Opinion
WWMFA134015577S
01-26-2018
Gordon MERKEL v. Marlene HILL
UNPUBLISHED OPINION
OPINION
Angelo L. dos Santos, Senior Judge
The issue presented by the plaintiff, Gordon Merkel, is whether the court ought to modify the plaintiff’s access to his child, postjudgment. The plaintiff filed his motion on September 7, 2017. The court heard the motion on October 11, 2017, where the plaintiff was self-represented and the defendant was represented by counsel. For the reasons indicated, the plaintiff’s motion to modify custody/access is granted.
FINDINGS OF FACTS
The plaintiff and the defendant, Marlene Hill, have a child, Vivianna Rita Hill, born in Massachusetts on December 9, 2008. The plaintiff acknowledged paternity of the child. When the child was six months old, the defendant and the child moved to Connecticut to live with the plaintiff. The defendant and the child resided with the plaintiff for about eleven months before returning to Massachusetts in May 2010. Eventually, the defendant moved to Connecticut when she bought a house in Thompson. The plaintiff owns a house and resides in Dayville, which is a part of Killingly.
On October 1, 2013, judgment was entered in Massachusetts regarding custody, support, and visitation of the minor child. Thereafter, on October 11, 2013, the foreign (Massachusetts) judgment was filed in the Superior Court in Putnam. The parties, by stipulation on August 30, 2012, in the Massachusetts court, agreed and the court ordered that the defendant shall have physical and legal custody of the minor child (paragraph D) and that the plaintiff’s access/visitation, commencing on September 10, 2012, at 6:00 p.m. be on alternate weekends, Saturdays to Mondays at 6:00 p.m. (paragraph B) and on Wednesdays, beginning on September 5, 2012, from 7:00 a.m. until 4:15 p.m. (paragraph C). Despite the order of sole custody to the defendant, the court ordered that both parents have access to the child’s medical and school records or any other records pertinent to the child customarily under the control of the parent and that both parents take steps required to permit access to these records by the other parent upon request of a parent. In addition, the parents were ordered to notify the other of the child’s pre-school and teachers as well as contact information of health and educational and day care providers upon request. Afterward, the judgment provides for an extensive parenting schedule regarding vacations and holidays.
The stipulated agreement and order of the court provided that: " The mother shall be allowed to move to the state of Connecticut with the Child but shall not be allowed to move the Child’s primary residence to any other state other than Massachusetts without the father’s written permission or Order of the court ..." (Paragraph G.) At the time of the entering of the judgment, the plaintiff resided at 131 Slater Hill Road, Dayville, Connecticut and the defendant was residing at 82 Brandy Hill Road, Thompson, Connecticut. These dwellings continue to be the parties’ current addresses.
The plaintiff, after filing the Massachusetts judgment in Connecticut, commenced filing motions regarding the case in Connecticut starting May 8, 2014, requesting a modification of the judgment (support) and a motion for contempt. On July 24, 2014, the defendant, through counsel sought to dismiss the case alleging a lack of subject matter jurisdiction, which motion was subsequently withdrawn by the defendant. In addition, the defendant, through counsel filed an objection to the plaintiff’s motion to modify, alleging that the plaintiff did not and could not demonstrate a material change of circumstances or that modification of the October 1, 2013 orders was in the best interests of the child. Thereafter in subsequent proceedings in Connecticut, the defendant admitted that the Connecticut court had subject matter jurisdiction.
On March 16, 2016, the case was referred to the Family Services Division for a Comprehensive Evaluation of the issues of legal and physical custody of the minor child in the case. A comprehensive report by Family Services dated December 6, 2016, was filed with the court on December 30, 2016. The plaintiff moved to have the evaluation admitted into evidence. The defendant objected, alleging that the report was stale and that the court could not modify the original judgment because of a lack of changed circumstances as required by Massachusetts law and other reasons.
In the instant motion, the plaintiff seeks sole custody of their child, but agreed that the court enter (temporary) orders of joint custody and he agrees with some of the recommendations made by the family relations counselor.
The current orders were entered by the Commonwealth of Massachusetts Probate and Family Court on October 1, 2013, when the child was almost five years old. There, the court ordered that the defendant have sole legal and physical custody of the minor child. The plaintiff’s access schedule was ordered, as follows: The plaintiff shall have access with their child on alternating weekends beginning Saturday at 8:00 a.m. and ending on Monday at 6:00 p.m. During the week, the plaintiff shall have access every Wednesday beginning at 7:15 a.m. until 4:15 p.m. and during the intervening weeks, the plaintiff shall have access on Monday beginning at 7:15 a.m. until 4:15 p.m. The parties have an extensive Holiday schedule that is articulated in the registered foreign judgment which the parties claim to have adhered to since October 1, 2013. The parties exchange the child at the Webster Police Station in Massachusetts.
When asked by the court about changed circumstances, the plaintiff testified that their child was now older and that he was concerned about his child’s current social behavior. In the recent past, the child has had behavioral issues at school which the plaintiff felt required counseling for the child. The family relations counselor verified those issues when she spoke to the child’s counselor at school.
The evaluation was ordered when the parties were unable to resolve their disputes through mediation. The parties have filed numerous motions, responses, objections, and participated in a litigious battle regarding the minor child.
The parties’ relationship commenced beginning in 2004/2005. At first, the relationship was casual, but before the plaintiff went to Iraq, he gave the defendant a ring. Upon his return from service, the parties decided to have a child together. The parties maintained separate residences, she in Massachusetts and he in Connecticut. At a time after the child’s birth in Massachusetts, the defendant moved to Connecticut and resided with the plaintiff at his house in Dayville. Approximately eighteen months later, the defendant returned to live in Massachusetts. For a brief time, the defendant resided in Rhode Island, but maintained her residence in Massachusetts. Presently, the defendant resides in Thompson with their child. The home is a single-family residence. It has a large yard and swimming pool. The home is suitable for the child. The child has her own bedroom and other rooms for her toys.
The plaintiff is married to Emily Merkel and resides in Dayville. The home is in a residential neighborhood. It has a large yard that borders woods. There, the child has her own bedroom. The plaintiff’s home is " well appointed" and the minor child is well provided for within her father’s home.
Both parties are employed full time, she as a MRI technologist and he as an x-ray technician. The defendant left her most recent job to take another. He has worked for the same employer since 2004. Both appear to be responsible employees
The parties agreed upon very little during the evaluation. The defendant reported that the parties had a turbulent, chaotic relationship in which she suffered violence at the defendant’s hands. Subsequently, they reconciled, but during their child’s life they have lived mostly apart. The defendant considers the plaintiff a dangerous person capable of harming her and their child. The defendant indicated that the plaintiff’s violent nature makes co-parenting impossible.
The plaintiff indicated that the defendant does not allow him to parent their child. He admits domestic violence with the defendant and understands her concerns. However, he noted that domestic violence had occurred nine years before and it had never recurred between him and the defendant. He complained that the defendant uses the history to file complaints against him with various agencies: Department of Children & Families (DCF), police, etc.
The parties deviated from the court-ordered parenting plan for some time in 2015. The defendant indicated that this went on for six months, while the plaintiff contended that it occurred over a period of ten months. During this time, the plaintiff’s access was on alternating weekends beginning Friday until Sunday and during the week on every Tuesday and Thursday from 4:00 p.m. until 7:00 p.m.
The plaintiff’s primary concerns are the defendant’s refusal to acknowledge or validate his parenting and allow him to actively participate in the minor child’s life. He alleges that the defendant informed the child about her feelings toward the plaintiff and toward the plaintiff’s spouse. It is so found. He complained that the defendant uses the family court, DCF and the criminal court to her advantage, accusing the plaintiff of harming the child. She has accused him of physically harming their child and of being sexually inappropriate with their child. He complained that the defendant accused him of abuse and neglect. It is worthy to note, that the motions, applications for restraining orders, and DCF involvement occurred before the final custodial judgment on October 1, 2013. The family relations counselor noted that the parties seem to be " unable to move beyond the traumatic events that were the epicenter of the original custodial action."
In her report, the family relations officer made numerous recommendations regarding the parties’ child. First, the parties should have joint custody of their minor child. Neither parent agreed. Second, both parents should enroll in and attend co-parenting counseling to effectuate joint decision-making regarding the minor child. The plaintiff agreed. Third, in keeping with the joint custodial statute, after consulting with each other regarding major decisions concerning the minor child’s educational, emotional, and medical well-being, and in the event of a dispute, the parties should consult with the co-parenting counselor. If still unable to agree, they should seek the remedies offered through the court. (Page 22.) Further, the family officer recommended that neither party should make unilateral decisions regarding the minor child. The plaintiff agreed. Fourth, the father should have access with the minor child on alternating weekends beginning after school on Friday until Monday morning. During intervening weeks, the father should have access on Wednesdays beginning after school/work overnight until Thursday morning when he would transport the minor child to school or a day care provider. The plaintiff agreed with the recommendation, but instead of having access on Wednesday after school, it should be on Thursdays after school until Friday morning because of his availability. Fifth, the parties should follow the recommendation of the educational providers regarding the educational plan and/or necessary intervention aid and other determined access or curriculum within the minor child’s academic setting. There were other recommendations made by the family counselor and those will be addressed in the court’s orders. Additional facts will be discussed during the discussion section of this case.
DISCUSSION
The court may order Family Relations to conduct a custody evaluation to assist in making its decision. Ordering a custody study is within the discretion of the court. Cotton v. Cotton, 11 Conn.App. 189, 193 (1987). The contents of the study are admissible as long as the preparer is available to testify. See Practice Book § 25-60(c); see Duve v. Duve, 25 Conn.App. 262, 267, cert. denied, 220 Conn. 911 (1991), cert. denied, 502 U.S. 1114, 112 S.Ct. 1224, 117 L.Ed.2d 460 (1992) (family relations officer testified at hearing concerning the results of her investigation). In the instant case, the family relations counselor testified at length. During her testimony, she validated the report and her recommendations.
The family relations counselor expressed two reservations about her report. Firstly, that her report had been completed on December 6, 2016, approximately 10 months before her testimony on October 11, 2017. Since the family relations counselor had practiced family law as a lawyer, she expressed reservations about whether the plaintiff needed to establish changed circumstances as required by Massachusetts law before the issue to modify custody could be considered. Ideally, the report should be taken up soon after it is completed, but after considering how this case has progressed on the docket with many court appearances and numerous other motions filed by the plaintiff, it is understandable when the plaintiff’s motion did not proceed to a hearing sooner. The court is not bound to accept the recommendations of a family relations officer, or any other expert. Yontef v. Yontef, 185 Conn. 275, 281 (1981). After considering the evidence, including the testimony of both parents and other exhibits, the court finds the family counselor’s report complete, thoughtful and credible. No credible evidence was presented that the issues that the child has at school have been altered or have abated. Finally, the court accepts the family counselor’s recommendations contained at the end of her report.
Because both parents and the child reside in Connecticut, this court may modify the custody determination entered in Massachusetts. See General Statutes § 46b-115m(b) (" a court of this state may modify a child custody determination made by a court of another state if ... [t]he child resides in this state with a parent" ). When modifying the Massachusetts order, the controlling substantive law is that of Massachusetts and the controlling procedural law is that of Connecticut. See General Statutes § 46b-71.
Massachusetts General Laws ch. 209C, § 20, provides that " no modification concerning custody or visitation shall be granted unless the court finds that a substantial change in the circumstances of the parties or the child has occurred and finds modification to be in the child’s best interests." The court must first find a substantial change in circumstances before moving to the best interest analysis. Della Corte v. Ramirez, 81 Mass.App.Ct. 906, 908 (2012). The fact that the child has merely grown older is insufficient to constitute a substantial change in circumstances. Id. Alienation of one parent by the other from the child and exposing the child to conversations that are critical of the other parent may constitute a substantial change in circumstances. See Fiore v. Deruosi, 88 Mass.App.Ct. 1112 (2015).
When the Massachusetts judgment was entered the child was less than five years old. The child is now over 10 years old. Since the Massachusetts decree, she has begun attendance at school and is now having issues there which are of concern to the school officials and the plaintiff. This time is crucial in the child’s life, and these changes should be addressed in a manner that serves the best interests of the child. For these reasons, there is a material change in circumstances such that custody may be modified.
" [T]he court may award custody to the mother or the father or to them jointly ... as may be appropriate in the best interests of the child. In awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether one or both of the parents has established a personal and parental relationship with the child or has exercised parental responsibility in the best interests of the child.
" In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement ... or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child’s best interests." Mass." Gen: Laws ch. 209C, § 10(a). " In awarding joint [legal] custody absent an approved custody agreement between the parties, to comply with Massachusetts General Laws ch. 209C, § 10(a), the judge’s findings must support the conclusion that the parties can cooperate in making decisions for the child and have done so in the past." Smith v. McDonald, 458 Mass. 540, 553 (2010). Both parties here have demonstrated in the past, as Vivianna’s parents, that they are capable of altering the court-ordered schedule to accommodate their work schedule and other changes in their lives in furtherance of the best interests of their child.
" In a proceeding involving custody of a child, as matter of law and as matter of humanity [t]he governing principle by which the court must be guided in deciding the issues raised is the welfare of the child." (Internal quotation marks omitted.) Bouchard v. Bouchard, 12 Mass.App.Ct. 899 (1981). " [Massachusetts] decisional law has not required a definitive list of criteria that must be considered in determining what is in a child’s best interest, [but certain] constants are revealed in our [cases] ... Such constants, or factors, include, for example, consideration of which parent has been the primary caretaker of, and formed the strongest bonds with, the child, the need for stability and continuity in the child’s life, the decision-making capabilities of each parent to address the child’s needs, and the living arrangements and lifestyles of each parent and how such circumstances may affect the child. Although the relevance of particular factors may vary from case to case, the above listed factors underscore that in the Commonwealth the best interests analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met ... All relevant factors must be considered." (Citations omitted; internal quotation marks omitted.) El Chaar v. Chehab, 78 Mass.App.Ct. 501, 506 (2010).
Over nine years ago, the plaintiff had been violent with the defendant, but there were no further incidents between the parties since then. Both parties love their daughter. Both have strong personalities that could inure to the benefit of their daughter. Their stubbornness about their respective positions and their disagreements and distrust for each other appears to have affected their abilities to parent their daughter. The defendant will not trust that the plaintiff will act in the best interests of the minor child because she suffered harm while in a relationship with him. The plaintiff believes the defendant is still blaming him and will never allow any other options for parenting and as such is suspicious and critical of her motives. The child mimics both parents when with her classmates. Both parents need to work on gaining trust for each other that would ultimately assist their child.
" As part of a decision concerning custody or visitation, the court may order either parent or both of the parents and any child of such parents to participate in counseling and drug or alcohol screening, provided such participation is in the best interests of the child." General Statutes § 46b-56(i). The court orders counseling in accordance with its final orders.
ORDERS
After consideration of all of the evidence, the changed circumstances of this family and the best interests of Vivianna, the court enters the following orders:
1. Both parents shall have joint legal custody of the minor child, with the defendant continuing to have primary physical custody and the plaintiff shall have reasonable rights of access as articulated in these orders.
2. The parties shall immediately enroll in and attend co-parenting counseling to effectuate joint decision making regarding the minor child. Said co-parenting counseling should be with a provider covered by the parties’ insurance and they shall share equally in any copays.
3. In keeping with the joint custodial statute, after consulting with each other regarding major decisions concerning the minor child’s educational, emotional, and medical well-being, in the event of a dispute regarding said decisions the parties shall consult with the co-parenting counselor and should they still be unable to make a unified decision, they shall avail themselves of the remedies offered through the court. Neither party shall make unilateral decisions regarding the minor child.
4. The plaintiff shall have access with the minor child on alternating weekends beginning after school on Friday or in the event of no school when the Father is out of work until Monday morning when he shall transport the minor child to school, or in the event of no school, the agreed-upon care provider. During the intervening weeks, the plaintiff shall have access every Thursday beginning after school/work overnight until Friday morning when he shall transport the minor child to either school or the agreed-upon care provider.
5. The parties shall follow the recommendation of the educational providers regarding an educational plan and/or necessary intervention, aid, or other determined action/curriculum within the minor child’s academic setting.
6. The parties shall mutually decide upon a care provider for the minor child regarding pre-school/after school and in the event of no school during vacations and in the summer. The child shall return to Building Blocks in North Grosvenordale, Connecticut, for continuity and for structure to provide for the third-party day care needs.
7. The parties shall adhere to the Holiday and vacation schedule as detailed in the Judgment registered with the State of Connecticut as the Foreign Judgment from the Commonwealth of Massachusetts, dated October 1, 2013, with the agreement portion executed by the parties on September 10, 2013.
8. The holiday schedule shall supersede the vacation schedule and the regular weekday/weekend access schedule and that the vacation schedule shall supersede the regular weekday/weekend access schedule.
9. The exchange of the minor child if the same needs to occur between the parties and not with a third-party caretaker shall continue to be at the Webster Police Station for continuity for the minor child although it is recommended this issue be addressed with the co-parenting counselor to achieve a more neutral location to exchange the minor child.
10. The parties shall be responsible for exchanging, pick up and drop off, of the minor child. The issue of third parties being allowed to exchange the minor child shall be addressed by the parties with the co-parenting counselor. Third parties shall not be allowed to conduct the exchange, pick up and drop off. Significant others and/or grandparents may attend the exchange and shall remain respectful of the parents at all times. In the event of an emergency, the parties shall be flexible with the exchange times.
11. The custodial parent of the minor child shall be responsible for transporting the child to all extracurricular activities the minor child is enrolled in. At this point, the minor child shall continue with the activities she is currently enrolled in and has traditionally been participating in. Should one of the activities conflict with the access schedule, such as, winter ski club, then the plaintiff’s mid-week access shall change to another mid-week night to allow the child to continue with the activity.
12. The parties shall agree in writing to the extracurricular activities of the minor child and each contribute to the extracurricular expenses of the minor child in keeping with the day care percentage attributed to each in the child support guidelines. The defendant traditionally enjoyed the ski club with the minor child and if the defendant continues to be the only parent partaking in ski club then the cost of the same shall be borne by the defendant unless the plaintiff has traditionally helped with the expense.
13. Both parents shall continue to have access to all of the minor child’s medical, academic, counseling records and neither party shall prohibit nor delay the other from receiving the same.
14. Both parents shall be the primary caretaker for the minor child during his or her access times and not leave the minor child in the care of third parties for any lengthy duration. If one party is unable to care for the child during his or her access times, he or she shall inform the other party regarding the individual who is caring for the minor child and provide all contact information.
15. In the case of any emergency, both parties shall notify the other immediately. Both parties shall have full contact information of the other.
16. Both parties shall provide at least ninety days advance written notice to the other party of any change of address and/or any intent to relocate from his or her current residence. The child shall not be removed from the State of Connecticut without permission of the other party or order from the court.
17. When traveling with the minor child, the other party shall be provided the itinerary within 30 days of the contemplated travel, including all contact information and flight information.
18. Neither parent shall disparage the other in the presence of the minor child nor allow third parties to do so. Neither party shall discuss adult issues with the minor child.
19. The minor child shall be enrolled in counseling and the parties shall cooperate with and attend the counseling at the direction of the agreed-upon counselor. Said provider shall be covered by insurance and the parties shall share in the costs of any co-pays.
29. Any previously entered orders not modified herein shall remain in full force and effect.