No. TTD FA 06 4004577
August 13, 2008
MEMORANDUM OF DECISION RE MOTION TO MODIFY VISITATION (#126)
I. FACTUAL BACKGROUND
The parties were divorced pursuant to an agreement dated October 12, 2006 wherein they were awarded joint legal custody of their minor children, Zoila born January 29, 2004 and Isabella born November 7, 2005. Primary residence was to be with the mother and the father was given reasonable rights of visitation which included alternate weekends and visits during the week.
The plaintiff mother filed a motion to modify access on November 28, 2007 and a Guardian ad litem for the children was appointed. The mother's concern of the father's parenting was that he had an abnormal preoccupation with the children's feminine hygiene. She proposed that his visitation be limited to public places and that overnight visits be eliminated entirely. The father denied any inappropriate activities with his children, willingly followed interim orders which included counseling and the setting of appropriate boundaries.
The parties, together with the Guardian ad litem appeared on August 7, 2008. The mother was represented by counsel and the father represented himself. The court heard testimony from the parties, the maternal grandmother and the Guardian ad litem.
II. FINDINGS OF FACT
The court finds the following facts as proven and true by a fair preponderance of the evidence:
1. The parties are the divorced parents of two female children, aged 4 1/2 and 2 1/2.
2. The parties were divorced pursuant to an agreement dated October 12, 2006. They have very different cultural backgrounds, she having been raised and always resided in Connecticut and he having been born and raised in Peru.
3. The mother and the maternal grandmother have legitimate and understandable concerns about the father's parenting style and his apparent preoccupation with the children's feminine hygiene.
4. The mother and the maternal grandmother testified that the children are wild and difficult following their return from their father's care.
5. The mother and maternal grandmother testified that the children have exhibited a preoccupation with their female anatomy following their return from their father's care.
6. The Guardian ad litem, whose reputation and credentials are of the highest caliber testified credibly and convincingly that the father does not pose a threat of harm to the children and that his relationship with them is nonsexual. She also testified credibly that the father is willing to modify any of his behaviors if it is in the children's best interest. She based these opinions after an exhaustive examination of the issues and interviews with the parties and with counselors and therapists, some of whom were involved with this family and some who were simply experts upon whose opinions she relied.
7. The father is aware that there are many eyes on him, carefully watching his interaction with the children and he is aware that any inappropriate behaviors with the children will likely result in his access and visitation being limited or terminated.
8. The father is willing to continue counseling and to abide by any limitations which the court imposes on his interaction with the children.
9. The court finds that the father is a loving and devoted parent and that his relationship with his children is nonsexual and not threatening.
10. The mother is a music teacher at a middle school. The father is a UPS worker who has changed his schedule and foregone promotions so as to be more available for his children.
III. LEGAL DISCUSSION
CGS § 46b-56 states:
(b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. Such orders may include, but shall not be limited to: (1) Approval of a parental responsibility plan agreed to by the parents pursuant to section 46b-56a; (2) the award of joint parental responsibility of a minor child to both parents, which shall include (A) provisions for residential arrangements with each parent in accordance with the needs of the child and the parents, and (B) provisions for consultation between the parents and for the making of major decisions regarding the child's health, education and religious upbringing; (3) the award of sole custody to one parent with appropriate parenting time for the non-custodial parent where sole custody is in the best interests of the child; or (4) any other custody arrangements as the court may determine to be in the best interests of the child.
(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child's parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child's adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household; (11) the stability of the child's existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child's cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers.
"Under Connecticut law, the trial court's discretion as to custody and visitation is not limited to [adopting the specific custodial arrangement sought by one of the parties]. It has long been established that the court has an independent duty to inquire into custody arrangements even when the parties are in agreement . . . Further, it has been recognized that in contested custody proceedings, the interests of one or both of the parents may be adverse to the best interests of the child. (Citations omitted)." Feldman v. Feldman, 37 Conn.App. 397, 403-04 (1995).
In any custody order, the court is bound by what is in the best interests of the child. Simons v. Simons, 172 Conn. 341 (1977), Krasnow v. Krasnow, 140 Conn. 254, 260 (1953), Connecticut General Statutes section 46b-56. The rights, wishes and desires of the parents are also a factor to be taken into account. Such considerations, however, must be subordinated to the best interest of the child. Ridgeway v. Ridgeway, CT Page 13538 180 Conn. 533, 541 (1980).
a). Custody Legal custody of the minor children, ZOILA and ISABELLA ARTEAGA, born January 29, 2004 and November 7, 2005, shall remain joint, and they shall continue to make their primary residence with mother.
1. Parenting Schedule.
The children shall be parented pursuant to the following schedule:
During the School Year:
Until Zoila begins a full-day school program, Father to pick up the children at Mother's home (Isabella) and at Stafford preschool (Zoila, or at Mother's home if there is no school) at 10:55 a.m., and parent them, on the Monday following Mother's parenting weekend, until 4:00 p.m.
Alternate weekends from Saturday at 10:00 a.m. through Sunday at 4:30 p.m. The children shall be parented by mother at all other times.
Commencing Summer of 2009: During the Summer:
Father to parent the children on alternate weekends from Saturday at 10:00 a.m. through Monday at 4:00 p.m.
In the alternate week, he shall parent the children Mondays from 10:00 a.m. to 4:00 p.m. The children shall be parented by mother at all other times.
2. Vacations and Holidays Summers:
Commencing in 2009, each parent shall have the option of two (2) non-consecutive weeks (defined as Friday to Friday and to be inclusive of that parent's regularly occurring weekend) of vacation with children each summer.
The summer vacation schedule shall be exchanged by April 15th to allow for planning of camps and the like once the children are older.
Holidays:ODD EVEN NEW YEARS DAY Mother Father MARTIN LUTHER KING DAY Father Mother MEMORIAL DAY Mother Father HALLOWEEN Father Mother EASTER Mother Father LABOR DAY Father Mother and alternating annually thereafter.
Except as otherwise provided, Holiday access shall commence at 10:00 a.m., and end at 6:00 p.m.; except that Halloween access shall commence at 4:00 p.m. and end at 7:00 p.m. Except as provided herein, the prior orders contained in the original decree regarding holidays shall continue.
CHRISTMAS: The children will spend Christmas Eve Day at 10 am until Christmas day 12:00 noon with Mother in odd years. Father is to parent the children from noon on December 25th to noon December 26th in odd years. In even years, this schedule shall reverse.
THANKSGIVING: The children will spend Thanksgiving Day commencing at 10:00 a.m. until 10 a.m. the next morning with the Father in odd years, and with the Mother in even years.
Mother shall parent children each Mother's Day and, Father shall parent children each Father's Day.
Except as provided herein, all transitions shall be at the paternal grandmother's home without exception.
If the grandmother is at home, the mother and maternal grandmother shall transition the children so that the parents do not have contact. Otherwise, the Father shall send the children out the door and mother shall receive the children and transition them to her vehicle. Father to return inside the house once the children are in the mother's care outside the door. There shall be only minimal cordial verbal exchanges at these transitions.
If the grandmother is not going to be present at a transition, then the father shall give Mother one hour advance notice of that.
Both parties shall insure the children are present at the pick up times, and are ready to transition at the appointed times. If either parent is going to be late for an unavoidable reason, such as an accident etc, they shall contact the other parent by telephone.
b. Other Parenting Matters
1. The parents are to continue with the Families in Transition Program at the Children's Law Center, with the goal of diminishing their present conflicted and difficult communication style, acquiring skills for improving their communication, having a facilitated forum for addressing areas of concern and conflict. The sessions shall continue until cessation is recommended by the Law Center, or further Court Order.
1. The parents shall communicate not less than weekly by email in the format of the parenting communication outline recommended by the PEACE Program and the Families in Transition Program.
2. Father shall continue in parenting education/coaching with Dr. Bruce Freedman, focused on education regarding:
1). the developmental stages of children and their changing needs, and
2). development of a set of appropriate rules regarding care and attention to the children's hygiene, and the potential psychological impact of over focusing on those issues,
3). improving communication, and reducing anger mistrust and conflict around those communications.
This shall continue until Dr. Freedman recommends the therapeutic intervention end, or further Court Order.
3. The children shall have nap time, or quiet time, in each home around 1:00 p.m. each day for approximately an hour, and shall be put to bed each night at approximately 7:30 p.m.
4. Neither parent shall disparage the other, nor the other's extended family, or significant others in the children's lives, nor shall they allow others to do so.
5. If the children are ill, they shall remain with Mother, and father shall be entitled to makeup parenting time, at a time of his choosing, when they are no longer ill.
6. The children will continue to be seen by Dr. Kevin Conter. The parents to continue to work with Dr. Conter regarding their areas of concern with the children.
7. Except as provided herein, Father shall pick up the children at the start of his parenting time, and Mother shall pick the children up from Father at the start of her parenting time.
8. Both parties shall strictly follow the recommendations of the children's pediatrician regarding their overall health. The prior restrictions contained in the May 13, 2008, Orders, Paragraph 3, regarding the Father bathing the children shall be modified so that he may bathe them when he is parenting them for more than one day. The prohibition on inspection remains unchanged.