Heidi Bruscato v. Timothy Johnson (2010)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION TO MODIFY AND FOR CONTEMPT AND THE DEFENDANT'S MOTION FOR COUNSEL FEES

PROCEDURAL BACKGROUND

A review of the record reveals that the parties, never married, are the parents of one minor child, Tre' Johnson born July 27, 2002.   For the first year of the child's life, the parents lived together but separated thereafter and have lived separate for the past seven years.   The plaintiff mother instituted an action for care, custody and access of the child in November 2002.   Judgment entered on March 8, 2005.   In the ensuing years, the parties essentially had a shared parenting arrangement with neither parent having primary access and neither parent paying child support.   They lived in close proximity to one another and the child seemed to move easily between their houses while attending the Griswold school system and participating in extracurricular activities in that area.

Things came to an abrupt change when the mother moved to Clinton, Connecticut, approximately an hour and 20 minute drive from the father's residence.   A Guardian ad litem was appointed and the matter was specially assigned for a hearing on September 10, 2010.   The Guardian ad litem opined that the shared parenting arrangement would no longer be practical due to the long distance between the homes and recommended that if the mother remained in Clinton that the father should have primary physical residence but if the mother relocates close to the father, the shared custody plan could continue.   The mother testified that it would be extremely difficult to relocate to eastern Connecticut at that time since she and her fiancé, together with her 16-year-old son and 16-year-old nephew/foster child had moved to Clinton and the children were enrolled in school in that area.   Due to the exigent need for the child to be placed in a school district for the start of the new school year, the court ruled from the bench that the child reside primarily with the father in Putnam and visit with the mother on most weekends from Friday after school until Monday morning at school.   The court found that due to the long distance between the two homes, a shared parenting arrangement would no longer be practical.   The child was immediately enrolled in the Putnam school district.

On September 23, 2010, the plaintiff mother filed a motion to modify (179) asking that the previous custody order be reinstated as she was relocating to Plainfield, Connecticut, a short distance from the father.   She also filed a motion for contempt (180) asking that the order instituting video chatting be rescinded.   The defendant filed a motion for counsel fees (181) for the defense of these motions.

The parties returned to court on November 5, 2010.   The father was represented by counsel and the mother was self-represented.   The court heard testimony from both parties and from the Guardian ad litem.

LEGAL DISCUSSION

In any custody order, the court is bound by what is in the best interests of the child.  Simons v. Simons, 172 Conn. 341 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260 (1953), Connecticut General Statutes § 46b-56.   The rights, wishes and desires of the parents are also a factor to be taken into account.   Such considerations, however, must be subordinated to the best interest of the child.  Ridgeway v. Ridgeway, 180 Conn. 533, 541 (1980).

“The authority to render orders of custody and visitation is found in general statutes section 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 ․”

“A party's prior conduct ․ may have a direct bearing on his or her present fitness to be a custodial parent.   In the exercise of its awesome responsibility to find the most salutary custodial arrangement for the children of divorce, the court must ․ take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children's growth, development and well-being ․ At the same time, however, the focus of the court's inquiry must be designed to meet the primary objective which is to determine the present parenting ability of the parties.”  Feinberg v. Feinberg, 114 Conn.App. 589, 596 (2009).

FINDINGS OF FACT

1. The parties, never married, are the parents of one minor child, Tre' Johnson born July 27, 2002.

2. Judgment entered on March 8, 2005.   In the ensuing years, the parties essentially enjoyed a shared parenting arrangement with neither parent having primary access and neither parent paying child support.   They lived in close proximity to one another and the child seemed to move easily between their houses while attending the Griswold school system and participating in extracurricular activities in that area.

3. In the summer of 2010, the mother moved to Clinton, Connecticut, approximately a one hour and 20 minute drive from the father's residence.   The father filed a motion to modify access due to the distance caused by the mother's recent move.

4. After a hearing on September 10, 2010, and due to the exigent need for the child to be placed in a school district for the start of the new school year, the court ruled from the bench that the child reside primarily with the father in Putnam and visit with the mother on three out of four weekends from Friday after school until Monday at school.   The court found that due to the long distance between the two homes, a shared parenting arrangement would no longer be practical.   The child was enrolled in the Putnam school district and has begun counseling in that area.

5. Both parents are extremely loving, committed and successful in their parenting of this wonderful eight-year-old child.   What makes this matter particularly challenging is that both parents are fit and appropriate.

6. The father, a dealer at a local casino, lives with his parents in a single-family residence in Putnam.   He has always been active in his son's sports, Cub Scouts and school work.   His parents serve as a support system for his parenting and assist him financially.

7. The mother, a dealer at a local casino, lives with her fiancé, her 16-year-old son and her 16-year-old nephew who is a DCF-placed foster child with special needs.   She works from 9 p.m. until 5 a.m., and is able to get her son ready for bed before going to work and returns home in time to get the family ready for breakfast and school.   She sleeps during the day when the children are at school.

8. For the past seven years, the parents have enjoyed a shared parenting arrangement wherein both offer the child the benefits of their different parenting styles.   Although they did not, and do not, get along well, they have been able to successfully co-parent this child.

9. Upon receiving the September 10, 2010 orders placing primary residence in the father, the mother relocated her family and home to eastern Connecticut to be reunified with her son.   She had to change schools for her older son and nephew, break her lease and relocate her family.

10. The child has experienced the new orders of primary custody in the father and expanded weekend and visitation with the mother from September 10 until November 6, approximately seven weeks.

11. The present plan gives the father approximately 19 nights per month and gives the mother 9 nights per month.   The mother's proposed plan of returning to the pre-September 10, 2010 arrangement would essentially give her five more nights per month.

12. Since September 10, the balance of power between the parents has begun to tip in favor of the father.   The father appears to be in more control of the child's extracurricular activities and the information that comes to and from the school.   The mother believes that she is becoming a “visiting parent” rather than an equal partner in a co-parenting relationship.

13. The child was clear in his desire, as related by the Guardian ad litem, to spend more time with his mother.   The shared parenting arrangement is all that he has ever known.   He is comfortable with his half-brother and nephew and with his mother's fiancé.   The Guardian ad litem testified that he is hesitant to recommend changes in the present schedule but recognizing the child's desire to spend more time with the mother, suggested that the mother have an additional three overnights per month by expanding the weekends to four days instead of three days.

14. At the previous hearing, when the Guardian ad litem opined and the court ruled that the shared parenting arrangement was no longer viable unless the mother lived in close proximity to the father, the mother moved heaven and earth to rearrange her life to comply.

15. The father's parenting plan is more stable than the mother's parenting plan.   The father has an extended family as a support system for both financial and parenting needs.   He has no other children making demands on his time, energy and focus.   On the other hand, the mother has a foster child, a second child and a fiance who all require her time, energy and attention.   If this were the only factor to consider, the court would leave the parties where they remain.

16. When the court considers the overall best interests of the child, the court is convinced that the pre-September 10, 2010 plan was working well.   The court is cognizant of the fact that in creating an access plan where the father is the primary custodial parent and the mother is the visiting parent, the opportunity for parental estrangement, and alienation is strong.

17. While it is true that consistency in the child's life is important, the court does not believe that a return to the pre-September 10, 2010 access plan constitutes an abrupt change in his routine.   Rather, the court finds that it is simply a return to what he has always known.

ORDERS:

1. The orders of September 10, 2010 are vacated.

2. The parents shall enjoy joint legal and physical custody of the minor child with neither parent being recognized as the primary custodial parent.

3. For educational purposes only, the father's residence shall be deemed the primary residence of the child.

4. The child shall continue in therapy until discharged by the therapist or until both parents agree that this is no longer necessary.

5. The child may participate in Cub Scouts in Putnam.

6. Each parent shall ensure that the child attend church, CCD and his regularly scheduled extracurricular activities when the child is with that parent and shall be responsible for transportation to curricular and extra-curricular activities.

7. The parties shall have reasonable telephone and Internet contact with the child on the days that the child does not sleep at their home.   The telephone call should occur on or about 6 p.m., or other mutually agreeable times.   This parent-child contact shall not be used for the parties to communicate or discuss their own issues;  it is parent-child time only.

8. Neither parent will utilize the child as a conduit of information, disparage the other parent or significant other of the other parent or discuss adult or court issues with the child.

9. Both parents are allowed to participate in school activities and extracurricular activities.   Each parent will insure that the child's homework is completed when the child is in their care.

10. The previously ordered holiday and vacation schedule (Exhibit 3-attached) shall apply.

11. The plaintiff's motion for contempt regarding video chatting is denied.   The use of video chatting shall be reinstated if and when both parties are in agreement that it is appropriate.

12. In view of the shared parenting arrangements and the court's finding that each parent has an equal earning capacity, no child support shall be paid.

13. The Guardian ad litem shall submit his bill for services rendered and the mother shall be 100% responsible for said bill as it was her move which created this litigation.

14. The father shall be responsible for his own legal fees, the court finding that while the need for this litigation was brought on by the mother's move, it was not out of vindictiveness or ill will;  it was actually motivated by a desire to give her children a better life.

15. In the event either party seeks to file a future motion to modify any aspect of the parenting plan, they shall be required to file a Request for Leave to Modify as provided for in Practice Book Section 25-26, as amended.

Shluger, J.

HOLIDAY ACCESS

New Year's Eve 11 a.m. - 11 a.m. the following day/Dad has even years.

New Year's Day 11 a.m. - 11 a.m. the following day/Dad has odd years.

Easter Eve 5 p.m. - 10 a.m. the following day to always be with Mom.

Easter 10 a.m. to following day with Dad to school.

Mother's Day 11 a.m. to school Mon. with Mom.

Father's Day 11 a.m. Dad Keeps until next morning at school or 11 a.m.

4th of July 11 a.m. - 11 a.m. the following day/Dad to have odd years

Tre's Birthday 2 hours for the parent that doesn't have him that day.

Halloween 5 p.m. - 11 a.m. the following day/Dad has even years or delivery to school if school night.   Even years Mom has previous Saturday 11 a.m. until the following day.

Thanksgiving Eve 11 a.m. - 11 a.m. the following day/Dad has odd years.

Thanksgiving Day 11 a.m. - 11 a.m. the following day/Dad has even years.

Christmas Eve 11 a.m. - 11 a.m. the following day/Dad has odd years.

Christmas Day 11 a.m. - 11 a.m. the following day/Dad has even years.

Shluger, Kenneth L., J.