Denise Toomey v. Daniel Toomey

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Superior Court of Connecticut.

Denise Toomey v. Daniel Toomey

DBDFA064006736S

    Decided: January 26, 2012

(The plaintiff's August 19;  2011 postjudgment motion no. 255.03/04 for contempt, the plaintiff's August 19, 2011 motion no. 255.05 for contempt, the defendant's September 22, 2011 motion no. 265.00 for modification of visitation, the defendant's October 11, 2011 motion no. 265.02 for contempt, the defendant's October 18, 2011 motion no. 267.02 for contempt, the AMC's November 21, 2011 motion no. 274.00 to modify custody and visitation, and the plaintiff's November 22, 2011 motion no. 273.50 for sole custody) MEMORANDUM OF DECISION

By way of background, the plaintiff (mother), Denise Toomey, and the defendant (father), Daniel Toomey, were married on June 6, 1987.   There are three sons issue of the marriage.   Final dissolution orders were entered in Danbury, on September 26, 2007, after the father was defaulted for nonappearance.   The orders of the court, Winslow, J., provided in part for the mother to have sole legal custody of the third and youngest son, Brandon, who was born on May 10, 2002, and had been living in Connecticut since February 2006.   The father, who lived in Florida, was granted supervised visitation—not including overnights.   In March 2009, the father relocated to New Fairfield.   At the time, Brandon was six years old;  he is now nine years old.   After the father's return from Florida, the parties engaged in substantial litigation over the father's parental access to Brandon and financial matters.   The father filed a motion to modify custody and visitation in October 2010, which was referred to the family relations office for an investigation.   Leslie Raider was appointed as guardian ad litem (GAL) on January 20, 2010.

The father's motion no. 126 for modification of custody and sixteen other motions were scheduled for a hearing before the regional family trial docket, Munro, J., in June 2011.   On the fourth day of hearings, June 15, 2011, the parties entered into a stipulation providing for the parties to share joint legal custody of Brandon, with the mother retaining final decision-making authority.   The stipulation provided for a schedule of unsupervised parenting time with the father.1

Litigation has continued despite the entry of the stipulation, with both parties filing numerous motions.   The mother filed motion no. 255.03/04 for contempt, alleging that the father violated the court orders on the weekend of July 8, 2011, by not having Brandon sleep at the home of his paternal aunt, Patricia McCartney.   The mother also filed motion no. 255.05 for contempt alleging that the father violated the court orders on the weekend of July 8 by consuming alcohol in the child's presence.   On September 22, 2011, the father filed motion no. 265, seeking a downward modification of child support and alimony, and a modification of the June 15, 2011 visitation orders.   On that same date, he also filed motion no. 265.02 for contempt, alleging interference with his visitation.   On October 11, 2011, the father filed motion no. 267 for contempt, alleging interference with his visitation on Saturday October 1, 2011, claiming that the “[mother's] actions constitute a pattern of ongoing custodial interference ․”

These matters were tried on November 15, December 7 and December 8, 2011.   Both the parties and the child were represented by counsel.   The mother was represented by attorney Donna Candella and the father was represented by attorneys Kathy Coppola and Robert Byers.   The child was represented by attorney for the minor children (AMC) Sharon Dornfeld.   The children's interests were protected by the GAL.

On November 15, 2011, at the conclusion of the first day of hearings the court, Calmar, J., sua sponte, issued the following interim orders:

All exchanges were to take place at the New Fairfield police department or at the school,

No video or audio recording of exchanges by the parties or their designees was permitted,

Exchanges could take place via designees so long as they are individuals familiar to Brandon,

All visitation was to take place without exception or excuses save documented emergency room or medical visits,

The paternal grandmother's home was an acceptable location for overnight visits,

If a party was late, the exchanges were to be completed at the earliest possible time;  the court orders were to be followed exactly but with flexibility,

All appointments were to be kept with the child's therapist,

The father was to immediately engage in therapy,

Both parents were to exchange releases with their respective therapists and the child's therapist, and

Motions to modify custody, if any, were to be filed within one week.

On November 21, 2011, the AMC filed motion no. 274 to modify custody and visitation post-judgment.   On November 22, 2011, the mother filed motion no. 273.50 for sole custody.   On November 22, 2011, following a hearing at Danbury Superior Court regarding financial matters, the parties entered into a stipulation that all future exchanges would take place at the New Fairfield police department.

In rendering this decision and making the ensuing orders, the court has carefully considered the statutory criteria in General Statutes § 46b–56 regarding custody, the case law as it has developed regarding these matters and other relevant federal and state laws regarding the issues that confront the court.   The court has considered the parties' arguments, proposed findings of fact and proposed orders.   In the course of the hearing, the court heard testimony from the parties and their witnesses and received documentary evidence.   The parties post-trial briefs were filed in a timely fashion on or before December 23, 2011.

I

FINDINGS OF FACT

Based upon the credible evidence the court finds the following facts.2

By all accounts Brandon is a bright and articulate young boy.   He is, however, immature for his age.   He has extreme difficulty with transitions between parents.   He has learned he can control his time with his father.   Although he desires a limited relationship with his father, his emotional alliance with his mother and maternal grandmother, Virginia Denike, trump any feelings he has for his father at this time.   He has therapeutic needs which are growing.   Unfortunately, he has become an unreliable reporter of facts and events.

At the court's request, in order to expedite the proceeding, the AMC elicited testimony from the GAL on the first day in order to provide the court with an overview of the case.3  On November 15 and December 7, 2011, the GAL testified that there had been a substantial change of circumstances since the orders were entered on June 15, 2011, and she did not believe the orders remained in Brandon's best interest.   She described extreme drama, even trauma, in the mother, father and child relationship.   She observed that the father made a consistent effort to visit his son and often exercised amazing restraint.   She did not believe the father posed a danger to Brandon.   Nevertheless, the mother did not support Brandon's contact with his father and had, in fact, interfered with the father's visitation and the child's therapy.4  Away from the conflict, once exchanges were completed and Brandon was no longer caught in the middle, he was observed to enjoy the time he spent with his father, despite his subsequent denials.   Regrettably, the GAL had come to the conclusion, shared by other professionals in the case, that Brandon was not a reliable reporter.   The GAL concluded Brandon needs to see his father regularly.   Indeed, she believed it was in Brandon's best interest to spend every weekend from the close of school until its resumption with the father.   She believed the father should have sole legal custody and the parties should have shared physical custody.   She felt the father was capable of parenting the child if he was awarded sole custody.

On December 8, 2011, the third and last day of the proceedings, the GAL testified that circumstances had deteriorated substantially since the initial hearing.   Notwithstanding the court's explicit instructions at the conclusion of the proceedings on November 15, 2011, no visits between the father and the child had occurred.   The GAL lost confidence that Brandon would enjoy weekends with the father if her initial recommendation of shared physical custody was ordered.   In the GAL's opinion, Brandon, his mother and her relatives were actively working to frustrate and prevent a relationship between the child and his father.5  The GAL testified the mother was unable to recognize the impact of her actions or inactions on her son, and her failure to establish parental controls over Brandon, as it related to his relationship with his father, served to empower the child.   The GAL was so concerned about Brandon's ability to develop in a healthy manner that she had considered recommending a placement with a third-party.   Ultimately she ruled the idea unworkable.6  The GAL revised her recommendations and proposed that the father be awarded sole custody and primary residence of Brandon.   She recommended that visitation with the mother, older brothers and maternal grandmother, be severely restricted, and that visitation with the mother take place only in a therapeutic setting for the next sixty to ninety days.   The GAL's opinions are compelling and persuasive.7

There are a number of examples of the high-level of conflict surrounding Brandon and the immature and passive-aggressive behavior of the adults around him.   A few examples will be described to amplify the point and provide context for the court's rulings.

A

The Exchanges

Almost every exchange has become confrontational and problematic.   Brandon's school no longer wishes to host exchanges and the New Fairfield police department has reached the limits of its tolerance for the Toomeys.   While the mother attends some exchanges, Brandon was transported to and from many exchanges by the mother's designees:  his maternal grandmother, and his older brother, Steven Toomey.8  The mother's friends, Donna Cople and Michael Mazzucco, have also transported Brandon.

Beginning in July 22, 2011, if not before, the mother, the maternal grandmother and/or Steven Toomey videotaped the exchanges with the father.9  The very act of videotaping the exchanges was extremely detrimental to the well-being of Brandon.   Moreover, the exchanges, fueled by the tension of the videotaping, frequently resulted in unpleasantries between the mother and/or her designees and the father and/or the paternal aunt, Patricia McCartney, all in the presence and within the hearing of Brandon.10  For example, on September 14, 2011, the maternal grandmother and Steven Toomey delivered Brandon to the McCartney's home for a Wednesday evening visit.   McCartney and the father were waiting in the driveway.   The exchange was videotaped by the maternal grandmother.   Brandon did not get out of the car.   McCartney demanded that the videotaping stop and that the car leave the property.   In response, the maternal grandmother instructed Steven Toomey to pull further ahead in the driveway.   McCartney began to videotape with her own cell phone.   A tussle ensued between the father and the maternal grandmother when he attempted to close the cell phone.   All the while, the maternal grandmother was yelling “stop the abuse, please stop the abuse” over and over.   The father accused the maternal grandmother of being mentally ill.   The police were called and responded.   The maternal grandmother was issued an infraction for trespassing.11  No visit took place.

At another exchange, Brandon and his maternal grandmother arrived at Starbucks, only to find the father absent.12  Brandon advised his maternal grandmother that it was 2:59 p.m. and inquired if he had to wait any longer.   When the clock struck three, Brandon declared “he's not here, we can go now” and then as he walked out the door stated with glee “he's not here” and, with a fist pump, yelled “YES.” At another exchange, he is observed entering Starbucks looking for his father and returning to his brother's car.  “He's not here Steven ․” he says;  as he buckles in he states “step on it.”   At yet another exchange, when Brandon and his grandmother arrived at the McCartney's house for a 6:15 p.m. exchange, they were advised by Brandon's uncle that the father was running late but would be there shortly.   The uncle advised that the father attempted to contact them by phone.   An offer to leave Brandon with his uncle was declined.   The maternal grandmother declared that she would drive to the next street and turnaround and then without further explanation drove home.13  On a regular basis, despite the fact that the father commuted from Queens, NY, every effort to avoid accommodation, flexibility and, ultimately, visitation was made by the mother or her designees.

B

The Weekend of July 8–10, 2011

Brandon was scheduled to spend the weekend of July 8–10, 2011, with his father.   The McCartney's daughter was celebrating her twenty-first birthday that weekend with friends, and as a result the McCartney's home was not an appropriate location for an overnight.   The father felt ill and declined to drive to Rhode Island.   Brandon and his father stayed at the home of the paternal grandmother, also in New Fairfield.   The father testified that he attempted to advise the mother of the change in plans but received no response.   On Saturday, July 9, 2011, the father took Brandon to Lake Compounce amusement park.   While at the park, someone gave the father a beverage and a pretzel.   The father recalls it was a non-alcoholic beer, such as O'Doul's.   Late that evening, the McCartneys' daughter discovered the mother on the lawn of the McCartney home.   The police were called and Gaspar, a resident trooper assigned to New Fairfield, responded.   When the trooper arrived after midnight, he found the mother and the maternal grandmother near their car.   The mother explained that she received a call from Brandon early Saturday morning advising that he was not where he was supposed to be.   She decided to go to the McCartney home at midnight to verify that Brandon was there.   She made no attempt to call the McCartneys or to knock on their door as part of her inquiry.

C

The Closet

On October 5, 2011, following a visit with his father earlier in the evening, Brandon, visibly upset, advised his mother and his maternal grandmother that his father hurt him and locked him in a closet at the McCartney home.   The mother testified she “asked him what he wanted to do about it,” and Brandon said that he wanted to tell the police, “so, on the way home I drove to the [Danbury] police station and advised the officer Brandon wanted to tell them something.” 14  The Danbury police advised that a report would have to be filed in New Fairfield.   The mother then asked Brandon if he wanted to go “all the way to New Fairfield” and because he did, she took him there.   The mother and maternal grandmother presented Brandon at the New Fairfield police department reporting that following a visit with the father earlier in the evening Brandon advised them that his father hurt him and locked him in a closet.   Two state troopers spoke with Brandon for more than an hour and concluded he was not a reliable reporter.15  At the time of trial, the mother still held to the belief that Brandon was placed in a closet at the McCartney home.16

Not only does the mother continue to insist Brandon's version of the events is credible, despite serious issues concerning her son's credibility and multiple investigations to the contrary, but she insists the decisions to go to the Danbury and New Fairfield police departments were solely Brandon's—she went but only because her nine-year-old son wanted to.   Reporting the father to the police for an assault is not a nine-year-old's decision.   If the mother reasonably believed her child had been harmed she should have gone to a police department whether her son wanted to or not.

D

Choked in the Police Department Lobby

On November 15, following the first day of the hearings, the court ordered that all subsequent visits were to take place at school or the New Fairfield police department.   On Wednesday, November 16, 2011, the maternal grandmother and Steven Toomey brought Brandon to the New Fairfield police department for the exchange.   Brandon refused to leave with his father, and the entire two-hour visit was spent in the lobby of the police station.   At one point, the father asked Brandon, who was complaining loudly that he did not trust his father or want to be with him, to move away from the dispatcher's window.   Brandon refused.   After several requests, the father attempted to move him away from the window.   Brandon resisted and grabbed the lower edge of the metal shelf in front of the window.   The father crossed one arm across Brandon's chest, and pressed down on Brandon's hands with the other to dislodge him.   When the mother and her friend Donna Cople arrived at 8:15 p.m., Brandon ran to his mother crying, and showed them his hands, on which were small cuts or abrasions.   He reported that his father had choked him.

The mother asked to speak to an officer, and Koeppel and another trooper went to the lobby to speak with her.   She refused to speak with them and demanded to make a complaint to a supervisor.   Donna Cople told the troopers that Brandon complained of being choked and hurt.   The troopers inspected Brandon's hands and reviewed the surveillance video.   The video did not support Brandon's claim that he had been assaulted or choked by his father.17  Nevertheless, the mother testified at trial she believes Brandon is credible regarding the “choking” incident.

E

All Worked Up

On November 23, 2011, the father went to the police station to collect Brandon for the Thanksgiving holiday, it was to be the first holiday spent with Brandon since the father returned to Connecticut in 2009.   A friend of the mother, Mike Mazzucco, delivered Brandon for the exchange and left the station.   Brandon refused to leave with his father, and could not be persuaded.   State Police Sergeant Wagenblas attempted to persuade Brandon to leave with his father, and was similarly unsuccessful.   He described Brandon as crying, unconsolable, “all worked up” and “kind of crazy, actually.”   The father tried to call the mother, who did not answer her phone.   The father then asked Brandon to call his mother on his cell phone, and the mother answered promptly.18  Brandon handed the phone over to the father who told the mother that Brandon needed to be picked up.   She was on the way to the airport with a friend and could not come for Brandon.   She then called the station and spoke with Wagenblas.   She raised the “choking” incident on November 16, 2011.   Wagenblas advised the mother that he had seen the tape and reiterated Brandon's version of events was incorrect.   Mazzucco returned to the station at the mother's request.   Wagenblas testified that the “minute Mike came back, the waterworks stopped.”   The father was still in the room at the time.

On Wednesday, November 30, 2011, the father and his friend Ken Cople were at the police station when Brandon was delivered by Mazzucco.   Wagenblas arranged to be present at the police station for the exchange.   He described Brandon as appearing fine when he came into the lobby but he worked himself up over the prospect of going with his father.   The tears were “turned on and turned off.”   They “stop as soon as he gets his way.” 19  Brandon refused to leave with his father, and left with Mazzucco.20

The father wants custody of Brandon;  the mother favors the current orders.   The father is sensitive to Brandon's need for both parents and does not wish to take Brandon away from his mother.   However, he is concerned that under the influence of his mother and maternal grandmother Brandon has learned to lie, disrespect his father, adult authority and the law.   The father has arranged to take a three-week leave of absence if he obtains custody, and proposes to take Brandon to therapy three times each week to help him with the adjustment.   He is looking for a job in Connecticut to eliminate his commute to New York. He has inquired about the Extended Learning Program for after-school care.   The father's mother and sister are willing to provide support and back-up.

The mother and maternal grandmother testified that they believe it is in Brandon's interests to have a good relationship with his father.   Both testified that they had “facilitated” Brandon's contact with the father.   By “facilitate” they apparently mean that they arrange to make Brandon available by delivering him to the exchange location.   The mother is unconcerned by the lack of actual visitation, the conflict surrounding the exchanges and her son's willingness to prevaricate concerning his relationship with his father.   The mother was unable to describe any consequences to Brandon for refusing to visit with his father or follow the directions of police officers.   The mother does not believe that any of the professionals involved with the family appreciate the situation and respond appropriately—not the GAL, the New Fairfield police, the child's therapist, DCF or the AMC. The problem from the mother's perspective is that nobody “gets it.”

II

CONTEMPT MOTIONS

“To constitute contempt, a party's conduct must be willful ․ Noncompliance alone will not support a judgment of contempt.”  (Internal quotation marks omitted.)  Adams v. Adams, 93 Conn.App. 423, 431, 890 A.2d 575 (2006).  “An order of the court must be obeyed until it has been modified or successfully challenged.”  (Internal quotation marks omitted.)  Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998).

A

Mother's Motions No. 255.03/4 and No. 255.05

The motions are denied.   The court finds the father did not willfully violate court orders the weekend of July 8–10, 2011, when he decided it was inappropriate under the circumstances for Brandon to stay at the McCartney's home and stayed at the paternal grandmother's home.   The mother failed to establish he drank alcohol while caring for Brandon.

B

Father's Motions No. 265.02 and No. 267.00

The court finds the mother intentionally and willfully violated the court orders of visitation.   The mother and her agents through action and inaction systematically frustrated, prevented and interfered with the father's visitation with Brandon through her failure to ensure successful exchanges took place.   The court finds the mother in willful contempt of court.

Although the mother has been found in contempt of court, no monetary amount is assessed as fees or otherwise;  in recognition of the mother's multiple violations of court orders surrounding access to Brandon, 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.

III

CUSTODY AND VISITATION MOTIONS

The court must next consider the father's motion no. 265 to modify visitation, the AMC's motion no. 274 to modify custody and visitation post-judgment, and the mother's motion no. 273.50 for sole custody.   In deciding the custody and visitation motions, the court has attempted to discern what is in Brandon's best interests, guided by its evaluation of the sixteen factors enumerated in § 46b–56(c).  See Noonan v. Noonan, 122 Conn.App. 184, 189–90, 998 A.2d 231, cert. denied, 298 Conn. 928, 5 A.3d 490 (2010).  Section 46b–56(a) provides in relevant part:  “In any controversy before the Superior Court as to the custody or care of minor children ․ the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children ․” Section 46b–56(b) further provides in relevant part:  “In making or modifying any order [with respect to custody or visitation], the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests.”   The “best interest of the child” standard is the ultimate basis of a court's custody decision.   See Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993).   Either parent can be awarded custody and the issue “is not which parent was the better custodian in the past but which is the better custodian now.”  Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).  “Before a trial court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child.”  Brubeck v. Burns–Brubeck, 42 Conn.App. 583, 585, 680 A.2d 327 (1996).   Furthermore, as articulated in Reza v. Leyasi, 95 Conn.App. 562, 568, 897 A.2d 679 (2006), “[t]he well-being of the child rather than the punishment or reward of the parent ought to guide every custody case ․” Finally, the burden of proof as to each proposed change is upon the parent making that proposal;  Rubenstein v. Rubenstein, 48 Conn.Sup. 492, 496, 851 A.2d 1262 (2004);  and the standard of proof is a fair preponderance of the evidence.  Cookson v. Cookson, 201 Conn. 229, 239–40, 514 A.2d 323 (1986).

Public policy as expressed most clearly in General Statutes § 46b–56a, favors an order of joint custody whenever such an order is requested by the parents and would be in the best interests of the child.   These parents have agreed in the past to exercise joint legal custody, but that has not been a success for either party or, more importantly, for the child.   This is a case where the best interests of the child standard dictates a change in the custody arrangements.   There has been a substantial change in circumstances.   The record reflects that the mother's actions, and the actions of the mother's designees have severely damaged the father-son relationship.   Brandon does not possess the ability to think or act independently.   Nothing in the historical record identified behavior on the part of the father which would explain Brandon's behavior.   The child is developing many of the characteristics of a child alienated from his father and aligned with his mother.   The mother has contributed to this in many ways:  by allowing the child to make decisions as to whether to have contact with his father, not speaking positively of the father to the child or in front of the child, not encouraging contact between the father and the child, believing the father is dangerous to the child and not shielding the child from her feelings, and not correcting the child's wrongful allegations about the father.   Additionally, the mother has allowed the maternal grandmother to engage in behavior which has been similarly toxic to the relationship between the father and child.   The mother has taken no action to prevent the maternal grandmother's behavior—implicitly approving the behavior.

The court has reached the conclusion that the child must be allowed to engage in self-reflection, for a reasonable period of time, without interference by the mother and the maternal grandmother.   The child is of sufficient age to keep his mother in mind and not lose the benefits of his attachment with her.21  The father will need the benefit of a parenting coach and the mother the benefit of therapeutic visitation.

IV

ORDERS

The court orders:

1. Sole Physical and Legal Custody:  Because of the mother's pattern and practice of interfering with the father's relationship with the minor child, Brandon Toomey (hereinafter referred to as “the child”) and her refusal to foster or support a relationship between the child and the father, sole physical and legal custody of the child is hereby vested in the father, postjudgment.

2. Pursuant to General Statutes § 46b–56(g), both parties have the right of access to all academic, medical, hospital or other health records of the child.   The father will immediately inform the child's school, medical providers, extracurricular activity providers, etc., (and will so notify all in the future) that the mother is to be provided with all information ordinarily provided to parents.   The father will promptly provide the names or all such current and future providers to the mother.   The father may designate his mother or sister as the second contact in the event of emergency at the child's school.

3. The father is to communicate, at least every other day, with the mother and the guardian ad litem through Our Family Wizard as to the activities and health of the child.   He is to notify the mother and the GAL immediately if any emergency arises regarding the child.   Notwithstanding the general grant of sole legal custody to the father, the father shall not change the child's religion, school or pediatrician without the express written agreement of the mother.   The father shall make routine day-to-day decisions while the child is in his care.   The father may first solicit input from the mother via Our Family Wizard.   After receiving her input, which shall be provided within twenty-four (24) hours of a request, he shall make the decision at hand.   The father shall use Our Family Wizard to communicate the information ordered in Order 2 above.

Because of past, inappropriate communication between the parties, the father's obligation to communicate with mother shall be limited to providing information on issues such as medical treatment or educational where there are developments of significance.   Thus, for example, if the child does not have a doctor's appointment during a given week, or has not missed school during a given week, the father shall not be obligated to communicate the fact that there were no such medical appointments or the fact that the child did not miss school.   He is, however, ordered to communicate when there is such an appointment or missed school.   The emails shall include a list of reasonably anticipated extracurricular activities and/or out-of-state travel, including the child's itinerary.   The itinerary shall be limited to dates of travel, destination, place of stay, e.g., name and address of hotel and telephone contact number.   Communications through Our Family Wizard shall take place in a non-argumentative, business-like, and non-disparaging manner.   The father's obligation to communicate is limited to providing the information described above.   He shall not be obligated to respond to any inquiries from the mother that do not serve legitimate information exchange purposes.

4. Our Family Wizard (“OFW”):

The parties are ordered to visit the Ourfamilywizard.com website, take the tour by clicking on the “Families” tab on the main page, and each establish a parent account to utilize the tools listed in the “Services” tab.   Each shall enroll in the program for a one-year subscription at their own cost.   The parties shall thereafter conduct all communications regarding visitation, pick-ups and drop-offs of the child, information sharing, schedule alterations and reimbursable expenses matters on the website and shall not e-mail each other directly regarding issues relating to the child but shall post all communication exclusively on the website.

The GAL shall be given access to Our Family Wizard to monitor the communication between parties.   Neither party shall fail to renew the annual subscription to the website without a signed and filed stipulation or a court order.

5. Visitation:

a. Effective immediately the mother shall have no contact, directly or indirectly, with the child for a period of thirty-five (35) days or the period of the father's leave of absence from work, whichever is less (“the no-contact period”).22  If the child's therapist recommends relaxation of this order to secure the immediate emotional or physical safety of the minor child (and for no other reason), then it may be relaxed but only for that reason.   Neither parent is to unilaterally vary or deviate from the terms of this order.   The older brothers' contact with the child will be entirely at the discretion of the father.

b. During the no-contact period the mother is not to enter upon any property on which the father and the child are staying, nor to engage in video-taping or eavesdropping of the child and/or the father, nor to telephone the child, nor to accept telephone calls from the child, nor to engage third parties to do so.   Further, the mother is to instruct her relatives and friends not to do so.   In the event any relative, friend, or employee of the mother is found to be trespassing, video-taping, or eavesdropping on the child and/or the father, or speaking by telephone with the child, there will be a presumption that it was done at the request of the mother.

c. At the conclusion of the no-contact period, the mother may meet with the child in the presence of a reunification therapist at her sole expense weekly, and after four weeks of weekly visitation, mother may meet with the child bi-weekly.   The therapist shall be knowledgeable about child alienation and shall be acceptable to the AMC and the GAL. The therapist shall have full access to all communications between the parties, the court's findings, the present orders, and any other information deemed necessary by the therapist.   The father shall participate as requested by the therapist.   Reunification therapy shall continue for such duration as is deemed clinically appropriate by the reunification therapist or further order of the court.   Prior to the first meeting with the child, the mother will meet with the therapist to prepare a suitable statement to deliver to the child.   The mother will execute cross releases between this therapist and her own individual therapist.

d. After the conclusion of the no-contact period, the mother will not initiate telephone contact with Brandon during the father's parenting time.   The mother will instruct her family members and friends not to initiate telephone contact with Brandon during the father's parenting time.   Brandon's use of the telephone and computer while with the father will be at the father's sole discretion.

e. After the ten visits in a therapeutic setting, and provided that the reunification therapist agrees, the mother may have up to four hours supervised visitation with the child each weekend on either Saturday or Sunday between the hours of 9 a.m. and 7 p.m. If the parties are unable to agree, the day will be Sunday.   The mother may invite other family members and friends to visit with the child during this time.   If the reunification therapist is opposed to this expansion of the mother's contact with the child, and the mother still seeks such expansion, she shall file an appropriate motion with the court for hearing.

f. The mother shall employ, at her sole expense, the supervision services of Visitation Solutions, LLC 23 unless directed to utilize an alternate supervision service by the GAL. 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.   If the child needs medical care, the supervisor shall call the father and if it is an emergency make the necessary medical arrangements.

After at least four weeks of supervised visitation, and upon agreement of the supervised parenting access provider, the mother's therapist, and the child's therapist, the mother's parenting access may be modified to supervised parenting access by a responsible third party.   In such event, the parenting supervisor shall be a responsible third party acceptable to the GAL. Significant consideration shall be given to the father's preference, such as a person related to the father by blood or marriage.   The supervisor shall not be a person who has previously engaged in acts of parental alienation.   The supervisor shall not be the maternal grandmother, unless the father, in his sole discretion, agrees otherwise in writing.   If the mother permits the maternal grandmother or other maternal relative to serve as supervisor, he may thereafter choose to withdraw such permission at his discretion.

ADDITIONAL PROVISIONS:

6. The court finds it in the child's best interest that he remains in counseling with Kathy Repole, LCSW. Both parents will fully cooperate as requested by Repole and will ensure that the child does not miss appointments for individual sessions or sessions with either parent as may be recommended by Repole.

7. The court finds that it is in the child's best interest that both parents will remain in individual therapy and will authorize their respective therapists and the child's therapist to consult with one another.   The mother's therapist shall among other responsibilities assigned by the mother, treat the mother for such matters as necessary for her to accept her responsibility for her role in the child's thoughts about and relationship with the father.   The court finds this necessary to protect the child's best interest.

8. After the fifteen visits in a therapeutic setting, and provided that the therapist agrees, (and provided the parties customarily attend), the mother may attend sporting events, school activities, scout meetings, etc. in which the child is involved.

To the extent that the mother attends or participates in the child's school or extracurricular activities, she shall not use such participation as an opportunity to discuss adult topics with the child, interfere with the activity, “lobby” the child to make disparaging statements about the father, excessively inquire of the child about his living arrangements or well-being, or “lobby” third parties such as teachers, coaches, or other third parties regarding the child's living arrangements or the child's relationship with his father.   The father. shall likewise not use her opportunity to participate in such activities as a means of obtaining unsupervised access to the child, either personally or through an agent.   The mother's inquiries to third parties such as teachers or coaches shall be similarly limited to legitimate questions regarding the child's academic progress or participation in the event at issue.   The mother shall not cause any third party or agent to violate any of the foregoing orders.   If the mother cannot follow this order, then among other remedies, these rights of access may be terminated by the court.

9. No provision for Right of First Refusal to care for the child is included or implied.   The father may make arrangements for others to care for the child in his best judgment.

10. Neither party shall communicate with the other through the child at all, including, without limitation, visitation schedules, parenting issues, or support payments.

11. Neither party shall disparage, denigrate, slander, or make false statements regarding the other to the child or within his reasonable hearing range.   Neither party shall discuss adult topics in front of or with the child.   The phrase “adult topics” includes issues relating to parenting time, custody, the court, court proceedings, or the positions of the parties in the litigation.   Each party shall use his or her best efforts to shield the child from disputes arising out of the dissolution, the present orders, any prior court orders, or any post-judgment proceedings.   The parties shall not argue either in front of the child or within his reasonable hearing range.   Each party has an affirmative obligation to foster feelings of love and affection in the child toward the other parent and family members.   Neither party shall cause or permit any third party to discuss adult topics, as defined in the preceding paragraph, with the child.

12. In the event of any emergency situation involving illness, injury, or medical condition affecting the minor child, the party noticing the situation shall immediately notify the other party by the most expeditious means possible.   No notice will be necessary of routine medical or dental appointments, nor shall the mother be entitled to be present for such appointments.   Except in the case of emergencies, the mother shall not seek the services of any medical provider, including a physician or dentist for the minor child.   The mother shall not cause, directly or indirectly, any false report of injury, abuse, or neglect to be made to any person or entity, including, without limitation, the Department of Children and Families (DCF).  Violation of the latter requirement may expose the mother to various penalties associated with contempt of a court order, including a monetary fine, sanctions, attorneys fees, or any other appropriate remedy.   In the event that either party becomes aware of an injury or condition involving the minor child that he or she reasonably believes may warrant the involvement of the DCF, prior to initiating any such report the guardian ad litem shall be notified, shall be provided with a summary of the facts and circumstances, shall have an opportunity to meet with her ward without the involvement of the reporting party, may document the condition of the minor child, including by interview, the taking of notes, and/or photographs/video, may prepare documents or summaries for the benefit of DCF, may contact or speak with DCF workers as necessary, and shall discuss the situation with the party prior to the involvement of the DCF. Any report that the father makes to DCF shall be accompanied by a copy of the court's findings.   Any report to the DCF that is determined to be misleading, false, fraudulent, manipulated, or in any way in bad faith, whether made directly by a party or initiated through a third party by action or inaction of a party, the offending party shall pay to the non-offending party the sum of $2,000.   Said sum is narrowly tailored to address the contemptuous conduct at issue and shall not be deemed a fine or excessive penalty.   It is a base sum recognizing the emotional harm, time and inconvenience that will result from such false claim.   It does not include sums that may be expended in defense of such a false claim.   The court shall further award reasonable attorneys fees and any other consequential damages to the non-offending party flowing from any false report, as well as any other relief in law or in equity deemed appropriate by the court.

13. The AMC shall remain in her appointment until relieved of her duties by the court and shall meet with Brandon immediately to communicate these orders to him.

14. A continued hearing is held by the court on April 4, 2012 at 10 a.m. to determine whether it is in the child's best interest to resume unsupervised contact with his mother and on what basis.   Incident to that hearing will be the entry of orders regarding parenting (both as to physical time and as to decision-making responsibility) for the future.

15. Before the continued hearing, the mother may only move for modification of the physical and legal custody arrangements once she has completed all additional co-parenting classes and/or training recommended by the reunification therapist.

16. In light of the substantial change in circumstances, any order of child support from the father to the mother is terminated effective immediately without prejudice to appropriate motions seeking further modification.

THE COURT

HARRY E. CALMAR, JUDGE

FOOTNOTES

FN1. Relevant to these proceedings, the stipulation provided that all weekend visits were to take place at the home of the father's sister, Patricia McCartney, or, if other family members were present, at the Toomey family vacation home in Rhode Island.   Additionally, the stipulation provided the father was prohibited from consuming alcoholic beverages in his son's presence..  FN1. Relevant to these proceedings, the stipulation provided that all weekend visits were to take place at the home of the father's sister, Patricia McCartney, or, if other family members were present, at the Toomey family vacation home in Rhode Island.   Additionally, the stipulation provided the father was prohibited from consuming alcoholic beverages in his son's presence.

FN2. After the close of evidence the AMC submitted proposed findings of fact which were adopted in their entirety by the father.   Eight of the AMC's sixty-nine proposals were adopted by the plaintiff..  FN2. After the close of evidence the AMC submitted proposed findings of fact which were adopted in their entirety by the father.   Eight of the AMC's sixty-nine proposals were adopted by the plaintiff.

FN3. The case was initially scheduled for one day.   The GAL testified on three separate occasions during the proceedings..  FN3. The case was initially scheduled for one day.   The GAL testified on three separate occasions during the proceedings.

FN4. On Thursday, October 6, 2011, the day following the “closet incident” described below, Brandon was scheduled to have an appointment with his therapist, Kathy Repole, LCSW. The mother cancelled the appointment and took Brandon to a swim team practice instead..  FN4. On Thursday, October 6, 2011, the day following the “closet incident” described below, Brandon was scheduled to have an appointment with his therapist, Kathy Repole, LCSW. The mother cancelled the appointment and took Brandon to a swim team practice instead.

FN5. Often visits would not occur because the father who commuted from New York City, was not available for part of the weekend and the mother denied access for the balance of the weekend, or the father was delayed by traffic and the mother or maternal grandmother would not wait for his arrival, or Brandon would refuse to leave the exchange place with the father..  FN5. Often visits would not occur because the father who commuted from New York City, was not available for part of the weekend and the mother denied access for the balance of the weekend, or the father was delayed by traffic and the mother or maternal grandmother would not wait for his arrival, or Brandon would refuse to leave the exchange place with the father.

FN6. Brandon does not qualify for an inpatient setting.   The department of children and families does not permit placement in a foster home if a viable family member is available..  FN6. Brandon does not qualify for an inpatient setting.   The department of children and families does not permit placement in a foster home if a viable family member is available.

FN7. Neither a court appointed evaluator nor a family relations advisor testified at the proceeding.   The GAL, however, is experienced and was a family relations counselor for over a decade.   See Drumm v. Drumm, Superior Court, judicial district of Hartford, Docket No. FA 90 0300813 (December 3, 1991, Steinberg, J.) (mentions Leslie Raider as family relations counselor);  Fish v. Fish, Superior Court, judicial district of Middlesex, Docket No. FA 00 0339326 S (June 3, 2003, Abery–Wetstone, J.) (same)..  FN7. Neither a court appointed evaluator nor a family relations advisor testified at the proceeding.   The GAL, however, is experienced and was a family relations counselor for over a decade.   See Drumm v. Drumm, Superior Court, judicial district of Hartford, Docket No. FA 90 0300813 (December 3, 1991, Steinberg, J.) (mentions Leslie Raider as family relations counselor);  Fish v. Fish, Superior Court, judicial district of Middlesex, Docket No. FA 00 0339326 S (June 3, 2003, Abery–Wetstone, J.) (same).

FN8. Since June 15, 2011, the maternal grandmother delivered Brandon to the exchange sites every Wednesday and weekend, and was often assisted by Steven Toomey..  FN8. Since June 15, 2011, the maternal grandmother delivered Brandon to the exchange sites every Wednesday and weekend, and was often assisted by Steven Toomey.

FN9. Video records of many of those exchanges are in evidence as Defendant's Exhibit H..  FN9. Video records of many of those exchanges are in evidence as Defendant's Exhibit H.

FN10. On one occasion, the father,. m the presence of his son(s) was called a “great bystander” and on another told “no drinking this weekend you fat bastard.”   Family members on both sides accuse others of suffering from mental illness.   The father's texts to the mother are often rude and baseless..  FN10. On one occasion, the father,. m the presence of his son(s) was called a “great bystander” and on another told “no drinking this weekend you fat bastard.”   Family members on both sides accuse others of suffering from mental illness.   The father's texts to the mother are often rude and baseless.

FN11. On November 14, 2011, the maternal grandmother filed a civil suit alleging assault and battery by the father and McCartney during the September 14 exchange incident..  FN11. On November 14, 2011, the maternal grandmother filed a civil suit alleging assault and battery by the father and McCartney during the September 14 exchange incident.

FN12. The defendant works in Queens;  NY. In order to make a 3 p.m. exchange in New Fairfield he must leave work no later than 12:30 p.m. and his timely arrival is frustrated by traffic..  FN12. The defendant works in Queens;  NY. In order to make a 3 p.m. exchange in New Fairfield he must leave work no later than 12:30 p.m. and his timely arrival is frustrated by traffic.

FN13. During his commute from Queens the father called the mother and Brandon at home and on their mobile devises.   He arrived at 6:18 p.m..  FN13. During his commute from Queens the father called the mother and Brandon at home and on their mobile devises.   He arrived at 6:18 p.m.

FN14. The Danbury police department was not on Brandon's way home from the McCartney home in New Fairfield and it was necessary for the mother to drive past her home to get there..  FN14. The Danbury police department was not on Brandon's way home from the McCartney home in New Fairfield and it was necessary for the mother to drive past her home to get there.

FN15. Koeppel, a state trooper, reported the incident to DCF on October 13, 2011.   Kristine Eager, a DCF social worker, initiated an investigation, which included interviews with each parent and Brandon, and a site visit to the McCartney home.   Eager reported that the “closet” Brandon reported he had been “locked” in was actually a mud room with a large window, bench, and skylight, had no lock on the door, and contained coats and shoes.   The investigation did not substantiate that Brandon had been neglected or abused..  FN15. Koeppel, a state trooper, reported the incident to DCF on October 13, 2011.   Kristine Eager, a DCF social worker, initiated an investigation, which included interviews with each parent and Brandon, and a site visit to the McCartney home.   Eager reported that the “closet” Brandon reported he had been “locked” in was actually a mud room with a large window, bench, and skylight, had no lock on the door, and contained coats and shoes.   The investigation did not substantiate that Brandon had been neglected or abused.

FN16. The mother continues to investigate Brandon's “closet” story and has gone so far as to obtain a floor plan of the McCartney home at the New Fairfield building department..  FN16. The mother continues to investigate Brandon's “closet” story and has gone so far as to obtain a floor plan of the McCartney home at the New Fairfield building department.

FN17. On November 16 or 17, Eager was assigned to investigate a second referral made by Donna Cople regarding the November 16, 2011 incident.   Eager observed minor cuts or lacerations below the knuckles on two of Brandon's fingers.   She learned that he had been taken to the doctor.   She spoke to the officers involved and read the police reports, but was unable to view the surveillance video because it has been impounded for an Internal Affairs investigation.   The investigation of this referral continues..  FN17. On November 16 or 17, Eager was assigned to investigate a second referral made by Donna Cople regarding the November 16, 2011 incident.   Eager observed minor cuts or lacerations below the knuckles on two of Brandon's fingers.   She learned that he had been taken to the doctor.   She spoke to the officers involved and read the police reports, but was unable to view the surveillance video because it has been impounded for an Internal Affairs investigation.   The investigation of this referral continues.

FN18. The mother testified she was driving when the father's call came in and pulled over in time to take Brandon's call..  FN18. The mother testified she was driving when the father's call came in and pulled over in time to take Brandon's call.

FN19. Wagenblas, who is familiar with Brandon, having observed a number of exchanges, testified that Brandon, for a child, is unusually resistant to direction..  FN19. Wagenblas, who is familiar with Brandon, having observed a number of exchanges, testified that Brandon, for a child, is unusually resistant to direction.

FN20. On the way home Brandon advised Mazzucco he was upset and surprised to find Ken Cople with his father.   Brandon called his mother and then called his mother's friend Donna Cople, Ken Cople's wife, to express his concern and to inquire if she was aware that Ken Cople was at the station with his father..  FN20. On the way home Brandon advised Mazzucco he was upset and surprised to find Ken Cople with his father.   Brandon called his mother and then called his mother's friend Donna Cople, Ken Cople's wife, to express his concern and to inquire if she was aware that Ken Cople was at the station with his father.

FN21. See Dean v. Valinho, Superior Court, judicial district of Middlesex, Docket No. FA 04 4012513 (July 6, 2011, Munro, J.)..  FN21. See Dean v. Valinho, Superior Court, judicial district of Middlesex, Docket No. FA 04 4012513 (July 6, 2011, Munro, J.).

FN22. The father shall notify the mother through OFW, of the duration of the no-contact period within five days of this decision..  FN22. The father shall notify the mother through OFW, of the duration of the no-contact period within five days of this decision.

FN23. Brookfield CT # 203–740–0091.  FN23. Brookfield CT # 203–740–0091

Calmar, Harry E., J.

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