Opinion
No. FA 07 4006469 S
February 21, 2007
MEMORANDUM OF DECISION RE RESPONDENT'S MOTION TO APPOINT ATTORNEY FOR MINOR CHILD
FACTUAL BACKGROUND
The record in this matter reflects the following relevant procedural history and factual background:
The applicant, Josef R. Wittmann initiated this action pursuant to the International Child Abduction Remedies Act, 42 U.S.C. 11601, commonly known as the Hague Convention (hereinafter ICARA). The respondent and Mary Wittmann, his wife, are the parents of two minor children, Maximilian Wittmann born August 6, 1996 and Anastasia Wittmann born September 22, 1999, both born in Munich, Germany. The parties were married on March 15, 1996 in Germany and at all relevant times, prior to the respondent and the children relocating to the United States, the family lived permanently in Germany.
The petitioner husband has alleged that the respondent wife wrongfully removed and retained the children in the United States and that he has formally requested their return to Germany. He alleges that he has custody rights under German law.
The respondent initiated divorce proceedings in the judicial district of Tolland at Rockville Connecticut, docket number as FA-06-4005564 which is presently pending. In that divorce action, the court appointed a guardian ad litem for the minor children, attorney Matthew Potter.
QUESTION PRESENTED
The question presented is whether the court should appoint an attorney or Guardian ad litem for the minor children.
DISCUSSION
CT Page 3862
Connecticut general statutes § 45a-132 states: "in any proceeding before . . . the Superior Court . . . the judge . . . may appoint a guardian ad litem for any minor . . . if it appears to the judge or magistrate that one or more persons as individuals, or as members of a designated class or otherwise, have or may have an interest in the proceedings, and that one or more of them are minors . . ."
Connecticut general statutes § 46b-54(a) states: "The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under § 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request."
In G.S. v. T.S., 23 Conn.App. 509 (1990), the court held that the trial court abused its discretion in failing to appoint an attorney for the minor child when custody was contested and there were allegations of neglect and abuse.
It is disputed that this matter is not a dissolution case but rather, a case brought pursuant to the Hague Convention to determine whether or not this court has jurisdiction. In such matters, the petitioner must establish a prima facie case by a fair preponderance of the evidence. Thereafter, "a respondent who opposes the return of a child may advance any of the affirmative defenses listed in Article 12, 13, or 20 of the Hague Convention 42 U.S.C. Section 11603(e)(2)." Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995). These exceptions or defenses must be proven by clear and convincing evidence and should be narrowly construed. Id. See also, Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993).
At the instruction of the court, the respondent filed a statement of affirmative defenses dated February 12, 2007 wherein she indicated that she intended to present evidence of defenses under Article 12, that the children had become well settled or connected to their new environment, Article 13(a), that the petitioner consented to the children's retention in Connecticut, Article 13, that the children object to being returned and Article 13(b) that the children, if returned, would be exposed to grave harm. Moreover, the respondent intends to demonstrate that there has been no "wrongful removal" as defined in the Act.
The presentation of these defenses might very well involve the testimony of the minor children, ages 10 and 7. The appointment of a guardian ad litem would facilitate the presentation of such evidence and avoid the necessity of children of such tender years having to appear in court, seemingly testifying for one parent or against the other. This case presents the classic example of utilizing a guardian ad litem to interview the children, their parents, and their surroundings and to then testify in their place. While the inquiry in the instant matter is not what is in the best interest of the children, the benefits of utilizing a guardian ad litem in this matter are obvious. Moreover, a guardian ad litem in the dissolution case is already in place, and is known to the parties and to the children. Thus, the possibility of delay is minimized.
CONCLUSION
For the foregoing reasons, attorney Matthew Potter is appointed as guardian ad litem for the minor children.