Jane Doe v. John Roe
Memorandum of Decision
This dissolution of marriage action was referred to the Regional Family Trial Docket, from the Judicial District of New Haven. The matter was tried before the court over several days; proposed findings of fact and memorandum were filed, and final argument was held on October 25, 2011. Because of the length of time of this trial, and the intricacies of the many disputed, events that are essential to each party's respective presentation of their case, the court requested and the parties agreed to provide proposed findings of fact. Those are now in the record and comprehensive. At times, those proposed findings are adopted whole cloth in this decision.
In this matter, both the plaintiff and the defendant are seeking sole custody of their one minor child. They have each made claims regarding child support, alimony, division of assets and debt, and payment of attorneys fees and other fees arising out of this litigation. Both parties were represented by experienced counsel at trial. As this decision will go on to relate, the evidence in this case was extremely difficult and counsel, notwithstanding that, tried this case with dignity, civility and competence for their clients. The interests of the minor child were protected by an experienced guardian ad litem. There were many exhibits in this case, including transcripts of other proceedings and depositions, medical records, financial records, school records and visitation supervisor records. This list is not exhaustive. The court has reviewed all of the exhibits, and has had the opportunity to observe the demeanor of all of the witnesses.
The facts in this case are very disturbing. If the child in this case ever becomes aware of all of the circumstances described herein it will likely have a tremendous adverse emotional impact on him. Community Action for Greater Middlesex County, Inc. v. American, 254 Conn. 387, fn.2 757 A.2d 1074 (2000). The internet being what it is, provides an eternal repository of the court's decision. When the court looks to protect the interests of this child, it must look for the least restrictive manner possible. Practice Book section 11–20A(h)(1).
The court considered sealing the entire custody portion of this case but rejected that as overly broad when the more narrow protective measure of pseudonyms is available. The public has an interest in open courts. It further has an interest in the court's handling of difficult issues such as those in this case. By utilizing pseudonyms the court honors that public interest while protecting the right of this child to privacy. The court recognizes that it is of no utility to use a pseudonym for the child but not his parents. In order to protect him, therefore, his relations' names have been rendered pseudonomic. Other uniquely identifying information is removed where practicable as well. Pursuant to the Practice Book, all filings in this matter shall provide the pseudonym names rather than the real names.
The parties presented to the court exhaustive testimony both lay and expert. Testimony was received from numerous witnesses, including the plaintiff Jane Doe, the defendant John Roe, Dr. Eli Newberger, Dr. Joyanna Silverberg, Ida Shaw, Allison Chiodo, Dr. Philip Kaplan, Pat Heavern, John Lamontagne (Family Relations Counselor), Dr. Richard Whelan, the court psychiatric evaluator, Maureen Murphy the guardian ad litem, David Boutilier, and the defendant's mother. The court has considered all of this in determining its finding of facts of this case. The following facts are found based on the credible evidence before the court. The demeanor of the parties and other witnesses has also been considered by the court.
The court has carefully considered the statutory criteria for a granting of a dissolution of marriage, custody, visitation, child support, alimony, and equitable division of the marital estate, and counsel fees. The statutes need not be repeated here. The court has also considered applicable case law. Once again, the parties' respective demeanor, and credibility have been central to the court's findings in this case.
The court finds that it has jurisdiction over this marriage. One of the parties has resided in the state of Connecticut continuously for more than one year prior to the bringing of this action. There has been one minor child born to the wife since the date of the marriage, who is issue of the marriage. There are no other minor children that have been born to the wife since the date of the marriage. The parties have not been recipients of public assistance. The wife is not currently pregnant. The marriage between the parties has broken down irretrievably. There is no hope of its reconciliation. The minor child has resided in the state of Connecticut continuously during his entire life and therefore, the court does have jurisdiction over issues regarding custody of him.
The parties met in 1999, at a martial arts program. Both parties were active in the martial arts. At the time the parties met, Mr. Roe was a martial arts instructor; at times he was instructor for Ms. Doe. The parties remained just friends for quite a while; indeed, the defendant asked the plaintiff to help them find a Japanese wife since he understood that she spoke Japanese. Over time, the parties pursued a romantic relationship with each other. Upon discovering that the plaintiff was pregnant, they immediately married. They were married on September 20, 2002. That pregnancy miscarried. Ms. Doe became pregnant again; that pregnancy resulted in the birth of their child Peter, born on December 9, 2003.
By the time the parties met, they had both completed their formal education. The defendant has achieved a Bachelors Degree in engineering from the University of Connecticut. The defendant is a computer security specialist. He formerly worked for the telephone company. He now works for a large non-profit company. He has been there since 2008. At the commencement of this trial, he was given a promotion. He anticipates a raise, which had not yet occurred. Further, he has not been told how much of a raise he will receive. Therefore, his financial affidavit at the time of the dissolution of marriage represented his current earnings. Mr. Roe is in good health. He is approximately thirty-nine years. The defendant has no physical conditions that impair either his ability to work or to care for Peter.
The plaintiff is not currently working. She has an undergraduate degree in audio engineering from Berklee College of Music. She is thirty-seven years old. While she is trained as an audio engineer, she has never worked full-time in her chosen profession. She has taught English as a second language on a part-time basis. She is familiar with Japan, having travelled there.1 She has historically spoken some German and French.
At the commencement of this action, Ms. Doe was employed part-time with a studio engineering firm; she has taken a leave of absence to concentrate on this litigation. She felt she was not able to fully focus on her work and would make mistakes because she was distracted. Ms. Doe understands that she will be permitted to return to that employment on a full-time basis once this trial is over and she can concentrate on her employment. Ms. Doe's leave of absence from the studio engineering firm commenced in 2010. She earned approximately $1,700.00 in 2010 and nothing in 2011. She is eager to get back to work there, and is sure that she will be able to. No evidence was provided to the court as to what her employment as an audio engineer will provide by way of remuneration or benefits. When she was working there in 2010, Ms. Doe earned $12.00 per hour. The court imputes an earning capacity of $480.00 ($12.00 per hour times 40 hours) per week gross to Ms. Doe. For purposes of computation of net income, the court has given Ms. Doe the status of single with one standard dependency exemption (herself).
During the entire pendency of this action, Ms. Doe has been supported by funds from the defendant (until his child support and alimony obligation of $300 per week to her terminated) and her mother. Her mother has contributed significantly to her support and the funding of this litigation. Ms. Doe has incurred $415,280 in litigation-related expenses to the date of trial. These expenses have been paid by her mother. They include the costs of supervision of her parental access since November 2010, payment to the three experts who testified on her behalf: Dr. Kaplan. Dr. Newberger and Dr. Silberg, approximately $37,000 for legal representation by an attorney, Cheatham, from Pennsylvania, who ultimately acted only as a consultant for her, funds for her prior counsel, funds for her current counsel, in litigation before this Court, and funds for a law firm that she retained to pursue administrative matters with the Department of Children and Families.
The plaintiff was in an automobile accident in 2003, while she was seven months pregnant with Peter. Ms. Doe described the automobile accident as a fender bender. This is simply not credible. Why she attempted to minimize the effect or nature of the accident is unclear to the court.2 In an interview with a psychologist retained in preparation for trial, Ms. Doe described significant pain, treatment and ambulatory restrictions. In pursuit of a personal injury settlement, one of Ms. Doe's providers evaluated her disability resulting from the accident. Ms. Doe's injuries were to her shoulder, hip and jaw. She was treated by providers of various disciplines. Many were in Massachusetts. Among others, she was treated by Dr. Maykel and Dr. Metzger, both chiropractors, a hypnotherapist, an acupuncturist, and Randy Payne, a massage therapy provider in Watertown, MA. Mr. Payne utilized St. John's method of neuro-muscular therapy (massage).3 Mr. Roe transported Ms. Doe to at least 500 appointments with providers for her care in Massachusetts. She also suffered from migraines and experienced jaw pain; she was treated with Invisiline braces. Notwithstanding the disability ranking of 44% to the whole body ascribed to her in pursuit of a tort claim, the court finds that the accident has not left the plaintiff with any residual effects that would presently interfere with her employment or ability to parent Peter. This is based on all of the evidence regarding Ms. Doe's present mobility and able to attend to life's activities.
Ms. Doe incurred approximately $75,000 in medical bills for various kinds of treatment arising out of the accident. Most were paid out by the parties, not an insurance carrier.
Because of the limitations on her physical capabilities posed by the accident, Ms. Doe's mother moved into the in-law apartment at the parties' marital home after Peter was born, to help with his care and household chores.
Prior to the marriage, the parties largely lived together in the plaintiff's apartment in Vernon. Initially, they moved in with the defendant's family in West Haven. They then purchased a condominium in East Haven. The down payment funds came from Ms. Doe's family. The parties moved into the condominium in January 2003. The parties also own rental property at Atwater Street, in West Haven, Connecticut. It was purchased early in their marriage. It is managed by Mr. Roe.
In 2006, the parties purchased the marital home at 7 Morning Mist, North Haven, Connecticut. The property had an in-law apartment where the plaintiff's parents (mother and stepfather) lived after the plaintiff's automobile accident. They paid rent of $3,000.00 per month to the parties.
The marital home was sold during the litigation. The net proceeds, $83,202.00 were placed in escrow. The escrow account was used to pay professionals all involved in this litigation. The funds are fully depleted.
When the parties physically separated, Mr. Roe moved in with his parents in West Haven, Connecticut. After the sale of the home, Ms. Doe moved into a home in Bethany, Connecticut where she still lives. It is rented.
Ms. Doe purchased raw land in Nova Scotia in 2008 with funds from her mother. Mr. Roe has expressed no interest in ownership of this property. The court accepts $130,000 as the value of the property (as expressed on Ms. Doe's financial affidavit).
Mr. Roe used his own funds (approximately $40,000.00) for the down payment on the Atwater Street, West Haven rental property. The closing was shortly after the parties married. (The parties never lived there.) Ms. Doe's mother gave the parties $25,000.00 for capital improvements. The tenant rentals are largely for Section 8 housing. The annualized repair and upkeep for the premises is inclusive of major capital improvements in the past year. While the Atwater property normally pays for itself, one of the three units is currently empty. It has been renovated as reflected in the annual repair costs. It will be rented soon.
Ms. Doe failed to reflect the settlement of her auto accident claim on her financial-affidavits throughout these proceedings. Our cases have uniformly emphasized the need for full and frank disclosure in that affidavit.
“A court is entitled to rely upon the truth and accuracy of sworn statements required by § 380 [now § 463] of the Practice Book, and a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding.” Casanova v. Casanova, 166 Conn. 304, 305, 348 A.2d 668 (1974). Moreover, in Monroe v. Monroe, supra, we referred to the requirement of full and frank disclosure between attorney and marital client. “[Lawyers who represent clients in matrimonial dissolutions have a special responsibility for full and fair disclosure, for a searching dialogue, about all of the facts that materially affect the client's rights and interests.]” Id., 177 Conn. at 183, 413 A.2d 819. In Baker v. Baker, 187 Conn. 315, 322, 445 A.2d 912 (1982), we imposed this requirement of honest disclosure between the litigating parties and the court. It is a logical extension of those precedents to require such full and frank disclosure as well between the marital litigants themselves.” Billington v. Billington, 220 Conn. 212, 219–20, 595 A.2d 1377 (1991).
Ms. Doe received approximately $30,000.00 from her auto accident settlement. This is also a flagrant violation of the automatic orders. Practice Book sec. 25–5(a)(1). It is demonstrative of a willfulness to not follow court orders that are inconvenient to Ms. Doe's plans.
Liabilities and Expenses
Mr. Roe pays no rent at his parents' home. His financial affidavit reflects the rent that he hopes to be able to pay. The costs of this litigation have made it impossible. He has had to borrow money from his parents for some of the costs of this litigation. He owes his mother $139,200.00 for legal fees, $15,000.00 for fixing rental property, $6,000.00 for back rent; $1,533.00 for supervisor fees, and $5,700 for the court evaluator. Until two months before trial, the defendant was paying the plaintiff $300 per week for alimony and child support.
Mr. Roe also is the sole support of Peter, paying all of his day-to-day expenses. Ms. Doe has paid a handful of insignificant incidental expenses. Mr. Roe also pays the costs of the private school education at the child's private school. The tuition for the school is approximately $12,000 per year. Both parties agree this is a necessary expense for the child. The school is a safe environment for him as he grapples with the emotional issues that plague him presently.
Ms. Doe's rent is $1,700.00 per month. All of her expenses, including her rent are paid by her mother. As a result, she has received a significant amount of money from her mother for both litigation expenses and living expenses: $415,280.00 for litigation and expert fees, $140,943.62 for living expenses, $90,736.25 for visitation supervision fees and, as shown on the plaintiff's financial affidavit another $145,000.00, utilized by her from her mother's bank account. Ms. Doe's understanding is that her mother expects to be paid back for these sums. The court does not perceive any realistic way for this to occur based upon the finances of either party. Further, Ms. Doe's choice to not seek or maintain employment during this action is the major reason she has had to receive money from her mother for living expenses. The bloat of these litigation expenses is a direct result of her relentless pursuit of her claims against her husband as described in this decision.
“The court has determined that each party should pay their own attorney fees without contribution from the other. “The statutory authority for the award of counsel fees is found in General Statutes § 46b–62 ․ The court may order either party to pay the fees ․ pursuant to ․ § 46b–62, and how such expenses will be paid is within the court's discretion ․ “The order for payment of ․ fees under § 46b–62 requires consideration of the financial resources of both parties and the criteria set forth in ․ [General Statutes] § 46b–82 ․ Section 46b–82 instructs the court to consider, inter alia, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties ․ Although the trial court is not required to find expressly on each of the § 46b–82 factors, it must have sufficient evidence to support each factor.” (Citation omitted; internal quotation marks omitted.) Utz v. Utz, 112 Conn.App. 631, 640–41, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009).” McKenna v. Delente, 123 Conn.App. 146, 170, 2 A.3d 38 (2010).
While Ms. Doe has incurred greater fees, Mr. Roe is burdened with his own obligations. His paycheck will not be sufficient to cover his own obligations let alone pay Ms. Doe's.4 In order to pay his own debts, including amounts he borrowed for attorney fees, he will be financially impaired. This as well, will adversely affect his long-term ability to gain independent housing for himself and his son.
Outstanding costs of court appointed professionals are $2,525.00 for the psychiatric evaluator and $6,455.00 for the guardian ad litem. The responsibility for payment of their fees is contested. The court finds these fees reasonable and will be ordered paid.
The plaintiff seeks from the defendant: reimbursement of all of her supervised visitation costs (approximately $90,000), his payment of private school tuition of roughly $10,000 (which he pays currently), the sale of the Atwater property and its net funds ($31,394 pre-sale cost net value) equally divided, payment of counsel fees of $217,000 for her, his payment in full of the guardian ad litem, full payment of the evaluator, $25,000 of her credit card debt, and the equal division of his retirement funds, which are approximately $309,000 in current pre-tax, pre-penalty dollars.
It is noted then that the plaintiff wants the defendant to split equally the assets in his name but she does not want to give him any equitable credit for the $130,000 valued Nova Scotia property.
The request for the defendant to pay some of her credit cards in the face of this is absurd. Further her credit card bills are replete with evidence that they were used for costs furthering this litigation and paying for her discretionary expenses, including overnight holiday at spas, spa treatments and payments in the thousands of dollars to an individual known no more than as ‘Dave from Colorado’ who she asserts to be a spiritual leader to her. This may be so, but these are not sums the defendant should be expected to pay in the parties' postseparation world. The defendant has debt of approximately $161,000 which, as he states it is “all due to her falsely accusing [him] of sexually abusing Peter. It's not fair.” The court concurs. The defendant will not be ordered to pay any of the plaintiff's debt; he has plenty of his own to address while raising the parties' son.
Finally, the request for the court to order the payment by the defendant of the supervision expenses is equally unsupportable. The plaintiff's own, unrelenting conduct is what has caused the need for court-ordered supervision. Further, during the entire time of the supervision the plaintiff paid no child support to the defendant.
Both of these parties are saddled with expenses that may well be beyond their ability to pay. The sale of the Atwater property would not help that. The equity on paper is modest, about $31,000. This is currently a break-even property when fully rented. In an unfriendly real estate market where there will be associated costs of sale, the court does not find ordering its sale efficacious.
Indeed the court is leaving the plaintiff solely the value of the Canadian property which was bought with funds from the plaintiff's mother. The liquidation of that asset is far more likely to provide her financial relief and allow her to repay her non-familial debt in full and some of the debt toward her mother.
The defendant's deferred compensation plans are: his ATT 401K of $246,000, his ATT pension of $65,000 (present value) and his Employer Vanguard account of $24,300. All of, these dollars are approximate. The plaintiff seeks half of each. The ATT funds were, in part, accrued premaritally. The defendant resists this arguing that he will need them to liquidate debt that he has occurred in this litigation. At the time the parties were married, the ATT pension had a value of $30,000 and the ATT 401K had a value of $75,000. On the date the, defendant was served with dissolution papers the 401K was valued at $193,754.61. Similarly, the Employer Vanguard account had a value of $6,233.50. The court has weighed these values in terms of the defendant's contribution to the marital asset with premarital assets of this nature.
The defendant asks that the court credit to the plaintiff all of the funds she received from her personal injury settlement during the pendency of this action. While she may have paid bills with the sums, she failed to disclose the sum. The court accepts this and so credits the plaintiff the sum of $30,000 as funds that should have been in the marital estate available for distribution.
The parties had a marital home which was sold. The net proceeds of $83,202.00 were placed in escrow. Ultimately they all went to the cost of litigations and fees toward plaintiff's counsel. None was used to pay defendant's counsel.
It is only after the consideration of the division of the marital estate that the court considers the plaintiff's claim for alimony. Gen.Stat. § 46b–82. Further, the plaintiff seeks child support (which she will not receive inasmuch as the child will be in the custody of his father) but also alimony in the amount of $887.00 weekly. The defendant's current net is $1,565.00, from which he must pay for the child's private school and camp (approximately $288 per week) and then all of the other expenses of his and his child's life. Further, as the custodial parent, it would not be best for Mr. Roe to take on additional work beyond his current regular job just to meet an alimony obligation. The defendant seeks no child support for so long as the plaintiff has the costs of supervised visitation, which shall continue pursuant to this order.
“The concept of basing financial orders on a party's earning capacity as opposed to one's actual earnings is well established in our statutes and case law. Connecticut General Statute § 46b–82 directs the court to look to a series of factors in setting an alimony award including but not limited to “occupation, amount and sources of income, vocational skills, employability ․” In our case law this has come to mean that “[e]arning capacity ․ is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” (Internal citations omitted). Weinstein v. Weinstein, 280 Conn. 764 (2007).” Traystman v. Traystman, 2011 WL 4347846 *5
The plaintiff acknowledges a job waiting for her as described above. Her decision to not work (2010 she had only $1,700 in income) for the last two years is her choice alone. No evidence in this trial suggests she is not able to work, nor does she. For two years she has intentionally suppressed her earning capacity. This is not something for which the defendant should pay.
The court finds that the plaintiff's earning capacity based on the evidence is $440 per week gross. Using this as a deviation from the guidelines because she should and could be, earning that, an application of the guidelines to that amount indicates that the appropriate support would be $58.00 per week from the plaintiff to the defendant; she would also pay 15% of unreimbursed health expenditures for the minor child. The court concurs with the defendant that as long as the plaintiff has visitation supervision costs that exceed that child support amount, the court should further deviate from the guidelines based upon costs of visitation.
The Marriage until the filing of the Dissolution
The parties had no substantial issues between them when they were first married. After the loss of their first pregnancy they both continued martial arts. While she never complained of any behavior of her husband's at that time, in the midst of this litigation, the plaintiff has claimed that he was physically abusive toward her in that she had sustained two hits to the head as a result of his conduct. The first incident she points to occurred when they were physically horsing around. Mr. Roe tossed her on a couch and she hit her head. Mr. Roe's mother heard the two of them ‘horse-playing’ with laughter at that time. The following day Ms. Doe went with her mother-in-law for medical attention for her head. At no time did the plaintiff suggest the injury was done maliciously. Ms. Doe acknowledges that she did not think anything of it until later when she started to be suspicious that her husband intended to hurt her. This is a' fiction of her mind. Nothing in her testimony or any other evidence would lead to a credible conclusion that this was anything other than an accident that comes from horse-play.
The other incident that Ms. Doe calls abusive involved a martial arts training move. Ms. Doe was training at a class with Mr. Roe; she made a move toward him and he feinted away. She fell and hit her head and received a concussion. She trained with him after this incident, at times asking for him to be her teacher. Once again, there is nothing in the evidence from which the court can infer that Mr. Roe meant her any personal harm. Martial arts,5 by their very nature, to a layperson, suggests and infers physical effects to a participant from actions of the other participant.
Ms. Doe claims throughout this matter that Mr. Roe (from her pregnancy with Peter forward) was emotionally controlling, verbally abusive and physically menacing and sexually abusive toward her during the marriage. These claims are relevant to her issues arising out of the marriage and to her concerns in seeking custody of Peter and supervised visitation only for Mr. Roe. The crux of the assertion is that Mr. Roe's abusive and controlling behavior toward her has contributed in a significant way toward Peter's bizarre behavior.
The allegations of physical abuse (the incidents described above) were never raised by the plaintiff until after the commencement of the divorce. This court does not find the incidents as examples of any physical abuse. The plaintiff has failed to prove that the defendant has physically abused her in any way.
The plaintiff asserted in testimony that she was sexually abused throughout the marriage by her husband. However, her sense of abuse was that he would manipulate her into agreeing to relations. There is no testimony that he assaulted her. Further, the parties lived together, without intimate relations for years. This is not the behavior of an individual sexually abusing another. During the period of 2005 to 2006, the plaintiff was in counseling with Dr. Sloan Gorman, ostensibly for treatment needed as a result of her accident. While she felt free enough in there to discuss aspects of her childhood with Dr. Gorman, Ms. Doe never reported any kind of claim of abuse toward her from her husband. At another point in Ms. Doe's testimony she indicated that the coercive, controlling behavior really was noticeable after the parties took a trip to Cape Breton, Nova Scotia in August 2007.
The nature of spousal interactions are that they are private. However, at times, other people are around for some coercive and controlling behavior. In the instance of this case, no one testified corroborating Ms. Doe's assertions, except her close friend Ada Shaw. Ms. Shaw was in the parties' home one visit with both of them very late in the marriage. Even if her testimony is accurate, it is not sufficient to support claims of an entire marriage of coercive, controlling behavior by Mr. Roe. Ms. Shaw's alliance with Ms. Doe is complete. Her hostility to Mr. Roe was palpable in the courtroom when she testified.
It is also notable that Ms. Doe felt strong enough to determine to have no sexual intercourse with Mr. Roe and not to be intimidated by him regarding this decision that goes centrally to the spousal intimate relationship. This conduct is not consistent with the behavior of a person intimidated by another. No expert testimony was offered to suggest that this behavior is consistent with that of a woman victimized by a coercive, controlling intimate partner. State v. Ali, 233 Conn. 403, 432, 660 A.2d 337 (1995). Given Ms. Doe's distorted reporting regarding the above-described two incidents, it is difficult for the court to accept her version of their interactions. She has concluded he is an abuser. The court cannot, having listened to and observed her and consider her statements in light of all the evidence, conclude that Ms. Doe's perceptions are accurate. Unfortunately, Ms. Doe also sees much of her son's behaviors described later in this decision as a direct reaction to Mr. Roe being an abusive person physically, emotionally, verbally and sexually. Since the court cannot and does not find the first premise it cannot accept it as a basis for that behavior.
There were arguments and raised voices as frustrations between the two of these parties escalated. Mr. Roe did yell at his wife; he was upset with her for not doing more to be helpful than she was in the home. On one occasion he kicked and dented the car. This must have been intimidating. She spent hours each day on the computer, not attending to familial responsibilities. Arguments were hot tempered. She asserts that he often yelled at her, demeaned her and one time damaged her car, another time a wall in their home. Mr. Roe acknowledges one incident in which they were arguing and he followed her in the bathroom and when he saw her face he realized she was fearful of him. Upon the realization, he walked away. After observing Mr. Roe at length at trial, the court finds that his directive style in the context of a tense relationship likely had coercive and angry sounds grounded in his frustration over Ms. Doe's disinterest in full household participation as he wanted from her. The court finds that Mr. Roe's behavior did impel the plaintiff to decide to seek a dissolution of the marriage. On the other hand, Mr. Roe was an incredibly hard worker during the marriage; he took Ms. Doe on countless medical appointments and supported her throughout her convalescence from her accident, all the while helping with the care of Peter and keeping the household in order. His frustration was reasonably grounded as a result of Ms. Doe's lack of appreciation of his many efforts for their family and household. The court finds, that each party contributed by behavior described above to the breakdown of the marriage. Neither is at greater fault.
Because Peter was born within a year of the parties' marriage, they did not have a lot of time as married people without the responsibilities of parenthood. The parenting approach that these parties selected was largely as a result of decisions by the plaintiff. She would educate the defendant as to these preferences and he would acquiesce. She performed a tremendous amount of research on the Internet as to child-rearing techniques. The research resulted in her selecting, with the defendant's approval and assent, a style of child-rearing that was very lax while they were parenting together. This philosophy consisted of a parenting style short on boundaries with a kind of permissive approach to child rearing. There were no consequences for out of bounds behavior. The child was not disciplined for misdeeds but instead was spoken to at length regarding his motivation. This approach to parenting has not served Peter well, it is clear. His particular needs are for structure and boundaries, constantly reinforced. Ms. Doe testified that if she were to see Peter attempt to put his hand on a hot stove, she would discuss it with him without raising her voice.
As an infant, the child's foreskin would not retract. He was seen for it at the pediatrician. It was recommended that the parents manipulate it to gain the flexibility needed. The plaintiff denies following the instructions. She told the court that she was “vehemently opposed to retracting the foreskin before it naturally does it” on its own. The child was not seen again at that office for many years, until the onset of this litigation. During the intervening years, the child was treated, as needed, by a naturopath.
Throughout the marriage, the parties struggled with different notions of their respective responsibilities in their household. Mr. Roe did not change diapers early in Peter's life. Since Peter's birth, while both parents were involved in various aspects of the child's care, Ms. Doe's automobile accident injuries made her less available as a parent. Her mother helped a lot. The child was bottle fed by both of his parents. Ms. Doe expressed milk for this feeding. Substantial testimony was adduced by both sides claiming they were primarily responsible for Peter's early care and the other was not. While the court has found facts relevant to those assertions, ultimately no finding regarding the same is made since it is not essential to a determination of custody. Both parents cared for the child and he attached to both as parents. The custodial determinations in this case are far more dependent on the statutory factors which reflect each parent's ability or problems in attending to Peter's current needs. “In making a determination of custody ․ the trial court is bound to consider the [children's] present best interests and not what would have been in [their] best interests at some previous time.” (Internal quotation marks omitted.) Blake v. Blake, 207 Conn. 217, 224, 541 A.2d 1201 (1988). “We recognize that a party's prior conduct ․ may have a direct bearing on his or her present fitness to be a custodial parent ․ 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.” * *552 (Citation omitted.) Id., at 304, 536 A.2d 978.” Collins v. Collins, 117 Conn.App. 380, 392, 979 A.2d 543, 551–52 (Conn.App.2009).
The parties slept with the child in their bed from birth onward. They did not possess a crib. Commencing in 2008 some efforts were made to separate the child from the bed without much success. The court concludes that there was no real will by either parent to accomplish this developmental milestone for Peter. The parties had sexual relations with Peter in their bed from his birth until their sexual relations ceased. Incredibly, the notion was that the child stayed asleep while this was going on. This conduct contributed to the child's over-stimulation described later in this decision.
Peter had difficulty with toilet training. Some of the difficulties included night time enuresis, withholding of stools and constipation; some surrounded difficulty with being alone in the bathroom. The parties struggled with the management of this. Inappropriately, Mr. Roe at one point late in the toilet training process would hold Peter firmly around the waist when he was on the toilet. He would tell Peter he was safe. It was Mr. Roe's view that Peter had trouble in this area because his maternal step-grandfather came in the bathroom once when he was toileting. Both parents have, however, been inappropriate in this realm. As recently as 2010, Ms. Doe acknowledged she would help her son toilet himself, wiping his bottom; this is inappropriate for a seven-year-old child. Ms. Doe also reported that when Peter was about five years old he would urinate about the house. She also stated that he would urinate on her. This troubled behavior is reflected in and explained by the evaluator conclusions that he struggles with his emotional maturity, lagging about three years behind. The court is bewildered that the plaintiff did not impose sufficient consequences on the child for this behavior to stop it. As the psychological evaluator reported, the parenting approach of the plaintiff is not well-suited to the needs of this child.
During the years the parties lived together, Mr. Roe, with the approval of Ms. Doe would occasionally massage Peter in the style he had learned (from Randi Payne) for the care of her following her accident. Ms. Doe had no complaints of this massaging during the time the parties lived together. This massage later became known as the tickle game. This massaging was for a tight thigh muscle which was massaged from its beginning at the groin and then down the leg. This conduct contributed to the child's over-stimulation detailed later in this decision. It also became a focus of the plaintiff's claim that Mr. Roe was sexually abusing the child.
Peter was often cared for by his maternal grandmother during his pre-school years. This is one of the principal reasons that Mr. Roe suggested that Ms. Doe's mother move into the in-law apartment. At that same time, Mr. Roe was working long, long hours—often well in excess of sixty hours per week at his job. He took over child care most evenings. At times he worked from home and would sometimes be available there for the care of Peter. He spent a lot of time rocking Peter to sleep at night. Mr. Roe's mother was also helpful with the care of Peter. On most Sundays between 2003 and 2009, the parties would go to the home of Mr. Roe's parents. Upon arrival, the plaintiff would retreat to the bedroom for the majority of the time while Mr. Roe and his mother took care of Peter. Occasionally, Ms. Doe socialized with the rest of the family.
During the time from Peter's birth to the parties' separation, Mr. Roe also attempted to attend martial arts classes up to five times per week. He had varying success. At times he stayed home or returned home to help Ms. Doe with the care of Peter rather than attend the class. Classes were offered in different locations during the week and therefore he had multiple opportunities to keep his practice up.
Peter started hitting his mother as a very young child. When he was a toddler he would hit her when seeking her attention. Ms. Doe reported that when he was four years old he would hit in the area of her kidneys and her face. She tried correcting him unsuccessfully. After this continued for six months, she decided to take him for therapy with Katherine Templeton. Ms. Doe also felt Peter was anxious at this time.
Peter proceeded in therapy first with Kathleen Boudreau, Katherine Templeton and finally with Dr. Collins who is his current therapist.
Before the filing for dissolution of marriage, the parties went to counseling for between fifteen to twenty sessions with Pat Heavern, a life coach and self-described energy healer. Among other reasons for working with Ms. Heavern, the plaintiff went there seeking to work out the terms for a divorce; the defendant hoped the marriage could be saved. The marriage was not to be saved but the parties did work out an agreement while working with Ms. Heavern on what their custodial relationship would be regarding the care of Peter. Ms. Heavern saw the parties individually and together. Ms. Doe described to Heavern some of the verbal arguments, she had with her husband. She never complained of sexual or physical abuse by her husband of her, or their son. Her explanation of him being sexually aggressive toward her was that he was not interested in foreplay. Ms. Heavern noted the sessions alone with Ms. Doe provided multiple appropriate opportunities for Ms. Doe to have raised the claims of abuse if they existed. The parties concluded their work with Ms. Heavern with a co-parenting agreement.
Post-dissolution filing (pendente lite) period1July 7–December 31, 2009
The plaintiff filed for dissolution of marriage in July 2009. The complaint had a return date of July 7, 2009. The parties were still living in the same home. The plaintiff filed as a self-represented individual. She filed seeking a shared custodial arrangement, a fair division of the assets and no alimony or child support. The plaintiff would have the court believe that the defendant forced her to file this way. The testimony is not credible. It is also inconsistent with her own testimony at other points: she said she was trying to be peaceful about it and that mediating was somewhat difficult because he would shift the goal posts. They did, however, ultimately mediate and agree. Rather, the complaint claims for relief reflected in the agreement the parties had reached working with Ms. Heavern. Throughout the period of time of July 7 to December 3, 2009, the family all lived in the same home. Ms. Doe raised no concerns of abuse of Peter, by anyone, with anyone.
Prior to December 3, 2009, the plaintiff never made any allegations that the defendant had sexually abused their son. On that date, the parties were in court for a short calendar hearing. Ms. Doe's counsel had provided to counsel for Mr. Roe an affidavit and application seeking an ex parte order for sole custody, supervised visitation an based upon allegations of abuse of Peter by the defendant. While the parties were waiting their turn to meet with Family Relations, the plaintiff called the Department of Children and Families (DCF) hotline to report the defendant for sexual abuse. She had never called previous to that date. These accusations and innuendos from that point forward set in motion the warren that this family has traveled through accusations and repeated evaluations over an incredibly hostile and conflicted pendente lite period.
On that same day, December 3, 2009, the parties entered into a pendente lite custody and parental access agreement. The parties were to have joint legal custody. Peter was to primarily reside with his mother, he was to be with his father every Monday and Wednesday from 3:30 p.m. to 7:00 p.m. and on alternate weekends from 5:00 p.m. Saturday to 5:00 p.m. Sunday; on the intervening weekends from 9:00 a.m. Saturday to 5:00 p.m. Sunday. The plaintiff has characterized this agreement as requiring that the defendant's time with their son be supervised; no such supervision was required in the agreed court order. The court-ordered agreement did require Mr. Roe's “mother shall be present in the home for any overnight visitation.” It is noted that Mr. Roe lived then and now in his mother's home.
A full custody evaluation was immediately commenced by Family Relations. Rob Lamontagne, the assigned family relations officer performed a full custody evaluation. A guardian ad litem, was also appointed to protect the interests of the child.
Two principal friends of the plaintiff (one former and one present) factored into the evidence adduced in this case. One, Jen Bourne, was a close friend of Ms. Doe and present in the home on many occasions throughout the time the family lived altogether. For reasons that were never presented in evidence, she remained friendly with Mr. Roe but apparently not with Ms. Doe. She was interviewed by Family Relations and the court appointed psychiatric evaluator.
The other friend of the plaintiff, Ada Shaw, was omnipresent with Ms. Doe throughout the post-filing period. Ms. Shaw became friends with Ms. Doe in 2009, through Ms. Shaw's sister, who had been in contact with Ms. Doe through an online message board, mothering.com. Ms. Shaw visited the Roe/Doe home one occasion before the parties' separation. She has become a fixture in the home of Ms. Doe since whenever the child is there. She maintained a log of Peter's behavior.6 Either she or Ms. Doe's mother, or both were present for every single one of Ms. Doe's supervised visits until the court ordered that some of Ms. Doe's time with the child be alone (except the supervisor).
Ms. Doe stated that the child was grabbing her and tickling her crotch for some weeks before December 2009. She told him that “we don't do this” and asked him over and over why he was doing it. The court infers from the fact that it continued that Ms. Doe did not remove the child or otherwise impose behavioral consequences to encourage him to stop it. On December 1, 2009 she contacted Katherine Templeton and Kathleen Boudreau. She called for an appointment for Peter with the pediatrician, Dr. Whelan who had cared for Peter until he was fifteen months old. Neither he nor anyone in their pediatric practice had seen Peter from then until the appointment, some 6 1/2 years. On December 2, 2009, one day before the court date, and unbeknownst to the defendant, the plaintiff brought Peter to Dr. Whelan. She raised allegations of sexual abuse by the child's father. The pediatrician met with Peter to discuss what was occurring. Peter did not disclose any abuse.
The first time the defendant heard of these allegations against him was at the December 3, 2009 court date. He moved out of the marital home and into his parents' home in West Haven immediately.
The plaintiff's and Shaw's logs regarding Peter's behaviors began around that time as well. The plaintiff also reported that at the end of November 2009, shortly before the December 3, 2009 hearing, Peter came down the stairs in the morning, unclothed with glazed eyes. The child had been upstairs with his father. His father was changing the bed after the child had soiled it (enuresis). The plaintiff was on the computer at the time. At first she was not concerned about this but after speaking to her friend, Ada Shaw, she became concerned. As the plaintiff described this sequence of events to the psychological evaluator (see below), “eventually her friend Ada (‘who has a background in psychology’), started suspecting that something might have happened. She explained that Peter was displaying all these odd behaviors and they began to question why.” With hindsight, the plaintiff came to believe that something untoward occurred upstairs that day between the defendant and Peter. She also became convinced that the defendant's massaging of the child thighs, which she encouraged and witnessed on numerous occasions, was for sexual gratification of Mr. Roe. She denies having approved of such massages or being a part of them. The evidence shows, however, that Mr. Payne did train Mr. Roe in the massaging technique. Further, the court found Mr. Roe credible on the involvement of Ms. Doe in witnessing and approving of his massages of Peter.
Mr. LaMontagne first met with the parties jointly on December 21, 2009. At that time Ms. Doe reported that she was concerned about her child being sexually abused. In the Family Relations Questionnaire, Mother checked “other” regarding concerns about Father and son and wrote “boundary issues with child.” She also said she was emotionally abused by Mr. Roe and checked the box in the Domestic Violence section regarding “violence between you and the other parent.” Ms. Doe asserted that Mr. Roe was overbearing and controlling, especially concerning money and their son. She also raised concerns regarding emotional abuse by her husband.
During early 2010, Ms. Doe found the child's behavior toward her to be increasingly sexualized; he would grab her crotch and at her breast. He also was singing disturbing songs, which she audio-taped on occasion. Mr. Roe did not report similar problems. Occasionally, Peter would sing an inappropriate song and he would tell him “to knock it off” which seemed to stop it.
Mr. Lamontagne met with Mr. Roe individually in early January 2010. Mr. Roe, at that time stated that he was concerned that Ms. Doe was alleging sexual abuse, that he wanted what was fair and for Peter to have a relationship with both of his parents. He also stated that he was concerned about her lack of attention to Peter and whether or not she is emotionally able to care for Peter. In Mr. Lamontagne's first meeting with Ms. Doe in January 2010, she reported that she was worried that her child had been sexually abused, that Peter told her his father had touched him, and it needed to be properly assessed. She also reported that Mr. Roe was emotionally volatile and controlling, that he had never been happy with her, and that he was verbally and emotionally abusive. She reported that his needs were more important than her recovery following her car accident, that she was fully healed from her car accident at that point and had no serious ramifications from the car accident. In Mother discussing her childhood, she reported that her father was physically abusive and emotionally distant, and she was molested by her stepbrother. Mr. Lamontagne's initial evaluation report was completed on April 28, 2010, essentially five months after the first allegation of sex abuse by Ms. Doe.
In performing his evaluation, Mr. Lamontagne communicated with the parties numerous times, all of the providers in this matter, and individuals selected as collateral contacts, including Ada Shaw and Jennifer Bourne. Ms. Kathleen Boudreau, Peter's first therapist (LCSW) noted to Mr. Lamontagne that she ultimately saw more of Mr. Roe because he completed the Healthy Touch program at her agency. This was court mandated for both parties, Ms. Doe never attended. Her excuse was that the program had a different name so she did not know it to be the same program as that mandated. This is absurd. This was yet another violation of a recent order because it did not suit Ms. Doe to comply. It is regretful because perhaps the program would have helped her in managing her sense of her child's needs.
Ms. Boudreau reported to Mr. Lamontagne that she saw no evidence of Peter being abused. She did report that she was concerned that Ms. Doe continued to bring up allegations of abuse notwithstanding the lack of evidence.
The child's pediatrician, Dr. Whelan reported to Mr. Lamontagne that he saw no signs of trauma or bruising on the child's rectum whenever he examined him. The Yale Emergency Room found no signs of trauma either. DCF concluded that there was no substantiation of abuse or neglect against Mr. Roe. They did substantiate educational neglect 7 by Ms. Doe, which she challenges legally. This was the result of the child being tardy in excess of 20 times one school year. Ms. Doe explained the tardiness was the result of snowy days, and, that Peter was never very late.
Peter's school teacher for 2010–2011 indicated that while Peter was performing well academically, the failure of the parents to communicate was noticeable. Also she noted that each of them expressed negative opinions about the other to school staff. Peter also was visibly manipulative of his parents to get his way.
Ms. Doe's therapist in the 2005–6 time period was Ms. Sloan Gorman, LCSW. She reported to the Family Relations Officer that she was consulted for treatment by the plaintiff regarding her 2003 auto accident. She was being treated for depression and post-traumatic stress disorder as a result of her injuries. Ms. Gorman was also concerned that Ms. Doe's decision-making might be affected by her perceptions of her own childhood trauma. The therapist concluded that she perceived Mr. Roe as angry and abusive; this conclusion was based on her patient's reporting to her. In 2009, Ms. Doe also had brief treatment at a Post Traumatic Stress Disorder center where she discussed her history of abuse as a child. Ms. Templeton who saw Peter (after Ms. Doe terminated his therapy with Ms. Boudreau), also gave Ms. Doe parenting coaching to try to address her concern's regarding Peter's difficult behavior. Ms. Templeton also reported concern regarding Ms. Doe's past history of trauma. She had experienced sexual molestation as a child via inappropriate touching. Her pleas for assistance from her immediate family were not supported by them. She did not, however, conclude it was affecting Ms. Doe's decision-making as a parent. (Mr. Lamontagne also spoke with Pat Heavern the life coach whose work is described elsewhere).
Ms. Shaw reported to the Family Relations Officer that Peter's behavior toward her, grabbing at her breast and showing his back-side were escalating and had not been present in early visits.
Mr. LaMonatagne provided substantial background information on both parents and visited the child in each of their homes as well. It was noted that Peter is clearly bonded to both. In observing Ms. Doe deal with Peter when he was upset, the evaluator observed, “she appears to acquiesce to his requests and demands. He also appears different with his mother versus his father. Peter was more demanding with his mother, and appeared to be in more control of their interactions and activities.”
There is no dispute that the defendant would massage the child. Because at times the massage would tickle Peter, the defendant and his son developed a code “no for teasing or no for real.” [Dubbed the teasing game for short by the court.] The child subsequently dubbed this the “tickle my weenie game.” There is no evidence, even in the child's statements to the psychologist evaluator, that the defendant actually engaged in the conduct of ticking his son's penis.
Peter was reticent to speak much with the family relations evaluator. He reported no abuse in either household. Peter told the evaluator that he is not allowed to use the word “weenie” at his father's home but when he is at his mother's home: that she allows him to use the words weenie and penis and “that she told him it was normal for kids his age to say these words.” Peter also reported that he believes his father tricks his mind but that he thinks this because that is what his mother told him.
In his April 2010 findings, Mr. Lamontagne noted that all of the current reports and allegations about the incidents at issue are coming from the mother. No one had substantiated that Mr. Roe touched the child's penis. Mr. Lamontagne was also concerned that Ms. Doe was letting the child know her feelings and planted the thought to him that his father tricked his mind. Notwithstanding multiple concerns, the evaluator recommended joint legal custody with the father having final decision-making when the parents cannot agree. He also recommended a shared parenting arrangement and therapy to continue for the child. Mr. Lamontagne met with the parties on April 7, 2010 to discuss the recommendations with them. Ms. Doe walked out of the meeting crying.
From December 2, 2009 forward, the plaintiff continued to bring the child to his pediatrician inferring that Peter had been abused. The doctor found no evidence of it. Dr. Whelan told the guardian ad litem that he thought the plaintiff was attempting to build a case for sexual abuse against her husband. According to Dr. Whelan's notes on March 31, 2010, one day after the Yale Sex Abuse Clinic interview detailed below, “there are complaints [by the mother] about blood in the child's stool and the source was identified as an anal fissure.” Dr. Whelan reported “No evidence of trauma.”
March 2010 to present
On March 28, 2010, Ms. Doe brought Peter to the Yale Emergency Room. She claimed that blood in his stool was caused by sexual abuse. She said she noticed it when she helped Peter wipe his bottom. The Yale Emergency Room referred Peter to the Yale Sexual Abuse Clinic. On March 30, 2010, Peter was interviewed at the Yale Sexual Abuse Clinic. The forensic interview was observed by Lisa Pavlvic, MD and Maria Silva, Yale New Haven Hospital, Child Sexual Abuse Clinic, Maya Parsons (the DCF worker), Milford Department of Children and Families, Detectives Mary Canfield and Kevin Boykin, West Haven Police Department. Peter made no verbal disclosure regarding any abuse of his father or anyone else. The court having viewed the tape of the interview, concludes he showed no anxiety to even a layperson and he appeared to understand and address everything he was asked.
The parties were to meet with Family Relations on April 7, 2010 to hear Mr. LaMonatagne's final recommendations. The day before, on April 6, 2010, Ms. Doe used a camera on a tripod to take a picture of her son's anus to document anal fissures. The child's maternal grandmother 8 hands are shown in the photograph spreading her grandson's buttocks apart in order to highlight the child's anus in the photograph. Ms. Doe said she was on the couch watching her son's face as he was bent over. The photograph was taken one week after the Sex Abuse Clinic interview, nine days after a physical exam at the emergency room and six days after a physical exam at the pediatrician. At the time this photograph was taken, Ms. Doe knew that no professional supported her claim of sexual abuse of Peter. Ms. Doe testified that she told the child the picture was for his doctor. Yet the doctor had just seen him six days before! The mother told the court, that Peter was “ok” with the picture being taken! This conclusion by her essentially ignored any real consideration by her of the effect on Peter with her preoccupation with his anus.
On July 29, 2010, the medical note states that Peter arrived from his father's home with an area of redness and bruising on his arms, back and feet, as well as discomfort with the foreskin of his penis. The pediatrician had no concerns that abuse was occurring.9 During Dr. Adamakos' evaluation process on September 15, 2010, the plaintiff told Dr. Whelan that the child is urinating on her and pulled her buttocks apart and “said he was going to put his penis in me and pee.” At that time, the plaintiff also explained that she had been using Bacitracin twice daily on Peter's penis as well as baking soda baths. Dr. Whelan later stated that “he felt that as time passed, [Ms. Doe's] anxiety rose and the nature of her allegations became less and less credible and more and more outside the realm of possibility. For example, he wondered how Peter could ever be in a position to spread his mother's cheeks and insert his penis in her bottom as [the plaintiff told him the child] threatened to.” In a note dated October 11, 2010, Dr. Whelan records that the mother used Bacitracin on Peter's penis for twenty-three days without success and that Peter continues to complain of burning on urination. In examining the child's genitalia, Dr. Whelan found “no evidence of trauma.” Although the plaintiff also complained that there was rectal bleeding, the pediatrician found that the child's anus “is normal in appearance without evidence of trauma, hemorrhoids or fissures.”
On August 3, 2010, Ms. Doe filed an Ex Parte Motion for Immediate Sole Custody Pendente Lite. It included a sworn affidavit that set forth the material facts upon which the defendant sought a modification of the initial pendente lite custody order. The defendant's motion was set down for hearing on August 6, 2010. In the intervening period, the parties had an all day special masters pretrial at the Regional Family Docket in Middletown. The guardian ad litem and both parties' counsel credited the special masters with helping secure an agreement on August 6, 2010 Agreement.
The parties appeared in court at 9:00 a.m. on August 6, 2010 and thereafter entered into a Stipulated Agreement, which among other provisions, modified the parental access plan so that the parties now shared physical custody. The August 6th Agreement also provided that “[t]he parents shall immediately enroll in Our Family Wizard.com and shall communicate via the Wizard at all times, except in an emergency, and each parent shall ensure the GAL full access to the Wizard. In addition, the minor child was immediately to begin therapy with John Collins, Ph.D. The August 6th Agreement further provided that “[e]ither party, through counsel, may seek further order or modification of the above orders,” and that “[t]he GAL shall have the ability to request an immediate status conference in the event that she deems court intervention necessary.” Finally, the plaintiff was ordered to provide the GAL with the minor child's passport by that coming Monday, August 9, 2010.
To this date, Peter's passport has never been provided. Mr. Roe last saw it in the home the day before he moved out. Ms. Doe asserts that it is lost, though it is entirely unclear why she would enter into this agreed court order if that was the case. Further, Ms. Doe did not use Our Family Wizard as ordered (it was often months between her visits to the site) because she feared that Mr. Roe, as a computer security specialist, would use her participation to hack into and spy on her through her computer. This is yet another instance of her violating a court order she did not like (even after agreeing to it).
On August 11, 2010 the parties agreed and it was ordered that they submit to a full custody evaluation with Dr. Harry Adamokos, a clinical psychologist. The evaluation was completed November 2010. While Dr. Adamokos did not testify at trial, his report was entered into evidence and available to other professionals who did offer testimony. He was requested to complete a psychological evaluation of each with diagnoses and global functioning indices and a global assessment of each as a parent. He administered tests, reviewed documents, interviewed collateral contacts, both parties alone and in interactional interviews with the child.
During this time, Peter's behaviors toward his mother and Ada Shaw have remained aggressive, often sexually and his sing song gibberish violent, aggressive and sexual. This has, according to Dr. Adamakos, fueled Ms. Doe's suspicion that Mr. Roe has sexually molested her son.
Dr. Adamokos notes that since the March 2010 sexual abuse evaluation, “Ms. Doe's frustration and anger has only intensified. Her belief has not wavered in regards to the question, as she feels that the procedures used to investigate the concern have been substandard and insufficient. She has expressed a belief that in the context of a divorce, that it is “convenient” for everyone involved to not fully deal with the possibility. She has expressed further upset because she (correctly) senses that her ongoing pursuit of the matter has increased the concern that she is acting inappropriately and contrary to her son's best interests. She continues to believe strongly that Mr. Roe is guilty. In this examiner's opinion, her belief is genuine, regardless of its validity. The evaluator notes that there is no way to prove conclusively and without a doubt that Mr. Roe did not abuse Peter, because of the very nature of the allegations. However, all of the negative findings have not quelled the mother's strong beliefs or concerns.
Dr. Adamokos was asked to provide a diagnosis of each parent pursuant to DSM–IV. He indicated that the likely diagnosis for the mother was Adjustment Disorder with Mixed Anxiety and Depressed Mood. He also had some concern that she may be suffering anxiety and depression symptoms similar to those in a Post–Traumatic Stress Disorder though he did not issue that diagnosis itself. The assigned diagnosis for the father it was a mild form of Mixed Personality Disorder with histrionic, compulsive and narcissistic qualities. While Mr. Roe was dramatic at times, Dr. Adamokos confirmed that he was grounded in a firm sense of reality. He is insecure, and “likely driven by a fear and worry about having restricted access to his son ․” While he has narcissistic qualities, he was able to take substantial responsibilities for mistakes he made. This characteristic leads the court to conclude that notwithstanding a diagnosis of Mixed Personality Disorder with the traits indicated, Mr. Roe is capable of adequately parenting Peter.
Dr. Adamokos opined that each parent has “sufficient psychological strength and sufficient parental wherewithal to care for [Peter] alone” if it were needed. While Dr. Adamokos did not make a recommendation, he noted that the mother was likely to remain hyper-vigilant for signs about abuse if the father had significant access to the child and not willing to extend any decision-making to the father. The father would likely be hurt and sad but regroup and likely be extremely protective of whatever time he has with his son if his contact were limited. The evaluator felt that Mr. Roe would be able to work with Ms. Doe if joint custody were ordered. He did not believe she could work with Mr. Roe if any kind of joint custody were ordered.
The completion of Dr. Adamokos' report in early November 2010 did nothing to quell the conflict between the parents. Dr. Adamokos was also concerned that Ms. Doe did not support the child's therapy with Dr. Collins. He was a correct prognosticator regarding this. On November 8, 2010 a hearing was held before the court on an emergency motion for sole custody filed by the defendant. At the conclusion of that evidence, the court, Gordon, J., ordered primary custody of the child to the father and specific supervised visitation to the mother. The schedule imposed was Tuesday and, Thursday after school to 8 pm, and, every other weekend Saturday and Sunday from 9 am to 8 pm. This decision was appealed; the trial court was affirmed. 132 Conn.App. 869 (2012).
The mother retained the services of N.J. Sarno and Company, a visitation service enterprise. The primary supervisor for the vast majority of the sessions was Alison Chiodo. Her notes of supervision are in evidence. It is a fair characterization to state that the child did sing song gibberish with lyrics that often had nonsensical scatological or sexual body part references, and at times, physically assaultive phrases. He often touched his crotch or rubbed it on things. He often touched his mother inappropriately, at her breasts, genital or posterior regions. This behavior is reported throughout the visitation notes (except the last four months, treated below).
On February 23, 2011, the court ordered another forensic evaluation by Dr. Kenneth Robson selected after an agreement by the parties to appoint him. He had been appointed at the recommendation of the child's therapist who had communicated his interest in an evaluation that considered the claims of sex abuse of Peter by his father. Consequently, Dr. Robson sought to determine, inter alia, the probability that the child was sexually abused by his father, as well as perform an over-all forensic custody evaluation. He interviewed the parties, the child, their collateral contacts, reviewed documents including all of the child's pediatric, hospital, DCF, and school attendance records, spoke with all the providers in this case, and the plaintiff's experts. He referred the child for psychological testing and evaluation, and evaluation of the sexual abuse allegations. These were performed by Dr. Linda Smith, a clinical psychologist. Their reports are submitted as one as an exhibit in this matter.
The plaintiff challenged Dr. Robson's work regarding the issue of sexual abuse of the child. This court has had occasion, in the past, to write regarding the same issue.
“In attempting to answer the questions posed to him, [the evaluator] noted that a great majority of allegations of sexual abuse are established on a probability rather than a certainty because of the lack of physical evidence or third-party witnesses. In evaluating the data he receives, he has devised an internal methodology of rigorous thought processes which categorize the data in three ways: as either supporting the credibility of allegations of abuse, as tending to diminish the credibility of allegations of abuse, or as finding the information neutral or non-contributory to that establishment. He engaged in that process here as well. The court resists the invitation of the plaintiff to treat this is a non-scientifically validated methodology that should be rejected. Indeed, [the evaluator] acknowledges that this is not a technique that has been peer-reviewed or utilized by other investigators. The court does not find it a methodology or theory; it is nothing other than a transparent view into the mind of the evaluator. He uses a disciplined approach of systematically thinking through the data. Here, [the evaluator] has merely invited the court into his thought processes so that the decision on how to regard his testimony and opinion evidence can be made more ably; he has not adopted a new scientific methodology or theory. Woods v. Berritieri, 2009 WL 2358734 Conn.Super., 2009.
Similarly, the court rejects the same challenge here. All of the events and statements in evidence and considered by this court were thoroughly evaluated by Dr. Robson through the prism of his education, experience and expertise. He is an experienced child and adolescent psychiatrist. Dr. Robson concluded that it is highly unlikely that the child was sexually abused by his father. The court accepts and adopts this conclusion. It is noted that Dr. Smith, who discussed with Peter the “tickle” game came to the same conclusion.
Dr. Robson does, however, after examining the conduct of both of the parties throughout their care of their child conclude that each has engaged in behavior that has over-stimulated the child. The decision to sleep with the child, to have intercourse in the same bed, to sleep with little or no clothing on, (in the father's instance alone) massage the child, with the ‘no for teasing, no for real’ game, the mother's permitting the child to hit her and touch her sexual body parts, the mother's failure to stop the child from sleeping with her even after the child pulled up her nightgown and pull her legs apart, the mother's photography of the child's anus, and constant checking of both the anus and the penis, all contributed to the child's over-stimulation.
The evaluator's clinical observations of Mr. Roe were consistent with Dr. Adamakos' evaluation. Finally, regarding, the father's need to learn better parenting skills, this evaluator found Mr. Roe coachable. After observing Mr. Roe and digesting all of the incredibly intricate and lengthy evidence in this case,10 the court concludes that it agrees.
Dr. Robson considered a variety of psychiatric disorders and their applicability to Ms. Doe. After providing definition and explanation to the conditions of Munchausen by proxy, malingering and folie a deux, he concluded that she presented a complex picture with characteristics of each of them, not falling into any one diagnosis. Her diagnosis is not necessary for this court to do its work. Rather, it is her behaviors, how they affect her ability to meet her son's needs, and whether she is able to adapt her behavior consistent with her son's needs that are relevant to the court.
Dr. Robson also opined that Ms. Doe's relationship with her son had an orgiastic quality to it; that she had a pre-occupation with his penis and anus. ‘Orgiastic’ is explained by the evaluator as chronic over-stimulation such that it interferes with the child's normal relating to the parent. It is distinguished from parenting where the parent stops the stimulation when s/he realizes that it is more than the child can handle. These parents raised their child in such an over-stimulated environment; the father's thigh massages contributed to the over-stimulation, as did Peter's exposure to the marital bed. Mr. Roe ceased those massages years ago. As of the time of these evaluations he drew a clear boundary: Peter slept in his own bed and toileted himself. His education of Peter regarding masturbation into a pillow rather than massaging himself also contributes to this over-stimulation. Mr. Roe needs parent coaching. The fact that he has knowledge to impart needs to be tempered with the way to impart it. The child, the evaluator suggested, should have been told private things should be done in private. Mr. Roe has much to learn.
Ms. Doe continued to assist Peter in toileting upon request, as, well as focusing upon the examination and treatment of Peter's private parts. Dr. Robson concluded that the mother had a sustaining interest (not necessarily consciously) from the child's birth in the child's private parts. He traced the history in his testimony and report. Peter's continuing behaviors with her are not prohibited by her. Peter acts out knowing his mother does not interfere with him acting as he chooses. As a result his sexual aggression toward her, not prohibited by her is implicitly, therefore, encouraged as best as he knows. This is because children respond to the way their parents treat them. His father says knock it off and means it and the sing-song gibberish stops. His mother does not stop it because she cannot because she does not see her own role in its creation. It is a bad cycle.
Ultimately, Dr. Robson recommended sole custody to Mr. Roe. He also recommended that the nature of Ms. Doe's contact be supervised with therapeutic assistance. He also recommended parental guidance therapy for Mr. Roe, and, that Peter continue in his treatment with Dr. Collins.
Dr. Robson also had the input of the psychological evaluator, Dr. Smith, to whom he referenced Peter for both a global assessment and an evaluation of sexual abuse allegations. Dr. Smith performed a battery of tests and multiple clinical interviews with Peter, all detailed in her report. An understanding of the child's deficits and strengths psychologically is necessary to understand her conclusions. While Peter has superior ability to reason based on information he has already learned, he has significant difficulty using his own judgment and processing information. He is very anxious. His 2011–2012 teacher confirmed this. She also confirmed that he had significant difficulty with adaptability and his social skills were not optimal. He has a poor sense of self-worth. He demonstrates extremely poor reality testing. As a result, his behaviors are sometimes bizarre to others though he has good capacity to control them when directed by others. As a result, Peter needs a parent who can impose these controls. Peter perseverates particularly when he is anxious. He often feels distress as well as anxiety because he perceives his social difficulties.
In the interview process with Dr. Smith, Peter displayed his anxiety and perseverating behaviors particularly when he talked about his mother. He expressed real annoyance at his mother constantly quizzing him. He wishes he knew the right answer to her questions each time so he could say it and she would stop questioning him.11
Peter has things get stuck in his head and it upsets him. This will often happen with songs or when talking about something. He wants to stop it but cannot. The evaluator found this and his other behavior as indicative of a disorder she recommended a full neurological and psychiatric work-up to determine his full diagnosis and if psychotropic drugs are needed. His behavior is not a disquieting reaction to sexual abuse as the mother would believe; rather it is a symptom of conditions described in the doctor's report that need not be reiterated here.
Peter is allowed to watch far too much television and videos. His father has not provided brakes on this and while his mother has expressed disdain for television, she allows a lot of video watching, according to Peter's account. This has all contributed to the child's over-stimulation. The father, having observed the child rub his genitals, suggested a different manner for masturbation. As Dr. Robson noted, the masturbation by a child at this age is not unusual and he should not be punished or he will have other problems emanating out of that. The proper course, Dr. Robson noted is to tell the child it is a private matter, best left for his own room. This provides boundaries for the child so that he has a better understanding of appropriate public behavior.
Peter provided significant detail to the evaluator of the ‘teasing’ game. Dr. Smith concluded that no sexual abuse occurred. The child was also very clear with Dr. Smith that this game only occurred back when his parents lived together, that sometimes his mother was there, and that his father had established strict boundaries with him since. Peter's memories have become confused, likely as a result of speaking with his father and his mother repeatedly about these issues. The actual phenomenon of the game, which does not occur now, provided him no anxiety or ambivalence.
Peter was also open with the evaluator about his hitting himself in his face. He relates this behavior to an older friend who he is copying. This is consistent with his reporting that other behaviors he has copied have been preyed upon him by this friend.
Dr. Smith indicated that because Peter is a vulnerable child with very limited internal controls and poor reality testing. He will resort to primitive thinking and behavior when he is anxious. He has the emotional maturity of an individual whose emotional age is about three years younger and acts on that. When he is stressed by his environment he acts out these more primitive behaviors. These behaviors are in contrast to his being a very bright child; this misleads the adults around him to believe he can handle and control his behavioral functioning and emotions with a maturity that he is lacking. When he is over-stimulated he acts out in a more regressed way. His behaviors are triggered by adult stimuli, which include video content. The court accepts these findings as cogent and the best explanation offered in evidence for this child's emotional behavior. As he is emotionally stressed he acts out.
Because both parents tend to have trouble setting limits and historically have had problems with their boundaries with him, they have been a bad fit for him. He is a child who, needs structure. It was heartening that Peter reported that his father has set firmer boundaries with him in some ways. Mr. Roe has also expressed a willingness to re-learn his parenting techniques and how to respond to specific situational challenges. His decision to go for parenting coaching with a psychologist will be very helpful for Peter. The court has observed Mr. Roe. He is an extremely literal person and able to take explicit direction. This counseling should be very helpful in his custodial role of supporting Peter's need to grow in his ability to navigate the world. Just as Mr. Roe learned his parenting style from Ms. Doe, he can relearn and adapt to address this child's particular needs.
He also has shown a willingness to allow Ms. Doe access to the child. He has not impaired her access. As this matter has developed and her claims against him increased he has concluded however that the access should be supervised.
On the other hand, the court agrees with the evaluator that “Ms. Doe has come to perceive Peter's behaviors through the lens of trauma.” That evaluator has concluded that Peter has not sustained a trauma. Neither Peter nor anyone other than his mother reports him with post-traumatic stress symptomatology. His behaviors are better understood as a result of his own emotional condition. Peter's mother's inability to perceive him in this way, and only as a victim, diminishes any ability she may have as a parent to adapt herself to his needs. Unfortunately, as well for Peter, he is anxious and stressed when he is with his mother, which, for him, produces his sexualized and regressive behavior that his mother observes, notably far more than anyone else. What is in that dynamic causing it is not fully clear, but Peter is clearly perturbed by his mother always asking him questions. Her search for the proof of sex abuse and her style of asking him why he does things over and over contributes to his stress with her, as he related it to Dr. Smith.
Dr. Robson, in his review, noted from the mother's behavior with her son, as documented by the supervisor, she rarely intervenes to stop her son's inappropriate behaviors. The court observed this as well in the records. The court affirms the statement by Dr. Smith “Peter presents a complex diagnostic picture. In some settings, i.e., in his father's care or at school, he can appear to be a well-integrated, developmentally healthy, bright and a curious youngster. His aberrant behaviors are less evident at school but they do surface there in the form primarily of elevated levels of anxiety. His impairments are most notable in the context of his relationship with his mother. The supervisory notes are perhaps the most vivid exhibits that document Peter's capacity to regress, exhibit primitive age-inappropriate psychological content, shaky reality testing and an excessive amount and preoccupation with age-inappropriate sexual behaviors.” Indeed, he looks like a pre-schooler at such times and needs the limits that such children require.
Ms. Doe has continued to resist the work of the child's therapist encouraging behavioral intervention with Peter, because she thinks it does not get to the root of the problem as to why he does these things, which she is sure is because of sexual abuse by his father. Instead, more often, she quizzes him. The mother relies on supervisor notes that on three occasions describe the father massaging the child when caring for him, whether his foot or back. These massages by themselves are innocent. However in this situation, where the child has experienced much too much preoccupation with his body and its behavior and has been exposed since his early age to adult use of the body, the massages may contribute to his over-stimulation. Accordingly, they should stop. The family relations officer affirmatively stated as the same thing (see below).
Based upon observed symptomatology and testing, Dr. Smith recommended that Peter be seen to determine if he has bi-polar disorder, among other recommendations directed at his care. Based upon that recommendation, as part of his work, Dr. Robson referred Peter to Dr. Carlson, an expert in this area. Dr. Carlson's report was also placed in evidence. Dr. Carlson reviewed all the applicable reports, had inventories of questions answered by the school teacher, mother and father, spoke with them and interviewed Peter. She was incredulous that the father was not observing more acting out that he reported. Dr. Carlson could not conclude from all of that what kind of psychiatric disorder to diagnose for Peter. Of course this is necessary for appropriate treatment. It has characteristics of ADHD but there are other rule-out diagnoses. She needs better information from school observation. She also recommended that the parties consider an in-patient psychiatric evaluation. This would remove him from all of his environmental stimuli and that would assist in the evaluative process.
Connecticut law provides the court the authority to order therapy for the child as a part of these orders if the court determines it is in the child's best interest. 46b–56c(i). That authority does not extend to the ordering of further evaluations. Gen.Stat. § 46b–3; § 46b–6; Savage, op.cit. at 701.
Update to Family Relations Evaluation
On March 22, 2011 the court ordered an update of the Family Relations evaluation inasmuch as the original report was almost a year old and many events had transpired since its issuance. The evaluator once again interviewed all of the parties, providers and evaluators.
First it was noted that the child's therapist, at that time found both parents cooperative. Therefore, Ms. Doe's subsequent decision to reject Dr. Collins' work is a further sign of her decaying willingness to be able to work to the benefit of Peter. Peter has continued to have behavioral issues at school, which he is able to check when called on it. Overall, his teacher found his behavior at school has improved over last year. He is better focused on his schoolwork and stays on task for a longer period of time. This improvement at school has occurred since he has been in the custody of his father. Ms. Doe has attempted to engage the teacher in discussions about Peter's anxiety and has shown her pictures of bruises on Peter and asked her opinion regarding them. Ms. Doe has shown no ability to regulate her own behavior; rather she continues to seek allies. The teacher generally cuts her off or deflects her when this happens.
During this time, Ms. Doe has remained in therapy with Ms. Pam McGuire, LCSW. Ms. McGuire treats her for PTSD that the mother reports came from the marriage. The therapist had no knowledge of Ms. Doe's childhood, which means she has not considered the impact of her unfortunate sexual molestation as a youngster herself. Mr. Lamontagne's investigation disclosed the importance of these events in her need for treatment. She avoided this issue with prior therapists. This is jarring since she has stated that she will not let her son's situation be ignored as hers was when she was a child.
Mr. Lamontagne reviewed the supervisor notes. He focused on numerous occasions where Ms. Doe did not intervene in behaviors of Peter that the evaluator felt should have been reprimanded.
DCF also was involved at this time when Mr. Roe made a referral of Ms. Doe after he learned of the anus picture. This referral had no purpose than to make her life miserable: one week earlier, the court had already awarded him primary residence and supervised visitation to her. It was likely a response to a second referral against Mr. Roe in February 2011. Neither investigation resulted in a substantiation of neglect or abuse by either parent. DCF did note that they had conferred with the pediatrician who reported that the mother had made a number of false allegations against the father in the past, “which didn't make sense and mother appear[s] to have an agenda.” Mr. Lamontagne also reviewed the Yale Emergency Room report of February 15, 2011 and Ms. Shaw's behavior logs. He also reviewed the video of the Abuse Clinic interview. He noted that Peter did not report any information that would suggest that he was touched inappropriately or sexually.
The family relations evaluator had access to the work of the court psychiatric and psychological evaluators as well as the experts that Ms. Doe retained, discussed below. He summarized those findings in his report.
Mr. Lamontagne found the behaviors of Peter to be remarkable and concerning. He also noted that while Ms. Doe continues to claim that Peter has been abused, most recently she entertained the notion that the abuser could be someone other than Mr. Roe. She testified at trial as to this as well. The visitation notes document for Mr. Lamontagne that Ms. Doe continues to look for a sign or symptom of abuse. As he aptly wrote, “It appears as if she is looking for either verbal affirmation or a physical symptom that he has been abused.”
Faced with Ms. Doe and her expert's explanations of Peter's behaviors and the analysis by the court appointed evaluators, coupled with the lack of any physical evidence, Mr. Lamontagne accepts the reasoning and findings of the latter. He goes on to examine whether the father is equipped to respond to Peter's problems. He is concerned that Mr. Roe appears unable to comprehend his actions in that it is questionable to him whether he has the “wherewithal to understand or grasps the importance of parent/child boundaries” given his wholistic approach to parenting. This has played out in his continuance of some massages to, in his mind, soothe Peter. If he is not trainable on these topics, Mr. Lamontagne is concerned he will continue to contribute to the orgiastic environment that Peter has grown up in.
This is an entirely appropriate concern. However, faced with Ms. Doe's unwillingness to alter her view and its effect on Peter, and his role with his father, Mr. Lamontagne recommends sole legal and physical custody of Peter to his father. His analysis is logical and sound and based upon the facts found in this case. Therefore, the court agrees. He recommends a limited, supervised and therapeutic parenting plan because Ms. Doe remains unwilling to change her parenting approach or if she continues to examine the child for abuse. He goes on to suggest that notwithstanding Peter's bond with his mother, even these recommended therapeutic visits should cease if she “refuses to change and/or continues to question the child, look for information about abuse, or will not address his behaviors appropriately.” She must also, he stated, be willing and able to work with the child's therapist.
Mr. Lamontagne is concerned, as was Dr. Robson, that the child continues to engage in weird and sexualized behaviors and comments with her because he has found it is a way to get her attention. That is, since she is consumed with her conclusions, every time he does these things she focuses on it as proof of her position. Therefore, she sees Dr. Collins suggestion that she treat it as behavior that is subject to modification by a reward/withholding-of-reward system makes no sense. It is her position that this drives her son underground. She does not therefore provide Peter with parenting responses designed to get him to behave within norms.
Mr. Roe is recommended to learn healthy parent boundaries; in testimony, Mr. Lamontagne suggested that there be a significant limitation on Mr. Roe's touching of his child, not just ceasing the massages until the touching by Mr. Roe can be fully understood within appropriate parent/child boundaries.
During this time, Ms. Doe resolved to retain her own experts to address her concerns. She retained three experts: Joyanna Silberg, a clinical psychologist, upon Dr. Silberg's referral, Eli Newberger, a pediatrician and Phillip K. Kaplan, a clinical psychologist. All three have been involved professionally in the world of sex abuse allegations; the former two have worked together professionally in the past. Both are involved in the leadership of an organization known as the Leadership Council on Child Abuse and Family Violence.
Dr. Eli Newberger
Dr. Newberger is presently an Assistant Professor in Pediatrics, Harvard Medical School, Adjunct in Pediatrics, Children's Hospital Boston. He founded an out-patient clinic for child victims of abuse and neglect at Children's Hospital; he directed it for twenty-seven years from 1972 to 1999. Dr. Newberger interviewed Ms. Doe at his home in Massachusetts. She brought Peter, Ada Shaw and her mother with her. Dr. Newberger was surprised that Ms. Doe brought Peter along for the ride with her to meet him at his home in Massachusetts.
There was an existing court order barring Ms. Doe from taking Peter out of state. This is yet another instance of Ms. Doe violating a court order that she found inconvenient. It is notable that she was willing to exit the jurisdictional boundaries of the state of Connecticut without much thought. Given her propensity for violating court orders she does not agree with, and the outcome of this case, the court will impose some security measures to insure that she cannot unilaterally take Peter out of the United States just because it suits her present needs at that time, regardless of a court order banning it.
Dr. Newberger determined that the mother should take the child to the Yale Emergency Room again for examination. Ms. Doe knew that there was a court order precluding her from providing medical care for Peter. Dr. Newberger surreptitiously 12 arranged it by calling the director of the Yale Abuse Clinic (Dr. John Leventhal), expressing his opinions regarding alleged suicidal ideation by the child, and its causes, and arranging the appointment for the visit. On February 15, 2011 Peter was taken by his mother to the Yale New Haven Emergency Room. Once again, then, Ms. Doe has violated a court order because it was inconsistent with her plans. Ms. Doe repeatedly lied on the witness stand indicating she did not know all of this was going to happen. She was told by Dr. Newberger to go to the hospital for the examination. The court concludes she will go to any end, including lying to the court to prove that her husband sexually abuses their son.
Ms. Doe and the supervisor picked Peter up from school. When the supervisor asked where they were going, Ms. Doe said to drop off records at the hospital. When she got there she conferred with the triage person and then she and Peter were whisked into the treatment area. The visitation supervisor was left to call her employer, Nicholas Sarno, to determine what to do next. They called Mr. Roe. Meanwhile, Ms. Doe's mother met them at the Emergency Room. The child was interviewed and examined again. Ms. Doe claimed he was suicidal and speaking of electrocution. Nothing of that sort was found at the hospital. The evaluation of him concluded that because he did slap himself in the face, his self-harm risk was moderate. His suicidal risk was low. The report found the mother's chief complaints for Peter incongruent with the mental status exam. The report, considering the presentation that date and the history of unsubstantiated allegations regarding the father, stated, “a diagnosis of the factitious disorder Munchausen's by Proxy should be further differentiated by appropriate psychiatric and legal parties within this case.” They also noted the mother at the time of the hospital visit to be “highly anxious, tearful and ruminative re: the sexual abuse she perceives father as having perpetrated against child on an ongoing basis.”
At the hospital, Peter was crying and asking for his father repeatedly. Mr. Roe arrived, soothed him with a back rub and was ultimately able to take him home.
Dr. Newberger (nor Dr. Silberg, see below) did not interview either the father or the child, though the plaintiff unsuccessfully sought court permission for the latter. None of this prevented either Dr. Silberg or Newberger from rendering an opinion as to whether the child was sexually abused. Dr. Newberger also opined originally that the abuser was Mr. Roe.
Dr. Newberger, similarly, felt no constraint in criticizing the quality of the work Dr. Robson and felt free to challenge that doctor's own mental status. He referred to the evaluator as “not firing on all cylinders.” When challenged about it, Dr. Newberger went on to say that “[he] was really concerned about the possible onset of some form of mature onset Alzheimer's or thought disorder ․ with [him].” This is the testimony of a pediatrician who never met the psychiatrist he is attacking and opining about. Dr. Newberger also rejected the evaluator as biased against finding sex abuse where allegations are made. He came to this conclusion based upon incomplete information regarding one case that he garnered from some websites in a ‘Google’ search of Dr. Robson. He then went on to further impugn the character of the evaluator and the guardian stating, “․ it wasn't hard to figure out about Dr. Robson's] previous track record or the quality of his work. Did [the guardian ad litem] know that? I think perhaps so because she and I found this out from Google. It's very easy to see that she had served on some kind of a state commission years ago on family court process both with [the evaluator] and with one of the judges in this case. And you know, all I can say is that it may not have been coincidental that he was the person who was chosen to do this work.”
These ad hominem attacks meant to undermine the court appointed professionals in this case, instead, adversely affect the weight to the testimony of the speaker, Dr. Eli Newburger.
The use of the word ‘orgiastic’ by the psychiatric evaluator was attacked by Dr. Newberger as antiquated. Note, Dr. Newberger is a pediatrician not a psychiatrist. Once again this was an ad hominem attack not backed up by reference to any literature and certainly not within the field of expertise of the speaker. What was explained explicitly in the testimony by the evaluator was that he was concerned that the plaintiff was constantly examining the child's anus, applying cream to the child's penis for many days for the balanitis condition rather than him applying it himself. At one point, the plaintiff also subjected the child to her examination of his anus; she estimated it was open 1 to 2 inches. He also relied on this as proof of assault. He did not question the accuracy of the report even though no medical personnel observed this condition. He also never considered the effect of Peter's exposure to nudity and sex in the family bed, his late toilet training, this history of withholding of bowel movements, the psychological profile of Peter's underdeveloped emotional age state or any of the other considerable evidence of other explanations of his conduct. He also did not consider the effect for Ms. Doe of her childhood trauma notwithstanding prior providers of hers raising concerns regarding its effects on her present behaviors. The phenomenon of repetition compulsion was described by the psychiatric evaluator and raised not only by treaters, but the concern for it by Ms. Doe herself when she has stated that she will not silence Peter because she will not leave him un-listened to, as she was in her youth.
Dr. Newberger did go on to substantively criticize the work of both the guardian ad litem and the child's therapist in this case. Neither are his areas of recognized expertise. He opined that the guardian failed to meet ‘the standard of care.’ He also criticized the guardian's ‘selection’ of the child's therapist; Newberger ignored the fact that the parents had both agreed to Dr. Collins as the child's therapist. As a pediatrician, he opined that a behavioral approach by a psychologist was inappropriate for the care of Peter. He is not qualified to offer such an opinion. Therefore, it has no weight with the court. Without ever speaking with child therapist, whose privilege in favor of the child was protected by the guardian (over Dr. Newberger's consternation), he wholly rejected Dr. Collins' work with the child merely because he recommended to her techniques for stopping Peter's inappropriate behavior toward her.
None of Dr. Newberger's criticisms and ad hominem attacks of these professionals are relevant or probative: he is an expert in only pediatrics. His possessed certitude and lack of compunction about impugning every other professional in this case based upon slim or no evidence is illustrative of the uninhibited value he places on his own opinions, however ill-informed. This did impair the weight the court gives his testimony.
Dr. Newberger concluded that Mr. Roe sexually abused his son. He also attacked Yale's finding of no abuse because in the clinic he had run, three interviews are required for a determination, not the one interview that was done at Yale. Further, he concluded merely from a photograph of some scratch marks and bruise marks on the child that had to have come from being dragged across the floor. He found Ms. Doe an absolutely accurate reporter, notwithstanding contrary objective findings and the failure of her to fully disclose her own adolescent issues with sex abuse to him.
Dr. Newberger interpreted certain drawings as proof that Peter had been sexually abused. One drawing made by Peter shows a phallic looking object going out from one person to another. He notes that the person with the phallic object is bigger and the other person has a concave bend in the middle as if it is penetration. Dr. Newberger concludes that this is an erect penis and concerns him that it shows the defendant sexually abused his son. Also in evidence is a cartoon drawing from Dragon Ball–Z, a favorite of Peter, that looked remarkably similar: an individual shooting a phallic-looking ‘thing’ toward another person whose middle is concave as if he is hit with the force coming from the shooting thing. No expert testimony concluded that Dr. Newberger's interpretation was superior an idea to the inference that Peter was copying from Dragon Ball–Z. Dr. Newberger went on to opine about other drawings for which there was no evidence that they were drawn by Peter. Indeed, to a layperson's eye, some of them had a sophistication about them reserved for drawings by much older people. The court ascribed no weight to the testimony from Dr. Newberger about the drawings.
As further evidence that Peter was struggling in the care of his father because of abuse, Dr. Newberger stated that Peter's report card at his Montessori school was proof. Peter had evaluations that showed him having a certain number with a plus [+] sign next to it. Dr. Newberger confidently and emphatically testified that based on his knowledge of the Montessori system, which he said was extensive, this meant that the behavior was proceeding downward rather than improving. Essentially, that plus was negative rather than positive and as compared to the previous marking period, he explained. The defendant conclusively proved that he was wrong and it meant the opposite. It appears that there is nothing that Dr. Newberger is unsure about, whether he is right or wrong, and he is always sure he is right.
Dr. Newberger has consulted on fifty occasions to matters where there are claims of sexual abuse since he retired from the clinic in 1999. Notably, every one of those fifty times he consulted, his conclusions always supported the position of the person who contracted to consult with him. He ascribed this 100% accuracy to his insightful ability to vet with whom he will work and that he will only consult with the party who is correct, or on the side of ‘right,’ as he sees ‘right.’ This certainly can become a self-fulfilling prophecy. It leads the court to cautiously weigh his opinions.
Dr. Newberger based much of his opinion on an interview with the plaintiff at his home and his review of the records she provided him. During this interview, Ms. Doe informed Dr. Newberger about domestic violence issues in the marriage, including her husband's controlling behaviors during her pregnancy, marital rape, his degradation of her, and his shouting and coercive and controlling behavior regarding her diet. She spoke to Dr. Newberger regarding his verbal assaults and his pattern of physical assaults against her step-father.13 She stated that his violence began during her pregnancy. Dr. Newberger stated that while Ms. Doe was not hysterical or histrionic during the interview, she was fearful that Mr. Roe would stalk her regarding her phone records and financial transactions. Dr. Newberger reported that Ms. Doe was anxious and preoccupied regarding Peter's safety. His initial interview with her lasted between 60 and 90 minutes. Dr. Newberger used the child's medical history as a structuring guide for the interview. Dr. Newberger concluded that the intercourse between the parties was a marital rape of Ms. Doe because explained to Dr. Newberger, there were no “preparations” verbal or otherwise. Notwithstanding this characterization, in 2007, Ms. Doe determined the parties would no longer have intercourse. Mr. Roe never violated that decision. Dr. Newberger was never informed of this before he reached his conclusion that Mr. Roe engaged in marital rape of his wife.
Ms. Doe described to Dr. Newberger a pattern of assaults on her and her step-father by Mr. Roe. As to the latter the claim was that Mr. Roe struck him with his cane; as to the former the head incidents described earlier were also relied on by Dr. Newberger in concluding that Mr. Roe was physically as well as sexually abusive of Ms. Roe. The court rejects this notion and the conclusions that come forward from it. The behavior of Mr. Roe yelling and at time following Ms. Doe about was not right but it was not the kind of severe behavior either the plaintiff or Dr. Newberger rely on as contributory to their conclusions about him.
Dr. Newberger also characterized Mr. Roe's massaging behavior toward Peter as sexual assaults. This included back or feet massages. The thigh massages described were, the court finds, provided for the comfort of the child, not sexual gratification of the father. It is notable that the massages were in the presence of the mother before the parties' divorce. The massages referenced throughout the hospital notes to soothe the child in the hospital had only that as a purpose.
Dr. Joyanna Silberg
Dr. Joyanna Silberg, is a pediatric clinical psychologist. She is a published author and lecturer in the area of abuse of children. Her clinical experience is at Sheppard Pratt Hospital in Maryland. She has done significant work, as well, in the area of dissociative behavior in children. Her work in this case consisted of a record review and critique of the work of Dr. Smith, whose work was included as a part of Dr. Robson's work in this case.
The court rejects Dr. Silberg's testimony that Mr. Roe was ‘cuing’ the child in the February 2011 hospitalization to let him know he was there in position of power and to not disclose. The father saw his son in distress in the hospital after the mother has taken him. He gave him a back massage. The child was soothed and stopped crying. No one at the hospital complained of it. The child was cared for by his father in an appropriate way. This is consistent with repeated testimony from the father that the child looks to him when he is hurt or upset.
Dr. Silberg also effectively undermined the mother's cooperation with the child's therapy. Dr. Silberg agreed with the plaintiff that Dr. Collins was not helpful to Peter. When the plaintiff would convey therapy sessions to Dr. Silberg and seek her clinical opinion, Dr. Silberg did not hesitate, without ever communicating with Dr. Collins, to reinforce the plaintiff's distrust by opining that she did not believe he had “a clear handle” on Peter. For her to offer such unilateral opinions, based only on her record review, undermines her credibility with the court.
Dr. Silberg also opined that the child should have an inpatient assessment to sort out the diagnostic puzzle that he presents. Dr. Carlson, the referred expert on issues surrounding bipolar disorder in children did not find that Peter's symptoms fit the definition of that illness. She believed an in-patient evaluation is necessary to reach a proper diagnosis and treatment of Peter. There is insufficient evidence before this court to conclude that out-patient resources, such as Dr. Collins, are insufficient to assist Peter. The mental health community in Connecticut is broad and deep; if the child's therapist is of a mind that further evaluation and/or treatment are necessary, it can be pursued by the custodial parent. The plaintiff and her experts would have the court understand that Peter likely has some kind of PTSD symptoms as a result of being sexually abused, and, that the court can infer the abuse from the symptoms. That logic, however, is rejected. The court has no evidence of abuse. Instead there are a variety of symptoms displayed by the child, more frequently with the mother and her friend, that need to be addressed. While Dr. Carlson is likely correct that they are not only displayed with the mother, the frequency and intensity of them are only noted when the child is with her. That is evidence to be considered by treaters.
Dr. Phillip Kaplan
As a result, the court psychiatrist looked at this, and, the plaintiff herself sought an additional psychological evaluation by Dr. Phillip Kaplan to quash the concerns raised by the Yale New Haven Hospital treaters (Munchausen by proxy) and the court evaluators. She was referred to Dr. Kaplan by Dr. Joyce Silberg. They had worked on some cases together and had been co-defendants in lawsuits. Dr. Kaplan is a Georgia licensed clinical psychologist. Dr. Kaplan administered a battery of psychological tests, some of which the plaintiff was taking for the third time within about 15 months.
He observed Ms. Doe to being anxious, consistent with the stressors in her life. He found her reporting to him of a history of molestation in her childhood and abuse by her father very significant. As a result of parents not supporting her well regarding this, he concluded that she came away with the sense that you should not talk about difficult things. Her psychological testing that he interpreted supported this notion: that she has an accommodating personality. She reported her husband to not ever really hit her—he would block her pathway. To Dr. Kaplan, he sounded a little abusive and controlling based upon her reporting. She emphasized to him her involvement with Peter in his infancy and early years.
Ms. Doe's psychological testing for Dr. Kaplan reflected under-reporting, consistent with someone going through a custody dispute. He did not find her delusional or engaged in Munchausen by proxy. He could not determine if she had an acute distress disorder because he did not find her forthcoming enough to evaluate that. While her behavior during this case may not be reasonable by itself, Dr. Kaplan noted that it is reasonable if you consider her as a person who thinks her child is at risk. Dr. Kaplan noted however that some of her behavior, violating court orders, has a desperate quality about it. He also found her exhibiting some hypervigilance, particularly in the way she regarded the potential intrusion by Mr. Roe through Our Family Wizard.
Dr. Kaplan acknowledged in cross-examination that repeated psychological testing can skew the results. The court concludes that his examination had limited utility. He did not find her forthcoming sufficiently for a full analysis. Further, he attributed normalcy only on the basis of the assumption that she had a bona fide basis for her concerns that Peter has been abused. This court does not find such a bona fide basis. The evidence in this matter far more logically and persuasively leads to the conclusion that Peter struggles with other problems, many of which have been created and exacerbated by the poor fit between him and his parents, vis-a-vis their parenting styles. It is because the father is more adaptable that he is the better custodian. His makeup psychologically is not inconsistent with good parenting of Peter. He can learn new parenting techniques. His love for Peter leads him to this capacity. Peter's mother, on the other hand, is so fully absorbed to the fixations of thoughts that she has that she is incapable of giving Peter what he needs now. He is not safe with her because she cannot abandon her own need to prove harm to him, to vindicate her position. She mistakes this as advocacy and caring for him.
Guardian ad litem, Maureen Murphy
The last witness in this matter was the guardian ad litem, Maureen Murphy. She was court appointed to the role in April 2010. She has a significant breadth of experience and education relevant to the role. She performed a comprehensive investigation involving interviewing the parties alone, with her ward, the ward alone and communicating with service providers and evaluators in the case. A summary review of her contacts produced the following: Pat Heavern, the life coach said Ms. Doe never raised issues of sexual or physical violence between her and Mr. Roe, or, him toward the child; Katherine Boudreau, Peter's previous therapist at Clifford Beers Clinic, when he was young, was very clear that she thought Mr. Roe and Peter had a healthy and strong relationship, and, that Ms. Doe was misdirected and wrong in her assumptions; Kathleen Templeton said that Ms. Doe had suffered from childhood trauma, and not been ‘heard’ in her childhood, and so it is very important to her to protect her child, and, that she did not believe that Ms. Doe had any kind of borderline personality disorder but that instead she projected her own trauma on her son; Sloan Gorman who was treating Ms. Doe for extreme depression which she attributed to a traumatic childhood as well as the auto accident; Detective Canfield (West Haven Police Department), a very seasoned detective in the field of abuse of children found Ms. Doe evasive and Mr. Roe forthcoming, and, she saw the matter as a divorce issue where Ms. Doe was concerned with losing control; Theresa Montelli at the Yale Sex Abuse Clinic who said they had followed their protocol completely and that the child appeared to feel safe and made no disclosures; Dr. Whelan who felt Ms. Doe had a vendetta and was trying to prove something against the father, and while Dr. Whelan was concerned that the allegations were not valid, since “you can never be ․ bent over backwards to do all the tests” that he did. Dr. Whelan also said that Ms. Doe sometimes talked about her concerns regarding Peter in front of him.14
She also communicated with the parties' collateral contacts and detailed the nature of those. Nothing substantially different emerged through that testimony.
Peter's teachers were contacted. His teacher in 2010 felt both parents spent too much time talking to her about their disputes. She had no significant concerns regarding Peter. This year's teacher has found Peter to be an anxious child. He never engaged with anyone sexually at school. He has friends and makes friends easily. He is extremely active. He is able to focus. She does think he would have trouble in a public school classroom. This teacher, did report, however, that in early February 2011, Peter had been at a parent-teacher conference with both of his parents and he was visible stressed, started acting silly, hit himself and starting making comments about poop. By mid-March she noted he was much calmer. She was concerned however, as well, that on a homework Ms. Doe had written that Peter was experiencing extreme cognition problems and that he was doing worse; the teacher said that this was not so, that academically he was doing well. In sum, the teacher was not seeing what the mother was.
The DCF worker who last worked with the family, Kristen Shepard reported in June 2011 that she had no concerns about the child with his father. She also saw the drawing at issue with the phallic-like figure. It was of no concern to her. When she saw Peter with his mother and observed her to be flirty with him. She believed the mother should be therapeutically supervised in her visitation.
The guardian met the parties in the beginning of May 2010. Mr. Roe met with her and was emphatic that he had not harmed his son. He went over in detail explaining the leg massages that had previously occurred. At that time he told her he still wanted to jointly parent with Ms. Doe. Her interviews with Mr. Roe led her to observe that at times he misses social cues; he does not quite appreciate how people are reacting to his statements. However, he is receptive to gaining an understanding when things are made clearer. The court finds this observation consistent with the psychiatric evaluator's opinion that he believes Mr. Roe is ‘coachable.’ The court observed Mr. Roe to be a very literal person.
At Mr. Roe's home, Peter and his father spent time together playing and reading. When the child misbehaved his father was able to tell him not to do what he was doing and he stopped. Peter was respectful to all in the home.
Ms. Doe, from her first meeting with the guardian ad litem explained that she believed her child was being sexually molested and that no one else involved believed it, and, were turning against her. At that time she told the guardian that she did not know if the molester was her husband, that she felt Peter had not yet been properly evaluated. She said she was terrified of Mr. Roe and feared for her own safety during the time they were together. A short time later the guardian learned that Ms. Doe had been taping Peter on her iPhone and by video. The guardian was concerned that this must all be very confusing to the child. She was also concerned about contamination of his thought process especially as he continued down the road of these evaluations and treatment. This concern was heightened when she learned Ms. Doe was involving the school officials beyond their proper role.
In meeting with the child, at one point she noted he had trouble distinguishing fantasy from reality. This is consistent with Dr. Smith's evaluation. She was troubled by how much Ms. Doe whispered with Peter in her presence. It seemed to her to encourage secrecy in their communication.
At Ms. Doe's home there was not as much opportunity to observe their interaction. Ms. Doe kept a movie running throughout they had seen it before, “like a 100 times” the child observed. It was a darkened room. During the movie Peter and his mother were on the couch together. At times they were holding hands. The guardian found it notable that Ms. Doe would lower herself to lie at his level, stroke his head. Peter told her to lift up her shirt. She told him that was not appropriate. He then stood up and said, “slap yourself in the face.” In the movie, at one point an older boy character picked up the younger boy by his pants and gave him a ‘wedgie’ and then threw him in the trash can. Statements of this nature are throughout the supervisor's notes regarding his comments.
Immediately before the trial, the guardian had follow-up communication with the teacher. As of September, 12, 2011 Peter was doing exceptionally well in school; he had become a leader. His friend Nash was no longer in the class. After detailing many of Peter's successes at the end of last school year and this school year she indicated that she felt that Peter was doing well with his father.
The guardian ad litem notes that Ms. Doe does not set rules or boundaries, she continuously asks Peter why he is doing the things he does which undermines his ability to feel that he is alright. The guardian concluded that Ms. Doe's parenting is so imbued with her convictions that she is not able to provide the child what he needs. This has been notable throughout the period of supervision. She also concluded that Ms. Doe had violated boundaries with her son over and over, taping him, photographing him, interrogating him, and examining him.
The guardian ad litem recommended that the court grant custody to the father and that he have a requirement of parenting coaching. She gave specific recommendations for this and reported that Mr. Roe has agreed to do it. The coaching is to address his concreteness and rigidity so that he better understand cues and personal space better. She was of the opinion that the child is safe with his father.
The guardian recommended that the child have no contact with his mother unless it is in a therapeutic setting followed up by some time alone after it. She noted that while this is difficult she believes that it is necessary so that Peter can grow up healthy. She opined that as long as Ms. Doe continued to hold her beliefs, the child was not safe with her.
Peter needs both of his parents. He is very well bonded with both. It is essential that each of his parents allow him to have a relationship with the other parent. Ms. Doe is so committed to the notion that Mr. Roe has violated his son that she cannot foster that relationship. Left unsupervised, she has proven she will do anything that it takes to continue to try to gather evidence to support her unsubstantiated claim. She observes no boundaries in pursuing her claim. Further because Ms. Doe is so committed to this notion, she finds it inappropriate to regulate the behavior of her child since she sees it as a manifestation of being abused. The evidence is crystal clear that Peter needs parenting that provides consistent boundaries, consequences for inappropriate behavior and the ability to redirect when necessary.
These requirements are a tall order for both of these parents. Mr. Roe struggles with his parenting skills as well. He has evidenced an ability and willingness to re-learn parenting. He has employed the services of a psychologist/parenting coach to help him both read Peter's conduct and learn how to respond to it. Mr. Roe does not create the stress and anxious environment that his mother does. He has been Peter's source of comfort when he has been hurt. His assumption of the role in November 2010 of the primary custodial parent has gone well. Peter has improved at school. His behavior toward his mother has been less assaultive and more respectful of her boundaries. Mr. Roe has shown a willingness to adapt himself to the needs of Peter.
He still has two major areas to work on: it is well established that Peter should not be spending so much of his time either watching television or movies or playing video games. The court evaluator makes a convincing plea for this child to live in an environment where such external stimulus of action, adventure and violence are removed so that he can develop the inner resources he needs to negotiate the world in a calm, normative way.
The nature of Ms. Doe's contact with her child must be supervised. Without the supervision there is nothing to prevent her from imposing her thoughts and concerns on the child, or, to prevent her endless examination of his body in pursuit of proof. Until now, through the funding of her mother, she has afforded a supervisory service that allows for a much more normal kind of access between her and Peter than other services. It is truly unfortunate that supervision is required. The elimination of supervision is wholly dependent on Ms. Doe's ability to truly abandon her beliefs, which unfortunately may not be within her present capacity.
At the time of trial, the plaintiff had before the court a motion for contempt dated March 30, 2011 (# 193). It claimed seven instances in which the plaintiff's visitation was cancelled or started late. The visitation notes were the evidence available. The court, having listened to the evidence found none of the defendant's conduct willful. Therefore the motion is denied. At the time of trial, the defendant also pressed certain contempt motions: # 147, 149, 184 and # 189 and motion dated December 20, 2010 of unknown number (# 166 [?] ). Motion # 147, dated August 16, 2010 seeks a finding of contempt for failure to provide contact between the defendant and the child on a certain date. The motion was proven; she failed to do so though the defendant tried to reach them. Her defense that the child did not ask for the contact is inadequate. Finding of contempt is made. Motion # 149 dated September 29, 2010 seeks a finding of contempt for failure to communicate through Our Family Wizard. The order was violated willfully. A finding of contempt is made. Motion # 166 dated December 20, 2010 seeks a finding of contempt for coming to the school without a supervisor. It might have been ambiguous whether the school staff could have acted as supervisor since she was not alone with Peter but observing an event. Therefore, the motion is denied. Motion # 184 dated December 22, 2010 seeks a finding of contempt for the plaintiff's failure to attend the Clifford Beers Healthy Touch Program. The plaintiff's defense was that the program name had changed so she did not know it was the same program. This is weak and deceptive because at another point she testified that K. Boudreau said she did not need the program. Therefore, she knew the program existed to take, regardless of the name change. A contempt finding is made for failure to comply with this court order. Motion # 189 dated March 9, 2011 is denied.
The court orders:
Dissolution of the marriage.
2. The father shall have sole legal and physical custody of the minor child.
3. The mother shall have the right of supervised visitation with her son only as follows:
a. Supervised visitation every other Saturday from 12 noon to 5 p.m.;
b. Each week, the child shall visit with his mother supervised visitation, once weekly, and therapeutic visitation once weekly. Those two visits shall be on Tuesdays and Thursdays. The therapist shall select which day, Tuesday or Thursday, is the day for therapeutic visitation; the other day shall be for supervised visitation from 2 p.m. to 6 p.m. The therapeutic visit shall be an appointment with Dr. Collins: it shall be therapeutic, guided visitation. If Dr. Collins does not find this is a role he can professionally fulfill then he shall recommend an alternative therapist for this purpose. The mother shall pay all of the costs of the therapeutic visitation. On that day, her visitation shall be only at the therapy. If the mother refuses the therapeutic visit, then visitation shall cease until a therapeutic visit is completed. The therapist may, unless court ordered otherwise, increase or decrease the frequency of therapeutic visitation within the existing schedule of visitation, not as additional time with the child.
c. Holidays, as supervised visitation:
i. Every Christmas, from 12 noon until 5 p.m.;
ii. Every Mother's Day, from 12 noon until 5 p.m. If Mother's Day is on a weekend that the mother's Saturday visitation is scheduled, there shall be no Saturday visitation that weekend (and no make-up intended for it).
4. All of the mother's visits shall be within the State of Connecticut. She may not take Peter out of the State of Connecticut for any reason whatsoever. Ada Shaw shall not be present for any of the mother's visits. The maternal grandmother may be present for the weekend visit. She is not permitted to be alone with the child without the supervisor present. She shall not be permitted to whisper with the child. She shall not be permitted to be present for said visits unless she gives her passport to the supervisor for the time of the visit. The mother is responsible for all transportation for her visits.
5. The father is entitled to take the child on two one-week (7 days) vacations per year, non-consecutive with the child that shall not be interrupted by the mother's visitation time.
6. The mother shall continue to employ the services of Sarno's offices for supervision. The mother shall pay all of the costs of supervision. If those services are no longer affordable to her then she shall return to court for approval of a substitute supervisor; the supervisor must be a professional service, neither friends nor family are adequate.
7. During the mother's visitation the following rules must be observed and agreed to by the supervisor: the supervisor shall always be within earshot of the mother and child and to the extent possible in the same room; if the mother and child are in separate rooms then the evaluator stays with the child, the mother and child shall never sit together in the front or back of a car, the mother may not whisper to the child, and the mother may not give notes to the child. The supervisor may exercise discipline, including time-outs, over Peter if he is rude, if he tries to touch the supervisor's, the mother's, or his own body inappropriately, or if he uses language the supervisor finds inappropriate. If the child needs medical care, the supervisor shall call the father and if it is an emergency make the necessary medical arrangements. The therapeutic supervisor may provide other guidelines for the supervisor to follow unless otherwise ordered by the court.
8. As a precondition to visitation, the mother shall surrender her passport to the supervised visitation service provider who shall hold it until further order of the court. If the mother desires her passport for travel or any other purpose, it shall be released to her but then she may not have visitation with the child while she possesses her own passport. If the visitation service provider is no longer able or willing to hold the mother's passport, then the mother shall find a professional service that will serve this function to the satisfaction of the court.
9. The mother shall not pay child support so long as her costs of supervision of her weekly visitation exceed $58.00 per week.
10. The plaintiff may maintain COBRA insurance through the defendant at her cost. The defendant shall immediately cooperate with any requests from her regarding the same, though the plaintiff should be able to retrieve the paper work from the employer directly as well.
11. The plaintiff shall be the sole owner of the property in Nova Scotia.
12. The defendant shall be the sole owner of the Atwater Street, West Haven property.
13. Neither party shall pay or receive alimony.
14. The court retains jurisdiction over the issue of an educational support order; the parties stipulated and the court finds based upon the parties' education and training and their willingness to support education financially that they would have provided post-majority support for the benefit of their child.
15. The father shall maintain health insurance for the benefit of the minor child as it is available through his employment at a reasonable cost. He shall pay 100 percent of unreimbursed health expenditures; at such time as there is a modification of the child support this may be modified as well.
16. The father shall be entitled to the dependency exemption for Peter annually on his state and federal tax returns.
17. The mother shall not have access to the minor child's educational or medical records. She shall not attend medical appointments of the child nor may she attend events or appointments at the child's school. If the child is ever hospitalized, the father shall determine if the mother may visit the child and on what terms. The parties shall utilize Our Family Wizard for the following communications: if the child is sick and therefore cannot go on a visit, for the defendant to transmit to the plaintiff all of the report card contents for the child, for the father to inform the mother of medical conditions and treatment of the child.
18. The mother shall not take the minor child for any health or medical care whether Western or Eastern medicine, naturopathic or otherwise. The mother shall not administer any medicines, prescription, over the counter or homeopathic to the minor child. Therefore, if the child is sick on her visitation time she shall not have the visit. If a medical emergency occurs while the child is with his mother, the supervisor shall call for emergency care and call the father immediately thereafter.
19. Each party shall pay their own debts as shown on their respective financial affidavits and indemnify and hold the other harmless regarding the same.
20. Each party shall retain those assets in their respective control presently, including automobiles, furnishings and bank accounts except as otherwise ordered herein.
21. The court finds that it in the best interest of the child to remain in therapy. The father shall continue to keep Peter in therapy with Dr. Collins until therapy is deemed no longer required by Dr. Collins or further order of the court, whichever shall first occur.
22. The court finds it is in the best interest of Peter that the father continue with the parenting coaching therapy that he is receiving with Dr. Horowitz and Dr. Krieger. He shall continue in such therapy on the terms and conditions that they prescribe until further order of the court.
23. All of the fees found owed to Dr. Robson and the guardian ad litem shall be paid entirely by the defendant within thirty (30) days of these orders.
24. The defendant shall transfer to the plaintiff by QDRO to be prepared and paid for by the plaintiff $70,000 of the defendant's ATT 401K. He shall owe the balance of his deferred compensation funds free and clear of any claims of the plaintiff
25. Each party shall execute such documents as are necessary for the effectuation of these orders within three days of their presentation.
26. While the plaintiff has been found in contempt of court no monetary amount is assessed as fees or otherwise; in recognition of the plaintiff's multiple violations of court orders surrounding her access to Peter, the court has entered orders as a part of this action that are designed to prevent her from harming the child, or his relationship with his father.
27. The guardian ad litem is relieved from further duties in this case. She may however pursue satisfaction of the court order for the payment of her fees.
FN1. Notably, Japan is not a signatory nation to the Hague Convention on International Child Abduction. http://www.hcch.net/index en.php? act=conventions.statusprint & cid=24 (last checked January 11, 2010). The issue of potential abduction in the future of this child was raised in the evidence of the trial. Mr. Roe testified that he fears that the child will be taken by Ms. Doe. The court received insufficient evidence to make any findings regarding the same.. FN1. Notably, Japan is not a signatory nation to the Hague Convention on International Child Abduction. http://www.hcch.net/index en.php? act=conventions.statusprint & cid=24 (last checked January 11, 2010). The issue of potential abduction in the future of this child was raised in the evidence of the trial. Mr. Roe testified that he fears that the child will be taken by Ms. Doe. The court received insufficient evidence to make any findings regarding the same.
FN2. Perhaps she sought to minimize the effect of the accident on her because she was concerned that the court could infer from its debilitating effect that Mr. Roe was accurate when he indicated that she was largely unavailable for the care of the child in his first couple of years. Ultimately this issue is not important to the outcome of the case. The court makes no inference.. FN2. Perhaps she sought to minimize the effect of the accident on her because she was concerned that the court could infer from its debilitating effect that Mr. Roe was accurate when he indicated that she was largely unavailable for the care of the child in his first couple of years. Ultimately this issue is not important to the outcome of the case. The court makes no inference.
FN3. Payne also trained Mr. Roe in the method of massage, which he used on Ms. Doe to provide her relief. This massage was also used on the child and is the subject of much of the controversy described later in this decision.. FN3. Payne also trained Mr. Roe in the method of massage, which he used on Ms. Doe to provide her relief. This massage was also used on the child and is the subject of much of the controversy described later in this decision.
FN4. The willingness of Ms. Doe's mother to fund her daughter's litigation is her decision. Mr. Roe does not have the means to satisfy such prodigious spending.. FN4. The willingness of Ms. Doe's mother to fund her daughter's litigation is her decision. Mr. Roe does not have the means to satisfy such prodigious spending.
FN5. Martial arts are extensive systems of codified practices and traditions of combat, practiced for a variety of reasons, including self-defense, physical health and fitness, as well as mental and spiritual development. Wikipedia, last checked, December 13, 2011.. FN5. Martial arts are extensive systems of codified practices and traditions of combat, practiced for a variety of reasons, including self-defense, physical health and fitness, as well as mental and spiritual development. Wikipedia, last checked, December 13, 2011.
FN6. Both Ms. Doe and Ms. Shaw maintained such logs.. FN6. Both Ms. Doe and Ms. Shaw maintained such logs.
FN7. Peter was tardy to school very often. Ms. Doe noted it was during the winter; she lives in Bethany and the school is in Milford, and he was frequently only a few minutes late, she said.. FN7. Peter was tardy to school very often. Ms. Doe noted it was during the winter; she lives in Bethany and the school is in Milford, and he was frequently only a few minutes late, she said.
FN8. Plaintiff testified they are her mother's hands.. FN8. Plaintiff testified they are her mother's hands.
FN9. Plaintiff photographed the arms, back and feet. The photograph of an unsmiling Peter was placed in evidence. Plaintiff's expert, Dr. Eli Newberger, opined—based on the photographs alone—that the child had been grabbed and dragged face down across a surface such as a carpet.. FN9. Plaintiff photographed the arms, back and feet. The photograph of an unsmiling Peter was placed in evidence. Plaintiff's expert, Dr. Eli Newberger, opined—based on the photographs alone—that the child had been grabbed and dragged face down across a surface such as a carpet.
FN10. This decision is very long. It makes it in some ways not readily readable. However, in attempting to synthesize all the evidence, given the nature and complexity of it, the differing views, I deemed it necessary to include all of the finding in this opinion. It is not exhaustive of all the evidence that supports the findings.. FN10. This decision is very long. It makes it in some ways not readily readable. However, in attempting to synthesize all the evidence, given the nature and complexity of it, the differing views, I deemed it necessary to include all of the finding in this opinion. It is not exhaustive of all the evidence that supports the findings.
FN11. These feelings draw into question the reliability of the child's statements to the mother; this occurred in the iPhone conversations.. FN11. These feelings draw into question the reliability of the child's statements to the mother; this occurred in the iPhone conversations.
FN12. Dr. Newberger knew that Ms. Doe did not have the right to make these decisions unilaterally. Neither, Mr. Roe, his attorney, the guardian ad litem, the court evaluators nor the child's therapist were told in advance about this. Dr. Newberger also went from being a ‘review expert’ to an advocate.. FN12. Dr. Newberger knew that Ms. Doe did not have the right to make these decisions unilaterally. Neither, Mr. Roe, his attorney, the guardian ad litem, the court evaluators nor the child's therapist were told in advance about this. Dr. Newberger also went from being a ‘review expert’ to an advocate.
FN13. There was disputed evidence that Mr. Roe had assaulted her step-father who was mobility impaired. She said he did, he said he did not.. FN13. There was disputed evidence that Mr. Roe had assaulted her step-father who was mobility impaired. She said he did, he said he did not.
FN14. Dr. Newberger called Dr. Whelan and instructed him on how to behave as Peter's pediatrician. Dr. Whelan resented it and felt he was being used.. FN14. Dr. Newberger called Dr. Whelan and instructed him on how to behave as Peter's pediatrician. Dr. Whelan resented it and felt he was being used.
Munro, Lynda B., J.