Opinion
LLIFA165008249S
08-16-2018
Jacob TATA v. Omairys ROMERO-HERNANDEZ
UNPUBLISHED OPINION
John A. Danaher, III, J.
Introduction
The plaintiff, Jacob Tata, filed his custody application on October 28, 2016, seeking joint legal custody of Elaina Marie Tata, who was born on March 22, 2016. The parties acknowledge that Tata is the child’s biological father and the court so finds. The parties agreed, and the court finds, that the parties are living apart and have been living apart since October 2016. The defendant, Omairys Romero-Hernandez, is the child’s mother. This case has been aggressively litigated by both parties, and multiple custody and parenting agreements have marked the progress of the case. Those varying issues will be discussed in appropriate detail, infra .
This matter came before the court for trial on June 6, 2018. At the conclusion of the hearing the court reserved decision.
Factual and Procedural History
Shortly after the plaintiff filed his custody application on October 28, 2018, the parties began to litigate issues regarding parenting and custody with the first agreement having been entered on November 21, 2016, and the first motion to modify that agreement having been filed two weeks later on December 5, 2016. The contentious nature of the relationship between the parties is readily reflected in the lengthy docket sheet for this case, the many motions for modification, for contempt, and two applications for an emergency ex parte order of custody.
Some of the various pendente lite motions, and a related proceeding, were resolved with agreements that include, in relevant part, the following.
On December 19, 2016, in the context of a temporary restraining order sought by the defendant, the parties agreed to continue a temporary restraining order, with the parents contacting each other only regarding the minor child. Romero-Hernandez v. Tata, Superior Court, judicial district of Litchfield, Docket No. FA-16-4016188-S. It was agreed that the parental grandmother would affect the transitions of the child to and from the defendant, and those transitions would take place at a Southington truck stop.
On December 12, 2016, the defendant reported to the Torrington Police Department that the plaintiff had violated a restraining order, prohibiting the plaintiff from contacting the defendant except in regards to the minor child. Specifically, she claimed that the plaintiff sent the defendant a Facebook instant message stating, "I can’t believe u did this we could have been a great couple!" The full no contact order that the plaintiff had allegedly violated was dated December 6, 2016, and was to expire on December 19, 2016. On December 13, 2016, the court signed an arrest warrant for the plaintiff, charging him with criminal violation of a restraining order. The plaintiff pleaded guilty to that charge on February 22, 2018, and was sentenced to five years, execution suspended, followed by three years of probation.
On December 19, 2016, the same day the parties agreed to continue the temporary restraining order, and pursuant to a request from the defendant, the court, (Gill, J.), entered a twenty-year protective order, prohibiting the plaintiff from contacting the defendant. The latter order was entered in the context of the case of State v. Tata, Superior Court, judicial district of Bantam, geographical area number eighteen, Docket No. L18W-CR-16-0151848-S (December 19, 2016, Gill, J.).
On January 17, 2017, in this custody case, the parties agreed to share joint legal custody, with the minor child residing with the defendant and the father having parenting time during two weekdays and overnights on alternating weekends.
On April 10, 2017, the parties agreed that the defendant would have primary custody of the minor child, and that the transition of the child between the parents would be effected at the New Britain Police Department. The parties agreed that all communication between them, except for emergencies, would be through counsel.
On January 19, 2018, the court, (Dooley, J.), found that the plaintiff established "an immediate and present risk of physical danger or psychological harm to the minor child. Accordingly, the court grants the applicant’s application for emergency ex parte custody and, in the best interests of the child," the court ordered temporary custody to the plaintiff with visitation by the defendant once per week on Saturdays, from 9:00 a.m. to 3:00 p.m., once she confirmed that she was engaged with a certified mental health provider, and that she had "completed two sessions to address anger management, de-escalation, stress, [and] coping mechanisms ..." The court ordered that transitions would take place at the Thomaston and Vernon Police Departments.
The custody trial took place on June 6, 2018. The plaintiff testified that the parties are living apart, and he is in a relationship with Veronica Marino, who lives with him. He has had custody of the minor child, pursuant to court order, since January 19, 2018. On a typical day, the plaintiff serves the child breakfast and then takes her to day care. Thereafter, he goes to his employment at Brookfield Industries, where he is a supervisor. His most current financial affidavit indicates that his gross weekly income is $1,175 and his net weekly income is $836. He owns a condominium, which has nominal equity. The plaintiff picks the child up from day care, provides her with a snack and engages with her until it is time for him to cook dinner. He puts her to bed each night at a point somewhere between 8:00 p.m. and 9:00 p.m., depending on how she is behaving on any given evening. The court credits the foregoing testimony.
The plaintiff testified that the court order of January 19, 2018, resulted in him being awarded custody by the Honorable Kari A. Dooley (Judge Dooley), following an event in which the defendant had engaged in a "road rage" incident with an individual unrelated to this case. The child was in the defendant’s vehicle when the incident occurred. The defendant was arrested as a result of her involvement in that incident. In addition, prior to the road rage incident, the defendant was arrested relative to a domestic violence incident involving a member of her husband’s family.
The order entered by Judge Dooley included a finding that "there exists an immediate and present risk of physical danger or psychological harm to the minor child." As a result, Judge Dooley awarded temporary custody to the plaintiff and limited the defendant to six hours of weekly visitation, conditioned on the defendant addressing issues through counseling that include anger management, de-escalation, dealing with stress, and developing coping mechanisms.
Due to the protective order that is in place, the plaintiff must now communicate with the defendant, regarding the minor child, through the defendant’s husband, Joshua Collins. There are ongoing challenges regarding communication, transportation and transitioning the child between the parents.
The plaintiff called as a witness Ms. Gayle Anderson, a Family Services Officer who conducted a comprehensive evaluation regarding this case. Ms. Anderson prepared two reports, both of which were unsealed by agreement of the parties. Ms. Anderson was first appointed to carry out a comprehensive evaluation on March 27, 2017. She completed and filed her first report on September 22, 2017. Ms. Anderson’s report reflects her meetings with the parties, her home visits, criminal background checks, and contacts with the Department of Children and Families as well as the Office of Adult Probation. On January 19, 2018, Ms. Anderson was assigned to do a follow-up report, which she completed and filed on April 25, 2018.
In summary, Ms. Anderson recommended that the father have sole legal and physical custody of the minor child, with visitation by the mother, and visitation exchanges of the minor child at the Thomaston Police Department. She concluded that the defendant is capable of caring for the minor child, but based on the court’s ruling of January 19, 2018, she questions the defendant’s stability. Ms. Anderson also based her conclusions on the fact that the defendant had two violence-related arrests in the space of one month. Ms. Anderson testified that her recommendations, which include giving visitation to the defendant on every weekend, are intended to recognize the current stability enjoyed by the minor child and to seek to maintain that stability.
Ms. Anderson testified that the child is doing exceptionally well in the plaintiff’s care. She testified that her recommendation is based on what is best for the minor child, rather than a response to what either parent wants for him or herself. The court credits the testimony of Ms. Anderson.
Both parties leveled charges of misbehavior at each other. The misbehavior relates to their interactions with each other, as opposed to the minor child. Issues which the parties believe are of great significance, such as the type of clothing in which one or the other parent dressed the child are, in fact, insignificant and irrelevant to the court’s conclusion that both parties love the child and are capable of effectively caring for the child.
Discussion of the Law
General Statutes § 46b-56 provides in 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." Gillespie v. Jenkins, 127 Conn.App. 228, 232, 14 A.3d 1019 (2011); Feinberg v. Feinberg, 114 Conn.App. 589, 594, 975 A.2d 1277 (2009), appeal dismissed, 302 Conn. 463, 464, 28 A.3d 958 (2011); Payton v. Payton, 103 Conn.App. 825, 833, 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. Clougherty v. Clougherty, 162 Conn.App. 857, 869, 133 A.3d 886, cert. denied, 320 Conn. 932, 134 A.3d 621 (2016). "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 moving party "bears the burden to prove that a material change in circumstances has occurred with the best interest of the minor child to be the ultimate test in modifying postjudgment access and/or visitation. Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996); Brubeck v. Burns-Brubeck, 42 Conn.App. 583, 585, 680 A.2d 327 (1996)." Rubenstein v. Rubenstein, 48 Conn.Supp. 492, 496, 851 A.2d 1262 (2004); see also Clougherty, supra, 869. In Walshon, supra, 656-57, the Appellate Court affirmed the trial court’s judgment dismissing the plaintiff’s motion for modification 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." 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); Feinberg v. Feinberg, supra, 114 Conn.App. 593. Although our legislature has 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, 2001, 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).
Section 46b-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.
This court has considered all of the factors enumerated in General Statutes 46b-56(c), and has also considered, as it must, "the child’s interests in sustained growth, development, well-being, and continuity and stability of [the child’s] environment." In re Ryan R., supra, 102 Conn.App. 625-26. For the past seven months the minor child has resided with her father.
The plaintiff’s custody application, having been heard by the court, the court hereby finds and orders:
The parties are living separate and apart. The court has subject matter and personal jurisdiction in this case. There has been state assistance to the parties and/or the minor child. The court approves and incorporates by reference paragraphs 2 and 3 of the amended proposed orders of the State of Connecticut filed on February 28, 2017.
The parties established that they do not communicate well in many respects, and have particular difficulty in communicating with regard to issues relating to the minor child. Their failure to subordinate their interpersonal issues to the best interests of the minor child is detrimental to the child. It is incumbent on the parents to take the steps necessary to improve their communication skills and their ability to compromise and cooperate with each other in order to meet the needs of their child. The protective order currently in place precludes an order of shared legal custody.
For example, the defendant proposed that the court permit the plaintiff to have shared custody of the minor child only after the protective order expires, which will be on January 18, 2038. At that point, of course, the child will have been a legal adult for almost four years.
The court finds that an order granting sole legal custody to the plaintiff and a balanced parenting plan meets the best interests of the minor child and conforms to the court’s responsibility to "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." General Statutes § 46b-56(b); see Gillespie v. Jenkins, supra, 127 Conn.App. 232. The court is fully mindful of the statutory goal that there be "active and consistent involvement of both parents," General Statutes § 46b-56(b), but that same statute also contemplates an order that provides for "(3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child ..."
The court has considered the factors set forth in General Statutes § 46b-56 and finds that the best interests of the minor child will be met with the following orders regarding custody and parenting:
1. Neither party shall disparage, denigrate, slander, or make false statements regarding the other to the minor child or within her reasonable hearing range. Neither party shall discuss adult topics in front of or with the minor child. The phrase "adult topics" includes issues relating to parenting time, custody, the court, court proceedings, or the positions of the parties in the litigation. Each party shall use his or her best efforts to shield the minor child from disputes arising out of the custody application, the present orders, any prior court orders, or any postjudgment proceedings. If the protective order is eventually modified to permit the parties to communicate directly with each other, the parties shall not argue either in front of the minor child or within her reasonable hearing range.
2. Each party has an affirmative obligation to foster feelings of love and affection in the minor child toward the other parent and family members. Neither party shall cause or permit any third party to discuss adult topics, as defined in the preceding paragraph, with the minor child.
3. The plaintiff shall have primary physical custody and sole legal custody of the minor child for the reasons discussed, supra, and for the reasons more fully discussed in paragraph five, infra . The plaintiff is obligated to provide information to the defendant with regard to all significant matters affecting the health, education, daycare arrangements, and welfare of the minor child. Such information shall be provided within a reasonable time period or as soon as practical in the event of an emergency situation. The defendant may obtain copies of the minor child’s health records directly from the providers pursuant to Connecticut General Statutes § 46b-56(g). The plaintiff shall not have an affirmative obligation to provide documents to the defendant unless she is unable to obtain such records directly from the provider. A copy of this order shall be provided to all persons or entities charged with the health, education, care, and welfare of the minor child, including doctors and daycare providers.
4. Because of communication issues between the parties, including but not limited to the issuance of a protective order prohibiting the parents of the child from communicating with each other at all, the court must fashion a mechanism that will permit the parents of the child to communicate regarding the child, the transportation of the child for purposes of visitation, her medical and emotional needs, and other issues related to the child’s well-being and development.
All of the orders set forth in this opinion granting parenting and visitation to the defendant are stayed unless and until the defendant moves to obtain a modification of the protective order now in place to the following, limited extent: the parties will communicate through Our Family Wizard only, and such communications will be limited to matters relating to the transportation of the child for purposes of visitation, her medical and emotional needs, and other issues related to the child’s well-being and development. Such communications shall include information regarding out-of-state travel, including the minor child’s itinerary and any relevant contact information. The foregoing itinerary shall be limited to dates of travel, destination, place of stay, e.g., name and address of hotel, and telephone contact number. Communications through Our Family Wizard shall take place in a nonargumentative, business-like, and nondisparaging manner. The parties shall communicate immediately by telephone in the event of any serious or emergency situation involving the health, safety, or well-being of the minor child.
If the defendant moves to modify the existing protective order, to the limited extent set forth in this fourth numbered section of this opinion, and if that motion is granted, the stay referred to in the second paragraph of this fourth numbered section of this opinion will be immediately lifted upon the granting of the motion for modification.
5. In order to continue the stable living arrangement that is currently in place, and that is clearly benefiting the child, primary physical, and sole legal custody of the minor child is vested in the plaintiff. The defendant will have parenting time with the child from 3:30 p.m. every Friday afternoon until 8:00 a.m. Monday morning. The court is aware that this arrangement precludes the plaintiff from having parenting time on weekends, but in view of the fact that the child is with the plaintiff from every Monday morning through every Friday afternoon, with the exceptions set forth infra, the court concludes that the foregoing parenting schedule is in the best interests of the minor child.
The parties will share transportation, meeting at a midpoint between their respective residences, either at the Thomaston Police Department or at another location on which the parties can agree. In view of the protective order, the parties will ensure, through Our Family Wizard communications, that they alternate bringing the child to the exchange location so that the plaintiff and defendant will not be present at the same time and in the same place. In order to effectuate this order, one party will arrange for someone other than himself or herself to transport the child every other week. The plaintiff will transport the child the first week that this order is in effect, and the defendant will arrange for someone else to receive the child on that occasion. Each week thereafter, the foregoing arrangement will be reversed.
Any motions for modification of the physical and legal custody arrangements will not be calendared unless the moving party has first completed the parenting education program required by General Statutes § 46b-69b.
6. The child will be with the plaintiff on Father’s Day. The child will be with the defendant on Mother’s Day.
7. The parties will alternate parenting time on Thanksgiving Day and Easter Day, with one parent having the child with him/her on one of the foregoing holidays each year. The child will be with the plaintiff on Thanksgiving in even-numbered years and with the defendant on Easter in odd-numbered years.
8. The child will be with the defendant on Christmas Eve through 10:00 a.m. on Christmas day in even-numbered years. The child will be with the plaintiff at 10:00 a.m. on Christmas day and overnight in even-numbered years. The parties will reverse this schedule in odd-numbered years.
9. If either party’s birthday falls on a day when the child is with the other parent, he/she has the option to switch a parenting day with the other party.
10. The parties will alternate custody of the child on all state and federal legal holidays, with the plaintiff having custody of the child on the next state or federal legal holiday that occurs after the date of this order.
11. The parties will work together to maintain free, open, and complete contact among the child and the parties. The parties will consult and confer with each other regularly regarding issues related to religious upbringing, school and educational programs, and nonemergency health care.
12. The parties will exchange information about any child-related activities that might affect the other party’s parenting time before approving the child’s participation in such an activity. If anyone other than the plaintiff or defendant performs child care duties on behalf of the parents, that caregiver must be willing to communicate freely with both parents regarding the child while he/she is providing such child care. Any caregiver unwilling to comply with the foregoing order will be disqualified from serving as a caregiver.
13. Each parent shall have two weeks of consecutive or nonconsecutive summer vacation with the child. The parents shall allocate said weeks by April 30th of each year. In the event of overlapping plans, the plaintiff shall have first choice in odd-numbered years and the defendant shall have first choice in even-numbered years. All summer vacation time shall preempt the regular parenting schedule. On any occasion when either party travels with the child during a vacation, each party will provide the other with travel itineraries and emergency contact telephone numbers at least two weeks prior to the planned travel.
14. If anyone other than the plaintiff or defendant performs child care duties on behalf of the parents, that caregiver must be willing to communicate freely with both parents regarding the child while he/she is providing such child care. Any caregiver unwilling to comply with the foregoing order will be disqualified from serving as a caregiver.
15. The defendant is ordered to pay child support in the amount of $82 per week in accordance with the State of Connecticut Support and Arrearage Guidelines filed on June 5, 2018. The latter calculation is based upon the defendant’s financial affidavit, dated June 5, 2018, which reflects a gross weekly income of $1,175 and a net weekly income of $836. This order is retroactive to January 19, 2018, resulting in a current arrearage that has grown at the rate of $82 per week since January 19, 2018. In addition to weekly child support payments, the defendant will pay an additional $20 per week until the arrearage is fully paid, resulting in weekly payments totaling $102 from the defendant to the plaintiff. All child support and arrearage payments will be made by automatic wage withholding. The defendant will prepare the appropriate wage garnishment paperwork and provide that paperwork to the plaintiff’s counsel no later than one week from the entry of this order.
The defendant will pay unreimbursed medical, dental, and daycare expenses at the amount prescribed by the Connecticut Child Support and Arrearage Guidelines, which the court finds to be 25% of all unreimbursed medical expenses and 20% of unreimbursed daycare expenses. The defendant, upon receiving such proof of expenses, shall promptly reimburse the plaintiff for the defendant’s portion of the expense within two weeks of receipt of the documentation.
Both parties shall maintain medical insurance for the minor child if available through employment at a cost not to exceed 7.5% of the plaintiff’s net income and not to exceed 5% of the defendant’s net income and, if not available, they shall secure HUSKY benefits for the minor child.
The court finds that the defendant received child support payments after custody of the child was vested in the plaintiff on January 19, 2018. Those payments, in the total amount of $564, were to be reimbursed to the plaintiff pursuant to a court order entered on February 8, 2018. Notwithstanding that order, the defendant has failed to reimburse the plaintiff the $564 that is owed to the plaintiff. The defendant will pay that $564 to the plaintiff no later than four weeks from the entry of this ruling.
16. The plaintiff shall be entitled to claim the minor child as a tax exemption for state and federal tax purposes for tax year 2018, and thereafter the parties will alternate claiming the minor child as a dependent for state and federal tax purposes.
So ordered.