Opinion
No. FA 07-4006657S
October 22, 2010
MEMORANDUM OF DECISION RE
Plaintiff's Motions for Modification #339 and #364 Defendant's Motion for Contempt #322.50 GAL's Motion for Contempt #303
This post-judgment matter is before the court on motions seeking to modify or enforce the parenting orders in what the supervisor of family services in this district has described as one of the worst cases she has seen in her 27 years as a family relations officer, with "ugly, mean, spiteful behaviors" on the part of both parties and "their children . . . caught in the middle." In the ten months following the judgment dissolving their marriage, these parties spent ten days before this court, primarily on custodial issues (with sometime in December and February on contempt issues related to the filing of joint tax returns). Both parties have been ably represented by counsel, and the interests of the minor children professionally and capably advocated for by a guardian ad litem and her attorney. The essential questions are whether and how to enforce the order in the judgment of dissolution that the defendant have supervised visitation with his three youngest children every other week. The plaintiff has moved to terminate that order and end the defendant's access with the children and for sole custody, while the defendant has sought to continue his visitation and to have the plaintiff held in contempt for denying him access in accordance with the judgment. The plaintiff also seeks to move the location if supervised visits continue. Finally, the guardian ad litem has filed a motion for contempt against both parties for their not having paid fees due her. For the reasons stated below, the plaintiff's motions are denied, and the motions of the defendant and GAL are granted.
Early in the hearing on these motions the court heard testimony from the guardian ad litem that both parties had repeatedly frustrated her efforts to obtain information that would have been relevant to the issue of the children's best interest. To ensure that the court had all necessary and relevant information, the court found that it was in the best interest of the minor children for the guardian ad litem to be able to call and question witnesses, and appointed counsel for the GAL for that purpose.
The marriage of the parties was dissolved in an uncontested hearing before this court on September 22, 2009. Two months later, the plaintiff sought permission from the court to relocate with her children out of state "in order to obtain employment, and to find a less expensive place to live" because, she claimed, the defendant had not visited the children for six months and failed to provide court-ordered support to her, thereby "resulting in [her] being unable to maintain her house," and subjected her to "a continual threat . . . including his harassment . . ." (Pl.'s Motion for Permission to Relocate Post-Judgment #311.) Although she has since then abandoned that request, in March of this year she filed a motion for modification #339 seeking to change the days and locations for the defendant's supervised visitation and to prescribe limits on the defendant's conduct with the children during visits. In June, she filed the other motion for modification now pending, #364, in which she asserted that the defendant "has been unable to establish a bond with the children and it is not likely that he will be able to establish a bond with the children in the near future" and that the "children have no memory of [him] as being their father, and . . . no desire to establish a relationship with him"; that motion sought to terminate his visitation with the three youngest children and to obtain sole legal custody of them. The defendant's motion for contempt, on the other hand, alleges that the plaintiff has refused to bring the children to court-ordered visitations and, in the hearing on these motions, he has attributed his continuing difficulty in developing a parental bond with his youngest children to the plaintiff's alienation of them from him.
On these issues, the court heard from the plaintiff, defendant and the following witnesses:
Attorney Susan Heintz, the court-appointed guardian ad litem (GAL);
Dr. James J. Connolly, J.D., Ph.D., a licensed clinical psychologist who conducted a psychological evaluation of the parties completed on April 16, 2009, for the dissolution of marriage proceeding, and an updated evaluation completed on March 10, 2010, for this proceeding, prepared written reports regarding both evaluations that were introduced into evidence here, and interviewed two of the older children, Courtney and Brandon, to determine whether their testifying here would be psychologically harmful to them such that they should be deemed unavailable under the standards recently articulated by our Supreme Court in In re Tayler F., 296 Conn. 524 (2010);
Judith E. Clarke, who supervises the visitations at KidSafe, a supervised visitation facility located in Rockville and Manchester;
Erik Molitoris, the plaintiff's previous husband and the biological father of Ian and Derek Bothur;
Ian Bothur (DOB 1-26-90) and Derek Bothur (DOB 6-24-92), who were both adopted by the defendant after the voluntary termination of Mr. Molitoris's parental rights by the Bolton Probate Court on June 20, 2006;
Courtney Bothur (DOB 12-5-94) and Brandon Bothur (DOB 12-16-99);
Maureen Gould, supervisor of family services for the judicial district of Tolland;
Paul Lorenzo, a family relations counselor who conducted two visitation evaluation interim reports regarding the access of Mr. Molitoris with Ian and Derek prior to the termination of his parental rights and their adoption by the defendant;
DCF investigator Katherine Haggerty;
Ethel Bothur, the defendant's mother; and
Officer Bernard Hallums of the Manchester Police Department;
The court has fully considered the reports and testimony of Dr. Connolly, the family relations counselors, and the guardian ad litem, as well as the other evidence presented. Nevertheless, the court is not bound by the testimony, conclusions, or opinions of any of the witnesses as to the facts or the ultimate issue, which is what custodial and visitation orders would be in the minor children's best interests. In Ford v. Ford, 68 Conn.App. 173, 789 A.2d 1104 (2002), for example, the Appellate Court expressly upheld the trial court's decision rejecting the recommendations of the guardian ad litem and court-appointed psychologist: "a trial court is not bound to accept the expert opinion of a family relations officer . . . [and] is free to rely on whatever parts of an expert's opinion the court finds probative and helpful." (Internal quotation marks omitted.) Id. at 190, citing Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981). "It is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight." State v. Jarzbek, 204 Conn. 683, 706, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061 (1988). "It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert." (Citation omitted.) Tartaglino v. Dept. of Correction, 55 Conn.App. 190, 195, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999). Ultimately, the court is responsible for sifting through and evaluating all the evidence and then rendering its own findings and conclusions.
Under the custody agreement incorporated into the judgment of dissolution, the plaintiff mother was granted sole legal custody of their six oldest minor children — Derek, Courtney (DOB 12/5/1994), Brandon (DOB 2/16/1996), Connor (DOB 9/4/1998), Cassidy (DOB 1/4/2000), and Liam (DOB 6/20/2001); and the parties share joint legal custody of the three youngest children, Trinity (DOB 4/17/2003), Jordan (DOB 9/16/2004) and Dominic (DOB 4/28/2006). The agreement further provided that the mother would have physical custody of all nine children; that the father would have no access with the six oldest children; and that he would have regular supervised visitation with the three youngest children every other Sunday for two hours at KidSafe.
Judge Abery-Wetstone had ordered the custody and financial issues bifurcated and referred the custodial issues to the regional family docket in Middletown, where the parties entered into a custody agreement on July 14, 2009, which was approved by the court, Abery-Wetstone, on July 16, 2009. Just before the date scheduled for trial of the financial issues in Rockville, the parties entered into an agreement on financial issues as well, and the matter went to judgment after an uncontested hearing on September 22, 2009. When it was later discovered that the July custody agreement had inadvertently not been incorporated into the judgment, and that the only custodial order entered then was regarding legal custody, the judgment was opened on November 6, 2009, and the July 14 custody agreement incorporated therein.
Ian had turned 18 by the time of judgment, and Derek has turned 18 since then.
This unusual custody order resulted from the unique circumstances of this case, and the issues now before the court cannot be addressed without understanding that history, which continues to haunt this family. When the parties married, the plaintiff already had three children from two prior marriages — Justin with her first husband and Ian and Derek with her second husband, and she was pregnant with Courtney, who was conceived while she was still married to her second husband. At the time of her second divorce, the plaintiff told the court that this defendant was the father of that unborn child, and the court directed her to produce proof of such soon after the child's birth and deferred any orders as to the unborn child's paternity. Despite that order the plaintiff did not do so, but after her marriage to the defendant both parties treated Courtney as their child and told her they were her parents. Her paternity was not an issue until many years later, when Mr. Molitoris sought court orders in 2004 to enforce his existing visitation rights with Ian and Derek and to secure visitation with Courtney, since there had never been a formal court finding that he was not her father.
That 2004 court proceeding between the plaintiff and Mr. Molitoris was referred to family services, where family relations counselor Paul Lorenzo had numerous contacts with both parents and met personally with the two boys. Lorenzo later reported that Ian "presented . . . his adamant position of having no contact with his father, by expressing extreme feelings of negativity toward him." He referred to the defendant, with whom he had then been living for 10 years, as his "true father." He told Lorenzo that "over the years his mother could no longer deal with his father and wanted Mr. Molitoris out of her life." He also complained that his father had scheduled and then missed parenting time in the past and expressed "his feeling of, being ripped off by his father," statements that Lorenzo said "can be viewed as the resulting anger and abandonment issues experienced by the child." Derek told Lorenzo that he wanted to end all physical contact with his father and "portrayed the father as the responsible individual who has caused the problems in the past toward his mother." Lorenzo testified here that the children's statements echoed those of their mother, and he concluded that their knowledge that their mother wanted them to be adopted by Mr. Bothur had influenced what they told him about their relationship with their father. Although the family relations counselor concluded that Mr. Molitoris's absences from the country while on military duty and his "lack of follow through with his scheduled parenting time" gave him "some of the responsibility for the tumult experienced by the children" after their parents' divorce, he also found that "mother has made numerous overt and covert attempts to physically alienate and emotionally control the boys from their physical and emotional connections with their biological father." He recommended "that the courts no longer tolerate the aforementioned alienating behavior displayed by Ms. Kristin Bothur."
The record here does not clearly reflect the immediate result in family court of those proceedings, but by end of 2005 Mr. Molitoris had given up on his efforts to see the children and sent a letter to Bolton Probate Court "wilfully relinquishing my parental rights" to Ian and Derek. His letter said that "since my divorce" from the plaintiff, "a state of constant conflicted has existed" that "had caused alienation of me from" the children's lives "and what little interaction I had with them hasn't been allowed to flourish." Since "I have not been allowed to have a meaningful relationship with my sons, . . . to continue fighting to have a relationship with them would not be in their best interest."
The Department of Children and Families (DCF) conducted a study for the probate court on the proposed termination of parental rights and stepparent adoption, and interviewed Mr. Molitoris, the parties here, and Ian and Derek. Derek told the DCF interviewer that he believed Mr. Molitoris "chose to be away and unavailable to him while he was growing up" and described himself as having "a good relationship with his mother and stepfather." Ian told DCF that Mr. Molitoris had not been required to serve overseas but had "volunteered at the expense of being unable to visit him and his brother." In June 2006, Molitoris's parental rights were terminated as to Derek and Ian, who were thereafter adopted by the defendant Thomas Bothur.
In early January 2007, only a few months after that adoption, however, Mr. Bothur moved out of the household, and shortly afterward Ms. Bothur brought this action to dissolve the marriage. There was little evidence presented to this court as to exactly what happened or why Mr. Bothur left, other than that he claimed to have become convinced that Courtney was not his biological offspring but had been conceived by Ms. Bothur with her previous husband. The facts are murky as to why he came to believe this. The court heard testimony about a DNA test supposedly showing that Mr. Bothur was Courtney's father, but also heard claims that the defendant later received documentation that falsified DNA samples had been used for that test and that another DNA test showed him not to be Courtney's genetic father, but no documentary or other evidence was presented that would have been sufficient for this court to make an independent determination of Courtney's paternity. (Although that issue was not directly before the court, the court notes that Mr. Bothur's answer to the plaintiff's dissolution complaint admitted her allegation that Courtney was issue of his marriage to the plaintiff, and his own cross-complaint contained the same allegation.) Sometime after Mr. Bothur left his family, he moved to New Jersey, where he had an intimate relationship with a woman there, although some time before the divorce he later returned to Connecticut.
In November 2007 he told a DCF worker that "[s]oon after [he had adopted Ian and Derek], he found out that Courtney was not his biological child, and the ex-husband was the father, as she had sleeping with both he and the ex-husband at the same time. He stated that the relationship began to sour after that point. He stated that he was unable to get over the fact that Mother was not truthful with him and that Courtney was not his biological daughter." Ex. 1, at 13. He made a similar statement to the GAL — that his belief that Ms. Bothur had lied to him about his being Courtney's father was the primary reason for the breakdown of the marriage.
Although the court file contains various agreements in 2007 that became court orders providing for Mr. Bothur to have scheduled parenting time with the children, he did not actually have any visitation with them that year after leaving the family. In April the matter was referred to Family Services for a limited focus evaluation on parenting issues, but returned to the court when Mr. Bothur missed his appointment. By June he had filed a motion for contempt claiming that Ms. Bothur "has not permitted the Defendant to exercise his visitation with the minor children." In October the parties agreed to the appointment of a guardian ad litem, and the current GAL entered her appearance on October 31, 2007. The GAL testified that since the time of her appointment Mr. Bothur had tried to see the children, but nonetheless between that time and the date of judgment on December 15, 2009, he only had ten visits with any of them. Before the visits resumed this year, he had seen Jordan four times, Trinity five times, and Dominic three times since January 2007.
In January 2008 the parties agreed that Mr. Bothur would have his first and second visits with the seven youngest children (in groups of four and three) for 12 hours on four Saturdays that month and the next, with the parents dropping off and picking the children up each time at KidSafe. The two oldest (and adopted) sons, Derek and Ian would have one two-hour meeting with him supervised by KidSafe on February 2, 2008. After a visitation with some of the children in August 2008, the parties agreed for Mr. Bothur's time with the children to be supervised by KidSafe. What actually happened in that visitation is not clear to the court. Courtney testified here that Mr. Bothur pushed two of the younger children off a swing and tackled Brandon to the ground after Brandon had said he did not want to be on the visit. Brandon testified that Mr. Bothur was pushing two of the younger children as high as he could on a swing, that they were screaming for him to stop, and that then one fell off and hurt herself; he also said that when he told his father to stop pushing the girls so high, Mr. Bothur put him in a headlock. Both Courtney and Brandon testified that the paternal grandmother was not present, but she testified that she was there and that nothing of the sort had happened.
Shortly after that visit Brandon called the GAL and asked for her help. The GAL arranged to interview the children with family relations supervisor Maureen Gould the following week; and Gould described the results of those interviews as "very sad." She testified that each child had a different version of the incident, with no consistencies, that she could not get a straight story from them, including what and where they had eaten, and that she was unable to determine what had actually happened. Gould did not believe, however, that any physical abuse or neglect had occurred on Mr. Bothur's part. Nonetheless, in view of the highly charged conflict between the parties, the GAL and family relations supervisor recommended that henceforth all of Mr. Bothur's parenting time be supervised by KidSafe so that there would be independent and objective reports of what happened when he met with the children.
As part of the divorce process the parties agreed to a psychological evaluation of the parties, and the resulting evaluation by Dr. James J. Connolly provided the framework for their custody agreement. After interviewing the parties and children, Dr. Connolly found that "all of the oldest six children are thoroughly dedicated to not participating in meaningful visits with their father." Although noting that Ms. Bothur had engaged in alienating behavior toward Mr. Bothur (as well as toward her two previous husbands) — by which Dr. Connolly meant that she said and did things in the children's presence that had the effect of causing their estrangement from their fathers, he did not believe that her conduct was the principal cause of Mr. Bothur's estrangement from his six oldest children: "I believe the primary factors holding these alienated feelings in place are Thomas's own departure from this large and needy family in order to pursue another romantic relationship and the generalized anger that the children feel and communicate among themselves about their perceived abandonment by their father . . . [W]e are not only dealing with a maternal figure . . . encouraging alienation, but with a rather large sibship of angry children, essentially run riot with hostility toward their father . . . In the harsh moral universe prevailing within this family, mutually maintained over the years by Thomas and Kristin, good and bad have for many years been defined in extreme black-and-white terms. Thomas having left the family is thus straightforwardly interpreted by the older six children as an act of the foulest betrayal of the family as a whole. This case is no garden variety instance of `parental alienation syndrome,' but an example of a considerably more complex, resilient, and intractable phenomenon revolving around the children's perceived abandonment and sense of betrayal of the family's strongly held values as well as the individual children's expectations of their father's behavior."
Credible reports prepared by KidSafe on Mr. Bothur's visitations with the children on November 9 and 23, 2008, show that his relationship with many of the children was deeply troubled 23 months after he had left the household:
November 09, 2008, visitation with Courtney, Cassidy, Jordan and Trinity: "Courtney throws a marker at Dad." "Cassidy throws soda at Dad . . . spits water at Dad . . . tries to grab book from Dad then punches him." "Cassidy throws a cookie at Dad . . . says you're not my Father . . ." "In general both Courtney and Cassidy stated that they hated their Dad . . . and demonstrated hostility toward their Dad throughout the visitation."
November 9, 2008, visitation with Conner, Liam, Dominic and Brandon: "Brandon replies get behind me Satan." "Connor states . . . your [sic] evil."
November 23, 2008 visit with Courtney, Cassidy, Trinity, and Jordan: "Courtney picked up Jordan and yelled out, `don't touch us stay away.'" "Jordan said, `Mom said you're not our Dad.'" "Courtney . . . writes on the board `I Hate You.' Cassidy and Trinity follow Courtney's direction and they all start to write hate messages on the board." "Trinity, `You're a rat.'" "They all said we don't love you." "Courtney, Cassidy, Trinity, and Jordan [sic] would tell Dad they hated him, this happened several times . . . [T]hey would tell him to leave them alone, do not touch me, and throw objects at Dad like: food, pencils, and toy pieces."
In his interviews with the three youngest children, however, Dr. Connolly did not find the same level of hostility toward Mr. Bothur, although the children also had little memory of him: "The three youngest children are less personally susceptible to the actual experience of a sense of betrayal of their father leaving them . . . These three children are not hopelessly emotionally distanced from their father, and I believe that after some period of supervised visitation, Thomas may be able to move to unsupervised visitation with these three children within the first six months of the post-divorce period." Thus he recommended that the plaintiff have sole legal and physical custody of the six oldest children, that Mr. Bothur have no court-ordered visitation with these children, but that he have regular supervised visitation with the three youngest children, "presumably moving on to unsupervised visitation every other weekend." Adopting those recommendations, the custody agreement incorporated into the judgment of dissolution granted sole legal and physical custody of the seven oldest children to the plaintiff, physical custody of the three youngest to her, and regular supervised visitation for the defendant with the three youngest children every other Sunday for two hours at KidSafe. The Agreement provided that these visits would begin on September 13, 2009.
The custody order also adopted Dr. Connolly's recommendations for counseling. During his evaluation he concluded that neither parent "is characterized by major Axis I emotional disorders such as psychosis, severe mood disorders or anxiety disorders." (19.) He did diagnose each one, however, as having mixed Axis II personality disorders "which affect the quality of their parenting" and concluded that "both require regular counseling in order to address these difficulties and mitigate their impact on the children . . . as a condition of their continued contact with the children." He thus recommended "mandatory psychotherapy" for each parent weekly for two years with a psychotherapist and, because he believed that "both Thomas and Kristin are likely to give misleading information to prospective psychotherapists and essentially solicit the psychotherapists as their partisans," that both therapists be provided with a copy of his evaluation. He also recommended that the parties be required to engage in co-parenting counseling with respect to the three youngest children.
Despite this remark, he also concluded that "the primary impact of their personality disorders is on their relationships with their marital or other romantic partners rather than on their relationship with their children."
While the custody agreement may have provided a plan for Mr. Bothur to resume a parental role with his three youngest children, it is now obvious that Ms. Bothur never intended to carry out any of her obligations under that agreement with regard to the efforts to reunify him with the three youngest. Instead, she began making plans to move out of state with all of the children, did not bring the children to the first scheduled visit, and in September told Judy Clarke, the Kid Safe visitation supervisor, not to bother to schedule any visits because she was intending to move away. She never began individual psychotherapy because, she told this court, she did not think that she needed it. And she refused to participate in co-parenting counseling with her ex-husband.
A good example of her intention never to carry out that agreement lies in its provision for Mr. Bothur to visit with the children on Sundays. The evidence throughout this case has been that Ms. Bothur has raised the children with close ties to her Catholic faith. Attending Sunday mass is an important part of the week for the family. Once it became obvious that this judge intended to enforce the court orders — which called for Sunday visitations, Ms. Bothur began vociferously complaining that the order interfered with the family's ability to carry out their Sunday devotions, and refused to obey the court orders until they were changed, with the father's agreement, to Saturdays, and she missed five scheduled Sunday visitations in January through March of this year. She would never have agreed to Sunday visitation if she had actually intended for such visits to occur.
When the parties appeared before this judge for a half-day hearing in late December 2009 on post-judgment access and financial issues, it quickly became apparent that this was, as the court told the parties, "an ugly, ugly case." The court informed the parties that it intended "to enforce the court orders strictly" and directed the GAL to schedule the biweekly Sunday visits at KidSafe and to inform the parties through their attorneys of those dates and times and "the children are to be there at that time." After the GAL scheduled the first such visit for January 10, 2010, Ms. Bothur falsely told her that she and the children would not be available until the end of the month because they would be out of the state. She did not bring the children to visits scheduled for January 10, January 24, February 7, February 21, or March 7.
After receiving a motion at the end of the year for an updated psychological evaluation, the court entered such an order in early January, as a result of which Dr. Connolly met with the parties again and conducted observations of each one with the three youngest children. Mr. Bothur's session with the children was the first time he had seen them since the last time Dr. Connolly had conducted a parent-child interaction, more than a year earlier, and only the third time in more than two years. Beforehand, Dr. Connolly spoke separately with the three children. His report stated that "[u]sing the names `Dad' and `Tom,' it appeared that none of the children had any associations with these names. They did not appear to be disturbed by the subject of their father, rather to simply not have any recognition of their father by these names." Nearly seven-year-old Trinity "had no organized recollections of her father." Five-and-one-half-year-old Jordan "did not appear to have any positive or negative recollections of her father." Although "[t]he same was true when [he] interviewed [nearly four-year-old] Dominic separately," Dominic also told him that "his older brother Derek was his `Daddy.'"
During their meeting with Mr. Bothur, Dr. Connolly noted that, while not appearing apprehensive, the children were "initially somewhat unresponsive to him," but that Mr. Bothur "used forms of engaging humor to help the children loosen up and respond to him." Within 15 minutes, all three were talking to him and actively conversing with him within half an hour. By the beginning of the second hour, "all three children were playing comfortably under the supervision of Thomas." By the time the session was ending, they "appeared to be highly responsive" to Mr. Bothur, and Dr. Connolly concluded that "the possibility of establishing/reestablishing emotional bonds between Thomas and all three children is obviously a viable one" and "there is significant potential for the development of meaningful emotional bonds between this parent and these children." He testified that he believed it was in these three children's best interest to move to unsupervised visitation "fairly quickly."
The GAL introduced into evidence at the hearing before this court written reports prepared by KidSafe concerning Mr. Bothur's six visits with the three youngest children for two hours on Saturdays, his first parenting visits with them in more a year, from the end of March, after that interactional session in Dr. Connolly's office, through mid-June. Despite Dr. Connolly's observation in March that they showed no negative emotional reaction either to his name or in person and all warmed up to him during their session with him, these six reports show young children gradually, but seemingly inexorably, becoming estranged from him. In less than three months, children who seemed not to know Mr. Bothur during their visit in Dr. Connolly's office, were emotionally neutral upon greeting their father, and steadily warmed up to him during a visit have transformed into children who purposefully ignore him at the beginning of the visit; and while the youngest one, Dominic, continues to warm up to his father during the visit, the other two generally show either reluctance or hostility for most of each visit.
Although the author of some of the KidSafe reports did not testify before this proceeding, Judy Clarke, who oversees the Kidsafe visitation program, did; and the court found both her testimony and the contents of the reports from Kidsafe to be credible and probative.
March 27 visit: Children enter without acknowledging Mr. Bothur. When "Dad says Hi and tries to strike up a conversation with Jordan, Jordan does not respond, Jordan looks over at Trinity and Trinity shakes her head no and Jordan looks down and will not acknowledge Dad." Dominic "slowly warms up to Dad." "After about 30 minute Jordan warms up a little and brings Dad some food and tea to drink. She hands it off to him without a word and she is smiling." "Trinity does not engage [and] looks sad the entire visit, not angry, her look is very sad." By the end of the visit "Dad is trying to engage and getting good cooperation from Dominic, partial cooperation from Jordan and no cooperation from Trinity."
April 10 visit: When children enter, "Trinity and Jordan go directly to the couch without responding to Dad. Dominic smiles at Dad then goes directly to toy kitchen."
April 24 visit: When children enter, "Trinity and Jordan go directly to the couch and say nothing to Dad. Dad greets Dominic who turns and looks at Jordan and Trinity and then runs over to toy kitchen and starts playing without acknowledging Dad." "Dominic is not responding to Dad . . ." "Jordan goes over to Dad and helps him for a couple of minutes then looks at Trinity and goes over to the couch and sites next to Trinity." "Trinity . . . puts her hands over her face so she can't see Dad [and later] hides her face from Dad." "Trinity sits on the couch and stares up at the clock [and later states] "it's not fair she's missing her friend's party."
May 8 visit: When children enter, "Dad [greets each one] individually stating how good they look to which they each run pass Dad." "Dad tells Trinity he just wants to be her friend. Trinity brings her knees close to her chest and wraps her hands around then and starts to cry stating she doesn't want to be his friend and she's not happy with him . . . Trinity yells at Dad staying you're the one who divorced mom . . . Trinity states her dream is to never see him again . . . Trinity replies you're not my friend or Father." "Before going outside Jordan and Dominic both grab a toy except for Trinity who just folds her arms and looks the opposite way. Once outside . . . Dominic and Jordan play outside while Trinity just folds her hands and looks." "Dad sees Trinity smiling and pretending to have a conversation on the toy phone and states to Trinity see your face didn't fall off. Dad then states looking around at Trinity, Jordan and Dominic playing stating this is what he likes to see them having a good time. Dad then smiles. Dad then asks Trinity if he can see the phone to which Trinity lets him and Dad pretends to be talking to a boy who likes Trinity. Dad tries again to ask Trinity what she wants for her birthday. Trinity replies nothing. Trinity and Jordan start to argue over the toy phone to which Jordan goes over to Dad crying and then says Dad, Trinity won't' give me the phone."
May 20 visit: As children enter, they "all walk right past Dad not acknowledging him or saying anything as he is greeting them with smiles and hello's and I missed you . . . [Later] Dominic is now responding and acknowledging Dad . . . smiling and . . . engaging with Dad. Dad . . . catches a smile from Jordan . . . Trinity puts her hands up to her forehead and stares at the table not responding to Dad. Jordan just looks and smiles as Dad chats about anything trying to get the girls to engage with him . . . The only Child that engages for most of the entire visit is Dominic . . . Trinity spends most of the visit with a sad/mad look on her face. She does smile a couple of times but as soon as Dad catches her she puts the long look on her face and turns away. Jordan engages about a quarter of the time and appears to warm more as evidence by her smiling at Dad frequently but shying away however after she glances at Trinity."
June 17 visit: As children enter, they "all walk right past Dad not acknowledging him or saying anything as he is greeting them with smiles and hello's and I missed you . . . Both Trinity and Jordan sat on the couch with their arms crossed and ignored their Dad . . . At various times Dominic . . . smiles and engaged in playful laughs with Dad."
Or, at least two of them were emotionally neutral toward him upon first greeting him in Dr. Connolly's office. Dr. Connolly observed what he described as "some initial diffidence" manifested by Trinity toward Mr. Bothur, but he believed that it was "not . . . an insuperable obstacle to the development of an emotional bond of a significant nature between Thomas and Trinity," and, indeed, during that meeting Trinity warmed up to her father considerably.
What is remarkable about Mr. Bothur's behavior is that during the visits this year he has exhibited calm, kind, patient and loving behavior toward the children in the face of their increasing recalcitrance. His effort to celebrate Dominic's birthday in April, while simultaneously forgetting that Trinity had a birthday at just about the same time, was obviously a major blunder bound to affect Trinity negatively, but otherwise his behavior during these sessions has been exemplary. It is hard to believe that this mistake on his part is the cause of all that alienation, because the resistance and estrangement were on display even before that. Only a week after the children's session with Mr. Bothur at Dr. Connolly's office, Jordan told the GAL that she had no father and, when asked by the GAL who Mr. Bothur was, said that he is not a nice man. Yet, nothing from the visits themselves could have given Jordan that impression.
In his first evaluation Dr. Connolly concluded that "a formal diagnosis of a personality disorder" "characterized by histrionic and narcissistic personality tendencies" "is in order for [Mr. Bothur]." "The narcissistic tendencies are primarily manifested in this rationalizing and his ability to find convenient excuses for highly self-serving behavior." (P. 9) In his second evaluation Dr. Connolly wrote that "I believe he continues to have a diagnosable personality disorder." When asked to describe the terms histrionic and narcissistic at trial before this court, he testified as follows: "Histrionic means excessively demonstrative. It dramatizes the self to an extent which is disproportionate with the actual factual bases. It tends toward some self-serving loose thinking, This is backed up by the narcissistic component, which means tends to be more self-serving than most people, tends to search out more for one's self-interest to an extent which is greater than what we would expect from other people under the same circumstances." He agreed that the narcissistic component "implies that a person presents himself in public as better than he really is" and that this "would extend to presenting himself in situations such as Kidsafe in an overly good light to the supervisors."
On cross-examination, Dr .Connolly was questioned by Ms. Bothur's attorney about why he was recommending that any extension of Mr. Bothur's visitation from supervised to unsupervised should take into consideration comments by the visitation supervisors about his sessions with the children: "Would it be fair to do that if Thomas is presenting himself in an untrue position, not really portraying himself to the supervisors as he really is?" Dr. Connolly responded that he assumed "that the visitation supervisor has seen a lot of these situations and will be able to factor that into account." The plaintiff's counsel then asked him whether the KidSafe visitation reports might have been influenced by Mr. Bothur's narcissistic tendency to present himself well:
Q. Looking at these reports, don't you think that they're presenting Tom as what he is saying, how he is presenting himself. They do make him little pretty good, don't they?
A. They seem to have bought into . . . Tom's sincerity in terms of his desire to maintain contact with the children . . . And you can understand their frustration trying to facilitate this visitation and finding that it is blocked by the children doing things like putting their heads down and saying things that are pretty clearly induced by other people talking to them. So you can understand their frustration and their desire for the visitation to be facilitated rather than defeated would lead to a kind of sympathy. But if your question is did they appear to be somehow or other bowled over by Tom's narcissistic charm or something, that's not my impression.
Since nothing in Mr. Bothur's interactions with the children would explain this change in the children's reaction to him, one must look elsewhere for an explanation; and there are hints at some of the causes in Dr. Connolly's report and the KidSafe notes. When Ms. Bothur picked her children up from Dr. Connolly's office after Mr. Bothur's session with them this year, Dr. Connolly observed that she became "overwrought" and "emotionally upset over the fact that the visit . . . had gone well." While in their presence, "[s]he unambiguously communicated her disapproval of the children having enjoyed a visit with their father." Before the first two visits, Ms. Bothur asked the KidSafe monitor in the children's presence whether Mr. Bothur would be left alone with the children, thereby suggesting to them that their mother thought he was a threat to them. At the first visit, when Mr. Bothur asked Dominic for a hug, the notes state that "Dominic gets closer to Dad and then says Mom said we can't and Dad steps back." The notes report that on the second visit, "Jordan goes over to Dominic and tries to whisper to Dominic that Mom said not to talk to Dad but Dad and Monitor hear what Jordan said." The GAL testified that at one visit, when Mr. Bothur offered something to one of the children, one of them told him that they are not allowed to take anything home that he gives them in the visits. On another visit, when the children were outside Kid Safe playing ball with their father, the Kid safe notes report that they stopped interacting with him once they saw their mother.
On the first visit, for example, the Kidsafe notes state that "Mom speaks to this Monitor in front of the Children and says please do not leave them alone for even one second with him . . . The Children are all looking at Mom and then this monitor." At the second visit, "with the children present Mom asks this Monitor if Judy (referring to this Monitor's Supervisor) gave her a letter on instructions about what Dad can and cannot do. Mom then asks this Monitor if she is sure she is not going to leave the children alone with Dad. This Monitor informs Mom that the children will not be left alone."
It is obvious from this and the other evidence that statements and conduct on Ms. Bothur's part in the presence of these children is influencing these three young children to resist Mr. Bothur's efforts to build a relationship with them, but the influence of the younger children's older siblings must also not be overlooked. The court does not believe the plaintiff's testimony that Mr. Bothur is rarely talked about in her household, just as Dr. Connolly concluded that was highly unlikely that there was no discussion of the defendant there. The KidSafe reports, Dr. Connolly's reports, and testimony from the GAL and others all show unrelenting hostility toward Mr. Bothur from the older children. Moreover, the court had the unusual opportunity to hear testimony from four of them, Ian and Derek, who are over the age of eighteen, and, after a psychological assessment by Dr. Connolly as to whether any testimony on their part would be harmful to them under the standards set forth in In Re Tayler F. (and the court infers, from the absence after that assessment of any objection from the GAL or father that such testimony would be damaging to them, that Dr. Connolly concluded it would have no such effect), Courtney and Brandon.
The court was impressed by the intelligence, maturity, and sincerity of all four children who testified. Ms. Bothur has taught them values of spirituality, generosity, service to others, and many other laudable virtues. Many of them were homeschooled by her, and she was obviously extremely capable in that role. She has inculcated in them a deeply-held religious faith that is at the heart of their home and community life. And she has earned their loyalty. While that attribute is often admirable, however, the fact that in common usage the word is sometimes teamed with the word "blind" also suggests that some loyalty may not always be so worthy of praise.
There are numerous suggestions in the evidence here that the children's loyalty to Ms. Bothur has been the key factor in their affections for and views of the father figures in their lives. Her second husband, Eric Molitoris, repeatedly tried to see his two children, Ian and Derek, but they told the family services counselor in family court and DCF staff for probate court that they wanted no contact with him. They blamed him for his lack of contact with them over the years, when the better evidence suggests that their mother was at least equally responsible. The family services counselor concluded that she had engaged in a campaign of alienation to drive Ian and Derek away from their father. At that point, 2004 through 2006, Ian and Derek were professing to all that they regarded Mr. Bothur as their father and that he had learned his lessons on how to moderate once excessive physical discipline. Yet, shortly after these proceedings began, they turned against Mr. Bothur after he had left their mother. Once again, as with Mr. Molitoris, they incorrectly believed that he had made no effort to see them after separating from their mother. But when Ms. Bothur reached out to Mr. Molitoris during these proceedings to solicit his testimony on her behalf, the boys reconciled with him. Ian testified here that he had wanted to be adopted by Mr. Bothur, but said that at the time he thought Mr. Molitoris had chosen to serve overseas rather than see him, that visits with Mr. Molitoris had been uncomfortable, and that it was simpler to have one dad than two. Derek testified that they had been pressured by Mr. Bothur mid-decade to abandon their biological father and be adopted by Mr. Bothur. When asked at trial to comment on the statements by Ian and Derek about why they had endorsed being adopted, Dr. Connolly lamented, sadly and eloquently, that "[t]he way that this family whipsaws these children around from one year to the next in terms of who's in, who's out, and who's being purged, who's on top, who's in control, who's a devil, who's an angel. People shouldn't be raised like this . . . This politicization of family relations is not a healthy thing, regardless of who's responsible. Obviously, everyone at this point . . . A family should not be run like a Stalinist purge trial."
During testimony in April, after the first two visits, the GAL had said she believed that unsupervised visitation should begin by the end of May and Mr. Bothur should be having weekend overnights with Trinity, Jordan and Dominic by June. Yet, by the late summer, she appeared to this judge to be despairing that Mr. Bothur's relationship with the children would ever improve, and was merely saying that the biweekly visits should continue for another three months for Mr. Bothur and the children "to have a chance" to develop such a bond. She testified that in recent visits Dominic had continued to warm to his father, but the two girls had done their best to avoid him. Though Dr. Connolly concluded that the older children's own anger at feeling betrayed by Mr. Bothur was a stronger factor in his alienation from them than any actions by Ms. Bothur, these younger children have no basis in their own lives for such feelings, but the Kid Safe reports depict them drawing further apart from Mr. Bothur over the three months of biweekly two-hour visitations. Trinity, Jordan and Dominic live with their older siblings, whom Dr. Connolly correctly concluded had "run riot with hostility toward their father"; and the evidence, including the testimony from four of the older siblings, shows that anger remaining at full throttle to this day. It seems unlikely to this court that short visits every other week can overcome the hostility to having a good relationship with their father that these three young children must experience every moment of their lives at home with their mother and siblings.
Moreover, Ms. Bothur's motion for modification seeking sole custody and an end to visitation seeks to benefit from the fact that her own unwillingness to bring the children to the visitation, in violation of court orders, and the atmosphere within her household are poisoning the three children's chances of developing a parental bond with their father. Her motion claims that:
"Since the issuance of [the] updated evaluation, the Defendant has visited with the children on six separated occasions . . . supervised by KidSafe."
"Despite his regular contact with the children, the Defendant has been unable to establish a bond with the children, and it is not likely that he will be able to establish a bond with the children in the near future.
CT Page 20441
"The children have no memory of the Defendant as being their father, and they have no desire to establish a relationship with him." . . . the Defendant has failed to provide for any of the children's needs, . . . and has limited his involvement in their lives to showing up for visits on an alternating week basis."
"The above-named children have six other siblings with whom they reside, and are part of a closely-knit family which is being stressed both financially and emotionally as a result of the visitation regimen."
Motion for Modification Post-Judgment, June 21, 2010.
That motion claims that it "is not in the best interests" of Trinity, Jordan, and Dominic "to continue to be in the joint legal custody of the Defendant and to be required to visit with the Defendant on a regular basis." Id. To modify the order of joint custody would require a finding of a material change in circumstances or that the original order had not been in the children's best interest and that such an order was not presently in their best interest.
The authority to render orders concerning custody and visitation is found in General Statutes § 46b-56, which provides in relevant part: "(a) In any controversy before the Superior Court . . . the court may at any time make or modify any proper order regarding . . . custody and visitation . . ." That section further provides that in "modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . ." [Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change in circumstances which alters the court's finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child."
To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party's relief, it is pertinent for the trial court to inquire as to what, if any, new circumstances warrants a modification of the existing order. In making such an inquiry, the trial court's discretion is essential. The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided . . . Rather, the trial court's discretion only includes the power to adapt the order to some distinct and definite change in the circumstances or conditions of the parties.
(Citations omitted; quotations omitted.) Kelly v. Kelly, supra, 54 Conn.App. 55-56. The best interest of the children is also the determinative factor on the plaintiff's request to end the defendant's visitation. Szczerkowski v. Karmelowicz, 60 Conn.App. 429, 432, 759 A.2d 1050 (2000).
The best interest determination "involves weighing all the facts and circumstances of the family situation. Each case is unique." Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981). The custody statute sets forth various factors that a court may consider in determining the child's best interest, no one of which is controlling. The court may consider additional factors, and the court need not "assign any weight to any of the factors that it considers." General Statutes § 46b-56(a). As this court has noted before, "[t]he best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare." In re Diane W., Superior Court, child protection session at Middletown (December 21, 2001, Frazzini, J.).
General Statutes § 46b-56(c) provides, in relevant part, as follows: "In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in Section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to Section 46b-69b. The court is not required to assign any weight to any of the factors that it considers."
The plaintiff insists that the defendant is a dangerous man, both to herself and to her children, and at the hearing before this court Ms. Bothur told a horrendous story of threats, violence to herself and the children, and wildly excessive physical disciplining of the children that, if true, would warrant her concerns. She testified that Mr. Bothur beat her on several occasions, gave her black eyes, hit her and the children, sometimes with a belt, choked her once to the point of her blacking out, threatened to kill her unless she excised Mr. Molitoris from her and the kids' lives, called her vile names when she tried to interfere with his punishment of the children, pulled the phone out of its socket to prevent her or the children from seeking help, and, after he had been arrested for abusing one of the children and assaulting her, acted like a drill sergeant to the children, screaming at top of his lungs and making them do calisthenics until they dropped from exhaustion.
The evidence does show that Mr. Bothur was substantiated for physical abuse in 1995 after Mr. Molitoris reported to DCF that he had seen injuries on Ian (Mr. Molitoris testified that Ian told him that Mr. Bothur had beaten him with a wood paddle), was arrested for disorderly conduct and substantiated for neglect by DCF in 1999 for an incident in which Ms. Bothur testified here that the defendant hit and strangled her in front of the children until she nearly lost consciousness, and was arrested again in 2007 for disorderly conduct, after Ms. Bothur made a complaint to the police, denied by Mr. Bothur, that he had pushed her against a car. As a result of the latter arrest, he completed a pretrial diversion program in the criminal court and the charge was dismissed.
Yet, in the 2005-06 probate court proceeding, Mr. and Ms. Bothur, Ian and Derek all told DCF that since Mr. Bothur's arrest in 1999 he had stopped using physical punishment to discipline the children and since then "would redirect them and remove privileges for punishment." The DCF report submitted to the probate court, for example, reported that Derek had told the DCF interviewer said that when punished at home he "may lose his allowance or be unable to watch television." DCF concluded then that "Thomas Bothur successfully completed counseling to address his behavior. He utilized strategies to reduce the risk of abuse or neglect." (P. 2.) At trial before this court, 20-year-old Ian testified in response to questions from both the court and his mother's attorney that Mr. Bothur's physical disciplining of him ended after the 1999 arrest, after which he used grounding or loss of privileges, such as television watching or computer use, for punishment. When asked whether Mr. Bothur had continued to use physical or other strong forms of discipline against the other children, Ian said, "nothing serious," and "it wasn't as severe as it had been earlier" and gave as an example "well my younger siblings [of] toddler ages . . . they would get a spanking [for] doing something wrong because you know if you were to ground them or revoke privileges talk to them it wouldn't really have the same effect."
On the other hand, a day after Ian's testimony, Derek, who turned 18 during the trial, testified that his statements to the DCF investigator in the probate proceeding that Mr. Bothur no longer used excessive discipline after 1999 had been a lie in order to have peace at home. He said that since the year 2000 Mr. Bothur had used extreme calisthenics "mostly constantly" for disciplining. Derek had made a similar statement to Dr. Connolly for the first evaluation during what the doctor said were extensive discussions on this topic, and Dr. Connolly said that "what he described . . . was not a situation of rampant physical violence but a situation of some physical discipline, along with a great deal of emotional harshness." Dr. Connolly also discussed this issue with all the younger children except Cassidy and Dominic during the first evaluation (but the court notes that Dr. Connolly never interviewed Ian, who had turned 18 by the time of the divorce proceeding and was thus no longer subject to custodial orders), and said that the consistent picture was "a harsh environment with physical discipline" that included the use of insulting nicknames, physically harsh discipline such as "military-style pushups," "but no rampant physical violence" and none of them gave any indication of being beaten. Dr. Connolly concluded in his second report that he did "not believe that [Mr. Bothur] presents a physical danger either to himself or to other people." Neither the GAL nor Dr. Connolly perceives Mr. Bothur as presenting any present threat to the children if visits are unsupervised, which both believe should occur quickly.
The court understands that victims of domestic violence often lead secret lives, concealing the trauma in their home for many reasons — embarrassment, fear of further harm, feeling vulnerable and dependent on their abuser, and being isolated from others. Ms. Bothur expressed many of these reasons in her testimony. And this family historically has been secretive, the GAL complaining repeated about her inability to get information from either party; but that secrecy continued even after Mr. and Ms. Bothur separated, and appears unrelated to any violence in the household while they were together. It is also true that, since victims of domestic violence often conceal or lie about that fact with others, there may be no one to verify their claims. But here even her sons agree that actual force with the children stopped long ago. Mr. Bothur's recent arrest in 2007 has little probative value, other than showing that the police or a court determined that there was probable cause to believe he committed an offense; but innocent people do get arrested, even based on probable cause, and false claims in ugly divorces also occur. Without a conviction, independent evidence about what happened, or more testimony here about those events, this court is unable to determine what, if anything happened, or place much weight on that arrest. Although Ms. Bothur seemed quite sincere in her testimony, on balance the court is not persuaded by what she said about Mr. Bothur being a present danger to these children. The contradictions are too many, the prior inconsistent statements too credible, the evidence of her children's loyalty to her and her influence over them too powerful. The court thus cannot conclude that it is in the best interests of the minor children for the visits to stop. Rather, the court concurs with the opinions of Dr. Connolly and the GAL that it is the best interest of these three children to have a good parental relationship with their father. That request in the plaintiff's motion for modification #364 is denied.
Dr. Connolly's reports and testimony stated that Ms. Bothur has a diagnosable mixed personality disorder with predominant tendencies of "compulsive personality pattern, histrionic personality pattern and dependent personality pattern." He described her as "an extremely rigid individual" and "very committed to enforcing her own view of reality" and explained that the histrionic component of her personalty "calls attention to herself and tends to dramatize things, literally make a bigger deal out of things than is actually warranted." The court has seen evidence of this profile in several ways. One was her testimony that Dr. Connolly's report had labeled Mr. Bothur as a sociopath, a term nowhere attributed by the doctor to her ex-husband; another was her testimony that Mr. Bothur had called her 99 times one day, which even she later admitted was an exaggeration. A third was her statement to the GAL and family relations supervisor that she would "fight unsupervised visitation to the death." When asked whether, in light of this statement, it would be possible for unsupervised visitation to take place, Dr. Connolly responded that "[t]he mere fact that someone with a histrionic personality says that they will do something of an extreme nature . . . does not mean that they will necessarily do it," and said she would likely comply with future court orders "with some resistance." When further asked, whether, in view of that statement, he still regarded unsupervised visitation to be in the children's best interest, Dr. Connolly replied that "yes, it would still be in the psychological best interest of the children."
In Dr. Connolly's second evaluation, he did suggest certain restrictions on Mr. Bothur's behavior during the visitations — that gifts be limited to Christmas and birthdays and that he not kiss, hug, or display physical affection to the children except at the beginning and end of visits "unless the children spontaneously manifest an interest in expressions of physical affection with their father." Dr. Connolly testified that none of these limitations are for the purpose of protecting the children's safety, however, but to enhance his relationship with them. Although the plaintiff requested and the GAL recommended that the court adopt these recommendations as orders, the court does not find it to be in the children's best interest, in the context of such a high conflict dispute over parental access, to impose these limitations as judicial orders, modifiable only by the court and with noncompliance subject to a finding of contempt. What behavior on his part will or will not help improve his relationship with the children is probably subject to change over time, and not properly the subject of a court order unless necessary to protect their safety or well-being. The request in plaintiff's motion #339 that this conduct be prescribed by the court is thus denied.
That motion for modification also seeks an order of sole legal custody of the three youngest children rather than current order of joint legal custody. Section 46b-56a(a) of the General Statutes defines "joint custody" as meaning "an order . . . providing for joint decision-making by the parents . . ." Numerous trial courts have noted that "such an order . . . requires the court to first find that the parties are capable of reasoned communication . . . regarding important custodial decisions." Jones v. Jones, Superior Court, Regional Family Trial Docket, Judicial District of Litchfield, Docket No. FA 99-0078925 (March 13, 2000) (Munro, J.).
The evidence here shows a complete inability of the parties to communicate, cooperate or work together. These parents are not, at present, able to make parenting decisions together, but there is no evidence here that the children have been in any way harmed or negatively affected by the inability of their parents to make joint decisions. It is not necessary here to enter an order assigning Ms. Bothur final decision-making authority, as both parties have already ceded her that role. At this point, Ms. Bothur is the only one making major decisions for Trinity, Jordan and Dominic. It is not in the best interest of any child for the court to enter orders that it knows their parents are unwilling or unable to follow. Yet the parties initially agreed to joint custody while also agreeing to individual counseling to address the effect of their personality disorders on their interactions and to participate in co-parenting counseling to develop an ability to work together. The agreement and order for joint custody here were obviously aspirational, reflecting the hope that one day they would be able to work together for these three children's best interest. It was and remains in these three young children's best interest that their parents learn to do so. It was and is equally in their best interest that their father have a meaningful opportunity to participate in the major decisions affecting their lives, and that those decisions be made only after a genuine exchange of ideas and opinions. The court therefore cannot find that the original order for joint custody was not in the children's best interest.
The evidence here shows nothing that would warrant a finding of a material change in circumstances. Resistance on the part of one young child, reticence on the part of another and slowly-developing bonding on the part of the third child are not, under the circumstances of this case, a material or substantial change in circumstances. Despite Ms. Bothur's continued resistance to Mr. Bothur having a significant role in these children's lives, it is important for him to become involved in the major decisions in their lives. Such consultation will give the children an opportunity to see that their father has a significant role in their lives and could help to ameliorate his position with them. Perhaps had both parties been through individual therapy and co-parenting counseling and had remained unable to work together, the court might have been inclined to grant this motion. It hardly seems right, moreover, to reward the plaintiff's refusal to comply with those orders. The request for modification of legal custody contained in plaintiff's motion #364 is therefore denied.
The plaintiff has also moved to change the location of the supervised visits from KidSafe to a location in Norwich, where her motion for modification #339 asserts that her family will soon be living. She has complained about the cost of transporting the children to the visitations and the length of time required. Such a change of location would not be in the children's best interests, however. In this highly-charged situation, the Kid Safe supervision team has become familiar with the children and the parties. The court heard extensive and probative testimony on the important role that KidSafe has played here. The visitation supervisor there, Judy Clarke, has shown a keen sense of the problems and dynamics in this family. While there are surely other good supervision centers, the complexities and history of this case dictate continuity in the supervision. The plaintiff has not established that it would be in the children's best interest to change the location of the supervision sessions; in fact, the converse is true. That aspect of her motion for modification #339 is also denied.
The court must next turn to the defendant's motion for contempt. After the first hearing date in December 2009 the court denied his first post-judgment contempt motion on access issues (#304) because, although finding Mr. Bothur's description of what had prevented the visits from occurring between September and December more credible than Ms. Bothur's, the court concluded then that the case was "too close" to find contempt. The same is no longer true. The evidence unequivocally demonstrates that from mid-December through the end of March the plaintiff willfully refused to comply with the order for biweekly visitations.
Noncompliance with that court order, however, does not mandate a finding of contempt. Marcil v. Marcil, 4 Conn.App. 403, 405, 494 A.2d 620 (1985). In determining whether a violation of a court order constitutes civil contempt, the court must determine "whether the violation was wilful or excused by a good faith dispute or misunderstanding." In Re Leah, 284 Conn. 685, 694, 935 A.2d 1021 (2007). "This does not mean, however, that such a dispute or misunderstanding will preclude a finding of willfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court's discretion." Eldridge v. Eldridge, 244 Conn. 523, 529, 710 A.2d 757 (1998). "The fact that the order had not been complied with fully, however, does not dictate that a finding of contempt must enter. It is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." Marcil v. Marcil, supra, at 405.
Sunday visitation became a court order only because the plaintiff signed a custody agreement that specified Sunday visits. The plaintiff testified here that she did not know that she had agreed to Sunday visitations and would never have done so willingly, but that testimony simply is not credible. It is far more likely that she knew what she was doing but never intended to abide by the agreement. The plaintiff's claim that complying with the order, to which she agreed, for Sunday visitation would interfere with Sunday worship does not excuse her violating that order. Compliance with court orders is not optional or at the discretion of a party. The proper course for one who disagrees with a visitation order is to obey it but seek its modification; and the court notes that, after plaintiff filed motion #339 on March 23, 2010, seeking a change of days for the defendant's visits, he agreed to having the visits on Saturdays, and the order for Sunday visits was modified accordingly less than a month later (on April 19, 2010). The motion for contempt is granted as to the missed visitations from January through March of this year.
The court is mindful of the important role of the church in the life of this family. Even were the plaintiff's testimony found credible, however, the plaintiff did not establish that she attempted to reschedule the visits or that there were no other times or places at which the children could attend Mass.
That custody agreement also provided that "the parties agree to attend co-parenting counseling" and "each party agrees to attend regular individual psychotherapy . . ." She has done neither. The plaintiff offered the excuse that her attorney said that the custody order and judgment did not order her to attend co-parenting counseling and individual psychotherapy because of the use of language that she merely agreed to do so. "[C]onsultation with counsel may be a factor to consider if the advice consists, for example, of how to comply with the order"; Rocque v. Light Sources, Inc., Superior Court, judicial district of Hartford, docket no. CV 98-0581655 S (December 13, 2004) (Beach, J.) ( 2004 WL 3106034, 5-6) [ 38 Conn. L. Rptr. 424]; but such advice is not an absolute defense to a claim of wilful misconduct, merely one of the factors to be considered. Where an order is ambiguous, a party should seek advice from the court rather than engage in self-help. See Sablosky v. Sablosky, Conn. 713, 720, 784 A.2d 890 (2001). As defendant has not sought a finding of contempt with regard to this disobedience of the court's order, however, none is found here for her refusal to participate in individual psychotherapy or co-parenting counseling.
The question of an appropriate remedy for the contempt is also presented by the GAL's motions for advice. The GAL has tempered her April testimony that unsupervised visits should be occurring by May and weekend overnights by June by now recommending an expansion of supervised visitation from two hours every other Saturday to two and a half hours per week for the next three months (from 3:30 p.m. to 6 p.m. on alternating Saturdays and two Thursdays a month). She testified that her main reasons for still requiring supervision were what she described as external "factors," such as the mother's resistance to supervised visitation and fears of false allegations or that the older children would interfere with unsupervised visits, for example by following the defendant and the children on visitations, than any fear of Mr. Bothur being a threat to their safety. Dr. Connolly recommended going to unsupervised visitation when "things have improved," by which he explained that he meant when "the opposition to the visits has been reduced" on Ms. Bothur's part "and the children show a higher level of ease in the presence of their father, are more openly talking with him, and not having these avoidant reactions" toward him.
The GAL also recommended an automatic make-up visit if "a visit is missed for any reason," with an additional hour of visitation, from 2:30 to 6:00 p.m. on the non-visitation Thursday; that the plaintiff be sanctioned by being required to perform two hours of community service for each hour of missed visitation; and that the defendant still be required to pay for the cost of the supervision. She requested an in-court review in three months to review the progress of visitation.
Unfortunately, the court concludes that the GAL's recommendation to continue the supervised visits for another three months and then have an in-court review would only serve as an invitation to the plaintiff to increase her resistance to the visits, stir up the pot at home, and generally do everything possible to make the supervised visits a failure. Ms. Bothur testified that she realized that if the supervised visits went well there would be pressure to end supervision, a result she deplores. A three-month court review would appear to tell the plaintiff that all she has to do is hold out a little longer. Although Dominic is clearly warming up to his father, Jordan is still distant for much of the visit although she usually does begin to respond before the visit ends, but the supervised visits are doing little to address Trinity's resistance. Though she may have little actual memory of her father, at age seven she is probably more verbal than her younger siblings and therefore more vulnerable to being swayed by the active hostility to the visits on the part of her mother and older siblings.
Despite Ms. Bothur's fierce and implacable resistance to Mr. Bothur having unsupervised visits, this court concurs with Dr. Connolly that the single worst thing that happened in the life of this family was Mr. Bothur's desertion of the family just after he had adopted Ian and Derek, followed sometime later by his telling Ian of his doubts about Courtney's paternity. That bell cannot be unrung for the older children, as least not now. But, continuing the metaphor, the younger children probably never heard the bell ring, in the sense of their directly and immediately experiencing the feeling in 2007 that their father had violated the family's most closely-held values; instead they have experienced his "betrayal" (using Dr. Connolly's term) more derivatively, by being told by their siblings and mother about their father's abandonment of them and daily suffering its consequences, which have included the family's dire financial straits and the agony and anger of their siblings. The extraordinary nurture and care provided by their mother has, as with the older siblings, surely won their loyalty as well. For Trinity, Jordan, and Dominic, however, the "act of betrayal" was more a second-hand event, probably not so fueled by feelings of personal abandonment and therefore hopefully more susceptible to amelioration.
In the short term, the court concurs with the GAL, Dr. Connolly and Ms. Bothur that the visits should continue to be supervised. But for Ms. Bothur's continuing contempt, however, Mr. Bothur and his children would probably now be enjoying a normal visitation schedule and he would no longer be required to pay for supervised visitation. And the increasing resistance or recalcitrance to the visitation on the children's part shows that even if the original schedule of twice-monthly visits for two hours could have overcome the defendant's absence from these children's lives since 2007, such a schedule cannot surmount the plaintiff's ongoing contempt. "The court has authority to order additional measures not contained in the original order if they are necessary to effectuate the original judgment." Johnson v. Johnson, 111 Conn.App. 413, 425, 959 A.2d 637 (2008). The remedy for the effects of the plaintiff's contempt here requires an expansion of the visitation schedule and continuing judicial oversight of the visitation to prevent and sanction disobedience, encourage compliance, and help father and children build a good relationship. Although the number of supervised visits will now extend beyond what was originally contemplated, Mr. Bothur's own responsibility for his predicament counsels that he bear part of the burden of the cost of supervision. Yet, since the need for these additional supervised visits is also caused by Ms. Bothur's noncompliance with the prior orders, a fair remedy and appropriate sanction for the plaintiff's civil contempt requires that she too now share in the cost. The court orders the cost split 50-50.
The child support guidelines commission has described as a "normal visitation schedule" for a noncustodial parent as "typically consisting of two overnights on alternate weekends; alternate holidays; some vacation time; and other visits of short duration, which may occasion an overnight stay during the week." Child Support and Arrearage Guidelines (2005), preamble, § (j)(4), p. xiii. Although the commission used that term to provide a baseline against which shared custody schedules might be measured for the purposes of considering a deviation from the child support guidelines; see id., p. xii (permitting a child support deviation for shared custody only "where each parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedule"); the commission's description also corresponds to the GAL's and Dr. Connolly's recommendations here as to Mr. Bothur's eventual access schedule.
The court also concurs with the recommendation of the GAL that that this court enter specific orders that the plaintiff not continue to engage in conduct in the presence of the children that will have the effect of frustrating the court orders. The court orders that she not make any negative comments to Jordan, Trinity, or Dominic, or to any of the other minor children, regarding the defendant's visitation with the children. She shall not discourage the children from enjoying their visit with their father, encourage them to ignore him, to call him names, to run away from him, or to refuse to participate in the visits. She will not permit the other children, or anyone else, to discourage Jordan, Trinity, or Dominic from enjoying their visits with their father. These orders are in the best interests of these three children and are to serve as a remedy for the plaintiff's past noncompliance with the court orders.
If Ms. Bothur fails to deliver the children to a visitation, in violation of these orders, it is likely that KidSafe will still charge a fee for the missed supervision (as it has done in the past) since it will have had to assign staff for the supervision unless it was cancelled or postponed with sufficient notice. It would not be fair or just, however, for Mr. Bothur to have to bear any supervision costs on days when the plaintiff does not comply with a court order to bring the children. In those instances, Ms. Bothur will be fully responsible — as a sanction for her noncompliance with these orders, to hold the defendant financially harmless for that noncompliance, and to encourage her future compliance — for the entire cost charged by KidSafe for that day when she does not bring the children to the visit.
The court is aware, however, that many children depend on Ms. Bothur, and that the child support order against Mr. Bothur does not sustain the full costs of rearing their minor children. As long as Ms. Bothur remains on public assistance, her share of the cost of visitation will be paid by Mr. Bothur and reimbursed by her to him at the rate of $17 per week once she acquires gainful employment and no longer receives public assistance.
Although the original custody agreement provided that Mr. Bothur would be responsible for the entire cost of KidSafe services, that agreement also provided that if Ms. Bothur missed a visit she would be responsible for the cost: "Defendant Father will deposit with Kid Safe the sum of $500.00 toward future visitation. Said $500.00 shall be a credit for mother and deducted from any child support arrearage currently pending and owed by father to mother . . . If the Plaintiff Mother fails to deliver the children to the scheduled visit, the fee for the visit will be deducted from the $500.00 deposit."
The evidence here has shown Ms. Bothur to be in serious financial straits, however, and on public assistance with the minor children. While that remains the case, the court does not deem it appropriate to require that paying for her share of supervision will deprive the plaintiff of funds needed to support the minor children.
The GAL has also requested that the plaintiff be required to perform two hours of community service for each hour of missed visit as a sanction if the children miss visits. Perhaps the GAL is concerned that the monetary sanctions imposed here — of requiring the plaintiff to share in the costs of visitations or to pay the full cost of missed visitations — lack teeth because the court has deferred her responsibility to make payments until she is no longer receiving public assistance. Taking care of so many children is surely a demanding job, however, and the court will not now impose further sanctions beyond those stated herein. The court orders the GAL, however, to notify the court immediately if plaintiff misses more than two visits, and the matter will be scheduled for an immediate hearing on whether more coercive sanctions are necessary to assure compliance with the court's orders. See Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737-38, 444 A.2d 196 (1982) ("The court's authority to impose civil contempt penalties arises . . . from the common law . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both.") (citations omitted). "A trial court has the power even to incarcerate contemnors in civil contempt cases until they purge themselves . . ." Johnson v. Johnson, 111 Conn.App. 413, 427, 959 A.2d 637 (2008).
Although Dr. Connolly counseled against 10 visits being an automatic benchmark for going to unsupervised visits, the court concludes that the children's best interest requires an access schedule that does not invite continued noncompliance. The court orders, as remedy for the past noncompliance with the court visitation schedule and the effects of that noncompliance, that after ten more scheduled visits (from the date of this order) Mr. Bothur's Sunday visits will be unsupervised and his midweek visits will be once a week, but still supervised, for feedback on the relationship; after another month supervision will end on the midweek visits; and after two more months the court will have an in-court review to determine the timetable for implementing a normal visitation schedule. Such orders are found to be in the children's best interest.
The "ten more scheduled visits" shall include scheduled visits missed because plaintiff failed to deliver them but not those missed if defendant does not show up.
It is not likely that Ms. Bothur will drop her opposition to Mr. Bothur's visitation; nor is it likely that the older siblings will find it easy to stop bad-mouthing their father in front of the younger children. It may be that the only way Mr. Bothur and these younger children will ever have a chance of developing a good parent-child bond is by their experiencing him as more than a visitor in their lives for short episodes on Thursdays and Saturdays and by him meeting their daily needs in the normal rhythms of daily living through more typical parental access. The family relations supervisor testified that Mr. Bothur should see these children at least once a week to develop and sustain a relationship with them, and the court concurs; even if visitation twice a month might have been sufficient, at the time of the custody order and dissolution, to build Mr. Bothur's relationship with the children, by now, and as a result of Ms. Bothur's continuing defiance of the court orders, that more frequent visitation is necessary in order to overcome the effects of that defiance and to progress toward the goal of a normal parent-child bond between Mr. Bothur and these three young children contemplated by the custody order.
The court recognizes that the parties have asked it to retain jurisdiction of this case because of its familiarity with the parties and the complex issues involved. Long-term retention of jurisdiction is probably not administratively feasible, and this court will address that issue with the relevant administrative judges, but the court will definitely retain jurisdiction of the matter through the date of the in-court review mentioned herein. See General Statutes § 46b-4, which provides that "Judge may retain jurisdiction until final disposition. Any judge who hears a family relations matter may retain jurisdiction thereof until its final disposition if, in his opinion, the ends of justice require." The ends of justice and the best interest of these minor children require this court to retain jurisdiction over custodial and visitation issues in this case, because this court has heard extensive testimony from numerous sources regarding these issues, at least through the in-court review, which will address compliance with these orders and the ongoing remedy for the contempt found herein.
Under General Statutes § 46b-87, the prevailing party in a contempt proceeding may be awarded a reasonable attorneys fee, and the defendant's motion seeks an order that "the plaintiff be ordered to pay the costs of bringing this action."
General Statutes Section 46b-87 provides in relevant part as follows: "When any person is found in contempt of an order of the Superior Court entered under Section 46b-60 to 46b-62, inclusive, 46b-81 to 46b-83, inclusive, or 46b-86, the court may award to the petitioner a reasonable attorneys fee and the fees of the officer serving the contempt citation, such sums to be paid by the person found in contempt, provided if any such person is found not to be in contempt of such order, the court may award a reasonable attorneys fee to such person."
Ordinarily, courts in this country do not award attorneys fees to the prevailing party unless there is a prior agreement between the parties or the payment of such fees is provided for by statute. The authority of the trial court to award attorneys fees following a contempt proceeding is well settled. Once a contempt has been found, General Statutes § 46b-87 establishes a trial court's power to sanction a noncomplying party through the award of attorneys fees. Pursuant to § 46b-87, that sanction may be imposed without balancing the parties' respective financial abilities. The award of attorneys fees in contempt proceedings is within the discretion of the trial court.
(Citations omitted; quotations omitted; internal alterations omitted.) Berglass v. Berglass, 71 Conn.App. 771, 787-88, 804 A.2d 889 (2002). The court finds it appropriate here to exercise that discretion so as to award counsel fees to the defendant for the plaintiff's contempt. The defendant shall file an affidavit of counsel fees within 30 days, and within such shall detail the specific activity undertaken for time he claims to be related to the contempt claim. Plaintiff has 30 days thereafter to file an objection or seek a hearing on the motion; if the court receives either, it will schedule a hearing; otherwise, it will decide the matter on the papers. The court recognizes that Ms. Bothur has limited funds now, and intends any payment of counsel fees order to be deferred until she has gainful employment, and then payment at a rate consistent with her support obligations. In this case, however, where the defendant has had to retain counsel who has spent many hours seeking to enforce his court-ordered visitation, it is only right that the party in contempt be required to pay his legal fees.
Finally, the court must turn to the GAL's motion for contempt. On August 13, 2008, the court, Klaczak, J.T.R., ordered that the GAL fees would be divided 20%-80% between the plaintiff and defendant. In the custody agreement, the parties acknowledged that, as of July 14, 2009, the plaintiff owed the GAL $395, which she agreed to pay at the rate of $25 per month beginning on August 1, 2009, and the defendant owed her $5,070, which he agreed to pay within 60 days. To date she has received $50 from the plaintiff and $1,200 from the defendant. Her fees are now paid by the Office of the Child Protection Attorney. She has served ably in this case, and her services continue to be needed with respect to Mr. Bothur's relationship with the three youngest children. Although she has requested to be relieved as GAL for the older siblings, that issue need not be addressed now as there is no matter pending before the court regarding them. Her attorney shall also remain in the case, at least through the next in-court review.
In her proposed orders the GAL has waived any further payment by the plaintiff but seeks an order that the defendant make a good faith effort to pay his remaining balance of $4,965. In December and February the court heard testimony that the parties were potentially eligible for a tax refund for the years 2007 and 2008 in the amount of several thousand dollars, and the court directed the parties and State to submit briefs on whether the court had authority to order that any refund be paid to the GAL, but concludes after reading the briefs submitted that the court lacks authority to override the tax intercept provisions of General Statutes § 52-362e. On July 12, 2010, the family magistrate court, Hutcheson, F.S.M., found that the defendant owed the State of Connecticut a support arrearage of $15,090, subject to adjustment, to be paid at the rate of $34 per week, plus any income tax refunds he received 2007-2009. Section 52-362e subjects his income tax refunds to intercept for payment of "past-due support." The defendant offered no excuse or justification for failing to make the payments to the GAL, and is found in contempt for that failure. In view of the fact that plaintiff is on state public assistance, she is not found in contempt.
General Statutes § 52-362e provides in pertinent part as follows: "(a) Subject to the provisions of Section 52-362h, whenever an order of the Superior Court or a family support magistrate for support of a child or children is issued, and, in IV-D support cases as defined in subdivision (13) of subsection (b) of Section 46b-231, the person against whom such order was issued owes past-due support in the amount specified in subsection (c) of this section, the state shall submit to the Internal Revenue Service through the federal Office of Child Support Enforcement the name of such person and request the withholding from refunds of federal income taxes owed to such person of an amount equal to the past-due support, and payment of such withheld amount to the state for distribution in accordance with subsection (d) of this section, after first deducting from any amount payable to the guardian or custodial parent of such child a collection fee sufficient to reimburse the Internal Revenue Service and the state for the cost of the offset procedure. (b)(1) Subject to the provisions of subsection (d) of this section, whenever an order of the Superior Court or a family support magistrate for support of a child or children is issued, and, in IV-D support cases, the person against whom such support order is issued owes past-due support in the amount specified in subsection (c) of this section, the Department of Social Services shall submit to the Commissioner of Administrative Services the name of such person and request the withholding from refunds of state income taxes owed to such person of an amount equal to the past-due support, and payment of such withheld amount by the Commissioner of Revenue Services to the state for distribution in accordance with subsection (d) of this section . . . (d) Support collected pursuant to this section shall be distributed as required by Title IV-D of the Social Security Act."
Finally, this court is of the opinion that the orders entered here regarding the defendant's visitation with the minor children are not subject to an automatic stay, as Practice Book § 61-11(b) specifically exempts visitation orders from the automatic stay of execution in noncriminal cases. Nonetheless, in the interests of justice, the court sua sponte is also scheduling a hearing pursuant to Practice Book § 61-11(c) on November 12, 2010, at 2:00 p.m. in Rockville Superior Court.
Practice Book § 61-11 is captioned "Stay of Execution in Noncriminal Cases." Subject (b) is captioned "Matters in which no automatic stay is available under this rule" and provides in pertinent part as follows: "[N]o automatic stay shall apply to orders . . . of periodic alimony, support, custody or visitation in domestic relations matters brought pursuant to chapter 25 or to any later modification of such orders."
Practice Book § 61-11(c), is captioned "Termination of stay" and provides in pertinent part as follows: "If the judge who tried the case is of the opinion that (1) an extension to appeal is sought, or the appeal is taken, only for delay or (2) the due administration of justice so requires, the judge may at any time after a hearing, upon motion or sua sponte, order that the stay be terminated."
ORDERS
A. The plaintiff's motion for modification #339 and her motion for modification #364 are denied.
B. The defendant's motion for contempt #322.50 is granted. The following orders are found to be in the children's best interests, and necessary and appropriate to effectuate the original judgment and remedy the contempt:
1. Effective immediately, the defendant shall have supervised visitation with Trinity, Jordan and Dominic Bothur from 3:30 p.m. until 6:00 p.m. at Kid Safe every other Saturday (beginning the first Saturday after issuance of this decision) and on the first and third Thursday of each month.
2. After the defendant has had ten scheduled visits following the date of this decision, the Saturday visits will be unsupervised, at the same times as specified in paragraph one, but pickup and drop off will continue to be supervised by and at KidSafe. After the plaintiff has delivered the children to KidSafe, the defendant may take them off-site for the period of his visitation and shall return with them to KidSafe before the end of the visitation. The Thursday visits will then become weekly, at the above times, but still supervised by KidSafe.
The "ten scheduled visits" shall include scheduled visits missed because plaintiff failed to deliver them but not those missed if defendant does not show up.
3. After the schedule described in paragraph two has been in effect for one calendar month, the dates and times for Mr. Bothur's parenting time with Jordan, Trinity, and Dominic will remain as set forth in that paragraph but supervision of the Thursday visits will end. Pickup and drop off will continue to be at and supervised by KidSafe. After the plaintiff has delivered the children to KidSafe, the defendant may take them off-site for the period of his visitation and shall return with them to Kid Safe before the end of the visitation.
4. It will be solely up to Mr. Bothur whether other persons accompany him on unsupervised visitations.
5. After the schedule described in paragraph three has been in effect for two months, the court will have an in-court review to determine the timetable for implementing a normal visitation schedule.
6. Visits shall occur at these scheduled times unless there is a written agreement between the parties, and signed by each of them personally, agreeing that a visit shall not take place on a particular occasion or shall be moved to another date, time, or location.
7. Any missed visit as a result of the plaintiff (or her agent) not bringing the children to the scheduled visitation at the scheduled time will automatically result in a make-up visit for 3 ½ hours. While midweek visits are on the first and third Thursdays of a month, make-up visits will be on the next Thursday not scheduled for visitation. After weekly Thursday visits begin, the make-up visit will immediately precede the next regularly scheduled Saturday visit (which would thus last seven hours). Late arrival at any visit (more than 10 minutes after the scheduled beginning of the visit) on the plaintiff's part will result in the next visit being increased by double the amount of the visitation missed, the additional time added to the end of the scheduled visit.
Since late visitation or missed visits on defendant's part have not been reported to the court as ever having been a problem since the custody judgment, the court does not find it appropriate or necessary to impose orders corresponding to those contained in this paragraph on the defendant.
8. The parties will split equally the cost of supervision and for Kid Safe services monitoring pickup and drop off, except that:
a. If the plaintiff fails to deliver any of the children for a visitation, she shall be responsible for the entire cost of the missed visitation, unless, before the next scheduled visit, she provides the defendant and GAL with a signed letter from a physician who has treated the child stating that illness prevented the child from attending the visitation. Any such note must also describe the nature of the child's illness and why it prevented the child from attending the visit.
b. If the defendant fails to appear for a visitation, he shall be responsible for the entire cost of that visitation.
9. As long as Ms. Bothur remains on public assistance, her share of the cost of the visitation will be paid on her behalf by Mr. Bothur to Kid Safe and reimbursed by her to him at the rate of $17 per week once she acquires gainful employment and no longer receives public assistance, or has other resources available to pay him.
10. Mr. Bothur will not discuss Ms. Bothur or the older children during the visits, except that if the younger children ask him questions regarding their mother or siblings he should respond with as little information as possible and shall immediately attempt to redirect the discussion.
11. Ms. Bothur will not make negative comments to Trinity, Jordan, or Dominic — or to any of the other minor children — regarding the visitations of these three children with their father, nor permit others (including the siblings) to do so. If the younger children make statements to her about Mr. Bothur or ask her questions about him, she shall (a) respond with as little information as possible, (b) immediately attempt to redirect the discussion, and (c) promptly notify the GAL in writing of what the children and she both said. Ms. Bothur shall not discourage the children from enjoying their visits with their father, encourage them to ignore him, to call him names, to run away from him, or to refuse to participate in the visits. She will not permit the other children, or anyone else, to discourage Jordan, Trinity, or Dominic from enjoying their visits with their father.
12. Both parties shall keep the GAL apprised of their current addresses and telephone numbers.
13. Each party shall obtain and keep an email address at which it may be reached and provide the same to the other party and to the GAL.
14. Prior to the in-court review, both parties shall complete at least three counseling sessions with the Humphrey Center to address each one's parenting concerns. These meetings are prefatory to co-parenting counseling sessions that the court will address at the next in-court review.
15. Defendant is awarded counsel fees on the contempt. The defendant shall file an affidavit of counsel fees within 30 days, and within such shall detail the specific activity undertaken for time he claims to be related to the contempt claim. Plaintiff has 30 days thereafter to file an objection or seek a hearing on the motion; if the court receives either, it will schedule a hearing; otherwise, it will decide the matter on the papers. The court recognizes that Ms. Bothur has limited funds now, and intends for any payment of the counsel fees order to be deferred until she has gainful employment, and then payment at a rate consistent with her support obligations.
16. Nothing in these orders is intended to limit the rights of the parties or GAL to seek court intervention sooner than the in-court review mentioned above or to seek other remedies or sanctions for repeated violations of these orders by either party.
C. The guardian ad litem's motion for contempt #303 is granted as to defendant, and denied as to plaintiff. The defendant shall make a good faith effort to pay his remaining balance of $4,965.