2009 Ct. Sup. 11882
No. FA 99 0172138 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
July 10, 2009
MEMORANDUM OF DECISION RE MOTIONS 178. THE DEFENDANT’S MOTION FOR ORDER DATED APRIL 8, 2008 AND THE DEFENDANT’S MOTION FOR MODIFICATION, #184 DATED JULY 28, 2008.
MARY-LOUISE SCHOFIELD, Superior Court Judge.
Facts
The marriage of the parties was dissolved on the grounds of irretrievable breakdown on August 3, 2001 (Harrigan, J.). Pursuant to a Separation Agreement of same date, joint legal custody of the two minor children, adopted issue of the marriage, namely Christian Blanche, date of birth, May 9, 1990 and Gabriel Blanche, date of birth, May 4, 1995, was awarded to the parties’ primary residence with the plaintiff wife. (Separation Agreement #137, p. 3.) The wife shall have sole physical custody of the minor children. Pursuant to the Custody and Visitation Agreement dated August 3, 2001 and incorporated by reference in the judgment, paragraph 2, the wife “shall be responsible for and shall make all decisions concerning the daily routine and living arrangements of the minor children, including the day-to-day responsibility for the minor children’s care, education, guidance and well-being. When the minor children are with the husband, he shall have the day-to-day responsibility for the minor children’s care, education, guidance and well-being. (Custody and Visitation Agreement, dated August 3, 2001 #137, ¶ 2, 3).
Shortly after the dissolution, various tensions arose concerning the children. For economic survival, the plaintiff wife moved to Fairfield, Connecticut in 1999, at first renting a condominium for herself and the two boys, and then a rental of a small Cape Cod type house on Fairlawn Avenue in Fairfield, Connecticut. The older son, Christian, had many difficulties in school relating to his diabetes, hearing deficit and learning disabilities. As he entered his teenage years, his difficulties in school as well as at home increased. As a consequence, in 2007 Christian relocated to Greenwich to live with his father and attend CT Page 11883 school in Greenwich. Christian’s difficulties persist to this day, although at the time of the hearing he was scheduled to graduate from high school. There was no testimony elicited concerning Christian’s future educational or vocational plans. Christian is now over the age of 18.
The minor child Gabriel, was thirteen at the time of the move to Lebanon, New Hampshire, and in the eighth grade. While in Connecticut Gabriel was in special education. He was doing well academically and playing baseball. There is no doubt that the boys share a special bond and want to be together. The court therefore must consider what is in the best interests of Gabriel. There is however, a five-year age difference which will significantly increase developmentally and emotionally in the next few years until leveling off. The court therefore must consider what is in the best interests of Gabriel.
The court history indicates that the parties have engaged in an intense custody battle. Three evaluations and recommendations have been provided by family relations, resulting in the recommendation that Mrs. Blanche have sole physical custody of the children with full responsibility for all routine decisions concerning the children’s care, including education. Mr. Blanche was repeatedly told to stop disparaging Mrs. Blanche and undermining her authority. The testimony establishes that Mrs. Blanche has provided the more stable environment. She has, financially supported the family throughout the marriage. Mr. Blanche despite a superior education, has been underemployed or unemployed during the marriage and is currently unemployed. He lives in his mother’s condominium in Greenwich and receives a modest monthly allowance of $2,500 from her estate. There is no guarantee that he will be able to continue living there indefinitely. He has no job prospects. He was last employed as a limo driver earning $10,000 to $15,000 a year. His intentions may be good and noble, but totally unrealistic in terms of being able to provide for his son.
The court must now apply a two-fold analysis to determine whether the relocation is in the best interest of the child. Conn. Gen. Stat. § 466-56d(a) provides:
Relocation of parent with minor child. Burden of proof. Factors considered by court. (a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating CT Page 11884 parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.
Mrs. Blanche testified that she could not afford to live in Fairfield County. She researched various locations, including areas outside of New England where she had family. She decided to focus in New England to allow the father affordable visitation by car. She had spent summers in New Hampshire, approximately 3 1/2 hours by car from Greenwich. In or about Lebanon, New Hampshire she found a home fully furnished for which she could qualify for a mortgage. New Hampshire had no state income tax, no sales tax. Her monthly expenses of $1,606 include mortgage, taxes and homeowner’s insurance. She investigated the school and recreational activities for Gabriel. While decidedly different from Greenwich, Mrs. Blanche determined that the community would provide a wholesome and stable environment for Gabriel. The court finds that Mrs. Blanche has proven by a preponderance of the evidence the first three criteria of Conn. Gen. Stat. § 46b-56d(a). In making such finding, the court has considered the testimony and evidence in relation to Conn. Gen. Stat. §46b-56(b).
The court acknowledges that Gabriel was resistant at first to the relocation as evidenced by the testimony of the GAL, Attorney Eric Postmantier who has been involved in this case since 2004. The court also acknowledges that the physical facilities of the school in New Hampshire are lacking. Despite such, the court credits the testimony of the GAL that Gabriel has now adjusted to the school and his environment. Mr. Burnham, the guidance counselor in New Hampshire, has taken Gabriel “under his wing,” wiping out the poor grades of the first semester, allowing a “fresh start.” According to Mr. Postmantier, Gabriel is making “good friends and good choices.”
The court orders the following:
1. Gabriel is to remain in New Hampshire, primary physical and legal custody with his mother. The mother shall have sole decision-making concerning the daily routine, care, medical decisions and educational decisions of Gabriel.
2. The father shall have visitation with Gabriel one weekend per month in Connecticut. The mother shall drive Gabriel to a meeting place one-half the distance from her home in New Hampshire and Greenwich, Connecticut on Friday evening. The father will return Gabriel to the CT Page 11885 halfway point on Sunday at 6:00 p.m. While Gabriel is in his father’s care, the father will ensure that all school assignments are completed.
3. The father shall have visitation with Gabriel in New Hampshire once a month. The father shall provide the mother with 24 hours notification prior to visitation. All costs incurred for the visitation shall be borne by the father. Visitation shall be from Friday evening at 7:00 p.m. until Sunday at 6:00 p.m.
4. Gabriel shall spend school spring break with his father in Greenwich. The mother will drive Gabriel to the halfway point on Saturday at noon prior to the spring break. The father will return Gabriel to the halfway point at noon on the Saturday at the end of spring break.
5. Gabriel will spend three weeks in the summer with his father in Connecticut, one week at the beginning of the summer, and two consecutive weeks, the last week in July and the first week in August. Pick up and drop off as in Paragraph 4.
6. The parties will alternate holidays in odd/even years. The schedule will be negotiated through family relations.
7. Gabriel will remain in counseling in New Hampshire until the counselor determines that counseling is no longer necessary.
8. Mr. Blanche is to have access to Gabriel’s educational records, report cards, progress reports, ppt’s if applicable. He shall not contact the school directly. Contact through the GAL only.
9. Mr. Blanche is limited to 1 telephone call to Gabriel per week of 1/2-hour duration. No email access until further order of this court.
10. Neither parent shall disparage the other parent in any way, shape or form, upon penalty of contempt.
Motion for Modification
The defendant’s motion for modification is granted solely to allow a reduction pursuant to the guidelines to the date of Christian’s 18th birthday. There is no modification or retroactivity to the date Christian moved to Greenwich.
Attorney Fees for the GAL
CT Page 11886 The attorney fees for Attorney Postmantier are to be split equally between the parties. Payment shall be made by August 30, 2009.
SO ORDERED.
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