Karen L. Danis v. Raymond M. Danis (2011)

MEMORANDUM OF DECISION

FACTUAL BACKGROUND

A review of the record reveals that the parties were divorced, following a fully contested trial pursuant to a memorandum of decision dated September 29, 2010.   Both parties had appeared and were represented by counsel.   The court heard testimony from the Guardian ad litem for the two minor children, then four-year-old twins, the parties and the family relations officer who had performed a custody evaluation.   The father was seeking shared parenting and the mother was seeking joint custody with primary residence with her.   The court found that the defendant husband was more responsible for the breakdown of the marriage than the wife who claimed that the husband was controlling and inflexible.   The court found that notwithstanding the fact that the father was disabled and was able to care for the children 24 hours per day, seven days per week, the mother, who was employed full time and would be required to place the children into full-time daycare nonetheless presented the superior parenting plan.   This was consistent with the recommendation of both the Guardian ad litem and the family relations officer.

Following the judgment, there have been numerous motions filed including the father's motion to remove the Guardian ad litem (221), the father's appeal (224) and the father's motion for dismissal and attorneys fees (225).

The mother had filed a post-judgment motion for clarification (222) and motion for contempt (223) to force the father to surrender the children's military medical identification cards and to prevent the father from removing the children from their day care/preschool facility, both of which were granted.

Now comes the mother who filed an ex-parte application for custody and to modify the existing order (231) and a motion for contempt (230) following the father's last-minute declaration that he would exercise a week of time with the children in February, which motions were heard by the court on March 23, 2011.

FINDINGS OF FACT

The Court makes the following findings of fact:

1. The parties were divorced, following a fully contested trial pursuant to a memorandum of decision dated September 29, 2010.

2. The children, twin five-year-olds, reside primarily with the mother and visit with the father on alternating weekends from Friday afternoon until Sunday afternoon and every Wednesday evening.

3. The communication between the parties is virtually nonexistent.   They have not verbally spoken in more than one year and all communication is by way of text.   The police have been involved approximately ten times in the past two years for issues ranging from domestic violence to the father's contacting the police because the mother did not bring the children to day care.

4. The father, a former corrections officer, is disabled and does not work.   He suffers from Huntington's disease.   He is obsessive in the enforcement of his parental rights, rigid, difficult, demanding and shows no ability for self-observation.   He is uncooperative with the Guardian ad litem and with his ex-wife.

5. The mother is employed full time and utilizes a nurturing and supportive day care/preschool for the children.   She appears to be at the end of her patience in attempting to co-parent with her ex-husband who makes co-parenting impossible.

6. The mother's motion for contempt alleges that the father violated the existing court order that they “alternate access for the minor children's winter and spring school breaks” when he exercised a week in February.

7. The court is not able to find the father in contempt for violating the court order which calls for the parents to alternate winter and spring school breaks when, in fact, the children are not in school and have neither winter nor spring breaks.   Nonetheless, the court finds that the father will thwart the spirit of the agreements and court orders at every opportunity and that traditional co-parenting is not presently possible.

8. The mother's application for ex parte temporary injunction and motion for custody requests a modification of the existing order and claims that “when in the care of the defendant, the children have been subjected to being wrongfully withheld and neglectful treatment.”

9. The court found no evidence of neglectful treatment and finds that the father is loving and committed to his children although his behavior toward his ex-wife creates great problems.   His girlfriend testified that she acts as a filter between he and his ex-wife to “edit” his texts to her to make them less controversial and angry.

10. During the hearing, the court heard long hours of testimony describing the difficulties that the parties are having with co-parenting including the numerous police calls, the complete breakdown of communication between the parents, and the father's obsessive insistence that his parental rights be honored such as insisting that his Wednesday visitation occur without interruption despite a raging blizzard.

11. The continued and escalating problems between the parents constitutes a substantial change in circumstances which must be addressed.

12. Much of the hearing and closing arguments were devoted to whether there should continue to be joint custody or if the mother should be given sole custody.

13. At the time of dissolution, the court (Goldberg, J.) found that “a great deal of time was expended by the GAL due to the inflexibility of the defendant.”   Likewise, this courtfinds that the need for the GAL, post-judgment, was due to the conduct of the defendant.

14. The plaintiff is requesting reimbursement for one-half of the missed week of day care which she was forced to pay but the evidence was uncontroverted that the parents must pay for 50 weeks of day care/preschool per year in any event.

LEGAL DISCUSSION

Connecticut General Statutes § 46b–56, which provides authority to render orders of custody, provides in relevant part:

(a) In any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children ․ Subject to the provisions of section 46b–56a, the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent ․ according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable ․ (b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests ․

“Before a 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 interests of the child ․” Gilespie v. Jenkins, 127 Conn.App. 228, 232 (2011).

“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), C.G.S. § 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).

General Statutes § 46b–56(i) states that “As part of a decision concerning custody or visitation, the court may order either parent or both of the parents and any child of such parents to participate in counseling and drug or alcohol screening, provided such participation is in the best interests of the child.”

ORDERS:

1. The parties will continue with joint legal custody but the mother shall have final decision-making authority on all issues regarding the children.

2. The father is ordered to engage in therapy with a Ph.D.-level psychologist or therapist to address issues of parenting and co-parenting with the mother of his children.   The father is precluded from filing any motions to modify the existing parenting plan without first having successfully completed that course of therapy.

3. The motion for contempt is denied.

4. In the future, the father shall enjoy a week in February with the children in odd years and a week in April in even years.   The mother will enjoy a week in April in odd years and a week in February in even years.   Each party will give the other 30 days written notice of their intention to exercise said access.

5. All other orders, not inconsistent with these orders will remain in full force and effect.

6. The Guardian ad litem fees incurred since February 23, 2011 (the date of the ex parte application) shall be borne 100% by the defendant.

7. The motion for attorneys fees is denied.

8. The motion for reimbursement of the week of February day care tuition is denied.

Shluger, J.

Shluger, Kenneth L., J.