Yolanda Mercado v. Luis Soto (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO RELOCATE;  PLAINTIFF'S MOTION FOR MODIFICATION OF CUSTODY

This matter involves post-judgment motions for modification of custody and visitation filed by each party and a request for the defendant to relocate to Virginia with the parties' three minor children from Connecticut.   The parties were before the court on the motions on October 23, 2013 with the plaintiff appearing pro se and the defendant represented by counsel.

HISTORY OF CASE

The case involves two parties, who were never married and have three minor children, Yoaliz Soto, date of birth December 29, 2000;  Linoshka Soto, date of birth September 25, 2002;  and Luis Soto, date of birth September 13, 2005.   Custody orders regarding the children date back to February 2007.   Temporary sole custody was granted to the defendant in February 2011.   The plaintiff was granted supervised visitation at the home of maternal grandmother and with her presence required at all times.   In April 2011 after a guardian ad litem was appointed and a full custody evaluation was ordered, the parties agreed to joint legal custody primary residency with defendant.   The plaintiff was also to undergo mental health treatment.   The children received counseling at the Klingberg Family Center in January 2012.   The report supports a finding that the children had experienced trauma under the plaintiff's care and may be exposed to physical harm.   On April 30, 2012 the defendant was given sole custody of the children with orders for plaintiff to take part in reunification therapy and mental health evaluation pursuant to prior court orders.

FINDINGS OF FACT

The defendant has been unemployed for some time and has found employment in his chosen profession in Virginia.   The defendants' family in addition to the three subject children includes a wife and four step-children.   The defendant's wife has been notified that her employment will end October 2013.   The family has relatives in the Virginia Beach area that are committed to assisting in relocation and housing for this family of seven.   The apartment the defendant occupies currently is a month to month tenancy.

The plaintiff has lived in Puerto Rico for the last fifteen months and only returned to take up residency with her mother in the last two months.   The plaintiff has failed to seek treatment, mental health evaluation or reunification therapy since the April 2012 court order.   She has only exercised her parenting visitation time five or six times since April of 2012.   The plaintiff would not keep defendant informed of her presence at her mother's home in the past 15 months.   The plaintiff did complete a training program in Puerto Rico and has acquired a part-time job at Burger King with indeterminate hours of employment.   She lives with other family members who include an adult brother, her foster mother and birth mother.

The plaintiff has demonstrated inadequate parenting in the past and has not sought treatment to improve her emotional, mental and communication skills with respect to the three children.   Prior reports of the children observing violent encounters between the plaintiff and her boyfriend as well as evidence of sleeplessness, threats of physical bodily harm and stress leads the court to conclude the need for treatment before reunification is warranted.   To date the plaintiff has not availed herself of assistance in any licensed treatment center.

Relocation Statute

Section 46b–56d(a) of the Connecticut General Statutes allocates the burden of proof to the relocating parent and expands the best interest of the child standard adopted through case law by providing specific factors that the court is to consider.  Taylor v. Taylor, 199 Conn.App. 817, 822 (2010).

The party must demonstrate that the relocation is for a legitimate purpose that the purpose is reasonable and that it would be in the best interest of the child.  CGS 46b–56d(a).   The statute specifies that the court should include the following factors in considering the best interest of the child:  (1) each parent's reasons for seeking or opposing the relocation;  (2) the quality of the relationship between the child and each parent;  (3) the impact of the relocation on the quantity and quality of the child's future with the non-relocating parent;  (4) the degree to which the relocating parent's and child's life may be enhanced economically, emotionally and educationally;  and (5) the feasibility of preserving the relationship between the child and the non-relocating parent through suitable visitation arrangements.

The court finds that the employment opportunity for the defendant is a legitimate purpose and in the best interest of the children.   The relocation is reasonable in light of employment opportunity as well as the defendant's family support in Virginia.   The relocation will allow the children, their step siblings and stepmother to remain together.   Having found that the defendant has met the first two prongs of the relocation test by a fair preponderance of the evidence, this court must then consider the specific factors set forth by statute as it relates to the best interest of the children.

The court does not find credible the plaintiff's reason for opposing the relocation.   She has not exercised her visitation rights consistently over the last 15 months nor has she sought the therapy ordered to expand her role in her children's lives.   She is seeking custody and is unrealistic in her wish to have residential custody in her current environment as a guest in her mother's home.   No evidence of suitable housing, financial support or improved educational opportunities was presented by the plaintiff.   The quality of the relationship between her and the children would not be changed.   On the other hand, the defendant will be enhanced economically by the relocation.   Lastly the feasibility of a future relationship with the plaintiff through visitations and electronic communication can be achieved through approved parenting plans.

ORDERS

After weighing all the required statutory factors and the evidence produced at the court hearing, this court finds that it is in the best interest of the children to relocate to Virginia with the defendant.

1. The plaintiff's request for custody is denied.

2. All previous court orders are continued regarding protection of the minor children, appropriate name for the stepparent and the need for the children to participate in reunification therapy with the plaintiff.

3. The court maintains jurisdiction over this matter regarding the parenting plan within statutory limits.

4. Plaintiff is to seek mental health evaluation and treatment prior to the implementation of a parenting plan.   All releases and documentation to be provided to the Family Services Office at 90 Washington Street, Hartford, CT 06106.

5. Defendant will continue with supervised visitations until he relocates to Virginia.   Previous court orders prohibiting overnight visits remain in place.

6. A status hearing on the relocation parenting plan with referral to Family Services will be held approximately 4 months from the date of judgment.

7. Plaintiff is allowed generous telephone communication with children after relocation and can access her parenting time in Virginia with the supervising maternal grandmother with 48 hours' notice to the defendant.   Phone calls shall be private and not monitored by the custodial parent.   The plaintiff shall be allowed communication via electronic/telephone with the minor children a minimum of 4 times per week at reasonable hours.

8. Defendant shall provide Family Service's office with contact information once relocated to Virginia.   Information shall include address, telephone number and place of employment within 2 weeks of relocation.

9. Defendant will provide the plaintiff with school enrollment, activities and contact information for children while in Virginia.

SO ORDERED.

BY THE COURT,

Stewart Johnson, J.

Johnson, Stewart, J.