Maureen Kahn v. Jonathan Hillyer (2010)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION FOR MODIFICATION (219)

The parties, never married, are the parents of one minor child, Nathaniel Hillyer born March 10, 1999.   The plaintiff filed a motion to modify access, child support and visitation on November 9, 2010.   The parties appeared together with counsel for the defendant, the Guardian ad litem and counsel for the Guardian ad litem.   The plaintiff was self represented.

As a preliminary matter, the plaintiff made an oral motion for a change of venue to the Regional Trial Family Docket.   The court denied that motion finding that this case was not in the proper readiness for acceptance by that court, that this oral motion was neither docketed for that day nor presented to the opposing party in a timely manner, that all parties and counsel were present as scheduled and that this court was ready and able to hear the matter at that time.

The plaintiff was asking that the previous order, terminating her contact with the child issued on July 15, 2010 (Boland, J.) be modified so as to provide access between her and the child.

The court heard testimony from the plaintiff, the plaintiff's sister (Ms. Diba Khan-Bureau), the plaintiff's friend (Charmaine Czamecki) and the Guardian ad litem (Attorney Fred Gilman).

The court finds the following facts as proven by a fair preponderance of the evidence.

1. The parties, never married, are the parents of one minor child, Nathaniel Hillyer born March 10, 1999.

2. The existing custody and access order permits the mother to have no contact with the child whatsoever.

3. The plaintiff presently lives with her sister, an accomplished college professor who owns her own spacious home in Salem, Connecticut together with a nine-year-old daughter and a five-year-old son.

4. The child has been the subject of DCF investigations and psychiatric and psychological counseling.

5. The mother presently has charges pending against her for custodial interference arising out of an arrest on or about August 10, 2010.

6. The child is presently in therapy with Dr. Renee Rhodes.

7. The Guardian ad litem had spoken with Dr. Rhodes as recently as December 20 and Dr. Rhodes was adamant that at this time, there should be no contact whatsoever between the mother and child.   The Guardian reported that Dr. Rhodes made that recommendation because any contact with the mother would be “disruptive” and “incredibly destructive” to the child's therapy which was at a critical juncture.   The Guardian further testified that the child was happy and well-adjusted with his father.   Finally, the Guardian reported that Dr. Rhodes recommended that no contact between mother and child should begin until the mother was in therapy with a Ph.D. level therapist, that Dr. Rhodes had access to that therapist, that the therapists be allowed to discuss their patients amongst themselves and that any contact would be initiated in a therapeutic setting and progress at the therapist's pace.

8. The Guardian further testified that he agreed with the recommendation of Dr. Rhodes and concluded that the child was not ready for contact with the mother of any kind.

9. The plaintiff presented no evidence whatsoever that there have been any changes in circumstances since the last court order.

10. The plaintiff presented no evidence whatsoever that commencing visitation would be in the child's best interest.

LEGAL DISCUSSION

CGS sec 46b-56(c) states:

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.

Under Connecticut law, the trial court's discretion as to custody and visitation is not limited to [adopting the specific custodial arrangement sought by one of the parties].   It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement ․ Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child.  (Citations omitted).  Feldman v. Feldman, 37 Conn.App. 397, 403-04 (1995).

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).

Before the 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 interest of the child.   The best interest of the child includes the child's interest in sustained growth, development, well-being, and continuity and stability of the child's environment.  Feinberg v. Feinberg, 114 Conn.App. 589, 593-94 (2009).

“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).

“Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order.   In making such an inquiry, the trial court's discretion is essential.   The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ․ or to allow the parties to use a motion to modify as an appeal ․ Rather, the trial court's discretion includes only the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.”  (Citations omitted.)   Borkowski v. Borkowski, 228 Conn. 729, 738, 638 A.2d 1060 (1994).  “[I]ts inquiry is necessarily confined to a comparison between the current conditions and the last court order.”  Id. “The court must first consider what circumstances have changed warranting a custody change and then make a custody determination on the basis of the best interest of the child.”  Payton v. Payton, 103 Conn.App. 825, 839, 930 A.2d 802 (Schaller, J., concurring), cert. denied, 284 Conn. 934, 935 A.2d 151 (2007).

ORDERS

1.  The motion to modify is denied.

2. The mother is ordered to participate in therapy with a Ph.D. level therapist.

3. The mother shall execute a release in favor of the child's therapist so that the child's therapist and the mother's therapist may communicate freely.

4. Any contact between mother and child shall be initiated with, and by, the child's therapist and progress at the therapist's pace.

5. 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.

Shluger, Kenneth L., J.