Monica Peters v. Numan Senman (2013)

MEMORANDUM OF DECISION

History Of The Case

On March 22, 2011 the court (Suarez, J.) issued a decision in this custody/visitation case.

On April 8, 2011 defendant filed a Motion to Reargue regarding daycare expenses not allocated in the March 2011 decision.   The court granted the motion and issued further orders on May 24, 2011.

On November 11, 2011 the plaintiff filed a Motion for the Appointment of a Guardian ad Litem (# 307).

On November 28, 2011 the parties' stipulation was adopted by the court.   The stipulation provided mother with parenting time from Wednesday after school until 8:00 a.m. Friday with return to school.   In addition, mother had the third weekend of the month from after school on Friday until 8 p.m. Sunday evening.

On October 21, 2011 plaintiff filed a Motion to Modify (# 305) seeking equal decision making privileges and a shared parenting (50/50) schedule.

On November 30, 2011 the parties entered into a stipulation, approved by the court modifying child support to $50 per week and plaintiff's access was expanded to include from Tuesday after school until eight a.m. on Thursday return to school.

On January 30, 2012 defendant filed a Motion for Contempt (# 316) alleging plaintiff owed a child support arrearage of $6,283 and was habitually late in picking up and dropping off the child.

On March 5, 2012 the parties reached an agreement (# 319) approved by the court.   The plaintiff agreed to pay $666.00 by April 1, 2012 towards her child support arrearage and would continue to pay $18.00 per week against the arrearage.   The issue of visitation was referred to Family Relations for mediation and the parents were ordered to complete co-parenting counseling at the Humphry Clinic prior to the report back date.

On June 7, 2012 the defendant filed a Motion for Modification (# 321.00) seeking an increase in child support due to a work layoff.   The parties entered into a stipulation on August 22, 2012 modifying plaintiff's access the third week of the month to Thursday after school until Monday morning when school begins or if no school until Monday at 8:00 a.m. Child support was increased to $111.00 per week and both parents were required to provide immediate notice to the other when there is a substantial price (15%) change in income.

On January 4, 2013 the plaintiff filed a Motion to Modify (# 330) her visitation seeking alternate weekends and a holiday schedule with clear pick up and drop off times.

On January 18, 2013 plaintiff filed a Motion for Contempt alleging the defendant did not allow her access to the child on New Year's Day.

On January 24, 2013 defendant filed a Motion for Contempt (# 332) alleging nonpayment and late payment of child support.

On March 15, 2013 plaintiff filed a Motion to Modify (# 334) seeking a reduction in child support due to a decreased client base and a deviation from the child support guidelines based on the child spending 35% of his time with mother.

On April 1, 2013 the Court appointed a Guardian Ad Litem for the minor child.

On April 26, 2013 defendant filed a Motion for Contempt (# 337) alleging plaintiff's child support and medical reimbursement payments were not being made on a timely basis.

The court heard the matter on July 24, 2013 and August 6, 2013.   The Plaintiff, Defendant, Family Relations Office and GAL testified and exhibits were introduced.

Findings of Fact

Ms. Peters currently lives in Hartford, Connecticut with her current fiancé.   Mr. Senman continues to reside in Vernon, Connecticut where he has maintained a home since this litigation commenced.

Ms. Peters represented herself at trial and Mr. Senman was represented by counsel.

The plaintiff testified it was in the best interest of her son to spend more time with her and have a stronger relationship with her extended family.   She firmly believes her son (age six and autistic) misses his mother and wants to see her more.

Mother pursued self-employment as a massage therapist for a time unsuccessfully.   At the time of trial she had recently secured a job and anticipated earnings of $32,000–$40,000 per year.   She was paid $26,000 at her prior full-time job but left due to the cost of transportation.

Ms. Peters identified her son's autism early and has been an excellent advocate for him in his treatment and educational arenas.

The plaintiff has not paid child support since June 1, 2013.   However, she went to New Mexico from July 4–9, 2013, and purchased toys for her son.   Ms. Peters' Financial Affidavit shows income of $90 per week but weekly expenses of $401 and credit card debt payments of $91 per week.   Her only asset is a 2006 Hyundai worth $4,700.   She testified she used credit cards to pay her expenses and was often late with her rent.   She has made credit card payments during periods she did not pay child support and also justified her nonpayment of child support testifying that while her motion to modify was pending she didn't know how much to pay.

Mr. Senman acknowledged that Ms. Peters has a good relationship with their son but the parties have difficulty communicating, the child has transition issues, the plaintiff fails to abide by court orders and she is inconsiderate and unreasonable in pick up and drop off times.

The defendant testified that Thanksgiving 2011 was an example of plaintiff's unreasonable drop off.   Mr. Senman wanted the child home by eight p.m. and plaintiff refused to return the child and arrived well after eight p.m. She returned the child on Christmas 2012 at 12:45 a.m. and Easter 2013 at 10:30 p.m. when there was school the following day.

The defendant testified at length about the plaintiff's colorful sexual history and objected to the introduction of various paramours to his son at an early stage in these relationships.   While the court shares Mr. Senman's concerns about introducing a child to a new paramour early in the relationship there was no evidence this behavior is ongoing.   Ms. Peters is engaged and has been with her fiancé for some time.   She testified they met on a play date with their respective children.

The defendant objected to any change of the current parenting schedule on the basis that the child was accustomed to it and plaintiff's work schedule has her working on weekends.   Mr. Senman testified that autistic children need to slowly process and get used to things to reduce anxiety.

More disturbing to the court was evidence and testimony by Father that the child has been tardy to school ten times and absent eight times in the past year during Mother's parenting access.   According to Father, Mother's failure to arrive on time for visits causes transition problems for the child.   Father kept a detailed record of the twenty-five times Mother has failed to arrive on time for pick up or drop off since May 2011 to May 2013.   Out of the twenty-five documented late arrivals Mr. Senman estimated Ms. Peters contacted him in advance nine times.

The couple has argued over pick up and drop off times and about Mother's frequent requests for additional time with the minor child at school.   Ms. Peters has shared her desire for more time with her child to teachers, friends, and social media postings, sometimes in the presence of Mr. Senman and at times outside his presence.

The Guardian Ad Litem, Attorney Charles Wilson testified and acknowledged that this case is high conflict and the child's autism diagnosis was a complicating issue.   He testified that probably not everything Ms. Peters said to him was truthful and it was disconcerting that she failed to pay child support on a regular basis.   Attorney Wilson testified that both parents have strong points, Mr. Senman provides structure and stability for the child and Ms. Peters is a strong advocate for her son in connection with his autism diagnosis.

The Guardian recommended joint custody with primary residence with Father.   He recommended mother's access include every Thursday evening through Friday morning and on alternating weekends continuing until Monday morning drop off at school.

The shared parenting plan proposed by Mother is unworkable for several reasons.   Mother lives in Hartford and Father lives in Vernon.   As is evidenced by the number of times the child has been tardy the past school year the distance between parents makes shared parenting a major challenge due to geography.   Additionally, this custody case has been high conflict since the onset.   The parties have been court ordered to attend the Humphry Clinic at UConn for high conflict counseling, but failed to attend the program for more than a few sessions.   A shared parenting schedule requires constant good communication to make it work for the child.   Given the parties' failure at high conflict counseling, the court finds that a shared parenting plan would not be in the child's best interest at this time.

While the Guardian put forth a parenting plan representing a lot of thought and work it fails to address the issue of frequent tardy arrivals at school.   Overnight midweek visitation has resulted in this child frequently being late to school.

Joint custody and decision making for this couple will be an insurmountable problem unless and until they can find a way to peacefully communicate with each other.   The court appreciates Mother's frustration at not having a voice in decisions made about her son.   However, the evidence is clear that Father consults with and considers Mother's opinion in all important decisions regarding the child's health, education and welfare.

The court recognizes mother's ability to identify the child's autism early and finds her ability to advocate for her son a valuable asset.   Mother's advocacy has been taken into consideration by the court in making its orders.

During trial of this matter the original custody evaluation dated July 1, 2010 and author of original Family Relations evaluation testified.   The child has grown from age three to age six during that period and both parties have matured as parents.   The court found the evidence to be stale and of little probative evidence to the issues presented.

ORDERS

1. Custody

Mother and Father shall share joint legal custody of the minor child.

The minor child shall make his primary residence with Father.

2. Final Decision Making Authority

Father shall have final decision making authority on issues of physical health, general welfare, extracurricular activities, religious upbringing and choice of school system.

Mother shall have final decision making authority in matters relating to the treatment of the child's autism.   However, she has no authority to change the child's school.

The parents MUST consult each other BEFORE making any final decisions regarding the child as divided above.   This requires the parent with decision making authority to contact the other parent via email to alert the other parent about the issue.   Any discussion and agreements will be documented by emails between the parents.   If communication between the parents fails to resolve the issue the parents are required to seek mediation of the issue through a co-parenting counselor, the Guardian ad Litem or Family Relations BEFORE a final decision is made.   If no agreement is reached after two mediation sessions the parent with final decision making authority shall make the decision.

Refusal of a party to schedule or attend mediation will entitle the parent cooperating with the court orders to prevail.

Nothing in this section is intended to prevent either parent from access to the court.   However, before any motions are filed evidence of e-mail communication and mediation are required.

3. Parenting Schedule

a.  School Year:  Mother shall have parenting time every Wednesday from after school until 7:30 p.m. return to Father's home.   If Mother is more than fifteen minutes late the next visit (the following week) will be forfeited as a sanction.

b. Mother shall have parenting access alternating weekends from pick up at school on Friday until return to Father, Sunday at 7:00 p.m. If Mother is more than fifteen minutes late in drop off or pick up the following alternating weekend visitation shall be forfeited as a sanction.

4. Routine Decisions

Day-to-day decisions of a routine nature, including but not limited to bedtime, homework and day to day school, social and athletic activities customary for child of the age and maturity, shall be made by the parent with whom the child is then staying.

5. Extracurricular Activities

Neither parent shall schedule the child for an activity or event that will occur during the other parent's time without first conferring with the other parent and obtaining written consent.   Neither parent shall unreasonably withhold agreement for the child to participate in a social, educational, or athletic activity.

6. Exchanges

The intention of this parenting plan is to maximize the use of the child's school, including during summer school, as the point of transition of the child from one parent to the other parent.   On those occasions where the exchange occurs elsewhere, with one or more parents present, the parents will not say or do things or knowingly allow others to say or do things in the presence of their son that would take away the son's love and respect for the other parent.   The parents shall not discuss issues related to court maters, changes to the schedule or child support with or in front of their son.   Exchanges between the parents shall be swift and efficient, generally taking five minutes or less, with no discussion amongst the parents about anything other than what is necessary for the care of their son (e.g., the last time the child ate or took medicine, homework issues).   One party shall not enter the home of the other during the exchanges, unless by invitation of the other party.

7. Cancellation

In the event that the mother or father cancels any time to be spent with their son, including a holiday, vacation, or regular visitation, that time is forfeited and will not be traded or used to bargain for some alternate period of time.

8. Right of first refusal

The parent who is scheduled to have parenting time with their son shall be responsible for caring for the child or providing suitable care for his/her son if he/she is not available to be with the child.   If, during one parent's access time that also is not a time when the child is in school, and that parent will not be with the child for more than eight hours, that parent shall notify the other parent, 24 hours in advance, and shall provide the other parent with the opportunity to spend that time with the child, before arranging for child care with a third party.   If one parent has to work outside of his/her normal business hours and during a time when he/she is scheduled to have parenting time with their son, he/she will notify the other parent in advance and give the other parent the opportunity to spend the time with the child before arranging for child care with a third party.

9. Participation in Activities by Parents

While one of the parties has access to the child, the other parent shall not interrupt or interfere with the access, including by appearing at the place where access is occurring, without prior notice and agreement of the parties.   However, both parents may participate in their son's medical appointments, school events, sports events, extracurricular activities, and any other activity to which parents are invited or permitted regardless of who is scheduled to parent the child at that given time.

Summer Vacation Schedule;  February and April Break

10. The father will have two weeks non-consecutive weeks of vacation with the child every summer.   The father will provide notice via email or other written means to the mother by June 1st of the two weeks during which time he will take the vacation.   The specific weeks will be identified further by the father no later than thirty days prior to the vacation, again via email or other written means.   At that time, the father will provide the mother with information regarding any travel plans concerning the vacation including mode of travel, flight numbers if applicable, the address where the child will be staying and a contact telephone number.

11. The mother will have two non-consecutive weeks of vacation with the son every summer.   The mother will provide notice via email or other written means to the father by June lst of the two weeks during which she will take the vacation.   The specific weeks will be identified further by the mother, no later than thirty days prior to the vacation, again via email or other written means.   At that time, the mother will provide the father with information regarding any travel plans including mode of travel, flight numbers if applicable, the address where the child will be staying and a contact telephone number.   In the event that the mother and the father seek the same week, the mother's preference shall prevail in even-numbered years and the father's preference shall prevail in odd-numbered years.

12. Summer vacation will take priority over the regular visitation schedule.   Vacation periods are from 4:00 p.m. on Friday until 4:00 p.m. on the following Friday.

13. April Breaks

The child will spend his April vacation, up to five consecutive days from Monday through Friday, with the Mother.

14. Winter School Break

The child will spend February school break, up to five consecutive days from Monday through Friday with the Father

15. Away from home overnight

If the child is going to be out of Connecticut or away from a party's house overnight, whether during a vacation or at any other time, the parent who has access to the child at that time shall provide via email to the other parent, three days in advance, information on where the child will be and for how long, including a local address and contact information.   If the child will be overnight with someone other than one of the parents, the party who has access to the child at that time shall provide the other party with advanced notification of same.

16. Holidays, Birthdays, Snow Days

Holidays

a. Easter:  The Easter holiday will be designated from noon the Saturday before Easter to Easter Sunday at 5:30 p.m. The child will be with Mother in even-numbered years and with Father in odd-numbered years.   Good Friday will follow the regular schedule.   In the event Good Friday falls on a weekend scheduled to be with the mother, the father will deliver the child to the mother by 9:00 a.m. on Good Friday.

b. Fourth of July:  The usual weekly schedule will apply.

c. Halloween:  The usual weekly schedule will apply and the parent who is scheduled to be with the child on Halloween will be responsible for obtaining the son's costume.

d. Thanksgiving:  The Thanksgiving holiday will be from the time the child is out of school the Wednesday before Thanksgiving (or at 4:00 p.m. if there is no school) to Friday at 10:00 a.m. The child will spend Wednesday after school to 10:00 a.m. the Friday after Thanksgiving, 2013 with the father and from 10:00 a.m. on Friday after Thanksgiving, 2013 with the mother through drop off with father on Sunday at 7:00 p.m. The schedule will be alternated yearly.   With mother having the first half of the holiday and father having the second half of the holiday in 2014.

e. Christmas Eve is defined as being December 24 from noon, overnight to December 25 at 11 a.m. The child will be with the Father in even-numbered years and the Mother in odd-numbers years on Christmas Eve. The parent having the child Christmas eve is responsible for pick-up and drop-off.

f. Christmas Day through the vacation week:  From December 25th at 11 a.m. to December 31 at noon, the child will be with the Father in odd-numbered years and with the Mother in even-numbered years.   From December 31 at noon until 5:00 p.m. New Year's Day the child will be with the Father in even-numbered years and with the Mother in odd-numbered years, after which the usual schedule will resume.

g. All remaining school and federal holidays:  Any school holiday not otherwise addressed herein will follow the regular schedule, except that if a holiday falls on a Monday that is preceded by a weekend where the child is scheduled to be with the mother, then the child will be with the mother until return to father at 6:00 p.m. the day before school resumes.   In the event that there also is no school on that Tuesday due to a snow day or for any other reason, the mother will deliver the son to the father's home by 6:00 p.m. on Tuesday, weather and travel conditions permitting.   If weather or travel conditions do not reasonably permit the mother to do so, the transition shall occur on the following day or as soon as weather and travel conditions permit, which ever shall occur first.

h. If mother is more than fifteen minutes late for pick up or drop off during the holiday schedule she shall forfeit her following holiday as a sanction.

17. Mother's Day/Father's Day

The son will spend Mother's Day with the mother and Father's Day with the father.   In the event that Mother's or Father's Day falls on a Sunday during which is scheduled to be with the other parent, the other parent will drop off the child at 10:00 a.m. and he will stay with the celebrating parent until the 6:30 p.m. return to father.

18. Parent's Birthday

Similarly, in the event that a parent's birthday falls on a Sunday during which the child is with the other parent, the other parent will drop off the child at 10:00 a.m. and he will stay with the celebrating parent until the 6:00 p.m. the day before school resumes.   In the event that a parent's birthday falls on a Saturday, that parent will have the son from pick up after school on Friday until 9:00 a.m. drop off with the other parent on Sunday morning.

19. Child's Birthday

As for the child's birthday, in the event that that day falls on a weekend day, the parents will alternate having the child for his birthday from 10:00 a.m. to 6:00 p.m. with the other parent having the child from 10:00 a.m. the previous/following day for the same time period.   If his birthday falls on a weekday, the regular schedule will apply.

20. Timeliness & Consequences

The parents are expected to be on time in transferring their son.   The parties agree that the times set forth in this order will define being “on time,” and that they intend for those times to be rigid and followed.   With the exception of transfers that make use of the school day, and absent an emergency, failure to transfer the child more than fifteen minutes after a time set forth in this agreement will result in the loss of the transferring parent's next specifically noted holiday time with their son as set forth in these orders.

21. Priority

Holidays and birthdays shall have precedence over vacation time which shall have precedence over the regular weekly schedule.

INFORMATION AS TO THE CHILD

22. Each of the parents agree to keep the other informed of the whereabouts of the child whenever either custodial parent takes him away from the custodial parent's home overnight.

23. The parents agree that if either of them has knowledge of any illness or accident or other circumstances seriously affecting the health or welfare of their son, the father or mother, as the case may be, will promptly notify the other, and both parties shall have unlimited visitation privileges, consistent with the circumstances, for so long as the situation pertains.

24. Each parent shall be entitled to complete information about their son from any physician, dentist, psychiatrist, consultant or other specialist.   Each parent shall be entitled to complete detailed information about their son from any teacher, or school and shall be entitled to receive copies of all reports or records with respect to their son's education.   It shall be the respective parties' obligation to obtain the information about their son directly from the school or medical provider, as the case may be, and one party is not obligated to provide the other with documentation and information that may be obtained from the school or medical provider.   That notwithstanding, when one party has such information about the child, he/shall share the information with the other party.

COMMUNICATION/PARENTING GUIDELINES

25. The parents will not discuss court matters, access schedule or related disputes with or in the presence of the child.

26. Neither party shall make negative or derogatory remarks about the other to the minor child, nor shall they allow such comments to be made by third parties.   Both parents shall encourage the minor child to have a close, positive and loving relationship with the other parent.   Neither party shall do anything or allow any third person to do anything which could estrange the child from the other, which would injure the opinion of the child as to his mother or father, or which would impair the natural development of the child's love and respect for each of the parents.

27. The parents will not expose the child to sexual activity or any material regarding sexual relations of any kind, and to minimize risk of exposure to the child by not reviewing any adult materials while the child is in their home, and by not permitting any other person in the home to do so while the child is in the home.   The minor child shall not share a bed with a parent or another third party under any circumstances.

28. The parents will not use any illegal substances during their respective time with their son or during the twenty-four hours before access time with their son.

29. The parents will not introduce their son to any person with whom the parent has a romantic or otherwise physically intimate relationship until that parent and the third person have been in that relationship for at least six months.

30. Transportation

Unless otherwise addressed by this Agreement, the responsibility of providing transportation for the child shall be with parent who is with the child at the time transportation is required, whether it be to bring the child to the other parent or to bring the child to another location, such as school or the doctor's office.   If the child is to be transferred at school the parent whose access is about to begin is responsible for a timely pick up.

31. Communication

Unless otherwise noted in this Agreement, communication will be via text message, email, or other means except in the event of an emergency, in which case communication shall be by telephone.   In lieu of regular or ongoing communication, the parties agree to hold a weekly teleconference at 8:00 p.m. on Monday, during which they will discuss only current issues regarding their son, including his progress at school, weekly activities, scheduled doctor's appointments or social activities, and raise any issues that may involve a major decision.   No third parties will participate in the teleconference, unless both parties agree to the inclusion of the third party (e.g., the GAL, counselor, son's teacher).   The parent who has the child at that time will make reasonable efforts to conduct the teleconference outside the listening of the child.

32. While the child is a minor, each party shall provide the other with a contact telephone number and email address at which he/she can be reached reliably and regularly;  each party shall provide the other with his/her respective home address within 24 hours of any change.

33. Starting at an age to which the parents agree, the child shall be permitted to communicate with each parent by telephone, in writing, by Skype or similar (if available), by email, by cellular phone (including text) during reasonable hours, without interference or monitoring by the other parent.

RELOCATION

34. In the event that a parent intends to move or change residence, the moving parent will provide the other parent at least sixty days advance notice via email or other writing (not including text message), including the address of the anticipated residence and the names and birth dates of any persons who the moving parent also reasonably anticipates to be sharing the new address.   The moving parent will retain a copy of the writing, to be provided to the court upon request.   In the period before the plan is modified by the Court, the parents will use their best efforts to implement a plan that is fitting the new circumstances and is in the best interests of the child, including following those steps set forth regarding resolving disputes over major decisions.

35. Co-parenting therapy

It is in the best interest of the child that the conflict in this family be reduced as expeditiously as possible.   Mother and Father shall attend a minimum of ten sessions of co/parenting/high conflict therapy by a provider of their choosing.   If the parents cannot agree the GAL shall choose the provider and the cost thereof shall be divided equally.

Neither parent may file a motion to modify the court orders regarding custody and access until they have completed ten co-parenting sessions.   Sanctions will be imposed by the court on either parent's refusal to attend co-parenting therapy which may result in a loss of time with the child.

36. a.   The court grants father's Motion for Contempt as it relates to the nonpayment of child support and finds the contempt was willful.   The court denies mother's motion to modify child support.   Her reduction in income was the result of her voluntary choice to become self-employed.   The amount of time mother spent with the child under the previous parenting schedule does not rise to the level of a deviation from the Child Support Guidelines.   She currently has a job where she will be earning $32–40,000 per year.

b. The court finds mother owes an additional child support arrearage of $5,310 minus a credit of $341 for a total arrearage of $4,969.00.   The arrearage shall be added to any previous arrearage and shall be paid at the rate of $18.00 per week.

Based on Mother's testimony that her new employment will pay her $32,00–40,000 per year, using the lower figure, the court computes Connecticut Support Guidelines at $97.00 per week.   The total weekly payment, including the arrearage shall be $115.00 and shall be secured by an immediate wage execution.   The plaintiff shall pay the defendant directly by check every Friday until child support is withheld from her paycheck.

Mother shall pay 30% of unreimbursed work-related day care and unreimbursed medical, optical, psychological and dental expenses in full within thirty days of receipt of invoices by the defendant.   Invoices shall be submitted by the parents in writing.

BY THE COURT

Holly Abery–Wetstone

Abery–Wetstone, Holly, J.