Danielle Morrone v. Timothy McDonald (2011)

MEMORANDUM OF DECISION

A review of the record reveals that the parties, never married, are the parents of two minor children, T. A. McDonald born January 10, 2005 and I. R. McDonald born March 31, 2010.   The parties appeared, together with counsel and the Guardian ad litem, for a trial regarding the custody, support and access of their minor children.

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

1. The parties, never married, are the parents of two minor children, T. A. McDonald born January 10, 2005 and I. R. McDonald born March 31, 2010.

2. The parties have been dating for approximately eight years and have been living together for approximately two years.

3. The parties separated on or about October 30, 2010.   The plaintiff claimed and the defendant denied that she was beaten and raped by him the previous evening.   She required medical attention for her injuries and those medical reports are consistent with her version of the incident.   The court finds the defendant's version of the incident not credible and questions much of his remaining testimony.

4. As a result of the separation, the plaintiff relocated to Rocky Hill, Connecticut where she rents a condominium.

5. The defendant continues to reside in Norwich.   He has an excellent support system for the children including his new girlfriend and his mother who is a stay-at-home mom who takes in the Department of Children and Families (DCF) placed foster children and is able to care for the children while he works.

6. The defendant left school in 10th grade but recently completed his GED. He has worked for the Department of Transportation for the past two years.   He has a criminal history but appears to be a concerned parent and focused on those responsibilities.

7. The plaintiff is presently unemployed but has worked as a dental assistant in the past.   It is her expectation to return to the workforce in that capacity.

8. The parties have been operating under a shared parenting order since July 6, 2011 with each parent having an alternating week with both children.   While that access schedule worked well during the summer vacation, it clearly would not work during the school year when T., the elder child, would be attending school.   In fact, these hearings continued until the day after T. was scheduled to start school.

9. Last year, T. attended kindergarten in Norwich as that is where the entire family resided until their October 30, 2010 separation;  he was scheduled to continue there into the first grade.   In the meantime, the mother had enrolled him in the Rocky Hill school system.

10. The father's parenting plan suggested that T. would attend the Norwich school and be with his father from Sunday at noon until Friday after school, spending weekends with his mother.   It was very important to the father that T. continue in Norwich youth football and in Norwich Little League.   His plan anticipated that I., now 17 months old, would be with the father from Sunday at noon until Wednesday evening each week having the children see each other only Sunday, Monday evening, and Tuesday evening.   He was at a loss to explain whether they would attend separate schools and what the effect would be on their relationship.   He did not appear interested in having as close a bond with his daughter as he has with his son.   The father would utilize his very capable and caring mother, who would care for the children while he was at work and his girlfriend to assist in the transportation.

11. The Guardian ad litem testified that she had a great wealth of experience from her many positions with DCF. She holds a combined JD/MSW degree.   She recommended that the parties share joint custody with primary residence with the mother, with the father having midweek visits as well as most weekends and significant summer access.

12. The court finds that the mother's plan has limitations in that it will rely on hired day care when she returns to the workforce and that her support networks are thin.   Nonetheless, the court finds that the mother's plan places as a priority, the children growing up together.   Moreover, the court finds that I. is much more closely bonded with the mother in all respects.

LEGAL DISCUSSION

General Statutes § 46b–56, which provides authority to render orders of custody, provides in relevant part:

(a) In any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children ․ Subject to the provisions of section 46b–56a, the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent ․ according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable ․ (b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests ․

(b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests.   Such orders may include, but shall not be limited to:  (1) Approval of a parental responsibility plan agreed to by the parents pursuant to section 46b–56a;  (2) the award of joint parental responsibility of a minor child to both parents, which shall include (A) provisions for residential arrangements with each parent in accordance with the needs of the child and the parents, and (B) provisions for consultation between the parents and for the making of major decisions regarding the child's health, education and religious upbringing;  (3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child;  or (4) any other custody arrangements as the court may determine to be in the best interests of the child.

(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:  (1) The temperament and developmental needs of the child;  (2) the capacity and the disposition of the parents to understand and meet the needs of the child;  (3) any relevant and material information obtained from the child, including the informed preferences of the child;  (4) the wishes of the child's parents as to custody;  (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;  (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;  (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;  (8) the ability of each parent to be actively involved in the life of the child;  (9) the child's adjustment to his or her home, school and community environments;  (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;  (11) the stability of the child's existing or proposed residences, or both;  (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;  (13) the child's cultural background;  (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;  (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b–120;  and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b–69b.   The court is not required to assign any weight to any of the factors that it considers.

“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), C.G.S. § 46b–56.   The rights, wishes and desires of the parents are also a factor to be taken into account.   Such considerations, however, must be subordinated to the best interest of the child.  Ridgeway v. Ridgeway, 180 Conn. 533, 541 (1980).

ORDERS:

1. The parties shall enjoy joint legal custody of the minor children with primary residence in the mother.

2. During the school year, the father shall have parenting time every Wednesday from after school until 8 p.m. and Fridays from after school until Sunday at 8 p.m. on the first, third and fourth weekend of each month.   If a Monday holiday follows his weekend, he shall be entitled to keep the children until Monday at 8 p.m. During the summer, when school is not in session, father's parenting time on Wednesdays and Sundays during his weekends shall include overnights ending on Thursdays at 8 p.m. and Mondays at noon.

3. During summer vacations, each parent will be entitled to nonconsecutive weeks each summer for vacation.   In odd-numbered years mother will have the first choice of weeks and in even-numbered years the father will have the first choice of weeks;  elections shall be made by June 15 of each year.

4. The father will have the children during February school vacation in odd years and the mother shall have the children during April vacation in odd years, which schedule shall alternate in even-numbered years.

5. The parties shall alternate major holidays one with the mother having Christmas eve until Christmas day at 1 p.m. and the father having the children from 1 p.m. until 8 p.m. For the Thanksgiving holiday the father will have the children from noon on Thanksgiving Day until the following day in even-numbered years and the mother shall have odd-numbered years.   For Easter, the father will have the children in odd-numbered years from 9 a.m. until 8 p.m. on Easter Sunday and the mother shall have them for even-numbered years.   For Halloween, the father will have the children from 4 p.m. until 8 p.m. on even-numbered years and the mother will have the children in odd-numbered years.   Each parent will have the children on Mother's Day and Father's Day respectively beginning at 9 a.m. and ending in accordance with the regular parenting schedule.

6. The father will be responsible for picking the children up at mother's home or at any other mutually agreed upon location for his parenting time and the mother shall be responsible for picking the children up at father's home or at any other mutually agreeable location.   Neither parent shall travel out of state with the children during their parenting time without 24 hours notice.   Either parent may utilize a responsible designee to watch the children or transport the children but the other parent should know in advance the identity of those individuals.

7. The father shall pay child support in the amount of $174 per week and 44% of any unreimbursed medical, therapeutic, optical, ophthalmological or dental expenses and work-related day care.   The father shall maintain major medical insurance for the benefit of the children.

8. Both parents will allow reasonable telephone contact between the children and the other parent.

9. The parties shall each be entitled to one dependency exemption for the children unless the mother's annual income for the year is less than $20,000 in which case the father will claim both children in that year.   When only one child is eligible to be claimed, the parties will alternate claiming that child's with the father taking odd years and the mother taking even years.

10. The father shall be entitled to enroll the children and extracurricular activities when they are under his care and the mother shall be entitled to enroll the children and extracurricular activities when they are under her care.

11. Neither party will make disparaging remarks about the other in the presence of the children nor permit others to do so.

Shluger, J.

Shluger, Kenneth L., J.