Jesse Evans v. Tina Marie Evans (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S AMENDED MOTION FOR MODIFICATION OF CUSTODY, POST–JUDGMENT (# 183.00);  PLAINTIFF'S MOTION FOR ATTORNEYS FEES, POST–JUDGMENT (# 225.00) AND PLAINTIFF'S MOTION FOR PAYMENT OF GAL FEES, POST JUDGMENT (# 226.00)

This matter was heard by the court in two different segments.   The first hearing segment covered three days from June 24, 2013 through June 26, 2013, and dealt with the custody-related issues.   The second segment was on August 20, 2013, which dealt with financial matters.¹

The marriage of these parties was dissolved by the court, Gordon, J., based on an agreement on October 30, 2007.   Those orders, now almost six years old, were entered when the two minor children were five and two years old, respectively.   They are now eleven, and eight.   At the time the original orders were entered, the older boy was just beginning his education;  now both boys are well into their formal educational experiences.   It is time for an adjustment to be made.

General Statutes § 46b–56 provides in relevant part:  “In any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children ․ (b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests.”

“Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child.”  (Internal quotation marks omitted.)  Gillespie v. Jenkins, 127 Conn.App. 228, 232, 14 A.3d 1019 (2011).  “In any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children ․ The best interests of the child standard is the ultimate basis of a court's custody decision.  Perez v. Perez, 212 Conn. 63, 561 A.2d 907 (1989).   We have consistently held in matters involving child custody that while the rights, wishes, and desires of the parents must be considered, it is nevertheless the ultimate welfare of the child which must control the decision of the court.  In Re Appeal of Kindis, 162 Conn. 239, 242, 294 A.2d 316 (1972).”  (Citation omitted;  internal quotation marks omitted.)   Saltus v. Van Blaricom, Superior Court, judicial district of Middlesex, Docket No. FA 094011384 (April 7, 2010, Vitale, J.).

“The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ․ or to allow the parties to use a motion to modify as an appeal ․ Rather, the trial court's discretion includes only the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties ․ [I]ts inquiry is necessarily confined to a comparison between the current conditions and the last court order ․ The court must first consider what circumstances have changed warranting a custody change and then make a custody determination on the basis of the best interest of the child ․ 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 ․ In reaching a decision as to what is in the best interests of a child, the court is vested with broad discretion and its ruling will be reversed only upon a showing that some legal principle or right has been violated or that the discretion has been abused.” ²  (Citations omitted;  internal quotation marks omitted.)   Butler v. Butler, Superior Court, judicial district of New London, Docket No. FA 074106263 (July 29, 2009, Shluger, J.)

The current schedule is rather restrictive as to the plaintiff's time with the children and is limiting as to where and how the exchanges take place.   Additionally, although the parties share joint legal custody, the defendant has final decision making authority.   In reviewing the file as part of its pretrial preparation and seeing such orders in place, the court had expected to find a very high conflict set of parents with a long history of litigation and cross allegations of improper behavior.   Surprisingly, this file had little of that.   The file, for example, reflected that not one post-judgment motion for contempt had been filed by either party.   The plaintiff did file to modify custody in 2010 and the parties unsuccessfully went through mediation with Family Relations prior to the matter being referred for a full evaluation on December 10, 2010.³  Although that evaluation was completed on May 24, 2011, little happened in the court file prior to the present trial.⁴

The court heard testimony from the two parents, the Family Relations evaluator, the guardian ad litem (GAL) and one brief character witness for the defendant.   Both sides submitted into evidence a voluminous number of emails between the parties.   The plaintiff believed that the emails proved how well the parents were able to reach co-parenting decisions;  the defendant, however, believed the opposite.   The understanding that the court developed from the testimony and the exhibits was that the two parents had very different parenting styles and that the conflict between those styles caused considerable friction.   Despite the difference, however, they were fairly successful at co-parenting;  the process was, nonetheless, painful for both of them and not performed easily.⁵

The plaintiff was clearly frustrated by the lack of access he had to his two sons.   His parenting time was limited to alternating weekends and two very short midweek periods.   He is not allowed to pick the boys up from school and with very few exceptions, he is not to return the boys to school;  the defendant insists that she be the intermediate stop for all exchanges.   He also expressed frustration over her final decision making authority.   Despite such frustrations, he has followed the court orders.

The defendant is also very frustrated.   She perceives the plaintiff as being combative in his dealings with her.   She claims that he bombards her with emails and texts and that those communications are filled with half truths and omissions.   Co-parenting with the plaintiff, she claims, is overly complex and prolonged for no valid reason.   Despite that, the record is clear that no one has ever accused the defendant of misusing her final decision making authority.

Without exception, the evidence presented to the court regarding the faults of the other parent, whether it was about homework assignments, unreported rashes, unreturned clothing and the like, did not amount to a significant justification for restricting one parent's access to the minor children or favoring one parent's authority over the other.   Almost all of the incidents described to the court might well occur in any family, intact or not, and unless those incidents occur during a custody dispute, they are quickly forgotten.⁶  Despite the fact that the access schedule has remained essentially unchanged since October 2007, every witness recognized the fact that a more liberal schedule was appropriate.   Even the defendant appeared to be accepting of that position, although she still wants the children to go through her and to be picked up or returned to the school directly.   That position is endorsed in part by the GAL, and the Family Relations recommendations also seem to continue that restriction.   The court sees no reason for it and finds that exchange through the school might well eliminate some of the face to face meetings that could be troublesome on occasion.

The defendant simply does not trust the plaintiff to be careful enough or detail oriented enough to provide for the needs of the boys.   She wants to be in control.   In some very telling testimony, the defendant described her parental role as being the “taskmaster” and the “ringleader.”   The court was surprised by her use of those terms and counsel for the plaintiff raised the use of such terms during cross examination of the defendant.   When challenged, the defendant retreated in her use of those specific descriptive words, but they were nevertheless very telling of her perception of her role.   That is not a healthy perception for her to have.   There was testimony that although the children have been generally kept out of the parental conflict,⁷ they are beginning to question the arrangements more and more as they get older.   It is time for an adjustment.

Given the abovementioned frustrations that both parties have displayed in co-parenting, and the friction that exists because of the parenting differences, the court finds that the parties also need some tools to support their efforts in co-parenting.   See generally Feinberg v. Feinberg, 114 Conn.App. 589, 596, 970 A.2d 776 (2009) (“the court must ․ take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children's growth, development and well-being ․ At the same time, however, the focus of the court's inquiry must be designed to meet the primary objective which is to determine the present parenting ability of the parties.”  [Internal quotation marks omitted] ).   The court has found the use of internet based parental communication sites, such as OurFamilyWizard.com, are extremely helpful.   Such programs offer tamper-proof communications between the parents that are computer time stamped both as to when the message is sent, but also as to when the message is viewed by the other party.   Third parties, such as the GAL, are able to monitor the communications, which often has the effect of improving the tone and tenor of the messages.   A calendar is available for scheduling the child's activities and it records who puts the item on the calendar and when.   Online-shared calendars can help to avoid the scheduling pitfalls of parenting from separate households.   Using a shared online calendar can also keep both parties informed without the danger of additional, and potentially, negative input.   An information bank keeps both parents up to date as to all providers of service to the children with contact information as to the teachers, doctors, coaches, etc.   There is also a page that allows each parent to post expenses for which they might seek reimbursement.   That is also time stamped and tamper proof.   There is even an iPhone app for access to the program when the parents are away from home.

The GAL in this matter has done admirable work and that is perhaps part of the reason for the lack of constant litigation.   Another reason is the fact that both parties have accepted and followed the court orders despite their unhappiness with those orders, as well as each other.   That is to be commended.   Finally, the attorneys must also share some of the credit for keeping the matter in hand until a full hearing could be scheduled.

Despite the above, each party believes that the other is the cause of the dispute and the reason for the very drawn out litigation.   The court disagrees.   As previously mentioned, both parties have followed the court orders with diligence and respect.   They have had their serious disputes and have filed their motions, but there is no evidence in the file, or anything that was elicited in testimony, that either has misused the judicial process in anyway or has acted in bad faith.   The plaintiff blames the defendant for not agreeing to give him more access to the children and the defendant blames the plaintiff for being difficult and creating problems in their communications.   The defendant points to the plaintiff seeking a second family relations evaluation as something that delayed the resolution only for the plaintiff not to accept its recommendations.   Such is not productive argument.   The first evaluation was clearly stale and would not have been appropriate for use in the current trial and certainly not accepting a recommendation is hardly proof of bad faith.   Additionally, the second evaluation was done by court order after vigorous argument by both sides.   It was not something that the plaintiff just did on his own volition.   The plaintiff points to the defendant as being too controlling and refusing to be more flexible in the scheduling.   The evidence is quite mixed on that point and although the formal schedule was rather limited, in reality the plaintiff had significantly more contact with the children than the schedule might suggest.   This was an honest dispute from the point of view of each parent.   Additionally, the awarding of legal fees in postjudgment matters pursuant to General Statutes § 46b–62 is based on the economics of the parties and not necessarily their conduct.   See Foster v. Foster, 84 Conn.App. 311, 325, 853 A.2d 588 (2004) (holding that a party's conduct during post-judgment proceedings is not a consideration in awarding attorneys fees;  such fees cannot serve as punishment).

General Statutes § 46b–62 states:  “In any proceeding seeking relief under the provisions of this chapter and sections 17b–743, 17b–744, 45a–257, 46b–1, 46b–6, 46b–212 to 46b–213w, inclusive, 47–14g, 51–348a and 52–362, the court may order either spouse or, if such proceeding concerns the custody, care, education, visitation or support of a minor child, either parent to pay the reasonable attorneys fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b–82.   If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney or may order the payment of the attorneys fees in whole or in part from the estate of the child.   If the child is receiving or has received state aid or care, the compensation of the attorney shall be established and paid by the Public Defender Services Commission.”

In seeking to obtain a contribution toward the payment of legal fees and other related litigation expenses, each party has attacked the other party's financial affidavit.   The plaintiff pointed to the fact that the defendant's decision not to be employed outside of the home was her voluntary decision and that she has ample assets with which to pay her bills.   He did not, however, provide the court with any evidence as to the defendant's earning capacity other than a possibility of receiving some rental income from her Clinton, Connecticut property.   That property was, according to the testimony, now under a listing agreement with a realtor and would be listed for sale very shortly.

The defendant pointed to several clear flaws in the reporting of income on the plaintiff's affidavit.   He annualized his commission income rather than provide a current average and he included depreciation in a calculation of his cash flow from his real estate investments in Brooklyn, New York. Additionally, the defendant successfully demonstrated that she was finding it necessary to liquidate assets she received as part of the dissolution in order to fund the litigation.   Based on the court's reading of the respective financial affidavits of the parties and the other evidence presented, the plaintiff is, at this time, better able to shoulder this financial burden than the defendant.   See, e.g., Bauer v. Bauer, Superior Court, judicial district of Harford, Docket No. FA 03 0733285 (November 8, 2011, Barall, J.T.R.) (although in context of case pending before Supreme Court, court referred to financial affidavits of both parties and found that “defendant's financial position is so much better than the plaintiff's and this permits him to bear the greater financial burden of the final litigation in accordance with General Statutes §§ 46b–62 and 46b–82”).

As our Appellate Court has reemphasized:  “It is the sole province of the trial court to weigh and interpret the evidence before it and to pass on the credibility of the witnesses ․ It has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action.”  (Emphasis in original;  internal quotation marks omitted.)   Zahringer v. Zahringer, 124 Conn.App. 672, 679–80, 6 A.3d 141 (2010).   After reviewing the testimony of the parties, including their demeanor during their testimony as well as during the rest of the trial, and the exhibits presented to the court in consideration of the statutory criteria and the applicable case law, the court makes the following findings of fact:

A.  There has been a significant change in circumstances to warrant a modification of the custody orders.   Said change being the increased age of both children and inadequacy of the current schedule to meet their needs for a meaningful relationship with both parents;

B. The defendant has never abused her final decision making authority;

C. The co-parenting communication between the parties requires a more rigid and formal format designed to minimize conflict in the co-parenting process;

D. Neither parent has contributed to this post-judgment dispute more than the other;

E.  The plaintiff has a weekly income at this time, net of allowable business expenses and taxes, of $1,512 and the defendant has no current income;  and

F. The fees of the GAL from September 11, 2012 through and including the trial session on August 20, 2013 appear to total $10,735 subject to adjustment upon further claim by the GAL. Those fees are found to be appropriate for this case.

Based on the findings of fact listed above, the appropriate case law and the statutory criteria of General Statutes §§ 46b–56, 46b–62 and 46b–82, the court hereby

ORDERS

1. The plaintiff shall have primary parenting responsibility for the two minor children as follows on a rotating two-week schedule: ⁸

a. In week number one—Monday pick up from school with return to school on Tuesday and Friday pick up from school with return to school on the following Monday;

b. In week number two—Wednesday pick up from school with return to school on Friday;

c. If there is no school on any exchange day, the exchange time shall be 9 a.m.;

2. School vacations

a.  The parties will alternate having the children during the school vacation periods;

i.  If there is a winter recess and a spring recess, the defendant will have the winter recess in even years and the spring recess in odd years and the plaintiff will have the opposite;

ii.  If there is only one such recess in an academic year, the defendant will have the first recess and the plaintiff the second alternating thereafter;

b. Each party shall be entitled to two weeks exclusive vacation time with the children each summer;

i.  The weeks do not have to be taken as a single vacation, but they may;

ii.  Each week will consist of seven (7) consecutive days and shall include that parent's normal weekend access;

iii.  All other provisions of summer vacation planning not specifically altered by these orders shall remain unchanged from the current orders of October 30, 2007;

c. Holiday access shall remain as is under the current October 30, 2007 orders;

3. Each parent shall faithfully administer all medications to the children as prescribed by that child's physician as well as follow all other prescribed medical treatments;

4. The parties shall consult with one another on all significant, non-routine decisions involving the health, education, religion and general welfare of the minor children;

a.  Day to day decisions shall be made by the parent with whom the child(ren) is in accordance with the detailed schedule discussed below;

b. Neither parent shall make a non-emergency unilateral decision or take nonemergency unilateral action regarding the children;

c. Significant, non-routine decisions shall include but not be limited to the following areas:

i.  Selection of schools and educational decisions;

ii.  The residence of the children;

iii.  Daycare providers including after school and summer camp programs;

iv.  Participation in extra curricular activities that require commitments of time and transportation involving the other parent;

v. Non-emergency medical, dental, psychological, psychiatric or orthodontic care including the selection of the care providers;

vi.  Participation in religious organizations and activities;  and

vii.  Trips away from home without a parent that involve a distance of more than fifty (50) miles, leaving the state of Connecticut or overnight stays;

d. Either parent may propose to the other a course of action as to such mutual decisions;

i.  The proposal, as well as all subsequent communications, must be in writing and shall contain sufficient information and appropriate documentation as necessary to fully explain the complete nature of the intended decision;

ii.  The other party shall, within twenty-four (24) hours, indicate approval or indicate disagreement and offer an alternative proposal to which the first parent must respond within twenty-four (24) hours;

iii.  Either party may request additional information or offer modifications of their proposal;

iv.  The twenty-four (24) hour reply rule will apply to all communications;

v. Any failure to respond to a proposal, request for more information or failure to provide an alternative proposal shall be considered an agreement by the non-communicating parent absent a valid reason for the delay;

vi.  The process will end when the parties agree, accept that they cannot agree on one plan or after two weeks, whichever first occurs;

vii.  In the event of no agreement and compliance with the procedure detailed above, the defendant shall have the final authority to make the decision;

5. The parties shall communicate information regarding the children to one another on a daily basis.

a. The parent in primary charge of the children that day shall provide the required information to the other parent;

b. Said information shall include, but not be limited to, the following:

i.  What medications or other medical treatments each child was given that day;

ii.  What school assignments other than the regular nightly homework might have been assigned;

iii.  Any changes in the children's schedule or any new social activities being planned;

iv.  Copies of any notices sent home by the school, sport teams or any other organization in which either child participates, as well as any social invitations involving the children;

c. Said information shall be sent no later than 10 p.m. each day provided that the children spent at least part of that day with that parent;

6. All written communications between the parties shall be done via OurFamily Wizard.com;

a.  The parties are ordered to visit the OurFamilyWizard.com website, take the tour by clicking on the “Families” tab on the main page, and each establish a parent account to utilize the tools listed in the “Services” tab;

b. Each shall enroll in the program for a one-year subscription no later than August 28, 2013;

c. The parties shall thereafter not e-mail each other directly regarding issues relating to the children, but shall post all communication exclusively on the website;

d. If a parent posts a message on the website that requires a response by the other parent, such parent shall respond within twenty-four (24) hours unless it is clear from the message itself that a longer response time is acceptable;

e.  They shall each be responsible for maintaining their account with the web site in good standing at their expense;

f. They shall take all necessary steps to allow the GAL to monitor the site which shall include the emails back and forth, as well as the children's calendar and list of service providers;

g. Each party shall enter all appropriate activities for the minor children on the site calendar in a timely fashion.   The failure to attend an activity not so listed shall not be considered a failure to obey the parenting schedule;

h. All providers of services to the minor children shall be listed promptly on the web site including, but not limited to, her teachers, coaches, doctors, counselors and therapists;

i.  In the event of an illness, the pertinent information regarding such illness, medical appointments and medications shall be posted immediately.   Such information should be sufficient to allow both parents to know the status of the children's illness, the care required for the children including all medications and the appropriate dosages of such medications;

7. The GAL shall remain actively involved in this case without further court order until June 30, 2014 and shall monitor the OurFamilyWizard activity of the parties on a regular basis as well as other involvement as she deems appropriate;

a.  All such work shall be billed by the GAL at her previously disclosed rate of $300 hourly;

b. A monthly fee based on that rate of two hours for the monitoring as indicated above is preapproved by the court and any further fees may be submitted for approval;

8. The GAL's billing for her work in this file from September 11, 2012 through and inclusive of the trial session on August 20, 2013 in the amount of $10,735 is approved;

a.  Any claim for bills prior to September 11, 2012 or any adjustment to this amount shall be filed with this court by the GAL within one week of the issuance of this memorandum of decision;

b. Any objections shall be filed within one week following the additional claims and the court shall take the matter “on the papers” unless any party requests a hearing in the objection;

9. The plaintiff shall be responsible for 70 percent of the GAL's fees and the defendant shall be responsible for 30 percent;

a.  This division of liability shall be applied to all GAL fees as of September 11, 2012 going forward, and the GAL shall recalculate her billing as of that date and provide those revised bills to the parties and counsel;

b. Each party shall pay their respective fee to the GAL no later than October 31, 2013, unless other arrangements have been made with the GAL;

c. The GAL shall not be required to refund any money to either party caused by this reallocation of liability until she receives payment in full of her bill as approved above;

10. Each party shall be solely liable for their own legal fees resulting from this matter;  and

11. All other orders not specifically modified by these orders shall remain in full force and effect.

Adelman, J.

Evans v. Evans Access Schedule

Week Sun Mon Tue Wed Thur Fri Sat

# 1 M M/D D/M M M M/D D

# 2 D D/M M M/D D D/M M

FOOTNOTES

FN1. The GAL was allowed to report some concerns at that second segment hearing as she had filed a request for a status conference that had been scheduled for September 3, 2013.   She was allowed to speak on August 20th rather than having all parties and counsel return for yet another court appearance.   Her concerns were related to the custody portion of the trial which had already been completed.   The defendant urged the court to hear evidence on those concerns while the plaintiff argued that he was not prepared and had not been advised of this information being given to the court.   The court declined to hear further evidence.   The court found that based on the representations of the GAL, none of the items she wished to address would significantly alter the court's already formed view of the custodial issues based on the evidence presented during the first segment of the trial..  FN1. The GAL was allowed to report some concerns at that second segment hearing as she had filed a request for a status conference that had been scheduled for September 3, 2013.   She was allowed to speak on August 20th rather than having all parties and counsel return for yet another court appearance.   Her concerns were related to the custody portion of the trial which had already been completed.   The defendant urged the court to hear evidence on those concerns while the plaintiff argued that he was not prepared and had not been advised of this information being given to the court.   The court declined to hear further evidence.   The court found that based on the representations of the GAL, none of the items she wished to address would significantly alter the court's already formed view of the custodial issues based on the evidence presented during the first segment of the trial.

FN2. Further, General Statutes § 46b–56(c) states:  “(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:  (1) The temperament and developmental needs of the child;  (2) the capacity and the disposition of the parents to understand and meet the needs of the child;  (3) any relevant and material information obtained from the child, including the informed preferences of the child;  (4) the wishes of the child's parents as to custody;  (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;  (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;  (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;  (8) the ability of each parent to be actively involved in the life of the child;  (9) the child's adjustment to his or her home, school and community environments;  (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;  (11) the stability of the child's existing or proposed residences, or both;  (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;  (13) the child's cultural background;  (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;  (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b–120;  and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b–69b.   The court is not required to assign any weight to any of the factors that it considers.”.  FN2. Further, General Statutes § 46b–56(c) states:  “(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:  (1) The temperament and developmental needs of the child;  (2) the capacity and the disposition of the parents to understand and meet the needs of the child;  (3) any relevant and material information obtained from the child, including the informed preferences of the child;  (4) the wishes of the child's parents as to custody;  (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;  (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;  (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;  (8) the ability of each parent to be actively involved in the life of the child;  (9) the child's adjustment to his or her home, school and community environments;  (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;  (11) the stability of the child's existing or proposed residences, or both;  (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;  (13) the child's cultural background;  (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;  (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b–120;  and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b–69b.   The court is not required to assign any weight to any of the factors that it considers.”

FN3. The plaintiff filed his motion to modify custody on April 9, 2010 (docket item # 180.00) and then filed an amended motion for modification in late June 2010 (docket item # 183.00)..  FN3. The plaintiff filed his motion to modify custody on April 9, 2010 (docket item # 180.00) and then filed an amended motion for modification in late June 2010 (docket item # 183.00).

FN4. The delay, for whatever reason, required the court to order an updated family relations evaluation on September 11, 2012 (docket item # 222.00)..  FN4. The delay, for whatever reason, required the court to order an updated family relations evaluation on September 11, 2012 (docket item # 222.00).

FN5. The parties did work with a co-parenting counselor for a number of years.   They saw that effort as not very productive and that is a very long time for that type of counseling, but they have been successful despite their complaints..  FN5. The parties did work with a co-parenting counselor for a number of years.   They saw that effort as not very productive and that is a very long time for that type of counseling, but they have been successful despite their complaints.

FN6. One of our appellate judges, in a speech about custody trials to an audience of matrimonial lawyers given several years ago, once described a long list of questionable parenting events.   His list included a father forgetting to pick up a child after hockey practice which left the young man waiting outside of the rink in cold winter weather for a long time and another young child breaking his leg after jumping off a garage roof playing Superman while in the father's care.   He then admitted that all of those horrible parental failures occurred in his family over the last six months.   His point, of course, was these things happen in all families and are ignored unless there is a custody trial looming..  FN6. One of our appellate judges, in a speech about custody trials to an audience of matrimonial lawyers given several years ago, once described a long list of questionable parenting events.   His list included a father forgetting to pick up a child after hockey practice which left the young man waiting outside of the rink in cold winter weather for a long time and another young child breaking his leg after jumping off a garage roof playing Superman while in the father's care.   He then admitted that all of those horrible parental failures occurred in his family over the last six months.   His point, of course, was these things happen in all families and are ignored unless there is a custody trial looming.

FN7. It is worth mentioning that the two children are well adjusted and doing well in school.   They are active in a number of activities and they have excellent relationships with both of their parents.   Recently there have been some issues raised about a lack of focus for both children and a diagnosis of attention deficit hyperactive disorder (ADHD) for one of the children.   The evidence, however, is that no special services are necessary for the diagnosed child.   During the status conference on August 20, 2013, the GAL reported that the second child had also recently been diagnosed with ADHD and both boys were now taking medication.   As indicated above, this fact, which was not disputed by either party, did not significantly alter the court's impressions of the custodial issues already developed during the first phase of the trial.   The diagnosis was simply a confirmation of what had been previously suspected.   Likewise, the fact that the boys had to follow a medication regimen was an issue that had already been raised..  FN7. It is worth mentioning that the two children are well adjusted and doing well in school.   They are active in a number of activities and they have excellent relationships with both of their parents.   Recently there have been some issues raised about a lack of focus for both children and a diagnosis of attention deficit hyperactive disorder (ADHD) for one of the children.   The evidence, however, is that no special services are necessary for the diagnosed child.   During the status conference on August 20, 2013, the GAL reported that the second child had also recently been diagnosed with ADHD and both boys were now taking medication.   As indicated above, this fact, which was not disputed by either party, did not significantly alter the court's impressions of the custodial issues already developed during the first phase of the trial.   The diagnosis was simply a confirmation of what had been previously suspected.   Likewise, the fact that the boys had to follow a medication regimen was an issue that had already been raised.

FN8. A calendar reflecting this schedule is attached to these orders and made part hereof..  FN8. A calendar reflecting this schedule is attached to these orders and made part hereof.

Adelman, Gerard I., J.