Opinion
No. KNO FA 97-0542932 S
March 10, 2009
MEMORANDUM OF DECISION ON MOTIONS TO OPEN AND MODIFY JUDGMENT AS TO CUSTODY (#157) AND VISITATION (#192)
When the court (Martin, J.) dissolved the marriage of the parties on December 10, 1997, it awarded them joint custody of their minor child, Jacob, who was born on May 15, 1996. Primary residence was with plaintiff, and reasonable rights of visitation were awarded to defendant.
On September 7, 2007, plaintiff moved to modify judgment seeking sole custody in her favor (#157), and followed on October 22, 2008 with a motion to suspend visitation between defendant and Jacob (#192). Both of these motions came before this court for hearing on March 4, 2009.
While the age of the motions suggests that their subject matter may have become stale, the court notes that in September 2007, a psychiatric evaluation was ordered which was not completed until recently. Also, as the filing numbers assigned to the motions implies, the parties have been before the court on many other occasions in the past eighteen months. Since both the parties and the court have been awaiting the evaluation, the court hereby finds that there has been good cause, attributable to no fault on the part of either party, for the hearing being held past the time limit set forth in Practice Book § 25-34(c).
As the hearing commenced, the court noted the absence of the defendant, who is now representing himself. This matter was specially assigned for hearing on March 4. Both counsel for plaintiff and the guardian ad litem reported having conversed with defendant by telephone within the previous week, and he informed each of them that he did not intend to be present at the hearing. He did not file any request for a continuance. The court finds that he had actual notice of the scheduled hearing and consciously decided to not appear for the proceedings. Under these circumstances, the court allowed plaintiff to go forward on her motions in his absence.
I. Custody
Plaintiff's first witness, Dr. James Black, was the psychiatrist who evaluated the family pursuant to the court's order. Dr. Black was qualified as an expert witness on child and adolescent psychiatry and its relevance in custody litigation. He met with the parties and Jacob, and with other family members, on more than a dozen occasions over the past year. He has consulted with Jacob's teachers, therapists, prior evaluators, and other non-party adults who have interacted with the child.
Through his observations of the family, corroborated by reports from collateral sources, he concludes that the relationship between the parties as joint custodians has broken down irretrievably. For several years now, marked by practically constant strife between them, defendant has attempted to dominate the decision making process with respect to his son. Instead of the mutuality inherent in the joint custody model, defendant has characterized the interaction between him and the child's mother as a crusade for his son's soul, which he is certain he is waging effectively. He expressed with certitude his belief that he is right about the child and she is not.
He relayed to this evaluator, as well as to the guardian ad litem, his belief that Jacob's best interests will only be served by one parent being designated as sole custodian, at which moment the other parent should "disappear" from the child's life. The witness observed defendant being verbally aggressive towards plaintiff, asserting his viewpoint until she either concedes or gives up the point. (He carries the same mindset into his dealings with Jacob.) In this expert's opinion, defendant is narcissistic, angry, eager to control others while unable to control himself, and impulsive to the point of overtaking his ability to exercise appropriate judgment.
The witness gave numerous illustrations of how these characteristics impede the provision of effective services to the child. The child's pediatrician has prescribed one medication for a diagnosed condition, and recommended an over-the-counter remedy for another. When Jacob comes to defendant's house from plaintiff's, defendant confiscates the medications. A revealing encounter occurred on January 27, 2009, when the parties attended a Planning and Placement Team meeting at the child's school. Among others in attendance was Dr. Suzanne Derry, a clinician who has worked as the child's therapist for about three years. The parties disagreed on whether Jacob should be enrolled in Spanish II at this time, and Dr. Derry concurred with plaintiff. Defendant reacted by becoming irate at her and physically accosting her, threatening to sue her if she ever met with his son again. Later that evening, when his temper should have cooled, he followed up with an email to her practice colleague putting in writing that he "fired" her and threatening legal action if that notice was ignored.
Exhibit 3.
The guardian ad litem has had a role in this case for almost four years, and knows both parties and the child well. Upon her reappointment in response to the September 2007, motion, she has actively investigated the circumstances of her ward. She reports that the friction between the parents has led to at least three referrals to the Department of Children and Families and to at least two 911 calls leading to police response while Jacob has been present. Since 2005, the child has seen at least fifteen evaluators, therapists, or social workers as a result of parental discord. She advocated for an end to the present order, which provides recurrent opportunity for turmoil detrimental to this child. She anticipated that this might force the court to make an "either/or" election between the parties as sole custodian. She reported that plaintiff has demonstrated an ability to attend well to her son's needs, that Jacob's bond with her is deep, and that removing him from her custody would be profoundly disturbing to him. In contrast his relationship with defendant is conflicted and troubled.
In Emerick v. Emerick, 5 Conn.App. 649, 656-57 (1985), cert. dismissed, 200 Conn. 804 (1986), the Appellate Court explained that ". . . [t]he difference between a sole custodian and a joint legal custodian is that the sole custodian has the ultimate authority to make all decisions regarding a child's welfare, such as education, religious instruction and medical care whereas a joint legal custodian shares the responsibility for those decisions." The case at bar is quite similar to that of Daddio v. O'Bara, 97 Conn.App. 286, certification denied, 280 Conn. 932 (2006), in which the court detailed "ample evidence . . . pertaining to the parties' inability to cooperate and communicate with respect to the decisions regarding the minor child. Simply put, the parenting arrangement, contemplated by the orders of joint legal custody, was not working." As a result, the trial court's modification of a joint custody award to one of sole custody was affirmed.
This court finds that circumstances have materially changed since Jacob was an infant, and that joint custody is no longer in his best interest. Both the expert witness and the guardian ad litem have recommended that sole custody be awarded to plaintiff; and each has provided the court with ample evidence supporting that recommendation. There is nothing approaching equilibrium in the parties' respective claims to sole custodian status. Considering the totality of the present circumstances, the court therefore finds that Jacob's best interest would now be served by awarding sole custody to plaintiff.
II. Visitation
A parent's privilege of visitation with a child whose custody had been awarded to the other parent in a divorce action is not an absolute right but one which is dependent on what is in the best interests of the child; visitation fights can be restricted or effectively terminated. Raymond v. Raymond, 165 Conn. 735 (1974). Plaintiff's request that this court terminate defendant's visits with Jacob is one which this court does not take lightly, as it is beyond argument that for a twelve-year-old boy to have a good relationship with his father is highly desirable if not indispensible to that child's healthy development.
The court notes that visitation between defendant and this child has either been suspended or placed on a supervised basis at least three times within the past four years.
The problems defendant has at this time with his ex-wife extend to his relationship with Jacob. Dr. Black described the child as fearful of his father, resulting from a number of encounters between them in which defendant pressured Jacob to be someone other than he is. His means include intimidation, verbal abuse, manipulation, and invasion of the child's physical space and privacy. The guardian ad litem reports that this constant antagonism has left Jacob anxiously convinced that his father's goal is to "break him" and make him into the son defendant imagines he ought to be, which is someone quite distinct from the individual Jacob is instead becoming.
During visits, defendant has not hesitated to inform Jacob of the defects he perceives in plaintiff, and to attempt to recruit the child to his cause of undermining her authority. On several occasions when Dr. Black pointed out to him the inappropriateness of this behavior, defendant unapologetically insisted upon his righteousness. The effect it has upon the child is intolerably stressful, as he is torn between, on the one hand, agreeing with his father and thus betraying his mother, or, on the other, contradicting father and having to deal with his wrath for the remainder of the time they are together. The medications which defendant prohibits him from taking, as described above, are indicated for stress-related disorders not routinely seen in a child of his age.
When Jacob was seeing his father regularly — until November of last year — he had frequent difficulties returning to school and his normal routine at the end of each visit. Truancy was an emerging problem. Since these visits stopped, attendance at school and performance in school have both improved. The evaluator and the guardian ad litem recommended that visitation be discontinued until defendant has dealt with the behavior that blights his relationship with his son and his ex-wife, or at least the former.
In sum, the court finds that at this time, the visits between father and son are detrimental to this child. Plaintiff has proven the allegations of her motion seeking that visitation be suspended until defendant learns how to interact with his son in a manner that does not further harm the child.
CT Page 4693
III. Miscellaneous
There are two aspects to the foregoing findings which warrant attention today.First is what role, if any, defendant may play in future dealings with third parties vis-à-vis Jacob. As a former joint custodian used to an active role in dealing with the child's teachers, doctors, and so on, how is his role to change now that plaintiff is the sole custodian? By statute — specifically, C.G.S. § 46b-56(g) — a parent not granted custody of a minor child is not to be denied the right of access to the child's academic, medical, hospital, or other health records "unless otherwise ordered by the court for good cause shown." In light of defendant's disturbance of the PPT meeting described above, and his chronic and conscious efforts to undermine plaintiff's authority, this court believes there is good cause for concern about his having unfettered access to the child's third-party providers and has addressed that concern in the orders set forth below.
Secondly, both the plaintiff and the guardian ad litem propose that the court order that defendant take certain steps to regain the right to resume visitation with Jacob. Each suggests that he visit one or more therapists to work on identified issues, and that the court prescribe the term and number of his visits and the goals of the visits. These recommendations begin with, and then diverge from, a series of therapeutic recommendations set forth at the conclusion of Dr. Black's report. Considering that the defendant declined to appear for the final hearing, and considering further the age of the child and the depth of the discord between him and his father, this court feels that something as inherently dynamic as a relationship of this nature ought not to be channeled by judicial fiat. This is not a proceeding for termination of parental rights, and the court hopes that defendant will immediately begin the steps necessary to reestablish his relationship with Jacob. The punch lists set before the court may provide a useful road map in his pursuit of that goal. The court, however, is reluctant to give any false hope that by merely going through the motions of a counseling regime pursuant to court order he will have done what is sufficient to address the substantive barriers to that goal as they have been found to exist today. The court believes that both plaintiff and the guardian ad litem will be vigilant in monitoring his progress in that respect, and that the best interests of Jacob at such time as defendant may seek to resume visitation may best be determined by the court at that time without a fracas over whether defendant has done or failed to do what this court has been today invited to order him to do.
CT Page 4694
IV. Financial Issues
The guardian ad litem has served ably in this case for many months. The court finds that her fee request of $7,460, reflecting 37.3 hours of work billed at an hourly rate of $200, is fair and equitable. Plaintiff has, to date, paid $2,500 to her, whereas defendant has paid her $750.Dr. Black has received some fee payments from the parties in the past to cover his services on an ongoing basis, and had received full payment on account from plaintiff, while defendant remains in debt to him in the amount of $500. For the time he spent preparing for trial, coming to court, and testifying (seven hours), he seeks an additional $2,100 at $300 per hour. This fee request is found to be fair and equitable.
Plaintiff represents that she has expended over $38,000 in legal fees over the past eighteen months, and seeks a fee award of $4,500. She has provided the court with a current financial affidavit, indicating that she is a teacher with steady albeit modest income, and her only major assets being her home and her retirement account. The last such affidavit filed by defendant is dated August 8, 2008, which indicated weekly earnings almost double hers; however, since he is employed in the securities industry, the court is not confident that his financial circumstances have improved since that date. In addition to her fees, she seeks an order that defendant be liable for $1,500 of the remaining $2,100 sought by Dr. Black, and the remaining $1,230 which she would have to pay the guardian ad litem if the fee were divided equally.
The court is reluctant to order the parties to pay disparate amounts, at this time. As indicated above, this is not a proceeding to terminate parental rights. The road to a restoration of the relationship between the father and son will be difficult enough without the added weight of a perception on defendant's part that he is being treated punitively in a financial sense. This reluctance is confined to the present requests, and cannot bind any subsequent court from an appropriate award of fees in any future contempt or modification proceedings.
Accordingly, in light of all the foregoing findings, the judgment of December 10, 1997 is opened and modified, and it is hereby ORDERED:
1) Sole custody of Jacob Mondello is awarded to plaintiff.
2) Visitation between the child and the defendant is suspended until further order of the court.
CT Page 4695
3) Defendant is enjoined against identifying himself to teachers, doctors, and other persons interacting with his son as a custodial parent, or from interfering with plaintiff's role as sole custodian. Defendant may exercise his statutory rights to information about the child, on the condition that he not frustrate plaintiff's role as custodian. (This is not to be intended to limit any educator, health provider, or other non-party interacting with the child from imposing any further conditions upon him consistent with their policies as to non-custodial parents, or to prevent a breach of the peace.)
4) Plaintiff shall pay to the guardian ad litem the amount of $1,230, which is one-half of her fees of $7,460, that is, $3,730, less plaintiff's payments to date of $2,500. Defendant is to pay the guardian ad litem the amount of $2,980, that is, $3,730 less his payment to date of $750. These sums shall be paid in full by March 31, 2009.
5) Plaintiff shall pay to Dr. Black the sum of $1,050, which is one-half of his approved final bill of $2,100. Defendant shall pay him $1,550, which includes his prior balance due of $500. These sums shall be paid in full by March 31, 2009.
6) No attorney fees are awarded to either party.