Family Law

When Third Party Custody is Awarded in Connecticut

CT Third Party Custody 

Third party custody can be awarded in Connecticut under some very exceptional circumstances. Most third-party actions fail and custody is ultimately awarded to a parent because they have a fundamental right to raise their children. The Connecticut Judicial Branch put out a few publications that outline what it takes for a third party to win in a custody action and the standards that will be applied to such actions.

That publication included an analysis of a landmark case in Connecticut, Fish v. Fish, that helped shape the law on this issue in Connecticut. That case has since been cited as the proper way to interpret C.G.S.A. 46b-56 and 46b-57 which deal with custody and visitation. The CT publication and Fish v. Fish will be excerpted in the following to explain this tricky custody issue.

Basic CT Principals

To begin it is helpful to outline a few basic Connecticut principles. First, “third parties cannot initiate custody proceedings, unlike third parties who are permitted to initiate proceedings in visitation cases.” Fish v. Fish, 285 Conn. 24, 72 (2008). Therefore, in order for a third party to make a claim for custody, they would have to intervene in an already initiated custody proceeding.

Next, a third party attempting to intervene in a custody proceeding needs to have proper standing. Unlike a parent who clearly has standing in a custody proceeding, a third party needs to overcome this constitutional hurdle by properly alleging a parent-like relationship.

As stated in Fish, “. . . to avoid constitutional infirmity, the standing requirement that a third party allege a parent-like relationship with the child should be applied for all of the reasons described in Roth to third party custody awards and to third parties seeking intervention in existing custody proceedings.” Id. at 44.

Overcoming a Strong Parental Presumption

If a third party does intervene properly and has standing, then the third party needs to overcome a strong parental presumption. “The statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent’s custody.” Id.

“Where the dispute is between a fit parent and a private third party, both parties do not begin on equal footing in respect to rights to care, custody, and control of the children. The parent is asserting a fundamental constitutional right. The third party is not. A private third party has no fundamental constitutional right to raise the children of others.

Generally, absent a constitutional statute, the non-governmental third party has no rights, constitutional or otherwise, to raise someone else’s child.” Id. at 46. Most jurisdictions have observed that third-party custody awards should be exceptional in nature and that the concept of detriment involves a type of analysis qualitatively different from that involving the best interests of the child.

Fish Court Conclusion

The Fish court concluded, “that the statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent’s custody.”

See In re B.G., 11 Cal.3d at 698. “We add that this does not mean temporary harm of the kind resulting from the stress of the dissolution proceeding itself but significant harm arising from a pattern of dysfunctional behavior that has developed between the parent and the child over a period of time.” Id. at 57.

“Such a standard is not constitutionally infirm or susceptible to the criticism sometimes leveled against the “best interests of the child” test because it does not allow the court to apply its own “personal and essentially unreviewable lifestyle preferences.” Roth v. Weston, 259 Conn. at 223.

“At the same time, the standard we adopt is narrowly tailored to limit the scope of intervention to those exceptional cases in which parental custody would result in significant harm to the child, thus serving the compelling state interest of protecting the liberty interests of the parents while remaining sensitive to the child’s welfare.” Id.

To Summarise

As you can see there are significant hurdles for a third party to overcome if they have a legitimate reason for wanting custody of someone’s child. In summation, the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child’s best interest.

Third-party custody is an uphill fight and only a very experienced attorney can help a client navigate these rough waters. If you need a lawyer’s assistance in a custody matter, don’t hesitate to call one of Maya Murphy’s experienced family law attorneys for a free consultation at 203-221-3100.

Written by Kyle M. Buonocore, Excerpts from Fish v. Fish, 285 Conn. 24 (2008).

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If you have any questions or would like to speak to a divorce law attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100. We offer free divorce consultation as well as free consultation on all other familial matters. Divorce in CT and divorce in NYC is difficult, but education is power. Call our family law office in CT today.

What Is a ‘Legal Separation’ in Connecticut?

A legal separation is a status that affects the legal rights and obligations spouses have toward each other without formally ending the marriage.  A court decree of legal separation has many of the same effects as a divorce; assets and liabilities will be divided and, if there are children involved, a parenting plan will be implemented as in a divorce proceeding.  Legally separated spouses are freed from most legal obligations, and give up most legal rights, to each other but remain legally married.  Accordingly, neither spouse can remarry without first having the separation decree converted into one for divorce.

If you have any questions related to divorce and legal separations in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Pre-Nups are for More than Just the Wealthy

A Prenuptial agreement is an agreement between two individuals planning to get married on how property will be distributed on the possibility of their separation. While no one likes to imagine separating at such an exciting time as just before marriage, if you have extensive assets, it must be considered.

Individuals with high wealth and those who are getting married later in life have often accrued a significant number of assets that it would be difficult to part with in the unfortunate event that their marriage did not work out. Entrepreneurs with established businesses could also find it beneficial to protect their enterprise by using a prenuptial agreement to ensure that business assets remain with them in the event of a break up.

For people who have been married before, or who have kids from a previous relationship, prenuptial agreements are much more common because they have already experienced a divorce and know how messy property division and child custody issues can be. Prenuptial agreements are also more common for marriages where one of the parties has inherited or will inherit a large sum of money.

When executing such an agreement, an attorney is necessary to complete the process correctly. While courts in Connecticut will enforce a prenuptial agreement, it must meet some very strict guidelines or a court may completely disregard it. Some of these guidelines include full disclosure of assets, a signed document in writing, and for each party to have individual professional representation. Such guidelines ensure fairness and efficiency of the process so no spouse is left in the dark upon divorce.

If you are considering a pre-nup or need to have one enforced upon divorce, contact one of the experienced divorce attorneys at Maya Murphy today. Our attorneys have worked countless divorce and family law cases in the courts of Connecticut and New York for decades. Get the answers you need and the representation you deserve. Call 203-221-3100 or email JMaya@mayalaw.com to schedule a consultation today!

Protecting Your Interests in a High-Asset Divorce

Whether or not you consider yourself a high earner or a high worth individual, if you have considerable assets at stake and divorce is knocking at the door, we are here to help. At Maya Murphy, we deal with divorces every day, whether they include athletes, businesses, famous individuals, those with large amounts of wealth or just the average person. Our divorce practice has been established for over a decade and is built on experience gained in both New York and Connecticut tribunals. We can help you take proactive steps to position yourself for a fair allocation. Not every high-asset divorce is destined for trial. We will explore mediation to resolve or narrow the issues and out-of-court negotiations for everything from IRA, 401(k) and pension savings and alimony to child custody and child support. However, if needed, the high asset divorce attorneys of Maya Murphy are proven litigators who are ready and able to bring a case to trial.

When it comes to high asset divorce, there are many more factors that must be considered when reaching an appropriate settlement. Here at Maya Murphy, we are familiar with every nuance of high net worth divorces, including:

  • Valuation of a business or professional license
  • Valuation and sale/refinancing of the marital home
  • Valuation and division of investment property
  • Other real estate (vacation homes, rental property)
  • Variable or seasonal income, as from pro athletes
  • Verification of income from all sources
  • Stock options and deferred compensation
  • The marital portion of IRA, 401(k) and pension savings
  • Validity (enforceability) of prenuptial agreements
  • Other issues of separate property versus marital property
  • Distribution of joint liabilities, and
  • Discovering hidden assets.

We realize there are additional considerations in a high-asset divorce beyond the division of assets such as privacy of the individuals, goodwill of a business, or unwanted media attention. We can cater our representation to your needs and your busy schedule. At the onset of representation, we will listen to your goals and come up with a plan to best achieve them. You will be kept informed each step of the way and involved in this process as little or as much as you would like.

So if you are considering divorce, or divorce proceedings have already begun, feel free to contact the high asset divorce group at Maya Murphy today to discuss your options. We are available anytime at 203-222-MAYA or by email at JMaya@mayalaw.com. Schedule your free consultation today!

Common Ways Spouses Attempt to Hide Assets Upon Divorce

Divorce is likely one of the worst times of a persons life, or best if you can’t wait to get out of a miserable relationship. But one thing is for sure, divorces get messy. Too often they turn into drawn out court battles, custody disputes, or the worst of all, one spouse hiding assets from the other. We have all heard the phrases “I was cleaned out after my divorce,” or “my spouse took everything” in the divorce, and although its far from the legal truth, too many people believe this and try to protect their assets by hiding them. Not only is hiding assets from someone you previously loved immoral, it is also highly illegal. Even so, discovering hidden assets is something our divorce group, specifically our high asset divorce group, does regularly. Here are just some of the ways in which we have discovered individuals attempting to hide assets from their spouses. This list is meant to aid spouses from being outed in divorce, not aid the illegal hiding of such assets.

1. Transfer assets to a separate account. This involves taking money from a joint bank and brokerage accounts and transferring it to an account only in one spouses name.

2. Transfer assets to a friend. In a joint bank or brokerage account, both parties have full control over the assets.
Some people systematically transfer cash and/or investments to an account their friend holds, and then once the divorce is finalized, that friend transfers it back to them.

3. Overpay the Internal Revenue Service. Some individuals who know they are going to file for divorce next year instruct the IRS to use this year’s refund for next year’s tax. Once the divorce is final, they receive a large overpayment from IRS that they use against future tax.

4. Take cash withdrawals on debit cards. Some people use debit cards for every day purchases. When you use a debit card, you are always asked if you would like cash back. In this instance, the individuals continually answer yes to that question and withdraw small sums of money multiple times over a long period of time. Here, the actions are hidden because the total charge shows as groceries, clothes, movies, etc.

5. Turn down promotions and raises. Some people tell their boss to delay any promotions (if one is coming) and set any raises/bonuses aside until after it was finalized.

6. Accrue commissions. After closing deals at work, some spouses request that their commission is delayed for tax purposes, i.e. hiding it from their spouse in divorce.

If your spouse owns their own business, they could also be using some of the below techniques to hide income from you:

8. Not invoice clients. It wouldn’t be difficult to delay invoicing clients until after the divorce. Although accounts receivables would be accrued assets, this is easier to hide than cold hard cash.

9. Create fake expenses. Creating fake expenses, paying fake vendors, and adding family or friends to the payroll is a common way for individuals to hide money through their business.

10. Go on a shopping spree. This is self explanatory.

If you think your spouse is hiding assets, or you are worried they might try to when you ask for a divorce, call one of the experienced divorce attorneys at Maya Murphy today. With decades of experience in both the New York and Connecticut courts, one of our attorneys can help you with any divorce or family law matter you may have. Call 203-222-MAYA or email JMaya@mayalaw.com to schedule a consultation today!

Credit: Asset hiding techniques to divorcenet.com

What Is the Mandatory Parenting Education Program in Connecticut?

The parenting education program is a program designed to assist parents in helping their children through the divorce.  The class addresses the developmental stages of children, the adjustment by children to parental separation, and dispute resolution and conflict management.  The class also addresses guidelines for visitation, cooperative parenting, and stress reduction.

If you have any questions related to divorce in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

How Much Will a Divorce Cost in Connecticut?

It is not possible to determine out the outset how much a divorce will cost, and each case necessarily will be different.  There are, however, certain set fees associated with bringing a divorce action, including a $350 fee to file a complaint and $50 for service of the court papers.  Spouses with children are required to attend a parenting class, the fee for which is $125.  Other fees may be incurred for filing a counterclaim, for example, or for publishing a notice of the action in a newspaper, if the plaintiff cannot locate her spouse.  Many attorneys and experts involved litigating a divorce action charge hourly rates that can vary, sometimes widely.  These rates and the amount of time a lawyer must spend working on the matter will determine the ultimate cost for a divorce proceeding.

If you have any questions related to divorce in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Should I Consider Mediating my Divorce in Connecticut?

Mediation is a less formal process than litigation where the parties select a neutral third party to help them forge compromises and, if successful, ultimately reach a final separation agreement that deals with the financial, custody and other issues involved in a divorce.  Unlike litigation, mediation is akin to a settlement negotiation and is both confidential and not binding on the parties.  The mediator does not represent either party in the mediation, does not provide them with legal advice, and does not decide issues.  Rather, the mediator provides the parties with information, and helps them to identify and address the relevant issues and to bridge their differences.  If the mediation is not successful, the parties may then litigate the action.  If the mediation is successful and parties reach a final separation agreement, that agreement will be binding, once the marriage is dissolved by a court.

If you have any questions related to divorce in Connecticut, please contact Joseph C. Maya, Esq. at (203) 221-3100 or e-mail him directly at JMaya@Mayalaw.com.

Considering Fault in a “No-Fault” Jurisdiction

During an initial telephone call or divorce consultation, prospective clients often ask whether Connecticut is in fact a no-fault jurisdiction.  People typically equate that concept with the idea that marital property will automatically be divided equally, with each party receiving fifty percent.  Although Connecticut is indeed a no-fault jurisdiction, one should not presume that, regardless of the circumstances giving rise to the dissolution, each party will necessarily receive fifty percent of the marital estate.

To be sure, there are several recognized grounds for a dissolution of marriage, many of which constitute the common understanding of “fault.” As set forth in Connecticut General Statutes § 46b-40, a Court may consider causes such as:

  1. adultery
  2. fraudulent contract;
  3. willful desertion;
  4. habitual intemperance; and
  5. intolerable cruelty.

If proven, a finding of fault may impact orders regarding property division and/or financial awards.

Connecticut is often referred to as a no-fault jurisdiction because a Court may dissolve a marriage simply because it has broken down irretrievably.  Although this provision allows couples to get divorced without proving fault on the part of either party, it does not mean the causes for the breakdown of the marriage, if there are any, are always irrelevant.  It simply means that a Court is not required to find fault before it dissolves a marriage.  Posada v. Posada, 179 Conn. 568 (1980).  This allows parties to obtain a divorce without exposing their private affairs in a public forum.

Importantly, even if a Court specifies that a dissolution is predicated on an “irretrievable breakdown” in the relationship, it is not precluded from considering causes when entering orders regarding property division and/or when making financial awards. Sweet v. Sweet, 190 Conn. 657 (1983).   Indeed, under C.G.S.A. §46b-81, the Court must consider the causes for the dissolution of marriage in fashioning orders regarding property division, and under C.G.S.A. §46b-82, must consider the causes for the dissolution in fashioning alimony orders.

As each matrimonial case presents its own unique circumstances, it is very important to understand the parameters of the factors set forth above, and the degree to which Courts will consider fault in a particular case.  It is also important to understand how to present such circumstances in an effective and meaningful way.  Should you have any questions regarding your own case, please do not hesitate to contact our office.  If you have questions regarding fault and no-fault jurisdictions, or any family law matter contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

Educational Expenses in Divorce

Educational expenses in divorce include expenses associated with higher education. Pursuant to Connecticut General Statutes § 46b-56c, an educational support order is defined as an order requiring a parent to provide support for a child or children to attend, for up to four full academic years, an institution of higher education or a private occupational school for the purpose of attaining a bachelor’s or other undergraduate degree, or other appropriate vocational instruction.  Parties may request an “educational support order” either at the time of the divorce or at some point afterwards.  If the Court does not enter an educational support order at the time of the divorce, however, the parties must specifically request that it retain jurisdiction over the matter, otherwise they will be precluded from seeking such an order at a later date.

Additionally, although C.G.S. §46b-56c defines “necessary educational expenses,” parties should cite the statute or define the phrase themselves if they enter into a separation agreement.  Indeed, if they fail to do so, the meaning may be left open to interpretation.  In Bollinger v. Feldman, Superior Court, Judicial District of Hartford, Docket No. FA020731923 (Nov. 18, 2010, Adelman, J.), the parties obtained a divorce by way of an agreement containing a provision titled “College Education of the Children.”  When one of the children took a college-level summer course for credit (while still a high school student), the father refused to contribute toward the tuition fee, claiming that it did not fall within the meaning of “college expenses” as set forth in the parties’ agreement.

The Court noted that the parties did not reference C.G.S. §46b-56c in their agreement; rather they used the phrase “all college expenses.”  However, the parties did not define the phrase, include qualifying language such as “reasonable and necessary,” or specify that such expenses would include only post-secondary education.  On that basis the Court held that since the course was given at a college, and the child earned college credits for her work, the expense must be covered under the parties’ agreement.  Given the vast array of expenses associated with sending a child to college, it is important to pay close attention to the language used in a separation agreement.  Indeed, as the case above illustrates, if parties fail to do so, they could find themselves litigating an otherwise avoidable issue.

If you have questions regarding educational expenses in divorce, or any family law matter contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.