271 Conn. 657 | Conn. | 2004
Opinion
The plaintiff, Laura B. Gary, formerly Laura B. G. Butler, appeals
The trial court’s comprehensive memorandum of decision sets forth the following tortured histoiy of postdissolution proceedings between the parties and the pertinent facts leading to its decision to terminate the joint custody agreement and award custody of the parties’ two minor children to the defendant. An Illinois court dissolved the marriage of the parties on December
Approximately two weeks after the date of the dissolution, the plaintiff moved for an emergency order for supervised visitation and other relief. She then filed an emergency motion to suspend the defendant’s visitation
Since that time, through numerous pleadings addressed largely to issues of custody and visitation, the plaintiff unsuccessfully has sought the intervention of the Illinois court, attempted to change the venue from the judicial district of Waterbury, where the foreign matrimonial judgment had been certified, to the judicial district of Stamford and sought the intervention of the London High Court while the children were in England visiting the defendant’s family. Thereafter, the plaintiff sought an ex parte order seeking sole custody of the children as well as an order to restrain the defendant from contacting her or the children. The trial court, Axelrod, J., denied ex parte relief, but scheduled a hearing on those matters as well as other motions directed principally at the parties’ differing interpretations of their parenting agreement.
The trial court, Leheny, J., resolved the disputes relating to the interpretation of the agreement, concluding, inter alia, that the agreement permitted the defendant to have visitation without a nanny being present if none were available. The court then turned to the only remaining issue, the plaintiffs motion to modify the agreement to award her sole custody of the children. That motion was accompanied by the plaintiffs affidavit alleging that the defendant’s actions seriously had endangered the children’s physical, mental and emotional well-being. Specifically, the plaintiff claimed that the defendant had exposed Alexa to pornography on
After a lengthy evidentiary hearing conducted over several days, the trial court issued a comprehensive memorandum of decision, setting forth factual findings regarding the parties’ allegations and their conduct with respect to the children and the parenting agreement. As an initial matter, the trial court traced the history of the plaintiffs allegations regarding the defendant’s inappropriate behavior around Alexa and determined that the plaintiffs allegations of abuse were unfounded. According to the testimony of various witnesses, Alexa had been examined by a pediatrician and a therapist, both of whom then reported their concerns to the department of children and families (department), which in turn engaged the services of a forensic team to conduct interviews in the presence of the state police. As noted by the trial court, the team found no evidence of sexual abuse and could not confirm that the defendant had engaged in any inappropriate sexual behavior with Alexa.
Turning to the defendant’s allegations regarding the plaintiffs behavior, the court found that the plaintiff had subverted the joint parenting agreement in numerous ways. Pursuant to the agreement, the parties had agreed that they would relocate from Illinois to the Woodbury and Litchfield areas of Connecticut. Nevertheless, after the defendant had purchased a home in Woodbury, the plaintiff rented a house forty miles away in New Canaan, which resulted in interference with the defendant’s court-ordered midweek visitation with the children. The plaintiff also had interfered with the communication necessaiy to facilitate visitation by failing to give the defendant her cell phone number and to timely review electronic mail (e-mail). The court highlighted numerous specific occasions when the plaintiff had hampered the defendant’s access to the children both by telephone and in person
On the other hand, the court identified the defendant’s lapses in judgment regarding his wearing a sexually suggestive tee shirt of an elephant engaged in anal penetration of a mouse, the children’s inappropriate television viewing and the defendant’s rude behavior toward the children’s nannies. Additionally, the court commented on the defendant’s lack of self-awareness, his discounting of the children’s need for therapy as well as his own need to engage in counseling, particularly with regard to parenting issues, and his failure to appreciate the impact he has on his children.
The trial court then turned to the applicable legal standards, noting that, pursuant to Illinois law,
The trial court then engaged in a lengthy analysis of the best interest consideration. Although the court
Accordingly, after its full consideration of all “the evidence, the applicable law, the demeanor of the parties, the arguments of counsel and the testimony and arguments of the [g]uardian ad [l]item,” the trial court
“ID. In the interests of all, the minor children shall sleep in their respective bedrooms.
“IE. The [defendant] is to ensure that his children do not gain access to his computer. He is to install protective devices designed to prevent children from viewing or hearing adult materials. He is to ensure that no adult videos, films, magazines, books or other materials are accessible to the children.” (Emphasis in original.) This appeal followed.
The plaintiff claims that the trial court improperly awarded sole custody to the defendant. Specifically, she contends that the trial court failed to determine by clear and convincing evidence, as required under Illinois law, that awarding sole custody to the defendant was in the best interests of the children. She further contends that the trial court’s decision to award sole custody to the defendant was contrary to the manifest weight of the evidence because both the guardian ad litem and the court-appointed psychologist had recom
I
The plaintiff first contends that, although the trial court recognized that it was statutorily required, under § 5/610 of the Illinois Marriage and Dissolution of Marriage Act (§ 610), to find by clear and convincing evidence that modifying the custody arrangement in the defendant’s favor was in the best interests of the children, it failed to apply that standard or to make express findings in support thereof. The defendant contends that the court is not required to make findings in accordance with this heightened burden of proof when both parties seek to modify a joint custody order to obtain sole custody. We agree with the defendant.
As with any issue of statutory construction, we begin with the language of the statute. Section 610 (b) provides in relevant part: “The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child. In the case of joint custody, if the parties agree to a termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child’s best interest. . . .” 750 Ill. Comp. Stat. Ann. § 5/610 (b) (West 1999). The plaintiff contends that the first
It is clearly established that, as a general matter, a party seeking either to terminate or to modify a custody agreement has the burden of proving two elements by clear and convincing evidence: (1) a change in circumstances since the original custody order has occurred; and (2) a modification is necessary to serve the best interests of the child. See In re Marriage of R.S., 286 Ill. App. 3d 1046, 1051, 677 N.E.2d 1297 (1996); In re Marriage of Riess, 260 Ill. App. 3d 210, 217, 632 N.E.2d 635 (1994). This dual burden is reflected in the first sentence of § 610 (b) and, by its express language, applies to both joint and sole custody agreements.
The second sentence of § 610 (b), however, addresses a specific situation—when both parties have agreed to modify or terminate joint custody—and does not expressly engraft the clear and convincing burden of proof set forth in the preceding sentence. An agreement to terminate joint custody is manifested by a stipulation or cross petitions for sole custody. See In re Marriage of Spent, 342 Ill. App. 3d 643, 651, 796 N.E.2d 191, appeal denied, 206 Ill. 2d 645, 806 N.E.2d 1073 (2003); In re Marriage of Ricketts, 329 Ill. App. 3d 173, 178, 768 N.E.2d 834 (2002). Because both parties in the present case sought sole custody; see footnote 3 of this opinion; they implicitly had agreed to terminate joint custody. See In re Marriage of Spent, supra, 651 (fact that no formal agreement or stipulation to terminate joint custody exists is irrelevant). Accordingly, the second sentence of § 610 (b) is at issue here.
The Illinois courts previously have considered whether the clear and convincing burden of proof applies to a trial court’s decision to terminate joint custody upon agreement of the parties, explicitly or implicitly, and to award sole custody to the parent not
The plaintiff contends that these cases stand simply for the proposition that the first element of changed circumstances need not be proved by clear and convincing evidence and do not address whether the heightened standard applies to the second element of the best interest of the child. We disagree.
As we previously have noted, these cases addressed not merely the issue of whether an agreement to modify joint custody demonstrated that circumstances had
under manifest weight of evidence standard); In re Marriage of Lovejoy, 158 Ill. App. 3d 1, 3-4, 510 N.E.2d 636 (1987) (same). Moreover, the statute expressly instructs that, in such cases, any modification in the child’s best interest may be made. See 750 Ill. Comp. Stat. Ann. § 5/ 610 (b) (West 1999); see also In re Marriage of Spent, supra, 651 (“once both parties moved to terminate the joint-custody agreement [indicating a change of circumstances had occurred], the trial court, pursuant to [§] 610 [b], had to terminate the joint-custody arrangement and make any modification that was in the child’s best interests”). It is telling that our research has failed to uncover a single Illinois appellate court decision, and the plaintiff has not cited any, in which both parties sought to terminate a joint custody agreement in favor
Finally, we note the untenable result that would occur should we adopt the plaintiffs construction of § 610 (b). A trial court could conclude that the parties’ cross petitions to terminate joint custody and to obtain sole custody evidenced that joint custody was unworkable, but also could conclude that neither party had proven by clear and convincing evidence that awarding sole custody to one party or the other was in the best interest of the child. Under the plaintiffs construction, the court could not modify what both parties stipulated was an unworkable arrangement. Like the Connecticut courts, the Illinois courts do not adopt statutory interpretations that run counter to logic or contravene the statute’s purpose.
II
The plaintiff next contends that the trial court’s award of sole custody of the children to the defendant should
We note first that § 5/602 of the Illinois Marriage and Dissolution of Marriage Act (§ 602) requires the trial judge to determine custody in accordance with the best interest of the child.
The trial court has broad discretion in determining custody, and there is a strong and compelling presumption in favor of the trial court’s determination. In re Marriage of Macaluso, 110 IIll. App. 3d 838, 843, 443 N.E.2d 1 (1982). That court is in the best position to decide the custody issue because the trial judge observes the parties involved and the demeanor of the witnesses and hears and resolves conflicts in the testimony. In re Marriage of Soraparu, 147 Ill. App. 3d 857, 862, 498 N.E.2d 565 (1986), appeal denied, 505 N.E.2d 362 (1987). Because a custody determination necessarily depends on the temperaments, personalities, and capabilities of the parties involved, the trial court is in the best position to evaluate those traits. Id.; In re Marriage of Felson, 171 Ill. App. 3d 923, 926, 525 N.E.2d 1103 (1988).
Although the Illinois courts recognize that stability and continuity are major considerations.in custody decisions and, accordingly, a presumption exists in favor of the present custodian; In re Marriage of Ricketts, supra, 329 Ill. App. 3d 180; once a trial court has determined that the presumption has been overcome, a custody determination will not be overturned on review unless that determination is against the manifest weight of the evidence. In re Marriage of Stopher, 328 Ill. App. 3d 1037, 1041, 767 N.E.2d 925 (2002). “Manifest weight has been defined as that weight which is clearly evident, clear, plain and indisputable.” Laroia v. Reuben, 137 Ill. App. 3d 942, 946, 485 N.E.2d 496 (1985); see, e.g., In re Marriage of Leopando, 106 Ill. App. 3d 444, 449,
With these principles in mind, we turn to the plaintiffs claim that the trial court’s decision was contrary to the manifest weight of the evidence. The plaintiff first contends that the trial court should have accepted the recommendation of Phillips and Snearly that it was in the children’s best interests to award custody to the plaintiff. She contends that, although a trial court is not required to accept an expert’s recommendation as to custody, in this case the court should have accepted Phillips’ recommendation based on her conclusion that the defendant had a narcissistic personality that caused him to have more difficulty appreciating the emotional and developmental needs of his children and the impact of his parenting style on them. The defendant argues in response that Phillips’ evaluation was deficient in that: she had not performed a full custody study; she had never seen Morgan; she had failed to have the defendant complete a developmental assessment of Alexa; and her clinical interview of the parties had been limited to approximately one and one-half hours. Additionally, the defendant challenges some of Phillips’ conclusions regarding the plaintiffs ability to overcome her psychological shortcomings. Therefore, according to the defendant, the trial court acted properly in rejecting Phillips’ recommendation.
It is correct that a trial court need not accept the opinion of an expert in a custody case. See In re Marriage of Felson, supra, 171 Ill. App. 3d 928 (custody recommendation from court-appointed expert was not binding on court). “A recommendation concerning the custody of a child is only that, a recommendation ....
As an initial matter, it is important to note that Phillips and Snearly recognized that both parties were seriously flawed individuals whose personal problems often interfered with their ability to prioritize properly the welfare of the children. Despite the parties’ shortcomings, however, both Phillips and Snearly recognized that the children have strong emotional attachments to both parents. Thus, the court was not faced with recommendations based on overwhelming evidence favoring one parent over another.
In the present case, as evidenced by its numerous express references to Phillips’ testimony and findings pertaining to the psychological limitations of the parties, it is clear that the trial court considered Phillips’ opinion in making its custody determination. To the extent that Phillips concluded that joint custody was not a viable option given the parties’ inability to work cooperatively, the court’s decision is in accord with that opinion. Moreover, the court incorporated in its custody orders Phillips’ recommendation that the defendant seek treatment for his personality disorder to enable him to “gain insight into his impact on others . . . .” Thus, the trial court accepted those recommendations by Phillips that it determined were well founded,
Similarly, the plaintiff relies on the proposed parenting order submitted by Snearly, recommending that the plaintiff remain the primary custodian for the children. That recommendation principally was based upon the children’s need for stability. As the defendant points out, however, the trial court’s numerous findings regarding the plaintiffs inability to facilitate and encourage a close and continuing relationship between the children and the defendant, pursuant to the Illinois judgment, severely undermined any finding that the plaintiff should have custody. See In re Marriage of Ricketts, supra, 329 Ill. App. 3d 173 (concluding trial court properly determined that father should be substituted for mother as custodial parent, despite strong bond between mother and child, because mother failed to foster continuing relationship between father and child, repeatedly interfered with father’s visitation, and failed to facilitate calm and positive environment for child at point of transfer for visitation). The Illinois courts have recognized that, in some cases, “stability is achieved when a child is moved from a home where there is turmoil to one where there is quiet.” (Internal quotation marks omitted.) In re Marriage of Wycoff, supra, 266 Ill. App. 3d 410, and cases cited therein; see also In re Marriage of Oros, 256 Ill. App. 3d 167, 169, 627 N.E.2d 1246 (1994) (“[i]n the present case the original custody award itself resulted in instability for the child, and modification would best serve the statutory policy underlying [§] 610, even if it were difficult to point to a clear change in circumstances since the original
The plaintiffs second basis for claiming that the trial court abused its discretion pertains to the trial court’s own orders. In particular, the plaintiff points to the order requiring that a nanny be present at all times when the children are with the defendant and argues that such an order undermines the finding that the defendant is a fit parent.
On the basis of the trial court’s statement that it did not find that the defendant had abused Alexa, and its expressed concern that, despite the Illinois court’s similar rejection of allegations of such abuse, the plaintiff nevertheless continued to levy such allegations; see footnote 9 of this opinion; we accept the defendant’s proffered explanation of the motivation behind the court’s order.
The trial court awarded sole custody to the defendant because “there is little likelihood that the [defendant] will be permitted by [the plaintiff] to have a significant relationship with the children as contemplated in the Illinois judgment. [The plaintiff] has frequently failed to follow the court’s orders. She has not been willing or able to facilitate and encourage a close and continuing relationship between the [defendant] and the children.” This was a proper consideration and a valid basis upon which to make a custody determination. See In re Marriage of Ricketts, supra, 329 Ill. App. 3d 179-81.
In deciding custody under the best interest of the child standard, the court statutorily is mandated to “consider . . . the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.” 750 Ill. Comp. Stat. Ann. § 5/602 (a) (8) (West 1999). In analogous circumstances, the Illinois Appellate Court observed: “The record is replete with evidence that [the respondent mother] was unwilling to facilitate and encourage a close and continuing relationship between [her minor child] and [the petitioner father]. In its written memorandum and orders, the court found . . . [that] [t]he evidence clearly established that [the mother] wilfully failed to foster a close and continuing relationship between the child and her father by denying' visitation, denying telephone contact, and making disparaging remarks in the presence of the child. There is no evidence upon which this [c]ourt may reasonably infer that [the mother] will change her conduct. [Her] inappropriate conduct adversely affects the child and it is a relevant factor in determining the best interest of the child.” (Internal quotation marks omitted.) In
The judgment is affirmed.
In this opinion the other justices concurred.
The plaintiff appealed from the trial court’s judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).
The clause, as originally drafted, provided: “Presence of Nanny. The parties agree that until each child is five (5) years of age, the children’s nanny (or an alternate nanny selected by [the plaintiff]) will accompany them during all visitation. At [the plaintiffs] sole discretion during out-of-state travel with the children, [the defendant] shall either provide a nanny at his destination who shall be required to supervise the children at all times, or [the plaintiff] shall pay the transportation costs of the nanny of her choice.” Concurrently with the execution of the parenting agreement, the parties initialed a handwritten amendment to be inserted after the first sentence quoted previously, which provided: “If the nanny is not available, that shall not be grounds to [forgo] the visitation. [The defendant] shall be civil to the nanny and shall no[t] behave in a manner calculated to influence the nanny not to attend visitation.”
The defendant initially filed a motion seeking to enforce the joint custody order, but to modify his visitation. He subsequently amended his motion seeking either to continue joint legal custody and award him sole physical custody, allowing the plaintiff visitation, or alternatively, to award him both legal and physical custody.
On April 26, 2002, three weeks after it had received the report alleging abuse, the department sent a letter to the plaintiff notifying her that it had decided to close the case related to its investigation of Alexa because “[t]he report has been unsubstantiated on physical neglect based on interviews of all family/household members and collateral providers.”
Specifically, the trial court noted the following: the defendant had been able to speak with his children only one time per month from May through October, 2001, despite almost daily telephone calls to the plaintiffs home; the plaintiff had failed numerous times to adhere to the condition in the agreement that she inform the defendant at least thirty days in advance of any extended out-of-town trips with the children; the plaintiff had failed to inform the defendant of her move to New Canaan in a timely fashion and, when she moved a second time, she had no telephone for days; the plaintiff had blocked her e-mail from October, 2001, until August, 2002, when she was ordered by the court to unblock it; and the plaintiff had denied the defendant visitation because of the absence of a nanny, despite the fact that the agreement expressly stated that the unavailability of a nanny “shall not be grounds to [forgo] the visitation.” See footnote 2 of this opinion.
The trial court’s conclusions regarding the defendant’s lack of self-awareness were based on an evaluation by Anne Phillips, a clinical psychologist who had met with the defendant, Alexa and the plaintiff. Phillips’ analysis will be discussed more fully in our discussion of the plaintiffs second claim of trial court impropriety. See part II of this opinion.
It is undisputed that Illinois law governs the parties’ motions to terminate joint custody.
Additionally, the court noted some evidence that “slipped through” relating to prejudgment issues, including allegations of abuse by the defendant. The court, however, made no findings based on these allegations.
The trial court, in its memorandum of decision, noted the plaintiffs decision to continue to malee allegations of sexually inappropriate behavior against the defendant to Alexa’s physicians and teachers and within the child’s hearing despite the Illinois court’s rejection of her allegations.
This standard of proof is addressed further in part II of this opinion.
The cases cited by the plaintiff in support of this position arose in the context of modification of a sole custody agreement or when only one party had sought to terminate a joint custody agreement. See, e.g., In re Marriage of Knoche, 322 Ill. App. 3d 297, 750 N.E.2d 297 (2001) (father’s petition only); In re Marriage of RS., 286 Ill. App. 3d 1046, 677 N.E.2d 1297 (1996) (same).
The legislative history of § 610 (b) sheds no light on whether the Illinois legislature intended to impose the heightened standard of clear and convincing evidence or a lesser standard of proof to decisions to modify joint custody arrangements upon agreement of the parties. See Ill. Public Act 82-1002, § 2; see also House Bill No. 2039, as discussed in House Proceedings (May 20, 1982) pp. 145-55, (June 27, 1982) pp. 5-6 and (June 28, 1982) pp. 3-19, and in Senate Proceedings (June 25, 1982) pp. 136-42.
Section 602 of chapter 750 of the Illinois Compiled Statutes Annotated (West 1999) provides in relevant part: “Best Interest of Child.
“(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
“(1) the wishes of the child’s parent or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school and community;
“(5) the mental and physical health of all individuals involved;
“(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person;
“(7) the occurrence of ongoing abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986 . . . whether directed against the child or directed against another person; and
“(8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. . . .
“(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child. . . .”
The opinion of an expert is only as valid as the bases and reasons supporting it. In re Marriage of Petraitis, supra, 263 Ill. App. 3d 1032; In re C.B., supra, 248 Ill. App. 3d 168. In the present case, there are ample facts in the record, as cited by the defendant, from which the trial court reasonably could have concluded that Phillips’ recommendation was based on insufficient data. See In re C.B., supra, 172-76 (concluding that trial court should have used its own discretion balancing best interest of child factors rather than accept custody recommendation of psychiatrists in light
The defendant cross appealed from the judgment, solely challenging that condition. As represented to this court at oral argument, because the defendant subsequently concluded that this condition had expired under the terms of the order once Morgan turned five years old in May, 2004, and both children became, in his view, self-regulating in their grooming and hygiene, he withdrew his cross appeal.
The order requiring that the children sleep in their own bedrooms similarly may be viewed with this precaution in mind, especially in view of the prefacing clause “[i]n the interests of all . . . .” (Emphasis added.)