Posts tagged with "mediator"

Marital Mediation Can Save Your Marriage

Leave a reply

The Difference between Marital Mediation and Divorce Mediation

The difference between marital mediation and divorce mediation is fairly obvious. Divorce mediation involves working with an impartial divorce mediator and your spouse to arrive at an agreement when you decide to divorce. A couple who chooses marital mediation have decided to stay together and not divorce. A couple wants to work together to strengthen the marriage and avoid divorce. In divorce mediation, a couple looks to the mediator for help understanding the divorce process and reaching a divorce settlement. Couples interested in marital mediation are looking for a safe place to discuss problems in the marriage. Common problems are co-parenting differences, financial concerns, and sharing household responsibilities. Unlike marriage counseling, in marital mediation the focus is more on solving problems rather than rehashing the past and placing blame. Marital mediation focuses on practical solutions which are then put into a written agreement by the mediator.

Who is Marital Mediation For?

Marital mediation is for couples planning to marry, already married, and in some cases, couples contemplating divorce. Couples may have been through marriage counseling which proved unsuccessful to elicit the changes they each want to better the relationship. One or both spouses may be on the fence whether to divorce or stay together. Marital mediation is a process couples find more appealing than therapy or marriage counseling. In marital mediation the focus is on solutions and less on the emotional reasons behind their marital problems.

When the Status Quo in the Marriage No Longer Works

Many couples do not want to divorce, but the status quo no longer works. One or both spouses are just not happy. With marital mediation, the mediator helps the couple talk about what each wants and needs in the marriage. Common concerns raised during marital mediation can be parenting styles, spending habits, financial concerns, and saving for retirement. Sometimes called, relationship mediation, marital mediation with an attorney mediator is a place to problem solve. It is often not helpful to rehash the past where blame and anger becomes the focus. The mediator will guide the couple away from the negative and toward more positive solutions.

The Role of the Mediator in Marital Mediation

The mediator helps facilitate discussion and create a safe environment where a couple can be open and honest with one another about the marriage. A couple discusses their concerns and arrives at solutions and goals to better the marriage. Now it is time to put everything in writing. Having a written document shows commitment and each spouse’s investment in a healthier and happier marriage. The mediator will prepare a legal document where both spouses commit to changing behaviors and reaching common goals to improve the relationship. The couple will memorialize their goals and “asks” in writing, providing a road map when problems arise in the future.

Marital Mediation and Divorce

Despite best efforts, some couples will eventually choose to divorce. Having gone through marital mediation, their divorce may be less acrimonious. If the couple ultimately chooses to divorce, they are generally more amicable and aware of why the marriage did not work without placing blame. Marital mediation helped them frame issues, improve their communication and each spouse is better able to listen to the concerns of the other spouse. The benefits of marital mediation will make for a more positive experience when they do eventually separate and divorce.

If you have any questions or would like to meet with one of our experienced divorce and family law attorneys, contact Maya Murphy, P.C. at (203) 221-3100 or email JMaya@mayalaw.com or SWakefield@mayalaw.com. We offer free consultations with all of our skilled attorneys in all areas of legal practice. Marital Mediation is a new service offered by our firm. Contact us today to learn more about our legal services.

In Marriage Dissolution, Alimony Award Was Determined by Length of Marriage and Stress in Relationship

Leave a reply

On July, 15, 2011, following trial in a Stamford based dissolution action, Judge Wenzel ordered the defendant husband to pay alimony to the wife as follows: from August 1, 2011 to December 31, 2011, the sum of $9,500 per month; from January 1, 2012 through December 1, 2012, the sum of $8,000 per month together with 30% of his gross income between $200,000 and $350,000; from January 1, 2013 through December 31, 2014 (or the closing for the sale of the marital residence, whichever occurs first) the sum of $6,000.00 per month together with 20% of his gross income between $200,000 and $300,000; and from January 1, 2015 until his 65th birthday, the sum of $4,000 a month.

Case Details

The Court found that the parties were married for approximately twenty-two (22) years.  Before marrying, they both lived and worked in New York City.  They moved to Connecticut around the time they got married and bought a house in Stamford.  In the late 1990s, after having three children, one of which was diagnosed with autism, they moved to New Canaan, where they purchased a new home.

The wife accused the husband of having multiple affairs, although the court noted she was unable to support her suspicions.  The wife also alleged that over the course of the marriage the husband spent long hours at his business, traveling frequently and staying at work late into the night, leaving her with all the responsibilities of running the household and caring for their special needs child.

The Husband denied the affairs and alleged that the wife had an extra-marital relationship of her own.  The wife concealed the physical component of the relationship for several years, but finally admitted to it immediately before her deposition.  The Court ultimately found the causes of the divorce to be attributable to the wife, and that her accusations were made solely for tactical reasons.  Nevertheless, the court held that its assessment of the cause of the breakdown of the marriage could not play a significant role in fashioning its alimony award.  Instead, it considered the length of the marriage and the fact that there had been great hardship and stress during the last half of the parties’ relationship.

–

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 contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free initial divorce consultations as well as free initial consultations on all other familial matters.

Boost in Divorce Boosts Economy

Leave a reply

The number of Americans getting divorced rose for the third year in a row to about 2.4 million in 2012, after plunging in the 18-month recession ended June 2009, according to U.S. Census Bureau data. Whatever the social and emotional impact, the broad economic effects of the increase are clear: It is contributing to the formation of new households, boosting demand for housing, appliances and furnishings and spurring the economy. Divorces are also prompting more women to enter the labor force.

“As the economy normalizes, so too do family dynamics,” said Mark Zandi, chief economist at Moody’s Analytics Inc. in West Chester, Pennsylvania. “Birth rates and divorce rates are rising. We may even see them rise strongly in the next couple of years, as households who put off these life-changing events decide to act.”

Divorce Rates

Divorces were at a 40-year low in 2009, according to Jessamyn Schaller, an economics professor at the University of Arizona in Tucson, citing data from the federal government’s National Center for Health Statistics. The divorce rate more than doubled between 1940 and 1981 before falling a third by 2009, according to figures from NCHS, based in Hyattsville, Maryland.

The rise in divorces has coincided with an increase in household formation. Almost 5.3 million households have been formed in the past four years after the figure slumped to fewer than 400,000 in 2009, according to the Census Bureau. That is bolstering the need for apartments, condos and furnishings.

“Separations and divorce often create additional housing demand by creating two households when there was one,” said David Crowe, chief economist at the National Association of Home Builders in Washington.

Home Construction Rebound

That has contributed to the rebound in home construction. Housing starts surged 67 percent to 923,400 in 2013 from 2009, according to Commerce Department data. Multifamily housing starts have almost tripled since the recession and accounted for 33 percent of residential construction in 2013, up from 20 percent in 2009.

Newly single men have been renting apartments in suburban markets as they seek to stay close to their children and attend school events, said Gregory Mutz, AMLI Residential Properties Trust chief executive officer. The Chicago-based company develops and acquires luxury apartments in the U.S.

“In unhappy marriages, they have started having the macroeconomic ability to unwind,” he said. That is creating “a little bit of a tailwind” for apartments.

About 150,000 divorces were postponed or avoided between 2009 and 2011, said Philip Cohen, a sociology professor at the University of Maryland in College Park who linked breakups to the economic cycle in a January 2014 paper.

Marriage and Unemployment

Both marriages and dissolutions are tied to unemployment, University of Arizona’s Schaller found in a May 2012 paper. Each one percentage point increase in the jobless rate is associated with a 1.5 percent decrease in the marriage rate and 1.7 percent drop in the divorce rate, she calculated.

Unemployment slid to a five-year low of 6.6 percent in January from 10 percent in October 2009. Home prices increased 22 percent in third quarter of last year compared with the first quarter of 2012, partially recovering a 35 percent drop from 2006’s second quarter, according to the S&P Case-Shiller U.S. Home Price index.
Story: Goldman: Corporate Profits Grew Five Times Faster Than Wages in 2013

Rising stock and home prices are giving couples greater financial security. Household net worth for the third quarter last year was more than $8 trillion above its pre-recession peak of $69 trillion reached in same period in 2007, data from the Federal Reserve showed in December.

Credit: Steve Matthews, Bloomberg news: http://www.businessweek.com/news/2014-02-18/worsening-u-dot-s-dot-divorce-rate-points-to-improving-economy

–

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 contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free initial divorce consultations as well as free initial consultations on all other familial matters.

Adoptive Children and Communications with their Biological Parents

Leave a reply

One of the adoptive parents’ principal concerns is the role of the biological parents. Is it possible for the biological parents to change their minds about the adoption? Can the biological parents communicate with the adopted child? Can the adopted child ever find out information about his/her biological parent(s)? All these questions can be nerve-racking for individuals who wish to adopt.

Revoking Consent to Adoption

The reality is that in all states, the biological parents have a period of time in which they can revoke their consent to the adoption. In Connecticut, Conn. Gen. Stat. § 45a-719 allows for a birth parent to file a petition to set aside an order voluntarily terminating parental rights at any time before the entry of the final adoption decree. However, a biological parent’s ability to revoke may be terminated in cases of abandonment, failure to support the child, or abuse and neglect. Once the court issues a final decree of adoption, a birth parent’s consent becomes final and irrevocable.

After a final adoption decree, it is possible for the adoptive child and biological parents to communicate. The extent of that communication can be negotiated prior to the final adoption decree. In some cases, biological parents and intended adoptive parents enter into what is known as a Cooperative Post-Adoption Agreement.  This is a written agreement between either or both birth parents and an intended adoptive parent(s) regarding communication or contact contact either or both birth parents and the adopted child. It is in the Cooperative Post-Adoption Agreement that the extent of involvement of the birth parents can be defined.

Non-Identifying Information 

In the case of Cooperative Post-Adoption Agreements, the identity of the biological parents is known.  However, generally, adoption records are sealed and only non-identifying information is provided to the adoptive parents or adopted child (if he/she is an adult) upon request. This non-identifying information includes:

(1) age of biological parents in years at the birth; (2) heritage of the biological parent or parents; (3) education stated in the number of years of school completed; (4) general physical appearance of the biological parent(s); (5) talents, hobbies and special interests of the biological parent or parents; (6) existence of any other child or children born to either biological parent of the adopted or adoptable person; (7) reasons for placing the child for adoption or for biological parental rights being terminated;

(8) religion of biological parent or parents; (9) field of occupation of biological parent or parents in general terms; (10) health history of biological parent or parents and blood relatives; (11) manner in which plans for the adopted or adoptable person’s future were made by biological parent or parents; (12) relationship between the biological parents; (13) any psychological, psychiatric or social evaluations; and (14) any other relevant non-identifying information.

Learning the Identity of Biological Parents

In the event that the adoptive parents or adopted adult child wishes to learn the identity of the biological parents, written consent must first be obtained from the person whose identity is being request. Therefore, the identity of the birth parents (if not already known) will remain unknown unless the birth parent(s) consents.

Given the significant impact that contact with biological parents can have on the adopted child, it is important to have an attorney who is well versed in adoption law.

By: Leigh Ryan, Esq.

–

If you have any questions or would like to speak to an attorney about a familial matter, please don’t hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free initial divorce consultations as well as free initial consultations on all other familial matters.

Adoption: The Gift of a Nurturing Home

Leave a reply

As children, many of us dreamt about having a family of our own, about our significant other, marriage, a house and children. But as we grow older, we realize that dreams do not always materialize in the way we thought they would. Families are no longer expected to be comprised of a mother, a father and 2 children. Just as the definition of family has changed, so have the requirements for adoption. Many adoption agencies and courts no longer discriminate based upon marital status, age, religion or race.  They have recognized that these differences do not affect a potential parent’s ability to be a good parent.

Along with the recognition that each potential parent is different, comes the fact that each child in search of a home is different. Many of the children available for adoption are in foster care and are there because their biological parents could not care for them. As a result, many suffer from physical, emotional and mental challenges.

Currently, there are 129,000 children in foster care waiting to be adopted. More than two-thirds of children in foster care are aged 6 or older, and more than half are minorities. In Connecticut, over 4,000 children are in the care of the State Department of Children and Families due to abuse, neglect or abandonment.  And, they are all searching for one thing: A loving and supportive home environment.

Positive Effects of Adoption on a Child

Adopting a child can have significantly positive effects on that child’s life.  Studies have shown that adopted children score higher than their middle-class counterparts on indicators of school performance, social competency, optimism and volunteerism. The 2007 National Survey of Adoptive Parents indicated that adopted children were more likely to read every day as a young child, more likely to be sung to or told stories, more likely to participate in extracurricular activities and have above-average performances in reading, language arts, and math, than that of the children of the general population.

Adopting a baby or child can be one of the most rewarding experiences of your life and one of the most amazing gifts to a child. However, the process can be complicated and involve various federal and state laws. It is important to have a Connecticut adoption lawyer to represent you in the adoption process.

By: Leigh Ryan, Esq.

–

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 contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free initial divorce consultation as well as free initial consultations on all other familial matters.

Family Law Update: Postnuptial Agreements Valid and Enforceable in Connecticut

Leave a reply

Upon beginning an action for a divorce, many people will disclose to their lawyers that the parties had already contemplated the end of their marriage, sometimes many years before.  More often than one would guess, the parties had even mapped out this projected end to their relationship with an agreement written during the marriage itself – maybe hammered out on the family computer, or perhaps scribbled on a restaurant napkin – which was intended by the parties to govern the terms of any divorce that would loom in the future.

With a waiver of alimony, a promise to exclude inheritance proceeds, or a pledge to leave the marital home – an intended postnuptial agreement could be as flexible and varied as the complex circumstances of the marriage itself.  However, unlike their premarital cousins (agreements executed before marriage are governed both Connecticut General Statutes Section 46b-36b et seq. and controlling precedent), postnuptial agreements had not been officially recognized by the Connecticut Supreme Court and the prospects of their enforceability at trial was nebulous at best.

A Relevant Court Case

In the decision of Bedrick v. Bedrick (SC 18568, 200 Conn. 691, decided April 26, 2011), the Connecticut Supreme Court has for the first time set forth parameters to test the enforceability of postnuptial agreements, noting that “we must now consider what standards govern their enforcement.  Neither the legislature nor this court has addressed this question.”  Bedrick, at 699.

Addressing first the question of whether postnuptial agreements are contrary to public policy, the Supreme Court concluded in the negative.  While historically, the Court had determined that prenuptial agreements (as an example) were generally held to violate public policy if they promoted, facilitated, or provided an incentive for separation or divorce” (citing McHugh v. McHugh, 181 Conn. 482, 488-89 (1980)), it has been more recently decided that “private settlement of the financial affairs of estranged marital partners is a goal that courts should support rather than undermine” (see Billington v. Billington, 220 Conn. 212, 221 (1991)).

The Bedrick court now opined that “postnuptial agreements may also encourage the private resolution of family issues.  In particular, they may allow couples to eliminate a source of emotional turmoil – usually, financial uncertainty – and focus instead on resolving other aspects of the marriage that may be problematic.”  Bedrick, at 698.

Marriage Contracts

In this case of first impression, the Supreme Court expressly acknowledged the heightened scrutiny that must be applied to a trial judge’s review of a contract between already married persons, noting that “spouses do not contract under the same conditions as either prospective spouses or spouses who have determined to dissolve their marriage.”  In its analysis, the Court points out that already married spouses are “less cautious” in a contractual relationship with one another than they would be as prospective spouses, and similarly, are “certainly less cautious” with one another than they would be with an ordinary contracting party.  “With lessened caution comes greater potential for one spouse to take advantage of the other.”  Id, at 703.

As such, the law now requires trial courts to enforce a postnuptial agreement only if it complies with applicable contract principles (including the element of consideration, or in layman’s terms, the “give and take” in any contractual arrangement), and if the terms of the agreement are both fair and equitable at the time of execution and if those terms are not unconscionable at the time of dissolution of the marriage.

Fair and Equitable Agreement

To determine whether terms are “fair and equitable” at the time of execution, a court will look to whether the agreement was made voluntarily, without any undue influence, fraud, coercion, or duress.  In addition, as with prenuptial agreements, there must be a factual finding that each spouse was given full, fair, and reasonable disclosure of all property, assets, financial obligations, and income of the other spouse when entering into the contract.

Importantly also, the Court further held that “unfairness or inequity alone does not render a postnuptial agreement unconscionable; spouses may agree on an unequal distribution of assets at dissolution.”  Id, at 706.  Trial courts are charged with applying a “totality of the circumstances” approach to determining the fairness and equity of enforcing a postnuptial agreement.

–

With this significant legal decision now available as a roadmap for divorce litigants and their counsel, it is critical that you consult with a knowledgeable and experienced family law attorney in determining your rights relating to an impending divorce. If you have any questions about this posting or confidential inquiries concerning the subject matter, please do not hesitate to contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com.

Supreme Court Establishes New Standard in Predictive Neglect Cases

Leave a reply
Neglect of Minor Children

In a decision involving the Department of Children and Families, the Connecticut Supreme Court established a new standard governing the doctrine of predictive neglect, overturning precedent which the Appellate Court previously established in In re Kamari C-L.  In the matter of In re Joseph W., the Department of Children and Families pursued neglect petitions against the parents of two minor children.

After trial, the court found that both children were in fact “neglected” under the doctrine of predictive neglect.  From a factual standpoint, the trial court based its decision primarily on the mother’s long term mental health issues and failure to comply with treatment plans, as well as the father’s noncompliance with DCF requirements and inability to recognize the mother’s problems.  The trial court essentially concluded that under the doctrine of predictive neglect both children were “at risk” for harm.  On appeal, the father claimed that DCF should have been required to satisfy a more burdensome standard.

Doctrine of Predictive Neglect

In reviewing the doctrine of predictive neglect, the Supreme Court explained that DCF need not wait until a child is actually harmed before intervening to protect that child.  As the Supreme Court stated, “Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected.”

The Court explained, “The doctrine of predictive neglect is grounded in the state’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred… Thus, [a] finding of neglect is not necessarily predicated on actual harm, but can exist when there is a potential risk of neglect…”

Under the standard set forth in In re Kamari C-L, DCF could establish its case merely by proving by a preponderance of the evidence the existence of a “potential risk” of neglect. However, as the Supreme Court noted, under this standard, DCF could theoretically prevail even if there was only a 10% chance of future harm to a child.  According to the Supreme Court, the “potential risk” standard gives insufficient weight to the “combined family integrity interests of parent and child.”

Determining Predictive Neglect

In formulating a more burdensome standard, the Court held that in predictive neglect cases, the trial court must find with respect to each parent that, if the child were to remain in that parent’s independent care, the child would be denied proper care and attention, physically, educationally, emotionally or morally, or would be permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth.  Where parents will be caring for the child together, the trial court may treat the parents as a single unit in determining whether DCF has met its burden of proving predictive neglect.

By: Joseph Maya, Esq.

–

Should you have any questions regarding the foregoing, or DCF matters generally, please feel free to contact Attorney Joseph C. Maya at Maya Murphy, P.C. in Westport, Connecticut.  He can be reached at (203) 221-3100, or by e-mail at JMaya@Mayalaw.com.

Court Denies Transfer of Guardianship to Grandmother

Leave a reply

In a proceeding involving the transfer of guardianship, the Court (Mack, JTR) denied a mother’s motion to transfer guardianship to the children’s maternal grandmother.  DCF initially became involved in the matter when it filed a Motion for Order of Temporary Custody approximately two months after the first child was born.  It then sought a second Order shortly after the second child was born.  The Court granted the motions, both of which were based upon allegations that the children were the subject of neglect, and the children were eventually committed to the custody and care of the Department.

The Court’s Findings

In reviewing the mother’s motion, the Court first noted that under the circumstances, she had to prove that the maternal grandmother was suitable and worthy, and that the proposed transfer to the maternal grandmother would be in the children’s best interests.  In reviewing the facts, however, the Court concluded that the mother failed to meet her burden.  First, the Court explained that the grandmother suffered from anxiety, and had a history of addiction stemming from two motor vehicle accidents.

At one point, in furtherance of that addiction, the grandmother called in fake prescriptions, which resulted in criminal charges.  Additionally, in 2009, she was arrested for robbery, assault, larceny and disorderly conduct.  The Court further noted that the evidence demonstrated an unhealthy relationship between the mother and maternal grandmother, which included frequent fighting that led to relatively serious injuries to both parties.  The Court found that the grandmother also enabled the mother’s drug habits, which included the use of heroin.

In light of the evidence presented, the Court ultimately held that the grandmother was not suitable and worthy to become the children’s guardian, and that such transfer of guardianship would not be in the children’s best interests.

–

Should you have any questions regarding DCF proceedings, or family matters generally, please do not hesitate to contact managing partner Joseph C. Maya at Maya Murphy, P.C. by telephone (203) 221-3100 or by e-mail at JMaya@Mayalaw.com.

Leading Divorce Law Firm in Fairfield County Connecticut: Maya Murphy

Leave a reply

Maya Murphy’s Matrimonial Law Group consists of a dedicated team of lawyers committed to representing its clients through the most complex divorce proceedings.  As a significant portion of our Matrimonial Law Group’s client base consists of high net-worth individuals, we have experience dealing with the valuation and division of a variety of assets including businesses, residential and commercial real estate, high-end personal property, trusts, various retirement vehicles, as well as stocks, bonds, and other securities.

Our matrimonial lawyers also counsel the Firm’s clients through the formation and execution of pre-marital agreements and often collaborate with our Trusts & Estates Group regarding issues involving trusts, testamentary instruments, and estate planning.  With attorneys licensed to practice in Connecticut and New York, we routinely handle cases originating in Fairfield County, Westchester County and New York City.

Matrimonial Law Representation

Our Matrimonial Law Group represents clients in dissolution and separation proceedings, custody and child support cases, as well as post-judgment custody and support modifications.  Our matrimonial lawyers handle each and every case professionally and diligently.  Though we aggressively litigate our more acrimonious cases when required, we always take into account the individual and unique needs, position and desires of each client, and recognize the importance of negotiating settlements when appropriate.  Our matrimonial lawyers are well versed in the mediation process as well, and are often retained in a neutral capacity, providing our clients with an alternative to the traditional adversarial divorce model.

Maya Murphy’s Matrimonial Law Group is dedicated to providing its clients with high quality representation, including a thorough knowledge of the law, unsurpassed attention to detail, unwavering client support and constant preparedness.  We understand that our clients are often in the worst situations they will ever personally encounter, and seek, at every turn, to alleviate their fears while protecting and advancing their interests in a court of law.

–

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 contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. We offer free divorce consultation as well as free consultation on all other familial matters.

When Third-Party Custody is Awarded in Connecticut

Leave a reply
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 Summarize

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).

–

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 contact Joseph Maya and the other experienced attorneys at Maya Murphy, P.C. at (203) 221-3100 or JMaya@Mayalaw.com. 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.