Opinion
No. FA09-4011384-S
April 7, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR MODIFICATION OF CUSTODY
An evidentiary hearing on the defendant's Motion for Modification of Custody filed on February 2, 2010 was held on April 5, 2010. The plaintiff and the defendant testified, as well as other witnesses. Exhibits were received into evidence, and Attorney Sue Cousineau, Guardian Ad Litem for the minor child was present. Attorney Cousineau also testified. At issue is custody of the minor child, Damon, date of birth November 1, 2008. In an agreement dated November 20, 2009, and ordered approved by the court, (Rubinow, J.) the plaintiff and the defendant share joint legal and physical custody of their minor child. The order further provided for a detailed visitation schedule. The defendant now seeks to modify the court order of November 20, 2009 and requests sole legal and physical custody of Damon, with supervised visitation for the plaintiff. The defendant alleges that the plaintiff's present physical, mental, financial, and legal issues render her unsuitable to act in Damon's best interests. The plaintiff has denied said claims and objects to the requested modification.
In reaching its conclusions, the court has fairly and impartially considered all the evidence presented, evaluated the credibility of the witnesses, assessed the weight, if any, to be given specific evidence, measured the probative force of conflicting evidence, applied relevant statutory criteria and relevant case law, and has drawn such inferences from the evidence or facts established by the evidence it deems reasonable and logical.
"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 . . ." C.G.S. 46b-56(a). The "best interests of the child" standard is the ultimate basis of a court's custody decision. Perez v. Perez, 212 Conn. 63 (1989). "We have consistently held in matters involving child custody that while the rights, wishes, and desires of the parents must be considered, it is nevertheless the ultimate welfare of the child which must control the decision of the court." In Re Appeal of Kindis, 162 Conn. 239, 242 (1972).
In modifying custody the court must either find a material change of circumstances or that the order sought to be modified was not based on an evidentiary determination as to the best interest of the child. Kelly v. Kelly, supra, 54 Conn.App. 55-56; Hall v. Hall, 186 Conn. 118 (1982); see also Kennedy v. Kennedy, 83 Conn.App. 106, 114, cert. denied, 270 Conn. 915 (2004) (finding that the joint custody arrangement was no longer in the best interest of the children).
"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). 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).
As noted previously, the court listened to testimony from several witnesses. The plaintiff's probation officer, Ann Oliver, described the plaintiff's compliance with probation from August 2009, until February 2010. The evidence from Ms. Oliver reflects that the plaintiff has been referred to more than one drug treatment program while on probation and failed to comply with all requirements of said programs. The plaintiff rendered a positive test in November 2009 for cocaine and opiates, and was discharged from the "Fresh Start" program in December 2009 for non-compliance with program rules. The plaintiff was thereafter referred to the "Haley House" inpatient facility for treatment, and was subsequently discharged from that facility for non-compliance with program rules. The plaintiff's probation was violated as the result of her arrest in February 2010 for an incident that occurred in August or September 2009. Following her arrest for violation of probation, the defendant was again arrested in March 2010. The March 2010 incident is pending in Meriden Superior Court and involves an allegation of shoplifting shirts, a necklace, and body-piercing material. The defendant discussed the March arrest with DCF worker Allison Alfano, and claimed to Alfano that the person actually arrested was "her (fortyish) mother," and not her. In an effort to either dispel, or corroborate that claim, Alfano verified through available records that the age of the subject arrested was 25. Obviously, the plaintiff's mother is not 25, and the plaintiff's representations to Ms. Alfano regarding the identity of the suspect in March incident are more than disingenuous.
In summary, the evidence presented and credited by the court reflects the fact that since November 2009, the plaintiff has been unsuccessfully discharged from more than one inpatient substance abuse program, and faces a violation of probation and two additional and separate criminal matters. She is a convicted felon and has several other convictions on her record that reflect a lack of veracity. State v. Askew, 245 Conn. 351, 361-63 (1998); State v. Martin, 201 Conn. 74 (1986). DCF remains concerned about the plaintiff's continued "sobriety" and ability to maintain a suitable home for herself and the minor child. DCF does not harbor similar concerns with regard to the defendant, Travis Van Blaricom.
DCF has been involved with the plaintiff and defendant since Damon's birth. Damon tested positive for cocaine at birth, as did the plaintiff. The defendant Van Blaricom has made significant strides since that time to address his issues in a forthright fashion. He currently resides with his mother and is employed as a landscaper. He has at all times relevant to this proceeding, tested negative for illegal substances. No evidence was presented that he has been involved in the criminal justice system at any time relevant to this proceeding. Significantly, DCF worker Stacy Barber and Guardian Ad Litem Attorney Sue Cousineau separately, and independently, voiced concerns about the plaintiff's lack of veracity, her stability, her ability to make appropriate decisions for Damon, and her continued lack of insight into her substance abuse problem. The plaintiff's lack of insight into her substance abuse issues, and her propensity to assign blame for her failures to other people, caused the Guardian Ad Litem to doubt that the plaintiff would ever complete a meaningful treatment program, and consequently, be responsible for safeguarding and nurturing a young child. As a result of the defendant's compliance with DCF, his responsible behavior with regard to his child, and because of the defendant's apparent continued commitment to become a more productive member of society and maintain "sobriety," in contrast to the plaintiff's conduct, the Guardian Ad Litem believes it is in the child's best interests to award sole custody to the defendant.
The court has considered the testimony of the plaintiff, and her performance on cross-examination adversely affected her credibility. Indeed, the court observed many of the characteristics described by Ms. Barber and Attorney Cousineau with regard to plaintiff on display during her testimony. For example, the plaintiff failed to recognize the incongruity of her claim to "not be an active addict" upon her admission to the "Fresh Start" program in Hartford, and her later acknowledgment of a positive test for cocaine upon her admission to said program. Although she claimed to be able to "co-parent" with the defendant, the evidence demonstrated that on many occasions during plaintiff's scheduled access to Damon, the plaintiff's grandmother in fact acted as the child's guardian. The plaintiff's grandmother and the defendant have an acrimonious relationship. The most noteworthy example of the plaintiff's conduct in this regard is her arrest in Meriden for shoplifting during a scheduled visitation with Damon. She also failed to inform the defendant that for a two-week period while she was inpatient at "Haley House," Damon was not with her as represented but was in fact with her grandmother. Although the plaintiff claims to have recently "turned the corner," her documented history, lack of credibility, and failure to provide corroboration for her claims all serve render such an assertion meaningless at the present time.
Based on the foregoing, the court finds that the defendant has met his burden of demonstrating the existence of a substantial change in circumstances. The plaintiff's conduct, and lack of accountability for said conduct, as well as her continued substance abuse and legal issues persuade the court that, in considering the factors enumerated in C.G.S. 46b-56(c), it is in the child's best interests to award sole custody to the defendant. Therefore, the defendant's Motion for Modification of Custody is granted as follows:
1. Sole Legal and physical custody of the minor child shall be vested in the Father, Travis Van Blaricom.
2. Mother shall have supervised visitation on Tuesdays and Thursdays each week, at a visitation center to be located and paid for by the Mother.
3. Said visitation shall continue for so long as Mother is participating in, and in compliance with, drug treatment counseling. Mother shall be obligated to execute a release authoring Father and the Guardian Ad Litem to communicate directly with Mother's drug treatment center. If Mother changes drug treatment facilities and does not provide a new release, terminates an existing release, or allows a release to lapse without executing a new one, Mother's visitation shall be suspended during such time as no release is available, and shall be restarted only after the release has been provided and the Father and Guardian Ad Litem have had a reasonable opportunity to verify Mother's compliance with drug treatment.
4. If Mother is incarcerated, Mother's visitation shall cease during such period of incarceration.
5. If Mother re-enters, and is later discharged from drug treatment without having successfully completed it, Mother's visitation shall cease until Mother provides proof, in the form of a hair test showing no illegal or illicit substances, that she is not abusing substances.