Michael A. Holman v. Wendy L. Smith (2013)

MEMORANDUM OF DECISION

This custody matter was tried before the court on March 21, and April 17, 2013.   Michael Holman is the father and Wendy Smith is the mother of three minor children:  Ryan Holman, born September 9, 2000;  Justin Holman, born December 4, 2002;  and Christian Holman, born January 6, 2004.   Neither parent was represented by counsel.   Each party testified at trial.   The Guardian ad litem and the family relations counselor who completed a custody evaluation also testified.   A number of exhibits were introduced at trial, including the family relations counselor's entire file and the custody evaluation report completed by the family relations counselor.

The court has carefully considered the statutory criteria as well as the applicable case law regarding custody, support, and other attendant matters.   The court has heard all the evidence, observed the demeanor of the witnesses, and carefully reviewed all the exhibits.   Based on all the credible evidence, the court makes the following findings:

The court has jurisdiction over the custody of the minor children.   The mother was born in Connecticut and has resided here continuously with all three children since 2007.   The parents were never married.   No other state has an interest in the custody of these children.   Ms. Smith receives cash assistance from the State of Connecticut and the children are covered under the state HUSKY program.

Mr. Holman came to Connecticut from California in 1998 to stay with his sister to convalesce from a mugging in which he was severely beaten and suffered a traumatic brain injury.   The parents met in 1999 through a mutual friend.   Ms. Smith has two children from a previous relationship, Michael Jalbert, now age 22, and Craig Jalbert, now age 20.   Mr. Holman has no other children.   Ms. Smith attended one year of high school before dropping out of school.   Mr. Holman attended one year of college.   Mr. Holman has been employed as a boat yard manager in a number of states, including Connecticut, Massachusetts, and Florida, throughout the period of time since the children were born.   Mr. Holman has not been gainfully employed for several years and has, over the past couple of years, identified himself as owning his own aerospace business, although he currently has no contracts or promise of income.   He remains ever optimistic, indicating to family relations almost a year ago and again to the court during trial that he can earn $80,000.00 a year at any time.¹  He has not paid child support in several years.

Ms. Smith has not been employed since the birth of her children other than providing child care for her neighbors' children.   Ms. Smith had a history of drug use and admits to engaging in prostitution to pay for her drugs until she learned she was pregnant with Ryan in 1999.   She was free from drugs when she gave birth to Ryan;  however, she relapsed prior to the birth of Justin, and was successfully admitted to a methadone program prior to Justin's birth.   Since that time, she has continuously been enrolled in a methadone program that tests her weekly for any illicit drugs.   She has not had a positive test since her enrollment in the program in 2002.   The parties dated for a period of time and then moved to Florida where Ms. Smith gave birth to their first child, Ryan. Ms. Smith's two older children did not accompany her to Florida, and after Ryan's birth she decided to return to Meriden with Ryan to be with her other children.   Mr. Holman was opposed to returning to Meriden, however, after Ms. Smith attempted to return with Ryan without him, Mr. Holman acquiesced in their return.   The parties resided together in Meriden where Justin and Christian were born.   In 2005, the parties and the five children moved to New Hampshire where they purchased a home.

Until 2006, the parties resided primarily together and jointly parented the children.   In 2006, the parties separated when Mr. Holman took the children to Washington State for a possible job opportunity.   Ms. Smith believed the trip was to be for two weeks.   When Mr. Holman refused to return the children at the end of two weeks, Ms. Smith filed an action in New Hampshire to have the children returned.   Immediately following Ms. Smith's initiation of legal proceedings, Mr. Holman notified Washington State officials that Ryan had disclosed to him that he had been sexually abused by Ms. Smith's nephew.   During the investigation by the Washington State child protection department, Ryan gave conflicting statements.   The children were returned to New Hampshire and when questioned further by the New Hampshire child protection department, Ryan indicated that no one had touched him, but his father had told him that he had been touched by the mother's nephew.   Mr. Holman was prosecuted in New Hampshire for filing a false statement.²  Since the 2006 incident, Ms. Smith has been the primary caretaker of the children.   An investigation by the New Hampshire Department of Children found no concerns regarding Ms. Smith, but requested that Mr. Holman undergo a psychological examination.   Mr. Holman left the state and no evaluation occurred.

Prior to the temporary relocation to Washington State, Mr. Holman was Ms. Smith's champion.   Since the children's return to New Hampshire, Mr. Holman has been in constant contact with governmental agencies and members of congress as well as states' attorneys general to convince the authorities that Ms. Smith poses a threat to the children.   Mr. Holman has filed a number of complaints against the respective agencies in Washington State and New Hampshire and the Judge and police in New Hampshire as a result of the allegations made during this period.   He testified that he has written over one thousand letters and filed complaints with numerous agencies in three states (Connecticut, Washington and New Hampshire) and at the federal level.

The events since 2006 have only fueled the serious divide between these parents.   The house the parties purchased in New Hampshire went into foreclosure, and in 2007, Ms. Smith and all five children returned to Meriden and resided with her family.   Mr. Holman was back and forth from other states, but continued to be in contact with Ms. Smith and the children.   After her return to Meriden, there was a drug raid at her home in relation to her older son.   Mr. Holman learned of the raid from one of his children.   He felt strongly that he should have been notified by the Department of Children and Families or the police and construes the lack of notice as part of a continued conspiracy to protect Ms. Smith from legal consequences by the authorities.

In 2008, Ryan was riding his bicycle without a helmet and was struck by a car.   He suffered a traumatic brain injury, was in a coma for a period of time, and continues to experience some delays, necessitating special education services.   Ms. Smith readily accepts responsibility for her failure to supervise Ryan. It is clear to the court that she suffers every day knowing that her child was seriously harmed in a manner that she could have prevented.   A Connecticut Department of Children and Families (DCF) investigation substantiated neglect against Ms. Smith and after an investigation and services were put in place, DCF determined that there were no continuing concerns regarding Ms. Smith's parenting.   Mr. Holman views the results of the DCF investigation and failure of the police to take action as further examples of the conspiracy by the authorities to protect Ms. Smith at the expense of his children.

Mr. Holman currently resides in a storage area that is connected to an office space owned by his sister.   He visits with the children at Ms. Smith's residence, where he often eats meals and takes showers.   He indicated to the family relations counselor a year ago and testified during trial that he could easily acquire an appropriate residence if the court would grant him sole legal and physical custody.   Mr. Holman has related to the school officials and many others that Ms. Smith has a history of heroin use and prostitution.   As a result of his behaviors, the children's teachers and school personnel refuse to meet with Mr. Holman alone.   In addition, in 2011, DCF began an investigation into allegations of physical abuse by Mr. Holman, charging that he had hit Ryan in the back of the head, as well as emotional abuse and emotional neglect regarding all three children.   Mr. Holman claimed that as a victim of a traumatic brain injury himself, he would never hit his son Ryan in the head.   Physical abuse was not substantiated, however, emotional abuse and emotional neglect as to all three children by Mr. Holman was substantiated.   The substantiations are consistent with the picture that was painted at trial through Ms. Smith's and Mr. Holman's own testimony.   The DCF investigator noted that Mr. Holman repeatedly denigrated Ms. Smith in the children's presence and continuously threatened the children that they would never see their mother again, causing the children alarm and concern.   Mr. Holman has refused to cooperate with services DCF has attempted to put in place and refuses to acknowledge that his statements and behaviors are negatively impacting the children.

Ms. Smith has her own apartment in Meriden that she and the children have occupied since Ryan came home from the hospital in 2009.   In addition to Ryan, Justin and Christian, she resides with her adult son, Craig.   Her other son, Michael is currently incarcerated.   The Guardian ad litem and the family relations counselor both report that Ms. Smith is a loving, attentive, and appropriate parent.   The children's teachers describe her as attentive and helpful, one of the most involved parents in the school.   DCF has no concerns regarding Ms. Smith's parenting.   Despite Mr. Holman's constant criticisms and complaints to and about Ms. Smith, she has continued to encourage a positive relationship between the children and Mr. Holman.   He has been able to freely visit the children and come and use her residence to take showers and eat meals with her family.

Mr. Holman seeks sole legal and physical custody of his minor children.   He argues that Ms. Smith is not a fit parent in that he believes, despite strong evidence to the contrary, that she continues with her drug abuse and prostitution, and that he can provide a stable and healthy environment.   He further argues that Ms. Smith has failed with her two older children and the only chance that these children have for success is to reside with him.   He posits that once this fight is over, he can focus on his career and provide a home for his children.   The fight he refers to is the conspiracy he has been fighting in which he believes Ms. Smith has been protected in the states of Connecticut, Massachusetts, and Washington by powerful police, child protection agencies, and the courts who have failed to listen to him.

Ms. Smith initially requested that the court order joint legal custody with primary residence with her.   She asked that the court allow Mr. Holman to visit every day if he wished, however, she asked the court not to allow the children to spend overnights with Mr. Holman until he has a residence to accommodate the children.   By the completion of evidence, Ms. Smith had modified her claims for relief to request sole legal and physical custody.

The guardian ad litem recommended that the parents share joint legal custody and that the children primarily reside with Ms. Smith.   The guardian ad litem believes that Mr. Holman has a great deal to offer the children.   She noted that Mr. Holman has musical talent he can share with his children, a fact that had not been raised by Mr. Holman.   She indicated that he has many talents that have become obscured by his focus on denigrating Ms. Smith.   The guardian ad litem also noted that the children love Mr. Holman.

The family relations counselor also recommends joint legal custody and primary residence with Ms. Smith.   He recommends that the current schedule that the parents have been following remain in effect.   That schedule allows Mr. Holman to visit with the children every other weekend on Saturday and Sunday from 10:00 a.m. until 7:00 p.m. and during the week upon agreement of the parties.

This case is troubling in every dimension.   The court readily recognizes that Mr. Holman has many attributes that could make him a good father.   Unfortunately, he is unable or unwilling to take full advantage of those attributes and is completely blinded by this quest to have Ms. Smith declared an unfit mother.   Ms. Smith's former and current circumstances have, on occasion, given rise to a reasonable concern.   For example, Ryan's accident, and the problems associated with Ms. Smith's two older children, are not unreasonable concerns for a non-custodial parent.   However, Mr. Holman does not respond to reasonable concerns in a reasonable fashion.   His focus on the past and constant denigrating of Ms. Smith creates an atmosphere of fear in his relationship with his children and deprives the children of experiencing the full benefit of Mr. Holman's attributes.   His presentation of evidence was glaringly vacant of testimony about his children and their individual needs.   In his Family Relations Intake sheet, he did not know his children's teacher's names and did not know the name of their pediatrician.   He is apparently unaware that he is hurting his children with his constant statements to them, their teachers and anyone else who he can get to listen about Ms. Smith.   Instead of helping Ms. Smith, he seeks to bring her down.   He fails to recognize or evince a shred of respect for the bond the children have with their mother and the relative stability she has continued to provide for the children in the absence of support from Mr. Holman.   Not only does he view any positive statements about Ms. Smith as a conspiracy, he also fails to provide any reasonable alternative for his children.   He presented no evidence that he could provide for his children or that he shared the type of bond with his children that would warrant removing the children from their home and their loving mother.

Ms. Smith has many challenges including a dearth of financial resources and limited employment possibilities.   She is constrained by poverty, lack of transportation, limited availability of mental health resources and continued maintenance of her sobriety.   Nonetheless, she has continued to provide a loving and supportive environment to the children under difficult circumstances.   Unfortunately, as is often the case, the trial in this matter further divided the parties.   Mr. Holman did not change his position.   Ms. Smith, on the other hand, presented convincing evidence that her previous claims for joint legal custody would be unworkable as long as Mr. Holman persists in his campaign to denigrate her.   However, if Ms. Smith were to have sole legal custody in the current atmosphere, the children might not have the benefit of Mr. Holman's input.   These children need both their parents.   Mr. Holman has the intelligence and background to assist in making beneficial decisions for his children if he can refrain from focusing on the past.

ORDERS

Accordingly, the court hereby enters the following orders:

1. The parents shall share joint legal custody of the minor children.   They shall confer on all major issues affecting the health, education and welfare of the children and make all good faith efforts to reach agreement on all such issues.   In the event that the parents are unable to reach an agreement on such major issues after making all good faith efforts to resolve any dispute, the mother shall have final decision making authority.   Ms. Smith shall inform Mr. Holman of any extracurricular or particular school events that the children are involved in so that he may attend.

2. The children shall primarily reside with Ms. Smith and she shall be solely responsible for making the day to day decisions for the children.   Mr. Holman shall be entitled to visitation every other Saturday and Sunday from 10:00 a.m. until 7:00 p.m. and such other times as is mutually agreed by the parties.

3. Neither parent shall disparage the other nor act in any manner to discredit the other parent in the presence of the children.   Each shall act in such a manner as to foster love and affection for the other parent.

4. Mr. Holman shall refrain from denigrating Ms. Smith in any manner that is likely to have an impact on the children, including but not limited to referring to Ms. Smith's past history of drug abuse and prostitution to school personnel and parents and friends of the children.   Such actions are harmful to the children.   Failure to adhere to this order may result in future restrictions on Mr. Holman's involvement in extracurricular and educational activities or in his parental access time with the children.

5. In that Mr. Holman has not had any appreciable income over the last several years, and currently has no income, the court cannot enter any child support orders at this time.   Mr. Holman shall be responsible for 50 percent of any unreimbursed medical or dental expenses for the children.   The court reserves jurisdiction to the State of Connecticut to open and modify these orders in light of the State's interest in this matter.

BY THE COURT

Maureen M. Murphy, Judge

FOOTNOTES

FN1. Mr Holman testified that he had earned $7,500 between the end of 2012 and January 16 of 2013 as a result of a short unsuccessful move to Florida, $2,500 of that income was attributed to relocation expenses.   He also testified that he earned $20 the previous week and $350 in February of this year.   He has not filed a tax return for several years..  FN1. Mr Holman testified that he had earned $7,500 between the end of 2012 and January 16 of 2013 as a result of a short unsuccessful move to Florida, $2,500 of that income was attributed to relocation expenses.   He also testified that he earned $20 the previous week and $350 in February of this year.   He has not filed a tax return for several years.

FN2. Mr. Holman did not indicate the resolution of those charges.   He did indicate at trial that he was charged with making a false statement, failure to appear and “jumping bail.”   He also indicated that he cannot return to New Hampshire because of the conspiracy between the authorities and Ms. Smith in New Hampshire..  FN2. Mr. Holman did not indicate the resolution of those charges.   He did indicate at trial that he was charged with making a false statement, failure to appear and “jumping bail.”   He also indicated that he cannot return to New Hampshire because of the conspiracy between the authorities and Ms. Smith in New Hampshire.

Murphy, Maureen M., J.