Opinion
(6661)
Argued December 20, 1988
Decision released January 31, 1989
Petition for visitation rights, brought to the Superior Court in the judicial district of Waterbury, Juvenile Matters, and tried to the court, Mihalakos, J.; judgment denying the petition, from which the petitioner appealed to this court. Error; further proceedings.
Jeffrey D. Ginzberg, for the appellant (petitioner).
Diane W. Whitney, assistant attorney general, with whom were Sonia Stoloff assistant attorney general, and, on the brief, Joseph L Lieberman, attorney general, and John R. Whelan, assistant attorney general, for the appellee (respondent department of children and youth services).
This appeal presents the question whether a former foster parent has standing to seek visitation rights under General Statutes 46b-59. The trial court held that a former foster mother does not have standing. We find error and remand for further proceedings.
General Statutes 46b-59 provides: "The superior court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court's best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable, provided the grant of such visitation rights shall not be contingent upon any order of financial support by the court. In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. Visitation rights granted in accordance with this section shall not be deemed to have created parental rights in the person or persons to whom such visitation rights are granted. The grant of such visitation rights shall not prevent any court of competent jurisdiction from thereafter acting upon the custody of such child, the parental rights with respect to such child or the adoption of such child and any such court may include in its decree an order terminating such visitation rights."
This appeal is controlled by Michaud v. Wawruck, 209 Conn. 407, 551 A.2d 738 (1988), and Temple v. Meyer, 208 Conn. 404, 544 A.2d 629 (1988). In Temple, our Supreme Court upheld the right of a third party to seek visitation under 46b-59. In Michaud, the court reiterated the significance of 46b-59, as previously set forth in Temple. These cases make it clear that 46b-59 is an encompassing, not limiting, statute. The statute "`leaves great latitude for the exercise of judicial discretion because it does not focus on the legal relationship of the parties involved. . . . The only criterion under 46b-59 is the best interest of the child." Temple v. Meyer, [supra,] 410." Michaud v. Wawruck, supra, 414. Moreover, this statute is not limited to use in dissolution actions only. See Temple v. Meyer, supra (action for visitation rights brought pursuant to 46b-59 and was not incident to a dissolution action).
Section 46b-59 is a third party visitation statute that can be invoked by persons who do not share a blood or legal relationship with a child. Temple v. Meyer, supra. Visitation will be granted under the statute only when it is in the best interest of the child.
The fact that the department of children and youth services has custody of the minor child does not alter our conclusion.