IN RE: Amber L. (2011)

MEMORANDUM OF DECISION

This matter comes before the court for the purpose of disposition of two separate but related matters.   Firstly, both mother and father have filed numerous motions in Family Court to modify the existing court orders entered at the time of the dissolution of marriage on January 14, 2011.   Secondly, mother filed a termination of parental rights petition in the Manchester Probate Court which was subsequently transferred to this court on the motion of the Guardian Ad Litem (GAL).   For purposes of judicial economy both matters were consolidated at the Rockville Juvenile Court under the juvenile proceedings.   All orders entered by this decision today will have full force and effect for both pending matters.

The court finds that proper notice has been given in accordance with the General Statutes and the Connecticut Practice Book. The court finds that it has jurisdiction in this matter.   Except for the above stated consolidation of matters there are no other actions pending in any other court affecting the custody of the minor child.

The court heard evidence regarding the contested issues of disposition on September 19, 2011.   Mother was represented by counsel.   Father was pro se.   The minor child's interests were represented by a court appointed GAL. During the hearing the court heard testimony from the following:  Theresa Wassenberg, Ph.D., Rockville Family Relations officer;  mother;  father;  and Attorney Thomas Fiorentino, GAL. The court received and reviewed exhibits submitted by both parties, as well as, a report from the Family Relations officer.   The mother filed proposed orders.   The father and the GAL gave their recommendations during the hearing.

At the onset of the hearing the mother withdrew her action to terminate the father's parental rights.   That matter was dismissed without prejudice by the court.   Having scheduled the entire day for the hearing the parties agreed to proceed with the family matter in Juvenile Court so as to not delay disposition of pending family motions should the case have to be returned to Family Court and rescheduled for a new hearing date.   The court dismissed the father's motion for contempt # 305 and motion for modification # 306 because both motions were filed prior to the father completing the parenting education program on July 22, 2011, and thereby violating the court order that he not file any new motions until such time as he completed said program.   Motion # 310–Request for Appointment of GAL-was previously ruled upon by the Family Court.   The court notes that the defendant mother has pending the following motions:

Motion to Modify Visitation (# 308)

Motion for Drug Testing, Evaluation and Treatment (# 309)

Motion for Urine Screens (# 310.50)

Motion for Contempt (# 316)

Motion to Suspend Visitation (# 317)

This decision resolves all pending motions.

Pursuant to family case law the moving party seeking a modification of existing orders must show that there has been a material change of circumstances since the prior order of the court, but the ultimate test is the best interest of the child.  Malave v. Ortiz, 114 Conn.App. 414, 42, (2009);  Payton v. Payton, 103 Conn.App. 825, 834 (2007).   The court should also be mindful of “the rights and responsibilities of both parents” and it “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.”  Connecticut General Statutes § 46b–56(b).  As to the mother's motion for contempt:  For an individual to be found in contempt the court must find that there is a valid court order, that it was violated, and that the violation was willful.   Mere failure to comply is not sufficient.  Bryant v. Bryant, 228 Conn. 630 (1994).   The court must find that the party's actions were a willful and deliberate disobedience of the court order.   The party seeking a finding of contempt has the burden of proof.  Statewide Grievance Committee v. Zadora, 62 Conn.App. 828 (2001).   After noncompliance with a court order has been established, the burden of showing a defense rests upon the alleged contemptor.

Accordingly the court finds the following facts by a fair preponderance of the evidence:

The parties were married on March 14, 2009.   Child's date of birth is January 16, 2010.   Father filed for divorce on May 4, 2010.   A judgment of dissolution was entered on January 14, 2011, by agreement of the parties.   Both parties enjoy joint custody.   Mother has primary residence.   A plan was set forth to allow the father access time with the child.   Said plan did not include any overnight access between child and father.   Support orders were entered taking into account father's arrearage.   Father has a history of substance abuse.   Mother relied on representations of clean drug screens to enter into dissolution agreement and access plan.   Shortly after the dissolution mother was advised of father's positive drug screens.   Mother improperly stopped father's access to child.   Father continues to “recreationally” use marijuana.   Pursuant to this court's temporary orders father's visits with child are supervised by KidSafe.   Said visits are proceeding appropriately.   Father did not cooperate with a court ordered family relation study;  meeting with the worker after the report was completed.   Mother and father cannot at this time properly co-parent.   Child has continuously resided with mother.   Prior to the dissolution father had minimal contact with child after he left the marital home.   Father did not comply with this court's order to complete a hair test until the last moment so that the results were not available for these proceedings.   However father did admit the test would be positive for marijuana.   Father has paid all but $555 owed to mother.   Father represented that he has an appointment with an individual counselor to seek assistance regarding his drug use.   Mother and father would benefit from parenting counseling.

DISPOSITION

Having carefully considered all the above as well as other evidence that was presented during the hearing and the respective statutory criteria for custody/visitation modification the court finds, by a fair preponderance of the evidence that a substantial change of circumstances exists from the date of the dissolution of marriage.   Having further considered the best interests of the child the court enters the following orders:

1. Mother's Motion for Sole custody is granted.   Mother shall have sole custody of the minor child.

2. Mother's motion to modify visitation is granted.   Father shall have supervised visitation of the child one time per week at KidSafe for an additional 3–5 visits as of this decision.   The cost of these visits shall be shared equally between mother and father.   If father does not attend a scheduled supervised visit without providing the appropriate required notice he shall pay the full cost of the visit.   If mother causes child to not be present for a scheduled visit without the appropriate required notice and father is present, she shall pay the cost of the missed visit.   Should father need further supervised visits with the child due to his non-compliance with these orders or upon recommendation of KidSafe not related to any fault on the part of the mother, father shall be solely responsible for the cost of additional visits.   Reports from KidSafe shall be submitted to the GAL.

3. Mother and father shall attend co-parenting sessions with Ms. Judith Clarke at KidSafe.   The cost of these sessions shall be equally shared by both parents.   During the period of supervised visitation and co-parenting both parents shall cooperate with Ms. Clarke's recommendations.   Ms. Clarke shall review father's compliance with these orders as well as those below to determine father's future access with the child.   Ms. Clarke shall not be bound by the dissolution of marriage agreement as to future visitation but shall report to the GAL her recommendations.   The GAL shall file a new access plan with the court no later than three (3) months from the date of this decision so long as father is compliant with these orders.   In no event shall father's access be greater than ordered by the original dissolution judgment.   In other words, the father, by complying with these orders, will be able to secure the same level of access to the child as agreed upon at the time of the dissolution of marriage.

4. Father shall attend his individual counseling session with Todd Shapiro.   He shall sign the appropriate releases so that the GAL and Ms. Clarke can speak with Mr. Shapiro or successor counselor regarding father's progress.   Father shall be solely responsible for the cost of his individual counseling sessions.

5. Father shall provide GAL with his federal ID number for purposes of verifying court ordered wage execution requirements.

6. Mother's Motion for Contempt is denied.   Father shall pay to the mother the balance of $555 by 5 pm on September 23, 2011.   Father shall not be responsible for any attorney fees associated with bringing the contempt motion.

7. Father shall cause to be delivered to the mother the court ordered weekly child support of $105 by bank check or money order by Tuesday of each week until such time as the wage execution becomes effective.

8. Mother shall inform father of matters related to child's health, welfare, education and extra curricular activities.

9. Neither parent nor significant other shall do anything which may estrange the child from the other parent, mislead the child as the continuing role of either parent, injure the child's opinion of their mother or father, not act in such a way as to hamper the free and natural development of the child's love and respect for the other parent.

10. All other orders from the dissolution of marriage not affected by this decision remain in full force and effect.

11. Neither mother nor father shall file a new motion affecting these orders without the consent of the GAL.

12. As previously ordered mother and father shall equally share the fees of the Guardian Ad Litem and arrange for the appropriate method of payment.

SO ORDERED

SIMON, JUDGE

Simon, Jorge A., J.