Boisvert v. GavisBoisvert v. Gavis
The plaintiffs, the maternal grandparents of the defendant father‘s minor child, B, filed, in the trial court, a petition for visitation with B pursuant to statute (
1. The trial court correctly determined that it was not deprived of subject matter jurisdiction by virtue of the defendant‘s postjudgment offer of visitation to the plaintiffs and, therefore, properly denied the defendant‘s motion to dismiss the plaintiffs’ action: the defendant‘s postjudgment offer of visitation did not render the action moot because, even if a controversy involving an existing order of third-party visitation could be rendered moot due to a custodial parent‘s voluntary offer of meaningful visitation with the third party, the defendant failed to establish that his particular offer of visitation was made in good faith and with the intention of allowing visitation rather than of avoiding or undermining the existing visitation order, particularly given that the defendant had consistently and vehemently opposed the plaintiffs’ visitation and twice had been held in contempt for his refusal to comply with the court-ordered visitation; moreover, this court concluded that, in light of its determination that the trial court was not divested of jurisdiction by virtue of the defendant‘s postjudgment offer of visitation, that court also properly
2. There was no merit to the defendant‘s claim that the trial court‘s visitation order violated the implicit requirements of
a. There was no implicit requirement in
b. The defendant could not prevail on his claim that the due process clause compels a trial court ordering third-party visitation to include a provision requiring the third party to abide by all of a fit parent‘s decisions regarding the child‘s care during visitation and that
3. This court declined to review, under State v. Golding (213 Conn. 233), the defendant‘s unpreserved constitutional claim that the amount of visitation ordered by the trial court violated his fundamental parental rights under the due process clause of the fourteenth amendment, the record having been inadequate for such review: although the defendant filed various postjudgment motions in the trial court challenging its visitation order, he did not ask that court to reconsider the amount of visitation or to articulate the basis for that amount, or otherwise bring before the court the due process claim he raised on appeal, and, because the trial court never had the opportunity to rule on that issue, it was not preserved for review; moreover, given the inherently fact bound nature of how the trial court‘s visitation order should be implemented, the defendant‘s failure to request that the trial court make particularized findings as to the amount of visitation necessary to sustain the plaintiffs’ relationship with B would render any decision by this court concerning the defendant‘s claim entirely speculative.
ECKER, J. The principal issue in this appeal is whether an order granting a third party‘s petition for visitation pursuant to
I
The following facts and procedural history are relevant to this appeal. On November 3, 2016, the plaintiffs, Diane Boisvert and Thomas Boisvert,2 filed a verified petition for visitation with their grandson, B,3 pursuant to
The defendant and Nicole M. Gavis (Nicole) were married in October, 2011, and divorced in July, 2013. They had one child, B, who was born in June, 2012. The defendant was “the primary cause of the breakdown of the marriage” because he subjected Nicole “to a course of domestic violence, threats and humiliation.” (Internal quotation marks omitted.) As a consequence, “[t]he defendant has been in prison on seven different occasions with multiple incarcerations based [on] domestic violence . . . .” During his incarcerations, the defendant failed to provide any financial support for his family. After their divorce in 2013, Nicole was awarded sole custody of B, and the defendant had no visitation until April, 2015, at which time he was given supervised access to B. Nicole died on March 8, 2016.
The plaintiffs are B‘s maternal grandparents and, although they are divorced, they both have had a significant relationship with B since his birth. Prior to Nicole‘s death, her mother, Diane Boisvert, “provided [B with] care, including feeding, doctor appointments, taking [B] to day care, school appointments, taking day trips with
The defendant was granted custody of B after Nicole‘s death in March, 2016. The plaintiffs continued to be involved in B‘s life until June 26, 2016,4 when the defendant terminated the plaintiffs’ contact with B because he believed that they were “seeking custody of [B] and [were] also seeking to get [the defendant] sent back to jail.” The defendant claimed that the plaintiffs “did not follow his directions as to how they were to treat” B during their visits. For example, the defendant did not want B to use a pacifier, but the plaintiffs did not comply with his request. On another occasion, the defendant apparently did not want Diane Boisvert to assist B with his shoe, but she did so anyway.
At the evidentiary hearing on the plaintiffs’ petition for visitation, Steven H. Humphrey, a licensed clinical psychologist, testified as an expert witness. Humphrey testified that the plaintiffs had been very involved as B‘s primary caretakers for twenty-two months of his young life while the defendant was incarcerated. In Humphrey‘s expert opinion, the plaintiffs both have a ” ‘warm and healthy bond’ ” with B, who has maintained a sense of their importance in his life. Humphrey explained that the sudden death of B‘s mother was “very traumatic . . . and severely disruptive and long lasting” for B and that the unexplained disappearance of the plaintiffs from B‘s life has compounded his sense of loss. Humphrey opined that the lack of contact between B and the plaintiffs “is very detrimental to [B] and would cause real and significant harm to [B]” if allowed to continue. Humphrey further testified that depriving B of “individuals who have been in a caretaker capacity, who have helped bridge the difficulties caused by maternal death and paternal incarceration, and who are capable and eager to provide [B] with such support, would not be in his best interest, and there are reasons for concern that there would be significant psychological harm to cessation of these relationship[s].” The trial court found Humphrey‘s in-court testimony, expert report, and expert opinions to be credible, “well thought out, appropriate, and reasonable.”
Tracie Molinaro, the guardian ad litem appointed on behalf of B, also testified at the evidentiary hearing. In Molinaro‘s opinion, B has a “healthy relationship” with the plaintiffs, whom he “adores and loves . . . .” Molinaro testified that the plaintiffs had a regular and consistent relationship with B and that they had been actively involved in his day-to-day care, especially during the defendant‘s incarceration. Molinaro believed that B had a parent-like relationship with Diane Boisvert and that the denial of visitation would cause B real and signifi-
The trial court issued its written memorandum of decision on August 11, 2017. On the basis of the evidence adduced at the evidentiary hearing, the trial court found, by clear and convincing evidence, that the plaintiffs had a parent-like relationship with B and that a denial of visitation would cause B real and significant harm. The trial court explained: “This child is five years old. During his life, he has suffered the loss of his father as a result of his incarceration for approximately two years, being 40 percent of the child‘s life. [After] [t]he death of his mother on March 8, 2016, the cessation of any meaningful contact with his maternal grandparents for the last year as a result of the unilateral actions of the father is clearly harmful to the child. As . . . Humphrey articulated in his testimony and report, the death of the child‘s mother, compounded with the unexplained disappearance of the maternal grandparents, is very detrimental to the child and would cause real and significant harm to the child. . . . Humphrey also opined that disruptive relationships in the life of a child can have deleterious effects for the child, including mood problems, insecurity and problems with socialization and self-confidence. The death of the mother cannot be changed. The cessation of the child‘s contact with the maternal grandparents can be changed by the court. The father, in terminating a support for the child in the form of . . . consistent and loving figures in the life of the child, the maternal grandparents, is not acting in the best interest of the child. Contact with the child‘s mother‘s family provides a source of information to the child as to the mother that he no longer gets to see by virtue of her death. The emotional development of the child in dealing with the loss of his mother and the cessation of contact with the maternal grandparents clearly is harmful to the child and not in the best interest of the child. The court thereby, having found the existence of a parent-like relationship between the child and the maternal grandparents, also finds that the termination of that relationship does cause a real and significant harm to the child.”
The trial court granted the plaintiffs’ petition for visitation, awarding Diane Boisvert visitation “every other weekend from Friday at 5 p.m. until Sunday at 5 p.m.,” and Thomas Boisvert visitation “every Wednesday from the end of school each Wednesday, or noon if there is
The defendant filed an appeal from the trial court‘s judgment. Shortly thereafter, the defendant also filed a postjudgment motion for order, pursuant to Practice Book § 25-24 (a), asking the trial court to enter an order requiring the plaintiffs to “allow no contact between [the] minor child [B] and a certain third party, Regina Riddell . . . .”5 The defendant represented in his motion that he had “asked the plaintiffs to allow no contact between the minor child and . . . Riddell but that the plaintiffs ha[d] refused to give assurance that they [would] honor such request.” The defendant argued that the plaintiffs’ refusal to honor his request constituted a denial of his fundamental parental right to make decisions regarding B‘s care, control and associations. The trial court conducted a hearing on the defendant‘s motion at which the plaintiffs’ counsel explained that the defendant‘s motion “stems from . . . Diane Boisvert, having her daughter living in her house, her daughter [Riddell] . . . is an adult, and it stems from the request that [Riddell] not be present for any of the visitation.” The plaintiffs’ counsel continued: “[T]here have been no documented concerns of any harm that would come to the child from [Riddell]. This was never brought up during the trial about [Riddell‘s] presence being a concern. And so this seems like an unreasonable request . . . .” The defendant did not testify at the hearing and presented no evidence in support of his motion. The trial court denied the defendant‘s postjudgment motion on the ground that there was “not one scintilla of evidence to show that [B‘s contact with Riddell] is inappropriate, puts the child in any danger, or reduces the level of care.” The trial court noted that “visitation is always an open issue, it‘s never cast in stone,” and, if an order of visitation puts a child at risk or is not in a child‘s best interest, “then the court can always modify or terminate the visitation . . . .” The trial court explained, however, that it was not otherwise “going to micromanage” the visitation because “[there are] literally millions and millions of circumstances that may ultimately follow . . . .”
The defendant subsequently filed a motion to reargue, contending that “it was irrelevant that the defendant failed to produce evidence to show the child could be harmed if the defendant‘s decisions were not complied with” because the defendant is a fit parent whose decisions must be presumed to be in the best interest of his
The defendant then filed an application for an expedited public interest appeal from the trial court‘s denial of his postjudgment motions pursuant to
While these appeals were pending, on January 9, 2018, the defendant filed in the trial court a postjudgment motion to open and terminate visitation, claiming that a change in circumstances had divested the trial court of subject matter jurisdiction. The defendant informed the trial court that he had offered each of the plaintiffs what he considered to be meaningful visitation in the amount of a four hour visit each month plus a four hour visit on or near a major holiday, and argued that, in light of this offer, the trial court was divested of jurisdiction because there no longer was a denial of visitation that would cause real and significant harm to B under
The trial court held a hearing on the plaintiffs’ motion for contempt on July 18, 2018. On the morning of the hearing, the defendant filed a postjudgment motion to dismiss for lack of subject matter jurisdiction, again contending that his January 9, 2018 offer of visitation had divested the trial court of subject matter jurisdiction. At the hearing, the defendant argued that “nothing
On July 23, 2018, the plaintiffs filed a second motion for contempt, alleging that the defendant had “again refused visitation,” even after being “ordered to resume visitation after being found in contempt . . . .” The trial court conducted a hearing at which the plaintiffs testified that the defendant continued to refuse to permit them any visitation with B, despite the trial court‘s prior orders. Following the hearing, the trial court found, by clear and convincing evidence, that “the defendant had notice of the valid court orders both on August 11, 2017, and the subsequent court order of July 19, 2018,” and had “wilfully failed to comply with the orders of the court, which are clear and unambiguous, by not providing the visitation in accordance with the court orders with the plaintiff Diane Boisvert [from] July 20 through [July] 22 of 2018, and the plaintiff Thomas Boisvert on July 25, 2018.” The court found the defendant to be in wilful contempt and committed him to the custody of the Department of Correction. The trial court stayed its order of incarceration, however, pending compliance with the court‘s order of visitation.6
The defendant filed an amended appeal in this court seeking review of the trial court‘s July 19, 2018 contempt order and the denial of his postjudgment motion to dismiss for lack of subject matter jurisdiction. The defendant‘s amended appeal was treated as an application for certification to file a public interest appeal
The defendant raises the following claims in these consolidated appeals: (1) the trial court improperly denied the defendant‘s postjudgment motion to dismiss for lack of subject matter jurisdiction because it failed to make the requisite factual findings under Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002); (2) the trial court‘s July 19, 2018 order of contempt is void for lack of subject matter jurisdiction; (3) the order of visitation violates the implicit requirements of
II
It will be useful at the outset to review the fundamental constitutional principles and relevant statutory provisions governing third-party visitation. A parent‘s right to control his or her child‘s upbringing was first accorded constitutional protection in two United States Supreme Court cases decided almost one century ago. See Pierce v. Society of Sisters, 268 U.S. 510, 534–35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (referring to “the liberty of parents and guardians to direct the upbringing and education of children under their control“); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) (referring to parent‘s right to “bring up children“). Seventy-five years later, in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), the United States Supreme Court had occasion to consider whether this parental right was violated by Washington‘s third-party visitation statute, which permitted ” ‘[a]ny person’ to petition a superior court for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child.’ ” Id., 60 (plurality opinion), quoting
In Roth v. Weston, supra, 259 Conn. 205, this court considered whether Connecticut‘s then existing third-party visitation statute,
Roth also recognized, however, that there are “limitations on these parental rights.” Id., 224. One such limitation occurs when an otherwise fit parent denies his or her child access to an individual who has a parent-like relationship with the child and “the parent‘s decision regarding visitation will cause the child to suffer real and substantial emotional harm . . . .”9 Id., 226. Under such circumstances, the state has a compelling interest in protecting “the child‘s own complementary interest in preserving [parent-like] relationships that serve [the child‘s] welfare” by avoiding the “serious and immediate harm to [the] child” that would result from the parent‘s decision to terminate or impair the child‘s relationship with the third party. Id., 225; see also id. (“[The] issue of grandparent visitation is not simply ‘a bipolar struggle between the parents and the [s]tate over who has final authority to determine what is in a child‘s best
In 2012, our legislature amended
In DiGiovanna v. St. George, supra, 300 Conn. 73, we specifically addressed the trial court‘s authority to fashion terms and conditions governing third-party visitation. In that case, the plaintiff sought visitation with the child over the mother‘s intense objection. Id., 61–62, 65. The mother‘s opposition to third-party visitation was so vehement and unrestrained that, even though the trial court found by clear and convincing evidence that both of the Roth factors had been satisfied, the trial court nonetheless denied the plaintiff‘s petition for visitation because it believed that the mother would take her anger out on the child and, on that basis, concluded that visitation ultimately was not in the child‘s best interest. Id., 67. This court reversed the judgment of the trial court, explaining that the best interest of the child standard cannot “overcome the Roth standard for ordering visitation.” Id., 69. We clarified that the best interest of the child standard “determines how [an] order of visitation should be implemented“; (emphasis in original) id., 73; and the trial court has many “tools in its arsenal to effectuate visitation.” Id., 75. For example, the trial court has authority under
III
With this legal framework in mind, we turn to the defendant‘s claims on appeal. A threshold issue involves the defendant‘s challenge to the trial court‘s subject matter jurisdiction. The jurisdictional attack is predicated on the defendant‘s postjudgment offer of visitation to the plaintiffs, which was conveyed to the plaintiffs by letter dated January 9, 2018. The defendant argued in the trial court that this postjudgment offer of visitation deprived the court of subject matter jurisdiction over the action because there no longer was a “denial of visitation” that “would cause real and significant harm.”
The defendant‘s argument is predicated on Denardo v. Bergamo, 272 Conn. 500, 509, 863 A.2d 686 (2005), which he contends requires application of the Roth factors to a postjudgment motion to dismiss filed by a fit parent.11 The defendant‘s reliance on Denardo is misplaced, however, because Denardo involved an award of third-party visitation that was not supported by the Roth factors in the first instance. See id., 503. In Denardo, the trial court‘s initial order granting visitation to the paternal grandparents, over the mother‘s objection, was made prior to this court‘s decision in Roth. Id., 505–506. The trial court therefore based its initial ruling on the “best interest of the child standard [which at the time] was in accord with the judicial gloss that this court had applied to [the pre-Roth version of]
The defendant‘s jurisdictional argument is not cast in terms of mootness, but he appears to argue that his postjudgment offer of visitation rendered the action moot because he voluntarily remedied any legally cognizable harm. “Mootness implicates [the] court‘s subject matter jurisdiction” and, therefore, “presents a question of law over which our review is plenary.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 506–507, 970 A.2d 578 (2009). “Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because a change in the condition of affairs between the parties. . . . A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists” and “the court can no longer grant any practical relief.” (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002).
“It is well settled that a defendant‘s voluntary cessation of a challenged practice does not deprive a . . . court of its power to determine the legality of the practice,” because, “[i]f it did, the courts would be compelled to leave [t]he defendant . . . free to return to his old ways.” (Internal quotation marks omitted.) Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). The voluntary cessation exception to the mootness doctrine is founded on “the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” City News & Novelty, Inc. v. Waukesha, 531 U.S. 278, 284 n.1, 121 S. Ct. 743, 148 L. Ed. 2d 757 (2001). Thus, the standard “for determining whether a case has been mooted by the defendant‘s voluntary conduct is stringent,” and a case becomes
Even if we were to assume, for the sake of argument, that a controversy involving an existing order of third-party visitation could be rendered moot under some circumstances due to the custodial parent‘s voluntary offer to allow meaningful visitation, the defendant has failed to satisfy his heavy burden of establishing that his January 9, 2018 offer of visitation was made in good faith and with the intention to permit the plaintiffs to visit with B, rather than to avoid or undermine the purpose of the third-party visitation order. The record reflects that the defendant consistently and vehemently has opposed the plaintiffs’ visitation with B. Indeed, the defendant‘s opposition to the plaintiffs’ visitation is so intense that he has refused to comply with court-ordered visitation for months at a time and twice has been found to be in contempt of court, resulting in an order of commitment to the Department of Correction. The defendant‘s voluntary offer of visitation, on these facts, plainly did not divest the trial court of subject matter jurisdiction.
Our conclusion on this point also disposes of the defendant‘s claim that the trial court‘s July 19, 2018 order of contempt was void for lack of subject matter jurisdiction. Having determined that the trial court had subject matter jurisdiction over this matter, we hold that the defendant‘s challenge to the contempt order must fail. See Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998) (“[a]n order of the court must be obeyed until it has been modified or successfully challenged” [internal quotation marks omitted]). Therefore, the trial court‘s July 19, 2018 order of contempt is affirmed.
IV
The defendant claims that the trial court‘s order of visitation violated the implicit requirements of
A
We first address defendant‘s claim regarding the implicit requirements of
Nothing in
B
The defendant next argues that the due process clause of the fourteenth amendment compels a trial court ordering third-party visitation to include a provision requiring the third party to abide by all of a fit parent‘s decisions regarding the child‘s care during the visitation. This claim is based on the “traditional presumption that a fit parent will act in the best interest of his or her child.” Troxel v. Granville, supra, 530 U.S. 69 (plurality opinion); see also Roth v. Weston, supra, 259 Conn. 221. In light of this traditional presumption, the defendant contends that
“Determining the constitutionality of a statute presents a question of law over which our review is plenary. . . . It [also] is well established that a validly enacted statute carries with it a strong presumption of constitutionality, [and that] those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. . . . The court will indulge in every presumption in favor of the statute‘s constitutionality . . . . Therefore, [w]hen a question of constitutionality is raised, courts must approach it with caution, examine it with care, and sustain the legislation unless its invalidity is clear.” (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 405, 119 A.3d 462 (2015). In evaluating the constitutionality of a statute, moreover, we will construe the statute in such a manner as “to save its constitutionality,” rather than “to destroy it.” State v. Indrisano, 228 Conn. 795, 805, 640 A.2d 986 (1994). In doing so, “we may also add interpretative gloss to a challenged statute in order to render it constitutional. In construing a statute, the court must search for an effective and constitutional construction that reasonably accords with the legislature‘s underlying intent.” (Internal quotation marks omitted). Id., 805–806.
None of this means that a fit parent who is subject to a third-party visitation order has forfeited his or her parental rights or that the third party has obtained parental rights by virtue of the order of visitation. A fit parent retains the “quintessential rights of parenthood,” which “include the right to make medical, educational, religious and other decisions that affect the most fundamental aspects of the child‘s life . . . .” (Internal quotation marks omitted.) Fish v. Fish, 285 Conn. 24, 58, 939 A.2d 1040 (2008). Likewise,
We recognize that, during the course of the child‘s visitation with the third party, the third party may make decisions for the child that potentially implicate a parent‘s fundamental parental rights to direct his or her child‘s upbringing, and the longer the period of visitation, the more decisions that the third party must make. See Roth v. Weston, supra, 259 Conn. 229 n.13 (recognizing that “[v]isitation is a limited form of custody during the time the visitation rights are being exercised” [internal quotation marks omitted]). Most of the third party‘s decisions during visitation will be of the mundane variety, and, less frequently, the third party may need to make weighty, discretionary, and sometimes instantaneous decisions pertaining to the child‘s health, safety, and well-being. The question we must resolve in the present appeal is, when a conflict arises between a fit parent and a third party regarding the third party‘s caregiving decisions that implicate the parent‘s constitutional rights, how should that conflict be resolved so as to preserve the parent‘s rights, while at the same time sustaining the child‘s relationship with the third party?
To answer this question, we turn to
In assessing what terms and conditions may be in the “best interest of the minor child” under
Two caveats are necessary. First, many decisions do not fall within the scope of this category of fundamental parental prerogative, and, with respect to those matters, the trial court has discretion under the statute to formulate terms and conditions that serve the best interest of the child. In doing so, the trial court always should take into account the fit parent‘s good faith preferences, but those preferences are not entitled to “special weight” under the due process clause of the fourteenth amendment. See Troxel v. Granville, supra, 530 U.S. 69 (plurality opinion); Roth v. Weston, supra, 259 Conn. 217. Second, even in the realm of decisionmaking involving those matters that affect the most fundamental aspects of a child‘s upbringing, the trial court should satisfy itself that the parental request is made in good faith before according it the special weight the constitution requires. A good faith inquiry is necessary because
We can hypothesize an infinite variety of factual scenarios and a limitless number of parental and third-party motivations that may require judicial resolution, depending on the facts and circumstances of each individual case.13 Given the depth and complexity of the issues involved, we believe that the trial court is in the best position to “[prescribe] specific conditions under which visitation [should] take place to address legitimate concerns of either party.” DiGiovanna v. St. George, supra, 300 Conn. 75.
The present case illustrates the need for the parties to follow certain commonsense procedures to provide an optimal framework for the trial court to determine what terms and conditions may be necessary under
A request is timely if it is made without unreasonable delay once the requesting party knows or reasonably should know of the factual circumstances that prompt the requested terms and conditions. The requesting party is not barred from belatedly requesting such terms and conditions in a postjudgment motion, as was done in this case, but the belated nature of the request may support an inference that it is not made in good faith, if the inference reasonably is justified under the surrounding circumstances. The requirements of specificity and timeliness are not intended to preclude good faith requests for reasonable terms and conditions that may arise as circumstances develop over time, but to provide an optimal and efficient procedure by which the trial court can evaluate the requested terms and conditions and fashion appropriate relief responsive to the parties’ concerns and the child‘s needs.
Ultimately it is up to the trial court, as the finder of fact and the arbiter of credibility, to determine the issues relating to the terms and conditions of visitation, including, without limitation, whether the requested terms and conditions reflect a parent‘s sincerely held belief regarding a fundamental aspect of the child‘s upbringing or whether they are a pretext to undermine the third-party relationship or the order of visitation. The trial court has many “tools in its arsenal” to protect a fit parent‘s fundamental rights while simultaneously fostering the third-party relationship by effectuating the order of visitation. DiGiovanna v. St. George, supra, 300 Conn. 75, 78; see
Applying these principles to the facts of this case, we conclude that the trial court properly denied the defendant‘s request for a broad order requiring the plaintiffs to abide by all of his parental decisions regarding B‘s care during the course of the plaintiffs’ visitation. The defendant‘s motion was untimely because it was filed after the close of evidence and the issuance of the trial court‘s order of third-party visitation. Moreover, for the reasons previously explained, the due process clause of the fourteenth amendment does not require
Turning to the defendant‘s specific request for a no contact order between B and Riddell, we note that this request was untimely15 and unaccompanied by an explanation regarding its origin or basis. The request, rather, was formulated as a naked demand resting on the classic invocation of absolute parental authority used to preempt discussion: “Because I‘m the parent and I said so.” This resort to fiat reflects a perfectly adequate parenting position in many day-to-day parent-child interactions, but it will not suffice when a judicial authority has determined that state interference in the parent-child relationship “is justified” because the third party has “demonstrated a compelling need [for third-party visitation] to protect the child from harm.” Roth v. Weston, supra, 259 Conn. 229. Although the right to control a child‘s associations is a fundamental parental right; see id., 216–17; in the absence of an explanation, the trial court cannot evaluate the good faith nature of the parental request, assess the need for evidence to resolve disputed questions of fact, or fashion appropriate relief. See footnote 14 of this opinion. Because the defendant failed to give any reason in support of the requested term and condition regarding B‘s contact with Riddell, we conclude that the trial court properly denied the defendant‘s postjudgment motion.
We emphasize that our holding confers no parental rights on the plaintiffs; nor does it bestow any visitation rights on Riddell. As the trial court aptly observed, the order of visitation simply gave “visitation to the plaintiffs” and “[i]n no way, shape, or form did the court grant any visitation to [Riddell]” or create any parental rights on behalf of the plaintiffs. The trial court simply found that in the absence of any reason or any evidence to justify the defendant‘s requested restriction on the order of third-party visitation, there was no basis to find that the requested restriction was in the child‘s best interest. We agree and, therefore, affirm the judgment
V
Lastly, the defendant claims that the amount of visitation awarded to the plaintiffs violates his fundamental parental rights under the fourteenth amendment to the United States constitution. The defendant points out that
Although the defendant filed various postjudgment motions challenging the order of visitation, he never asked the trial court to reconsider the amount of visitation or to articulate the basis for the amount of visitation awarded to the plaintiffs.16 Because the trial court never had an opportunity to rule on this issue, we conclude that it is not preserved for our review. See, e.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014) (“[i]t is well settled that [o]ur case law and rules of practice generally limit [an appellate] court‘s review to issues that are distinctly raised at trial” [internal quotation marks omitted]). Nonetheless, because the defendant‘s claim implicates his fundamental parental rights under the United States constitution, we consider whether review is appropriate under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).17
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error, (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant‘s claim will fail.” (Emphasis in original; footnote omitted.) Id.; see also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding). The burden is on the party seeking review of unpreserved constitutional claims under Golding to demonstrate both that the record is adequate for review and that the claim “is indeed a violation of a fundamental constitutional right.” State v. Golding, supra, 213 Conn. 240. “If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we
The trial court is in the best position to determine how the order of visitation should be implemented; DiGiovanna v. St. George, supra, 300 Conn. 73; and must set forth the “terms and conditions of visitation including, but not limited to, the schedule of visitation, including the dates or days, time and place or places in which the visitation can occur, [and] whether overnight visitation will be allowed . . . .”
In light of the inherently fact bound nature of the trial court‘s schedule of visitation, we conclude that the record is inadequate to review the defendant‘s constitutional challenge to the amount of visitation awarded to the plaintiffs under
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this court consisting of Chief Justice Robinson and Justices Palmer, McDonald, D‘Auria, Mullins, Kahn and Ecker. Although Justice Kahn was not present when the case was argued before the court, she has read the briefs and appendices, and has listened to a recording of the oral argument prior to participating in this decision.
Notes
“(b) Any person may submit a verified petition to the Superior Court for the right of visitation with any minor child. Such petition shall include specific and good-faith allegations that (1) a parent-like relationship exists between the person and the minor child, and (2) denial of visitation would cause real and significant harm. Subject to subsection (e) of this section, the court shall grant the right of visitation with any minor child to any person if the court finds after hearing and by clear and convincing evidence that a parent-like relationship exists between the person and the minor child and denial of visitation would cause real and significant harm.
“(c) In determining whether a parent-like relationship exists between the person and the minor child, the Superior Court may consider, but shall not be limited to, the following factors: (1) The existence and length of a relationship between the person and the minor child prior to the submission of a petition pursuant to this section; (2) The length of time that the relationship between the person and the minor child has been disrupted; (3) The specific parent-like activities of the person seeking visitation toward the minor child; (4) Any evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent; (5) The significant absence of a parent from the life of a minor child; (6) The death of one of the minor child‘s parents; (7) The physical separation of the parents of the minor child; (8) The fitness of the person seeking visitation; and (9) The fitness of the custodial parent.
“(d) In determining whether a parent-like relationship exists between a grandparent seeking visitation pursuant to this section and a minor child, the Superior Court may consider, in addition to the factors enumerated in subsection (c) of this section, the history of regular contact and proof of a close and substantial relationship between the grandparent and the minor child.
“(e) If the Superior Court grants the right of visitation pursuant to subsection (b) of this section, the court shall set forth the terms and conditions of visitation including, but not limited to, the schedule of visitation, including the dates or days, time and place or places in which the visitation can occur, whether overnight visitation will be allowed and any other terms and conditions that the court determines are in the best interest of the minor child, provided such conditions shall not be contingent upon any order of financial support by the court. In determining the best interest of the minor child, the court shall consider the wishes of the minor child if such minor child is of sufficient age and capable of forming an intelligent opinion. In determining the terms and conditions of visitation, the court may consider (1) the effect that such visitation will have on the relationship between the parents or guardians of the minor child and the minor child, and (2) the effect on the minor child of any domestic violence that has occurred between or among parents, grandparents, persons seeking visitation and the minor child.
“(f) 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, nor shall such visitation rights be a ground for preventing the relocation of the custodial parent. 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.
“(g) Upon motion, the court may order the payment of fees for another party, the attorney for the minor child, the guardian ad litem, or any expert by any party in accordance with such party‘s financial ability.”