Conn. Prob. Ct. R. P. 40

As amended through April 25, 2023

Rule 40 - Children's Matters: General Provisions

Section 40.1 When streamline notice procedure may be used in children's matter

See rule 8.6.

Section 40.2 Appointment of attorney and guardian ad litem for minor

(a) The court may appoint an attorney for a minor under C.G.S. section 45a-620.

(b) If the court determines that the minor is unable to express his or her wishes to the attorney, the court may appoint the attorney to serve as both attorney and guardian ad litem.

(c) If the court determines that the minor's wishes, if followed, could lead to substantial physical, financial or other harm to the minor, the court may appoint an individual as attorney for the minor and another individual as guardian ad litem for the minor.

(C.G.S. sections 45a-132, 45a-717(b) and 46b-172a(c); Probate Court Rules, rule 13.)

Section 40.3 Immediate temporary custody of a minor

(a) A petitioner seeking to remove a parent or other guardian under C.G.S. section 45a-613 or 45a-614 or to terminate parental rights under C.G.S. section 45a-715(a) may petition for immediate temporary custody of the minor. A parent may file a petition under this section.

(b) In subsections (c), (d) and (e), the phrase ''in the custody of the parent or other guardian,'' when used in C.G.S. section 45a-607(b), refers to the current physical care of the minor at the time a petition for immediate temporary custody is filed, not the legal rights of the parent or guardian regarding the custody or guardianship of the minor.

(c) Except as provided in subsection (e) or C.G.S. section 45a-607(b)(2), the court may not grant a petition for immediate temporary custody of the minor on an ex parte basis if the minor is in the custody of a parent or other guardian.

(d) If the minor is not in the custody of a parent or other guardian, the court may grant a petition for immediate temporary custody of the minor on an ex parte basis as provided in C.G.S. sections 45a-607(b)(1) through 45a-607(b)(3).

(e) If the minor is in the custody of a parent or guardian who is the petitioner, the court may grant a petition for immediate temporary custody of the minor on an ex parte basis as provided in C.G.S. sections 45a-607(b)(1) through 45a-607(b)(3).

(C.G.S. section 45a-604; Probate Court Rules, rule 69.)

Section 40.4 Order for immediate temporary custody without notice and hearing

(a) The court may act on a petition for immediate temporary custody under C.G.S. section 45a-607(b) without notice and hearing.

(b) If the court determines that it is necessary to meet with the petitioner before deciding a petition for immediate temporary custody on an ex parte basis, the court shall make an audio recording of the meeting. The recording shall be available to the parties. If the court grants immediate temporary custody and the temporary custody hearing required by C.G.S. section 45a-607(b)(3) is contested, the judge who met with the petitioner shall be disqualified from conducting the temporary custody hearing.

(c) In a proceeding under this section, the court may, in addition to the criminal background check required under section 40.15, obtain a search of the registry of protection orders to determine whether there have been any orders protecting or restraining any of the following individuals:

(1) a proposed temporary custodian;

(2) an individual living in the household of the proposed temporary custodian; or

(3) any other person if necessary to protect the interests of the minor.

(Probate Court Rules, rules 65 and 69.)

Section 40.5 Appointment of temporary custodian on consent

(a) If a parent or guardian of a minor consents to the grant of temporary custody in connection with a petition that names a proposed temporary custodian, the court shall not appoint another individual as custodian unless:

(1) the parent or guardian consents to the appointment of the other individual;

(2) the original petition alleges grounds for temporary custody other than consent of the parent or guardian, and the court makes the findings required under C.G.S. section 45a-607(d);

(3) a person authorized under C.G.S. section 45a-614 files a petition for immediate temporary custody, and the court makes the findings required under C.G.S. section 45a-607(b); or

(4) a person authorized under C.G.S. section 45a-614 files a new or amended petition alleging grounds for temporary custody, and the court, after notice and hearing in accordance with C.G.S. section 45a-607(c), makes the findings required under C.G.S. section 45a-607(d).

(b) If the court grants immediate temporary custody under subsection (a)(3), the court shall give notice and conduct a temporary custody hearing in accordance with C.G.S. section 45a-607(b)(3).

(C.G.S. section 45a-604; Probate Court Rules, rule 70.)

Section 40.6 Removal and appointment of guardian on consent

Ifa parent or guardian consents to removal as guardian in connection with a petition that names a proposed guardian, the court shall not appoint another individual as guardian unless:

(1) the parent or guardian consents to the appointment of the other individual as guardian;

(2) the original petition alleges grounds for removal other than consent of the parent or guardian, and the court makes the findings required under C.G.S. section 45a-610; or

(3) a person authorized under C.G.S. section 45a-614 files a new or amended petition alleging grounds for removal, and the court, after notice and hearing in accordance with C.G.S. section 45a-609, makes the findings required under C.G.S. section 45a-610.

(C.G.S. sections 45a-604 and 45a-617;

Probate Court Rules, rule 70.)

Section 40.6a Notice of hearing on competing removal petition

If the court has previously given notice of hearing on a petition to remove a parent or other guardian, the court shall give notice of hearing on any subsequent competing removal petition by regular mail to each party and attorney of record and each other person listed in C.G.S. section 45a-609(b). Delivery of the notice of the competing removal petition by personal service on the respondent is not required.

(C.G.S. sections 45a-613 and 45a-614; Probate Court Rules, section 6.1(a)(3) and rule 8.)

Section 40.7 Reinstatement as guardian

Except as provided under C.G.S. section 45a-611, a parent or guardian who was removed as guardian of a minor may file a petition seeking reinstatement as guardian. The petitioner shall have the burden of proving by a preponderance of the evidence that the factors that resulted in removal have been resolved satisfactorily. If the court finds that the parent or former guardian has met the burden of proof, there is a presumption that reinstatement is in the best interests of the minor. To rebut this presumption, a party opposing reinstatement of guardianship must present clear and convincing evidence that reinstatement is not in the best interests of the minor.

(C.G.S. sections 45a-604 and 45a-616a; In Re Zakai, 336 Conn. 272, 255 A.3d 767 (2020).)

Section 40.8 Temporary guardianship

(a) A parent or guardian may petition to appoint a temporary guardian for a minor without another parent or guardian joining as copetitioner. The court shall give notice to each party, including a nonpetitioning parent or guardian, and each attorney of record.

(b) The appointing parent or guardian may terminate a temporary guardianship under C.G.S. section 45a-622 by notifying the temporary guardian and filing written notice of the termination with the Probate Court. On receipt of the written notice, the court shall notify each party and attorney of record that the guardianship is terminated. The court is not required to give notice if the temporary guardianship expires on the date specified in the order establishing the guardianship.

(C.G.S. section 45a-604.)

Section 40.9 Public notice in termination proceeding when name or location of parent unknown

(a) A petitioner seeking to terminate the parental rights of a parent shall make diligent effort to determine the name and current address of the parent. If the petitioner cannot determine the name or address, the petition shall include a statement signed under penalty of false statement indicating:

(1) that the petitioner cannot determine the name or address of the parent;

(2) the last known address, if any, of the parent;

(3) the search efforts that the petitioner has made; and

(4) other relevant information that might assist in determining the name or address of the parent.

(b) If the name or address of a parent is unknown, the court shall publish notice of the hearing on the petition to terminate parental rights in a newspaper having general circulation where the parent was last known to reside or, if no such address is known, in the probate district in which the petition was filed. The notice shall include the full name of any known parent, the first name and first initial of the last name of the minor and the minor's date and place of birth.

(C.G.S. sections 45a-707, 45a-715(c) and 45a-716(c).)

Section 40.10 Pre-adoption hearing

The court may conduct a pre-adoption hearing to address any issues associated with the proposed adoption. The notice of hearing shall indicate that the adoption will not be finalized at the pre-adoption hearing.

(C.G.S. section 45a-727(c).)

Section 40.11 Appointment of out-ofstate child-placing agency as statutory parent to give child in adoption

An out-of-state child-placing agency may petition to be appointed as statutory parent of a minor whom the agency has placed for adoption in this state under the Interstate Compact on the Placement of Children. The court may appoint the agency as statutory parent if the court finds that:

(1) the minor is free for adoption;

(2) no statutory parent has been appointed for the minor in this state; and

(3) the agency is licensed or approved by the Department of Children and Families.

(C.G.S. sections 17a-175, 45a-707, 45a-718, 45a-725 and 45a-727.)

Section 40.12 Adoption by same sex married couple

(a) Even if both spouses of a same sex married couple are considered parents of a minor under the law of this state, a spouse may petition under C.G.S. section 45a-724(a)(2) for a stepparent adoption of the minor by the other spouse or under C.G.S. section 45a-724(a)(3) for a co-parent adoption of the minor by the other spouse.

(b) In a proceeding under subsection (a), the court may waive notice to the commissioner of children and families and shall waive, unless cause is shown, all requirements for an investigation and report by the Department of Children and Families or by a child-placing agency.

(C.G.S. sections 45a-707 and 45a-733.)

Section 40.13 Notice in adult adoption proceeding

In a proceeding to approve an adult adoption, the court shall give notice to each party and attorney of record. The court may give notice to other persons interested in the welfare of the parties, including relatives and friends of the proposed adoptive parent and adopted person.

(C.G.S. section 45a-734; Probate Court Rules, rule 8.)

Section 40.14 In-court review for possible modification of order

On motion of a party or on the court's own motion, the court may conduct an in-court review to consider possible modification of an order of the court regarding custody, guardianship or visitation. The notice of hearing for the in-court review shall specify the order that is the subject of review.

Section 40.15 Criminal background check

(a) Unless an immediate appointment is necessary to ensure the safety of a minor, the court shall obtain a criminal background check of a proposed temporary custodian, guardian of the person, temporary guardian or coguardian of the person before issuing a decree appointing the fiduciary.

(b) If the requirement of a criminal background check is waived at the time of appointment under subsection (a), the court shall obtain a criminal background check as soon as reasonably possible after issuing the decree making the appointment.

(c) At any time during a proceeding concerning a minor, the court may obtain a criminal background check of:

(1) an individual providing care to the minor;

(2) an individual living in the household in which the minor resides or will reside; or

(3) any other person if necessary to protect the interests of the minor.

(C.G.S. section 45a-617.)

Section 40.16 Transfer of contested removal or termination petition to Superior Court

(a) A party may file a motion in the Probate Court to transfer a contested petition to remove a parent or other guardian or terminate parental rights to the Superior Court for Juvenile Matters. Unless the Probate Court grants an extension of time to file, the party shall file the motion at least three days before the first hearing on the petition for removal or termination.

(b) The party moving for transfer under subsection (a) shall send a copy of the motion to each party and attorney of record and shall certify to the court that the copy has been sent.

(c) If the motion to transfer is filed by a party other than the party who petitioned for removal or termination, the court shall, without notice and hearing, grant the transfer not later than five days after receipt of the motion.

(d) If the motion to transfer is filed by the party who petitioned for removal or termination, the court shall hear and decide the motion before conducting the hearing on removal or termination.

(e) On the court's own motion and without notice and hearing, the court may transfer a petition for removal or termination to the Superior Court.

(C.G.S. sections 45a-623, 45a-715(g) and 46b-150i.)

Section 40.17 Appointment of commissioner of children and families as temporary custodian or guardian

If the court appoints the commissioner of children and families as temporary custodian or guardian of the person of a minor, the court shall make written findings to indicate whether the commissioner made reasonable efforts to maintain the minor in the home and whether continuation in the home is contrary to the best interests of the minor.

(C.G.S. sections 45a-607 and 45a-610.)

Section 40.18 Single petition for special immigrant juvenile findings and related children's matter

(a) If a petitioner simultaneously files a petition for special immigrant juvenile findings with any one of the following petitions, the court may treat the petitions as a single petition subject to one filing fee:

(1) removal of a guardian;

(2) appointment of a guardian or coguardian;

(3) termination of parental rights; or

(4) approval of an adoption.

(b) The court may charge a separate filing fee for a petition under subsection (a) if the court determines that it is necessary to hear the petitions separately.

Section 40.19 Single petition to terminate parental rights and approve adoption

(a) If a petitioner simultaneously files a petition to terminate parental rights and a petition to approve an adoption of the child under C.G.S. section 45a-724(b), the court may treat the petitions as a single petition subject to one filing fee.

(b) The court may charge a separate filing fee for a petition under subsection (a) if the court determines that it is necessary to hear the petitions separately.

Section 40.19a Single petition for children of same parents

(a) If a petitioner simultaneously files petitions seeking the same relief for two or more minors having the same parents in any of the following types of matters, the court may treat the petitions as a single petition subject to one filing fee:

(1) temporary custody;

(2) removal of a guardian;

(3) appointment of a guardian or coguardian;

(4) appointment of a temporary guardian;

(5) appointment of a permanent guardian;

(6) reinstatement of a parent or guardian;

(7) termination of parental rights;

(8) appointment of a statutory parent;

(9) approval of an adoption;

(10) emancipation; or

(11) paternity.

(b) The court may charge a separate filing fee for a petition under subsection (a) if the court determines that it is necessary to hear the petitions separately.

Section 40.20 Court to advise respondent parent of rights in proceeding to terminate parental rights or appoint permanent guardian

(a) In a proceeding to terminate parental rights or appoint a permanent guardian of a minor, the court shall canvass a respondent parent in accordance with subsection (b):

(1) on the first occasion, if any, that the parent attends a hearing; and

(2) at the beginning of the hearing on the merits, if the parent is present.

(b) In conducting a canvass under this section, the court shall advise the parent:

(1) of the nature of the proceeding and the legal effect of a decree terminating parental rights or appointing a permanent guardian;

(2) of the parent's right to:

(A) defend against the allegations in the petition;

(B) confront and cross-examine witnesses;

(C) object to the admission of exhibits;

(D) present evidence opposing the allegations;

(E) be represented by an attorney;

(F) testify on the parent's own behalf;

(3) that, if the parent does not testify, the court may conclude that the testimony would not have been helpful to the parent's case; and

(4) that, if the parent does not testify, present witnesses on the parent's behalf, object to exhibits or cross-examine witnesses, the court will decide the matter based on the other evidence presented at the hearing.

(C.G.S. sections 45a-616a and 45a-715; In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015).)

Section 40.21 Duties of family specialist

The court may assign a family specialist to perform any of the following duties:

(1) conduct conferences with the parties and their attorneys, representatives of the Department of Children and Families and social service providers;

(2) facilitate development of the family's plan for the care of the minor;

(3) facilitate development of a visitation plan;

(4) coordinate with the Department of Children and Families to facilitate a thorough review of the matter;

(5) assess whether the family's plan for the care of the minor is in the minor's best interests;

(6) assist the family in engaging community services;

(7) testify at hearings; and

(8) conduct follow-up regarding orders of the court.

(C.G.S. section 45a-8d.)

Section 40.22 Files and reports of family specialist

(a) A family specialist shall maintain all notes, correspondence, reports and other materials gathered or created in the scope of the family specialist's duties in a file separate from the court file. Except as provided in subsection (c), the court shall not review materials in the file unless admitted into evidence.

(b) Except as provided in C.G.S. section 45a-754, all materials in the family specialist's file in a proceeding for removal of parent as guardian, termination of parental rights, appointment of statutory parent, adoption, temporary guardianship or emancipation of a minor are confidential and not open to public inspection and shall not be disclosed to any person.

(c) Before any scheduled hearing on a matter, the family specialist shall file with the court a copy of each report prepared by the family specialist.

(C.G.S. section 45a-8d; Probate Court Rules, rule 16.)

Section 40.23 Notice in proceedings to determine parentage after death

(a) Except as otherwise provided under C.G.S. section 46b-172a, the court shall send notice of hearing on a petition seeking the determination of parentage of an alleged genetic parent after the death of a child to:

(1) the petitioner;

(2) the birth parent;

(3) the fiduciary of the estate of the deceased child, if any;

(4) each beneficiary under the will of the deceased child or heir of the deceased child;

(5) each attorney of record;

(6) each guardian ad litem, if any;

(7) the Attorney General; and

(8) other persons as the court determines.

(b) Except as otherwise provided under C.G.S. section 46b-172a, the court shall send notice of hearing on a petition seeking the determination of parentage of a deceased alleged genetic parent of a child after the death of an alleged genetic parent to:

(1) the petitioner;

(2) the child;

(3) the fiduciary of the estate of the deceased alleged genetic parent, if any;

(4) each beneficiary under the will of the deceased alleged genetic parent or heir of the deceased alleged genetic parent;

(5) each attorney of record;

(6) each guardian ad litem, if any; and

(7) other persons as the court determines.

(Probate Court Rules, section 7.2 and rule 8.)

HISTORY: Rule 40 adopted effective July 1, 2013. Sections 40.3, 40.7, 40.9, 40.13 and 40.16 amended and section 40.6 a adopted effective July 1, 2015. Sections 40.4, 40.5, 40.6, 40.12, 40.14 and 40.15 amended and sections 40.18, 40.19 and 40.20 adopted effective July 1, 2017. Sections 40.3 and 40.8 amended and sections 40.19 a, 40.21 and 40.22 adopted effective January 1, 2020. Sections 40.7 and 40.8 amended and section 40.23 adopted effective July 1, 2022.

Conn. Prob. Ct. R. P. 40

Rule 40 adopted effective 7/1/2013. Sections 40.3, 40.7, 40.9, 40.13 and 40.16 amended and section 40.6 a adopted effective 7/1/2015. Sections 40.4, 40.5, 40.6, 40.12, 40.14 and 40.15 amended and sections 40.18, 40.19 and 40.20 adopted effective 7/1/2017. Sections 40.3 and 40.8 amended and sections 40.19 a, 40.21 and 40.22 adopted effective 1/1/2020; Sections 40.7 and 40.8 amended and section 40.23 adopted effective July 1, 2022.