Bryan F. Landen v. Kristen L. Landen (2012)

MEMORANDUM OF DECISION REGARDING DEFENDANT'S MOTION TO MODIFY (156), PLAINTIFF'S AMENDED MOTION TO MODIFY (167) AND PLAINTIFF'S MOTION FOR ATTORNEYS FEES (163)

A review of the record reveals that the parties were married on August 28, 2004 and are the parents of one minor child, Hunter Landon born April 3, 2005.   They were divorced pursuant to a marital settlement agreement on July 11, 2007 and have engaged in classic high conflict pre- and post-dissolution behaviors throughout the lifetime of their young child.

The father was granted sole custody pursuant to an agreement between the parties dated February 11, 2010 and the mother's access continued pursuant to the separation agreement of June 22, 2007 whereby she had every other weekend from Friday at 11:45 a.m. until Sunday at 5 p.m. and every Monday through Friday from 11:45 a.m. (after daycare) until 5 p.m.

On October 26, 2010, the parties entered into yet another agreement allocating Mother's Day, birthdays, Father's Day, rights of first refusal, travel plans, emergency contact information, information about school functions and afterschool activities, utilization of ourfamilywizard.com, co-parenting counseling through the Peace Program and a moratorium on filing any motions to modify for one year.   The mother filed the instant motion to modify one year and 14 days later.

The parties appeared, together with counsel and the Guardian ad litem on April 5, 2012.

The court has fully considered the criteria of General Statutes §§ 46b–56 and 46b–62 as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and arguments of counsel in reaching the decisions reflected in the orders that issue in this decision.

FINDINGS OF FACT

1. The father was granted sole custody pursuant to an agreement between the parties dated February 11, 2010.

2. The mother's court ordered access is every other weekend from Friday at 11:45 am. until Sunday at 5 p.m. and every Monday through Friday from 11:45 am. until 5 p.m.

3. The mother filed the instant motion for modification (156) because the child is no longer in day care which was the expectation of the existing court order.   The mother is seeking an order of joint custody, every other Thursday, every Friday overnight until Saturday at noon, a detailed parenting plan, a detailed summer schedule, the right of first refusal and a termination of the Guardian ad litem.

4. The father is seeking to have sole custody continue, that the mother have access during the school year Monday through Friday from after school until 5:30 p.m. and every other weekend from Friday after school until Sunday at 5 p.m. and on the week following the mother's weekend, she would have the child from Thursday after school until Friday morning at school.   During the summer, the father is proposing that the mother have the child from Monday through Friday 9 a.m. to 5 p.m., every other weekend and on the alternating weekends, from Thursday at 9 a.m. until Friday at 5 p.m.

5. The Guardian ad litem recommended that the father continue to have sole legal custody of the minor child and recommended the same access schedule as the father.   It is unclear to the court whether the Guardian ad litem adopted the father's proposal or vice versa.

6. The relationship between the parents has been punctuated by false reports to DCF, unnecessary calls to the police, extreme animosity toward one another, the interference with medical treatment and extracurricular activities, disputes over “my time,” missed vacations, arguments in the office of the child's physician, the firing of one therapist by the mother and the resignation of another therapist, and the reporting to DCF of a babysitter of the father which resulted in the father having great difficulty in finding babysitters.   By all accounts, joint custody would not work between these two individuals.

7. The mother reports to having suffered mental health issues and having been the victim of domestic violence.

8. The court finds that the best course of action would be to continue the father with sole custody, to not burden their relationship with attempting to coordinate a “right of first refusal,” that the mother continue to have access to all medical records and school records and that the parties spend as little time with one another as possible.

ORDERS

1. The plaintiff father shall continue to have sole legal custody of the minor child.

2. The defendant mother shall have access during the school year Monday through Friday from the end of school until 5:30 p.m. and every other weekend from Friday after school until 5:30 p.m. On the alternating weekends when the mother does not have the child, she shall have him from Thursday after school until Friday morning when she returns him to school.   The mother's overnight access with the child shall coincide with her nights off from work and if she must work during her overnight access, she will forgo that overnight access.   She shall notify the father by e-mail with 48 hours advance notice of that eventuality.

3. The defendant mother shall have access during the summer school break from Monday through Friday from 9 a.m. until 5:30 p.m. She shall continue to have every other weekend during the summer from Friday at 9 a.m. until 5 p.m. on Sunday evening and on the alternating weekends, from Thursday at 9 a.m. until Friday at 5:30 p.m.

4. At times that the father must travel for business, he may, but need not, request that the defendant mother have the child while he is away but he may also make other suitable arrangements for the child in his absence.   Those other arrangements shall not interfere with the mother's designated access time.

5. All exchanges shall occur at school or at the Benny's store which the parties have previously been utilizing.   Both parties shall remain in their cars and both parties shall come alone.

6. Each party will be entitled to two non-consecutive weeks of access during the summer months with 30 days advance notice.   If the selected weeks conflict, the mother's choice will be given priority in even-numbered years and the father's choice will be given priority in odd-numbered years.

7. The father shall be entitled to the February school break during odd years and the April school break in even years and the mother will have the reciprocal weeks.

8. The mother shall have the child on Mother's Day and on her birthday and the father will have the child on Father's Day and on his birthday.   The access time will start at 10 a.m. unless it falls on a school day, in which case, it will start at the end of school.   That access will continue overnight and the child will be dropped off at school the following day.

9. The father shall always have the child on Thanksgiving until such time as the mother does not work on that day, at which time the parties will alternate Thanksgiving with the father having even-numbered years and the mother having odd-numbered years.   Christmas Eve shall be defined as 3 p.m. on December 24 until Christmas morning at noon.   The mother shall have the child for Christmas Eve in even-numbered years and the father shall have the child for Christmas Eve on the odd-numbered years.   Christmas Day shall be defined as December 25 at noon until December 26 at 10 a.m. The father will have the child on Christmas Day in even-numbered years and the mother shall have the child on Christmas Day in odd-numbered years.   Easter, July 4, Memorial Day and Labor Day will go to whatever parent has the child on that day.

10. Both parties shall be entitled to attend all curricular and extracurricular activities.   Both parents will apprise the other of any scheduled medical, dental, scholastic, curricular or extracurricular activities.   The parties shall not attend the same parent-teacher conference.   The mother shall not attend the scheduled medical or dental appointments.

11. The parties shall share equally the cost of any extracurricular activities of the child.

12. The parties shall continue to communicate via ourfamilyWizard.com. Recognizing that the mother has paid the subscription fee for the past two years, the father will pay the subscription fee and renew same in October 2012 for the next two years.   Thereafter, the cost will be shared equally.

13. The court finds that the return to court and the utilization of the Guardian ad litem was in large part, the mother's fault.   The defendant mother shall be 100% responsible for the Guardian ad litem fees.   The court finds the Guardian ad litem fees in the outstanding balance of $2,330 to be reasonable and orders that the mother make suitable arrangements with the Guardian ad litem within 30 days, paying no less than $25 per week.   Notwithstanding the fact that some fees have already been paid by both parties, the court orders no offsets.

14. Each party shall be responsible for their respective attorney's fees.

15. In the event either party seeks to file a future motion to modify any aspect of the parenting plan, they shall be required to file a Request for Leave to Modify as provided for in Practice Book § 25–26, as amended.

Shluger, J.

Shluger, Kenneth L., J.