Opinion
No. FA95 0051151S
October 18, 2004
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR MODIFICATION
This court held a hearing on September 9 and 10, 2004, on the plaintiff's (sometimes hereinafter referred to as the father) Motion for Modification of Custody filed in February 2004. He chose to represent himself in this matter. The defendant (sometimes referred to as the mother) was represented by Attorney Bernadette M. Keyes. The guardian ad litem, Anthony Fisser, Esquire, was appointed for the two minor children and testified to his opinion what the children's best interests would be in this custody issue. The minor children are Samantha Supranovich, born on September 30, 1989, and is now 15 years of age, and Tiffany Supranovich, born on December 27, 1993, now ten years of age.
By way of background, these parties were married on July 5, 1991 in Bethany, Connecticut. These two minor children are issue of this marriage. A decree dissolving this marriage was entered on April 25, 1996, approximately five years after the marriage. An agreement signed by the parties was incorporated into the judgment. (Mancini, J.T.R.). In this agreement, the defendant mother was awarded physical custody of the two minor children, the parties would share joint legal custody with reasonable, liberal and flexible visitation to the plaintiff father.
From the testimony of both parties, they agreed their marriage was unhappy from the beginning. The argued constantly over many issues that arose. The plaintiff admitted being physically abusive to the defendant on numerous occasions. He admitted punching her when she was pregnant with Tiffany and abused her in front of the children. He was arrested three times for domestic violence and protective orders were entered prohibiting him from having any contact with her and the children. He also admitted being an alcoholic and addicted to heroin and other drugs throughout this five-year marriage. He also admitted entering the psychiatric clinic at Yale-New Haven Hospital for his addictions in 1998. He testified being enrolled in Alcoholics Anonymous and has remained sober for the past 22 months, and that he no longer is using drugs or alcohol.
The plaintiff has filed three motions to modify physical custody to him since the dissolution decree was entered on April 25, 1996, approximately nine years ago. Both parties have made numerous other motions in this voluminous file. There have been three referrals to Family Services relative to this custody issue which resulted in two written evaluations and recommendations by Family Services. The first evaluation was prepared by Ms. Lisa Richard and filed on May 6, 1999. She addressed many of the issues in a comprehensive five-page report. The second evaluation was prepared by Ms. Karen Kutno and filed on February 2, 2000. In both evaluations, the recommendation was that physical custody remain with the defendant mother with liberal visitation to the plaintiff father. They both also recommended that this family participate in a psychotherapy program and individual psychotherapy be initiated for Samantha.
In February 2004, the plaintiff filed a third motion to transfer custody to him dated March 8, 2004, which resulted in a third evaluation by Ms. Desiree Pidlipchak, a Family Services counselor, who testified at the hearing. She has interviewed the parties, the two minor children, school personnel, and social workers with the Department of Children and Families (DCF) and has visited the defendant's home in Bethany, Connecticut, where the defendant and the children have been living. Ms. Pidlipchak found the home in disarray and unkempt. She is also concerned with the many referrals to DCF alleging physical and emotional abuse and neglect involving these children. There have been four referrals involving Tiffany and two involving Samantha alleging the perpetrators were the defendant and her current husband, Jose Hernandez. DCF found that these four referrals were unsubstantiated and these investigations were closed out on or about January 24, 2004. A fifth referral alleged physical and emotional abuse of both children by the defendant and her husband, Jose Hernandez. Again, the allegations were unsubstantiated and the investigation was closed on or about May 26, 2004. Ms. Pidlipchak testified that one referral remains open.
In her testimony, she concludes that custody should be transferred to the plaintiff father because he is better able to provide a stable and structured environment for these two minor children. The parties, the defendant's attorney, and the guardian ad litem all cross examined Ms. Pidlipchak at the hearing. All of them, including Ms. Pidlipchak, agreed on the record that both of these minor children wish to remain with the defendant mother and are bonded to her. The court ordered Ms. Fidlipchak to prepare a written evaluation which was filed on October 13, 2004, approximately one month after the hearing. It was ordered to assist the court in arriving at a decision. All of the parties and the guardian ad litem agreed that they were satisfied in cross examining her on her oral recommendations.
The guardian ad litem, Anthony Fisser, Esquire, has devoted an extraordinary amount of time to this case. He has interviewed the parties, the children, and others familiar with the issues involving custody and visitation. He testified that Samantha has visited with the plaintiff only twice this year, and Tiffany has visited him about thirteen times. Tiffany told Mr. Fisser, the plaintiff has beaten her a number of times during her visits and is afraid of him. Mr. Fisser believes these children have serious emotional problems that need to be addressed with a therapist. He also believes the parties should enter into a family counseling program to address their problems. Samantha lacks self-esteem and her emotional needs must be addressed with a therapist. Tiffany, who is ten years old, has been in special education in elementary school in Bethany. Samantha, who is now 15 years old, is a good student, enrolled in tenth grade in Amity Junior High School in Woodbridge. Both of them have told Mr. Fisser that they want to remain with the defendant mother. In spite of all the problems this case presents, he recommends that it is in the children's best interests to transfer custody to the plaintiff father because he offers them a more stable environment. He expressed serious reservations on splitting these children from each other.
The plaintiff has the burden of proving by a preponderance of the evidence that it is now in the best interests of these minor children to transfer physical custody to him and that there has been a material change in circumstances to warrant it.
General Statutes § 46b-56(b) states "in making or modifying any order in respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child, if the child is capable of forming an intelligent preference . . . The paramount concern in ordering a change in custody is the best interests of the child." Hall v. Hall, 186 Conn. 118, 121 (1982). The court must also find that there has been a material change in circumstances to justify a change in custody since the prior custody order was entered at the time of dissolution on April 25, 1996. Trunik v. Trunik, 179 Conn. 287, 289-90 (1979); Lane v. Lane, 64 Conn.App. 255 (2001).
The court has considered the testimony of both parties, the witnesses, the recommendations of the Family Relations officers, and the guardian ad litem, and has reviewed the exhibits.
In determining what is in the best interests of these minor children at this time, the court finds these facts were proven.
(1) The plaintiff admitted physically abusing the defendant throughout the marriage and, at times, in the presence of the children. He also admitted punching the defendant when she was pregnant with Tiffany.
(2) The plaintiff also admitted being an alcoholic and addicted to heroin and other drugs throughout the marriage.
(3) In 1998, the plaintiff entered the psychiatric ward at Yale-New Haven Hospital for an attempted suicide and was there for 17 days.
(4) As to his visitation, Samantha has visited him twice during this year and does not wish to visit him. Tiffany has visited him about 13 times this year and is afraid of him because he beats her.
The court finds these facts have had a negative effect on these children and negates the plaintiff's ability to parent them properly. Cappetta v. Cappetta, 196 Conn. 10, 16-17 (1985).
The court finds the children do not wish to live with the plaintiff and they have negative emotional ties toward him. Seymour v. Seymour, 180 Conn. 705, 711 (1980).
The court finds that both children are old enough and capable of making an intelligent preference as to where they wish to live. The parties, the Family Relations counselor, and the guardian ad litem all agreed the children wish to remain living with their mother where they have lived for the past nine years. Samantha is now 15 years old and is an average student in ninth grade at Amity Junior High School. She is old enough to make an intelligent preference. Tiffany is ten years old, the school personnel and this court, also believe she is able to also make an intelligent preference. Both of them wish to remain together with the defendant mother. The court has given substantial weight to the children's decision.
The court has considered the recommendations of the guardian ad litem and the Family Services counselor, Ms. Pidlipchak, that the children would be living in a safer and more stable environment which they believe the plaintiff is able to provide. Therefore, physical custody should be transferred to him. The court does not agree with their recommendations.
The plaintiff must prove by a preponderance of the evidence that it is in the best interests of these children to transfer physical custody to him at this time.
The plaintiff must also prove by a preponderance of the evidence that a material and substantial change to warrant granting him custody or a finding that the original order of custody to the defendant mother was not in their best interest. Kelly v. Kelly, 54 Conn.App. 50 (1999)
The court finds the plaintiff has failed to meet this burden of proof.
These facts were proven by the defendant mother. She has been the primary caretaker of these children for the past nine years. As a single mother, she has supported herself and provided for these children to the best of her ability, having been employed at the same time. She has worked as a school bus driver, at McDonald's, and studied nights to earn her high school diploma. She is not addicted to alcohol or drugs and has done her best in parenting her children. Her second marriage to Jose Hernandez has been abusive. She has filed for divorce and expects it will be granted within the next month. She has furthered her education and earned a degree as a paralegal and has worked for the past two years in the Probate Court of New Haven. The court accepted and believed the testimony of New Haven Probate Judge John Keyes. He testified that she is a capable and dedicated worker and has seen her interact appropriately with her children when they came to meet her at his office. Although there have been many referrals to DCF, DCF never removed these children from her custody. There is no doubt these children love and are bonded to her and she, in return, loves them. She has made substantial progress in reforming her life.
The two prior custody evaluations by Family Services concluded that physical custody should remain with the defendant mother.
For all of the above reasons, the court finds that it is in the best interests of the two minor children to remain in the physical custody of the defendant mother.
The plaintiff's Motion for Modification of Custody is denied. The parties shall continue to have joint legal custody with liberal visitation to the plaintiff father in accordance with the present parenting and visitation plan.
The following additional orders are entered:
1. The minor children and the defendant mother shall engage in ongoing, consistent individual counseling and that all parties participate in family counseling.
2. Both parties shall enroll in the Parenting Education Program within 60 days and complete it satisfactorily.
3. The plaintiff father shall refrain from using drugs or alcohol prior to or during visitation with these minor children.
The Court
By Romeo G. Petroni, JTR