Prospective clients often call with inquiries regarding the custody and visitation rights of third parties.  In Fish v. Fish, 285 Conn. 24 (2008), the Connecticut Supreme Court articulated those rights in a comprehensive decision in which it determined whether a third party seeking custody of a minor child over the objection of a fit parent must satisfy the same requirements imposed upon third parties seeking visitation of a child.

Third-Party Visitation with a Minor

In Roth v. Weston, 259 Conn. 202 (2002), the Supreme Court held that a third party seeking visitation with a minor child must plead a relationship with the child akin to that of a parent, as well as real and substantial emotional harm analogous to the type of harm required to prove that a child is neglected, uncared-for or dependent under the standard set forth in temporary custody and neglect statutes.  The Court further explained that the degree of specificity of the allegations must be sufficient to justify requiring the parent to subject his or her parental judgment to unwanted litigation.

Once alleged, the third party must then prove the allegations by clear and convincing evidence.  As its rationale for imposing such a strict standard, the Court pointed to, at least in part, the landmark United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57 (2000), in which the Court observed that “the liberty interest… of parents in the care, custody and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by this court.”

The Best Interest of the Child

Turning to third party custody actions, the Connecticut Supreme Court in Fish noted that, pursuant to Connecticut General Statutes §46b-56b, in disputes regarding the custody of a minor child involving a parent and non-parent, there shall be a rebuttable presumption that it is in the best interest of the child for the parent to retain custody unless such custody is shown to be detrimental to the child.

As the Court explained, the rebuttable presumption and standard of harm articulated in the statute protects parental rights because the requirements preclude the court from awarding custody on the basis of a purely subjective determination of the child’s best interests or the judge’s personal or lifestyle preferences.

The Court’s Decision

In reviewing the meaning of Connecticut General Statutes §46b-56b, the Court ultimately rejected the invitation to adopt and apply the definition of harm it previously articulated in Roth.  Drawing a distinction between custody proceedings and visitation proceedings, the Court explained that in the former, the harm alleged stems from the denial of visitation with the non-parent.

In third party custody actions, however, at issue is the fundamental nature of the parent-child relationship, which may be emotionally, psychologically or physically damaging to the child.  In light of that fundamental difference, the Fish Court concluded that since a custody action directly attacks the competence of the parent, the standard employed to protect the liberty interests of the parent must be more flexible and responsive to the child’s welfare.

Thus, it held 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.” Id. at 56.  The Court added, “…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.

Should you have any questions regarding third party custody actions, or family matters generally, please feel free to contact Joseph C. Maya.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at