility stemmed from the fact that Mr. Malave's 83-year-old father had given Joshua socks and underwear for Christmas, the inference that the plaintiff sought being that such a gift showed hostility to Joshua. Yet Joshua's paternal grandfather also gave socks and underwear to everyone else in the family, hardly proof of hostility toward Joshua. Most people have had a friend or family member whose gifts sometimes seemed odd, but that hardly rises to the level of showing hostility. There was some evidence that Mr. Malave has not been a perfect parent. There were some disruptions in his household when his wife and he separated temporarily last year. Driving a motor vehicle with Joshua while also drinking an alcoholic beverage certainly shows a serious lack of judgment. Mr. Malave acknowledged his mistake in doing so, and, although surely serious, this one proven incident does not establish probable cause that grounds exist for the motion to be granted. His mother has also been arrested for possession of cocaine and for driving under the influence. The defendant's claim that Joshua was "beaten" last Thanksgiving or on other occasions were not credible or proven. In considering Joshua's complaints about the strictness of his father's household, the court finds credible the plaintiff's testimony that Joshua's therapist told him that Joshua needs structure, guidance, and constant supervision. There is no credible evidence that the plaintiff has exceeded appropriate limits in providing firmness and structure for his son.
The defendant also claims that she frequently smells alcohol on the plaintiff's breath when he drives from Hartford to New Haven to drop off or pick up Joshua for visitations. (Since the defendant has declined to purchase a motor vehicle, although she says she has sufficient money to do so, the plaintiff does all the driving to and from her visitations.) In view of the fact that the court has serious questions about the defendant's credibility, the court does not find her claims made on this point particularly believable. But since the evidence does contain a photograph taken by Joshua of the plaintiff holding a bag apparently containing an alcoholic beverage while in the motor vehicle with his son, the court is sufficiently concerned about whether there is an alcohol problem on the father's part that might subject the child to risk that the court directs the clerk to send a copy of this decision, defendant's exhibit D, and the transcripts of the hearing to the department of children and families with a cover letter directing the department's attention to this portion of the decision. That department has resources to consider whether and how to investigate such an issue, despite it being unproven here. Since the defendant has not shown a probable cause basis to go forward with the motion for modification, this court will not have resources or means at present to monitor or consider the issue.
This case is, in almost every way, an extremely sad one. The defendant loves her child but, overwhelmed by her own mental and physical disabilities, she was unable to take proper care of him, failed to provide him with needed stability and continuity but instead changed communities and schools repeatedly, and did not protect him from sexual abuse. The child, with significant psychiatric issues himself, having witnessed the pain and suffering his mother endured, is very anxious about her and worries excessively about her (as defendant herself admitted; see transcr., 9.25.06 at 73 and 9.26.06 at 39-40) and wants to protect her from future harm and hurt; "he wants," in her own words, "to be the man of the house." Id., 41. At age 11, however, that is not an appropriate role or responsibility for Joshua. The defendant, however sad she is at the loss of her son, did not establish probable cause that grounds exist to grant her motion. In view of her history, and what happened to her son, such a motion transferring physical custody back to her could only be granted if she showed that she is now sufficiently emotionally stable that she can provide a safe, secure, and stable home for her child. Although the plaintiffs counsel suggested that such a claim, in view of her history, could only be established, even for purposes of probable cause, by expert testimony, the court need not adopt that position here. The defendant's own testimony and demeanor on the witness stand so undercut her claim that they defeat it by themselves.
As the court noted earlier, a probable cause hearing such as this one is not like a motion to dismiss or for a directed verdict at the end of the plaintiffs case, where the evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to the plaintiff and every reasonable inference is to be drawn in the plaintiff's favor. Winn v. Posades , 281 Conn. 50, 54-55, 913 A.2d 407 (2007). If such were the standard here, the rule would probably have provided instead that the moving party seeking a change in custody submit affidavits for review by the court, much like on ex parte restraining orders under General Statutes § 46b-15. Instead, by requiring an evidentiary hearing, the rule requires the court to hear, consider, and weigh all the evidence, as this court has done. After doing so, the court finds that defendant has not met her burden of demonstrating probable cause that grounds exist for the motion to be granted. Accordingly, the defendant's request for leave to file a motion for modification for custody is denied, and plaintiffs objection thereto is sustained.