Meaning of “Disability” for Child Custody Purposes is Not Unconstitutionally Vague

Appellate Court of Connecticut: Post-Judgment Divorce Action

In a post-judgment divorce action, the Appellate Court of Connecticut ruled that in making child custody determinations, the core meaning General Statutes § 46b-56 (c), which include sixteen factors to be considered in awarding child custody, is clearly established and is not unconstitutionally vague. Furthermore, a court may consider disability as a determinative factor if it is in the child’s best interest to do so.

The parties were the parents of two minor children, and the mother commenced a dissolution action in October 2006. Both parents sought joint legal custody of the children, but in August 2007, the father moved to modify the pendente lite custody and parenting plan, seeking sole legal custody of the children, to which the attorney for the minor children agreed. A trial was held, during which the mother’s mental health was considered (but no disability was actually found) in determining which party would be granted legal custody of the children. In June 2009, the court rendered a decision dissolving the marriage and awarded sole legal custody and primary physical custody of the minor children to the father.

Appeal Decision

The mother appealed this decision, arguing that the disability factor as outlined in the General Statutes § 46b-56 (c) (12) was unconstitutionally vague. Her proposed benchmark was “disability” as defined by the Americans with Disabilities Act, 42 U.S.C.S. § 12102(1), and because subdivision (12) was not as comprehensive, it would be impossible to apply.

When making any order with respect to child custody, care, education, visitation, and support, a court must consider the best interests of the children. General Statutes § 46b-56(c) enumerates sixteen (16) factors a court may consider in this determination, and is not required to assign any weight to any factor. The Appellate Court was not persuaded by the mother’s vagueness argument, noting that the core of subdivision (12) is clear: regardless the disability or health issue an individual may have, a court may consider this fact while determining child custody, as long as this factor is not determinative. The Appellate Court further found that if it is in the best interests of the child, a court may use disability as a determinative factor.

Whether advancing or defending a post-judgment motion to modify custody or 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.