168 Conn. App. 314
Conn. App. Ct.2016Background
- Jordan, born 2013, became subject of competing custody actions: a neglect petition against mother Heather S., a probate guardianship petition by Eleanor M. (the aunt), and a custody action by father Darric M. (defendant) in Superior Court.
- On August 7, 2015, an ex parte emergency order temporarily gave custody to Darric; after hearings the court on August 21 allowed Eleanor to intervene and ordered Jordan to remain with Eleanor pending the probate case, with limited daytime visitation for Darric.
- On August 21 police removed Jordan from Eleanor’s home and returned him to his parents; Eleanor then sought emergency ex parte custody in the custody docket and filed § 46b-15 civil restraining order (DVA) applications against Darric, Heather, and Noel R. on August 24.
- Ex parte restraining orders issued; after hearings on September 4 and 15, 2015 the court found Eleanor had met her burden under § 46b-15 and entered one-year restraining orders against Darric and the others. Darric appealed only the restraining-order judgment.
- The appellate court reviewed the unsigned transcript as an adequate record for the narrow issue and concluded there was no evidence of a continuous threat of physical pain, stalking, or pattern of threatening by Darric — the sole contested factual episode was the August 21 retrieval of Jordan, which involved no evidence of violence or threats.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported issuance of a § 46b-15 civil restraining order against Darric | Eleanor argued Darric’s conduct (coming to her home with police and taking Jordan) justified a restraining order under § 46b-15 | Darric argued there was no evidence of a continuous threat of present physical pain, stalking, or pattern of threatening required by § 46b-15 | Reversed: insufficient evidence to show the statutory requirement of a continuous threat of physical pain or injury; restraining order improper |
| Whether the restraining-order proceedings improperly functioned to decide custody | Eleanor and court proceedings addressed protective relief and custody issues in parallel | Darric contended the restraining order was used to effect a custody transfer without proper custody proceedings | Court clarified it made no custody determination at the restraining-order hearing; appellate court expressed no opinion on custody orders and limited relief to reversing the restraining order |
Key Cases Cited
- Kayla M. v. Greene, 163 Conn. App. 493 (appellate review standards for trial court findings)
- Krystyna W. v. Janusz W., 127 Conn. App. 586 (§ 46b-15 requires continuous threat of present physical pain or injury)
- Putman v. Kennedy, 279 Conn. 162 (legislative purpose and requirements for domestic violence restraining orders)
- Putman v. Kennedy, 104 Conn. App. 20 (domestic violence statute not a remedy for ordinary custody disputes)
- Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605 (appellant’s duty to provide adequate record and transcript)
- In re Francisco R., 111 Conn. App. 529 (circumstances when unsigned transcript may suffice for appellate review)