Opinion
No. FA 10-4012572-S
March 22, 2011
MEMORANDUM OF DECISION
This matter is a custody action between the plaintiff, Monica Peters and the defendant, Numan Senman. The matter was tried on an interrupted schedule over four days, commencing November 2, 2010 and completed on December 6, 2010. The court has considered all of the evidence presented to it and carefully considered the respective criteria for orders of custody pursuant to Connecticut General Statutes § 46b-56, together with applicable case law. The court makes the following findings.
The parties are the parents of Elias Senman, date of birth October 12, 2006. The parties never married. Both parties have lived in Connecticut since the birth of Elias.
Numan Senman has an associate's degree in General Studies from Glendale Community College in Arizona. He eventually earned a degree in Social Studies from Central Connecticut State University. Numan is currently employed at Pratt Whitney as a "reliability engineer." He has been employed there for the past six years. Numan's work schedule allows him to work from home two days per week. He lives in a three-bedroom home that he owns in Vernon, Connecticut.
Monica Peters earned an associates degree from Three Rivers Community College. She subsequently transferred to the University of Connecticut and earned a degree in Nutritional Sciences. Monica is currently studying to be a massage therapist. Since the birth of Elias, Monica has worked as a newspaper deliverer, a waitress at Rein's Deli, a waitress at Nature's Grocer, and as a marketing consultant in her mother's real estate business. She currently lives in a 725 square foot one-bedroom apartment that she rents.
The parties met in December 2005 on My Space, an electronic social network, and started dating shortly thereafter. They did not have an exclusive relationship as Monica was dating other men. The parties ended their relationship in January 2006. Monica found out she was pregnant with Elias shortly thereafter.
In April 2006, the parties decided to date once again. In May 2006, the parties moved in together in an apartment in Vernon, Connecticut. In November 2006, when Elias was six weeks old, the parties broke up again and Numan went to live with his parents. Elias stayed with his mother. The parties reconciled and Numan resumed living with Monica. In May 2008, Monica started seeing someone from work and ended her relationship with Numan. In June 2008, she moved into an apartment of her own. Elias stayed with Numan. In September 2008, Monica returned to live with Numan. In January 2009, the parties went to couples counseling, but did not follow through.
In the spring of 2009, the parties began to search for a home to purchase. In May 2009, Numan placed an offer to purchase a house in Vernon, Connecticut. Numan, however, withdrew the offer to purchase the house. Monica became irate with Numan, cursed at him, spit in his face and decided to look for a home of her own. She left Numan again.
In July 2009, Numan purchased a three-bedroom home in Vernon, Connecticut. Monica was upset that Numan did not include her in the purchase of the home. Nevertheless, she moved in with Numan. In September 2009, Monica, once again, ended the relationship with Numan. She, however, continued to live in Numan's home until April 2010, when she moved to an apartment of her own. Elias stayed with Numan.
The parties' relationship has been unstable and volatile since the beginning. As mentioned above, the parties had an on and off relationship since the very beginning. In spite of having a child and living with Numan, Monica has made her personal relationships with other men a priority in her life. Monica has moved in and out of Numan's residences repeatedly. On most occasions, Elias stayed with Numan. Consequently, she has also been in and out of Elias' life. Even while living with Numan, Monica left for the weekends on more than twelve occasions leaving Elias with Numan.
Elias is currently four years old. When Elias was eight months old, Monica began to notice that Elias was not meeting developmental milestones. She began to do research on her own and suspected that Elias had Autism. She insisted that Elias be tested; however, Numan was not convinced and resisted an evaluation. Monica made all the arrangements, and on January 2, 2008, Elias was evaluated. On January 30, 2008, Elias was diagnosed with Autism.
The parties immediately engaged a birth to three program through the Capital Region Educational Counsel (CREC). The service was provided by Creative Interventions which is an Autism specific birth to three program. The instructor came to the house and worked one-on-one with Elias three times per week for one and one-half hours each session. The goal of the program was to teach Elias behavioral, academic and social skills. Both parents cooperated with the service. The parents participated by observing and asking questions of the teacher.
Elias made great progress while in the birth to three program. The program ended when Elias turned three years old. He is now enrolled in a special education program at the Lake Street School in Vernon, Connecticut. Elias is doing well. Although both parents describe Elias's Autism as mild, it is nevertheless significant.
As it is common with some Autistic children, Elias does not handle transitions well. When Elias has parenting time with his mother, Elias initially cries and protests. He clings to his father. Elias does, however, adjust to the transition and plays well with his mother. They are very comfortable with each other.
The parties have different parenting styles. Each parent feels that his/her own style is the better parenting style for the child. Although Numan was originally reluctant to have Elias tested for Autism, he has now recognized that Elias is a special needs child. Numan has taken appropriate steps to educate himself on Autism and provides Elias with the proper encouragement and direction Elias needs. Numan is an appropriate and a hands-on father.
Monica is also an appropriate parent. She recognized Elias's developmental delays early on and took appropriate steps to address them. She has taken the time to educate herself on Elias's special needs. Monica, however, believes she is a better parent for Elias than Numan. When she disagrees with Numan over Elias's needs, she often argues with Numan in the presence of Elias. She can easily become angry and is difficult to console.
Monica is a strong advocate for her son. Her zealousness, however, crosses the boundaries of appropriateness. She has gained unauthorized access to Numan's e-mails and reviewed communications between Numan and his attorney. She also gained access to e-mail communications between Numan and family relations. Monica first denied gaining unauthorized access to Numan's private communications, but later admitted it giving excuses, denials and justifications for doing so. She even told Numan when he confronted her about lying while testifying that she would do or say anything to gain custody of her child.
Dr. Theresa Fredericka Wassenberg, a counselor with the Family Relations Office, conducted a comprehensive evaluation and submitted a written report. Originally, Monica planned on relocating to another state and therefore, the report focused on that issue. While Dr. Wassenberg was conducting the study, it became clear to her that she should also address the issue of primary residency. Dr. Wassenberg's study included a review of the parent's respective history, the parenting ability, and issues of domestic violence. Ultimately, Monica decided to stay in Connecticut. Dr. Wassenberg concluded that both parents were active and involved parents. Dr. Wassenberg recommended that joint legal custody was in the best interest of Elias and that Numan was the better candidate for primary residence.
"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 . . ." 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).
"[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.
The court must in its orders reflect the best interest of the child given his current needs and the parents' ability to take care of the child's needs for nurturance, development and the need to foster a healthy relationship with each of the parents. In this case, the court must also consider this child's special needs and each parent's ability to meet the child's special needs. Given Elias' special needs, the court finds that he needs a stable and consistent environment. The court finds that Numan is better able to provide for such an environment in order for Elias to thrive.
ORDERS
After considering all the evidence presented and all the statutory criteria set forth in Connecticut General Statute § 46b-56 as to orders of custody, care, education, visitation, and support of children; as well as all the relevant case law, the court issues the following orders as final judgment:
Custody Access
The parties shall share joint legal custody of the minor child, primary residence with the defendant/father. The parties shall confer on all major or developmental decisions without limitation, but specifically including health, education and religion. If after conferring, the parties are unable to come to a decision, the father shall make the final decision.
Access Schedule
The plaintiff/mother shall have parenting time with the minor child as follows: Tuesdays 7:30 p.m. overnight to Wednesday drop off at school. Wednesday after school until Thursday drop off at school. Defendant/father shall pick up the minor child after school or day care on Thursday.
If either parent is unable to exercise his/her parenting time longer than eight (8) hours, the other parent shall be given the opportunity to care for the minor child before all others, including family members.
The parent with whom the minor child is then in custody shall make day-to-day decisions. Both parents shall respect the rules of each other.
The parent with whom the minor child is then in custody shall ensure the child completes any school work and/or other assignments that are then due.
The parent with whom the minor child is then in custody shall ensure that the minor child attends all extracurricular activities, sports, and/or social events previously scheduled. The parties shall cooperate and communicate with each other prior to enrolling the minor child in any such activities.
Each party shall foster affection between the minor child and the other parent. Neither parent shall make any derogatory comments to the minor child about the other nor do anything that would estrange the minor child from the other, would injure the opinion of the minor child as to the other, or would impair the natural development of the minor child's love and respect for the other.
The parties shall share holidays. Should the parties not be able to agree, the holidays shall be alternated. Christmas Eve and Christmas Day shall be considered two separate holidays. The minor child shall be with the plaintiff/mother on Mother's Day and the minor child shall be with the defendant/father on Father's Day.
The minor child shall spend the state and school observed holidays with the parent who has regular visitation/parenting time on that given day.
Neither party shall remove the minor child from the State of Connecticut to establish residency in any other state unless they have a written agreement to do so. The parties shall notify each other of any change of address at least sixty (60) days in advance of a move outside of the town where they currently reside.
Child Support
The plaintiff/mother shall pay to the defendant/father child support in the amount of $90 per week until the minor child turns eighteen years old provided that he has graduated from high school. If the minor child is eighteen years old and has not graduated from high school, said child support shall terminate when he graduates from high school or reaches the age of nineteen. Said child support is in accordance with the Child Support Guidelines. The parties shall share any and all unreimbursed medical, optical, ophthalmological, psychological, orthodontic or dental expenses at a rate of 30% by the plaintiff/mother and 70% by the defendant/father in accordance with the Child Support Guidelines. No elective surgery shall be incurred without the prior consent of both parties. Said consent shall not be unreasonably withheld by either party. Payment shall be made within thirty days of receiving verification of said expense.
Child support shall be secured by a contingent wage withholding.
Medical Insurance
The defendant/father shall carry medical insurance for the child if available to him at a reasonable cost through his place of employment in accordance with Conn. Gen. Stat. § 46b-84.
Post-Secondary Education
It is more likely than not that the parties would have provided support for post-secondary education. Pursuant to Conn. Gen. Stat. § 46b-56c, the court will retain jurisdiction as to post-secondary support orders.
Life Insurance
Each party shall maintain a policy of life insurance in the amount of one hundred thousand dollars ($100,000) naming the minor child as irrevocable beneficiary until the minor child attains the age of 23.
Dependency Exemption
The parties shall alternate the child as an exemption on their federal and state income taxes with the defendant/father claiming the child as an exemption for the tax year 2010. In the event the plaintiff/mother earns less than $20,000 and/or is not current with child support obligations by January 31st of the succeeding year in a tax year that she is entitled to claim the minor child, she shall not claim the minor child for that tax year and the defendant/father shall claim the minor child. The parties shall exchange proof of earnings by January 31st of each year.
Attorneys Fees
The parties shall each be responsible for their own attorneys fees.