When Tug-of-War is Not a Game: Relocation After Divorce

Lawyers often find ourselves telling clients that their divorce is never truly “final” when there are children involved.  Regrettably, many of the symptoms that bring spouses to our offices in the first place –the arguing, the conflict, certain confines and restrictions – may continue to exist on some level even after the lawyers have done their jobs and a judge signs a final judgment, especially when the divorcing parents are now entrusted with the responsibility to co-parent young children, from different homes, and from new perspectives.

Nowhere is that more evident than in cases where one spouse seeks to relocate with the minor children to a new state – perhaps hundreds of miles away from his or her former spouse, and his or her former life.

Developments in the law even in the past few years have refined the processes and legal burdens for spouses seeking to take their children to another location, perhaps to be closer to extended family or a support network, nearer to a new job or opportunity, or for other economic reasons.

The legal burden in Connecticut now rests squarely upon the parent seeking a relocation to prove to a court (assuming the other parent objects to the move) that the relocation of the children is for a legitimate purpose, that the relocation is reasonably related to achieving that purpose, and that the move and resulting transplantation is truly in the best interests of the minor child or children of the marriage.

In reaching its determination, a court will likely hear evidence from each parent, relevant witnesses and/or healthcare professionals or experts, and likely a court-appointed guardian to represent the child’s interests in such a proceeding.  Among other things, a court shall consider each parent’s reasons for seeking or opposing the relocation, the relationship each parent has with the subject child or children, any potential enhancement that the relocation might have on the child’s life or development, the feasibility of visitation or maintained contact between the non-relocating parent and the child notwithstanding the geographic shift, and the impact the relocation would have on the relationship between the child and the parent who might be left behind.

These types of post-judgment proceedings are often painful for both litigants and are driven by facts as much as the law – facts which could and often do have nothing whatever to do with the underlying reasons for the divorce itself.  A parent involved in a post-judgment relocation dispute in Connecticut must prepare for a contentious legal battle where personal convictions, risk tolerance, and emotions can and will be tested.

We advise clients in these cases not merely to weigh their legal options, but to evaluate and assess the best interests of their children who are innocently caught in perhaps the cruelest game of tug-of-war imaginable.  We prepare our clients and assist them in structuring their case for the most favorable presentation of facts and evidence to support their legal position.  Those considering or faced with the specter of a relocation petition should retain counsel who are both well-versed in the law and attuned to the reality and repercussions that litigation brings to children’s lives – sometimes years after the ink has dried on a divorce decree.

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Parental Alienation in Custody Disputes

Every lawyer who handles divorce cases recognizes that grimace.  We often see the reaction from other lawyers and people in everyday conversation when they hear we litigate divorces and custody matters.  Most often, the grimace is followed by a verbal recognition of how “draining” or “difficult” the business can be.

Invariably, that reference relates not merely to the two individuals who have decided that their marriage is no longer viable; rather, the fallout often squarely lands on the children caught in the midst of a custody battle during a divorce – or sometimes, in a residential relocation petition by one parent in the years after a divorce.

Where young children are involved, divorce lawyers regrettably see a frequency of parental alienation by one party or the other, an active or passive attempt by a divorce litigant to cause the children of that union to align against his or her soon-to-be ex-spouse.

Parental Alienation Syndrome consists of thoughts and behavior that can develop in a child of separated parents wherein the custodial parent causes a child, through repeated manipulation and restriction of visitation and access to the other parent, to unjustifiably fear or have anger towards the other parent.  Also referred to as “hostile aggressive parenting,” the syndrome essentially deprives a young child of his or her ability to be loved by – and show love for – both of his parents, unconditionally.

The syndrome manifests itself in our cases in many forms.  As lawyers, we have seen parents who file false police or DCF reports against the other parent to force an arrest or an ejection from the marital home.  We sometimes learn of a parent who loudly disparages the other within earshot of the minor children.  We often deal with litigants who unjustifiably attempt to “micro-manage” all aspects of visitation with the other parent, to the extent where the parental access – and the parent-child relationship itself – is materially (if not irreparably) harmed.

In divorce litigation, it is the attorneys’ task to dispassionately assess the evidence for and against our clients, to give sound advice, and to pursue legal remedies aggressively where other avenues have failed.  Protecting the rights and psychological well-being of children caught in the middle of litigation is, and must be, of the utmost concern.  At every turn, we seek to advise our clients of the perceived benefits, risks, and consequences of the lawsuit in which they are involved, lest they lose sight of the most valuable assets of their marriage: their children.

Any questions about this posting or confidential inquiries concerning the subject matter, may be directed to Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Defeating Governmental Immunity: Navigating the Uphill Climb

Lawsuits against the State of Connecticut or its local municipalities are notoriously difficult to pursue from a legal perspective, in large part due to various statutory protections and administrative hurdles put in place by the legislature.  For example, a plaintiff seeking to initiate a personal injury case against her own town must adhere to strict time limitations and procedural requirements in order to have her case successfully get into court and survive the scrutiny of a judge, well before she ever comes close to having a “day in court” before a jury of her peers.

Unless the site of a plaintiff’s injury falls within one of a few narrow exceptions (such as an injury on a “public highway,” which would invoke the protections and mechanisms of Connecticut’s “highway defect statute,” or Connecticut General Statutes Section 13a-149), a plaintiff is entitled only to proceed against a state or municipality under the Political Subdivision Liability Statute (Connecticut General Statutes Section 52-557n).

Section 52-557n, however, contains its own pitfalls for prospective plaintiffs.  The statute provides that a town or political subdivision may be liable for negligent acts of its employees, officers, or agents except if such actions or omissions constitute criminal conduct or willful misconduct, or, significantly, if such negligent acts or omissions require the exercise of judgment or discretion as an official function of the job responsibility.

The latter part of this test is key – and is a gold mine for municipalities (and their lawyers) seeking to invoke the governmental immunity doctrine and escape liability for the negligence of its employees, even if such negligence is established by an injured person.  What the provision states, in plain language, is that a town may well be free and clear from liability if the task that was performed negligently was a task which required an exercise of judgment on the part of the town employee.

Take the hypothetical example of a plaintiff who was injured when she slipped on ice on the front steps of City Hall.  The evidence suggests that the maintenance workers either knew or should have known that ice had built up on the steps, that they were expecting the public to be walking in and out of the building, and that someone clearly “dropped the ball” in making sure that the ice was scraped off and that salt or sand was applied generously to the area.  Instead, nothing was done, nothing was scraped, no sand or salt was used, no warning signs were posted, and the ice remained for several business days before this plaintiff came along and fell on her very first visit to City Hall.

Even with these simplified facts (which appear at first blush to be quite damaging to the City), the City will surely investigate the existence of any policy, procedure, and practice of those maintenance workers who were assigned to the front steps of the building.  In this case, the City will attempt to prove by a preponderance of the evidence that “judgment” and “discretion” of the City employees was required to be exercised to keep those steps free of snow and ice.  On the contrary, a plaintiff will seek to demonstrate that the actions (or omissions) of the City workers were “ministerial” – that is, the workers had a clear directive to do something (e.g. to clear the ice at certain times, in a certain manner, with no exercise of judgment) and yet they failed to carry out that task, resulting in the plaintiff’s injury.

When the proverbial dust settles, if no clear, articulated policy existed to clear the steps, to inspect the steps on a scheduled basis, or to take preventative measures against ice buildup, a municipal defendant in this instance would likely argue (perhaps successfully) that the maintenance workers were required not to follow any protocol, but only to “use their judgment and discretion” in determining what needed to be kept safe and clear for pedestrian traffic.

An unknowing plaintiff (or perhaps an inexperienced attorney) who advances her case against a town believing that a jury would be shocked if there is no snow removal policy might find herself equally shocked when or if it is determined that any negligence was of a “discretionary” nature and governmental immunity therefore applies, subject to other very narrow legal exceptions not discussed here.

A savvy plaintiff, in discovery and at the very outset of the lawsuit, might request that the town admit, under oath and in writing, to the existence of a clear and articulated policy (even if it is unwritten) with regard to the safety issue which resulted in her injury.  While towns (and their attorneys) are often eager to show that preventative measures are and were in place, in this instance, they may well eliminate – as a matter of law – their own sacred protection of governmental immunity at trial.  With a valid legal admission of a clear and articulated policy, a municipal defendant is effectively hamstrung – it cannot simultaneously admit to the existence of a policy and directive while claiming that its employees were simply exercising their own judgment.  Dramatically and emphatically, the curtain of governmental immunity draws away, paving the way for a plaintiff to reach the eyes and ears of a jury.

An injured person seeking legal assistance as against the state or a municipality faces a virtual hornet’s nest of obstacles and legal entanglements.  A trusted, informed advocate is essential to place such a claim in the best possible legal position.  The invitation is open to consult with attorneys at our Firm who are experienced in this type of civil litigation.

If you have any questions about this posting or confidential inquiries concerning the subject matter, please contact Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.

Sexual Harassment in the Workplace: Defeating an Employer’s Defenses

A victim of sexual harassment in the workplace has certain available protections and remedies under Title VII of the Civil Rights Act of 1964, with respect to unwanted amorous advances, inappropriate touching, or an outright physical assault by another employee or co-worker.  Essentially, a victim of sexual harassment must prove in a civil lawsuit that the harassment was “sufficiently severe or pervasive” to alter the conditions of her employment, and that there was a specific basis for imputing the resulting hostile work environment to her employer (and not merely to the harasser).

Under what has become known as the Faragher/Ellerth defense, employers since 1998 have been permitted by the courts to put forth and establish an affirmative defense to victims’ lawsuits against inappropriately behaving employees, so long as they are able to prove one of two things: A) that the victim unreasonably failed to take advantage of a company’s established procedures and opportunities to prevent sexual harassment (such as policies, training, and complaint mechanisms through human resources), or B) that the victim employee complained about the conduct and the employer took prompt and appropriate corrective action (such as an investigation, discipline, and/or termination of the harasser).

If a defendant company succeeds in proving one of these two elements, that company may not be held liable for the sexual harassment of one of its employees, even under some egregious circumstances.  Today, many companies have policies and procedures in place, and in most circumstances, a company can successfully claim that it would have been “unreasonable” for a victim not to complain about a harasser’s misconduct and to put the company on notice when something untoward occurs.

However, sometimes victims do not complain right away.  In some cases, the harassment is committed by a supervisor – someone in a position of power over the victim, with a stranglehold on the victim’s voice, on her employment, on her will.

Our law makes adjustments accordingly.  Therefore, where the harassment is committed not just by a co-worker of the victim, but by the victim’s work supervisor, the standard shifts dramatically – the employer company is “presumptively responsible” for the harasser’s conduct.  In that instance, also, there is a proscribed limitation under which an employer can put forth the Faragher/Ellerth defense and potentially escape liability.  Specifically, the test becomes whether the supervisor’s harassment (or unwanted sexual advance) culminated in what is known as a “tangible employment action” – such as a demotion, a denial of a promotion, a change in job responsibilities, or a termination of employment.

In other words, in cases of supervisor-subordinate harassment, a trial court applies a test to determine whether the tangible employment action is “linked” in some fashion to the supervisor’s discriminatory harassment.  If indeed a connection is found – if a supervisor, for example, ultimately fires his victim of sexual harassment for fear she will disclose his reprehensible conduct to others – then the Faragher/Ellerth affirmative defense is not available to the employer company.  The purpose of this rule is to insure that, despite the procedures they might put in place to protect their employees from sexual harassment, companies may and often will be held liable and accountable for the actions of supervisors who harass their subordinates and then utilize their positions of power to remove their victims from the workplace.

If you are the victim of sexual harassment in the workplace, we urge you to seek legal advice immediately and to learn your rights.  Our firm has decades of experience in successfully handling sexual harassment and discrimination cases throughout New York and Connecticut, in both state and federal courts.  Our clients present us with the facts; we arm them with the law and the aggressive, informed advocacy to seek justice on their behalf.

If you have any questions about this posting or confidential inquiries concerning the subject matter, please contact Attorney H. Daniel Murphy at hdmurphy@mayalaw.com.