Adrian Torres v. Lourdes Ufret (2011)

MEMORANDUM OF DECISION

This matter comes before the court by way of an Application for Custody filed by the plaintiff father.   The subjects of the application are the minor children Adrian Sa‘id Torres and Naji Fabian Torres born on January 26, 2006 to the defendant mother.   The children have resided in the state of Connecticut since their birth.   The children and the parties lived as an intact unit from the date of birth until on or about June 2009 at which time the parties' relationship ended.   The parents currently have shared custody.   At the time of the children's birth, the parties were not then, nor at any time since, married to each other.

The plaintiff has paid court-ordered child support pursuant to orders entered in docket number FA07–4033158 with which the file for this proceeding has been companionized.

On October 20, 2010, the parties agreed and the court approved and ordered joint legal custody of the children.  (No. 122).   On the same day, the parties also agreed to a shared parenting arrangement and the shared parenting plan has continued although the schedule has been varied.   Currently the children are with the plaintiff from Monday night pick up at daycare until Wednesday morning drop off at daycare.   The defendant has the children from Wednesday after day care until Friday morning at day care.   The parties then alternate weekends.   (See No. 126.)

The primary issue before the court is whether to continue a shared parenting plan or to designate a primary custodian of the children and provide scheduled parenting time for the non-custodial parent.

The parties, unfortunately, are unable to communicate with each other on an amicable basis.   The plaintiff is suspicious of the defendant and her paramour.   He has been concerned that the children have been abused in their care as the children have presented to him with bruises and bumps.   The children have been evaluated by the SCAN program at Connecticut Children's Medical Center.   The court has entered an order that no person is to use corporal force to discipline the children.  (See No. 126 and 127.)   The plaintiff has reported to the police that the defendant's paramour has a drug-related criminal record;  the reports of the plaintiff are incorrect.

The defendant has, however, done nothing to ameliorate the concerns of the plaintiff and in fact has caused much of the discord.   The plaintiff was arrested and incarcerated in the summer of 2009 for allegedly making threatening calls to the defendant.   The credible evidence is the defendant fabricated the evidence that lead to the plaintiff's arrest.   After an investigation the charges were dismissed.

The defendant is uncooperative and manipulative.   She removed the children from the daycare (which was the established pick up and drop off location) and would not disclose the whereabouts of the children to the plaintiff until ordered to do so by the court.

The plaintiff, in addition to being suspicious, has also been uncooperative, particularly when things are not going the way he wants.   He would not meet with the department of families and children during an investigation.   DCF substantiated medical neglect with the plaintiff being the perpetrator.   The incident that gave rise to the substantiation involved the plaintiff refusing to drive to New Britain to give the children their medication because he steadfastly, but erroneously, believed the existing court orders required him to meet the defendant at the West Hartford police department—the existing court order required the meeting at the police department for all exchanges of the children but cannot be fairly read to prevent him from traveling to New Britain to provide needed medication.

The parties have difficulty agreeing on anything concerning the children.   They are currently unable to agree on which school system the children should attend.   The plaintiff, who lives in Hartford, wishes to have the children go to school in Hartford, preferably to a magnet school.   He advised the defendant that he had signed the children up for the magnet school and the children are on the waiting list.   The defendant, without notice to or discussion with the plaintiff, signed the children up for a magnet school in New Britain.   One child has been admitted to the program and the other child is on the waiting list.

Both parties were ordered to contact the Children's Law Center to enroll in the Families in Transition Program.   The parties remain on the waiting list at this time.

The court on February 18, 2011 ordered the plaintiff “as soon as possible” to contact his insurance company to inquire about therapists within the plan who would be available to treat the children.   The defendant thereafter lost his job and his insurance but he did not so advise the defendant.   He neglected to provide the required information to the defendant until June 2011 and when provided it was not for therapists covered by his insurance, but therapists who would accept HUSKY or provide free services.   To date the children are not in therapy.

The court found credible the evidence that the defendant sent e-mails to the plaintiff indicating that (i) she can say anything she wants and the courts and social workers will believe her;  (ii) men have no rights;  (iii) the plaintiff will only see the children when she permits and only when she feels like it;  (iv) there is nothing an “asshole judge” or social worker can do;  and (v) “I can ask for child support and screw you some more.”   The court did not find credible the defendant's testimony that she did not send such e-mails and that it was the plaintiff who wrote the e-mails from her e-mail account to himself.

Accordingly, the court has significant concerns as to the ability of these parents to put aside their distrust of each other (no matter how well founded).

The court is further concerned the parties, particularly the defendant, will disregard its orders.   The court advises both parties that they must comply with the orders of the court—they are not suggestions, but orders.

The welfare of the children must be the priority for these parents.

FINDINGS

The Court, having heard the testimony of all of the witnesses, and the report of the guardian ad litem as well as having considered the documentary evidence presented at hearing, and the factors enumerated in General Statutes §§ 46b–56, 46b–56a, 46b–56c, and 46b–61, finds it has jurisdiction and enters the following orders.

ORDERS

IT IS HEREBY ORDERED THAT:

The parents shall continue to share joint legal custody of their children, Adrian Sa‘id. Torres and Naji Fabian Torres both born January 26, 2006.   Until Monday, August 29, 2011, the shared parenting plan and pendente lite court orders relating thereto shall continue.   As of August 29, 2011, defendant shall provide the child's primary residence.   Plaintiff's parenting time with the children shall consist of a two-month alternating schedule as follows:

Month 1:  Plaintiff shall have the children the first and third weekend of the month from pick-up at school on Friday until drop-off at school Monday morning.   Plaintiff shall be responsible for all transportation.

Month 2:  Plaintiff shall have the children the first, second and fourth weekend of the month from pick-up at school on Friday until drop-off at school Monday morning.   Plaintiff shall be responsible for all transportation.

During Month 1 and Month 2:  During the week, the children shall be with the plaintiff from Tuesday after school until Wednesday drop-off at school the plaintiff shall be responsible for all transportation.

It is expected that the plaintiff shall take the children to their normally scheduled sports and extracurricular activities that are scheduled during plaintiff's parenting time.

When school is not in session, the pick-up time for the children on Tuesdays and Fridays shall be 3:30 p.m., unless the plaintiff is working and unable to pick up the children at 3:30 p.m. in which case the pick up time shall be at 5:30 p.m. The drop-off time on Wednesday and Monday shall be at 9:30 a.m., unless the plaintiff is working in which case the drop-off time shall be 8:00 a.m. The pick-up and drop-off location shall be the West Hartford Police Department parking lot.   The plaintiff and defendant shall exchange the children at the police department parking lot.

Summer School Vacation:  Plaintiff shall have the children for the month of July with defendant having parenting time alternating weekends on the first and third weekends of the month from Friday at 5:30 p.m. until Monday at 9:30 a.m. (or 8:00 a.m. if the plaintiff is working).   Defendant shall have the children for the month of August with plaintiff having parenting time alternating weekends on the first and third weekend of the month from Friday at 5:30 p.m. until Monday at 9:30 a.m. (or 8:00 a.m. if the plaintiff is working).

Defendant's regular parenting time will be at such other times not designated as plaintiff's parenting time as set forth herein.

Defendant's residence shall be used for school choice.

Holiday Parenting Time:  The parties shall alternate all major holidays using an odd/even year formula.

Plaintiff shall have the children on New Year's Eve/Day, Memorial Day, Labor Day and Christmas Day at 12 Noon until 6:00 p.m. the following day in the odd numbered years and defendant shall have such holidays in even numbered years.

Defendant shall have the children on Easter, July 4th, Halloween, Thanksgiving and Christmas Eve until Christmas Day at 12 Noon in the odd numbered years and plaintiff shall have such holidays in even numbered years.

Mother's Day weekend (from Friday after school to Monday drop-off at school) shall be with defendant every year.

Father's Day weekend (from Friday after school to Monday drop-off at school) shall be with plaintiff every year.

Children's Birthday—the children shall remain with the parent having the children pursuant to the regular parenting schedule.   The parent that has the minor children on their birthday shall ensure that the other parent has telephone access with the minor children on their birthday.

School Vacations (mid-year):  The parties shall share the children's mid-year school vacations, when applicable.   If there are an uneven number of days to be divided plaintiff shall have the additional day.

All holiday and vacation time shall supersede the regularly scheduled parenting time.

During the transition of the children, no issues shall be discussed that are not immediately relevant to the minor children's care or arrangements for pick ups and returns for that transition only.

The defendant shall provide the children with adequate clothing, sports equipment for the transition to the plaintiff's home.   The defendant shall assist the children with packing the necessary items for the parenting time at the plaintiff's home, including during the vacation time.   Both parents shall promptly return clothing, sports equipment, school supplies, toys and games, or other items provided by the other parent as needed to facilitate the children moving back and forth between two homes.

The parents shall both be listed as person(s) to be notified in case of an emergency.   Their names, telephone numbers and addresses shall be listed on all school, caretaker, healthcare provider and activity records and updated within 48 hours of any change of information.

The parent who has responsibility for the children on a particular day may participate in activities such as field trips or athletic activities, but the other parent may attend if the general public is invited.   Neither parent shall interfere or create difficulties if both are attending an event involving the children.

The plaintiff and the defendant shall both have the right to be present with the children for medical check-ups and treatment.   Defendant shall notify plaintiff of regularly scheduled well care visits within forty-eight hours of making the appointment.   In case of an emergency, either parent shall take the children for treatment.   The other parent shall be notified as soon as practicable of the incident.

Information about the children's medication shall be exchanged by any parties.   Plaintiff and defendant shall both be entitled to complete and full information from any physician, therapist, psychologist, psychiatrist or similar type professional attending the children for any reason and from any teacher or school personnel giving instruction to the children.

The children shall continue to be known by the plaintiff's surname and the terms “mommy/mom” and the like and “daddy/dad” and the like will continue to be used to refer to the parties.

The defendant shall promptly arrange for the children to receive therapy.   Both parents shall be able to speak with the service provider(s) regarding the children's progress or to address ongoing concerns.

In matters concerning parenting, each party shall endeavor to further the best interests of the minor children and facilitate close ties between the minor children and the other party.   Neither party shall arbitrarily hinder nor interfere with the relationship of the minor children with the other party, and each party shall contact the other to discuss parenting arrangements with as much advance written notice as is reasonably practicable.

Each party shall be entitled to reasonable telephone contact (once per day, during reasonable hours of the day and evening, but in no event later than 7:30 p.m.) with the minor children while said children are in the care of the other, including holidays and vacations, at the expense of the contacting party.   When age appropriate, the minor children shall be entitled to unfettered telephone contact initiated by the minor children to each parent.

Each party shall keep the other reasonably informed as to the whereabouts of the minor children at all times when they are with the plaintiff or the defendant, as the case may be.   The parties shall provide each other with an advance itinerary listing the dates, addresses and telephone numbers of each place he/she intends to take the minor children at any time the minor child does not sleep at his/her residence for two or more consecutive nights during any period.

Each party shall keep the other informed of his/her place of residence and telephone number, cell phone number and work telephone number, and shall promptly notify the other of any changes during the minority of their children.   In the event a parent is unable to take his or her scheduled parenting time, the other parent shall be given the right of first refusal with a minimum of 24 hours advance notice for parenting the children.   If that parent refuses, the parent scheduled to have the children shall be responsible for providing a babysitter or other responsible third party, for the children at his or her home.

The court finds as a matter of fact that it is more likely than not that the parents would have provided support to their children for higher education or private occupational school if the family had remained intact.   Pursuant to the provisions of General Statutes § 46b–56c, the court reserves jurisdiction to determine educational support and each party reserves their respective right to file a future motion or petition for an educational support order.

The foregoing is found to be in the best interest of the children.

SO ORDERED.

BY THE COURT,

Olear, J.

[Editor's Note:  This memorandum of decision incorporates two minor corrections to scrivener's errors, issued by the court on the same date.]

Olear, Leslie I., J.