No. FA 00-04400405S
June 9, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S POST-JUDGMENT MOTION FOR MODIFICATION (#121)
The defendant father has filed a post-judgment motion to modify the parenting orders so as to give him primary physical custody of the parties' two minor children, Alicia, born on March 3, 2001, and James, Jr., born on August 27, 1999. The parties appeared for hearing on this motion, the plaintiff pro se, and the defendant with counsel, on May 26, 2006. Both parties testified at the hearing, as did family relations counselor Andrew Spurrier, who conducted a court-ordered evaluation completed November 22, 2005, and prepared a written report of his findings and conclusions, the court-appointed guardian ad litem, attorney Paul Garlinghouse, the defendant's new wife, Rachel Smith, and the plaintiff's mother, Maria Raffone. Both parties also introduced various exhibits into evidence.
The court has heard and carefully weighed all of the facts and evidence presented according to the standards required by law. The court has scrutinized and evaluated the credibility and demeanor of the witnesses. The court has carefully considered the parties' arguments and their proposed orders. The matter is now ready for decision.
The plaintiff became pregnant with the parties' older child when she was seventeen years old, and she brought an action in July 2000 for custody and support orders. A month later, the parties agreed to an order of joint legal custody, primary residence with the mother, which the court, Jones, J., entered on August 3. They started living together shortly afterward and filed a stipulation to that effect with the court on September 11, 2000. When they were evicted from Wallingford public housing for nonpayment of rent in 2004 and then separated, they agreed that the mother could relocate with the children to Michigan for the next year. She returned to Connecticut in just two months, however, and on November 23, 2004, the court ordered, by agreement of the parties, joint legal custody, primary residence to the plaintiff, who was then living with her mother and stepfather. After the plaintiff had an argument with her stepfather a few weeks later that resulted in her having to leave that residence, she left the children with the defendant. She asked him to care for the children until she found a place to live. The defendant then filed the pending motion for modification on March 24, 2005.
One weekend shortly after that, he agreed that the children could visit with their maternal grandmother, who returned them to the plaintiff, who by then had found new housing with an aunt living in Wallingford. On April 21, 2005, the court, Munro, J., accepted an agreement of the parties that the children would reside with the mother pending a final hearing and ordered a family relations custody study. When the plaintiff then had a dispute with her aunt that resulted in her having to leave that home also, she again gave the children back to the father. The court then entered an order on June 29, 2005, by agreement of the parties, that the children would live with the father "on a temporary basis until the next court date." Three weeks later, the court ordered physical custody pendente lite with the father.
The evidence showed a tumultuous relationship between the parties for most of the past. They both used illegal drugs in the early part of their relationship. They have constantly argued and disagreed with each other on children's issues. Both the husband's wife and the maternal grandmother described a lengthy history of hostility between the parties.
It appears that the father was the first one to begin to settle down into a more stable and mature lifestyle. He has married another woman, Rachel Smith, and together they have established a stable, loving, and consistent home environment for the children. His new wife has one child of her own, a six-year-old daughter, and Mr. Smith and his wife also share legal guardianship of her three-year-old nephew. The four children get along well. The Smiths have placed the children and themselves into family therapy for "home and co-parenting issues," a decision that both the family relations counselor and this court find commendable. (Family relations report, p. 4.) The family lives in a rented, well-kept three-bedroom house in Stratford, Connecticut. The evidence also established that Mr. Smith's wife has had primary responsibilities of caring for all four children. School officials reported, for example, that Ms. Raffone and Mrs. Smith often attend school conferences for the children, but that Mr. Smith did so only once. When the family relations counselor's written report found "some support" for Ms. Raffone's claim that he was only "minimally involved" in caring for his children, Mr. Smith changed his work schedule so that he works nights. As a result, he has been available to care for the children in the mornings and after school.
It has taken the mother longer to find a stable living situation. But after bouncing back and forth between Connecticut and Michigan in 2004, twice losing housing with relatives, and twice losing physical custody of her children, she too appears now to have stabilized her life. For the last year she has lived with her fiance in a two-bedroom apartment on Blake Street near the Westville section of New Haven. This relationship appears sound and stable. Although her fiance shared his apartment with his mother when the plaintiff first began living with him, the mother has now moved to another apartment in the same building. The plaintiff has used funds from her own mother to buy furniture and fix up the second bedroom to provide suitable sleeping quarters for her two children for the immediate future — although at some point it will probably become appropriate for the two children to have separate bedrooms. For most of the last year, the plaintiff has been supported by her boyfriend, with help from her mother, but just before the trial of this case she found full-time steady employment. Her Blake Street apartment is in an urban area where random street violence may occur more often than in the Smith's Stratford neighborhood, but Ms. Raffone showed herself at trial to be aware of both the benefits and risks of urban living and fully able to care for and supervise her children properly if they lived there.
Much was made at trial about the necessity of the plaintiff working and contributing financially to her own support. That is probably true in the present circumstances. But this court would not want the parties to believe that it had concluded that under no circumstances could the plaintiff choose to be a stay-at-home mother and yet retain physical custody. Such a determination would depend on the plaintiff's overall stability and financial security, as well as other factors.
The parties' six-year-old son, James, Jr., has had academic problems in school. His kindergarten year was disrupted by the family's eviction from Wallingford housing, the mother's relocation to Michigan, her moving back to Connecticut two months later, and her being ejected from her mother's home, living for a while with his father, then living another short period with his mother in her aunt's home, and then back with his father again. His teachers described him as happy to attend school and eager to learn, but differed in terms of their assessments of his academic abilities. One teacher described James as "having a low academic level," while another called him "bright." It was the general consensus of the teachers, however, that he would have benefitted from repeating kindergarten, which did not happen, and that he should now repeat first grade. Problems with bed-wetting and occasional "opposititional behavior" suggest that he may have emotional problems as well.
Their younger child, Alicia, who is five years old, has been reported to have displayed "sexually precocious behavior." The father reported to a pediatrician that the mother's boy friend had put some "magic medicine" on her genitals. The doctor reported that complaint to the Department of Children and Families (DCF). Andrew Spurrier, the family relations counselor also made a report to DCF when one of the father's personal references told Mr. Spurrier that Alicia had allegedly told one of Mrs. Smith's other children that she had witnessed Ms. Raffone having oral sex with her boy friend. A DCF case worker later told the family relations counselor that "there did not appear to be sufficient supporting information that Alicia had been sexually abused or either directly or indirectly exposed to sexual situations." The family relations counselor wrote in his report that "this counselor is unable to conclude whether Alicia has been sexually abused or exposed to sexual situations by her mother." Since none of the daughter's school contacts reported any concern in this area, the family relations report concluded that "it is a behavioral reaction to her home situation."
The father made a strong case for maintaining physical custody of the minor children. His wife and he have provided them with a loving, stable, and consistent family environment in the year that James and Alicia have lived with them. But both the family relations counselor and the guardian ad litem testified that the mother has been the primary caregiver to these children for most of their lives and that it was in their best interest, if she had stabilized her life, for her to have primary residence. Although this court is not bound by the recommendations of either a family relations counselor or a guardian ad litem, their testimony and recommendations here were credible and persuasive.
The written recommendations contained in the report of the family relations counselor stated that "Mr. Smith [should] maintain primary physical custody of the children," but also specifically stated that "as soon as she can stabilize her living situation further to allow for the children to reside with her in one location for a period of time longer than several months, primary residence with her would most likely be the appropriate recommendation." In his testimony at trial, he repeated the same recommendations. His report made clear that the reason he wrote that he was recommending for the father to retain physical custody was because, at the time the report was written, seven months before the hearing before this court, the family relations officer could not yet conclude that the mother's housing situation had stabilized. The court thus infers a conditional recommendation that the mother be granted physical custody under certain conditions, which the court finds to have been proven.
Both parents have matured a lot since their relationship began. The evidence showed that they have begun to put the history of conflict and hostility behind them, are attending co-parenting classes, and learning to work together cooperatively on the children's behalf. Both parents have suitable homes for their children. Both parents are loving and could meet the needs of their children for a stable and nurturing home. The family relations counselor found that each parent acts appropriately with the children. On the balance, after considering all the evidence, the mother's history as the children's primary care giver for most of their lives and her present ability to offer them a stable home environment, the court finds that it is in their best interest to order primary physical custody with the mother. It would not be in their best interest, however, to transfer physical custody until the children complete the current school year; and the court therefore orders that the transfer of custody shall become effective on July 15, 2006.
Although the mother's fiance is on probation and had drug problems in the past, nothing in the evidence suggests that he is anything other than a loving and supportive person to the minor children. His criminal conviction history does not suggest any risk to the minor children. Because he is on probation, however, the court agrees with the guardian ad litem that it is in the children's best interest to monitor his compliance with the terms of his probation, and orders the mother to obtain and provide to the guardian ad litem a release signed by the fiance authorizing his probation officer to disclose to the guardian ad litem any information requested by the GAL.
The GAL has recommended that the court condition custody in the mother on her obtaining a driver's license. Although the court agrees that it would be a good idea if she could drive, the court does not find it to be in the best interest of the children to condition her obtaining custody on such an order. She will, however, be responsible for half of the transportation of the minor children.
For years these parents did not get along, yelling and screaming at each other in front of their children. Their children appear to have suffered emotionally and behaviorally from the long period of conflict between their parents and the lack of stability in their living environment. They should remain in counseling, as should the parents.
Based on the evidence offered and the financial affidavits filed by each parties, the court finds that until the transfer of physical custody on July 15, the presumptive support is for Ms. Raffone to pay child support in the amount of $114 per week plus 29 per cent of qualifying child care and unreimbursed medical expenses. After the transfer of physical custody on July 15, the presumptive support is for Mr. Smith to pay child support in the amount of $146 per week plus 37 per cent of qualifying child care and unreimbursed medical expenses.
After considering all of the evidence and information presented in light of the statutory criteria regarding best interest of a minor child and the law regarding orders of child support, together with applicable case law, the court hereby enters the following orders:
1. The parties will share joint legal custody of the minor children, who will live with the father until July 15, and after that the mother will have primary physical custody.
2. The father will have parenting time every other weekend from Friday after school to Sunday evening at 6:00 p.m. In addition, he shall have parenting time at least one weekday each week. The clerk is ordered to schedule a hearing for additional orders on parenting time.
3. The mother shall provide to the guardian ad litem a release signed by her fiance authorizing his probation officer to disclose to the GAL any information sought by the GAL.
4. The parties will share equally all transportation of the minor children between the parents.
5. Until July 15, the mother will pay child support of $114 per week plus 29 per cent of qualifying child care and unreimbursed medical expenses. After that the father will pay child support in the amount of $146 per week plus 37 per cent of qualifying child care and unreimbursed medical expenses. Each parent shall place the minor children on health insurance available at a reasonable cost through that parent's employer. If such is not available to either parent, they shall cooperate to place the children on the HUSKY program or its equivalent. The provisions of § 46b-84(e) are hereby incorporated by reference.
6. The children shall remain in therapy and the parents shall remain in co-parenting counseling as long as recommended by the respective counselors.