Opinion
No. FA 05-4002162S
March 15, 2010
MEMORANDUM OF DECISION RE
Plaintiff's Motion for Modification of Custody Postjudgment (#142), Plaintiff's Motion to Preclude Foreign Travel, Postjudgment (#147), Defendant's Motion for Permission for Foreign Travel and Renewal of Visa (#148), Plaintiff's Motion for Order Re: Taxes, Postjudgment (#150), Plaintiff's Motion for Restraining Order, Postjudgment (#152), Defendant's Motion for Contempt, Postjudgment, and for Restraining Order (#156.10), Plaintiff's Amended Motion for Modification of Custody, Postjudgment (#162)
The primary issue posed by all the above motions is whether to modify the custody order entered in the judgment of dissolution on May 10, 2007, for the parties to share joint legal custody and physical custody of their two children, Victoria, born on September 29, 2000, and Amanda, born on December 3, 2003. Although the original court order provided for the Plaintiff to have physical residence of the children on Tuesday and Thursday evenings overnight, the defendant on Monday and Wednesday evenings, and for them to alternate weekends, the parties since then have informally adjusted the weekday access schedule so that the children stay with the defendant on Mondays and Tuesdays and the plaintiff on Wednesdays and Thursdays. The plaintiff now seeks sole legal and primary physical custody, with the defendant to have access on one overnight during the week and alternating weekends.
Since the plaintiff is not the biological father of Victoria but the parties had agreed for her to be adopted by him, the marital separation agreement adopted by the court, Shluger, J., provided for joint legal custody and shared physical custody of Amanda, who is the biological child of both parties and that "[u]pon adoption by Michael of the minor child, Victoria, the parties agree that Michael shall have the same joint legal and shared access as the plan listed herein for Amanda." The evidence showed that the probate court later terminated the paternal rights of Victoria's biological father and permitted the plaintiff to adopt her.
The parties appeared with counsel for hearing on these motions on 11 days between September 28, 2009, and January 28, 2010. Both parties testified and offered certain exhibits, and the court also heard testimony from Theresa Frederica Wassenberg, Ph.D., a family relations counselor who conducted an evaluation and prepared a written report dated February 23, 2009, concerning the matters at issue; Jeanne Gosselin, M.A., M.F.T., a family relations counselor who conducted an earlier evaluation and prepared a written report dated May 10, 2006, in connection with the dissolution of marriage proceeding; Attorney Mary Oberg, the court-appointed guardian ad litem in the present proceeding; Officer Mark Halisbozek of the Vernon Police Department, who conducted a "welfare check" on the safety of the minor children in August 2008 upon referral from the Department of Children and Families (DCF) after Victoria's tutor had notified DCF that the children were complaining that their mother had pulled their hair and ears; Louis Palshaw, records supervisor for the Vernon Police Department, who brought various reports in that agency's possession regarding Officer Halisbozek's investigation; Mary Ann Cole, the plaintiff's mother; Kelly Sica, a special education paralegal at Orchard Hill School in South Windsor who provided tutoring for Victoria in the spring of 2009; Leann Donofrio, Victoria's third grade teacher; and Hanson Morgan, a friend of the defendant.
The current proceedings began with the filing of the plaintiff's motion for modification of custody in late August 2008 after DCF sent police to the mother's home to investigate a report "of possible abuse of two juvenile children." (Pl.'s exhibit 3, police incident report of 8/20/08, p. 2.) A woman named Jennifer Cleaver, whom the parents had hired as a tutor for Victoria, called DCF on Wednesday, August 20, 2008, and reported that "the child told the reporter that her mother pulled her hair and hit her with a shoe. Because she was playing with a garage door. According to the child both of the girls were hit . . . However, per Victoria the girls get hit all the time." (Pl.'s exhibit 4, DCF Report Narrative.) Cleaver also told DCF that she had informed Mr. Cole "of the above concerns" and that "he already notified his attorney because this has not been the first time that she has hit the children." Id. A DCF worker had then spoken with Mr. Cole, who "advised this worker that mother has a history of hitting the girls." Id. DCF notified the local South Windsor Police Department and asked for a welfare check on the children.
Officer Mark Halisbozek and a DCF worker went later that evening to the mother's home and spoke with her and the girls. After initially denying any incident with the children and garage, Ms. Cole later admitted grabbing them by the hair after finding them hanging on the garage door and "using a shoe in the past as a disciplinary tool." The children confirmed that their mother pulled their hair the previous day because of an incident in the garage and had pulled their hair or struck them with a shoe as a method of discipline in the past, but said that she had never caused any bruises. The officer saw no signs of injury on the children and, concurring that "the punishment for the children's behavior did not reach a criminal level"; Pl.'s exhibit 3; the officer and DCF worker left the premises and closed their investigations. Mr. Cole then filed motion for modification #142, which was scheduled for a show cause hearing date on September 22, 2008, when both parties appeared with counsel at short calendar, and where the court, Abery-Wetstone, J., appointed the GAL, referred the matter to family services, and entered an order for neither party to use physical discipline to punish the children.
The issue regarding physical discipline of the children was not a new one in August and September of 2008, however, but had been percolating for a number of years. The evidence showed that physical discipline of the children was commonplace before, during and after the parties' three-year marriage. Mr. Cole testified credibly that he had seen Ms. Cole routinely disciplining the children by hitting them on the bottom or legs with a "flip-flop"-type shoe, pinching their arms or legs, and pulling their hair or ears, sometimes to the point of causing red marks or irritations on their skin. He said that the children would get scared and cry when their mother did these things to them. Mr. Cole admitted that he too had used corporal punishment by spanking the children, but said that when Amanda had told him several years ago that her mother and babysitter were pulling her hair he decided not to hit them anymore and began using other methods of discipline such as time-outs — "I changed and I read and I put it into action and it really works, he said at trial." — He acknowledged at trial before this judge that he still believed spanking a child with an open hand once or twice was an appropriate way to discipline a child but testified credibly that he no longer used such methods.
After the parties separated, the children repeatedly complained to Mr. Cole about their mother continuing to punish them in these ways. During the dissolution proceeding, the court ordered family services to conduct a custody evaluation, and a month before the final hearing the plaintiff sent an email to the family services counselor saying that "last night Victoria told me that her mother had grabbed Amanda by her hair and then her wrist squeezing it hard and hurt her wrist. She then proceeded to slam her down on her bed and roughly dressed her. Amanda confirmed the story and was complaining about her wrist hurting . . . [H]earing these stories from the girls have me extremely concerned. Should my daughter be subjected to such abuse?" (Pl.'s exhibit 15.) After the divorce, Victoria continued to complain to Mr. Cole that Ms. Cole "was hitting her with a blue shoe, pulling her hair, pinching her, yelling at her." (Def.'s exhibit C., pp. 15-17.) Amanda told him that "her mom was hitting her with a blue shoe and . . . pulling her hair and pinching her." Id., 18. When asked at his deposition by Ms. Cole's lawyer "What were the circumstances that the girls . . . told you occurred when they claimed their mother acted as you've described," Mr. Cole answered "The circumstances were that they had misbehaved, and she was punishing them." Id., 19-20. Although Ms. Cole testified that she stopped using physical methods of discipline with the children after Judge Abery-Wetstone's order on September 22, 2008, the evidence shows otherwise.
When asked before this judge why he had not pursued these claims more vigorously in the dissolution proceeding rather than agreeing to shared legal and physical custody, Mr. Cole said that he had run out of funds to continue litigating the divorce.
The children themselves did not testify. The defendant made frequent hearsay objections to testimony about reports made by the children to third parties, and on those occasions this court permitted the evidence but only to show the emotional state of the children when making such reports and not for the substantive truth of the reports made by the children. In making the finding contained in the text above, this court does not rely on that testimony. But the court finds credible the plaintiff's testimony that he had recently witnessed the defendant grab Amanda by the arm and drag her out of the rear area of a mini-van. The court also finds credible Mr. Cole's testimony in his deposition, introduced into evidence by the defendant without limitation (except for certain portions of his deposition on September 24, 2009, defendant's exhibit D, relating to joint counseling that the court, by request and agreement of the parties, is not considering), that (i) both children told him that their mother had recently "squeezed" Amanda's hand and pulled her arm after getting mad at her (Def.'s ex. D, transcript of deposition of plaintiff, vol. 2, pp. 132-35, 144-45), and (ii) Victoria told him that on another recent occasion the defendant had "called her a `stupid bitch,' or something, "dumb bitch," and then grabbed Amanda's arm and dragged her up the stairs. And she grabbed her arm, too, or something like that." ( Id., at 146-47.) Credible evidence was also introduced without objection that Victoria also complained to her tutor, Jennifer Cleaver, and the family relations counselor that her mother pinched her, pulled her hair, and struck her with the blue shoe when she was angry and that Victoria also told the family relations officer about her mother's threats to take the children to live with black people in Hartford, not let them see their paternal grandmother again, and take her to Brazil and leave her there.
The evidence also established that Ms. Cole calls the children names, such as "bitch" or "stupid bitch" when she is mad at them and has made what Dr. Horton characterized as "crazy" and "scary" threats to the children (i) to take them to Brazil, which is hers and Victoria's country of origin, "leave them there," and not let them return to this country, (ii) to "move to Hartford, make them go to school and live among poor Black people," and (iii) to never again let them see their paternal grandparents. The Brazil threat is one which has caused great stress to the children, particularly Victoria. The latter threat would be particularly ominous to both children, for whom the paternal grandparents are a refuge from the fear and anxiety generated by their mother and from the bickering between their parents. Victoria and Amanda spend much time at their grandparents' home, taken there often by both their parents (although less frequently by Ms. Cole since Mr. Cole filed the pending motions). Amanda said that her paternal grandparents are her "favorites" and that her grandmother's home was her favorite place to stay overnight; and Victoria said that her favorite place is her grandmother's home. The evidence made clear that Mary Ann Cole, the paternal grandmother, plays a particularly important and beneficial role in the children's emotional lives. These are the types of threats that put children "on edge," leaving them feeling insecure and uncertain about their future, contrary to the need of all children for consistency, stability and continuity in their environment.
There is nothing inherently harmful or contrary to a child's best interest about living in any particular community or amidst any particular group or groups of people. What is troubling about the comments Ms. Cole made to her children was their obvious intent to scare young, vulnerable children into believing they would be forced to leave the safety and security of the community they know, in close proximity to their father and his parents, and move among strangers just because she was mad at the children for their having been, in her view, "bad."
Dr. Wassenberg testified credibly that the hair pulling, pinching, and threats are routine, normative child management techniques for Ms. Cole. When the children tell Mr. Cole that their mother has pinched them, pulled their hair, or hit them with the blue flip-flop shoe, they do so in a routine manner, as if that conduct is an everyday occurrence. The evidence also suggests that, despite Ms. Cole's testimony and her promises not to use such methods of discipline again, it is likely she will continue to use physical force and make these sorts of threats. For example, at her deposition in September 2009 and again in testimony during the hearing before this court, Ms. Cole denied ever pulling her children's hair, and claimed instead that she had only "held" their hair — "I don't pull the hair. I hold by hair; I didn't pull hair." (Pl.'s exhibit one, at 48), and she said they only time she had ever done so was in connection with the garage door incident. Id., 73-74. Yet the evidence flatly showed otherwise in both respects. Although the guardian ad litem testified that Ms. Cole is aware of the negative effects of her disciplinary techniques on the children, Ms. Cole's testimony and demeanor at the hearing suggest otherwise. She appears to understand that others believe that the pinching and hair pulling are harmful, and such a recognition would explain her insistence that she merely holds the children's hair without actually grabbing or pulling it, but her continuation of the same behavior suggests either that she sees nothing wrong with it or is unable to stop. As the family relations counselor testified, Ms. Cole's denials and minimalizing of her conduct both reduce the likelihood of her changing that conduct in the future and led Dr. Wassenberg to change her recommendation, mid-trial, from joint legal custody to sole legal custody in the plaintiff.
The law recognizes a parent's right to use reasonable physical force or reasonable corporal punishment to discipline a child. That right is grounded in a parent's constitutionally-protected, fundamental liberty interest "in the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). In the penal code, for example, § 53a-18 of the General Statutes provides, for example, that "[a] parent, guardian or other person entrusted with the care and supervision of a minor . . . may use reasonable physical force upon such minor . . . when and to the extent that he reasonably believes such to be necessary to maintain discipline or to promote the welfare of such minor or incompetent person." In State v. Nathan J., 294 Conn. 243, 255 (2009), our Supreme Court recently noted that "the reasonableness of the force used must be judged objectively in the light of the circumstances then obtaining as well as in the light of the actor's belief." The court there also recognized that
any analysis of reasonableness must consider a variety of factors and that such an inquiry is case specific. Indeed, this court has held that, in determining what is a reasonable punishment, various considerations must be regarded, the nature of the offence, the apparent motive and disposition of the offender, the influence of his example and conduct upon others, and the sex, age, size and strength of the pupil to be punished. Among reasonable persons much difference prevails as to the circumstances which will justify the infliction of punishment, and the extent to which it may properly be administered.
(Citation omitted; internal alterations omitted; internal quotation marks omitted.) Id., 256. The court also pointed out that "[i]n a substantiation of abuse hearing, if it is shown that a child has sustained a nonaccidental injury as a result of parent administered corporal punishment, the hearing officer must [then] determine whether the punishment was reasonable and whether the parent believed the punishment was necessary to maintain discipline or to promote the child's welfare." Id., 259.
This court also recognizes that parents living apart may not agree about the appropriate methods of discipline. When the parents share physical custody, in an equal arrangement such as under the present orders, such a disagreement would not seem, by itself, to limit the right of either parent to use reasonable methods of physical discipline in the exercise of that parent's fundamental liberty interest in rearing his or her child, even if such discipline were adamantly opposed by the other parent. The Nathan and other such cases counsel, however, that the critical inquiry is one of reasonableness, which will be highly dependent on the facts and circumstances of a particular case and particular child or children.
The evidence showed that, although the children love and are deeply attached to both parents, they have become anxious and afraid of their mother, in part because of the physical way she disciplines them. Ms. Cole's telling the children to say only good things about her and bad things about their father when speaking to the guardian ad litem has added to their stress and anxiety by causing them to feel a conflict in their loyalties to each parent. Moreover, as Dr. Wassenberg testified, asking children to tell lies can cause the children to lose trust in the parent making such a request. Dr. Wassenberg testified that, although she usually visits children at both parents' homes, she did not see the children during her home visit to Ms. Cole's residence because "both children requested that the evaluator not visit them at their mother's home because `sometimes if our mother hears what we say she gets mad and that is bad.'" Pl.'s exhibit 7, at 14. Victoria said to her that "I am scared that if you tell the judge, the judge will tell mom's lawyer, he will tell her and when she gets stressed out, she doesn't hit with the shoe anymore, but still pulls hair." Id., 14. Victoria told Dr. Wassenberg that she was afraid her mother might get angry or hurt her if she overheard what the children told her. The children told Dr. Joseph Horton, a family therapist who has primarily been Mr. Horton's clinician but has also treated Ms. Cole and the children, that they feared their mother, and Dr. Horton concluded that they "are definitely afraid of her." Id., 5. He told Dr. Wassenberg, that
while the children could exaggerate and become theatrical, their mother's threats, hair pulling and the use of the blue shoe as an object to strike them were part of their every day reality and essentially the primary tools in her child management repertoire.
Id., 5-6. Dr. Horton also told her that "the children have asked their father `to get us out of here.'"
Victoria in particular is an anxious and very sensitive child. She very much wants to please her mother and becomes even more anxious when she fails to do so or is physically disciplined by Ms. Cole. For example, when Vernon police officer Halisbozek and the DCF worker went to Ms. Cole's home after Jennifer Cleaver made the mandatory report to DCF, both children became very emotional and fearful, and Victoria said that she thought she had done something wrong to cause the situation. When she later asked the family relations counselor who had told the police about the garage door incident, and Dr. Wassenberg told her that her tutor, Jennifer Cleaver, had done so, Victoria responded, "Oh, great, it will probably be years before mommy forgives me." The court finds credible Mr. Cole's testimony that Victoria's anxiety has become worse since the divorce.
The parties' disagreement about appropriate methods of discipline or the effects on the children of the defendant's threats and physical punishment are not the only reasons, however, that the children's best interest would be served by modifying the access schedule. Despite trying very hard and wanting to succeed, Victoria has had difficulty in school, and Mr. Cole has shown himself to be much better at recognizing and meeting her academic needs, which Ms. Cole initially did not recognize. Victoria has been disappointed at having academic problems, and the conflict between her parents is affecting her ability to do well in school. On several occasions Ms. Cole suggested that Victoria participate in activities that would have taken away from time for the child's homework. While Ms. Cole does appear now to have recognized that Victoria needs extra help and to be paying more attention to the children's education, Mr. Cole still is better attuned to the children's academic needs and more ready and willing to spend time with them monitoring their homework. The parties' inability to work together on this issue is highlighted by the fact that they hired separate tutors for Victoria last year.
There are numerous other examples of the parties' inability to cooperate in their children's best interest. They are frequently unable to work together and have developed a combative communication style of making accusations against the other that prevent mutual trust. While not all of this inability stems from Ms. Cole's fault, as the evidence did establish that Mr. Cole has made unflattering references to her prior occupation, he was regretful and remorseful for having done so while Ms. Cole showed no such insight or regret about the negative things she has said about him.
The court recognizes that the written report of the family relations officer and the written proposed orders of the guardian ad litem recommended that the parties continue to share joint legal custody, with the plaintiff having final decision-making with regard to educational issues, and that both of them also recommended shared parenting during the summers (although the GAL conditioned any such change on "joint and individual counseling produc[ing] a significant reduction in the ongoing conflict between the parents"). By the time of the hearing, however, the family relations counselor had modified her views and was recommending sole custody to the plaintiff because of her lack of confidence that the defendant would learn to moderate her behavior; and the GAL testified that in view of the length of these court proceedings any reassessment should be delayed until the end of the summer 2010. The GAL continued to believe, however, that continued joint legal custody remained in the children's best interest because the children's relationships with each of their parents are equally important to them, they derive some benefit from each parent, and she believed that both parents needed to appreciate the importance of the other parent to both children.
While a court may take into consideration the opinion of a family relations counselor, Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981), and the guardian ad litem, Janik v. Janik, 61 Conn.App. 175, 181, 763 A.2d 65 (2000), cert. denied 255 Conn. 940, 768 A.2d 949 (2001), their views are not binding on this court, which must conduct its own independent assessment of the evidence and the best interest of the children. 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 . . . [A] trial court 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, supra, 185 Conn. at 281. Ultimately, the court is responsible for sifting through and evaluating all the evidence and then rendering its own findings and conclusions.
The legislature has codified various factors, set forth in the margin, that a court may consider in determining the child's best interest in making custody or visitation decision. Like the criteria set forth in the alimony and property distribution statutes, no one of those factors is controlling. The court may also consider additional factors, and 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 nest 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."
Whether the defendant's use of physical discipline exceeds the bounds of reasonableness so as to warrant an arrest for risk of injury or a substantiation of physical abuse is not before this court. Instead, the court must determine whether it is in the children's best interest to modify the current orders for legal and physical custody. There is no evidence here of physical injury beyond red marks on the children's skin that the father has sometimes seen. There is evidence, however, that the mother's threats and physical punishments are harming the children in more subtle ways. On the evidence offered and proven before this court, it has been shown that it is in the best interest of these two young children to modify the current order for shared physical custody and joint legal custody and order instead that Mr. Cole be awarded sole legal custody and primary residential custody and that Ms. Cole have access to the children once during the week and on alternative weekends. Ms. Cole's combative style of communication and lack of respect for Mr. Cole's parenting have left the parties unable to work together or communicate effectively with regard to their children. Perhaps the counseling that she is in, and the co-parenting counseling that the court orders here as found to be in the best interest of the minor children, will provide her with the skills and insight to modify her behavior toward the children and help them learn to work more cooperatively; if so, that might provide a basis for future modification of legal custody.
The main focus of the GAL's recommendation for change of the access schedule during the school year and for Mr. Cole to have primary decision-making authority on educational issues was her belief that Ms. Cole did not adequately understand or deal with the children's educational needs. Her testimony focused less on the effects than Ms. Cole's disciplinary methods. The court notes, however, that the children were less honest with her than with the family relations counselor about their mother. The evidence presented to the court leaves a picture of children who have become increasingly anxious and fearful of their mother, despite their love for her, and of a mother who does not recognize the damage she is doing to the children she loves. These children need to feel safe and secure in their home environment, without having to worry that they will be spirited away to a strange neighborhood away from their father and grandparents or to a foreign country never to return to their American family. A change in access schedule during the school year will help address their educational needs; but making that change year-round is intended to give them the sense of stability and continuity that all children need. The lack of positive signs that Ms. Cole actually recognizes the need to moderate her behavior counsel against an automatic reversion to shared custody during the summers.
A disagreement between the recommendations of the GAL and those of the family relations counselor about the extent of Ms. Cole's midweek access highlights the difficulty in balancing the children's bond with and affection for their mother against the anxiety instilled in them by her conduct. The GAL recommended that the children spend one night during the week with their mother, while the family relations counselor testified that she did not believe the children should stay overnight during the week until Ms. Cole showed some progress in therapy in addressing her conduct negatively affecting her children. Until now, Ms. Cole has not even told her counselor about the garage door incident or sought the counselor's help in addressing her conduct toward her children. This court concludes that limiting the week day visitation is in the children's best interest now, at least until Ms. Cole shows actual recognition of the need to change her behavior. All the evidence presented to the court leaves the firm impression that, at present, she does not actually perceive herself as doing any harm to the children: in her mind, she is their mother, she knows what is best for them, and, though recognizing the need to acknowledge the contrary views of others, she does not actually accept those contrary views as legitimate.
Both sides have presented motions regarding Ms. Cole's desire to take the children to Brazil, where both she and Victoria were born. Ms. Cole's threats to leave the children there, however, have made them afraid to go and Mr. Cole fearful of allowing them to do so. Those threats deserve serious attention in view of the fact that she has repeated them so frequently. That she returned from Brazil with the children without incident in 2004 has little significance now, having occurred while the parties were still married and before she started making these threats. The protection of the Hague Convention, to which Brazil is a signatory, is little solace to children who may become caught up in litigation to enforce an American custody award. The threats themselves are harmful to the children, who need to know that they are safe and secure here.
The defendant's motion for contempt and restraining order #156 complains that Mr. Cole told the children that they should not go to Brazil because the defendant might not return them to the United States, a statement he acknowledged making to Victoria many years ago, while the parties were still married, during his deposition. The court agrees that ordinarily such a statement should not be made to children. At hearing before this court, however, Mr. Cole explained credibly that what he told Victoria was that if she ever found herself in an airport she should not get on the plane but instead should find a police officer. All parents give children advice on how to protect themselves — walk straight home from school, don't talk with strangers, don't get in cars with people you don't know, don't let someone lure you into a strange home with the promise of a puppy or kitten, etc. In view of Ms. Cole's threats, Mr. Cole was doing the same thing here, in order to protect the children's safety and well-being and not to alienate them from their mother. There is no evidence that he ever made such a statement to either child after the divorce. This motion is therefore denied.
In view of Ms. Cole's threats, moreover, the court finds that is in the children's best interest to order that the children not be allowed to travel outside the United States without the plaintiff's written consent and that the defendant be barred from removing them to Brazil without further order of this court. No passports may issue for either child without the father's express written permission, and the defendant shall immediately transfer any passports for the children, whether American or Brazilian, in her possession or control to the plaintiff. Plaintiff's motion to preclude the defendant's from traveling to Brazil with the children (#147) is granted, and defendant's motion for permission to take the children there (#148) is denied.
The Plaintiff's Motion for Restraining Order #152 seeks an order that Ms. Cole not speak negatively about him to the minor children, involve the minor children in adult issues, or engage in alienating behavior. There was evidence offered that Ms. Cole has told the children that Mr. Cole is stupid, had hit her, and had rubbed her face into a carpet, and also that Mr. Cole had made negative and offensive statements about Ms. Cole (although there is no evidence that he did so in front of the children). It is best for both children that this motion be granted, and the order extended to apply to both parents.
The Plaintiff's Motion for Order #150 asks that the defendant provide him with a copy of her 2007 tax returns. As no evidence was introduced with regard to this issue, the court treats it as having been abandoned.
ORDERS
After considering all of the evidence offered in light of the statutory criteria for determining the best interest of the minor children along with the other factors discussed herein, the following orders are found to be in the best interest of the minor children:
1. The plaintiff is awarded sole legal custody and primary physical custody of the two minor children, Victoria and Amanda. Before making any major decisions, he shall confer with the defendant unless an emergency prevents him from doing so, but he shall have the exclusive right to make final decisions in the event of disagreement between the parties.
2. The defendant shall have access to the minor children on Tuesdays from after school until 7:30 p.m., at which time she shall return them to the plaintiff. She shall have any additional midweek access to which the parties may agree. In addition, the children shall spend alternating weekends with her from Friday after school until Monday morning, when she shall arrange for their delivery to school. If the defendant will be unable to care personally for the children immediately after school on Tuesdays or her Fridays, they shall remain in their father's custody until she is able to pick them up from him.
3. The holiday and vacation schedule contained in the judgment of dissolution shall remain unchanged and take precedence over the regular access schedule set forth in the above paragraphs.
4. The order entered by agreement on September 22, 2008, that neither party shall use physical punishment to discipline the children shall remain in effect.
5. The parties shall continue in counseling together at the Humphrey Center for the purpose of reducing conflict between them, improving their ability to communicate effectively, and enabling them to be able to make decisions cooperatively.
6. The defendant shall participate in individual counseling to learn how to control her temper and anger with the children and to discipline them without using corporal punishment or physical methods to control the children.
7. The children shall begin counseling with a counselor agreed upon by the parties. If they cannot agree, they shall confer with the GAL, but if they remain unable to agree the plaintiff shall have the final decision. Both parties shall cooperate fully with the requests of such counselor for their participation.
8. The GAL shall monitor the parties' compliance with these orders regarding counseling, decision-making, and discipline.
9. Both parties shall sign releases authorizing the clinicians providing the counseling ordered above to disclose information on a continuing basis to the guardian ad litem about the parties' attendance, cooperativeness, and compliance with the therapists' recommendations and treatment modalities.
10. The minor children shall not be allowed to travel outside the United States without the plaintiff's written consent or further order of this court. The defendant is prohibited from removing the children to Brazil without further order of this court and from threatening to do so in the presence of the children. No passports may issue for either child without the father's express written permission, and the defendant shall immediately transfer any passports for the children, whether American or Brazilian, in her possession or control to the plaintiff.
11. Neither party shall make negative or disparaging remarks about the other parent to the children or within their hearing.
12. Each party shall pay its one-half of the GAL fees within thirty days.