Joseph M. Spencer v. Denise Spencer (2011)

MEMORANDUM OF DECISION

This matter comes before the court on a postjudgment motion to modify custody brought by the defendant mother on August 30, 2010 (# 283).   The following facts from the court file help to understand the context of this motion.   The plaintiff first filed his complaint seeking dissolution of marriage in 1998, and the present Guardian ad litem (GAL) was first appointed in December 1998.   The case was withdrawn shortly thereafter, and a new complaint was filed in the spring of 1999 with a new docket number.¹  It was a difficult matter from the start, involving motions seeking psychological examinations and increasingly detailed orders from the court regarding how the child was to be exchanged, who could do it and all the other indicia of seriously impaired parenting.   The parties have one child, Evan (DOB 2/10/98).   They had a shared parenting arrangement for several years until the defendant remarried and moved to Clinton, thereby creating scheduling difficulties since the plaintiff resided in Columbia.   The court (Caruso, JTR) held a lengthy hearing in the summer of 2008 and Evan has presided primarily with his father, stepmother and new siblings as a result of that hearing.

The defendant claims that her son has consistently expressed the desire to live with her and go to school in Clinton.   She has also consistently claimed that Evan was afraid of his stepmother, that he might suffer from some form of an attention deficit disorder and that his GAL does not like her.   The defendant testified that she believes the GAL consistently recommends joint custody, knowing it will cause conflict and thereby justify higher legal fees.

The Guardian ad litem testified at some length at the one-day hearing on this motion.   As indicated above, she has been involved with this family since Evan was ten months old.   She confirmed that there have been some incidents in which the stepmother and the child have both behaved badly;  episodes of explosive behavior and thoughtless comments which, according the GAL and the plaintiff, resolve with apologies within a short period of time.   The defendant has reported the plaintiff and his new wife to the Department of Children and Families (DCF) on numerous occasions.   She has also filed complaints with local police regarding mistreatment of Evan. None of the complaints have been substantiated.   The GAL also reports that Evan is a most delightful fellow who is well liked by his siblings and teachers.   She acknowledges that he is almost thirteen years old and can be a mouthy adolescent at times.   Until recently, the father's family had been living in very tight temporary quarters while their new house was being built, and his wife just gave birth to a new baby within the last few weeks.   These circumstances have clearly caused additional tensions within the household.

As part of her work, the GAL met with the defendant and Evan and then with the plaintiff and Evan. She proposed to all, given Evan's age, that he be allowed to try living with his mother and attend the Clinton schools for 8th grade.   In her proposal, this change would be contingent on Evan improving his increasingly poor performance in 7th grade as evidence of his maturity and commitment to the change.   Evan agreed, and with some hesitancy the plaintiff agreed as well.   The defendant is seeking sole custody and Evan's immediate transfer to her and the Clinton school system.   It is her position that because her son suffers from some form of attention deficit problem, he will not be able to improve his grades.   It would appear to the court that she believes the GAL's plan is a sham designed to make everyone feel better but not make any significant changes.

While the defendant mother has some legitimate complaints about the plaintiff father's behavior, her attack on the integrity of the GAL is completely misplaced.   The court is familiar with the GAL, her reputation and the caliber of her work.   While it is not surprising that a parent with whom the GAL does not agree would be unhappy with that position, it does not justify an attack on the integrity and reputation of a talented and well respected member of the Hartford bar.

Having heard the testimony of the parties and the GAL, and having reviewed the evidence presented as well as reviewing the three-volume court file, the court makes the following findings:

1. The work of the Guardian ad litem, Attorney Emily J. Moskowitz has been done in a professional and competent manner;

2. The ability of the parents to effectively co-parent, despite the passage of many years since the dissolution of their marriage and the development of new families, is extremely impaired.   Past efforts at co-parenting counseling have apparently not been successful;

3. The defendant mother has abused the non-Judicial Branch resources in the past, including her repeated referrals to DCF and that has not been in her son's best interests;

4. The plaintiff father has not complied with his obligations to inform the defendant mother of medical providers for their son or medical treatment rendered to him;  and

5. The minor child has demonstrated, based on the testimony of the GAL, that he is of sufficient maturity for the court to give careful consideration to his wishes regarding his residence and schooling.

Accordingly, after reviewing the statutory criteria as set forth in Connecticut General Statutes § 46b-56(c), the court hereby ORDERS:

1.  The plaintiff shall have sole legal custody of the minor child, Evan Spencer, born February 10, 1998;

2.  Said child's primary residence shall be with the plaintiff and the access schedule currently in place shall remain the operative schedule;

3.  The child's primary residence may change to be with the defendant effective August 1, 2011, providing Evan completes 7th grade with a minimum of a “C” average and does not fail any major subjects.   Motions to modify this order based on changed circumstances should be filed with the court no later than July 15, 2011;

4.  If the child does change primary residence to Clinton, the parties are directed to work with the GAL to develop an appropriate parental access plan.   In the event that no plan is agreed-upon, the current schedule will be maintained with the plaintiff replacing the defendant so that on a three-week rotation, the plaintiff will have Evan on weeks one and two and the defendant will have week three.

5. The plaintiff is ordered to engage in reasonable and appropriate discussions with the defendant prior to making any significant decisions for the minor child's education, religious up-bringing and general welfare;

6.  The defendant, despite the plaintiff's sole legal custody, shall have final decision-making authority for all non-emergency medical decisions for Evan. She is ordered to engage in reasonable and appropriate discussions with the plaintiff prior to making any significant decisions in this area;

7.  The GAL shall select an appropriate therapist for the minor child and the parents shall cooperate with said therapist.   Such cooperation shall include, but not be limited to, any recommendation that Evan should be evaluated for any type of learning disability.   Counseling shall start as soon as possible;

8.  The minor child's pediatrician shall be Dr. Rosemary Maduka.   The defendant may establish a pediatrician for the child in her area for emergency purposes only.   This order may be altered if the child's primary residence should change;

9.  All prior court orders restricting the involvement of Evan's stepparents are hereby vacated.   Evan shall be free to develop and enjoy relationships with both of his stepparents and his new siblings.   While the stepparents are to behave appropriately toward Evan, they should not be restricted in their interactions with him in any way, including, but not limited to, transporting him to activities, medical appointments and the like;

10.  The GAL shall submit to the court her bill for services to date, with copies to the parties on or before February 14, 2011.   The parties shall submit current financial affidavits to the court with copies to each other by the same date.   Any objections to the GAL's bill must be submitted to the court no later than February 21, 2011.   The court will take the issue of the GAL's bill and the allocation of payment by the parties on the papers;

11.  Neither party is to file complaints with any agency regarding the minor child without first consulting with the GAL. Serious and true emergency circumstances shall be exempt from this order, but the GAL must be informed of any such emergency complaint within twelve business hours of the complaint being filed.   Violation of any aspect of this order by either party shall be considered ample grounds for an emergency hearing on the appropriateness of the current custody orders;

12.  The Honorable Gerard I. Adelman shall retain jurisdiction of this matter and any future motions until February 10, 2016.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The original case docket number was FA98-0719771..  FN1. The original case docket number was FA98-0719771.

Adelman, Gerard I., J.