Posts tagged with "clear and convincing evidence"

Custody and Visitation Rights of Third Parties- a Brief Summary

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.

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.”

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.

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 Michael D. DeMeola, Esq. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

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.

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Voluntary Application for Termination of Parental Rights Denied As Not In Child’s Best Interest

In a recent post-judgment action, the Superior Court of Connecticut, Judicial District of Fairfield, Juvenile Matters at Bridgeport found that despite the existence of a statutory ground for terminating parental rights, the petitioner failed to sustain his burden of proof that it would be in the best interests of the child to do so.

The petitioner, father, had six children prior to the birth of his seventh child in 2005 with respondent, mother. The father and mother were friends prior to their relationship turning sexual, and when she informed him that she was pregnant, he said he did not want a seventh child. The father gave the mother money to have an abortion, and although she took this money, she decided not to undergo the procedure. When the mother was hospitalized prior to giving birth to their son, the father admitted he visited her hoping she had had a miscarriage.

The father had numerous orders to pay child support for his six other children, which along with voluntary payments of support totaled $200 per week. The father only made $300 gross per week. The mother succeeded in establishing a child support order for their son, but as of November 2008, the father was in arrears on this order in the amount of $4,653, and he sought a downward modification of this order. The father made no attempts to visit the child, conveyed that he did not want the child or a relationship with the child, and stated that the child would be better off without him in the child’s life. The father admitted to the social worker assigned to this case that the mother’s child support order was a financial hardship.

When a court considers a petition to terminate parental rights, it first considers whether or not, under General Statutes § 17a-112 (j), a statutory ground allowing for termination exists by clear and convincing evidence. One such ground is abandonment, which occurs where a parent does not visit the child, show love or affection for or personally interact with the child, or display any concern for the child’s welfare. If a statutory ground for termination is established, the court then determines whether or not termination is in the best interests of the child.

In this case, the court found by clear and convincing evidence that the child had been abandoned by the father, who failed to maintain a reasonable degree of interest, concern, or responsibility for the child. The father clearly stated he did not want the child or wish for a relationship with him. However, the court was not convinced that termination was in the best interests of the child, though it might be in the best interests of the father. The degree of concern the father showed in the amount of child support he had to pay the mother was key to this inquiry, and the court was convinced that finances played a significant role in the father seeking termination of parental rights. Because termination was not what was best for the child, the court denied the father’s petition seeking termination of parental rights.

Whether advancing or defending a post-judgment motion regarding parental rights, a 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.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

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.

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Termination of Parental Rights Denied Upon Successful Rehab

In a recent child custody action, the Superior Court of Connecticut, Judicial District of Danbury, Juvenile Matters at Danbury found that the Department of Children and Families (Department) did not meet their statutory burden to terminate the rights of a parent who successfully rehabilitated herself.

The respondent, mother, gave birth to a daughter in September 2009. Two days later, however, the Department filed a petition of alleged neglect and a motion for an order of temporary custody. In November 2009, the daughter was adjudicated as neglected, committed to the care and custody of the Department, and placed into a foster home. Specific steps – what a respondent must do to be re-united with his or her minor child – were issued in December 2009. The Department later sought termination of parental rights, stating that the mother failed in achieving personal rehabilitation that would allow her to assume a responsible position in the life of the child.

A social study was conducted in June 2010 and revealed that the mother had a troubled past. She functioned at a borderline intellectual level, and had a history of transiency and being taken advantage of financially. She was involved with a man who abused her physically and emotionally, and she consented to termination of her parental rights to two sons born of that relationship. During interactions with her daughter, the mother was observed as very nurturing, attentive, and loving, but still required extensive training and support. The study recommended that the mother not be awarded custody due to safety concerns and lack of parenting skills, as well as her limited cognitive ability. The Department terminated services that would reunite the mother with her daughter after the mother had only just begun parenting classes.

By Summer 2010, the mother made substantial life improvements. She ended her former abusive relationship, after which she no longer appeared to be anxious or depressed. She was actively engaged in therapy bimonthly at Danbury Hospital and felt personal improvements as a result thereof. The mother was employed full-time in retail, and proved herself to be reliable and helpful to coworkers and customers alike. She pursued a career as a Certified Nurse’s Assistant, and was in the process of completing clinical training. In addition, the sought housing support services and subsequently qualified for a Section 8 subsidized apartment. Despite these improvements, the Department determined that the mother failed to rehabilitate and used this as statutory grounds for termination of parental rights.

In a matter seeking termination of parental rights, the Department must initially show by clear and convincing evidence that it made reasonable efforts at reunification between parent and child. In this case, the court found the Department did not meet its burden, because it terminated reuniting services shortly after the mother began parenting classes. As such, the mother did not have the opportunity to integrate what she learned into active supervised care of the daughter.

Personal rehabilitation is the restoration of a parent to a formerly constructive and useful role as a parent. It is analyzed as it relates to the needs of the child, and must be foreseeable within a reasonable time. A court must find by clear and convincing evidence that the level of rehabilitation achieved falls short of what would invoke a reasonable belief that at a future date, the parent can assume a responsible position in the child’s life. The “simple gauge” to determine whether a parent has achieved rehabilitation is whether or not, as of the date of adjudication, the parent is any closer to being able to provide satisfactorily for the neglected child than on the date of the child’s removal.

In this case, the court found ample evidence of personal rehabilitation by the mother: she ended the former abusive relationship, obtained housing, continued steady employment, and proved that she was quite capable of advocating for herself. The court characterized the Department’s conclusions as focusing on the mother’s limitations and ignoring her strengths and achievements in overcoming these limits. The court determined that the mother clearly met the “simple gauge” and proved that she could provide for her child. Therefore, the court denied the petition for termination of parental rights.

Whether advancing or defending a motion affecting parental rights, a 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.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

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.

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

In a recent post-judgment action, 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.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

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.

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Termination of Parental Rights Upon Finding of Inability to Provide Stable Home For Children

In a recent child custody action, the Appellate Court of Connecticut concluded that a trial court did not abuse its discretion when it terminated a mother’s parental rights to her two minor children was in their best interests.

In April 2004, the petitioner, the commissioner of the Department of Children and Families (Department), filed a neglect petition with respect to the respondent mother’s two minor children, arguing that the children were denied proper care and attention and subject to injurious living conditions. The following month, both the mother and the children’s biological father pled no contest and were subject to six months of protective supervision. Within two weeks, however, the commissioner sought orders of temporary custody. Over the course of the next two years, the children were returned to their parents under protective supervision, committed to the commissioner’s custody, and placed in foster homes. Finally, in February 2008, the commissioner filed a petition to terminate the mother’s parental rights.

A trial was held in October 2008, where the court found that the mother failed to take advantage of the numerous services offered by the Department to facilitate reunification with the children. She did not address her substance abuse and mental health issues, learned nothing about domestic violence, and continued to reside with the man who physically and sexually abused both children. The court concluded that because the mother made little effort to improve the conditions of the children’s environment, it was not in the best interests of the children to allow them to return home. Clear and convincing evidence supported terminating the mother’s rights, and the mother appealed this decision.

When a court hears a petition to terminate a parent’s rights, it undergoes a two-step process. First and foremost, the court must establish whether one of seven statutory grounds for termination, found in General Statutes §17a-112 (j), exists by clear and convincing evidence. Should a statutory ground be established, the court must then consider whether termination is in the best interests of the children. Even if a court finds that a bond exists between a parent and a child, termination may still be in the child’s best interest. In this case, the Appellate Court determined that the mother was unable to provide a stable home for her children, and even though she shared a loving bond with them, termination was still proper. Furthermore, though legal rights to the children were terminated, this did not preclude the mother from being able to otherwise maintain interaction with them.

Termination of parental rights is not precluded simply because adoption of the child by new parents is not imminent. On the contrary, such termination may instead preserve the stability a child has acquired in their foster placement, and removes barriers to potential adoption. In this case, the mother argued that her rights should not have been terminated with respect to one child because that child did not have a pre-adoptive family at the time of trial. However, the Appellate Court was not persuaded, stating that the child may be permanently placed with her present foster mother or a half-brother with whom the child expressed the desire to live and be adopted by if her mother’s rights were terminated. Therefore, the Appellate Court affirmed the trial court’s decision.

Whether advancing or defending a motion regarding parental rights and child custody, a 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.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

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.

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Ever Wonder about Parental Termination, Abandonment, and the Best Interests of the Child?

Written by Lindsay E. Raber, Esq.

The termination of parental rights has been equated to be the civil equivalent of the death penalty. When a court entertains a motion seeking such an action, it partakes in a two-step inquiry: whether, by clear and convincing evidence, one or more statutory grounds for termination exist and termination is in the best interests of the child. In the first part of the inquiry, the court looks to the facts of the case to see whether the party seeking termination has shown at least the presence of one statutory ground for terminating parental rights. One such ground is abandonment, which is constitutes a parent’s “failure to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.” The court will consider attempts at physical and telephonic contact with the child, whether the parent sent gifts or cards on birthdays and the like, and whether the parent provided any financial support for the child. Sporadic attempts are insufficient to be considered “reasonable.”

As to the second part of the inquiry, the court must determine whether it is in the child’s best interests to maintain parental rights or to terminate them. Best interests include “the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment.” The focus is on what’s best for the child, not what is best for the parent. When a court decides one way or the other, it must consider and make factual findings regarding seven factors found in General Statutes § 45a-717(h), including but not limited to the age of the child and the attempts made by a parent to adjust his or her circumstances, conditions, and conduct so as to allow reunification with the child.

In a recent post-judgment divorce action, the Appellate Court of Connecticut upheld a lower court’s termination of a father’s parental rights to his son. In that case, the father had exhibited inconsistent, unorthodox, threatening, and criminal behavior that caused the mother to flee the State of New York to hide in Connecticut with their child. The father abused alcohol and drugs, and after their son was born, he would frequently disappear for prolonged periods of time. While the father was incarcerated, he failed to take advantage of established programs that would have allowed him the opportunity to keep phone contact with his son, and even when he had supervised visitation, he frequently missed scheduled visits. Furthermore, during therapy sessions, the son expressed the desire to not have contact with his father, and the apparent need to learn karate to protect him and his mother should the father attempt to harm them.

The mother sought termination of the father’s parental rights, and the trial court concluded, based on the evidence presented reflecting the above and additional testimony from therapists, other professionals, and additional witnesses, that termination was proper. It determined by clear and convincing evidence that the father abandoned his son, and that reestablishing contact with the child would be detrimental to the child’s well-being and best interests. The father appealed the decision, but the Appellate Court agreed with the lower court’s findings and affirmed judgment.

Whether advancing or defending a post-judgment motion regarding parental rights, a 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.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

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.

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Trial Court Did Not Err in Terminating Incarcerated Father’s Parental Rights

Written by Lindsay E. Raber, Esq.

In April 2006, the petitioner, the commissioner of the Department of Children and Families (Department), filed a neglect petition for the defendant father’s newborn daughter. At the time, the minor child’s mother was a transient with unresolved substance abuse problems, while the father was incarcerated on federal drug charges and would not be released until at least April 2010. The child was adjudicated neglected that June and placed with a foster home. The court ordered steps for the father to complete, which included keeping Department personnel up-to-date on his location, parental counseling, and substance abuse treatment.

In March 2009, the commissioner filed a petition to terminate the father’s parental rights. The trial court found clear and convincing evidence that the father failed to reach a sufficient “level of rehabilitation… which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his child’s life].” In addition, termination was in the best interests of the child. The father appealed this decision, arguing that it was improper for the court to rely on his incarceration in its determination, and that the Department did not make reasonable efforts to reunify the family.

When a court entertains a petition to terminate parental rights, it must first find, by clear and convincing evidence, both a statutory ground for termination (as set forth in General Statutes § 17a-112) and that termination is in the best interests of the child. Termination cannot be grounded on a parent’s incarceration alone. In this case, the Appellate Court wrote that the trial court’s finding that the father did not satisfy the statutory ground of personal rehabilitation was proper. It noted that while incarceration may impose restraints on the services available to a parent in achieving rehabilitation, it by no means entirely cuts the parent off from doing so. The Department is not the only resource; rather, the father could have immediately utilized services from the Department of Correction. However, the father waited three years to do so. Therefore, the trial court did not commit clear error.

Pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, the Department must make reasonable efforts to reunite families. However, Connecticut courts have established that reasonable is the operative term, which does not require everything possible. The trial court cited numerous pieces of evidence in support of the Department’s efforts, including repeated efforts to facilitate visitation with the child, the father’s repeated failure to communicate, and a Department investigation into whether the father’s siblings would be suitable placements for the child. As such, the trial court’s finding that the Department made reasonable efforts to reunite the father with his child was not clearly erroneous.

Whether advancing or defending a motion regarding parental rights, a 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.
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Our family law firm in Westport Connecticut serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton. We have the best divorce attorneys and family attorneys in CT on staff that can help with your Connecticut divorce or New York divorce today.

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.

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Connecticut Passes New Legislation Concerning Third Party Visitation

In what appears to be an effort to clarify, and perhaps simplify, the law regarding visitation rights of grandparents and other third parties, the Connecticut legislature has enacted Public Act No. 12-137, which became effective October 1, 2012. Essentially codifying the standards set forth in Roth v. Weston, 259 Conn. 202 (2002), the Connecticut legislature has revised and supplemented C.G.S. § 46b-59. First, the new legislation requires that a third party applicant allege in good faith that a parent-like relationship exists between the person and the minor child, and that denial of visitation would cause real and significant harm. “Real and significant harm” means that the child is neglected or uncared for, as defined in C.G.S. § 46b-120. Second, the Act requires that the applicant prove the allegations by clear and convincing evidence.

Adding to the Connecticut’s Supreme Court’s ruling in Roth, the legislature added specific factors a court may consider in determining whether a parent-like relationship exists. A court may consider, 1) the existence and length of the relationship between the person and the minor child prior to the submission of a visitation petition; 2) the length of time that the relationship between the person and the minor child has been disrupted; 3) the specific parent-like activities of the person seeking visitation toward the minor child; 4) any evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent; 5) the significant absence of a parent from the life of a minor child; 6) the death of one of the child’s parents; 7) the physical separation of the parents of the minor child; 8 ) the fitness of the person seeking visitation; and 9) the fitness of the custodial parent. Additionally, when determining whether a parent-like relationship exists between a grandparent and a minor child, a court may consider the history of regular contact and proof of a close and substantial relationship between the grandparent and the minor child.

The new Act also provides that if a court grants visitation rights to a third party, it must set forth certain details, including a visitation schedule (e.g., the days, times and location of the visitation), whether overnight visitation will be allowed, and any other conditions the court determines are in the best interest of the child. In determining the terms and conditions of visitation, the court may consider the effect the visitation will have on the relationship between the parent and the minor child, and the effect on the child of any domestic violence that has occurred between or among parents, grandparents or other third parties seeking visitation. Notably, the legislature also added a provision providing that visitation rights with a third party shall not be grounds for preventing the relocation of the custodial parent.

Although Public Act No. 12-137 did not necessarily change the law regarding third party visitation in Connecticut, the new legislation certainly provides additional clarification and direction in this area of law for both litigants and attorneys. Should you have any questions regarding custody matters, please feel free to contact Attorney Michael D. DeMeola, Esq. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.
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Our firm in Westport serves clients with divorce, matrimonial, and family law issues from all over the state including the towns of: Bethel, Bridgeport, Brookfield, Danbury, Darien, Easton, Fairfield, Greenwich, Monroe, New Canaan, New Fairfield, Newton, Norwalk, Redding, Ridgefield, Shelton, Sherman, Stamford, Stratford, Trumbull, Weston, Westport, and Wilton.

If you have any questions or would like to speak to an attorney about a divorce or familial matter, please don’t hesitate to call our office at (203) 221-3100 for a free consultation. Divorce is difficult, education is power. Call today.

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Superior Court Denies Motion to Dismiss, Tape Recording of DUI Suspect’s Phone Call to Attorney Was Not Prejudicial State Intrusion

In a recent criminal law matter, a Superior Court of Connecticut determined that the recording of a one-sided conversation between the defendant and his attorney was not a prejudicial intrusion into attorney-client protections, and as such the Court denied the defendant’s motion to dismiss.

This case arose from an incident that occurred on the evening of March 25, 2010. A police officer on route patrol observed the defendant driving his motor vehicle on the Berlin Turnpike in Wethersfield, CT. The officer suspected that the defendant was driving under the influence, so he initiated a traffic stop and administered several field sobriety tests. The defendant was arrested for operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a, advised of his Miranda rights, and transported to the police station.

The defendant was placed in a booking room specific to OMVUI cases. Pursuant to its own policy, the department records everything that goes on in this room. As the officer in this case later testified, “[U]ntil the processing is complete, police policy requires the officer to keep visual observation of the defendant ‘so they don’t put anything in their mouth.’” The officer gave the defendant a notice of rights, which included information about the results of or the refusal to submit to a chemical alcohol test, and stated the defendant could contact an attorney. The defendant made telephone contact with an attorney, and police recorded the defendant’s side of this conversation, which at times was either muffled or inaudible.

After the phone call was completed, the defendant refused to take the Breathalyzer test. The officer did not use the contents of the tape in his investigation, nor did it influence the charges brought against the defendant. In addition, upon learning of the tape’s existence, the prosecutor advised defense counsel that the State also would not use it; indeed, the tape was not introduced into evidence. However, the defendant moved to dismiss the case, arguing that his Sixth Amendment rights were violated because the tape recording constituted an impermissible State invasion of the attorney-client relationship.

Under the Sixth Amendment, any communication between an attorney and his client “made in confidence for the purpose of seeking legal advice” is protected by the attorney client privilege. However, this is no reasonable expectation of confidentiality if the statements are made in the presence of a third party. Therefore, a reviewing court must consider whether or not an invasion by the State into this privilege was “so prejudicial to warrant dismissal of the charges.” There is a rebuttable presumption of prejudice, which can be overcome if the prosecutor presents clear and convincing evidence that the intrusion was nor prejudicial to the outcome of the case. In a recent opinion, the Supreme Court of Connecticut admitted that the Sixth Amendment is automatically violated where there is “mere unintentional intrusion into privileged information containing trial strategy.”

In this case, the Superior Court reviewed the content of the one-sided phone call and determined that there was nothing of strategic value discussed, such as the credibility of trial witnesses, potential evidence, what to focus on during witness examinations, or specific arguments or defenses. Rather, from the conversation we learn that the defendant was concerned with his probation status, whether to take the Breathalyzer test, the implications of a refusal, and his wife’s reaction to the arrest. Therefore, the Court found the defendant was not prejudiced by the State intrusion and denied his motion to dismiss.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, 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.

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