Kevin Case v. Jennifer Jones (2011)

MEMORANDUM OF DECISION

This custody application comes to the court based on an ex parte motion brought by the plaintiff father in August of 2008.   At that time, custody of the minor child Devin (DOB:12/2/2000) was transferred from the defendant mother to the plaintiff father and a guardian ad litem (GAL) was appointed.   Since that time, the parental behavior of the defendant has been questionable.   She has not been consistent in seeing her daughter, she has not paid support, she has been reluctantly compliant with the court ordered evaluation and she has interfered with the plaintiff's ability to obtain medical insurance coverage for the child through the Husky program.

The plaintiff father did not appear to have played a very significant role initially in his daughter's care once the parties separated.   He has, however, assumed full responsibility for Devin's care since early August 2008 and, by all accounts, has done well ever since.¹  The testimony of the GAL and the report of Dr. James C. Black, the court appointed evaluator, both attest to the progress Devin has experienced both academically and socially since being placed in her father's care.   She is a special needs child as a result of a birth defect and other issues.   Currently Devin is a student at Alcorn Elementary School in Enfield, Connecticut.   In the past she had some serious behavioral issues including extreme tantrums, but current reports indicate significant improvement in that area.   Of concern to the court is the report that her behavior regresses after visits with the defendant.   Her academic progress remains slow.

Each parent blames the other for problems with communication and obeying access schedules on a regular and consistent basis.   The plaintiff describes the parties' participation in the Families In Transition Program (FIT) run by The Children's Law Center as a “horrible experience.”   He claims that it made the defendant even more resistant to compromise and entrenched in her positions.   He further claims that he has been unable to get insurance coverage for Devin through the Husky Program because the defendant, until very recently, had an open case with the State of Connecticut showing that she had primary custody.   He claims that despite the fact that the child has not been in her care since mid 2008, the defendant continues to claim Devin as a dependent for income tax filing purposes.   According to him, she has missed many scheduled exchanges despite the fact that she insists that he drive both ways between his home in Enfield and hers in Manchester.

The defendant is equally critical of the plaintiff.   She claims that he is the one that does not meet for exchanges which resulted in her not seeing Devin last year for five months.   She claims that he has removed her name from school records and implied, or worse, to the school officials that he has sole custody of Devin.   She blames the father for causing the entire problem that resulted in the change of primary residence in 2008.   As the defendant presents the facts, she had a three-day vacation planned and had attempted weeks in advance to get the plaintiff to care for Devin.   It was, according to her, his weekend with Devin, so it would have only added one day.   He would not give her a firm commitment and a short time before the planned vacation told her he could not do it.   The plaintiff has a contrary version of these events.   Although there is disagreement about the facts up to this point, both parties agree on what happened next.   The defendant brought the child to daycare with extra clothing and her car seat and went off on the planned vacation.

The court, at the request of the GAL, ordered a custody evaluation to be performed by Dr. Black in January 2009.   The report was not issued until July 30, 2010.   Although there was no direct testimony as to why the report was so delayed,² the impression left with the court was that the defendant did not cooperate with the evaluation in a timely fashion.   The court is troubled by the numerous actions in the file designed to enforce compliance with its orders on the part of the defendant, including one occasion of incarceration.

Dr. Black's very thorough evaluation clearly demonstrates that both parents have contributed to the high conflict nature of the case before the court.   In the past, the plaintiff has certainly not always acted maturely or in the child's best interests.   In recent years since he has had primary custody, however, he appears to have demonstrated significant additional maturity as a parent and the child is doing well.   Both the evaluator and the GAL have recommended joint legal custody with final decision making authority granted to the plaintiff.   Both parents can accept that, but both think that they should have sole legal custody due to their admitted inability to function as co-parents for the benefit of Devin.   The court agrees with the parents.

Both parties should understand that the granting of sole legal and physical custody of the minor child to one parent does not terminate the parental rights of the other party.   The custodial parent will still have, under the orders to be issued as a part of this decision, an absolute obligation to not only keep the other parent informed about all issues regarding Devin, but also to make reasonable efforts to consult with the other parent prior to making major decisions.   The parents should also clearly understand that this custody decision can be changed based on the future behavior of the parties.   The court can, if appropriate, restore the joint legal custody orders or even grant the other parent sole custody.   The parents must make every effort to cooperate civilly for the benefit of their daughter.   They must stop allowing their personal issues to interfere with their ability to parent this young girl.   The court cannot make someone a good parent, but the court can set out orders in an attempt to regulate bad behavior.   The court will do all that it can to identify Devin's best interests and to protect her accordingly.

Having considered all of the testimony of the parties and the custody evaluation report prepared by Dr. Black, which both parties agreed could be used by the court in reaching its decision without Dr. Black testifying, the court makes the following factual findings:

1.  The minor child Devin (DOB:  12/2/2000) is a special needs child and requires a consistent and stable home and school environment;

2.  She is doing well in her current placement with her father and his parents;

3.  She is making progress both academically and socially in the Enfield School System;

4.  It would not be in Devin's best interests to alter her living arrangements at this time;

5.  Devin would benefit from a return to therapeutic counseling to help her deal with the issues created by her parents' ongoing conflict and her special needs situation;

6.  There have been problems associated with transitions from the defendant's care back to the plaintiff's care;

7.  Both parents have demonstrated great difficulty dealing effectively with one another regarding parenting issues and decisions;

8.  Past efforts to counsel the parents in decision making skills have proven unsuccessful;  and

9.  It would be in Devin's best interests for her to have consistent medical and dental care including but not limited to issues created by her birth defects;

10.  Given the fact that the defendant mother is just beginning new employment, it is not appropriate to establish child support and determine any arrearage at this point.

The court, after reviewing its factual findings, a careful review of the court file and the evidence in this matter in light of the applicable statutory criteria, HEREBY ORDERS:

1.  The plaintiff shall have sole legal and physical custody of the minor child Devin (DOB:  12/2/2000);

2.  The defendant shall have parental access to Devin as follows:

a. every Sunday from 9:30 AM to 6:00 PM;

b. commencing on May 4, 2011, every Wednesday from after school until 6:00 PM;

c. commencing with the end of the school year, every other Saturday from 9:30 AM overnight to Sunday at 6:00 PM conditioned on a record of consistent adherence to the schedule set forth in §§ ”a” and “b” above;

d. Holiday access shall include:

New Years Day—4:00 PM to January 2nd at 4:00 PM in odd years;

Easter in even years;  Mother's Day;

Memorial Day in odd years;

July 4th in even years;

Labor Day in odd years;

Columbus Day in even years;

Thanksgiving in odd years;

Christmas Eve from 12/24 at 4:00 PM to 9:00 PM in odd years;

Christmas Day from 12/24 at 9:00 PM overnight to 12/25 at 4:00 PM in even years;

New Year's Eve 4:00 PM to New Year's Day at 4:00 PM in odd years;

Each parent shall have at least two hours access to Devin on her birthday—December 2nd;

The Plaintiff shall have all of these holidays, except Mother's Day, in the alternate year, and he shall always have Father's Day;  and

Unless other wise specified, all holidays shall start at 9:30 AM and end at 6:00 PM

e. School vacations shall be divided as follows:

School time vacations shall be divided equally with the plaintiff having from after school at the start of the vacation until Wednesday at 12 Noon and the defendant having the balance of the week until 6:00 PM the night before school resumes.

Each parent shall be entitled to one week—seven consecutive days—Saturday to the following Friday during the summer vacation.   Parties shall give the other parent, in writing, the dates requested at least thirty (30) days in advance.   If the parties cannot agree of on a vacation schedule, the plaintiff's schedule shall prevail in all odd years and the defendant's in all even years.

Each Party shall provide the other parent with written notice of the vacation time being requested with a brief summary of travel plans, if any.   Such summary must include all commercial travel schedules, access phone contact and a general itinerary of the vacation plans.

Such notice must be given as soon as available but not less than thirty (30) days prior to the start of such vacation.

Travel outside of the United States of America must be by written agreement of both parents or order of the court.

g. Vacation access shall prevail over the regular weekly access schedule and Holiday access shall prevail over all other schedules;

h. The defendant shall pick up the child at the start of all access time and the plaintiff shall pick up the child at the end of each period.   The exchanges shall take place at the Dunkin Donuts located at 172 Bridge Street, East Windsor, Connecticut.   Each party should make a small purchase when they arrive and retain the receipt as proof of the time of arrival.   Unless otherwise arranged, there shall be a thirty (30) minute grace period.   Noncompliance with the access schedule shall be considered by all future courts when establishing custody and visitation orders;

i. Each party shall be responsible for facilitating any activities the minor child is scheduled to attend during their respective parenting time, including but not limited to extracurricular activities, lessons and birthday parties.   The parties shall discuss, in advance, any extra curricular activity, enrichment program and/or summer camp activities for the benefit of the minor child.   Only such activities as agreed upon by the parents shall be considered an approved activity for enforcement under these orders, but neither party shall unreasonably withhold his or her approval.   The cost of all approved activities shall be shared equally by the parties.   Any activity not approved may still be engaged in by the child so long as it does not interfere with the parenting access time of the other parent and the cost of said activity is covered entirely by the parent engaging the child in such activity.

j. It is understood and to be expected that events and circumstances may arise that require some flexibility in the above detailed schedule.   The parties are ordered to be as reasonable with each other as possible to accommodate emergencies and other unplanned events.

3. The plaintiff shall at all times keep the defendant fully informed of all important dates concerning Devin including but not limited to non-emergency medical and dental appointments, school related events and non-family social events;

4. Whenever possible, all medical and dental appointments shall be made at a time that both parents could be available to attend;

5. The plaintiff shall make all reasonable efforts to consult with the defendant before making major, non-emergency decisions concerning Devin's health, education and religious upbringing.   Such “reasonable efforts” shall require discussion with the defendant prior to making the decision or taking steps to implement such decisions.   Only after exhausting such “reasonable efforts” shall the plaintiff make any such final decisions;

6. The defendant, under Connecticut law, continues to have the right to access the minor child's medical and educational records;

7. The parties are ordered to participate in the Focus On Kids Program to improve their communication and co-parenting skills.   The GAL shall assist the parties in implementing this provision.   The parties must attend a minimum of ten (10) sessions over an eight (8) month period unless terminated earlier by the program;

8. The minor child shall resume therapy sessions at the Child Guidance Clinic with Beth Honey or another suitable therapist if Ms. Honey is not available.   Both parents shall cooperate in such therapy and follow the recommendations of the child's therapist;

9. The defendant may claim Devin as a dependent for tax filing purposes in all odd years commencing with the year 2013, only if she is current on all financial obligations to the plaintiff as of December 31st of the year in question;

10. All other financial orders including support, determination of any arrearages, or division of responsibility for medical/dental bills is referred to the Family Support Magistrate docket on May 27, 2011 for determination.

SO ORDERED.

BY THE COURT,

Adelman, J.

FOOTNOTES

FN1. The plaintiff and his daughter live with his parents.   The paternal grandparents are very supportive and provide assistance, both emotional and financial, to their son and granddaughter..  FN1. The plaintiff and his daughter live with his parents.   The paternal grandparents are very supportive and provide assistance, both emotional and financial, to their son and granddaughter.

FN2. It was not for financial reasons because the State Of Connecticut paid the fee..  FN2. It was not for financial reasons because the State Of Connecticut paid the fee.

Adelman, Gerard I., J.