Karey Guthrie v. Myron Guthrie (2014)

MEMORANDUM RE MOTIONS # 144, # 146, & # 147

INTRODUCTION

American families often face many challenges when faced with interstate custody and visitation disputes.   These include such issues as communication between the parents, communication with the child, time and place of visitation, transportation of the child between the states and processing of contempt issues for willful violation of court orders.   If the best interests of the child are to be served, understanding and cooperation are needed.   Sadly, such were woefully lacking in the case before the court.

CASE HISTORY

The parties were divorced in this court in an uncontested proceeding on July 3, 2008 (pleading # 136).   A handwritten, six-paragraph parenting agreement providing for sole custody to the mother and specified visitation to the father was appended to the judgment and remains unmodified.   In addition, the judgment itself contained some modest financial agreements including child support which were not at issue in the hearing.

On July 30, 2012, the father filed a postjudgment motion for contempt (# 144) claiming the mother had denied him the two weeks of summer visitation with their child in Virginia as ordered.   He also claimed that the mother denied him telephone and internet communication.   That motion is denied.

On August 20, 2012, the father filed a postjudgment motion for contempt (# 146) claiming costs and expenses connected with the previous motion for contempt.   That motion is denied.

On August 21, 2012, the mother filed a postjudgment motion for modification (# 147) claiming a substantial change in circumstances warranting a modification of the parenting time.   That motion is the subject of this memorandum.   The hearing took place over two days on December 3 and 4, 2013.   Both parties were represented by competent counsel and the child's interests were protected by a guardian ad litem.

On June 5, 2013, the mother filed a postjudgment motion for contempt (# 160) claiming non-payment of child support.   Defendant's counsel represented that a hearing was scheduled in the State of Tennessee on that subject at a later date.   After some discussion, that motion was marked off without prejudice.

Law

Connecticut General Statute § 46b–56 provides trial courts with the statutory authority to modify an order of custody or visitation.   When making that determination, however, a court must satisfy two requirements.   First, a modification of a custody award must be based upon a material change of circumstances.   Second, the court must consider the best interests of the child.  Harris v. Hamilton, 141 Conn.App. 219.  Hibbard v. Hibbard, 139 Conn.App. 21.

The court considered all of the applicable statutory law in Chapter 815 of the General Statues.   In particular, the court considered the factors set forth in General Statutes § 46b–56(c) which provides in relevant part that:

In making or modifying an order regarding child custody, 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.

“Our Supreme Court has also determined that other factors the court may consider include parental character as it relates to the willful disobedience of court-ordered visitation;  see Hall v. Hall, 186 Conn. 118, 124;  credibility, and past behavior as it relates to parenting ability ․ [O]nce a material change in circumstances has been shown, the court may then consider past conduct;  not because a party's parental fitness in the past is relevant per se, but because that past conduct bears on the present character of the parent and suitability of that parent as a custodian of the child.”  Harris v. Hamilton, supra, 141 Conn.App. 219–20.

DISCUSSION

In arriving at this decision on the motion for modification, the court reviewed the pleadings, testimony of the witnesses, proposed orders from each party and the guardian ad litem, the Family Relations Comprehensive Evaluation Report, and several exhibits (particular attention was given to Plaintiff's Exhibit 2, a Youtube video disk prepared by the father).

It is clear from the evidence presented in this case that the father bears the sole responsibility for the breakdown in his relationship with his 9–year–old daughter Mikaylah.   If he is to repair that relationship, he needs to make a far greater effort than he has thus far demonstrated.   Six visits with his daughter in five years, sporadic telephone and other types of contact at best, and several thousands of dollars in child support arrearage, do not demonstrate a desire to accommodate the best interests of his child.   He sincerely professes love for his daughter and apparently she loves him as well.   However, while important, love is not enough.   A parent must also be consistent and responsible.

It would serve no useful purpose to recite the nature of the father's conduct which led to the breakdown.   It is well documented in the extensive report of the family relations officer, Laurie Anton, which the court carefully reviewed.   The court also reviewed the testimony of the parties, other witnesses and the documentary evidence.   The father is accurately described as someone who in November of 2007 made the choice to leave Connecticut, the birthplace and home state of his three-year-old child, to relocate to the state of Virginia without any ostensible valid reason.   After a period of time living in that state, and his remarriage to a woman with four children, he relocated again in November of 2012 to his present residence in the state of Tennessee.   He made that move to be near his wife's family.

Of all the evidence produced, great weight was given to both the testimony of the guardian ad litem and the family relations officer.   In particular, the court considered the sealed “Family Assessment” section of the comprehensive custody evaluation report of the family relations officer, dated November 6, 2013.   That report accurately described the situation in which the parties found themselves.   Suffice it to say, the court found that evidence credible.   If necessary, reference can be had to the sealed report for details.   The report is necessarily sealed, as are all family relations reports, to comply with Connecticut Practice Book § 25–60, but can be opened by court order.

In this case, the court does find a substantial change in circumstances since the previous court order and that the best interests of the minor child warrants a modification.   The new orders that follow supplant all previous parenting orders.

ORDERS

1. The mother shall have sole legal and physical custody of Mikaylah.   The mother shall consult with the father, time and circumstances permitting, on all major decisions affecting the child prior to making such a decision.   Major decisions shall include but not be limited to healthcare, residence, education, religious education, and general welfare.   In the event of a dispute, the mother's decision shall be controlling.

2. The father shall have parenting time with Mikaylah in Connecticut the last weekend of each month.   He shall advise the mother at least one week in advance of his intention to exercise parenting time, providing her with an itinerary as to where he will be staying and contact phone numbers.

3. Initially, parenting time shall be from noon until 8 p.m. on Saturday and Sunday of father's weekends.   The father shall have the obligation of taking the child to any regularly scheduled events for the child.

4. When visits have been consistent (at least three consecutive monthly visits) and Mikaylah's therapist, Dr. Mattiace, confirms that she is ready, visits may extend to overnight on father's weekends.

5. When overnight visits have taken place consistently (a minimum of three visits in six months), the parents shall consult with Dr. Mattiace to determine if Mikaylah is ready to visit father for one week in Tennessee.   The father shall give the mother one month written notice of the week intended.   All transportation costs shall be the father's responsibility.

6. When Mikaylah and father have had consistent, positive parenting time, and regular contact, she may visit father in his home for two weeks each summer.

7. Father shall establish and maintain contact with Mikaylah's medical and mental health providers and follow all recommendations.   He shall not discuss expansion of his parenting time with Mikaylah.

8. The father and Mikaylah shall Skype each Thursday evening and she shall be permitted telephone contact with father whenever she wishes.

9. The mother shall be entitled to telephone Mikaylah once each day while she is with her father.   Mikaylah shall be permitted to contact her mother by telephone at any time.

10. Neither parent shall say anything negative about the other parent directly to or within the hearing of the child.   Both parents shall strive to discourage any significant others or family members from saying anything negative about either parent in front of the child or within her hearing.

11. The child shall not be used as a messenger to communicate information between the parents.

12. The court finds that the financial circumstances of both parties require that the guardian's fees should be paid at state rates by the State of Connecticut.

CUTSUMPAS, JTR

Cutsumpas, Lloyd, J.T.R.