Posts tagged with "visitation in CT"

Court Denies Transfer of Guardianship to Grandmother

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.

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 call managing partner Joseph C. Maya for a free initial consultation. He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at

DCF May Rely on the Concept of “Predictive Neglect” to Obtain an Order of Temporary Custody

Clients often assume that in order for DCF to become involved in their life, a situation must arise warranting the Department’s intervention.  Though this is often the case, DCF may also rely on the concept of “predictive neglect,” allowing it to intervene to prevent future harm.

As the Appellate Court explained in a relatively recent decision, “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… General Statutes 17a-101(a) provides:

The public policy of this state is:  To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to  make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.”  (Internal citations omitted)  In re Ja-lyn, 132 Conn App. 314 (2011).

The Court further explained, “The doctrine of predictive neglect provides that “[t]he department, pursuant to Section 46b-120, need not wait until a child is actually harmed before intervening to protect that child… This statute clearly contemplates a situation where harm could occur but has not actually occurred.”  (Internal citations omitted) Id.

In the case cited above, DCF filed a neglect petition and subsequently obtained an order of temporary custody just six days after the child was born.  The trial court concluded that an adjudication of neglect was warranted because, among other things, the mother had a prior history with the department stemming from unresolved anger management issues.

In so holding, the trial court relied at least in part on the testimony of a social worker who stated that the mother had a long history with the department; that she had unaddressed substance abuse and mental health issues; that her other child was already in the Department’s care; that she tested positive for marijuana at the time of the child’s birth; that she had anger management and parenting issues; that the child’s father was incarcerated when the child was born; and that there was a history of domestic violence between the mother and father.

After considering additional evidence supporting the aforementioned findings, and relying on the doctrine of predictive neglect, the Appellate Court concluded that there was sufficient evidence to uphold the trial court’s determination.

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact managing partner Joseph Maya for a free initial consultation. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at

Court Rules that Father’s Periodic Contact with Children was Insufficient to Refute Claim of Abandonment

In a DCP proceeding involving a claim of abandonment, a Court (Wollenberg, J.) found that a father legally abandoned his children despite the fact that he continued to have periodic contact with them.  DCF initially became involved in the case after filing a Motion for Order of Temporary Custody and a Petition of Neglect.  The Court subsequently sustained the OTC, and the children were committed to the care and custody of the Department.  The mother consented to termination of her parental rights; however, the father objected.  With respect to the father, DCF alleged that he both abandoned the children and failed to rehabilitate.

In addressing the allegations that the father abandoned the children, the Court recounted the applicable legal standard explaining, “This ground is established when the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.  Sporadic efforts are insufficient to negate the claim of abandonment.

The test for determining abandonment of a child for purposes of termination of parental rights is not whether a parent has shown “some interest” in his or her child, but rather, whether the parent has maintained any reasonable degree of interest, concern, or responsibility as to the child’s welfare.”  The Court further explained, “The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.”

In considering the standard set forth above, the Court found that prior to the children’s removal, the father was not directly responsible for or involved with their care due to his incarceration.  The Court further found that his role in the children’s lives had been very minimal.  Although the father was eventually released from prison, he was inconsistent with visitation, which was emotionally upsetting for the children.  The Court opined that the father had very little insight as to how his failure to visit the children affected them, and that he simply failed to show a level of responsibility necessary to maintain regular and frequent contact with them.  The Court explained, “He does not have a good understanding of his children’s needs or how to properly meet those needs.  He minimizes their needs, believing that his presence alone will alleviate all of their behavioral and emotional issues.”  Among other things, the Court found that the father did not provide financial support for the children; rarely, if ever, sent gifts, cards or letters to the children; never contacted DCF to inquire as to the children’s well-being; never showed an interest in the children’s health or welfare; and failed to establish a proper living situation for the children.

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact managing partner Joseph C. Maya to schedule a free initial consultation.  He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at

In DCF Proceeding, Court Considers Mother’s Mental Health Issues

Connecticut Trial Court: DCF Proceeding Decision

In a decision involving a DCF proceeding, a Connecticut trial court relied primarily on a mother’s mental health issues in terminating her parental rights.  DCF initially became involved in the matter upon reports that the mother was using marijuana while caring for the child, and was providing inadequate supervision.  After violating the terms of a Safety Plan, the child was removed from the home pursuant to an Order of Temporary Custody.

DCF later filed a petition to terminate parental rights pursuant to Connecticut General Statutes § 17a-112, alleging that the parents failed to achieve a degree of personal rehabilitation as would encourage the belief that within a reasonable period of time they could assume a responsible position in the child’s life.

Connecticut General Statutes § 17a-112(k)

During the dispositional phase of a petition to terminate parental rights, the court must determine whether termination is in the best interests of the child.  Pursuant to Connecticut General Statutes § 17a-112(k), in arriving at that decision, the court must consider and make written findings regarding:

(1) the timeliness, nature and extent of services offered, provided and made available to the parent and the child;

(2) whether the Department of Children and Families has made reasonable efforts to reunite the family;

(3) the terms of any applicable court order, and the extent to which the parties have fulfilled their obligations under such order;

(4) the feelings and emotional ties of the child with respect to the child’s parents or guardian;

(5) the age of the child;

(6) the efforts the parent has made to adjust his or her circumstances, conduct, or conditions to make it in the best interest of the child to return home; and

(7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child.

Case’s Primary Issue 

In this particular case, the Court explained that the number of services provided to the mother was not dispositive; the primary issue concerned her personal mental health.  Indeed, the Court found that, “Unless she first deals with her feelings of inadequacy, her anger, mood swings, low frustration tolerance and feelings of isolation, she cannot make significant progress on other fronts. It is very likely that her failure to obtain employment, despite the diligent efforts described by her case manager, are related to her flat affect and other disabling mental health issues.”

In reviewing the factors set forth above, the Court noted that timely and appropriate services were provided for the mother, including efforts to reunify the family; however, reunification was not feasible unless and until the mother could overcome her mental issues.  With respect to the mother’s compliance with Specific Steps, the Court found that she was in denial as to the extent of her long-standing mental health issues, and did not recognize the impact her sadness, depression and anxiety had on her children.

Likewise, with respect to the mother’s effort to adjust her circumstances to make it in the child’s best interest to return home, the Court found that the mother failed to make sufficient effort to address her mental health issues.  Based on these findings, the Court terminated the mother’s parental rights and appointed DCF the statutory parent of the child for purposes of securing an adoptive family.

Should you have any questions concerning DCF proceedings, or family matters generally, please feel free to contact managing partner Joseph C. Maya to schedule a free initial consultation. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at

Trial Court Transforms Time Limited Alimony Award into Lifetime Alimony

Post Judgment Divorce Action

A decision rendered in a post judgment divorce action highlights the importance of using clear and unambiguous language when drafting alimony and support provisions meant to preclude modifiability.  In that particular case, the husband was obligated to pay to the wife periodic alimony in the amount of $1,500 per week until the death of either party, the wife’s remarriage or cohabitation, or her sixtieth birthday, whichever first occurred.  Significantly, the wife was also awarded a one-half interest in the marital portion of the husband’s profit-sharing plan which had a value of approximately $1,000,000, although the parties later agreed to reduce her share by just over $500,000.

Motion to Modify Alimony

One month before her sixtieth birthday, the wife filed a motion to modify alimony, claiming that substantial changes in the market resulted in a significant reduction in the value of the husband’s profit-sharing plan such that she would be unable to support herself as originally anticipated.  The trial court granted the wife’s motion and, although it modified the amount of alimony down to $1,095 per week, it eliminated all limitations on the term of the award.

The husband appealed arguing that the trial court’s order impermissibly transformed a limited duration alimony award into lifetime alimony.  In upholding the trial court’s decision, the Appellate Court explained that provisions precluding modification are generally disfavored, and to that end, an order shall be considered non modifiable only if the decree distinctly and unambiguously expresses so.  Indeed, if an order purportedly precluding modification is ambiguous, it will be deemed modifiable.

Although the order in this particular case indicated that alimony would terminate upon the wife’s sixtieth birthday, there was no provision in the judgment specifically stating that alimony was non modifiable.  For that very reason, the Appellate Court upheld the trial court’s ruling, declaring the provision ambiguous, and, thus, modifiable.  Again, this case emphasizes the importance of using clear and unambiguous language when crafting a separation agreement which will ultimately be incorporated into the Court’s judgment of dissolution.  If ambiguous or imprecise language is used, the provision at issue may become subject to judicial interpretation.

Should you have any questions regarding matrimonial matters, please do not hesitate to contact managing partner Joseph C. Maya to schedule a free initial consultation.  He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at

Nonmonetary Contributions and the Equitable Distribution of Property

In matters of marital dissolution, the manner in which property will be divided may appear rather complicated, but the courts have ample statutory guidance from General Statutes § 46b-81. One factor that a court must consider is the “contribution of each of the parties in the acquisition, preservation or appreciation in the value of their respective estates.” What, exactly, constitutes a contribution? Must the contributions only be monetary, such as income, or can they be non-monetary as well?

The court in O’Neill v. O’Neill directly considered this issue. In that case, the plaintiff appealed, in part, after the trial court refused to award her a lump sum property settlement. The court determined that the plaintiff “brought nothing to the marriage and contributed little to it.” 13 Conn. App. 300, 307 (1988). However, the plaintiff contested that she contributed significantly to the marriage in nonmonetary forms, such as the care and reading of the minor child and upkeep of the family home.

Because the term “contribution” was not clearly defined in the statute, the Appellate Court set out to determine what the legislature intended it to mean. In reviewing transcripts, the court noted that there was no intent to limit the meaning of the word “contribution” to cover only financial contributions to the marriage. Id at 309. One legislator stated, “It does provide that the court look at them not as men and women but as parties and look at their various obligations in their various capacities with respect to earning and all the other aspects that should be considered.” Id at 310. The court additionally noted in Footnote 1 of the opinion that other states specifically require courts to consider nonmonetary contributions of a homemaker spouse when equitably distributing property. Id at 309. With this in mind, the O’Neill court stated:

“A property division out to accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables he family to acquire tangible marital assets. The investment of human capital in homemaking has worth and should be evaluated in a property division incident to a dissolution of marriage. We hold, accordingly, that an equitable distribution of property should take into consideration the plaintiff’s contributions to the marriage, including homemaking activities and primary caretaking responsibilities.”

Id at 311. Because the trial court did not consider the plaintiff’s nonmonetary contributions in its property division determination, it abused its discretion.

Subsequent case law in Connecticut continues to echo this holding. In June 2009, the Superior Court of Connecticut, Judicial District of Danbury at Danbury heard a matter seeking dissolution of the parties’ seventeen-year marriage. The plaintiff husband earned substantially more income than the defendant wife, who worked only part-time so as to be able to care for their quadruplet children. In its memorandum of decision, the court specifically noted the O’Neill language before setting out in determining the property distributions.

Whether advancing or defending motion regarding awards of alimony, assignment of property, and child support, a divorced individual 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

In Contempt Proceeding, Court Awards Mother Counsel Fees and Statutory Interest

In a post judgment dissolution of marriage action, the Court awarded an ex-wife both counsel fees and statutory interest after finding that the ex-husband had willfully violated an Order related to payment of daycare expenses.  The parties were divorced in 2005 after a seventeen year marriage.  The parents of three minor children, they were both college educated and employed throughout the marriage.  The wife was a registered nurse and the ex-husband was a college professor.  Pursuant to the original judgment of dissolution, the ex-husband was obligated to pay the wife child support in a designated amount each week, plus 41% of any work related child care costs.  He was also obligated to pay a designated sum in alimony for a period of eight years, plus an additional $1.00 per year for thirteen and one-half years thereafter.

At trial, the ex-wife presented evidence showing that she incurred work related daycare expenses in the amount of $42,674.00 between 2005 and 2010.  She further claimed that the husband did not reimburse her for his portion.  The ex-husband testified that he assumed his ex-wife was working, but did not know she would need paid daycare since in the past she had used relatives or live-in nannies.  However, the ex-husband also admitted that he received various daycare records and bank statements from his ex-wife, but- indeed- did not reimburse her.

In reviewing the law regarding motions for contempt, the Court explained that a movant must demonstrate not only that the non-moving party violated a court order, but that his or her conduct was willful.  The Court noted that a finding of contempt was appropriate in this particular case because the defendant failed to offer a valid excuse for not paying for daycare even after receiving formal notice from his ex-wife.  Citing Connecticut General Statutes § 37-3a, the Court also Ordered the ex-husband to pay to his ex-wife statutory interest in the amount of 6% per year on the amount due, commencing on the date of its decision.  Exercising its discretion under Connecticut General Statutes § 46b-87, the Court further Ordered the ex-husband to pay the ex-wife counsel fees as an additional penalty for his noncompliance.

Should you have any questions regarding contempt proceedings, or matrimonial matters generally, please do not hesitate to contact Joseph C. Maya.  He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at

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 Joseph C. Maya.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at

Modification of Custody Orders: “Best Interests of the Child” Standard

Following a divorce (whether after a contested trial or by a negotiated settlement agreement), the parties should expect that circumstances concerning child custody may and likely will change over time – especially if the minor child was young at the time of judgment.  In asking a Court to modify a custody order, a parent should be aware of the applicable law and prepared to present facts to demonstrate a legal basis for changing a parenting plan.

Connecticut’s law regarding post-judgment modification of custody orders is well settled. General Statutes § 46b-56(a) gives authority for such modification to the trial court, and reads, in part, as follows: the court may at any time make or modify any proper order regarding … custody or visitation if it has jurisdiction … according to its best judgment upon the acts of the case and subject to such conditions and limitations as it deems equitable.

The granting of statutory authority to modify custody orders under the above provision is not without limitation. Our Supreme Court has “… limited the broad discretion given the trial court to modify custody orders under General Statutes § 46b-56 by requiring that modification of a custody award be based upon either a material change of circumstances which alters the court’s finding of the best interests of the child … or a finding that the custody order sought to be modified was not based upon the best interests of the child …” Walshon v. Walshon, 42 Conn.App. 651, 657, 681 A.2d 376 (1996); Hall v. Hall, 186 Conn. 118, 122, 439 A.2d 447 (1982).

Notwithstanding the limitations placed upon the court’s discretion to modify child custody orders, it is clear that, in our state, the overriding interest that must inform the court’s judgment is its obligation to craft decisions that are in the best interests of the child. General Statutes § 46b-56(c). “Before a court may modify a custody order, it must find that there has been a material change in circumstances since the prior order of the court, but the ultimate test is the best interests of the child …” (emphasis added).  Sheiman v. Sheiman, 72 Conn.App. 193, 199, 804 A.2d 983 (2002); Brubeck v. Burns-Brubeck, 42 Conn. App. 583, 585, 680 A.2d 327 (1996). “The paramount concern in ordering custody is the best interests of the child.” Hall v. Hall, supra, 186 Conn. 121.

In determining the best interests of the child, the courts are aided by the provisions of General Statutes § 46b-56(c), which lists sixteen factors, any or all of which may, in the court’s discretion, be used in such determination:(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers.

A parent seeking or opposing a post-judgment modification of child custody should consult with an experienced family law practitioner.  Further information concerning this posting or confidential inquiries may be directed to Attorney Joseph C. Maya at 203-221-3100 or

Motion to Modify Alimony Granted Upon 25% Reduction in Income

In a post judgment divorce action, the Court granted an ex-husband’s motion to modify alimony after he successfully demonstrated a 26% reduction in income.  The parents of four children, the parties were married for approximately 23 years before divorcing in 2004.  Pursuant to the Court’s judgment of dissolution, the husband was obligated to pay alimony in the amount of $114,400 per year for a period of four years, followed by $1,200 per week for a period of ten years. Said alimony obligation was non modifiable as to term, and modifiable as to amount, only if the husband’s income increased or decreased by 25% or more, or if the wife’s income exceeded $200,000.  Above and beyond the aforementioned alimony obligation, the husband was ordered to pay child support in the amount of $1,200 per week.

Unable to reach an agreement with respect to the husband’s motion to modify, the matter went to trial.  In support of his case, the husband introduced various tax returns showing that his income was reduced from approximately $500,000 in 2009 to approximately $350,000 in 2011.  The Court ultimately found that the reduction of precisely 26% satisfied the terms of the Court’s original judgment of dissolution which permitted modification only under the above mentioned circumstances.  It further opined that both households should bear some of the burden of that reduction and, thus, modified the husband’s alimony obligation by 26%.  Although the aforementioned change in the husband’s earnings alone was sufficient to warrant modification, the Court noted that the wife’s income also increased significantly, even though it did not exceed the $200,000 safe harbor set forth in the judgment.

Should you have any questions regarding matrimonial matters, please do not hesitate to contact Joseph Maya for a free initial consultation. He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at