Patrick A. Hosein v. Tashonna R. Webster (2011)

MEMORANDUM OF DECISION

This matter came before the court on March 12, 2009 by way of a Motion for Custody brought by the plaintiff father (hereinafter “plaintiff”).   In that motion, the plaintiff sought joint custody and primary residence of the minor child.   On May 20, 2009, a cross complaint was filed by the defendant mother (hereinafter “defendant”) seeking a corrected birth certificate to hyphenate the child's surname.¹  On August 13, 2009, the defendant filed an amended cross complaint seeking joint custody and financial and educational support for the minor child.

Various motions including a Motion for Contempt for plaintiff's nonpayment of guardian ad litem fees have also been filed.

On July 20, 2010, the defendant requested, as part of her cross complaint, to move with the child to the New York City area which the plaintiff opposes.²  A Guardian ad litem was appointed to represent the child's interests on July 22, 2010 and the parties agreed to divide those fees equally.   On September 3, 2009, the plaintiff filed a motion for order that the child sleep in a bed apart from an unrelated person and that the child not be removed from the State of Connecticut.   The parties temporarily resolved all issues except for the issue of the child's move to New York, by stipulation on September 23, 2009.   On October 1, 2010, the plaintiff appealed the court's decision of September 28, 2010 which temporarily granted the request to move the child to New York City. Upon plaintiff's motion, and over the defendant's objection the court, on October 12, 2010, ordered an issue focused study by Family Relations to explore this issue.

A hearing on the complaint, cross complaint and amendments to the cross complaint as well as the Motions for Contempt and other pending motions took place on March 7, 8 and 9, 2011.   At the outset of the hearing, the parties agreed that while the child resided in Connecticut the plaintiff's parenting time would include every other weekend and two evening dinner visits per week as had been the parties' past informal arrangement.   They also agreed that each parent could exercise two weeks of nonconsecutive parenting time in the summer and alternate major holidays and school vacations.   In addition, they stipulated as well to the guideline child support amount of $137.00.

This court has considered all testimony, including that of the independent Guardian ad litem and the family relations officer as well as all exhibits entered, in making the following additional findings of fact:

FINDINGS OF FACT

The plaintiff and the defendant were never married and have not been living as a family since the child was sixteen months of age.   They have one daughter, Kai Patrice Hosein, born in Connecticut on August 2, 2004.   The defendant is originally from the State of New York where her extended family resides, but she currently resides in New Haven, Connecticut.   The plaintiff is originally from the State of Connecticut and has resided in Bloomfield, Connecticut for most of his life.

After a series of different jobs, the plaintiff has been employed by the State of Connecticut for the past year.   It is an IT job that requires him to travel all over the State of Connecticut.   He has primarily resided in his mother's home in Bloomfield for the last twenty years.

Until recently, the defendant had been employed at Yale University since 2001 as a part-time research associate in a grant-funded position.   This is a position that is usually held by a graduate student who is pursuing an advanced degree.   During this period, the defendant earned multiple advanced degrees (two Masters degrees and one Ph.D.) in Public Health and Health Education from Columbia University and the University of Connecticut.

In early 2010, the defendant applied for the position of City Research Scientist II with the New York Department of Public Health.   The position would ultimately be located in Queens, New York. At that time, the defendant was ready to leave her research position at Yale, having obtained her advanced degrees.   She also was dating a gentleman who is currently employed in New York City and who resides nearby in the state of New Jersey.   In addition, the defendant's extended family resides not far from Queens, on Long Island.   In June of 2010, mediation with Dr. Sidney Horowitz resulted in an initial agreement by the plaintiff for the defendant to move to New York with the child.   In July of 2010, the plaintiff changed his mind.

There is some dispute over the actual date that the defendant was offered employment in New York. In fact, months and extensive resources have been expended in the filing of motions and court time over the plaintiff's claim that the employment opportunity from New York was, in essence, a fiction.

This court finds that the defendant was being seriously considered for the position in New York as far back as late spring of 2010, that she was led to believe that the position was hers but that she had to wait out an extensive approval process and salary negotiations.³  The defendant was initially given a hiring date of September 6, 2010, but through no fault of her own, a hiring freeze was implemented which delayed her employment further.   The defendant now has a starting date of April 4, 2011 with a 33% salary increase from her last temporary job at Yale. But for the current job offer in New York, the defendant has no employment and will soon receive the last of fourteen weeks of severance pay.   She is also now engaged to be married to the person that she had been dating at the time of the initial offer of employment, with a wedding date set for April 16, 2011.

The position of City Research Scientist II is a permanent, full-time position which provides a good salary, benefits and a pension to the defendant.   It is a job that is in the defendant's field with a focus on HIV research.   It also carries with it a residency requirement which must be fulfilled by July 2011.⁴

BEST INTERESTS

Conn. Gen.Stat. § 46b–56(b)(1) provides that “In making any order with respect to custody or visitation the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age.”   Certain criteria have been enumerated by statute to assist the court in determining best interests.  Conn. Gen.Stat. § 46b–56(c) directs the court, when making any order regarding the care, custody, education, visitation and support of a child, to “consider the best interests of the child, and in doing so [the court] may consider, but shall not be limited to, one or more of [sixteen enumerated] factors ․ The court is not required to assign any weight to any of the factors that it considers.”   Lederle v. Spivey, 113 Conn.App. 177, 187;  965 A.2d 621 (2009).

In determining the best interests of this child, this court had the benefit of a family relations study that reflected a thorough investigation by the family relations officer, Alexander Rodriguez, testimony of Mr. Rodriguez, extensive testimony provided by a diligent and thorough Guardian ad litem, Attorney Robert Romano, and the testimony of each party.   The evidence established that the defendant has been the child's primary caregiver for most of her life.   While both parents are devoted to this child, it is the defendant who takes her daughter to the majority of her medical appointments, although the plaintiff shares in this responsibility on occasion.   It also established that the defendant is willing to facilitate and encourage a continuing relationship between the child and the plaintiff.

As noted previously, the defendant is currently engaged to be married to a gentleman that the defendant met in college.   The wedding is scheduled for April 16, 2011.   Her fiancé has no criminal history, is employed at Goldman–Sachs in the hedge fund area, and is a man who is respectful of the plaintiff's role in his daughter's life.   Despite this, the defendant has made it clear that she will not leave Connecticut without her daughter, although she currently has no employment in Connecticut.

There is no question that the plaintiff loves his daughter.   He has been very involved in every aspect of her life and schooling, and has taken every opportunity to spend time with her and take part in her school functions.   At the same time, he is excessively interested in the whereabouts of the defendant and the child when he is not having scheduled parenting time, demanding that he be informed of the child's whereabouts at all times.   He refers to his weekday dinner visits with his daughter as their “date nights.”   At the same time, he has questioned the defendant's parenting decisions although he really could not give a persuasive example of poor parenting by the defendant.

The plaintiff believes that the child should remain in New Haven because she has stability there and should continue in school there.   This is despite the fact that he resides in Bloomfield and the defendant no longer has a job in this state.   He also believes that the child would be better off staying with him in Connecticut without her mother than going to New York City with the defendant.   It is his position that the New York job offer was a “smokescreen” for the defendant to be able to move to Queens and be with her boyfriend.

Kai is a smart, adorable, very talkative six-year-old girl.   She is healthy but for an allergy to nuts and is seen routinely by an allergist.   She attends parochial school and does very well academically.   She has traveled to New York City frequently with her mother to visit with extended family and the defendant's fiancee.   She clearly adores both her parents.

CONCLUSION

This court finds, by a preponderance of the evidence, after consideration of the statutory factors set forth in Conn. Gen.Stat. 46b–56(c), that the defendant should be permitted to move with the child to the New York City area.   First, the defendant has been the child's primary caregiver for most of her life.   In addition, after months of a lengthy and bureaucratic employment process, the defendant has a legitimate employment offer that is in keeping with her advanced degrees and which will enable her to financially support and care for this child.   This court finds that there was no “bad faith” by the defendant in pursuing and procuring this employment opportunity.

In addition, the defendant is engaged and will be married in the next month to a man who lives and works in the same general geographical area as the defendant.   The defendant's extended family also resides in the same geographical area and is available to support the defendant and her daughter.   Finally, the plaintiff has been commuting from Bloomfield and all over the state to the child's current residence in New Haven.   While this court understands that the increase in distance between the child's new home with the defendant and the plaintiff's home in Bloomfield may make contact more difficult, the defendant's, Family Relations Officer's and Guardian ad litem's positions favoring the move does not create an insurmountable obstacle to the plaintiff having regular contact with his child.   The alternative of leaving this child in Connecticut and away from her primary caregiver, who does not have an employment opportunity in Connecticut commensurate with her advanced education and who has a residency requirement attached to the New York City position, is not in her best interests.   Simply put, her stability lies is in her residing with the defendant in the New York City area, while she continues to maintain close contact with the plaintiff.

Therefore, this court enters the following orders:

ORDERS

1. Custody And Relocation

A.  The parties shall share joint legal custody.   The Defendant shall have primary physical custody of the minor child.

B. The child shall immediately be permitted to reside with the Defendant in the New York City area although, if the defendant so chooses, she may arrange for the child to finish the school year in New Haven.   This court understands that the child may reside temporarily with the defendant's family or fiancé/husband out of necessity and then move to a more permanent residence closer to her employment in Queens.

C. The defendant shall make her best efforts to find affordable housing within a school district (public or parochial) that is within a reasonable distance of her employment.

2. Parenting Schedule

A.  Parenting Time. The plaintiff shall have parenting time with the child at a minimum of two weekends per month, Friday after school to Sunday at 5:00 P.M. In addition, the plaintiff shall notify the defendant one week in advance that he will travel to New York City on a third weekend and take the child for a Saturday visit in New York, between 9 A.M and 6:00 P.M. Further, the plaintiff shall exercise one dinner visit per week, after school to 7:00 P.M. during the school week if he is able.   The parties shall make every effort to accommodate the plaintiff's Fridays off to coincide with his designated weekends with the child, without her missing any school.   Each parent shall have the right of first refusal in caring for the child if the other parent is unavailable for a period of two overnights or more.   Each party shall promptly notify the other in the event that the child is ill for more than twenty-four (24) hours while the child is with them.   Each party shall make the day to day decisions on behalf of the child when the child is in his or her care without interference from the other parent.

B. Three–Day weekends, holidays, summer and school vacations, and special events.   With the exception of the following holidays, the plaintiff shall have priority in taking all 3–day weekends in lieu of a regular weekend when both he and the child are off employment and school.

Holidays:  The parties shall adhere to the following holiday schedule:

Thanksgiving:  Thanksgiving eve (Wednesday after school) through Sunday at 3:00 p.m. shall be with the Plaintiff Father in odd years;  in even years Plaintiff Father shall have parenting time from Thanksgiving Day at 5:00 p.m. to Sunday at 3:00 p.m.

Christmas:  In even years, the child shall spend Christmas Eve to Christmas Day at 3:00 p.m. with the defendant.   The child shall spend Christmas Day at 3:00 p.m. through December 27th at 5:00 p.m. with the plaintiff.   The child shall spend December 27th at 5:00 p.m. through New Years Day with the defendant.

In odd years, the child shall spend Christmas Eve to Christmas Day at 5:00 P.M. with the defendant.   The child shall spend Christmas Day at 5:00 P.M. through December 31st at 3:00 p.m. with the plaintiff.

Easter, Martin Luther King Day, 4th of July:  The parties shall alternate, the plaintiff in odd years, the defendant in even years.

Mother's Day/Father's day:  Mother's Day with mother;  Father's Day with father.

Special events.

Child's birthday:  Shall be spent with the parent having that day's access under the regular schedule.

School and Summer Vacation.   Each party shall have two nonconsecutive weeks of summer vacation with the minor child.   The plaintiff shall have priority to notify the defendant of his choice of weeks in odd years by April 30th.   The defendant shall notify the plaintiff of her choices by April 30th in even years.   The parties shall alternate winter and spring vacation with the defendant taking April vacation and the plaintiff taking February vacation in even years and alternating thereafter.   During the summer, the plaintiff shall have the option of extending his regular weekends with the child to include Thursday nights after camp and Fridays to coincide with his days off.

Each party shall provide the other with itinerary and contact information as well as the child's whereabouts during vacations.

3. Transportation. The parties shall share in the child's transportation, meeting at the halfway point as designated by the Guardian ad litem or alternating the transportation with plaintiff picking up the child in New York on Fridays and the defendant picking up the child in Bloomfield on Sundays for the return to New York.

4. Communication.

The parties shall exert every reasonable effort to maintain free access and unhampered contact between the child and the other parent.   Each parent shall foster a feeling of affection between the child and the other parent.   Neither party shall do anything which may estrange the child from the other parent or injure the opinion of the child as to his parent, or act in such a way as to hamper the free and natural development of the child's love and respect for the other parent.

The parties shall have liberal telephone contact with the child while the child is in the care of the other party, including at least one telephone contact daily.   The parties shall have liberal video conferencing with the child while the child is in the care of the other party, to include no less than two video conference calls per week not to exceed twenty minutes.

The parties shall maintain open communication through telephone and email to apprise the other of circumstances impacting on the child and of important upcoming events and changes in the schedule.

The parties shall communicate with one another on all medical, academic, social and psychological issues concerning the child and shall insure that they both have all necessary and important information regarding the child.   Each party is to have unfettered access to records and information on the child and is free to access information independently.

5. Child Support and Unreimbursed Childcare Expenses.   Child support shall be paid by the plaintiff to the defendant in the amount of $135.00 per week pursuant to Connecticut Child Support Guidelines.   This order is effective retroactive to the date of the plaintiff's last daycare payment made pursuant to the informal agreement of the parties.   The parties shall divide unreimbursed medical, dental, psychological, orthodontic and employment related childcare expenses 40% to plaintiff, 60% to defendant.   Each party will notify the other by email or in writing within a reasonable period of time in the event of a change in employment.

6. Health Insurance.   The plaintiff is currently providing health insurance for the benefit of the minor child and shall continue to do so.   If it becomes unavailable to him or not at reasonable cost, the defendant shall provide health insurance for the benefit of the minor child, as available through her employment, if it is at reasonable cost.   If not, the parties may pursue the HUSKY Plan or its equivalent.

7. Post–Majority Educational Support.   This court finds that it is more likely than not that the parties would have assisted with college education expenses for the minor child had they remained an intact family.   By agreement of the parties, this court shall retain jurisdiction pursuant to Conn. Gen.Stat. § 46b–56c on the issue of post-majority educational support.

8. Relocation. Should either party choose to relocate with the minor child, ninety days written notice shall be provided to the other party.   Formal notification is required only in the event that either party wishes to move an additional 30 miles or more from the other's residence.

9. Tax Exemption.   The parties shall alternate the child as a tax exemption for so long as the child is eligible only if child support is up to date and only if the parent is contributing to the child's living or college expenses.

10. Life Insurance.   Each party shall provide a minimum of $100,000.00 of life insurance with the child and other parent named as co-beneficiaries.   Each party will provide the necessary authorization to allow the other to obtain verbal and written confirmation that the specifics of the policies are in keeping with this court's order.

11. Miscellaneous Motions

A.  Motion for contempt for nonpayment of Guardian Ad Litem's Fees.

The Motion for contempt is denied.   The Guardian ad litem's fees are approved.   The plaintiff is ordered to pay his 50% share of GAL fees within 2 weeks of receipt of a bill, at a payment rate of $210.00 per month.   The defendant shall continue with her current arrangement of payments with the GAL.

B. Motion for Attorneys fees by each party.   Each party shall be responsible for their own attorneys fees.

C. Request to vacate Appellate Attorneys Fees. Any prior order for payment of Attorneys Fees for the GAL to have legal representation is vacated.

D. Plaintiff's Motion to Open and Set Aside:  denied.

E. Plaintiff's Motion for Sanctions:  denied.

F. Plaintiff's Motions for Contempt:  denied.

12. Jurisdiction. Connecticut shall retain jurisdiction of this matter for a period of two years.

SO ORDERED.

BY THE COURT,

Prestley, J.

FOOTNOTES

FN1. The court heard no evidence on this issue and therefore will not address it..  FN1. The court heard no evidence on this issue and therefore will not address it.

FN2. General Statutes § 46b–56d sets out the analysis a court is to apply when deciding a post-judgment motion to relocate.   This is not a post-judgment motion to relocate because there was no prior custody order but this court has considered the analysis in determining this issue..  FN2. General Statutes § 46b–56d sets out the analysis a court is to apply when deciding a post-judgment motion to relocate.   This is not a post-judgment motion to relocate because there was no prior custody order but this court has considered the analysis in determining this issue.

FN3. Testimony established that there were fifteen approval levels required for this position..  FN3. Testimony established that there were fifteen approval levels required for this position.

FN4. The position requires that a candidate must establish New York City residency within ninety days of hire..  FN4. The position requires that a candidate must establish New York City residency within ninety days of hire.

Prestley, Linda Pearce, J.