Courts Can Enforce Non-Parent Visitation Even With Strong Parental Opposition

In a post-judgment action regarding non-parent visitation the Supreme Court of Connecticut ruled where a non-parent applicant for visitation meets his or her burden of proof, the best interests of the child shall be used to effectuate the relationship between applicant and child. In cases where the trial court is concerned for the child’s well-being at the hands of a parent, it wields the power to enforce visitation.

The plaintiff and defendant began dating in 1987, at which time the defendant had a sixteen-month old daughter from a previous relationship. The couple planned to marry in October 1993, but the relationship was terminated. In 1994, the defendant met another man and they married the following year, at which time she became pregnant with his son. At this point, the plaintiff and defendant resumed their relationship, and when she gave birth, the plaintiff was at her side. For the next two years, the plaintiff and defendant maintained their relationship and fostered one between the plaintiff and defendant’s children.

In 1998, the defendant’s husband was killed in a plane crash, and she suffered from and was treated for post-traumatic stress disorder and depression. She called off her relationship with the plaintiff, though permitted him to continue his seeing her children. The plaintiff wrote to the defendant’s psychiatrist expressing concern that the defendant was abusing her son, which prompted the defendant to cut off contact between the plaintiff and her son and, soon after, with her daughter as well. In August 2003, the plaintiff applied for visitation rights to both children (later amended for just the son, as the daughter became a legal adult while the application was pending). The plaintiff argued that he functioned as a father to the son, and terminating this relationship would cause serious and irreparable harm to the son.

In January 2005, the trial court found that the plaintiff proved by clear and convincing evidence that he had a parent-like relationship with the children. The court further stated that denying visitation would cause the son significant and actual harm and put him in the position like that of a child who was neglected, uncared for, or dependent. Regardless, the court ruled that it would not be in the best interests of the son to continue the relationship, expressing the belief that the defendant would inflict psychological harm on her son if visitation were permitted. The court stated that it was powerless with respect to enforcing visitation. The plaintiff appealed the trial court’s decision.

Parents have a constitutionally protected right to make decisions regarding how their children are cared for and brought up and, by extension, the right to control their children’s associations. The presumption is that fit parents act in the best interests of their children. However, there are circumstances in which a nonparent and a child have developed substantial emotional ties, where denying visitation would result in serious and immediate harm to the child. The type of harm that would prompt court intervention would be as though the child was neglected, uncared for, or dependent. If an applicant for visitation establishes the requisite relationship and harm, he or she exceeds what would have satisfied the best interest of the child standard, and the court has necessarily determined visitation is appropriate and should be ordered.

In this case, the Supreme Court found that the trial court improperly denied the plaintiff’s application for visitation, as the plaintiff met his burden of proof. The trial court failed to consider the statutory authority at its disposal to effectuate visitation, such as compelling the defendant and/or her son to undergo counseling, prescribing the conditions of visitation, or utilizing its contempt powers. The best interests of the child are not irrelevant after an applicant meets his burden, but instead help the court in determining how best to foster the relationship at issue. Due to the passage of time, the court remanded the case.

Whether advancing or defending a post-judgment motion to modify custody or application for visitation, a divorced parent is best served by consulting with an experienced family law practitioner. Should you have questions regarding matrimonial matters, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.