Richard Vichas v. Pamela Vichas (2010)

MEMORANDUM OF DECISION

Before the court at this time are cross motions to open and modify an August 4, 2009 order of the court (Shluger, J.) awarding them joint custody of their daughter, born October 25, 2006.   Plaintiff's motion, filed February 10, 2010, sought ex parte, emergency relief no ex parte relief was granted, and following a hearing on March 1 no emergency relief was afforded him.   Defendant's motion was filed February 27, 2010.   As to both motions, a guardian ad litem was re-appointed, and a psychological evaluation of both parties and the child was ordered.   On December 21 and 22, this court afforded each of them a full hearing on their motions.

By a clear preponderance of the evidence, this court finds that circumstances have changed since August 4, 2009, such that joint custody is no longer in the child's best interests.   This action commenced when the child was only three months old.   Throughout her first year of life, the matter was contested with allegations of substance abuse and threatening in the record.   After the judgment of dissolution entered on October 22, 2007, only months passed before the first round of modification hearings began in February of 2008.   Following new allegations of domestic violence, a full evaluation by the Family Relations Office, and a comprehensive psychological examination of the parties, this round ended with a joint custody agreement on August 4, 2009.

Just five months later, both parties filed the instant motions;  plaintiff alleged that his daughter is “․ in iminent (sic) danger of both physical and mental abuse ․” (which connotes an inability on defendant's part to serve as the child's joint custodian), while defendant expressly demands sole custody in her favor.  General Statutes § 46b-56a(a) provides:  “For the purposes of this section, joint custody means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.”   While joint custody is to be presumably in that child's best interests when both parties demand it;  General Statutes § 46b-56a(b);  the absence of such a stipulation by the parents puts the court on notice that joint custody may be inappropriate.  Tabackman v. Tabackman, 25 Conn.App. 366 (1991).   On this modification occasion, the palpable acrimony which this court witnessed in these proceedings makes it clear that all trust and communication between these parties has evaporated and that joint custody is no longer a feasible option.

The psychological evaluations of both 2009 and 2010 were conducted by Dr. Stephen Humphrey, Ph. D., who testified at length and whose written report was made an exhibit by plaintiff.   This witness conducted lengthy interviews with both parents, reviewed collateral source material they supplied, and observed each with their daughter on at least one occasion.   The other principal witnesses at this hearing were the guardian ad litem and Mr. Vichas.   Although he had sought and been granted permission to subpoena many additional witnesses (who reported to court and were available to testify), he asked at the end of Dr. Humphrey's testimony to allow those attending pursuant to those subpoenas to be excused, and they were.

The court must first dispose of a suggestion of sexual abuse of the child by the plaintiff generated by some ambiguous remarks made by the child.   At the March 1 hearing, an additional order entered barring visitation between plaintiff and the child until further court order, premised in large part upon an investigation then-pending as to that allegation.   That investigation was being conducted by the Department of Children and Families and police agencies.   Subsequently, DCF determined that the charge was unsubstantiated.   No arrest has been made.   Defendant did not pursue this issue in the present hearing, and the psychologist and guardian ad litem both indicated that their recommendations did not depend upon a finding of such abuse.   Nonetheless, plaintiff invested considerable time in refuting the charge even though it was not made in this court.   The court has no information before it to support a finding that he did abuse his daughter in this manner, and the other findings and orders set forth herein ought not to be interpreted as being founded upon the premise that he is a predator.

The court has weighed the pending custody motions in light of the criteria set forth in General Statutes § 46b-56(c), and finds particularly relevant criteria number (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”);  (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”);  and (12) (“the mental and physical health of all individuals involved ․”).

As background to and partial explanation of the tortured history of the judicial proceedings in this case, which is outlined above, the court notes that the interaction of these parties outside of this forum have been unusually contentious.   At the time of this child's birth, defendant was 35 years old and plaintiff was 42.   Each had prior relationship failures;  each had some history of drug usage and, by his admission, drug dependence by plaintiff;  and each had allegedly gambled and lost substantial sums of money.   They had a whirlwind courtship and married within two months of meeting;  defendant was pregnant two months following the nuptials, separation occurred almost immediately, and the dissolution action was initiated shortly after their first anniversary.   Their relationship since they met has been devoid of tranquility or happiness, and marked by mutual allegations of present tense substance abuse which, unlike that of their earlier lives, which was conceded, is vigorously denied.   Outside of this instant case, the courts have been involved on criminal matters between them and on numerous applications for temporary restraining orders, some of which have been granted.

The pathology which lies behind this dysfunctionality is not fully shared.   Ms. Grey, as the former Ms. Vichas is now known, was present in court for both days of hearing this week but did not testify.   Thus what this court knows of her is largely derived from the reports of the other witnesses.   Dr. Humphrey's extensive interactions with her led him to the conclusion that while there are reasons for concern about her parenting capacity, she is, on balance, “best characterized as warm, friendly, and sympathetic ․ and will readily give others a second chance.”   His observations of her with the child were unremarkable.   The guardian ad litem, also, who has observed mother and child on diverse occasions, recommended that this court find her to be a suitable custodian for the child.

In contrast, Mr. Vichas is a far more complicated individual.   He professes to be an ordained minister and a man of faith, and unlike many litigants appearing before this court espoused awareness of and adherence to ethical norms as guides to his conduct.   He has taken intensive parenting classes, even attending a session offered for the public by Judge Elaine Gordon of the Superior Court in Middletown.   He has sought counseling on his own to deal with relationship issues.   He was careful to appear respectful in addressing adverse witnesses, and the court.

At the same time, he has an extensive history of fractious interaction with others over the entire time relevant to these proceedings.   Dr. Humphrey's summary is a starting point for this observation:  “Mr. Vichas continues to exhibit difficulty with emotional modulation ․ [including] ․ a history of interpersonal conflict ․ rambling, loud, and repetitive verbal productions ․ and difficulty maintaining interpersonal boundaries ․ a history of making suicidal comments ․ excessive controlling and at times aggressive behavior in relationships ․” Buttressing these observations is a cluster of facts drawn from this and other files existing in this district which individually may have an innocent explanation but which collectively leave him as the common denominator of unrelated conflicts, e.g., his having had four separate attorneys in this case, all of whom withdrew their appearances after short terms;  his engagement in protracted restraining order proceedings in this forum involving a woman he met after the dissolution of his marriage (see Docket Numbers KNO FA 09 4110868, “Richard Vichas v. Anita Melhorn,” and KNO FA 094110718, “Anita Melhorn v. Richard Vichas; ”  in the latter case he also moved to disqualify the judge to whom the cases were assigned for hearing);  his complaint filed with the state Department of Health against his daughter's day care provider;  and his long-term unemployment, to name a few.

After both the evaluator and the guardian testified as to his interpersonal deficits and their impact upon his daughter, plaintiff used his opportunity for cross examination at great length to meticulously scrutinize the process by which they had arrived at their conclusions.   While such an exploration may be useful when it reveals bias or lack of diligence on the part of a witness, here, although veiled in polite formalities, it amounted to an abrasive and verbose attack upon their competence without to any serious degree shedding light upon or undercutting the validity of their insight.   Plaintiff happens to be partially deaf, and although he gave no indication of lack of comprehension of what was transpiring throughout the hearing, that condition may explain an obviously heightened decibel level which he employs continuously.   Figuratively, though, he demonstrated in the presence of this court a profound deafness to what these two neutral observers were saying about him.   That inability to see himself as others do appears pervasive and leads to his being perceived as ubiquitously antagonistic, even though that may not be his intent.

Whether he interacts well with other adults is instructive but not dispositive.   How he interacts with his own child, however, is at the core of this court's concerns.   If there were evidence of a strong bond between them, means could be found of buffering the adult participants in her life from each other so as to permit her to profit from her relationship with each.   Instead, and although plaintiff would strenuously disagree, it is clear that this child is afraid of him and does not desire to be with him.   Both in his 2009 and 2010 observations of their interactional meeting, Dr. Humphrey noted express and implicit indications that she did not want to be with her father.   After she was persuaded to enter into his presence, he further noted a palpable fear on her part.   He described this as a kind of “frozen watchfulness” wherein she would hardly breathe while waiting to discern his next move.   This is listed as a criterion for a diagnosis of Posttraumatic Stress Disorder.  (Dr. Humphrey's description reminded this court of the look on the face of a beast of prey in a nature film who has just realized the presence of a raptor.)   And, outside of the evaluative context also, the parties reported numerous incidents of her acting out at times of transition from one to the other and in public places when both were present.

Thus it is clear the child's primary custodian should be her mother, and that joint custody is not at present a feasible option.   What is less clear is what visitation arrangement is in the child's best interest.   On the one hand, her present level of distress combined with plaintiff's lack of awareness of her needs seems to indicate no resumption of contact.   On the other hand, the present hiatus in their relationship has lasted almost a year;  this court has neither the power nor the desire to terminate his parental rights with this child, and to prolong that hiatus indefinitely could result in a de facto accomplishment of that outcome, even inadvertently.   The orders set forth below, therefore, are designed to re-initiate contact with maximum attention to the child's safety.   The orders are to be deemed final orders on the pending motions.   This family has therapeutic needs (more thoroughly articulated in the Humphrey report), which this court lacks the competence to address and which may be insurmountable.   Both parents must attend to those needs in a clinical setting.   If progress is made and can be measured by an appropriately-qualified expert, a modification of this regime may be warranted.   Until that substantive improvement occurs, however, neither the mere passage of time nor the attendance at any arbitrarily-fixed quantity of counseling sessions will be sufficient to justify such a modification.

Accordingly, and in light of the foregoing, it is hereby

ORDERED:

1) Sole custody of the minor child is awarded to defendant.

2) As a condition of that award, defendant shall continue to avail the child of counseling to address her issues with each parent until, in the opinion of the counselor (or of this court, if defendant should not concur with the counselor), it is determined that such counseling ought to terminate.

3) Plaintiff may visit with the child once every ten days, at a place and time to be agreed upon by the parties, in the company of a professional counselor who shall supervise his interaction with the child and be attentive to the child's needs including, but not limited to, her concerns for her personal safety and independence.   The selection of the counselor shall be made by the parties jointly.   The cost of the counselor's services shall be borne by plaintiff.   This privilege of visitation is personal to plaintiff and he shall not bring other adults to the visitation sessions.   The length of each such visit shall be one hour, unless shortened by the counselor or lengthened by agreement of the parties and the counselor.

4) Plaintiff must enter into individual psychotherapy with either a psychiatrist or person holding a doctorate in psychology, to address the issues raised by the Humphrey evaluation.   A copy of that evaluation shall be made available to such therapist.   Before any motion of plaintiff for modification of visitation is heard, he must provide this court with a certification by that therapist that the concerns raised by that report have been addressed.

5) The guardian ad litem is hereby discharged from further service unless and until she is reappointed, should the need for her services be required in the future.

6) Plaintiff shall pay one-half of the remaining cost of the Humphrey court appearance, $200, in weekly increments of $25 commencing Saturday, January 1, 2011.

7) Both parties are enjoined from engaging in discussions of the merits of this litigation with their daughter or from disparaging the other to her.

Boland, J.

Boland, John D., J.