Matthew Simone v. Amy S. Steele (2011)

RULINGS ON MOTION TO TERMINATE GRANDPARENT ACCESS (# 133);  MOTION FOR CONTEMPT (# 134);  MOTION TO MODIFY PARENTAL ACCESS (# 135)

The parties came before the court on February 3, 2011, for a hearing on three plaintiff's motions.   First, the plaintiff moved to terminate grandparent access (# 133).   The plaintiff argues that continued exposure to the maternal grandmother is detrimental to the minor child and detrimental to the child's best interest.   Second, the plaintiff moved for contempt (# 134) arguing that the defendant wrongfully left the child with the maternal grandmother, overnight, on New Year's Eve, and did so in contravention of a court order.   Third, the plaintiff moved to modify parental access (# 135), arguing that the defendant should not have overnight visitation with the child and that the defendant's parenting time should be interspersed between weekends and weekdays.

On February 3, 2011, and again on February 15, 2011, the court heard testimony and oral argument relative to the three motions.   Those testifying in support of the three motions were the plaintiff, Matthew Simone, his wife, Sara Siciliano, his mother, Lisa Simone, and his father, Frank Simone.   Testifying in opposition to the motions were the defendant, the minor child's maternal grandmother, Susan DeLucia, the defendant's aunt, Cynthia DeLucia, and a family friend of the defendant, Lori Thompson.   The plaintiff called, in rebuttal, Julie Fabro, a Family Relations Counselor.

The current custody and visitation schedule, pursuant to an order entered by the Hon. Elizabeth Gallagher on October 25, 2010, provides, in relevant part, as follows:  “the parties will share joint legal and physical custody of the minor child, Emily Simone, who is five years old at this time.   The child will attend school in the Woodbury School system.   The father has parenting time from 6:00 p.m. on Sunday until Friday at 4:30 p.m.;   the mother has parenting time from Friday at 4:30 p.m. until Sunday at 6:00 p.m. The father will facilitate transportation.   The maternal grandmother will take the minor child to dance class on Monday and Wednesday from 4:00 p.m. until 6:00 p.m.”

It is the latter provision, in particular, that was the focus of much of the proceedings.

DISCUSSION

The issue of visitation is, in the first instance, governed by General Statutes § 46b-59.   Pursuant to that statute, the court may grant visitation to any party if it is in the best interest of the child.   Visitation rights granted at any time may thereafter be reviewed by the court, and the reviewing court has the authority to include, in any decree it might issue, an order terminating such visitation rights.  Id.

Our Supreme Court has imposed jurisdictional requirements to protect “the parent's fundamental right to make decisions regarding unsupervised visitation of his or her child with a nonparent.”  Roth v. Weston, 259 Conn. 202, 233, 789 A.2d 431 (2002).

For a third party to establish standing to seek visitation, that third party must allege and prove, by clear and convincing evidence, that he or she has a relationship with the child that is similar in nature to a parent-child relationship, and that denial of the visitation will cause real and significant harm to the child.  Roth v. Weston, supra, 259 Conn. 232, 234-35.  Roth applies equally to cases, such as this one, in which a visitation order exists and a parent moves to modify it.  Denardo v. Bergamo, 272 Conn. 500, 509, 863 A.2d 686 (2005) (when a fit parent seeks to terminate visitation, it is presumed to be in furtherance of the child's best interest, and the burden shifts to the third party to show that it would be harmful).   Prior visitation by a third party, with or without court orders, is not a controlling consideration.  Crockett v. Pastore, 259 Conn. 240, 789 A.2d 453 (2002) (grandparent, who had been seeing child, alleged only that it was in the child's best interest to continue visitation, not that the child would be harmed by the denial of visitation).   See also Warner v. Bicknell, Appellate Court, AC 31300 (February 15, 2011) (“the plaintiff is not relieved of the requirements of Roth simply because there previously had been an agreement regarding visitation”).

1. Motion to Terminate Maternal Grandparent's Access (# 133)

The court is presented with a motion to terminate grandparent access.   The plaintiff alleges that the maternal grandparent's time with the child substantially interferes with the plaintiff's parenting time;  that the child has exhibited bad behavior on days she is with the maternal grandparent;  that the maternal grandparent sought the intervention of the Woodbury Police Department when the plaintiff did not make the child available for a dance class, and that she did so knowing that the child would be present to observe the police presence.   Finally, the plaintiff alleges that the maternal grandmother interferes with the plaintiff's parenting decisions.

Our Supreme Court has recognized that “[i]n an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren ․ [H]owever ․ the decision whether such intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance.”  Roth v. Weston, supra, 259 Conn. 229.

Neither the defendant nor the maternal grandmother has alleged that the plaintiff is not a fit parent, and there is no credible evidence that would support any such finding.   The defendant asserts that the maternal grandmother has a relationship with the minor child that is similar in nature to a parent-child relationship, but she did not present clear and convincing evidence that would support such a finding.   Finally, the defendant did not make specific, good faith allegations that denial of the maternal grandmother's visitation will cause real and significant harm to the child nor was the court presented with clear and convincing evidence that would support such a finding.   Thus, the court concludes that none of the requirements of Roth v. Weston, supra, 259 Conn. 234-35, has been met.

Not only is there no evidence that denial of the grandparent's visitation will cause real and significant harm to the child, the available evidence is to the contrary.   The court finds, based upon the testimony presented, that the child's best interest is not being met by the maternal grandmother's visitation with the minor child.   On the contrary, there was evidence presented, which the court credits, that the maternal grandparent has engaged in disparaging comments and conduct relative to the plaintiff.   She admits to having been resentful when the plaintiff came to watch his own daughter at a dance class, claiming that dance class was, in her words, “my time” with Emily.   She expressed her inappropriate resentment of the plaintiff's presence in an inappropriate way.   She admits to having summoned the Woodbury Police Department to the plaintiff's home when the minor child was at that location.   Finally, she admits to smoking in her home and car, while she has the minor child with her, asserting that they are, in her words, “my home,” and “my car.”

The court concludes, without hesitation, that the maternal grandmother places her own interests above those of the minor child to the clear detriment of the minor child.   For all of the foregoing reasons, the motion to terminate the maternal grandparent's access is granted.   The revised visitation schedule will be set forth at the conclusion of this ruling.

2. Motion for Contempt (# 134)

The evidence is not sufficient for the court to conclude that, on the single occasion alleged in the plaintiff's motion, the minor child stayed overnight with the maternal grandmother.   The motion for contempt is denied.

3. Motion to Modify Parental Access (# 135)

The basis for the motion to modify parental access is that, under the current arrangement, the plaintiff carries out the duty of attending to the child's education during the week and also carries out his own work responsibilities during the week.   However, during the weekends, when both the child and the plaintiff have ample free time, the child is, pursuant to the temporary custody and visitation agreement, solely with the defendant.   The plaintiff seeks to acquire weekend parenting time.

The difficulty with increasing the plaintiff's parenting time on the weekend is that there is a substantial likelihood that such a change will diminish the defendant's parenting time, which is already considerably more limited than the plaintiff's parenting time.   Several of the plaintiff's witnesses, and the plaintiff himself, made clear to the court that the child loves her mother, and that the mother, equally, loves her child.   On the other hand, the court heard disturbing evidence regarding aggressive behavior by the defendant in the presence of the child.

The court is reluctant to further limit the defendant's parenting time, despite the concerns previously described.   The court also heard evidence that there have been occasions on weekends when the defendant has, or may have had, social and employment responsibilities that interfered with her ability to be with her child.   The court, mindful of the need to meet the best interests of the child, reconciles the parties' competing interests as follows:

The child will continue to attend school in the Woodbury School system.   The father has parenting time from 6:00 p.m. on Sunday until Friday at 4:30 p.m.;   the mother has parenting time from Friday at 4:30 p.m. until Sunday at 6:00 p.m. The father will facilitate transportation.   The maternal grandmother will have no further visitation with the minor child.

If the defendant has a social or employment conflict that precludes her from using her weekend parenting time with the minor child, then the plaintiff will, in every case, have a right of first option of assuming the parenting responsibilities on those occasions.

The defendant will maintain a twenty-four-hour means of communication with the plaintiff, whether by use of cellular telephone or another equally effective method of communication.

CONCLUSION

In proceedings such as these, it is unfortunately not unusual for a minor child to be pulled in two different directions.   In this case, the court concludes that the minor child has been pulled in three different directions, and this order is intended to ameliorate that situation.   The parties are urged to keep the welfare and happiness of this child in the forefront of every decision that they make, every comment that they make, and every action that they take.   That has not happened up to this point.

If additional visitation issues arise, the court will consider the appointment of a guardian ad litem, the costs of which will be shared by the parties.   The court makes such a proposal, not as a threat or a punishment, but as a means of giving the court the fullest possible picture of the needs of this child so that every decision the court makes will be in the child's best interest.

The parties are also encouraged to pursue parenting education that will assist them in finding ways to be successful parents, regardless of the fact that they no longer have a personal relationship.   There are a variety of such programs available.   Pursuing such options will constitute tangible proof that the parents are elevating the child's best interest above their own unhappiness with each other.

So ordered.

John A. Danaher III

Danaher, John A., J.