Opinion
FA084033361S
08-07-2017
Lisa Moye v. Lamont O. Moye
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR CONTEMPT #209, MOTION FOR MODIFICATION #210 & #211 AND APPLICATION FOR EMERGENCY ORDER OF CUSTODY #212
Kenneth L. Shluger, J.
A review of the record reveals that the parties are the parents of two minor children, Imani, born September 15, 1999, and Iyana born July 19, 2003. As the result of a protracted hearing with numerous witnesses, the court entered orders on March 16, 2017, wherein the defendant father was seeking an emergency order of custody. The court granted the parties joint custody of both children with primary residence to the mother who would also have final decision-making authority. The father was given visitation rights on Saturdays from noon until Sunday at 6 p.m. These orders were entered, just four months ago, in view of overwhelming evidence that the 17-year-old child has severe special needs, including developmental delays, autism, psychotic symptoms, and selective mutism. She is under the care of a psychologist, doctors, many social workers and paraprofessionals. At that time, the court found that the father either doesn't understand or doesn't believe that the medications are necessary and that he does not have a clear and accurate understanding of her complex limitations. The court found that the father frequently interfered or discontinued the child's medications and had failed or neglected to attend to some of her important medical needs such as mandated blood tests. The court also heard testimony at that time from the child's school principal and social worker working closely with the child, who testified in no uncertain terms that the mother is an adequate caregiver about whom they have no concerns but that they had serious concerns about the father's caregiving of the child.
Now comes the defendant father, having filed another Emergency Motion For Custody, Motion to Modify Custody and Motion For Contempt. The father appeared before the court on August 2, 2017. Although the mother had been served in hand, she neglected or failed to appear and the court permitted the father to proceed unopposed. Although there are two children involved, the father presented no evidence concerning the younger child Iyanna and in fact, his Emergency Motion for Custody is addressed only to the older child, Imani.
General Statutes § 46b-56 provides in relevant part: " (a) In any controversy before the Superior Court as to the custody or care of minor children . . . the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children . . . (b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests." " 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." (Internal quotation marks omitted.) Gillespie v. Jenkins, 127 Conn.App. 228, 232, 14 A.3d 1019 (2011); Feinberg v. Feinberg, 114 Conn.App. 589, 594, 970 A.2d 776, cert. granted, 293 Conn. 901, 975 A.2d 1277 (2009); Payton v. Payton, 103 Conn.App. 825, 834, 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, 374 A.2d 1040 (1977). " The burden is on the party seeking modification to show the existence of a substantial change in circumstances." (Internal quotation marks omitted.) Jaser v. Jaser, 37 Conn.App. 194, 204, 655 A.2d 790 (1995); Emerick v. Emerick, 28 Conn.App. 794, 802, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992); see Walshon v. Walshon, 42 Conn.App. 651, 681 A.2d 376 (1996) (plaintiff's motion for modification dismissed 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." (Internal quotation marks omitted.) Feinberg v. Feinberg, supra, 114 Conn.App. 594; In re Ryan R., 102 Conn.App. 608, 625-26, 926 A.2d 690, cert. denied, 284 Conn. 924, 933 A.2d 724 (2007). Although our legislature has promulgated a series of criteria that a court may consider in determining a child's best interests, the " best interests" 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, Frazzini, J.). 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 interests" 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 any custody order, the court is bound by what is in the best interests of the child. Simons v. Simons, 172 Conn. 341, 374 A.2d 1040 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260, 99 A.2d 104 (1953), C.G.S. § 46b-56. The rights, wishes and desires of the parents are also a factor to be taken into account. Such considerations, however, must be subordinated to the best interest of the child. Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980).
The father testified at great length and introduced at least 18 exhibits in support of his claim that the mother is an inadequate caregiver and that the child or children should be placed with him. The court finds that much of this evidence was addressed at great length at the previous hearing. The court finds that there has been no substantial change in circumstances since the last court order and the court finds that a change in custody would not be in the best interest of the children. The court finds no basis to change the custody of the children and that motion is denied.
The father testified that on at least two specific occasions, April 9 and June 10, 2017, the mother failed or refused to allow the father to exercise his court-ordered visitation. He testified that there had been other missed days as well, but he could not recall the dates. Civil contempt in family matters is governed by Practice Book Section 25-27. " Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense." In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). The movant has the burden of proof to show . . . the existence of a court order and noncompliance with that order. Issler v. Issler, 50 Conn.App. 58, 66-69, 716 A.2d 938 (1998). " Noncompliance alone will not support a judgment of contempt." Prial v. Prial, 67 Conn.App. 7, 787 A.2d 50 (2001). Moreover, " a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was willful." Wilson v. Wilson, 38 Conn.App. 263, 275-76, 661 A.2d 621 (1995).
In any contempt, the underlying court order must have been sufficiently clear and unambiguous so as to support a judgment of contempt. The court must find that there was a violation of said order and that the violation was willful. Finally, the court must find that the willful violation of the clear and unambiguous order was not excused by a good-faith dispute or misunderstanding. In re Leah S., 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).
While the court is deeply concerned that the mother has been interfering with the father's visits, the court is unable to conclude if the mother has a reasonable explanation for having missed these visits or if she is, in fact, willfully violating a court order. Since it is the moving party's obligation to prove, by clear and convincing evidence, that the person accused of being in contempt has violated a clear and understandable order willfully, without excuse, the motion for contempt must be denied. Nonetheless, the mother is ordered to permit the father to exercise his court-ordered visitation without excuse in the future and that violations of lawful court orders will not be tolerated.