Posts tagged with "third party"

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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Court Awards Primary Residence to Father in Consolidated DCF Case

In a recent decision involving both a juvenile case and a proceeding in the family division of the Superior Court, a father was awarded primary residence of his daughter following a substantial change in circumstances. The Department of Children and Families initially became involved in the matter when it filed a neglect petition alleging that the child was being denied proper care and attention, or alternatively, was being permitted to live under conditions injurious to her well-being. Shortly thereafter, a finding of neglect entered. Prior to the commencement of the DCF proceedings, however, the father filed a motion to modify custody and visitation in the Superior Court. The matters were consolidated and a dispositional hearing was held in the juvenile court.

In its decision, the court first noted the standards governing the father’s motion to modify and the disposition of the neglect proceeding, respectively. First, it explained that after an adjudication of neglect, a court may: 1) commit the child to the Commissioner of DCF; 2) vest guardianship in a third party; or 3) permit the parent to retain custody with or without protective supervision. In determining the disposition portion of the neglect proceedings, the court must decide which of the custody alternatives is in the child’s best interest. With respect to the father’s motion to modify, the court noted that a party seeking modification of an existing court order must demonstrate a substantial change in circumstances to warrant the change requested.

From a factual standpoint, the court found that the mother and father were never married. Although the father had an extensive criminal background, and had been incarcerated for domestic violence directed at the child’s mother, he was later released on probation. His new residence was approved by the Office of Adult Probation, and was also approved as an appropriate placement for the child. At the time of the hearing, the father was employed, had no pending criminal charges and was compliant with his conditions of probation. Immediately prior to the filing of the neglect petition, the mother was arrested on numerous narcotics charges, which were still pending at the time of the hearing. After her arrest, both she and the father allowed the child to reside with the maternal grandmother during the mother’s access time. At the time of the hearing, the mother was living in a sober house.

After reviewing the evidence, and presumably based on the father’s release from prison (and the mother’s subsequent arrest), the court found that a substantial change in circumstances existed warranting a modification to the then existing custody and visitation orders. Simultaneously addressing its obligation to select a custody arrangement for the child pursuant to the neglect proceedings, the court further found that it was in the child’s best interest to live with the father on a primary basis, subject to a six month period of protective supervision.

Should you have any questions regarding DCF matters, or family matters in general, please feel free to contact Michael D. DeMeola, Esq. He can be reached in the firm’s Westport office by telephone 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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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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