Opinion
No. FA06-401 76 50 S
July 24, 2009
Memorandum of Decision
The marriage of these parents was dissolved on April 27, 2007. There was no further action until May 5, 2008, when the defendant, Amy Varian now known as Amy Corcelli, filed postjudgment motions numbered 111 and 112 for modification and for permission to relocate the parties' two minor children to the state of Massachusetts. After mediation efforts proved unsuccessful, the matter was assigned to family relations counselor Leah Fucci on July 11, 2008, for an issue-focused relocation study. On July 23, 2008, the plaintiff father, Keith Varian, filed motion number 116 seeking primary residential custody of the two minor children in the event the defendant relocated to Massachusetts. The relocation study was completed on September 9, 2008. On December 12, 2008, the defendant mother filed amended motions numbered 133 and 134 for modification and for permission to relocate the two minor children to Massachusetts to reside with the defendant and her new husband, Joseph Corcelli, or in the alternative, "permission to relocate to the northern part of the state of Connecticut so that her husband will be within a reasonable commuting time to and from Boston." The plaintiff, Keith Varian objected.
These postjudgment matters were tried to the court on April 28, 2009, April 29, 2009, and April 30, 2009. Both parties were represented by counsel. The interests of the minor children, Mallory Varian, born August 21, 2004 (four years old) and Emily Varian, born October 26, 2005 (three years old) were represented in the proceedings by a guardian ad litem, Erica Wikstrom.
At the hearing many exhibits were entered and the court had the opportunity to observe the demeanor of and receive testimony from the plaintiff father; the defendant mother, and her husband Joseph Corcelli; Leah Fucci, the family relations counselor; Barbara Scinto, the defendant's mother; Robert Gilman, Joseph Corcelli's supervising partner; Steven Siehel, the defendant's licensed psychologist; and Attorney Erica Wikstrom, the guardian ad litem for the children.
In rendering this decision, the court has carefully considered the statutory criteria of General Statutes § 46b-56d and the case law as it has developed regarding these matters.
Based upon the credible evidence the court finds the following facts:
The parties were married on September 29, 2001, in Stratford, Connecticut. Their six and a half-year marriage was dissolved on April 27, 2007, at which time the court, Dolan, J., approved and incorporated by reference into its decree, an agreement executed by both parties dated April 26, 2007. Pursuant to paragraph three of the agreement, the parties incorporated by reference a parenting agreement dated December 21, 2006, which had been approved by the court on February 6, 2007.
The February 6, 2007 parenting agreement represents the current orders regarding the care, custody, control and parenting of the two minor children, issue of the marriage. It provides for joint legal and shared physical custody of the two minor children. Specifically, the shared physical custody schedule provides that "the children shall be with [the father] (i) every other weekend from Friday evening at five o'clock through Sunday evening at four o'clock, as well as (2) every Tuesday and Thursday evenings from five o'clock to 7:45 (as well as Thursday overnight in [the mother's] discretion)." The parenting agreement further provides that "the foregoing parenting plan shall be reviewed on or about Emily's third birthday, with a view toward providing for additional overnight time with [the father] as may be developmentally appropriate."
At the time the parenting agreement was adopted the parties were in transition but planning to remain in their home town of Fairfield, Connecticut. The mother, who was dating her future husband, Joseph Corcelli, had moved from her parents' home in Fairfield to her current home, which she has rented since December 2006, on a cul-de-sac in Fairfield, Connecticut. The father was in the process of transitioning from the marital home to his current residence approximately one mile from the mother's residence.
The father contracted to purchase the home in January 2007 and closed in March 2007. Before the plaintiff bought his existing home he consulted with the defendant concerning its close proximity to her home. She reacted positively and encouraged the purchase.
The mother does not work outside of the home but does receive an income from her family's company, R.D. Scinto, Inc., as well as gifts from her parents resulting in a total net weekly income of $1,547 per week. She receives $276 per week in child support. She became engaged to her husband, Joseph Corcelli, on December 24, 2007. They were married on December 31, 2008. Mr. Corcelli is an attorney at Mintz Levin, a national firm, in their Boston, Massachusetts office. Since 2005 he has been employed as an associate within a practice group that focuses on intellectual property, patent and trademark law in the federal courts. Mr. Corcelli has lived in Boston, Massachusetts since 2002 but has no other family in the area. The defendant's parents and her three siblings all live in the Fairfield area where the defendant and her siblings went to elementary school. While the Scinto family has also lived in other communities in Fairfield County, the parents returned to Fairfield, Connecticut five years ago.
This represents a court authorized deviation, based on shared physical custody, from the presumptive support of $321 per week.
The plaintiff father, his wife, Melanie, and their infant son, Maxwell, as noted above, live in Fairfield, Connecticut, in close proximity to the defendant. The plaintiff's family comes from Ohio. He has two sisters with children who live in Arlington, Massachusetts. The plaintiff has been employed as a real estate attorney since 2005 at Murtha Cullina, LLP in Stamford, Connecticut. He has a net weekly income of $1,812. To their credit, and notwithstanding a relationship that has become more acrimonious as this litigation progressed, the parties are raising two beautiful little girls who are thriving. Both father and mother are profoundly committed to their children. The children share a strong, loving bond with both of their parents. The children are happy, well adjusted and progressing normally.
Notably, the defendant and the plaintiff initially had a long-distance relationship. The plaintiff lived in Ohio when they met. They married when the defendant was only twenty-six years old and the relationship was tumultuous from the start. Six months into her relationship with the plaintiff, the defendant rekindled a prior friendship with Joe Corcelli. This relationship developed into a romance in 2002.
Mr. Corcelli did not learn that the defendant had two children with the plaintiff until the summer of 2006.
It is not surprising that the separation of the parties was difficult. At the time, Mallory and Emily were very young, 2 years old and 1 year old respectively. Raising their toddlers as a separated couple required a great deal of flexibility. Within the marriage, the parties had a relatively traditional family structure: the plaintiff provided the majority of the financial support, and the defendant focused on the home and the children. After the dissolution, the plaintiff developed parenting skills, established a routine with his daughters, and became fully involved as a father. He learned to travel alone with his daughters and all of their accessories. He is now fully involved in his children's extracurricular and school activities.
The plaintiff/father's assumption of greater parental responsibilities after the marriage did not relieve the defendant/mother of her traditional supporting role. Because the children were so young, and the plaintiff was employed on a full-time basis, the defendant found herself routinely altering her schedule to accommodate his. When overnights commenced after the parenting plan was adopted in December of 2006, it was not unusual for the defendant to pick up the children from the plaintiff's home the following morning only to return to her own home, less than a mile away, and prepare the girls with baths, breakfast and clothes for their day before transporting them to preschool. When the girls are with their mother the plaintiff will often call four or five times over the weekend and is regularly texting the defendant. By August of 2007, with Mr. Corcelli's assistance, the defendant came to resent the plaintiff's reliance on her accommodating nature, flexibility and willingness to prioritize his schedule. She felt taken advantage of and threatened to terminate the overnight visits unless the plaintiff assumed the responsibility of Friday mornings following his "Thursday evenings." The plaintiff initially made an unacceptable arrangement to drop the girls off at school early, but eventually adjusted his schedule to deliver the girls off personally to preschool. Without question, the children benefitted from their mother's willingness to accommodate their father's schedule, (they spend significantly more time with him than court orders provide) even if over time, their mother has come to believe that the plaintiff stands in the way of her personal growth. Regrettably, while the relationship between the father and mother was remarkable for the absence of formal conflict from April 2007 until May 2008, the pending litigation has left the parties frustrated and has had a negative impact on their co-parenting.
The additional overnight contemplated by the parenting agreement after Emily's third birthday has been a casualty of this litigation.
The mother is clear that she will not move to the Boston area unless she receives permission from the court to relocate with her children. Indeed, even if she is allowed to relocate she would like to return to the Fairfield County area in "a few years" where her family currently resides. Initially she and Joseph Corcelli looked in earnest for homes in Fairfield County. When her search expanded to the Shelton area the plaintiff resisted, noting the 30-minute commute round-trip and the "significant impact" on the quantity and the quality of his time with his daughters. Within a month the defendant's motion to relocate to Boston was filed. While it is undoubtedly true that the defendant's motion was precipitated in part by the plaintiff's inflexibility, she also came to appreciate, during the same time period, that her new husband was on a very successful career path at Mintz Levin in Boston, and had more limited employment opportunities in Connecticut.
The statutory criteria for a parent wishing to relocate children's residence are found in Connecticut General Statutes § 46b-56d.
General Statutes § 46b-56d provides: "(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of that purpose, and (3) the relocation is in the best interests of the child.
"(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (i) Each party's reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the nonrelocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements."
Furthermore, General Statutes § 46b-56 addresses the modification of custody orders, and provides that in "any controversy before the Superior Court . . . the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children . . ." § 46b-56(a). Section 46b-56 also provides that in "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 parents commensurate with their abilities and interests . . ." § 46b-56(b).
"[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court's finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child." (Internal quotation marks omitted.) Kelly v. Kelly, 54 Conn.App. 50, 55, 732 A.2d 808 (1999), quoting Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996). "Before a trial 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." Brubeck v. Burns-Brubeck, 42 Conn.App. 583, 585, 680 A.2d 327 (1996), quoting Stewart v. Stewart, 177 Conn. 401, 407-08, 418 A.2d 62 (1979).
"It is well settled in this state that, in deciding custody or visitation issues, a court must always be guided by what is in the best interests of the child. See Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997); Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993); Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981) . . . Moreover, `[the Supreme Court] has consistently held in matters involving child custody, and, by implication, visitation rights, 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 . . .' Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980); see also Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981) (in matters regarding visitation orders, `the court considers the rights and wishes of the parents . . . but . . . must ultimately be controlled by the welfare of the particular child)." Ireland v. Ireland, 246 Conn. 413, 419-20, 717 A.2d 676 (1998).
"We recognize the difficult issues that relocation cases present. The interests of the custodial parent who wishes to begin a new life in a new location are in conflict with those of the non-custodial parent who may have a strong desire to maintain regular contact with the child. At the heart of the dispute is the child, whose best interests must always be the court's paramount concern. Those interests do not necessarily coincide, however, with those of one or both parents." Ireland v. Ireland, supra, 246 Conn. 421.
"Our society is an increasingly mobile one. Largely `[b]ecause of the instability and unpredictability of the employment market . . . the high incidence of remarriage, and the high incidence of second divorces, repeated, separate moves by each parent are coming to represent the norm.' J. Wallerstein T. Tanke [`To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce,' 30 Fam. L.Q. 305, 310 (1996)]. Our family law should recognize that reality. Therefore, to serve the best interests of a child in a single-parent family unit, the custodial parent should be permitted to pursue, within reasonable limits, opportunities that could lead to a better life for the parent as well as the child. Id. at 426-27." Forstman v. Forstman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. FA02-0189659 (December 17, 2007, Munro, J.); see Borrero v. Buddhu, Superior Court, judicial district of Hartford, Docket No. FA99-0722706 (December 21, 2007, Simon, J.).
Where as here, the parties have shared physical custody; whatever weight that would favor the custodial parent is absent and relocation would undermine the very core of the parenting agreement which was adopted when all the players, including Joseph Corcelli, were present.
Relocation for a Legitimate Purpose
The defendant desires to relocate to the Boston area in order to have the opportunity to live with her new husband and start her new family. She is anxious to end their long-distance relationship, live with him on a daily basis, and see him on more than just weekends. She hopes to enjoy the regular emotional support of her husband and looks forward to being a happier, emotionally satisfied person if she is able to move forward with her life. She seeks to enjoy the economic benefit of combining her two households, one with her husband in Boston and one with her children in Fairfield Connecticut. She seeks to distance herself from the plaintiff father whom she finds controlling and demanding. While not embracing all of the reasons the defendant proffered for her desire to relocate, the court finds, in balance, that the defendant's desire to relocate the children with her is for a legitimate purpose.
A Reasonable Proposed Location
The defendant's husband is gainfully employed as an attorney in Boston, Massachusetts. Considering the economy, the dues he has paid to earn a position in his working group, his relative lack of seniority, and his considerable success it is entirely reasonable for Joseph Corcelli to seek to continue his employment at Mintz Levin and remain in the Boston area. It is reasonable for the defendant to seek an opportunity to start a new life with her husband in the greater Boston area where he is gainfully employed.
With the exception of identifying the Boston area or in the alternative Northern Connecticut as a relocation area, the defendant has not identified specific towns, schools systems or otherwise provided specific geographical locations.
The Best Interests of the Children
The court having found that the defendant has satisfied her burden of proof as to the first two factors in the relocation statue must consider whether the defendant has proven that the move is in the best interests of the two children. The court is mindful of the "best interests" factors set forth in subsection (c) to General Statutes § 46b-56, and will consider them as it considers the statutorily mandated factors of General Statutes § 46b-56d(b).
Each Parent's Reason for Seeking or Opposing the Relocation
The court finds that the defendant's reasons for seeking the relocation are as stated above. The plaintiff father's reasons for opposing the relocation are multiple: he is concerned that relocation will adversely affect his relationship with the children, as well as the children's relationship with their new brother, Maxwell, and specifically that he will not be involved with his children on a regular ongoing and consistent basis. The father rejects the idea that the quality time with his daughters can be duplicated through additional visitation, extended weekends and additional vacation.
The court finds that the plaintiff father has legitimate reasons opposing relocation. Since the separation with the defendant he has enjoyed regular and consistent mid-week contact with his children, every Tuesday evening for dinner and every Thursday overnight. He is actively involved in his daughters' extracurricular activities. Immediately after his youngest daughter turned three years old, he sought, in accordance with the parenting plan, additional overnight opportunities. In part, because of the defendant's support and flexibility, the plaintiff has enjoyed substantially greater parenting time, during the week and on weekends, than the court orders provide. If the children are relocated, his mid-week physical contact with the children will effectively cease during the school year. It is unrealistic to expect him to travel on a mid-week basis to Boston except on rare occasion. The relationship the girls have with their brother, Maxwell, will be affected in the same manner. While they would no doubt continue to enjoy a loving and meaningful relationship with their father and younger brother, the bonds will be impacted by the lack of frequent, consistent and daily contacts.
The Quality of the Relationships Between the Children and Each Parent
The children's relationships with their parents are strong, meaningful and essential for their continued healthy development. Both parents are actively and fully involved in their lives. The defendant mother is a stable and nurturing presence in her daughters' lives. The children are secure in their parents' homes. While the parties may have initially had a very traditional relationship, the plaintiff is committed to his daughters who share a strong loving bond with him. The plaintiff has successfully participated in his children's extracurricular and school activities and has been fully involved in their lives. They have been fully incorporated into the home he shares with his new wife and son where they enjoy their own room, toys and function comfortably. To their credit the parents have raised children who have a healthy relationship with each of them.
The Impact of the Relocation on the Quantity and Quality of the Children's Future Contact with the Non-Relocating Parent
There is no effective way to commute between greater Fairfield Connecticut and greater Boston, Massachusetts. It is a three-hour drive on a good day. The relocation of the girls to the Boston area will not allow the children to have mid-week physical contact with their father or brother when school is in session. Notwithstanding the defendant's suggestion that she will do whatever she can to preserve the plaintiff's relationship with his children there is little she can do to ensure that mid-week contact and participation in extracurricular and school activities will continue on a regular and consistent basis. The defendant has shown little insight on how relocation would impact the relationship between her daughters and their father. While she has expressed genuine willingness to do whatever driving is necessary to make up the plaintiff's loss of contact with his daughters and while the court could develop orders which would ensure that the quantity of contact would be substantially similar, the quality of contact between the father and his daughters as a result of the loss of hundreds of dinners, overnights and a full and active participation in school and other extracurricular activities cannot be replaced. The children now have a home with both parents. After relocation they would have a home with their mother, who would become the primary custodial parent, and have occasion to visit their father at his home. The children would lose meaningful and extensive parenting involvement with their father.
The guardian ad litem and the family relations counselor both recommended that the mother's request to relocate the Boston, Massachusetts be denied because the mid-week parenting by the father would all but vanish and there is no way to effectively compensate for the time lost.
The Degree to which the Relocating Parents and the Children's Lives may be Enhanced Economically, Emotionally and Educationally by the Relocation
The court finds that the defendant's life will be emotionally enhanced by a move to the Boston area. The economic enhancement to her life in Boston is largely the result of not having to maintain two homes, one with her husband and one with her children in Fairfield. No evidence was introduced that the defendant intended to seek educational opportunities in either location. The children are both happy with their life in Fairfield. They function completely and easily in both of their parent's homes. The defendant asserts that she will be happier in Boston and, as their primary care giver, her happiness will only benefit the children. The children are young flexible and well-adjusted. While they would no doubt successfully survive a move to Boston their emotional bond with their father will suffer.
The Feasibility of Preserving the Relationship between the Non-Relocating Parent and the Children through Suitable Visitation Arrangements
As discussed above, relocation to the Boston area will permanently harm the parenting relationship between the father and his daughters. There is no visitation arrangement that can do more than substitute an equal quantity of time at the expense of a loss of quality time.
Conclusion
The question of whether to permit a parent to relocate their children has no easy answers especially for the children. Brennan v. Brennan, 85 Conn.App. 172, 179-80, 857 A.2d 927, cert. denied, 271 Conn. 944, 861 A.2d 1177 (2004). The Court finds that it is not in the best interests of the children to modify the parenting schedule of the parties. The motion to relocate the children to the Boston area, or in the alternative northern Connecticut, is denied.