Joseph M. Spencer v. Denise Spencer (2011)

MEMORANDUM OF DECISION

This postjudgment matter comes before the court as a follow-up to part of the orders entered by the court in its Memorandum of Decision issued January 28, 2011.   In that decision, the court ordered, inter alia, that the minor child Evan (d/o/b 2/10/1998) could attend eighth grade in Clinton, Connecticut if he achieved certain academic results.   This writing will not repeat the factual details or the reasoning of the court's orders as they are spelled out in detail in the January 28th decision.   In addition, the defendant filed a motion to modify custody (# 303) on June 17, 2011.

The court heard this matter in a half day hearing on July 27, 2011.   By the time of the hearing, all parties including the Guardian ad litem (GAL) had agreed that the minor child should be allowed to attend school for eighth grade in Clinton and, by necessity, live primarily with the defendant in that town.   All agreed, including the child's therapist, that it was best for Evan to have the opportunity to do this despite the fact that he was unable—or unwilling—to meet the academic goals set by the court in January.   The court indicated that it would not interfere with the agreement reached and the consensus that it was best for the minor child.   The remaining issues are, therefore, the defendant's motion to modify the order to give the defendant sole legal custody of the child;  and the parameters of the access schedule once Evan moves to Clinton.

Looking first to the motion to modify filed by the defendant.   In order for the court to change custody it must hold an evidentiary hearing and make a finding that there has been a material change of circumstances or that the order sought to be modified was not based on an evidentiary determination as to the best interest of the child.  Kelly v. Kelly, 54 Conn.App. 50, 57–58 (1999), Hall v. Hall, 186 Conn. 118 (1982);  see also Kennedy v. Kennedy, 83 Conn.App. 106, 114, cert. denied, 270 Conn. 915 (2004).

“The burden is on the party seeking modification to show the existence of a substantial change in circumstances.”  Jaser v. Jaser, 37 Conn.App. 194, 204 (1995);  Emerick v. Emerick, 28 Conn.App. 794, 802, cert. denied, 224 Conn. 915 (1992);  see also Walshon v. Walshon, 42 Conn.App. 651 (1996).

The defendant offered no evidence that there had been any substantial or material change of circumstances since the last court hearing about six months earlier.   All the issues remained the same as were heard in detail during the winter and were used by the court in forming its January 28th orders.   She did raise the issue of the minor child being diagnosed as being ADHD by his primary care physician.   That diagnosis is disputed and no admissible evidence was submitted to support the defendant's position.

It remains to decide what type of parental access plan would be best for the child and the parties.   Under the present orders, the father has sole legal custody and it was determined that if the child moved to Clinton, he would spend two out of three weekends with the plaintiff.   The court sees no reason to alter that order.   The plaintiff has demonstrated a willingness to compromise by agreeing to the change in primary residence and school despite the boy's failure to meet the standard set.   He has done so because it has been strongly recommended to him by the GAL and the child's therapist.   His significant relationship with his son should be preserved as much as is possible given the logistics created by the parents living a fair distance apart from one another.

One last issue is how the minor child's high school should be selected.   It was represented to the court that he had the opportunity to attend the E.O. Smith High School in Storrs, Connecticut because his father resides in Columbia, Connecticut even if he spends the next academic year in Clinton.   He would also be able to attend high school in Clinton.   All parties have requested that such decision be postponed until eighth grade has been successfully completed and the court agrees.

The court makes the following findings after considering all of the evidence presented to it and having considered the arguments of the parties:

1.  There has been no significant or material change in the circumstances relating to the care and custody of the minor child since the last court hearing;

2.  It is in the best interests of the minor child to live primarily with the defendant and attend school in Clinton, Connecticut for his eighth grade year and such a living arrangement must include some modification of the sole custody orders currently in place;

3.  It is important for the minor child to be allowed to spend significant time with plaintiff despite the change in primary residence;

4.  It is unclear whether the minor child has any learning disabilities although his academic performance has been below expectations;

5.  It is in his best interest for him to be allowed a sufficient period of adjustment to the new living and school arrangements before any further attempts to label him as being learning disabled are made;

6.  It is in his best interests to continue in therapy to assist him with adjusting to his new circumstances as well as to deal with his high conflict parents;

7.  It is appropriate to modify the child support orders given the change in the minor child's primary residence.   The calculation made by the court would indicate that the guideline amount would be $145 and a split of medical expenses 51%/49%;  and

8.  It is in the minor child's best interests to have the continued participation of the GAL.

Accordingly, having considered all the relevant statutory criteria as well as the case law, the Court enters the following ORDERS:

1.  The custody order shall remain as is.   The defendant's motion to modify (# 303) is denied;

2.  The primary residence of the minor child for educational purposes shall be with the defendant mother in Clinton, Connecticut at least through the end of the academic year 2011–2012;

3.  For as long as the minor child's primary residence for educational purposes is with the defendant, she shall have the authority to make day to day decisions and to authorize emergency medical care despite the fact that the plaintiff holds sole legal custody of the minor child;

4.  Father shall parent Evan the first and second weekends on a rotating three-week schedule, from Friday after school or 2:00 p.m. if there is no school until 7:00 p.m. This rotation shall begin with week # 1 beginning the weekend following the first full week of school;

5.  If Father has a day off during the week, he shall parent Evan on that day from after school until 7:00 p.m. Father shall give Mother at least 48 hours prior notice if he intends to exercise his parenting time;

6.  Mother shall parent Evan during the school week except for Father's day off;

7.  The minor child shall spend Monday school holidays with the parent who spent the contiguous weekend with him.   If father, then Evan shall return to Mother at 7:00 p.m. on Monday;

8.  Holidays shall be alternated or allocated as follows:

a.  Easter including Good Friday shall be with the parent whose weekend the holiday falls on;

b. Mother's Day and Father's Day shall always be with the gender appropriate parent.   The access shall begin at 7:00 p.m. the night before and end at 7:00 p.m. that night;

c. July 4th shall always be with the defendant;

d. Thanksgiving Day which shall be from after school on the prior Wednesday through Friday at 7:00 p.m. shall alternate with the plaintiff having even years and the defendant having odd years.   The balance of the weekend shall follow the regular weekly schedule;

e.  Christmas Eve which shall be from December 23rd at 6:00 p.m. through 9:00 p.m. on December 24 shall be with the plaintiff in even years and the defendant in odd years;

f. Christmas Day which shall be from December 24th at 9:00 p.m. through December 25th at 7:00 p.m. shall be with the plaintiff in odd years and the defendant in even years;

g. All other holidays shall follow the regular weekly schedule.

9. Vacations shall be alternated as follows:

a.  Christmas week school vacation shall be with the plaintiff in odd years and with the defendant in even years.   It shall run from December 25th at 7:00 p.m. through the day prior to the return to school at 7:00 p.m.;

b. February or Winter vacation shall be with plaintiff in odd years and the defendant in even years.   It shall run from the end of school through the Sunday prior to the return to school at 7:00 p.m.;

c. April or Spring vacation shall be with the plaintiff in even years and the defendant in odd years and shall run on the same schedule as the Winter vacation;

d. Summer vacation shall be shared on a two-week alternating schedule commencing with the first weekend after the end of school and ending before the last weekend before the return to school.   The parent with whom the child is residing shall have the minor child for the weekend preceding the start of school;

10.  The prior child support order is vacated and the plaintiff is ordered to pay to the defendant for the benefit of the minor child the sum of $145 per week child support and the parties shall share equally any unreimbursed or uncovered medical, dental, mental health or other related expenses for said child.   This new support order and the vacating of the current order shall begin with first full week of school for the academic year 2011–2012.

11. Miscellaneous orders:

a.  The parent whose access time is beginning shall provide the necessary transportation for the child;

b. Vacation time shall supersede the regular parenting schedule and the holiday schedule shall supersede both the regular schedule and the vacation schedule;

c. If the minor child needs to be seen by a doctor, dentist, etc. a stepparent is permitted to take him.   The other parent is to be notified as soon reasonably possible;

d. If either parent goes away with Evan during school or summer vacation time, the other parent shall receive an itinerary with addresses and phone numbers of where Evan can be reached, one week in advance of said vacation.   The parent who is with Evan shall facilitate Evan calling the other parent at least twice during that week;

e.  Evan shall have unrestricted telephone access to his parents;

f. Each parent shall be permitted to call Evan once per day when he is with the other parent;

g. Mother shall be responsible for providing Father with any and all school, extra-curricular, community, etc. information related to Evan and his activities by sending to him an email via Our Family Wizard web site or the Famundo web site.

i. The parties are to decide which one they want to use no later than August 15, 2011 if they cannot decide, the GAL will make the decision and that decision will be binding;

ii.  They are to enter all appropriate activities for the child on the calendar and shall list all persons rending services to the child in the directory, i.e., teachers, doctors, coaches, dentists, etc;

iii.  The GAL shall be provided access to the selected web site;

iv.  The defendant shall send her informational email every Friday and the plaintiff shall send his every Monday;

h. Neither parent shall disparage, denigrate or malign the other parent in front of Evan or within earshot, nor allow anyone else to do so;

i.  Evan shall continue in counseling with his current counselor, Beth Hankins, on a schedule that she recommends;

j. Neither parent shall allow any physician to prescribe any drugs for Evan for his alleged ADHD unless both parents agree;

k. The parents can change Evan's primary care physician to one in the Clinton area, but both parents must agree upon said physician.   If they cannot agree, then Evan shall remain with his current primary care physician.

l. The defendant shall continue to have final decision making authority regarding medical decisions for the minor child as ordered on January 28, 2011 subject to the same requirement of reasonable discussion with the plaintiff.   They are encouraged to ask the GAL to help them come to a decision.   They are also free to engage in co-parent counseling to help them resolve any such disputes;

m. The Guardian Ad Litem shall remain in the case until further order of the Court.   The court's previous orders regarding the payment schedule for the GAL's bill shall remain unchanged and her bill for future services as well as the cost of her participation in the most recent hearing shall be paid in the same fashion;

n. Any order not specifically changed by the above remains in full force and effect.

SO ORDERED.

BY THE COURT,

Adelman, J.

Adelman, Gerard I., J.