Melisa Durkee v. Todd Giglio (2011)

MEMORANDUM OF DECISION

The parties never married and dated only a few months before the plaintiff unexpectedly became pregnant with the parties' now fourteen-month-old daughter, Elia. Although the parties cohabited together for approximately two months after their daughter's birth, the parties have subsequently defined their relationship solely in terms of being Elia's parents and the parties maintain separate residences.

Early on in the minor child's young life, the parties experienced difficulty in effectively communicating with one another.   To their credit they engaged in communication therapy, but after a couple of sessions the plaintiff terminated the sessions, allegedly due to the defendant's verbal abuse and behavior during and after the counseling sessions.   In January of 2011, the parties implemented a non court ordered parenting plan which was formulated with the assistance of a family relations officer.   Both parties acknowledge the parenting plan is working well and as a result of the plan their daughter is sleeping better and overall Elia is benefitting from the parenting plan.   Both parties are asking that the parenting plan presently in use be incorporated into the court's decision.¹

Mother works days and father is a waiter whose present employment requires him to work weekend evenings but he schedules two consecutive nights off during the week during which time he parents the minor child.   Father may be changing his place of employment and hopes to eventually have the opportunity to have an occasional weekend off.

The unresolved issues presently before this court pertaining to the plaintiff's custody motion ² center around:  (1) final decision making authority, (2) a holiday schedule, (3) a vacation schedule, (4) a request by the father that he first be offered the opportunity to parent his child during mother's parenting time before mother seeks third-party assistance,³ (4) an opportunity, if employment permits, for either parent to have at least one overnight weekend a month with the minor child, and (5) a determination as to who shall be entitled to claim the minor child for income tax purposes.

Having listened to the testimony and arguments of the parties, and having reviewed the parties' proposed written and oral orders, the court pursuant to C.G.S. § 46b–56 et seq., § 46b–56a et seq., and § 46b–56b and applicable case law enters the following additional orders:

(1) Final Decision Making Authority

The plaintiff contends she requires final decision making authority due to the parties' past history of being unable to agree on life decisions pertaining to their minor child.   In support of her claim she testified as to the defendant's prior opposition to and/or possible noncompliance with the administration of medication to the minor child.   On cross examination by the defendant however, the plaintiff conceded that with a more recent illness, the parties discussed alternative treatments and reached an agreement as to how their daughter should be treated.   The plaintiff also conceded at trial the fact the defendant had inadvertently failed to buckle the infant into a proper car seat on one or two occasions would not be remedied by granting her final decision making authority.

The parties both love their daughter very much.   Both agree their present parenting access plan has improved the quality of their daughter's life.   Both parties have represented to the court they will continue to communicate through Our Family Wizard.   Upon review of the testimony presented, the court finds there is insufficient evidence to support the plaintiff's request to vest final decision making authority solely with her.   The parties are ordered to communicate effectively with one another through Our Family Wizard and to collaborate in good faith with one another in arriving at decisions that are in their minor child's best interests.

Furthermore, both parents shall exert every effort to foster a feeling of affection between the child and the other parent and neither parent shall make any disparaging remarks about the other parent to or in the presence of the child, nor do anything which may estrange the child from the other parent or which in any way may hamper the free and natural development of the child's love and respect for the other parent.

(2) Additional Parenting Time

In addition to the parenting plan outlined in footnote 1 the parties shall each be entitled to one weekend every two months in which said parent shall have the right to parent the minor child from Saturday at 9 a.m. to Sunday at 6:00 p.m. If mother exercises said weekend parenting time father shall, in addition to his weekday parenting time be afforded a third day or evening of parenting time with the minor child;  the additional parenting time shall be three hours in duration.   Said make up parenting time shall occur in the week immediately preceding or following mother's uninterrupted weekend parenting time as agreed to by the parties.   If father exercises his option for weekend overnight parenting time, no additional or alternative parenting time shall be afforded mother.   Once either parent exercises weekend overnight parenting time as described above, two months shall elapse before said parent may enjoy any subsequent uninterrupted weekend overnight parenting time.

The court denies the defendant's request that either party shall be obligated to first offer the other an opportunity to parent their minor child before securing a third party to care for the child.

(3) Holidays 4

Thanksgiving

Father shall parent the child on Thanksgiving in the odd years from 9 a.m. to 6:30 p.m. Mother shall parent the child on Thanksgiving in the even years.

Child's Birthday

Father shall parent the child on her birthday in the even years from 9 a.m. to 6:30 p.m. Mother shall parent the child on her birthday in the odd years.   In the odd years father shall be permitted to have two hours of parenting time with the minor child, the scheduling of the two hours of parenting time shall be mutually agreed upon by the parties.   Ideally the parties shall be capable of both participating in father's two hours of parenting time so the minor child can enjoy the celebration of her birthday in the presence of both of her parents.   However, if the parties are unable to mutually agree upon a joint two-hour celebration, father's two hours of birthday parenting time shall be determined by the mother who shall take into consideration the child's age, physical needs and the parents' respective schedules and obligations in arriving at father's parenting access time.

Christmas Eve

Father shall parent the minor child from 4 p.m. on Christmas Eve to 10 a.m. on Christmas Day in the even years (even year defined as commencing in December of 2012).   Mother shall parent the child on Christmas Eve in the odd years (odd year as defined as commencing in December of 2011).

Christmas Day

Father shall parent the minor child on Christmas Day from 10 a.m. to 7 p.m. in the odd years.   Mother shall parent the minor child on Christmas Day in the even years.

New Year's Eve and New Year's Day

Father shall parent the child on New Year's Eve from 4 p.m. to 10 a.m. on New Year's Day in the odd years (odd year is defined as commencing December 31, 2011).   Mother shall parent the child on New Year's Eve in the even years (even year is defined commencing December 31, 2012.)   Father shall parent the child from 10 a.m. to 5 p.m. on New Year's Day in the even years.

Labor Day

Father shall parent the child in the odd years and mother shall parent the child in the even years.

Memorial Day and 4th of July

Father shall parent the child in the even years and mother shall parent in the odd years.

Halloween

Father shall parent the child in the even years, mother shall parent in the odd years.

Mother's Day and Father's Day/Parents' Birthdays

The father shall parent the child on father's day and his birthday from 10 a.m. to 6 p.m. and the mother shall parent the child on mother's day and her birthday.

(4) Vacations

Each parent shall be entitled to two non-consecutive weeks of vacation with the minor child.   Said vacations cannot interfere or supercede the holiday access schedule unless mutually agreed upon by the parties.   Each parent shall be entitled to seek a third non-consecutive vacation week and agreement to a third vacation week shall not be unreasonably withheld.   The vacationing parent shall provide the other parent with a written itinerary of travel plans and shall share contact information.   The minor child, when age appropriate, shall be permitted reasonable contact with the other parent while on vacation.

(5) Tax Dependency Deduction

The mother shall claim the minor child as a dependent for tax purposes in the odd years, commencing in 2011 and the father shall claim the minor child in even years commencing in 2012.

(6) Parenting Education Classes

The defendant proffered an alleged parenting education program completion document, which he represents reflects his successful completion of the required program.  (See C.G.S. § 46b–69b) The court refused to accept the illegible copy.   The defendant shall file with the court within ninety days of judgment legible proof that he has satisfactorily completed the requisite parenting education program.

Bernadette Conway, Judge

FOOTNOTES

FN1. The parental plan hereby ordered is as follows:  The parties shall share joint legal custody.   Primary physical residence of the minor child shall be with mother.   Father shall parent the minor child for two consecutive over nights during each week.   Father's parenting time shall commence with his pick up of the child at daycare in the p.m. on the initial parenting day and father's parenting time shall end with his dropping off of the child at daycare in the a.m. after the second consecutive night of parenting the minor child during the week.   Father shall also parent the child every Saturday from 9:00 a.m. to 6:30 p.m. Saturday pick ups and drop offs shall be at Brazi's restaurant in New Haven.   Should the father need to commence work earlier on Saturday, the drop off time shall be at 5:00 p.m. Upon his receipt of his weekly work schedule each Sunday, the father shall promptly inform the mother of his availability for his consecutive two nights parenting time for the upcoming week.My Family Wizard shall be used to communicate all non-emergency and non-urgent co-parenting communication.   Telephone and text messaging shall be utilized only during emergency or urgent situations involving the minor child..  FN1. The parental plan hereby ordered is as follows:  The parties shall share joint legal custody.   Primary physical residence of the minor child shall be with mother.   Father shall parent the minor child for two consecutive over nights during each week.   Father's parenting time shall commence with his pick up of the child at daycare in the p.m. on the initial parenting day and father's parenting time shall end with his dropping off of the child at daycare in the a.m. after the second consecutive night of parenting the minor child during the week.   Father shall also parent the child every Saturday from 9:00 a.m. to 6:30 p.m. Saturday pick ups and drop offs shall be at Brazi's restaurant in New Haven.   Should the father need to commence work earlier on Saturday, the drop off time shall be at 5:00 p.m. Upon his receipt of his weekly work schedule each Sunday, the father shall promptly inform the mother of his availability for his consecutive two nights parenting time for the upcoming week.My Family Wizard shall be used to communicate all non-emergency and non-urgent co-parenting communication.   Telephone and text messaging shall be utilized only during emergency or urgent situations involving the minor child.

FN2. Child support (father pays mother $102/week), health care insurance (mother maintains health insurance for the minor child and father pays 33%, mother pays 67% of uncovered, un-reimbursed health care expenses and work related daycare expenses) have been addressed in previous court orders and are consistent with the child support guidelines, are hereby also incorporated by reference into the judgment.   The outstanding arrearage owed the plaintiff shall continue to be paid by the defendant at the rate of $15/week until paid in full.   Child support payments shall be paid by Saturday of each week.The parties agree that had they remained an intact family they would have contributed to their daughter's college education.   The parties agree the court shall retain jurisdiction of post-majority education orders pursuant to C.G.S. § 46b–56 (c)..  FN2. Child support (father pays mother $102/week), health care insurance (mother maintains health insurance for the minor child and father pays 33%, mother pays 67% of uncovered, un-reimbursed health care expenses and work related daycare expenses) have been addressed in previous court orders and are consistent with the child support guidelines, are hereby also incorporated by reference into the judgment.   The outstanding arrearage owed the plaintiff shall continue to be paid by the defendant at the rate of $15/week until paid in full.   Child support payments shall be paid by Saturday of each week.The parties agree that had they remained an intact family they would have contributed to their daughter's college education.   The parties agree the court shall retain jurisdiction of post-majority education orders pursuant to C.G.S. § 46b–56 (c).

FN3. Initially the father also raised the issue of who shall care for the child in the event the child is ill and unable to attend daycare.   After testimony and discussion between the parties and the court an agreement was reached and therefore the court enters the following order:  In the event the minor child becomes ill, whichever parent is exercising parenting time shall be the child's care giver.   Either parent may, at his or her discretion, contact the noncustodial parent to determine whether said noncustodial parent is willing and/or able to assume caring for the sick child.   For example, if father is scheduled to parent on Tuesday afternoon commencing with pick up at daycare through Thursday morning, with drop off at daycare and the child becomes ill on Thursday while at daycare, said illness is occurring during mother's parenting time and therefore the childcare vests with her.   However, mother, in her discretion, may contact father and inquire whether he is able and/or willing to care for the ill child during mother's parenting access time.   Father's parenting time terminates upon mother's availability to resume care of the child.   Any additional parenting time acquired by either parent as a result of the child being ill and unable to attend daycare shall not be grounds to alter or deviate from the parenting schedule unless both parties agree to said deviation..  FN3. Initially the father also raised the issue of who shall care for the child in the event the child is ill and unable to attend daycare.   After testimony and discussion between the parties and the court an agreement was reached and therefore the court enters the following order:  In the event the minor child becomes ill, whichever parent is exercising parenting time shall be the child's care giver.   Either parent may, at his or her discretion, contact the noncustodial parent to determine whether said noncustodial parent is willing and/or able to assume caring for the sick child.   For example, if father is scheduled to parent on Tuesday afternoon commencing with pick up at daycare through Thursday morning, with drop off at daycare and the child becomes ill on Thursday while at daycare, said illness is occurring during mother's parenting time and therefore the childcare vests with her.   However, mother, in her discretion, may contact father and inquire whether he is able and/or willing to care for the ill child during mother's parenting access time.   Father's parenting time terminates upon mother's availability to resume care of the child.   Any additional parenting time acquired by either parent as a result of the child being ill and unable to attend daycare shall not be grounds to alter or deviate from the parenting schedule unless both parties agree to said deviation.

FN4. The holiday schedule shall supersede the weekly parenting plan..  FN4. The holiday schedule shall supersede the weekly parenting plan.

Conway, Bernadette, J.