Opinion
FBTFA144045766
01-08-2016
Thomas Beck Stvan v. Paige Taylor Stvan
UNPUBLISHED OPINION
Filed January 12, 2016
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR A WRITTEN DECISION #196.00
Gerard I. Adelman, J.
This postjudgment matter first came before the court on the plaintiff, Thomas Stvan's ex parte motion for custody, filed September 25, 2015 (#142.00). The instant motion before the court is the defendant Paige Taylor Stvan's motion seeking a memorandum detailing the basis for the court's present custodial orders (#196.00), which stemmed from the granting of the ex parte motion.
Any party in any pending custody proceeding may apply to the court for an emergency ex parte order of custody when such person believes that there is an immediate and present risk of physical danger or psychological harm to the child. See General Statutes § 46b-56(f). If the ex parte order is granted, a hearing must be held within fourteen (14) days. The court is directed to consider the criteria as set forth in § 46b-56(c) for both the ex parte order and the order issued after the hearing.
General Statutes § 46b-56(f) provides:
General Statutes § 46b-56(c) provides: " 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, but shall articulate the basis."
The initial ex parte order was granted, in large part, based on the intervention of the local police to place the child with the plaintiff father while the defendant mother was hospitalized after being found to be disoriented and non-communicative. Additionally, it was represented to the court that the defendant had a history of mental health issues which had previously required the plaintiff to temporarily assume primary or sole custody of the minor child, due to the defendant's inability to care for said child. Based on the serious allegations in the supporting affidavit, the motion was granted and the existing joint legal custody order, which provided that the minor child's primary residence which had been with the defendant mother, was temporarily changed to give sole legal and physical custody of the child to the plaintiff father. Given the age of the child and the persistent allegations by the defendant that child was being pressured by the plaintiff and his spouse, the court appointed an attorney for the minor child (AMC) on October 8, 2015 (#151.00 and #151.01).
Hearings and/or status conferences were held on numerous days after the transfer of custody from the defendant to the plaintiff in an effort to resolve the dispute. Those court proceedings were held on October 8, 14, 16, 22 and 26, 2015 as well as on November 2, 17 and 30, 2015 and December 1, 4, 16 and 24, 2015. At those proceedings, the court was informed that the minor child was not only doing very well and had adjusted rather nicely to her new home and school, but that the child was extremely resistant to any contact with her mother, the defendant. Despite the child's resistance, the AMC was successful in persuading the child to have meetings with the defendant at a local mall. Based on all accounts, including that of the defendant, those meetings did not go well and were routinely cut short after perhaps as little as ten minutes.
Given the information being provided to the court and the conflict that the child's position was creating for the AMC, the court converted the AMC's appointment to that of a guardian ad litem (GAL) and appointed another attorney to act as an AMC (#194.00, 195.00 and 201.00). Additionally, on November 17, 2015, the court ordered that the minor child engage in counseling to assist her in the transition to her new home and school and to hopefully work on restoring a more normal parent-child relationship between the defendant and her daughter (#172.00). After some delays, this counseling has started and initial reports indicate that the child and therapist are working well together.
An AMC is required to represent the minor child's position to the court while a GAL is required to inform the court of the child's position, but is able to represent to the court what the child's best interests might require. As it became obvious that the AMC was attempting to facilitate some level of parental access between the child and the mother, in the belief that such access was ultimately in the child's best interests, that created an ethical conflict for the AMC. When such a conflict becomes known to the court, it is appropriate to have a GAL appointed to represent the best interests of the child and to have an AMC represent the child. Given the fact that a relationship had already developed between the AMC and the child, the court thought it best to convert her appointment to the GAL role and find a new attorney to act as an AMC.
The new AMC was appointed pursuant to the agreement of the parties as to the chosen attorney per General Statutes § 46b-12. The initial appointment of the AMC was done on an emergency basis given the nature of the allegations being made by the defendant.
The court actually appointed two attorneys to the role of AMC. The first attorney declined the appointment after receiving emails from third parties not connected to the case raising allegations of fraud and conspiracy in the orders issued by the court. The court allowed that attorney to decline the appointment and appointed Attorney Bradford Barney as the AMC.
This court has had numerous opportunities to observe the demeanor and behavior of the defendant as can be seen by the many court appearances over such a short period of time. At those court appearances, the defendant had repeatedly demonstrated an inability to control herself requiring the court to stop the proceedings many times to remind her of proper courtroom decorum. The accounts of the limited visits between the defendant and the minor child from the GAL, as well as by the defendant's own testimony, reveal the defendant's inability to refrain from discussing court related matters with the child despite the court's specific and frequent instructions that she not engage in such conversations. The child's demands that the visits be cut so short are an indication of the level of her discomfort with the defendant at this time.
" [T]he ultimate responsibility for determining and protecting the best interests of children in family disputes rests with the trial court and not with the parties to a dissolution action." Masters v. Masters, 201 Conn. 50, 64-65, 513 A.2d 104 (1986).
The language of § 46b-56(b) covering the modification of custodial orders provides in relevant part: " In making or modifying any order [with respect to custody or visitation], 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. The best interest of the child standard is the ultimate basis of a court's custody decision . . . Either parent can be awarded custody and the issue is not which parent was the better custodian in the past but which is the better custodian now. Furthermore, as articulated in Reza v. Leyasi, 95 Conn.App. 562, 568, 897 A.2d 679 (2006), [t]he well-being of the child rather than the punishment or reward of the parent ought to guide every custody case." (Citations omitted; internal quotation marks omitted.) Berger v. Finkel, Superior Court, judicial district of Stamford-Norwalk, Docket No. FA-08-4015315-S (April 18, 2012, Calmar, J.).
The court finds that the best interests of the minor child require that she remain in the custody of the plaintiff and that the defendant's parental access to said child shall be restricted to therapeutic visits with the child's therapist, at the recommendation of said therapist, and hopefully a continuation of the brief meetings at the local mall.
Accordingly, the court hereby ORDERS:
That the temporary custodial orders shall remain in effect pending a full future hearing once the GAL, the AMC and the therapist are able to offer the court a more thorough presentation.
(a) Any person seeking custody of a minor child pursuant to section 46b-56 or pursuant to an action brought under section 46b-40 may make an application to the Superior Court for an emergency ex parte order of custody when such person believes an immediate and present risk of physical danger or psychological harm to the child exists. (b) The application shall be accompanied by an affidavit made under oath which includes a statement (1) of the conditions requiring an emergency ex parte order, (2) that an emergency ex parte order is in the best interests of the child, and (3) of the actions taken by the applicant or any other person to inform the respondent of the request or, if no such actions to inform the respondent were taken, the reasons why the court should consider such application on an ex parte basis absent such actions. (c) The court shall order a hearing on any application made pursuant to this section. If, prior to or after such hearing, the court finds that an immediate and present risk of physical danger or psychological harm to the child exists, the court may, in its discretion, issue an emergency order for the protection of the child and may inform the Department of Children and Families of relevant information in the affidavit for investigation purposes. The emergency order may provide temporary child custody or visitation rights and may enjoin the respondent from: (1) Removing the child from the state; (2) interfering with the applicant's custody of the child; (3) interfering with the child's educational program; or (4) taking any other specific action if the court determines that prohibiting such action is in the best interests of the child. If relief on the application is ordered ex parte, the court shall schedule a hearing not later than fourteen days after the date of such ex parte order. If a postponement of a hearing on the application is requested by either party and granted, no ex parte order shall be granted or continued except upon agreement of the parties or by order of the court for good cause shown. (d) The applicant shall cause notice of the hearing and a copy of the application, the applicant's affidavit, and the ex parte order, if issued, to be served on the respondent not less than five days before the hearing on the application.