Salvador Diaz v. Jacinda L. Diaz (2013)

MEMORANDUM OF DECISION

BACKGROUND

In the above entitled matter, Salvador Diaz (“Father”) filed an application on January 14, 2013, seeking sole custody of the parties' two minor children.   By cross complaint filed January 30, 2013, Jacinda Diaz (“Mother”) also seeks sole custody of the children as well as child support.   During the pendency of this action, certain orders regarding visitation were entered by agreement, and the matter was referred to Family Services for a comprehensive custody evaluation.

Trial of the matter was held on October 11, 2013, at which both parties testified and called witnesses in support of their respective applications.

FINDINGS

On the basis of all the testimony and other evidence, the court finds as follows:

1. The court has jurisdiction over the matter.

2. The parties married in 2005, when Father was twenty years old and Mother was sixteen years old, the marriage resulting from a relationship that had begun when she was ten and he was fourteen.

3. The parties are the parents of two minor children, both of whom were born during their marriage, namely Destiny Diaz (born December 1, 2005) and Salvador “Jayden” Diaz (born December 9, 2006).

4. The minor children have resided in Connecticut for six months prior to the institution of this action.

5. The parties separated in July 2011, and have not resided together since.

6. The marriage of the parties was dissolved in September 2012, in an action in Massachusetts, as the Father who brought the dissolution action was then, and remains now, a resident of that state.   No orders regarding custody of the minor children were made in the Massachusetts case.

7. From July 2011, to the time of trial, the minor children have resided with the Mother in the home of her mother, Olga Caraballo, and Ms. Caraballo's husband, in Hartford, Connecticut.   The children have resided with the Mother for most of their lives, including those periods when Father also resided with them.   Even before the parties separated there were substantial periods of time when Father was absent from the family's home due to his active military service as a member of the Marine Corps.

8. The children attend the Alfred E. Burr Elementary School in Hartford, Connecticut.

9. The Mother is pursuing her high school diploma online and recently began full-time employment at an area Dunkin Donuts shop.   At the time of trial she had not yet received her first paycheck and was therefore unable to report her actual gross and net earnings on her Financial Affidavit.

10. The Father has completed his military service and resides in Springfield, Massachusetts, with his fiancée, Karen McFarland, and members of his family.

11. The Father receives weekly income benefits due to his past Marine Corps service and is attending college classes to obtain a degree in computer security.

12. There is an elementary school in the neighborhood where Father resides, which he intends the children to attend if they were to reside with him.

13. Both minor children had excessive absences from and late arrivals to school during the 2011–2012 and 2012–2013 academic years, and several incidents in which there was no one at their bus stop to pick them up at the end of a school day.   During 2011–2012, Destiny had 37 unexcused absences and five tardies, and Jayden had 29 unexcused absences and 34 tardies.   During 2012–2013 (when the children repeated first grade and kindergarten, respectively) Destiny had at least 16 absences and 35 tardies, while Jayden had at least 23 absences and 21 tardies, based on reports compiled during the latter portion of the school year.

14. School records introduced by the Mother (Defendant's Exhibit A) indicate concerns on the part of school officials regarding the behavior of both children.   The records indicate that Mother met with school officials about these problems, expressing to them her concerns about the children's behavior and “what they are exposed to with father.”

15. The minor children have received dental care only once while under the care of the Mother.

16. The Mother has not pursued with reasonable diligence the pediatric care or mental health therapy recommended for the children by the Department of Children and Families following an investigation into an injury to Destiny in October 2012.  (No physical abuse was substantiated in that investigation.)

17. The Father has demonstrated a willingness and ability to travel frequently between Springfield and Hartford to spend time with the children.

18. The Mother, by her own testimony, has endured traumatic experiences and pressures at a young age which have contributed to her anxiety and, at times, depression.

19. The comprehensive custody evaluation completed by Family Services (Plaintiff's Exhibit 1), hereinafter referred to as the “Evaluation,” recommends that the parties have joint legal custody of the children, with their primary residence to be with the Father.

CONCLUSIONS

The court has reviewed the evidence with a view to ascertaining the best interests of the children in light of the factors enumerated in Section 46b–56 of the Connecticut General Statutes.   In doing so, the court found the factors discussed below particularly pertinent.

Preliminarily, it is clear that both parents have a deep love for their children.   They each testified eloquently of their concern for the children.   In particular, the court commends the Mother for the efforts she has made to overcome the hardships and pressures endured by her at a very young age.   She has, with the assistance of her family (especially her mother), provided the children with a home since the parties separated.

However, the court concurs with the conclusion in the Evaluation that the difficult experiences the Mother has endured have contributed to an emotional instability that prevents her from attending consistently to the care and well-being of the children.   This inconsistency has been exacerbated by her continued focus on her relationship with the Father.   While the Mother testified that she no longer holds out hope of rekindling a romantic relationship with him, it is clear from her own testimony and from her cross examination of him and his witnesses that the breakdown of the relationship remains a matter of central importance to her.   Because so much of the Mother's testimony and questioning was devoted to the subject of her past relationship with the Father, rather than the current circumstances and well-being of the children, most of the evidence in this case pertinent to the question of the best interests of the children came from the Evaluation and the Father's presentation of his case.

The most troubling shortcomings in the Mother's care of the children have been her failure to assure that they attend school regularly and her lack of diligence in arranging the appropriate medical and dental care for them.   For the past two academic years the children have both had excessive absences from and late arrivals to school without reasonable explanation.   The Mother herself attributed these problems to such factors as the children feigning illnesses;  the distance of the school from their home after a neighborhood school was closed;  the family as a whole getting up too late in the morning;  and the children being marked absent on some occasions when they have actually been in school.   Her attempted explanations lead the court to conclude that the Mother feels she has little responsibility for the children's poor school attendance, and little ability to insure their proper attendance going forward.

As for the medical and dental care issue, notwithstanding the Mother's blaming the lack of regular care on transportation issues, the court finds it symptomatic of her inadequate focus on the children's needs.   As clear as the Mother's love for her children may be, it is also clear that her personal and emotional circumstances have hindered her ability to care for the children fully.

While the Father has not had the role of a primary caretaker for the children at least since the couple's separation, the court concurs with the Evaluation that he is willing and able to do so at this time.   Of the two parents, he has the greater stability and is in a better position to provide the appropriate environment for the children at this time.   This would not be the first time he has had primary responsibility for the care of the children.   There was a six-month period in 2008 during which he did serve as their primary caretaker, when the parties separated temporarily after the Mother's arrest in a domestic violence incident.

Furthermore, the court has considered “the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent.”  Section 46b–56(c)(6) of the Connecticut General Statutes.   The best interests of the children demand that both parents have an active role in their growth and development.

The court finds that, given his clearer assessment of the relationship between the parents and his greater emotional stability, the Father is more willing and able than the Mother to encourage and promote a positive working relationship between them for the benefit of the minors.   The Mother has at times sought to limit or restrict the Father's visits with the children.   Her attribution of the children's school behavioral difficulties alternately to the Father's lack of involvement with them and to the experiences they have while with him is also concerning.   In contrast, the Father volunteered to assume the bulk of the responsibility for transporting the children for visits when the Mother did not have a driver's license.

The court does not find it to be in the best interests of the children to award sole custody to either parent.   Rather, the court finds that joint legal custody with a liberal parental access plan would best foster the continuing active involvement of both parents in the growth and development of the children, and to that end orders as follows:

ORDERS

Custody and Parental Access

1. The parties shall have joint legal custody of their two minor children, whose primary residence shall be with the Father effective as of November 10, 2013 (with primary residence to remain with the Mother until that date).   The parties will advise and consult with one another about the major developmental issues of the children's lives, such as educational, medical, psychological, and religious issues.   In the event of a disagreement or dispute between the parents on any such issue, the Father shall have the final decision-making authority;  provided, that in the event of a medical or similar emergency where it is not feasible for the parents to consult one another, the parent who has the care of the child at the time shall have sole decision making authority, subject to the requirement of notifying the other parent as soon thereafter as is reasonable under the circumstances.

2. The primary residence of the children with the Father shall commence on Sunday, November 10, 2013, with the Father to pick up the children and any necessary belongings at the Mother's home by 3:00 p.m. on that date.   Until and through the preceding weekend (i.e., the weekend of Friday, November 1, to Sunday, November 3, 2013) the Father shall continue to have visitation with the children as set forth in the court's order of February 13, 2013.   The order of the court dated September 18, 2013, prohibiting the presence of the Father's fiancée during the Father's weekend visits until after the completion of trial, is terminated now that the trial has been completed, so that the fiancée may be present for such visits.

3. Neither parent shall disparage the other or discuss the custody proceedings within earshot of the children, or do anything to harm the children's relationship with the other parent.

4. During the children's academic year, Mother shall have parenting time with the children at her home for three weekends out of every four weekends, beginning on Friday at 5:00 p.m. and ending on Sunday at 5:00 p.m. The Mother shall have such parenting time on the weekend of November 15–17, 2013, and the following two weekends, with no such parenting time on the fourth weekend (being the weekend of December 6–8, 2013), with the same pattern of parenting time to continue for each successive group of four weekends.   The Mother shall also have parenting time each Wednesday when school is in session from after school until 7:00 p.m. The parties may from time to time by their agreement substitute other weekends or after-school visits for the days and times set forth in this paragraph.

5. In the odd-numbered years commencing in 2013, the children will be with the Mother from Thanksgiving Day at 10:00 a.m. until 7:00 p.m. the day after Thanksgiving, with a return to the regular access schedule for the rest of the weekend.   In the even-numbered years commencing in 2014, the children will be with the Father from Thanksgiving Day at 10:00 a.m. until 7:00 p.m. the day after Thanksgiving, with a return to the regular access schedule for the rest of the weekend.

6. Christmas Holiday and Vacation:  In the odd numbered years commencing with 2013, the children will be with the Father from Christmas Eve commencing at 5:00 p.m. until 12:00 p.m. on Christmas Day. The children will be with the Mother from 12:00 p.m. Christmas Day through December 28 at 7:00 p.m., with the children then to be with the Father for the remainder of the Christmas/Holiday vacation.   In the even numbered years commencing with 2014, the children will be with the Mother from Christmas Eve commencing at 5:00 p.m. until 12:00 p.m. on Christmas Day. The children will be with the Father from 12:00 p.m. Christmas Day through December 28 at 7:00 p.m., with the children then to be with the Mother for the remainder of the Christmas/Holiday vacation until their return to the Father by 7:00 p.m. the night before school is scheduled to resume.

7. The children shall be with the Mother on each Mother's Day and with the Father on each Father's Day regardless of whose weekend with the children it may otherwise be.

8. With regard to the school vacations during the second semester of each school year (i.e., the period after the end of the Christmas/Holiday vacation and before the summer recess), unless the parents agree otherwise they shall share approximately equally in having the children with them during each such vacations, with the Mother to have the children during the first half of each such vacation and the Father during the second half.

9. Unless the parents agree otherwise, during the 2014 summer recess from school and each subsequent summer recess occurring in an even-numbered year, the children shall be with the Mother for the month of July, during which time the Father shall have the children on alternate weekends from 5:00 p.m. on Friday to 5:00 p.m. on Sunday.   The children shall be with the Father for the remainder of the recess, during which time the Mother shall have the children on alternate weekends from 5:00 p.m. on Friday to 5:00 p.m. on Sunday.   Unless the parents agree otherwise, during the 2015 summer recess from school and each subsequent summer recess occurring in an odd-numbered year, the schedule shall be the same except that the children shall be with the Mother for the month of August rather than the month of July.

10. On each child's birthday, the parent who does not have the child in his or her care on that day shall be allowed a period of time up to two (2) hours to spend with the child.

11. Mother shall be allowed nightly telephone contact with the children before their bedtime.

12. The parties shall share approximately equally in the transportation of the children for purposes of their respective parenting time as set forth herein, except that the Mother shall be solely responsible for transportation with respect to the Wednesday after-school visits provided for in Paragraph 4.

13. A parent who plans to take the children beyond the borders of Connecticut and Massachusetts for a period longer than forty-eight (48) hours shall notify the other parent in advance and provide itinerary and contact information.

14. The Father shall not relocate with the minor children from his current home to a location substantially further from the Mother's home than exists at the present time without 90 days advance written notice to the Mother and further order of the court.

Child Support

Insofar as the Father made no request for child support either in his application or at trial, and considering that the Mother's employment commenced so recently that complete information about her regular gross and net earnings was not available at trial, the court makes no orders as to child support at this time, reserving to the Father the right to seek child support at a later date.

Health Insurance and Unreimbursed Medical Bills

The order of the court entered September 18, 2013, adopting the State of Connecticut Proposed Orders filed on February 13, 2013, shall survive this judgment and remain in full force and effect.

Parenting Education Program

Each parent shall complete the Parenting Education Program and file a certificate of completion thereof with ninety (90) days after the date of this decision.

Educational Assessment for Destiny

Father shall pursue the assessment of Destiny to determine whether she requires specialized education services.

Counseling for Children

Father shall, within a reasonable time after the children commence their primary residence with him, arrange for both to be evaluated by an appropriate mental health therapist.   Father shall report the results of this evaluation to the Mother and, if the therapist recommends counseling for either or both of the children, the parties shall arrange for counseling in accordance with such recommendation.

Final Judgment

The foregoing is intended as the final judgment of the court with regard to the parties' respective custody applications, subject to the reservation to the Father of the right to seek an order of child support as noted above.

SO ORDERED.

BY THE COURT,

Albis, J.

Albis, Michael A., J.