Heather Damian v. Charles Noyce, Sr. (2011)

MEMORANDUM OF DECISION

A review of the record reveals that the parties, never married, are the parents of one minor child, James Damian born May 18, 2007.   On July 17, 2007, the mother had initiated an application for emergency custody claiming that the father had been verbally and physically abusive to her during her pregnancy and during the actual birthing process in the hospital.   An order of emergency custody was granted by the court.   The parties entered into a temporary agreement giving to the mother sole custody and the father was given no visitation rights.   The mother also obtained a restraining order against the father.

On September 11, 2008, the matter was referred to Family Relations to evaluate whether the father should have any contact with the child and on November 17, 2008, the parties agreed that the father would have supervised visitation through the Access Agency for one hour per week.   The father has not visited with the child since March 2010 when the mother ceased going to the Access Agency for the visits due to her new child's impending cesarean section birth which rendered her bed-ridden for eight weeks.

The parties returned to court on July 19, 2011 regarding the father's motion to expand the visitation to unsupervised access and the mother's motion to modify the access to something less.   The mother was also seeking to modify the existing child support order of $31 per week.

The court heard testimony from both parties, the guardian ad litem, Melinda Fortin (the mother of his 15–year–old son), and Whitney Jones (the mother of his one-month-old child).

The court finds proven by a fair preponderance of the evidence the following:

1. The parties, never married, are the parents of one minor child, James Damien born May 18, 2007.

2. The father has not visited with the child since March 2010 when the mother ceased going to the Access Agency for the visits due to her new child's impending cesarean section birth.

3. The child is now four years old, lives with the mother and has not visited with the father since March 2010.

4. From November 2008 until March 2010, the father had supervised visitation in the presence of the mother one or two times per week.

5. The child has an affliction known as Apraxia which has rendered him virtually unable to speak.   The mother, who lives with her mother, her son and her infant has educated herself regarding this illness, sought appropriate medical and therapeutic care and is actively involved in the child's treatments.   She reports that the child does not adapt well to change and would likely have difficulty visiting with the father, not having seen him in almost 18months.

6. The father is presently living with the mother of his 15–year–old son with whom he does not have a romantic relationship, and the 15–year–old.   He has never visited with the child at issue without the mother being present.

7. The father was convicted in May 1998 of second degree child molestation for having had sexual relations with a 13–year–old girl.   He was sentenced to two years in prison and 18 years of probation.   During this hearing, there was no evidence for or against the proposition that his sexual misconduct at that time and under those circumstances would or would not give rise to sexual misconduct at this time with this child.

8. The father is a virtual stranger to his son.   He could not name his son's ailment, his school or his treating physician(s).

9. The parties have virtually no relationship or level of communication.   The mother reports that he has been physically and emotionally violent to her in the past and that he has a violent temper with her.

10. The father is sincerely committed to establishing a relationship with his son, due in part because his father never had a relationship with him.   Notwithstanding, it does not appear that he is presently equipped to have a meaningful relationship which would be beneficial to his son.

11. The Guardian testified that she is very concerned with the father's status as a registered sex offender.   She is also concerned that the child's inability to speak and the child's unfamiliarity with the father would make visits challenging at best and, perhaps, inadvisable altogether.   She recommended supervised visitation through the Access Agency only.

12. The father earned $600 per week and the mother earns $75 per week gross.   Giving the father credit for one other child which he supports, the presumptive child support order would be $85 per week.

“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), Connecticut General Statutes § 46b–56.   The court must also give consideration to the preference of a child or children if that child is of sufficient age to be capable of forming an intelligent decision.   The rights, wishes and desires of the parents are also a factor to be taken into account.   Both considerations, however, must be subordinated to the best interest of the child.  Ridgeway v. Ridgeway, 180 Conn. 533, 541 (1980).

ORDERS

1. The mother shall have sole custody.

2. The father shall have supervised access through the Access Agency one hour per week at his expense.

3. The mother shall be in attendance during the first four visits and then absent herself from the visiting room if, and only if, the child is agreeable.

4. Both parties will maintain medical insurance for the child if available at a reasonable cost which should not exceed 7 1/2 percent of their net pay.

5. The father shall pay child support in the amount of $60 per week and pay 60% of any unreimbursed medical, dental, therapeutic, and psychological expenses and work-related day-care expenses.   This is a downward deviation due in part to the father's providing some support to his newborn, the fact that he will have extraordinary visitation expenses and that the mother works only part-time while attending school.

6. After six months of supervised visits, the father may petition the court to expand his access with the child.

Shluger, J.

Shluger, Kenneth L., J.