Opinion
No. KNO FA 04 4101046 S
June 30, 2011
MEMORANDUM OF DECISION ON MOTIONS TO OPEN AND MODIFY JUDGMENT AND MOTION FOR CONTEMPT
Before this court are plaintiff's April 26, 2011, motion to open and modify a judgment of custody (#161), her May 6, 2011 motion to the same effect which further sought emergency, ex parte relief (#163), and defendant's May 10, 2011 motion claiming that she is in contempt of certain prior orders of the court (#165).
On February 26, 2010, this court issued a memorandum dealing with prior motions of the same ilk. At that time, the court made this observation:
Like a crack appearing in a delicate glass sculpture which portends its eventual shattering, the signs of distress over her parents' bickering which the child is already exhibiting bode ill for her future. On at least two occasions (one detailed by plaintiff, the other by the guardian ad litem), this normally happy child was seen to withdraw into a more emotionally protected posture when in the presence of her two parents at the same time. She still possesses the potential for a loving relationship with each, yet their persistent discord may well polarize her and cause her to experience profound negative consequences . . . The love which each professes for this child ought to be an adequate motivator to inspire the parties to find some means by which to minimize this potential for their daughter's future suffering. The orders set forth below are specifically intended to reduce the contact (and hence the conflict) between them, at least until they learn how to reduce the rancor. If this attempt is not successful, this court will not rule out further modification.
That observation was based upon the evidence heard in 2010, and was also informed by the following history revealed in the file:
1) The child was born on July 25, 2003, and her parents separated in June of 2004, before her first birthday. The first order of custody, entered pendente lite on February 15, 2005 (Domnarski, J.), conferred sole custody upon applicant, and limited respondent to supervised visitation.
2) In 2008, both parties filed a series of motions which culminated in a hearing on September 19, 2008. Respondent had filed five separate contempt motions in the preceding three months. On that occasion, the court (Fuger, J.) denied all five motions, but made minor changes to the visitation order while preserving the general requirement that it be supervised.
3) In 2009, the parties filed mutually-accusatory applications for temporary restraining orders, and other motions which came before the court on March 13 of that year. The court (Fuger, J.) slightly modified the visitation order a second time, but denied all other relief requested.
4) On March 24, 2009, nine days following that hearing, respondent filed a new motion to modify the judgment. This remained pending until August 4, when the court (Goldberg, J.) made a substantial change in the original order by awarding joint custody to both, and allowing visitation to thereafter be unsupervised.
5) On December 31, 2009, respondent filed a new motion seeking both a further modification of the judgment, and that applicant be held in contempt for violating the August orders. On her part, she alleged contemptuous behavior by him. On February 26, 2010, the court (Boland, J.) denied both contempt motions. I further modified the visitation orders by making them precise and inflexible, intending to limit the parties' discretion and thus diminish the likelihood of their dispute continuing unabated until their daughter reaches age 18.
Plaintiff's two motions now before the court seek an order of sole custody and a return to the era of supervised visits only. She asserts that the child, now seven years old, has expressed extreme reluctance to visit with her father or speak to him on the telephone. She described to the court a number of her daughter's behaviors relative to these events. The child exhibits distress each evening while awaiting father's calls, and cringes each time the phone rings. She flatly refuses to attend any more visits. Mother's attempts to convey to the court what the child said to her were objected to on hearsay grounds, and the court sustained those objections. Mother was able, however, to introduce evidence as to father's own words spoken in her presence or within her earshot, and these included attempts on his part to undermine her discipline, and to impede a relationship between the child and her stepfather, mother's recently-acquired new husband. Her reports were corroborated by the testimony of the maternal grandmother.
That court-appointed guardian ad litem, Scott McGowan, has served on and off in this role for over three years, and has observed the family dynamic at length. He confirms mother's reports as to the child's present antipathy towards her father. She told her guardian that she fears her father. She is in therapy now, but that is a recent development and neither party called the therapist as a witness.
The respondent produced several photographs of himself and the child taken during recent visits, which show her apparently happy and enjoying her time with him. In his own defense, respondent didn't deny the substance of the charges that he has made statements hostile to mother in the child's presence. Instead, he maintains, both parties are engaged in the same behavior, and the child is none the worse for it. In fact, it appears that he was arrested recently during a time he was picking up or dropping the child off. He stands accused of assaulting the maternal grandfather. This court advised him of his rights against self-incrimination, and neither party discussed this incident in detail. Significant for present purposes, however, is his admission that he did discuss with the child the details of the police report — apparently wanting her to know what the adults were saying, so that she could set the record straight with whomever was not reporting accurately.
He denies that she is unhappy to see him. His denial runs counter to the evidence presented by the other three witnesses. Since the therapist is only beginning her work, and did not testify, this court is unable to fully reconcile the photographic evidence with the verbal reports. The photos may depict a young lady adapting to a fate she did not choose, and the court finds it more likely than not that this child is still suffering acutely from her parents' distress even if the full extent of, or remedy for that suffering, is not yet apparent.
Today, in the words of the child's guardian ad litem concluding the hearing held on the present motions, "the animosity is astronomical." The court's hope for the parents' coming to some resolution of their conflict was unfounded. Some flavor of the parties' acrimony is imparted by applicant's answer to respondent's question "Why didn't you let me know that you are moving?" because, in her words, "When I talk to you about things you don't like, you swear at me and call me a c — ." The enduring and passionate battle between the parents renders the 2009 joint custody arrangement no longer workable and hence not in the child's best interest; as such, the court has the authority to modify it. Lambert v. Donahue, 78 Conn.App. 493 (2003) (". . . the parties' complete inability to communicate concerning their child . . ." constitutes a substantial change of circumstances, 78 Conn.App. 493, 506). Moreover, as established by the same court in Szczerkowski v. Karmelowicz, 60 Conn.App. 429 (2000), the best interests of a child may warrant modifying a prior order even in the absence of a finding of a substantial change.
The court is also concerned as to how visitation between father and child can occur in a way that benefits the child. His persona is complex. On the one hand, he is an obviously intelligent and articulate man who has learned to live with a diagnosis of schizophrenia, and who has had the strength of character to overcome an earlier addiction to alcohol. He has become a leader in the local alcoholics anonymous program. He introduced into evidence ten well-written letters of reference from friends, co-workers, and family members, describing him as a good father and good person. In his visits with the child, he appears motivated to expose her to a variety of social and intellectual experiences which would undoubtedly be of value to her.
On the other hand, he harbors malevolence towards the child's mother of which he almost seems proud. Nothing in the record explains what gives rise to this antipathy, and its effect upon the child in the past several months has been dismal. As she approaches age 8, it appears to be as intense as ever.
In light of the child's present dysphoria, how are her interests served by imposing upon her a requirement that she spend time with her father, supervised or not? This court is not persuaded that compelling a young child to endure painful visits serves any useful purpose. However, the court has neither the power nor the desire to terminate his parental rights, nor to perpetuate her separation from her father. Thus any orders entered today that suspend visitation are not expected to endure indefinitely.
What must be done to get this family back on the path to normalcy? This court is not a therapeutic entity, and lacks the interventions available, for instance, in the juvenile division of the superior court, to assist parents in overcoming the circumstances which limit their abilities to raise their children as best as possible. This court does not foresee that either the mere passage of time, or rote compliance by father with any order of counseling or therapy, will alone suffice to assure the court that he has attained the ability to be involved meaningfully in his daughter's life without exposing her to new manifestations of his unresolved bitterness towards her mother. At the very least, before any motion to restore visitation is granted, the court should have before it:
1) A report detailing the therapist's perspective as to the effect on the child of the past years' behavior on the part of both her parents, and an expert's opinion as to how further contact with each parent can assuredly not be harmful to her.
2) Also, the pending criminal charges against respondent, which emanate from an instance involving the child's grandfather and to which, apparently, she was a witness, should be resolved in a way that either acquits him from responsibility for the encounter, or reveals his accountability, if any, for whatever occurred, and his response to what the criminal court demands of him, if anything.
3) Furthermore, the court should be aware of what steps he has taken to professionally identify and control the quiet rage which causes him to remain embroiled with applicant so many years after their romantic relationship failed.
This list is not exhaustive, but is intended to enlighten the parties as to the questions which this jurist thinks remain in need of answers.
Lastly, as to the contempt, the court finds, as respondent asserts, that applicant did unilaterally suspend visitation prior to the court's authorizing her to do so. Her failure to literally comply with this court's visitation orders may, but does not automatically, mean that she ought to be found in contempt. In Meehan v. Meehan, 40 Conn.App. 107 (1996), the Appellate Court upheld a trial court's refusal to hold in contempt a mother who thwarted visits between her children and their father because of her fear that he might harm the children. The decision cited a line of cases holding that a contempt finding depends on the facts and circumstances underlying it, including Dukes v. Durante, 192 Conn. 207 (1984), which stated that "it is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order," 192 Conn. 207, 228. As applied to this case, the court finds that applicant acted in good faith to protect her daughter from further emotional harm that would likely have befallen her had the missed visits been observed.
Accordingly, taking into account the foregoing findings, and to further the best interests of this child, the applicant's motions to modify are granted and it is hereby ORDERED:
1) She is awarded sole custody of the minor child.
2) Applicant shall continue the child's present therapy until the therapist recommends its termination, or the court, upon proper motion, allows termination.
3) Notwithstanding the modification, applicant shall continue to supply the respondent with relevant information as to their child's educational and medical needs and progress, including the therapist's insights, in a timely fashion. Each parent is ordered to open an account on Ourfamilywizard.com, a website which exists to allow communication between high-conflict parents. Each shall pay one-half the cost of the program, but not to exceed one hundred dollars apiece. Both are encouraged, but not ordered, to participate in local counseling for high-conflict parents such as the Focus on Kids program through United Community and Family Services of Norwich, CT., or the P.E.A.C.E. Program through Beacon Behavioral Services, LLC., of Avon, CT.
4) Until a subsequent hearing by the court, upon proper motion by respondent, and his showing to the court that a resumption of visitation is in the child's best interest, no visitation is hereby ordered to occur. However, this order does not preclude mother from allowing visitation if done upon the recommendation of the child's therapist, and under circumstances she deems adequate to protect the child, in advance of any such judicial modification.
5) The motion for contempt is denied.
6) Previous orders as to child support and health insurance shall remain in effect.
7) The appointment of Attorney McGowan as guardian ad litem is hereby vacated. He may discuss the payment of his fee for services since the most recent appointment with the parties but, if unable to achieve a satisfactory arrangement with them as to payment of those fees, may file a motion for an order of payment, not later than August 31, 2011.