Developments in Connecticut Family Law: 2008 and 2009
| Pages | 95 |
| Publication year | 2021 |
84 CBJ 95. DEVELOPMENTS IN CONNECTICUT FAMILY LAW: 2008 AND 2009
Volume 84, No. 2, Pg. 95
June 2010
The years 2008 and 2009 were significant in the development of Connecticut family law. In addition to scores of appellate cases reiterating standard family law doctrines, this time period saw the release of seminal decisions addressing third-party intervention in custody cases, the dissipation of assets, and the ever-evolving definition of divisible marital property. Indeed, a number of cases released during the two years recast core concepts that will have broad implications for the family law practitioner.
A. 2008 Cases
Arguably the most significant family law decision of 2008 was released in the first few weeks of the year. fish v. Fish(fn1 ) resolved the pressing question of what standard a court should utilize when addressing a third-party motion to intervene for purposes of child custody.
A brief historical primer underscores the significance of Fish. In 2000, the United States Supreme Court issued the watershed decision of Troxel v. Granville(fn2) holding unconstitutional well established rules governing third-party intervention for custody and access. The Troxel court held that the Washington state third-party visitation statute, which provided no limitation on intervention, was unconstitutional as written because "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family."(fn3)
Subsequently, in Roth v. Weston(fn4) the Connecticut Supreme Court determined that Connecticut's statute governing third-party visitation, General Statutes Section 46b-59, was facially unconstitutional. Rather than invalidate Section 46b-59, however, the Roth court opted to provide a "judicial gloss" on the statute. As a result, the court set forth a two-part test in the event that a fit parent objects to a motion to intervene by a third party for purposes of visitation: (1) That the intervening third party must demonstrate by clear and convincing evidence that he or she has established a parent-like relationship with the child(ren); and (2) That the child(ren) would suffer real and significant harm if visitation were denied.(fn5)
It is important to note that the Roth case dealt only with third-party visitation claims under General Statutes Section 46b-59, which on its face provides the court with broad discretion to grant a right of visitation to any person, guided by the best interest of the child, essentially without limitation. Roth did not address the applicable standard for third-party custody claims under Sections 46b-56b and 57, a scheme which expressly establishes a presumption in favor of parental custody.
This open issue on third-party custody claims was squarely raised in Fish v. Fish. Indeed, the certified question in Fish was whether the jurisdictional pleading requirements and heightened burden of persuasion set forth in Roth apply to cases involving third-party custody claims brought under Sections 46b-56b and 46b-57. After lengthy analysis, the Fish court held that Roth was not dispositive of third-party custody claims and that a different test must be applied. Specifically, the court held that in custody proceedings in which a third party seeks to intervene, that party must plead that: (1) he or she has a parent-like relationship with the child; (2) parental custody would be detrimental to the child; and (3) custody with the third party would be in the child's best interest. The court held that, unlike Roth's clear and convincing standard, these factors must be proven by a fair preponderance of the evidence.(fn6) The court further stated that the trial court may award custody to a nonintervening party if the record establishes proof of the above three factors under the fair preponderance of the evidence burden of persuasion.(fn7)
Dutkiewicz v. Dutkiewicz(fn8) addressed a challenge to Connecticut's parenting education requirement.(fn9) The father in the case argued that the relevant statute, General Statutes Section 46b-69(b), unconstitutionally infringes upon a parent's right to exercise custody, care or control over his or her children.(fn10)
The Supreme Court disagreed. The court determined that the purpose of Section 46b-69(b) is to educate parents and provide them with information to lessen the adverse impact on children that may result from a dissolution of marriage. The court reasoned that the statute does not implicate the care, custody and control that a parent exercises over a child. Indeed, parents are not required to follow the teachings of the parenting education class, they are only required to attend. Accordingly, the court determined that because the statute does not violate a fundamental right, rational basis review applies. The court concluded that the parenting education class is rationally related to promoting the welfare of children, and therefore Section 46b-69(b) is constitutionally valid.(fn11)
While the certified issue in Dutkiewicz may have limited precedential value, the decision contains an extensive and scholarly discussion on the contours of the constitutional right to parent. Justice Schaller observed that all the relevant federal cases share the common element of the state intervention and substitution of its decision-making for that of the parent. It is critical to note that a constitutional claim is not triggered simply by the entry of an order concerning or relating to a parent's custody rights. In order to infringe upon a parent's fundamental rights, the state must "intrude" upon a decision of the parents with respect to the care, custody and control of a child. Put plainly, in order for strict scrutiny to apply the state must be acting in loco parentis.(fn12) The court's reasoning in Dutkiewicz undeniably has broad implications in all future cases involving parental rights.
The Appellate Court case of Johnson v. Johnson(fn13) also has wide-ranging implications for custody litigation. The case involved a contempt motion where the mother claimed that the father was interfering with the child's ongoing mental health treatment. During the hearing, the wife called the court-appointed guardian ad litem ("GAL") to testify about the interference. Over an objection, the GAL testified about what the child's therapist had told her. The Appellate Court determined that the GAL's testimony was improper hearsay. Critically, however, the GAL never expressed an opinion as to how the interference impacted the best interest of the child. The court left open the issue of whether a GAL is an expert and can rely on hearsay when opining about a child's best interests.(fn14) There is no question that this is fertile ground for future appellate litigation.
B. 2009 Cases
Feinberg v. Feinberg(fn15) addressed the issue of stale evidence in the context of a post-judgment motion for modification of custody and access. After a hearing, the trial court awarded the father primary physical custody and final decision-making authority with regard to the parties' one child. In reaching its decision, the trial court relied in large part on the fact that the child was tardy from school 18 times during the 2003-2004 school year. Evidence was presented, however, that the mother was suffering from health issues during that time period and that during the 2004-2005 school year the child was tardy from school only once.(fn16)
On appeal, the mother argued that the court impermissibly relied upon stale evidence when it determined that the best interest of the child would be served by primarily residing with the father and attending Simsbury schools. The Appellate Court acknowledged that the record contained evidence demonstrating that the wife had a serious illness during the 2003-2004 school year that required multiple surgeries and extensive recovery time and that the wife had recovered fully before the hearings on the motion to modify. After the wife recovered, the child was tardy once during the 2004-2005 school year. Ultimately, however, the Appellate Court concluded that the trial court's decision was based on the record evidence. The record demonstrated that, under the modified arrangement, the child would be closer to his maternal grandmother, who cared for the child when the defendant was unavailable, would benefit from a fifty-fifty parenting arrangement, would spend less time in transit and would get a superior education in the father's town. The Appellate Court stated that it could not substitute its judgment for that of the trial court.(fn17) The Supreme Court granted certification.(fn18)
In Lederle v. Spivey,(fn19) the Appellate Court held that the test originally set forth in Ireland v. Ireland, and later modified in Section 46b-56d, should not be extended to relocation cases litigated during the initial dissolution of marriage trial.(fn20) The court concluded that the best interests test should control in such circumstances. The holding in Lederle is not remarkable given that the Appellate Court previously determined in Ford v. Ford(fn21) that the Ireland burden-shifting test only applied to post-judgment cases.(fn22) Lederle does, however, set forth for the first time since the enactment of Section 46b-56d that the new statutory standard is limited to post-judgment matters.(fn23)
A. 2008 Cases
The Connecticut Supreme Court released two important property distribution cases in 2008. Both cases involved the alleged dissipation of marital assets and permit the trial court to consider one spouse's dissipation when distributing property under General Statutes Section 46b-81. In...
To continue reading
Request your trial