2008 Ct. Sup. 18089
No. FA05-400 88 20Connecticut Superior Court Judicial District of Middlesex, Regional Family Trial Docket at Middletown
November 13, 2008
MEMORANDUM OF DECISION
LYNDA B. MUNRO, JUDGE.
Before the court are post-judgment motions filed by the plaintiff seeking to open and modify the judgment as to custody with miscellaneous relief sought and a motion for contempt relating to custodial issues.
The parties were divorced on January 25, 2006, after a trial. The case had been referred from the local district to the Regional Family Trial Docket. Prior to the trial, they had agreed on custody issues, and that agreement was incorporated as a part of the dissolution judgment. It provided for joint custody, with an access schedule that essentially divided the child’s time with each parent on an equal basis. The orders also provided for a court review “in sic (6) months to consider whether any party has attempted to alienate the minor child from the other parent. The review shall take into account the minor child’s developmental progress and the behavior of both parents in providing a stable environment that supports open access to the other parent.” The judgment also ordered the parties to participate in co-parent counseling.
The motion to open and modify the judgment is dated October 9, 2007. It alleges that no review as court mandated was accomplished and that the defendant has interfered with the father’s relationship with the child. In the motion, the plaintiff seeks an order of sole custody and a psychological review with Dr. Robson, who had conducted the parties’ original psychological evaluation. On April 16, 2008, the plaintiff filed a motion seeking sole custody of the child and granting the defendant reasonable rights of access. On April 25, 2008, the plaintiff filed a motion for contempt, claiming that the defendant had violated a further order of the court that “neither party shall do nor allow to be done anything that would estrange the child from the other party, nor injure the opinion of the child as to her mother or father, nor act in such a way as to harm the free and natural development of the child’s love and respect for the other party.” The factual assertion was that the defendant had spoken negatively of the plaintiff in the presence of CT Page 18090 the evaluator, Dr. Robson, and the child.
These motions were once again referred to the Regional Family Trial Docket for hearing and decision. The parties had as a part of the original matter a custody evaluation performed by Dr. Kenneth Robson, a psychiatrist. As a part of that process, they were also administered psychological testing by Dr. Frank Stoll, the results and findings of which were before Dr. Robson in his evaluation. In preparation for the hearing held before this court, Dr. Robson updated his evaluation.
In preparation for the hearing, the defendant had an examination by a psychiatrist, Dr. Walid Jaziri, the nature of which is discussed hereinafter.
This matter was tried before the court on October 27, 28 and 30, 2008. Both parties were ably represented by competent, prepared and professional attorneys. At the hearing, testimony was received from the plaintiff, the defendant, Dr. Robson, Dr. Jaziri, the guardian ad litem, and Sara Main, who had been a co-parent counselor to the parties.
The statute regarding custody decisions provides: “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 CT Page 18091 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.” C.G.S. § 46b-56.
Based upon the credible evidence, the court makes the following findings.
The parties have one child; Jenny was born on February 27, 1997. She is eleven years old and attends public school for residents of Stonington, Connecticut. As a result of observation by Dr. Robson, it was recommended to the parties that Jenny would benefit from a neuropsychological evaluation which was ultimately performed in May and June 2008. At that time, she was a fifth grader; she is now in 6th grade. The evaluation and report were performed by Dr. Nellie Filipopolous. Its results are in evidence; they are not challenged by either party. It would serve no purpose for them to be recited in a public document such as this decision. The court concludes from those results that Jenny will best thrive in an environment that is consistent and as free of anxiety and stress for her as possible. She also should not be subjected to frequent transitions between her parents or a complicated schedule.
In Dr. Robson’s initial evaluation, he found that both parties had certain positive parenting attributes. The defendant and the child are close and comfortable with each other much of the time. The child however, was at that time, exposed by the defendant to many of the CT Page 18092 issues of conflict between her parents, and the defendant devalued the plaintiff in front of the child.
The plaintiff, also at that time, had a comfortable and emotionally close relationship with the child. There was no evidence that he spoke badly of the child’s mother to her.
As a result of psychological testing and clinical observation, based upon his experience and knowledge, Dr. Robson concluded to a medical probability that the defendant had significant pathology of a personality disorder, including paranoia in a variety of situations, with histrionic and obsessive compulsive traits. He noted that she had “little observing ego,” which means little ability to look into herself without bias. He found that she blames others rather than herself for all of the situations she confronts, and particularly as applied, she blames the plaintiff. She fixated on various aspects of his life, including his mother’s inappropriateness with him as a child and obsessing with the belief that the plaintiff favored his mother over her. The plaintiff is an attorney and the defendant dwelled on this as well as part of her belief that the entire court system was biased against her in these proceedings and that the plaintiff was manipulating them to his benefit.
“[Our Supreme Court] has limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child . . . or a finding that the custody order sought to be modified was not based upon the best interests of the child . . .” (Citations omitted.) Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996). The orders entered in 2006 must be modified. They are no longer in the child’s best interest, inasmuch as whatever ability to communicate that may have existed at the time is gone; the defendant’s behavior toward, and suspicion of, the plaintiff has worsened; and the clear indication from the neuropsychological evaluation of the child’s health is that she must be in a consistent and less stressful environment, free of the tension that comes from the conduct of the defendant. It is not at all clear the orders entered in 2006 were in this child’s best interest; they certainly are not today. She struggles with the access schedule and withers under the mother’s continuation of the conflict and lack of support of the father as a parent.
At the time of the original evaluation, Dr. Robson found that the defendant was seemingly incapable of physical and psychological access between the plaintiff and their child because of her blame of the plaintiff for everything wrong. She also showed no concern for exposing CT Page 18093 the child to her negative feelings about the plaintiff.
In the update of the evaluation, Dr. Robson found that the defendant had made no progress in her negative perceptions of the plaintiff or her paranoid view of the world. The plaintiff continues to remain concerned that the defendant would subject their child to an unsafe environment with his mother. With no evidence of the same, she remained convinced that her telephone was being tapped. Of grave concern to the examining psychiatrist was that the defendant was making absolutely no effort to shield the child from the negative statements and feelings she (the defendant) has towards the plaintiff. When asked if she believed that the plaintiff was allowing the child to be sexually abused, she would only answer “I don’t know.” Indeed, she gave the very same answer in court. There is absolutely no evidence that this child has ever been sexually abused or ever subjected to any real risk by the plaintiff.
The defendant’s denigration of the plaintiff with the child has created problems in their relationship. He found her once surreptitiously searching his cell phone; she has exhibited occasional reticence to see him. The plaintiff has largely dealt appropriately with this. On one occasion in particular, he was unduly harsh in his punishment and anger. However, after consulting Jenny’s therapist, he has shown the ability to change: he gains insights from his parenting mistakes, corrects them and learns from them. This kind of ability to be self-critical and learn from guidance is necessary in child rearing.
In the original evaluation, the plaintiff was found to have some passive aggressive tendencies and some anger. He also showed evidence of overriding feelings of guilt from some aspects of his past. None of these were found to rise to a clinical level. Throughout both the initial evaluation and the update, Dr. Robson found the plaintiff to be a loving, supportive father, empathetic with his child and able to respect the necessary boundaries to allow her to have different feelings from his.
The defendant would like the court to find that the plaintiff has a bad temper that cannot be harnessed. An incident with the family dog before the divorce is illustrative. The dog had bitten Jenny and two days later, while it was tied up, it started to lunge at the child. The plaintiff had a rake in his hand and brought it down on the dog once, striking it on the back with great force to stop it. The dog needed stitches. Given the fear that the plaintiff had of harm to his child, the court does not find this conduct illustrative of his temper; instead it is illustrative of his instinct to protect the parties’ child.
CT Page 18094 Dr. Robson noted that paranoia is virtually untreatable, but held out hope when he recommended at the time of the original evaluation that therapy for the defendant and co-parent counseling might help. It was his recommendation for a 6-month review that was incorporated into the agreement that became the judgment orders.
In the time between the judgment and the court orders, co-parenting has not succeeded. There are virtually no conversations of substance between them. The plaintiff has stopped attending school events that the defendant is at because of repeated experiences of her yelling at him and speaking poorly about him in front of the child, causing the child unneeded stress. The child’s teachers have acknowledged that the defendant has shared with them unnecessary information about the plaintiff.
The plaintiff has had to go to court to gain the child’s passport for a trip out of the country after unsuccessfully trying to work the issue through in co-parent counseling with the defendant over many months. The defendant claims that she has been resistant to the plaintiff vacationing with the child because he refuses to give her flight itinerary and hotel information. At the same time, she has stated many times that she fears that the plaintiff is going to surreptitiously take his mother on these trips and expose the child to harm. The defendant has unexpectedly shown up at the airport when the plaintiff is going on a trip with the child. It is this paranoia that has resulted in the plaintiff making defensive decisions to provide her as little information as possible so as to prevent her interference. There is nothing in the conduct of the plaintiff that the court can determine is meant to undermine the defendant’s parenting of the child.
On two occasions since the judgment, the plaintiff asked the defendant for some flexibility in the parenting schedule; both were refused by her. The plaintiff has been flexible about the parenting schedule when requested by the defendant on numerous occasions.
At the time of the update, the child stated that she feels safest with mother. Her reason given for this in 2008 is that the doors lock at her mother’s house. She is worried about her mother. While she has told her guardian ad litem that she wants to live with her mother, she showed concern to the evaluator that if she was a whole week at either parent’s home, she would miss the other parent and the pets at their home. This is clearly a conflict ridden child who should not be asked to pick between her parents. Her loyalties are clearly divided already. Further, at age 11, having been subjected to so many negative statements about her father by her mother, her opinion should not be given great weight. CT Page 18095 There are many other important factors that weigh in, as embodied in our law.
The court remains concerned that irrespective of what orders are entered here, the defendant will continue speaking negatively of the plaintiff around the child and causing her emotional harm by undermining her healthy development.
Before the parties were divorced, they had tried co-parenting counseling with Dr. Stephanie Moore. She saw them 17 times in 2002. She was concerned that the defendant had paranoid features at that time. In 2006, she commenced individual therapy with the plaintiff.
The parties worked with a couple of different co-parenting counselors since the judgment. The co-parent counselor, Joseph France, who tried to work the passport issue through with the parties found the defendant to be difficult and the plaintiff to be willing to work with her. Sarah Main found in 2007 that the defendant continued to blame the plaintiff for their circumstances.
In the second evaluation, Dr. Robson concluded that these parents are not able to work together in decision-making. Notwithstanding the defendant’s claim for relief for joint custody, in her testimony and in her attorney’s closing argument, there was agreement that joint custody is not workable. Therefore, the court must construct a custodial order that provides one principal decision maker on issues of developmental importance for the child.
The plaintiff has expressed an interest in providing a private school education for the child. The evidence fails to disclose whether that decision, or a choice to keep her in public school, is better for her. What is clear is that the results of the neuropsychological evaluation need to be followed up upon without delay that might be occasioned by trying to get these two parents to agree, when there is no peaceable communication.
The plaintiff continues to support the child’s relationship with her mother. He does not denigrate the mother with the child. The plaintiff’s early difficult life is described at length in the initial evaluation. Based upon testing and clinical observations, as well as collateral contacts, the evaluator concluded that the plaintiff is psychologically healthy, has gained insights as a result of his own difficulties, and is able to support the child’s healthy development and her relationship with her mother.
CT Page 18096 The evaluator, Dr. Robson, concludes that because of her entrenched personality characteristics discussed above, the defendant is not capable through therapy or otherwise of supporting a positive view of the plaintiff with the child and therefore cannot support positive emotional and physical contact between Jenny and her father. This will be very devastating for Jenny in a circumstance were her mother to be granted custody. An incident that occurred in the principal’s office became a major focus of the defendant’s efforts to undermine Dr. Robson’s opinions. After considering the evidence from Dr. Robson, the school principal, and the parties, the court concludes that Dr. Robson’s references to his conversation with the school principal are not inconsistent with the letter in evidence from the principal. To the extent there are ambiguities created as a result of the letter, the principal was not in court available for examination, and Dr. Robson answered fully, completely, and consistently regarding the matter. He was credible in regard to this as well as the balance of his testimony.
In 2008, shortly before the hearing, the defendant went to see Dr. Jaziri, a psychiatrist, for an evaluation. He saw her on several occasions (and also had her seen by a consulting colleague). She provided him with a variety of documents including Dr. Robson’s original report and update. On two occasions, he observed her with the parties’ child for about 30 minutes total, though he had no permission from the plaintiff, the court or the guardian ad litem for the same.
The evaluation that Dr. Jaziri performed is a mental status exam and an assessment of her fitness as a parent. He met with several of her relatives as a part of his work. He concluded, as to the mental status exam, that she was alert, and oriented to time, place, and person. He did not consider her dangerous to herself or others. He found her anxious but not paranoid. Based on his evaluation and interviews, he found her a fit mother. He went on to recommend that the custody agreement remain as it is in the original judgment. This recommendation was made without ever meeting the plaintiff.
Notably, as recently as 10 days before the trial, in the evaluation with Dr. Jaziri, the defendant continued to exhibit strange and alienating notions as to why the plaintiff would want custody, which make no sense: “He will then be able to stop her from participating in sports because her game times deprive him from watching car races on TV. Because he wants his daughter to grow up in a one parent home as he did.” Both plaintiff and defendant are single.
Dr. Jaziri also asserted that Jenny, entering puberty, should be with her mother, that it is a “time when a daughter needs her mother the CT Page 18097 most.” This echoed testimony by the defendant. Dr. Robson offered a different opinion, citing a treatise on the topic. The court has insufficient evidence to conclude Jenny has a specific need for custody to be reposed in her mother as a result of her approaching adolescence. Certainly, neither our statutes nor our case law support this presumption.
The guardian ad litem testified. It was her opinion that these parents cannot coparent and that sole custody should be ordered to the father with an access schedule that provides that Jenny will be with her father during the week and her mother three weekends a month. This was based upon the desire to have the child with her father during the school week and to benefit from a full social schedule with her mother.
The court had the opportunity to observe the demeanor of both parties in court over three days and particularly in the crucible of cross-examination. The plaintiff is wary of the defendant but respects the closeness of her relationship with Jenny. The defendant cannot separate her negative feelings for the plaintiff and her distrust of him from the needs of Jenny. The court concludes that she cannot, thus, put Jenny’s needs first; she exhibits no ability to view herself critically. Thus, she cannot adapt to Jenny’s own developing needs which include a strong and sustaining relationship with her father.
The defendant is unable to successfully communicate or negotiate parenting issues with the plaintiff unless she wants something from him. She is unable to put her past concerns, anger, and distrust of the plaintiff aside and she does not shield the child from her acrimonious statements about the plaintiff. The plaintiff does not seek to undermine the defendant as a parent; he does not speak badly of her to the child or others. He has not sought to undermine the defendant’s parenting time with the child. He has tried to negotiate with the defendant on parenting issues until he finally gave up because of her obstinance and refusal to stop blaming and suspecting him. The record of the trial is replete with examples of this, some of which are referred to above. It would not benefit the child to detail them further herein. The defendant continues to believe, with no basis in fact, that the plaintiff will subject the child to harm. The court concludes that it is in Jenny’s best interest that sole custody of her be awarded to her father.
The Judgment is opened and modified in accordance with the orders below.
The court finds that the defendant is in contempt of court for her denigration of the plaintiff in front of the child. In light of the CT Page 18098 orders entered above, the court declines to grant any further relief under the motion for contempt.
The following fees are outstanding as a result of this litigation. The guardian ad litem is paid at the rate of $175.00 per hour and has committed 38 hours of her time to this controversy for a total due her of $6,650 plus costs of $10.00 for a total of $6,6560. The evaluator, Dr. Robson, is owed $2,300.00. In light of the parties’ financial affidavits showing their income, expenses, assets, liabilities, and the plaintiff’s 100% obligation presently to support the minor child, the court orders that these bills be paid 75% by the plaintiff and 25% by the defendant within 30 days.
ORDERS
1. The Father shall have sole legal custody of the minor child. The father shall have physical custody of the child commencing immediately, on the date of these orders.
2. The Mother shall have “parenting time access,” in lieu of the more traditional term of visitation, with the minor child as follows: (a) every other weekend starting November 21, 2008: from Friday after school (when school is not in session then beginning at 5 p.m. and the Mother shall pick up the child from the Father’s home) until Sunday 5:00 p.m., at which time the Father shall pick up the child at the Mother’s home.
3. (a) Every Tuesday, and (b) on Thursday on the week following the Mother’s weekend access time: as to both Tuesday and Thursday, from after school (when school is not in session at 10 am. if the Mother is not working, or 5 p.m. if she is working; the Mother shall pick up the child from the Father’s home) until 7:00 p.m. (after dinner), at which time the Father shall pick up the child at the Mother’s home.
4. Parenting time on Holidays shall be with the parents as follows:
Thanksgiving Day: (defined as 8:00 a.m. until 8:00 p.m. the Friday following Thanksgiving): child shall be with Mother in even-numbered years and Father in odd-numbered years. After 8:00 p.m. on Friday, the normal weekend schedule shall resume.
Christmas Eve: (defined as 8:00 a.m. until 12:00 p.m. (Noon) Christmas Day): The mother shall have the minor child in odd-numbered years, and Father in even-numbered years.
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Christmas Day: (defined as 12:00 p.m. (Noon) until 8:00 p.m. on December 26th): Mother in even-numbered years and Father in odd-numbered years.
Martin Luther King Day, Good Friday, Memorial Day, Labor Day, Veterans’ Day (defined as 8:00 a.m. until 8:00 p.m.): Child shall be with the Mother in odd-numbered years, Father in even-numbered years. If the holiday falls on a Monday following a weekend of mother’s access, when it is the mother’s holiday, she shall keep the child overnight until 5 p.m.
Presidents’ Day, Easter, Fourth of July, Columbus Day (defined as 8:00 a.m. until 8:00 p.m.): Child shall be with Mother in even-numbered years, Father in odd-numbered years. If the holiday falls on a Monday following a weekend of mother’s access, when it is the mother’s holiday, she shall keep the child overnight until 5 p.m.
Mother’s Day: (defined as 8:00 a.m. until 8:00 p.m.): Child shall be with Mother every year.
Father’s Day: (defined as 8:00 a.m. until 8:00 p.m.): Child shall be with Father every year.
5. Summer Vacation. The Parties shall give notice by March 1st of the calendar year of up to two (2) non-consecutive weeks of vacation during the Summer. The week shall be defined to include one weekend only. Said notice must be given in writing. If there is a conflict in dates, Mother shall dictate by having first choice in odd-numbered years and Father in even-numbered years. A vacation week is comprised of seven (7) days which includes the parent’s weekend on the alternating weekend schedule. However, that 48 hours cannot be attached to their own vacations. The Parties shall ensure that any travel itinerary information be provided at least fifteen (15) days in advance of leaving, including flight, hotel contact information, etc.
The Holiday schedule and Vacation schedule orders take priority over the weekly parenting time orders. The Summer Vacation of each parent with the child shall not be scheduled for the week of the 4th of July, unless it is that parent’s year to parent the child on the 4th of July.
6. The Father’s child support order is ordered terminated. In light of CT Page 18100 the Mother not having yet commenced her prospective employment, no child support is ordered for her to pay to the Father presently. The Father shall maintain health insurance for the benefit of the minor child so long as it is available to him at a reasonable cost. Only he shall take the child to medical appointments. He shall pay all health costs not paid by insurance.
7. All communications, except for emergency communications, shall be conducted through WWW.OURFAMILYWIZARD.COM. If there are subsequent proceedings to these orders in court, the child’s representative(s) then existing (attorney, guardian ad litem, etc), shall have access to the parties’ account. The Father shall utilize this account to inform the defendant of all health, educational, social, religious and other developmental matters affecting the child. The Mother may attend events at the child’s school to which parents are generally invited.
8. Neither parent shall denigrate the other parent while the child is in their physical care, presence, or earshot.
9. The Father shall be the custodian of the child’s Passport. He shall not unreasonably withhold the passport to the Mother if she desires to travel with the child outside the country, provided she has provided the Father the travel itinerary including flight numbers, airlines, hotels, or other such accommodations, names with address and telephone numbers. Upon return from travel with the child, the Mother shall immediately turn over the child’s passport to Father. When the Father travels with the child, he shall provide the same information to the Mother. Such information shall be provided by each parent when they travel overnight outside of Connecticut, with the child.
10. If the Father elects to place the child in private school, he shall be solely responsible for the cost thereof; cost for the same shall not constitute a basis to deviate from the Child Support Guidelines presumptive child support.
11. Each parent may telephone the child once per day when the child is with the other parent.
12. All of the above orders shall take immediate effect upon filing with the court.
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