Opinion
No. FA 05-4015234 S
February 21, 2007
MEMORANDUM OF DECISION
The Plaintiff, Josue Rodriguez, commenced the above-captioned action in two counts: the first count seeking, inter alia, a dissolution of his marriage to the Defendant wife, Erisleida Rodriguez ("Erisleida"), and the second count seeking custody of a child, not issue of the marriage, who was born to Erisleida approximately two years prior to her marriage to Plaintiff and is the biological child of Erisleida and Rafael Colon ("Rafael"). Plaintiff named Rafael as a defendant in the action because of the custody claim he is asserting in the second count. The essence of Plaintiff's custody claim, as pleaded in the complaint, is that, notwithstanding the absence of parentage, he has been the child's primary caretaker for most of her life.
This Court subsequently questioned Plaintiff's standing to bring the custody claim, thus raising the issue of whether it had subject matter jurisdiction over Plaintiff's claim to custody of the child of Erisleida and Rafael. Rafael thereafter filed a motion and supporting memorandum of law seeking the dismissal of Plaintiff's custody claim. Plaintiff responded by filing a Memorandum of Law in Opposition to Motion to Dismiss, dated October 10, 2006 (the "Opposition"). Simultaneous with the filing of his Opposition, the Plaintiff also filed a Request for Leave to Amend Complaint. In the proposed Amended Complaint, he supplements his original allegation that he has been the child's primarily caretaker with further allegations that (i) his relationship with the child is similar in nature to a parent-child relationship, (ii) the denial of his custody claim would cause significant harm to the child, and (iii) the child's biological parents have failed to properly care for the child. Rafael and Erisleida filed objections to Plaintiff's Request for Leave to Amend on October 18 and 19, 2006, respectively. Rafael filed his Reply Brief Regarding Jurisdiction on October 24, 2006.
The Court specifically notes the willingness of Attorney Kim Duell to serve in a pro bono capacity on Rafael's behalf. Attorney Duell's efforts exemplify the highest level of professionalism and a laudable commitment to the concept of justice for all.
The Request for Leave to Amend Complaint is denied. When a motion to dismiss based upon lack of subject matter jurisdiction has been filed, the plaintiff may not amend his complaint to cure the jurisdictional defect. F.D.I.C. v. Peabody N.E., Inc., 239 Conn. 93 (1996).
The Court subsequently bifurcated the first and second counts and proceeded to trial on the dissolution of marriage claim asserted in the first count. A decision thereon was rendered on November 20, 2006 and is not relevant to the issue presently before the Court.
Although they did not file separate motions and supporting memoranda of law, both Erisleida and the guardian ad litem for the minor child supported Rafael's motion to dismiss in proceedings before the Court.
This case presents yet another permutation of the ongoing debate regarding the circumstances under which a party may assert a claim to custody of a child that is neither his biological nor adoptive child. LaBella v. LaBella, 134 Conn. 312 (1948); Morrow v. Morrow, 165 Conn. 665 (1974); Remkiewicz v. Remzkiewicz, 180 Conn. 114 (1980); Doe v. Doe, 244 Conn. 403 (1998); Fish v. Fish, 90 Conn.App. 744 (2005). This line of cases reflects the fact that "[T]raditional models of the nuclear family have come, in recent years, to be replaced by various configurations of parents, stepparents, adoptive parents and grandparents." Michaud v. Warwick, 209 Conn. 407 (1988). In this case, the Plaintiff, a stepparent to the minor child, seeks custody of the child in derogation of the rights of the child's biological parents. He does so through the initiation of an action against the child's parents. The issue is whether he has standing to assert such a claim in an action which he has commenced. If he does not have standing, this Court does not have subject matter jurisdiction over the claim. Weidenbacher v. Duclos, 234 Conn. 51, 61-62 (1995).
It is well-settled that "the court's power to adjudicate custody derives from statute, and cannot be expanded by equitable concerns." Doe v. Doe, supra, at 438. Three statutes serve as the principle sources of support for an individual who asserts a claim regarding a child as to whom he/she is neither a biological nor adoptive parent. They are Conn. Gen. Stats. Sections 46b-56, 46b-57, and 46b-59. The third of those three statutes, Section 46b-59, does not govern Plaintiff's claim in this matter because that statute gives standing to a party seeking visitation with a child who is not his biological or adoptive child. The Plaintiff's complaint asserts a custody claim, not a claim for visitation. This statute, while not applicable to the facts of the cases, is nevertheless significant because it is illustrative of the extraordinarily high threshold showing which is required before a third party, by his or her own action, can interfere with the rights of biological or adoptive parents to raise their child as they see fit. In Roth v. Weston, 259 Conn. 202 (2002), our Supreme Court found Section 46-59 to constitute a grant of jurisdiction in such cases only if the petition for visitation contained (i) "specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship," and (ii) "specific, good faith allegations that denial of visitation will cause real and significant harm to the child." Roth, supra, at 234-35. Moreover, in addition to alleging these "high jurisdictional hurdles," the petitioner must prove them by clear and convincing evidence. Roth, supra, at 235. Logic would suggest that a party seeking to initiate litigation to obtain custody of a child who is neither his biological or adoptive child, as in the present case, would be subject to at least the same jurisdictional hurdles and burden of proof.
Section 46b-56 provides in pertinent part as follows:
(a) In any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children if it has jurisdiction under the provisions of chapter 815p . . . [T]he court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable.
Section 46b-57 provides in pertinent part as follows:
In any controversy before the Superior Court as to the custody of minor children, and on any complaint under this chapter or section 46b-1 or 51-348a, if there is any minor child of either or both parties, the court, if it has jurisdiction under the provisions of chapter 815p, may allow any interested third party or parties to intervene upon motion. The court may award full or partial custody, care, education and visitation rights of such child to any such third party upon such conditions and limitations as it deems equitable.
Section 46b-59 provides in pertinent part as follows:
The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person . . . Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted.
The Court makes this observation because Plaintiff's complaint (as opposed to his proposed Amended Complaint; see footnote 2, supra) alleges only that he has been the child's primary caretaker for most of her life. That allegation alone, without more, is insufficient to satisfy the heightened Roth standards which this Court believes would apply (at a minimum) in the event a non-parent had the right to initiate a custody action against the parents of the child. Plaintiff's custody claim, as pleaded, is therefore insufficient to withstand dismissal and the Court so finds. Technical pleading requirements aside, the more substantive issue is whether a non-parent has the right to initiate custody litigation against a child's parents. That issue, as discussed hereafter, presents an equally insurmountable obstacle to the Plaintiff.
Plaintiff, in his Opposition, relies upon Sections 46b-56 and 46b-57 as the sources of this Court's authority to exercise jurisdiction over his custody claim. Plaintiff's reliance on these statutes is misplaced. Neither statute authorizes the commencement of an action by a non-parent seeking custody of a child. What they permit, under appropriate circumstances, is a non-parent's intervention in an existing controversy regarding the custody of a child. The statutes function in tandem with each other. The language of Section 46b-56 seemingly contemplates a pre-existing action between the parents of the child. "In any controversy before the Superior Court, and at any time after the return day of any complaint [for dissolution of marriage or annulment] the court may make . . . any proper order for the custody . . . of the children if it has jurisdiction under the provisions of chapter 815p . . . [T]he court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or a third party . . ." (Emphasis added). CGS § 46b-56(a). Section 46b-57 serves as the vehicle for the third party, i.e., the non-parent, to assert his or her claim to custody in the pending controversy regarding the child. "In any controversy before the Superior Court as to the custody of a minor child, . . . the court . . . may allow any interested third party or parties to intervene upon motion." These statutes, read in conjunction with each other, give the Plaintiff a right of intervention. Lacking here, however, is any pending controversy into which to intervene. At the time Plaintiff commenced this action, there was no litigation pending between Erisleida and Rafael. Indeed, there was no action of any type then pending with respect to the child.
Plaintiff claims, in his Opposition, that Rafael intervened in this action and, thus, somehow created a third-party status for himself with regard to the minor child. A review of the file reveals that, at an early time in this case and acting without the benefit of counsel, Rafael filed a motion to intervene claiming that Plaintiff wasn't allowing him to see his child. It appears that the court never ruled on the motion to intervene, presumably because Rafael had been named as a defendant in the complaint and logically could not intervene in an action to which he was already a party. Even if Rafael had not been named in the complaint, it is hard to conceive how his intervention (virtually compelled in order for him to assert and protect his parental rights) could somehow bestow any rights on the Plaintiff as a non-parent.
In Manter v. Manter, 185 Conn. 502 (1981), the party seeking intervention was the former husband ("Husband #1") of Wife. Prior to their divorce, the couple had adopted two minor children. Wife subsequently married Mr. Manter ("Husband #2). Husband #1 consented to the termination of his parental rights and the adoption of the two minor children by Husband #2. This sequence of events rendered Husband #1 a non-parent. Approximately two years after the Wife and Husband #2 married, they were divorced. After all proceedings in that dissolution case had concluded, Husband #1 sought to intervene for the purpose of seeking custody of or visitation rights with the two minor children. The trial court denied the motion to intervene because, inter alia, there was no present dispute then before the court. Affirming the trial court's ruling, the Appellate Court observed that § 46b-57 "clearly requires the controversy to precede the motion and to exist independently of it." Manter, supra, at 506. The issue presently before this Court was squarely addressed by Judge Alander in Greco v. Greco, 2001 Conn.Sup. Lexis 1527. There, plaintiff grandparents commenced an action against their daughter seeking custody of her child (their granddaughter). They alleged, inter alia, that (i) the minor child, until recently, had resided with them almost her entire life, (ii) their daughter (the child's mother) had psychological problems for which she required counseling or medication, (iii) their daughter had "grossly neglected" the child, (iv) their daughter and the child were living in a residence in which, and from which, narcotics were used and sold, and (v) the daughter had entrusted the child to an alcoholic with significant psychological problems. The defendant mother moved to dismiss the action on the ground that the court lacked subject matter jurisdiction over a custody action filed by a party who is not a parent of the child. Judge Alander identified the same jurisdictional obstacle as this Court has noted and as was observed in Manter, supra.
The fundamental flaw in the plaintiff's argument is that it ignores the language of the statute which conditions the exercise of the court's authority to award custody to a third party on the existence of a controversy before the Superior Court as to the custody or care of minor children or a complaint for annulment, dissolution of marriage or legal separation under Section 46b-45. That language requires that there already be pending before the court a controversy involving custody of the minor children before a third party can request custody.
Plaintiff herein may claim that the requisite controversy exists because the underlying claim in the action is for a dissolution of marriage. While a complaint for dissolution of marriage does serve as a proper foundation for the assertion of a custody claim, this obviously presupposes that the child who is the subject of the custody claim is the child of the parties to the marriage. That is not the case here.
Plaintiff's contention that this Court has jurisdiction over his custody claim is rooted entirely in his interpretation of Doe v. Doe, 244 Conn. 403 (1998). In Doe, the parties had raised the minor child from the time of her birth in 1983. She was not the biological child of the parties. Rather, because the plaintiff wife was no longer able to have children, the child was conceived when a surrogate mother was artificially impregnated with the defendant husband's sperm. At all relevant times throughout the pregnancy, the surrogate mother used the plaintiff wife's name, social security number and other statistical data in her treatment with doctors, her admission to the hospital and her completion of the child's birth certificate. Upon discharge from the hospital, the surrogate relinquished the child to the plaintiff and defendant. They thereafter raised and cared for the child without any further participation by the surrogate mother. In 1991, just prior to the child turning eight, the plaintiff wife commenced an action against the defendant husband seeking a dissolution of their marriage and other relief including, notably, custody of the child they had raised together. The defendant husband, by way of special defense, claimed that that the child was not a child of the marriage and, therefore, the court lacked jurisdiction to enter orders regarding her in the action. Subsequent to the commencement of the dissolution action, the defendant husband filed a petition in probate court seeking (i) a termination of the parental rights of the surrogate mother and her husband, and (ii) a determination that he was the father of the child. Following the close of evidence in the dissolution case but prior to the court's rendering of a decision, the probate court granted the defendant husband the relief sought in his petitions as noted above. No appeal was taken from the probate court's orders. The defendant husband thereafter filed a motion to open the evidence in the dissolution case in order to submit into evidence the aforesaid probate court orders. The trial court denied the motion and proceeded to make its findings based upon the evidence previously introduced at trial. Based upon that evidence, the court found that it did not have subject matter jurisdiction to enter custody orders regarding the child because the plaintiff wife was neither the biological nor adoptive parent of the child.
The complaint, as amended, acknowledged that Plaintiff was neither the biological nor adoptive parent of the child.
On appeal, our Supreme Court found that the trial court abused its discretion in denying the motion to open the evidence so as to permit the introduction of the probate court orders. The Court then proceeded to rule in the case "based on the true state of facts, namely, that the defendant is the true biological father of the child, and that the parental rights of the surrogate and her husband have been terminated." Doe, supra at 422. On that basis, the Court further concluded that the trial court had cited in finding that it had no jurisdiction to address the plaintiff wife's custody claim regarding the minor child even though she was not the child's biological or adoptive parent.
The Court is not persuaded that Doe controls the disposition of this case. The two cases are clearly distinguishable. In Doe, the Court recognized that there had to be an appropriate vehicle to assert a custody claim. As the court observed, a party could proceed under one of two clauses of Section 46b-56(a). One basis to assert a custody claim would be in "any controversy before the Superior Court as to the custody or care of the minor children." The Court cites, as an example of such a controversy, a habeas corpus proceeding regarding custody of a minor child. Doe, supra at 424-25. The Plaintiff has not framed a complaint to this effect. He does, however, assert a claim under the second clause of Section 46-56(a), allowing the Court to determine custody in the context of a dissolution of marriage proceeding. Admittedly, the first count of the complaint seeks a dissolution of his marriage to Erisleida. By its nature, however, an action for dissolution of marriage presupposes only two parties to the complaint. In Doe, that was the case. Deciding Doe on the "true state of facts," as the Court did, meant that the only parties with an interest in the minor child were the very same parties to the dissolution of marriage claim. In the instant case, however, the dissolution of marriage action cannot constitute the basis for a custody claim because Raphael, the child's father, is not, and could not be, a party to a complaint between Plaintiff and Erisleida regarding the dissolution of their marriage. Plaintiff conveniently included in his dissolution complaint an unrelated second count seeking custody of a child who is neither his biological nor adoptive child. The concurring and dissenting opinion of three justices of the Doe Court spoke to the infirmities of the very type of claim which Plaintiff seeks to assert here.
This is not to suggest that there cannot be a third party in dissolution of marriage actions, however that is accomplished pursuant to the provisions of Section 46b-57 regarding third-party intervention. Plaintiff does not have the right to compel Rafael's "intervention" by naming him as a party in the first instance.
I acknowledge to extend parental rights to an adult who has no biological ties to a child could be seen as opening the door to an onslaught of litigants seeking to have a variety of family relationships validated for the purpose of determining custody. I also acknowledge the possibility that certain unscrupulous parties could use such a decision as a new tool for leverage in an inimical divorce action. It is not my intent to open the door to all unrelated third parties who happen to feel a bond of affection with a child . . . My decision is limited to this extreme case.
Interestingly, the Doe majority in rejecting the equitable parent doctrine, expressed reservations about a hypothetical situation similar to this case.
Consider, for example, the case of a widow who has remarried, to a man whom she considers to be her infant's stepfather. Nonetheless, for the child's well-being, she cooperates in raising the child to consider her husband as the child's father, but formal adoption has not yet occurred. Perhaps the mother is waiting to see how the marriage works out before consenting to the adoption of her child by her husband. When a dissolution action ensues, however, the husband would have a powerful claim under the equitable parent doctrine to parentage of the child, notwithstanding that the mother never consented to his attaining that legal status. Even if the husband were not serious about pressing the claim he could use it as leverage at the marital dissolution bargaining table.
Doe, supra at 444, fn 46. While the Court's concerns in Doe admittedly related to parentage, they would apply with equal validity to a claim for custody. After all, the right to custody of one's child is one of the most compelling incidents of parentage. There is a further distinguishing factor between the Court's hypothetical and the facts here. In the example used by the Court in Doe, the mother is a widow and, hence, the child's biological father is deceased. The child's father in this case is alive and in the picture. Hence, the reservations about according rights to the non-parent as expressed by the Court in Doe should be even greater under the facts of this case.
As both the majority and the concurring and dissenting opinions in Doe recognized, the concept of the nuclear family has changed dramatically in recent years. Given the number of children who annually become the products of either a dissolved marriage or a single-parent home where the biological parents never married, a reading of Doe as urged by the Plaintiff would potentially legitimize the custody claim of every stepparent and "significant other" who, by virtue of a relationship with one of the child's biological parents, has played a role in the child's life. The rights of the child's parents, and particularly the parent who was not involved in the relationship with the third party, should not be relegated to such a tenuous position. One can only wonder what standard would apply if Plaintiff were to succeed in bringing a claim such as this. In Fish v. Fish, supra, where there was a pending controversy between the parents of the child, the court found that the "best interests of the child" standard contained in the statute, and not the heightened standards of Roth, supra, apply to a third-party custody claim under Section 46b-56. If a non-parent is permitted to initiate a custody claim under Section 46b-56 as Plaintiff seeks to accomplish here, are the constitutional protections accorded to parents to be stripped away not because the parents are somehow unfit (as required under the Roth standards) but, rather, because the statute speaks to the best interests of the child and the interests of the child might be better served if he or she were in the custody of the third party? Or would different standards be adopted depending on how the custodial claim was asserted under Section 46b-56(a) — the "best interests" standard contained in the statute would apply if the third party's claim arose through intervention under Section 46b-57 (as indicated in Fish), but the " Roth standards" would apply if that custodial claim were asserted by the "third party" in a direct action as Plaintiff proposes to accomplish here?
Although the Court's ruling prevents Plaintiff from pursuing his claim in this action, other avenues of relief exist. One option, which he chose not to pursue, would be to commence a visitation action under Conn. Gen. Stat. Section 46b-59. Provided that he could make the requisite factual showing to establish standing under the statute, it would present the possibility of continued access to the child with whom he claims to have developed a bond. Moreover, if the facts alleged in his proposed Amended Complaint are true, he may be able to initiate or cause the initiation of proceedings in (i) probate court pursuant to Conn. Gen. Stat. Section 45a-614, or (ii) juvenile court pursuant to Conn. Gen. Stat. Section 46b-129, for the purpose of seeking the placement of the minor child with him. The common thread of all of the foregoing possible options is, essentially, a requirement that a child be shown, inter alia, to have been abused, neglected or otherwise endangered before custody may be taken from a parent. Given the importance of a parent's right to the custody of his or her child and the intrusive effect of Plaintiff's proposed action on those rights, the requirement of a high jurisdictional hurdle seems most appropriate. The procedural vehicle which Plaintiff attempts to use here is totally devoid of such protection.
For all of the reasons set forth above, the Court finds that it lacks subject matter jurisdiction over the second count of the complaint and, accordingly, the same is hereby dismissed.