Jessica Iriarte v. Rodrigo Iriarte (2012)

MEMORANDUM OF DECISION

Procedural and Factual Background of the Case to date.

The plaintiff wife and the defendant husband married in November of 2009.   Their daughter was born on September 15, 2010.   Prior to the parties' separation in December of 2010, they lived as a family with the plaintiff's parents, in plaintiff parents' home.   Presently the minor child and plaintiff continue to reside with plaintiff's parents and the defendant resides with his parents in their home.   Said home is also shared with other family members and the defendant's five-year-old daughter from a previous relationship.

In January of 2011 the plaintiff mother made the first report to DCF in which she claimed that the defendant father had physically and sexually abused both herself and the three-month-old minor child.   Mother also reported the father possessed and/or viewed pornographic material from a computer.   As a result of said accusations, investigations by DCF and law enforcement commenced and father's parenting access was suspended from January to June of 2011.   Father's parenting time was reinstated in June of 2011 but in the form of one hour or less supervised visits at the SCSC supervised visitation program.

In September of 2011 when mother's allegations were not substantiated, father's parenting time was moved from Southern Ct. to unsupervised contact.   Shortly thereafter in September of 2011 the plaintiff mother made new accusations:  specifically that during a transfer of the minor child for father's parenting time the defendant father physically threatened both herself and the minor child.   Police were called and the defendant father was arrested.   A criminal protective order barring contact between the parties, except for telephonic contact about “child visitation” issued.   Although the plaintiff applied for a restraining order asking for protection for herself and the minor child, the family court declined to issue any protective orders regarding the minor child.   The family court did issue orders of protection regarding the plaintiff mother.   The protective order and restraining order remain in effect to date.

At some point around the same time as the above, the plaintiff mother believed that the defendant father had poisoned the minor child during his parenting time.   Reportedly, the minor child was initially seen at the HSR and discharged but en route home from the hospital, mother claimed the child began to projectile vomit and after consultation with HSR for a second time the child was transferred to YNH. The child was observed for 12 hours in the emergency room and blood was drawn and a chest x ray was obtained.   Mother's allegations of poisoning were determined to be meritless.

Since September of 2011 the parents have been operating under the following parenting access plan:

Joint legal custody, final decision making authority by mother.   Father parents the minor child Tuesdays and Thursdays from 4:30 to 7:30 p.m. and Saturdays from 10:00 a.m. to 2:00 p.m.

The minor child's grandparents and/or extended family on both sides have assisted with the transfer of the child between the plaintiff mother and defendant father for their parenting time.

On or about September 21, 2011 the parents agreed and the court therefore ordered them to both submit to a psychological evaluation.   The minor child's one on one interaction with each of her parents was part of the evaluation process.   Dr. Eric Frazier conducted the evaluations and authored a 33–page report dated February 17, 2012.  (Defendant's Exhibit A.) Upon receipt of said report the defendant through his counsel filed an emergency ex parte motion dated February 24, 2012.   The court deferred entering any ex parte orders but scheduled an expedited evidentiary hearing which commenced on February 29th and continued to conclusion on March 1st.   At the hearing the witnesses included Dr. Frazier, the defendant father, mother's present therapist, a DCF social worker, a former work supervisor of mother's ¹ and the minor child's guardian ad litem.

Legal Findings

C.G.S. 46b–56 accords this court jurisdiction over the custody and visitation issues regarding this minor child.   After having listened to the testimony and reviewing the exhibit and the history of this case the court concludes immediate changes in custody and parenting access need to be made to protect this minor child's physical and emotional well being.   While it is clear that both of these parents love their daughter and want her to remain safe, healthy and happy, mother's ability to parent is substantively flawed in that she is unwilling/unable to coparent with the defendant father.   When parents physically separate it is imperative that they figure out how to coparent under different roofs and when unable to coparent then the ability to parent is inevitably compromised.   In this case mother's impairment is extreme:  she harbors an irrational and intractable belief that the father poses a danger to the minor child.   Until or unless mother is disabused of said belief her parenting skills pose a danger to her child as will be explained forthwith.

Anytime anyone accuses someone of physically and/or sexually assaulting and/or threatening to endanger the life of a child, law enforcement, the state's child protection agency (DCF) and the judicial system commence actions and institute legal mechanisms aimed to protect the minor child.   Mother's accusations in January of 2011 and then again in September of 2011 triggered massive and extreme curtailment of the defendant father's parenting access to his daughter.   Mother's claims that the father sexually and/or physically assaulted and/or threatened the minor child and that he poisoned the minor child are baseless and thus the deprivation of father's parenting access that both he and the minor child were forced to endure was unwarranted.

The minor child's ongoing opportunity to develop a healthy and optimal father daughter relationship with the defendant will continue to be compromised under the present parenting access schedule.   This court credits Dr. Frazier's conclusion that mother is entrenched in her belief that father is a danger to the child and that said belief is completely inconsistent with reality.   This court concludes the plaintiff mother will continue to make unfounded and outlandish accusations regarding the minor child's well being when the child is in father's care.²  The extreme and explicit nature of mother's false accusations and the lengths she has gone to keep the minor child from being with father for over a year have resulted in the following damage:

(1) Said false accusations have logistically and emotionally disrupted the father-daughter relationship—a relationship already disrupted by the initiation of the dissolution action and the parties' physical separation from each other.   Any belief that because the child is of such tender years she is unaware and unaffected by mother's accusations is erroneous.   Father's limited parenting access and the circumstances by which said parenting time has been arrived at has adversely impacted the child.   The minor child and defendant father need to cultivate and nurture their relationship with one another—something that has been severely limited to date and it needs to be done under circumstances which do not subject the process to be microscopically scrutinized and derailed by plaintiff mother.

(2) Said false accusations have resulted in the minor child being subjected to investigations and examinations by law enforcement, the state's child protection agency, forensic and medical personnel and has resulted in the minor child being an ongoing subject of pendente lite judicial proceedings.

(3) Plaintiff mother's false accusations have deprived the minor child of her right to be sufficiently protected by her caregivers.   This minor child, given her age, is virtually nonverbal and one hundred percent dependent on her caregivers for her very survival.   People entrusted with her well being must be credible and believable reporters.   Mother has in effect cried wolf in the proverbial sense more than once and each time she has done so she has obtained the reaction and results she wanted.   Implementation of the layers of protection that have been needlessly put into place have come at a great cost in that moving forward if anyone (and the court is not referring to the father) were to truly do harm or try to do harm to this minor child, the plaintiff mother's ability to successfully communicate/report said harm must now be viewed in light of her prior false accusations.   In short, she has potentially compromised her ability to safeguard her minor child by jeopardizing her chances of being believed.

Moreover, for any parent to have to worry about correctly deciding whether to seek medical treatment for their child or to have to even unnecessarily hesitate to seek medical treatment for a minor child who has a cold, as was recently the case here, for fear a negative inference may be drawn by the court or state agencies or used by the other side to bolster their case, is compelling evidence of how this minor child, under the present custody and parenting plan, remains at risk.

This is a sad and alarming case that requires immediate intervention.   It is not the court's intent to punish either parent but rather to insure the child's ongoing physical and emotional well being.   Notwithstanding some of the testimony and/or representations made to court, the court is concerned about mother's ability to make rational and sound decisions regarding the court orders that will issue here today.   The court is trying to preserve the positive aspects of the mother-child bond that exists but at the same time the court is cognizant that the priority and focus must be on cultivating the father-daughter relationship and until the mother can prove to the court that she will do nothing to sabotage said work her contact with the minor child must be restricted.   The court understands and appreciates the drastic impact its orders will have and concerns about mother's ability to maintain her equilibrium are acknowledged, but the court is equally convinced there is no less intrusive alternative.   The ultimate goal is for the parents to evolve to the point where they can coparent;  something that mother is presently incapable of and/or unwilling to do.   To ensure everyone's safety and to get an accurate assessment of how the minor child adjusts to significantly greater time in the care of her father, and keeping an eye out for anyone or anything that may unduly interfere with or sabotage father's parenting, the court enters the following orders:

PENDENTE LITE PARENTING AND CUSTODY ORDERS

(1) The plaintiff mother shall immediately undergo a psychiatric evaluation and shall follow any treatment recommendations.   She shall remain in individual counseling.

(2) Upon clarification/modification from the criminal judge that said contact would not be in violation of the existing protective order, the parties shall begin to communicate with each other using Our Family Wizard and the GAL shall monitor said communication.   Until such clarification/modification is obtained, the written journal presently in use shall be the form of communication but paternal grandmother shall continue to make the written entries to ensure compliance with the protective order.

(3) The parties shall continue to share joint legal custody of the minor child but final decision making authority shall immediately vest with the defendant father.

(4) Father shall immediately assume physical custody of the minor child.   Mother shall have only supervised visitation with the minor child until further order of the court.   By agreement of the parties the minor child's godmother, a practicing attorney, shall supervise mother's parenting time until further order of the court or until alternative professional supervision can be identified and activated by agreement of the parties.   Mother shall at a minimum and consistent with the supervisor's availability and taking into consideration the schedules of all of the parties necessary to effectuate parenting access, have ten hours of parenting/week.   There shall be no overnight visitation between the minor child and plaintiff mother until further order of the court.

(5) Transition of the minor child shall occur with the assistance of third parties INSIDE the New Haven Police Department.   The New Haven Police shall be informed of the court's orders.

(6) Mother shall not have access to the minor child while physical custody is transferred to father today.   She may not return to her home to arrange the transfer;  the minor child's godmother will facilitate the physical transfer and only upon successful completion of said physical transfer to the defendant father via paternal grandmother may the plaintiff mother return to her home.   If mother or mother's relatives or supporters interferes with or hampers the physical transfer of custody, law enforcement shall immediately be notified.

(7) The defendant father shall immediately notify DCF of the court's orders and both parties shall cooperate with DCF.

(8) The parties shall report back to this court in six weeks (April 13, 2012) to inform the court of the compliance with the court's orders and the progress of the case.   This court will retain exclusive jurisdiction of this case until further notice and the court reserves the right to amend or alter these temporary orders as is necessary to ensure the minor child's bests interests.

(9) The father shall commence supportive counseling when reasonably feasible to do so as recommended by Dr. Frazier.

Bernadette Conway, Judge

FOOTNOTES

FN1. Mother's demotion and the testimony surrounding said demotion plays no part in this court's decision..  FN1. Mother's demotion and the testimony surrounding said demotion plays no part in this court's decision.

FN2. The court notes that more than eight months elapsed from the January 2011 accusations to the September 2011 accusations..  FN2. The court notes that more than eight months elapsed from the January 2011 accusations to the September 2011 accusations.

Conway, Bernadette, J.