Olga Torres v. Jose Torres (2013)

MEMORANDUM OF DECSION ON POSTJUDGMENT MOTION FOR RELOCATION

PROCEDURAL BACKGROUND

This postjudgment custody matter was heard by the court on August 2, 2013.   Both plaintiff and defendant were self-represented.   The child's interest was protected by a guardian ad litem.

The parties' marriage was dissolved on November 25, 2002.   The plaintiff Olga Torres was awarded custody of the minor children, including the subject of this motion, J.T.

On May 7, 2012 the defendant father filed an ex parte motion seeking custody of J.T., alleging plaintiff had neglected J.T.'s mental health needs and J.T. no longer wished to live with plaintiff mother.   The motion was denied.

Defendant also filed a motion to modify seeking custody of J.T. The motion was filed on May 4, 2012.   On August 8, 2012 the parties reached an agreement relative to the motion to modify.   The parties agreed to joint legal custody with the defendant father to have primary custody.   Defendant father is a resident of Chicopee, MA. Plaintiff mother was to have weekend visitations in Hartford.   The agreement was accepted by the court.

Plaintiff mother filed an ex-parte motion on April 12, 2013 asking the court to prevent defendant from relocating to West Virginia.   The court granted the motion and scheduled a hearing on April 30, 2013.   On that date, Attorney Robert McLaughlin was appointed guardian ad litem for J.T.

Defendant father filed a motion for relocation on April 30, 2013.   Defendant seeks permission to permanently relocate with J.T. to West Virginia.

LEGAL DISCUSSION

When modifying a custodial order the court must determine if there has been a material change of circumstances since the entry of the last custodial order and whether the proposed modification is in the best interest of the minor child.  Malave v. Ortiz, 114 Conn.App. 414 (2009).   The defendant father's proposed move from Massachusetts to West Virginia constitutes a material change in circumstance.

General Statutes § 46b–56d controls postjudgment relocations.   When faced with a postjudgment relocation the court must determine whether the proposed relocation is for a legitimate purpose;  whether the relocation serves that purpose and lastly, whether relocation is in the best interest of the child. § 46b–56d.

“Among the various factors the court may consider when determining the best interest of the child are the parties' parenting skills, the child's emotional ties to each parent, the psychological instability of the parent and whether the child is in a stable and loving environment.”  Malave v. Ortiz, supra, 114 Conn.App. 414, 424.  “The best interest standard ․ is inherently flexible and fact specific and gives the court discretion to consider all of the different and individual factors that might affect a specific child's interest.”  Id., 421–22.

FINDINGS OF FACT

The defendant father resides in Chicopee, MA with his wife and son, J.T. J.T. is a soon to be 15–year–old.   He was permitted to move with defendant after an incident that occurred on April 10, 2012 when he was in eighth grade.   On that date the defendant was called to Hartford Magnet Trinity College Academy to discuss J.T.'s behavior and a letter J.T. had written concerning suicide.   Defendant was informed that on February 15, 2012 J.T. was referred to Wheeler Clinic for low self-esteem, anger and depression.   A follow-up appointment was scheduled for February 22, 2012.   J.T. did not attend the February 22 session and no further treatment was sought.   School officials saw deterioration in J.T.'s mood and recommended that defendant seek immediate treatment for his son.

Defendant alleges that when he discussed the issue with plaintiff mother, she indicated that J.T. was merely looking for attention and his behavior was a result of problems he was having with his girlfriend.

J.T. was subsequently hospitalized at the Institute of Living on two occasions.   He refused to see his mother during his second two-day hospitalization.   He was diagnosed as being bipolar, with PTSD, and with a mood disorder.   He discharged to the Institute of Living Child and Adolescent Day Treatment Program where he was an outpatient from May 23, 2012 to July 17, 2012.   He did well in treatment and defendant was an active participant in his recovery.   During therapy, J.T. “expressed feelings of being rejected and abandoned by his mother in the past.”   Plaintiff attended J.T.'s intake session and only one family session.

J.T. began living with his father and enrolled in Chicopee High School for his freshman year.   J.T.'s grades significantly improved;  he was elected Class President and has been active in sports.   His current counselor, Cheryl Powers, wrote that J.T. has done well in treatment and has been “very successful” while living with his father.   She believes that the move to West Virginia with defendant would be in J.T.'s best interest.

Defendant testified that J.T. has been to West Virginia several times to visit family and desires to relocate there.   Defendant plans to move to West Virginia for economic reasons.   He cited the lower cost of living and the family resources available to him there.   Defendant will live on a family farm where J.T. will be permitted to have a dog as recommended by his counselor.

J.T. wrote a letter to the court expressing a firm desire to be with his father and to relocate to West Virginia.   J.T. alleges physical and emotional abuse at the hands of his mother.   These sentiments were also expressed to the guardian ad litem.

The court also reviewed a letter written by J.T.'s sister, Olga Torres.¹  Ms. Torres affirms her mother's love for J.T. and denies plaintiff's physical abuse of J.T. She does not make a recommendation as to where J.T. should reside.

Plaintiff mother strongly objects to the proposed relocation.   She believes that J.T. should remain living with his father in Chicopee.   She wishes for J.T. to have a relationship with his two older sisters and his niece.   She acknowledges that she has not seen J.T. with any regularity.   She last saw J.T. on the weekend of March 17, 2013 and saw him sporadically before that time.   Plaintiff alleges that she does not have the financial means to travel to Chicopee and defendant has refused to transport J.T. to Hartford.   Plaintiff has not been in regular telephonic contact with the minor child.   Recent communications seem to be limited to J.T. texting plaintiff asking for permission to move to West Virginia.

Although the court does not doubt the love and concern that plaintiff mother has for J.T., the court finds that she failed to actively pursue visitation with J.T. The March 17th visit was arranged by defendant who called plaintiff and urged her to visit with J.T. The overnight visit did not go well due to conflict between J.T. and plaintiff.   The court also finds that plaintiff is unable to adequately address the minor child's mental health needs.

The guardian ad litem testified that he met and interviewed J.T., plaintiff, defendant, J.T.'s stepmother, J.T's sisters, and Cheryl Powers on at least two occasions.   He testified that the minor child wishes to relocate to West Virginia with his father and stepmother, and that the minor child feels his father provides him with calmness and stability.   The guardian also testified that J.T. looks up to his father and considers him a role model.   Defendant is able to give J.T. confidence.   Defendant has also made arrangements with a therapist in West Virginia in order to continue with J.T.'s counseling in the event they are permitted to relocate.   It is the guardian's strong recommendation that J.T. be permitted to relocate with his father to West Virginia.

The defendant father provides structure and stability for the minor child.   The defendant can more than adequately address J.T.'s mental health and educational needs.   Defendant's proposed relocation is purely for economic reasons and is not being sought for the purposes of negatively affecting the minor child's relationship with the plaintiff mother.   It is in the best interest of the child to relocate and remain in the custody of his father.

After reviewing the findings set forth above and applying statutory criteria applicable case law in light of the evidence presented, the court hereby ORDERS:

1. Defendant's motion # 148 Motion for Relocation is granted.

2. Defendant shall have sole legal custody of the minor child.

3. Plaintiff shall be entitled to weekly contact with the minor child via telephone, Skype, Face Time or other means of virtual visitation.   The parties shall keep each other informed of all telephone numbers and email addresses.

4. Defendant shall notify plaintiff of all important matters pertaining to the minor child.

5. Plaintiff shall have liberal access to visitation when she travels to West Virginia.

6. In 2014 and all years thereafter, the plaintiff mother shall have two weeks parenting time with the minor child during the summer months.   The plaintiff shall notify the defendant father of the weeks she intends to exercise no later than June 1 of each year.   Defendant father shall be responsible for 75% of the transportation costs and plaintiff mother shall bear 25% of the transportation costs.

7. The child shall spend Thanksgiving with the plaintiff mother in all odd years and with the defendant in all even years.   Thanksgiving shall be defined as 5:00pm on the preceding Wednesday until 5:00pm the Sunday after Thanksgiving.   Defendant father shall be responsible for 75% of the transportation costs and plaintiff mother shall bear 25% of same.   Defendant father shall be responsible for 75% of the transportation costs and plaintiff mother shall bear 25% of the transportation costs.

8. The child shall spend Christmas break with the plaintiff mother in all even years and with the defendant father in all odd years.   Defendant father shall be responsible for 75% of the transportation costs and plaintiff mother 25% shall bear of the transportation costs.

SO ORDERED.

BY THE COURT,

Ficeto, J.

FOOTNOTES

FN1. J.T. has two sisters who have reached the age of majority..  FN1. J.T. has two sisters who have reached the age of majority.

Ficeto, Anna M., J.