Gilbert Etienne v. Elizabeth Cruz (2012)

MEMORANDUM OF DECISION

A review of the record reveals that the parties, never married, are the parents of one minor child, Ivana Etienne born December 22, 2002.   The parties appeared, together with the Guardian ad litem before the undersigned on June 19, 2012.   The defendant was represented by counsel and the plaintiff was self-represented.   At the outset, the plaintiff made an oral motion for a continuance which the court denied.   This case had been pending for exactly 11 months.   It had been set down for trial on May 2, 2012 at which time the plaintiff fired his lawyer and requested a continuance of said trial.   He specifically requested a new trial date, approximately six weeks in the future and was given June 19, 2012 as his trial date pursuant to his request.   On the morning of trial, in support of his request for a further continuance, he indicated that he had spoken with, but had not hired, an attorney nor had that attorney filed an appearance nor did he know for certain when that attorney might be available.   The defendant objected to any further continuance and the request for a continuance was denied.   The court has fully considered the criteria of General Statutes §§ 46b–56, and 46b–56c as well as the evidence, applicable case law, the demeanor and credibility of the witnesses and closing arguments in reaching the decisions reflected in the orders that issue in this decision.

FACTUAL FINDINGS

The court finds that the following facts were proven by a preponderance of the evidence.

1. The parties, never married, are the parents of one minor child, Ivana Etienne born December 22, 2002.

2. The parties never lived together and the mother has been the primary caregiver throughout the life of the child.

3. The father is seeking custody of the child such that the mother would have only limited contact with the child although he was unable to articulate any shortcomings regarding her parenting.

4. The father was unable to identify the name of the child's doctors, dentist, teachers, best friend or the parents of any of her friends.   He correctly identified the name of her favorite television show.

5. The father has been a blackjack dealer at a local casino for approximately 16 years.   He resides with his 30–year–old son in a two-bedroom apartment in New London.

6. The father described the present access schedule as he or his son picking up the child from her school each school day and keeping her at his home until the mother collects her at approximately 5:30 p.m. The child then sleeps at mother's house each night and brings the child back to father's house each morning so he can bring her to school.   In addition, the child spends Sundays at the father's house.

7. The father delegates much of his caregiving to his adult son.   This is problematic since the son works nights and sleeps days and is often late in picking up the child at school at the appointed time.   In addition, on the father's Sunday, the father is often absent and the child is with a family member or left alone.

8. The child does not have her own room or bed in the home of the father and the father and his adult son do not appear sensitive to her needs.   They ridicule her about her weight, speak Creole, a language which she does not understand and do not appear to put the child's needs ahead of their own.

9. The father's claim for sole custody coincidentally arose at the very moment that the state of Connecticut filed an application for child support on the mother's behalf.

10. The mother is Spanish-speaking and was assisted by a Spanish interpreter.   She has worked for ten years as a housekeeper at one of the local casinos from Sunday until Thursday from 8:30 a.m. to 4:30 p.m. She is free each Friday and Saturday.   The mother is closely bonded with the child.   She has a modest but spacious apartment in New London and the child has her own bedroom.

11. The mother is supportive of a father-child relationship but is concerned that the father is neglectful, oblivious and disinterested regarding his parenting obligations.   She is concerned that the child is often left alone by the father and that the father is sleeping or otherwise preoccupied during his parenting time.

12. The Guardian ad litem testified that the parties should enjoy joint legal custody of the minor child with primary residence in the mother and that the father have access with the child from Saturday at 5 p.m. until Sunday at 5 p.m. and various days during the week so long as he is available.

13. The mother is agreeable to the recommendations of the Guardian ad litem.

ORDERS

1. The parties shall enjoy joint legal custody of the minor child with primary residence and physical custody and final decision-making in the mother.

2. The father shall enjoy reasonable visitation rights including every Saturday from 5 p.m. until Sunday at 5 p.m. The father will collect the child on Saturday and the mother will collect the child back on Sunday.   In addition, the father may have access with the child from 3:15 p.m. until 5:30 p.m., three days per week, if and only if he is available to be personally with the child and if he is prompt.

3. The child shall continue in therapy.   The child will be enrolled in an afterschool program on the days that the father is not personally available to spend time with the child.

4. The father shall take steps to educate himself about the child's dietary needs and will follow those instructions.

5. The father shall have suitable accommodations for the child to sleep overnight at his residence which includes the child having a bed in a bedroom designated for her use.

6. The court will defer to the magistrate's court for all financial orders.   The court will retain continuing jurisdiction regarding post-majority educational support.   The father shall be entitled to the dependency tax exemption in the even years and the mother shall be so entitled in the odd years.

7. Neither party will speak in a language which the child does not understand in her presence whenever possible.   Neither party shall transport the child in a motor vehicle unless the operator is licensed and insured.

8. Each party will pay to the Guardian ad litem the sum of $2,385.64 at the rate of $25 per week commencing July 15, 2012.

Shluger, J.

Shluger, Kenneth L., J.