Denardo v. BergamoDenardo v. Bergamo
- Reporters:
- , ,
- Before:
- Borden
*502 Opinion
BORDEN, J.The dispositive issue in this appeal1 is whether grandparents, who were granted the right of visitation with respect to a minor child pursuant to
*503After the plaintiffs were granted permission to intervene in their son’s petition for custody and visitation with respect to his daughter, the trial court, Leheny, J., granted the plaintiffs visitation rights with respect to the child pursuant to
The following facts and procedural history are undisputed for purposes of this appeal. The defendant and Richard S. Denardo, Jr., were living together as an unmarried couple when their daughter was born on April 20, 1994. Due to difficulties in their relationship, they ultimately separated in July, 1995. Despite this change in the relationship between the defendant and their son, the plaintiffs, who are the child’s paternal grandparents, maintained a cordial relationship with the defendant and spent time with the child throughout the time period following the child’s birth and until August, 1998.
In August, 1998, Richard S. Denardo, Jr., filed a petition for custody and visitation with respect to the child. Shortly thereafter, he and the defendant entered into a stipulated temporary agreement that established his visitation schedule along with the requirement that he not allow the plaintiffs unsupervised visitation with the child; this agreement did not prevent the plaintiffs from visiting with the child while her father was present. The plaintiffs subsequently filed a motion for third party *504intervention pursuant to
The child’s parents eventually entered into a stipulation regarding a custody and parenting plan that granted sole custody of the child to the defendant and defined the parents’ rights and responsibilities relative to visitation and support. On the same day that the parents entered into the stipulation, the trial court began a hearing on the plaintiffs’ motion to modify their visitation, wherein the plaintiffs had requested that they be granted the following rights with respect to the child: (1) assistance with school activities or trips; (2) overnight visits; (3) visitation every Tuesday from 2:35 p.m. to 5 p.m. and every Friday from 2:35 p.m. to 8 p.m.; (4) one full week of visitation during the summer months; (5) visitation on five specific holiday weekends from Sunday at 12 p.m. to Monday at 6 p.m.; and (6) provide day care in the event that the child has the day off from school or camp and neither parent is available. The defendant opposed these requests.
In ruling on the plaintiffs’ requests, the trial court, Leheny, J., acknowledged that, “pursuant to
The trial court found that “[t]he [plaintiffs had] not allege [d] that [the defendant was] an unfit parent . . . [and had] produced no evidence to rebut the presumption that [the defendant did] not act in the best interests of the child.” Further, it found “that the [plaintiffs had] intruded upon the right of the [defendant] to make decisions for her child.” Nevertheless, the trial court found “that it would be in the best interest of the minor child to visit with the [plaintiffs] during the summer,” despite the defendant’s objection to the plaintiffs being granted any visitation rights. Accordingly, it ordered that the plaintiffs be granted five days of visitation during the summer but denied the plaintiffs’ remaining *506requests. At the time it made its ruling, the trial court’s reliance on the best interest of the child standard was in accord with the judicial gloss that this court had applied to
Following the trial court’s order in the present case, this court had occasion in two concurrent cases, namely, Roth v. Weston, supra, 259 Conn. 202, and Crockett v. Pastore, supra, 259 Conn. 240, to assess the constitutionality of
On the basis of our decisions in Roth and Crockett, the defendant moved to modify and terminate the plaintiffs’ visitation. The defendant alleged that the plaintiffs continued to intrude upon her right to make decisions for her child in that, for example, they had contacted a teacher about the child’s academic progress, spoken to the child’s music teacher about guitar lessons for the child, and taken the child out of the state during their five days of summer visitation. The trial court, Hon. R. Petroni, judge trial referee, initially modified the order of visitation to clarify that the plaintiffs were not to be involved in decisions for the child concerning educational, religious or medical issues without the defendant’s written consent and were not allowed to remove the child from the state, but declined to terminate the plaintiffs’ visitation rights.
*508The defendant then moved to reargue. The trial court granted the defendant’s motion to reargue, and subsequently vacated its earlier order and terminated the plaintiffs’ visitation. The trial court concluded that the standards set forth in Roth and Crockett were applicable to the defendant’s motion to modify and terminate the plaintiffs’ visitation, and that the plaintiffs had failed to allege or present evidence that the defendant was an unfit parent or that the denial of visitation would result in significant harm to the child.
The plaintiffs claim on appeal that the trial court improperly applied the Roth standards retrospectively by shifting the burden of proof on the defendant’s motion for modification and termination from the defendant to the plaintiffs, and that the retrospective application of Roth violated the due process rights of the plaintiffs and the child.7 They assert that the law applicable to modification cases compelled the trial court to place the burden on the defendant to establish a prima facie case of a material change in circumstances or that the existing visitation order was no longer in the best interests of the child before shifting the burden to the plaintiffs to meet the Roth requirements. The plaintiffs acknowledge that, pursuant to their proffered jurisprudential scheme, grandparents whose visitation *509with their grandchild is not supported by a pre-Roth court order would have to comply with the Roth requirements upon their petition to receive a court order of visitation contrary to the wishes of a fit parent; but grandparents—like the plaintiffs in the present case— whose visitation was pursuant to a pre-Roth court order would not have to comply with those requirements unless the parent could meet the initial burden of proof. The defendant contends that the trial court’s retrospective application of Roth was proper, that, contrary to the plaintiffs’ proffered scheme, Roth should apply equally irrespective of whether a grandparent moves to secure an initial order of visitation or a parent moves to modify such an order, and that the plaintiffs’ failure to satisfy the Roth standards mandated a termination of the visitation order. We agree with the defendant.
“We start our analysis with the observation that [t]he courts of the states are free to determine the extent to which new decisions are to have retrospective effect.” (Internal quotation marks omitted.) State v. Salmon, 250 Conn. 147,165,735 A.2d 333 (1999). That determination, regardless of its outcome, does not result automatically in the denial of due process or any other right protected by the federal constitution.8 Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-65, 53 S. Ct. 145, 77 L. Ed. 360 (1932). Thus, the retrospective application of Roth does not result, per se, in a violation of the plaintiffs’ due process rights.
Although the federal constitution does not automatically preclude the retrospective application of Roth, we still must determine whether it should apply retrospec*510tively. In making that determination, we are guided by our decision in Neyland v. Board of Education, 195 Conn. 174, 487 A.2d 181 (1985).
In Neyland, we reviewed the analytical framework developed by the United States Supreme Court to decide whether a federal judicial decision should receive prospective application only. Id., 179-81. We noted that, although that court had established a three factor test of general applicability in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971); Neyland v. Board of Education, supra, 195 Conn. 179-80; it had outlined a different standard for subject matter jurisdictional rulings specifically in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981), “concluding that [a] court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only.” (Internal quotation marks omitted.) Neyland v. Board of Education, supra, 181. On the basis of our analysis of the two approaches, we held that the Chevron Oil Co. test generally was inapplicable to jurisdictional rulings. Id., 182-83. We declined, however, to adhere strictly to the reasoning in Firestone Tire & Rubber Co. to the extent that it would require this court’s subject matter jurisdictional rulings never being made prospective only, noting that the United States Supreme Court, itself, had elected to limit the holding in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982), to prospective application based on public policy considerations.9 Neyland v. Board of *511Education, supra, 179-81. Instead, we indicated that we would consider whether “exceptional circumstances or overriding needs of public policy similar to those present in [.Northern Pipeline Construction Co. exist] to merit a conclusion of [prospective only application].” Neyland v. Board of Education, supra, 182-83. Accordingly, because this court’s decision in Roth established the threshold requirements for a trial court to acquire subject matter jurisdiction to entertain a petition for visitation pursuant to
We conclude that, not only do no such exceptional circumstances exist, but that the overriding needs of public policy weigh heavily in favor of a retrospective application of Roth. First and foremost, Roth is rooted in the fundamental right of parents to make childrearing decisions—a right protected by the due process clause of the fourteenth amendment. “[T]he interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.” Troxel v. Granville, supra, 530 U.S. 65. “[A]mong those interests lying at the core of a parent’s right to care for his or her own children is the right to control their associations.” Roth v. Weston, supra, 259 Conn. 216. Although we sympathize with the plaintiffs’ concerns about a “bitter” parent acting capriciously in a manner arguably not in the best interest of the child, “the due process clause leaves little room for states to override a parent’s decision even when that parent’s decision is arbitraiy and neither serves nor is motivated by the best interests of the child.” Id., 223. “In light of the compelling interest at stake, the best interests of the *512child are secondary to the parents’ rights.” Id. In Roth v. Weston, supra, 217, we acknowledged that the judicial gloss that we had applied to
In addition, the creation of two regimes divided temporally by Roth would be anomalous. On one side of that divide would be those grandparents who have informal, as opposed to court-ordered, visitation and who would be forced to meet the Roth standards to protect that visitation should the parent choose to terminate it unilaterally. On the other side would be those grandparents who exercise the same visitation in every respect except that it is court ordered and who would have a partial shield against the application of the Roth standards should the parent attempt to terminate the visitation. We see no persuasive reason to bifurcate the application of the Roth standards depending on whether the existing visitation scheme has been formalized by a previous court order.
Nevertheless, the plaintiffs urge this court to adopt an approach whereby a parent seeking to modify a visitation order granted prior to Ro th pursuant to
We disagree that a scheme similar to that devised in Ireland offers an appropriate approach to govern a fit parent’s motion to modify an order of visitation for grandparents. First, we are not persuaded that a similar scheme is appropriate because the parties in the present case occupy different positions with respect to each other from those in a relocation case. When a custodial parent seeks to relocate with a child over the opposition of a noncustodial parent, the parties—both parents— enter into the conflict as equals, and accordingly, the shifting burden of proof scheme set forth in Ireland appropriately balances the fundamental rights of those equal parties. When a grandparent seeks to establish or maintain visitation rights with respect to a child over the opposition of that child’s parent, however, the parent’s rights necessarily cany greater weight “[b]ecause parenting remains a protected fundamental right . . . .” Roth v. Weston, supra, 259 Conn. 223. Hence, a balancing scheme predicated on the parties’ equality of rights would be inappropriate.
Second, we acknowledge that, ordinarily, before a court may modify a preexisting postdecree order of visitation, the moving party must establish either a material change in circumstances altering the child’s best interests or that the prior order was not based on the child’s best interests. Berglass v. Berglass, 71 Conn. App. 771, 782, 804 A.2d 889 (2002). These requirements are based on the interest in finality of judgments; see Hall v. Hall, 186 Conn. 118,122-23,439 A.2d 447 (1982); and the family’s need for stability. See Sullivan v. Sullivan, 141 Conn. 235, 239, 104 A.2d 898 (1954). Those *514important interests, however, cannot trump the fit parent’s constitutionally protected right to raise her child as she sees fit and the concomitant presumption that she acts in that child’s best interest. Moreover, in a contested visitation case, the ultimate question is: What is in the child’s best interest?
Our conclusion that Roth applies retrospectively leads to the further conclusion that the trial court was compelled to grant the defendant’s motion to terminate visitation. The plaintiffs failed to allege or attempt to prove that their relationship with the child was similar to a parent-child relationship and that denial of visitation would cause real and significant harm to the child. Without those specific, good faith allegations or such proof, either at the time of the filing of their petition or at the time of the hearing on the defendant’s motion, the trial court’s prior order of visitation was rendered without subject matter jurisdiction. Accordingly, the defendant’s motion to modify and terminate the plaintiffs’ visitation rights properly was granted.
The judgment is affirmed.
In this opinion the other justices concurred.
Notes
The intervening plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to
Richard S. Denardo, Jr., petitioned for custody and visitation rights with respect to his daughter, Courtney Denardo. His parents, Richard S. Denaxdo, Sr., and Patricia Denardo, intervened as plaintiffs pursuant to
In Troxel v. Granville, supra, 530 U.S. 75, the United States Supreme Court held that § 26.10.160 (3) of the Revised Code of Washington, the nonparental visitation statute, which the Washington Supreme Court had held facially unconstitutional under the federal constitution, was unconstitutional as applied to the defendant mother because it “violated her due process right to malee decisions concerning the care, custody, and control of her [children].” The Washington statute contained several similarities to
In Castagno v. Wholean, supra, 239 Conn. 337, the plaintiff grandparents sought an order of visitation with the minor children of their daughter and her husband, who were not then separated or Involved in any court proceedings that might affect the custody of the children. We recognized that, because the text of the statute did not contain any threshold requirement that the minor child’s family life be disrupted in any way before a nonparent could seek visitation rights, “[t]he literal application of [
We note that the plaintiffs lack standing to assert the due process rights of the minor child. See Shaskan v. Waltham Industries Corp., 168 Conn. 43, 49, 357 A.2d 472 (1975) (litigant lacks standing to assert constitutional rights of another). “It is well established that a child may bring a civil action only by a guardian or next friend, whose responsibility it is to ensure that the interests of the ward are well represented. . . . When a guardian has been appointed to protect the interests of a child, the guardian is usually the proper person to bring an action on behalf of the child.” (Citations omitted; internal quotation marks omitted.) Orsi v. Senatore, 230 Conn. 459, 466-67,645 A.2d 986 (1994). Because the plaintiffs are not the legal guardians of the child, and the child’s interests are represented by an attorney, the plaintiffs cannot assert the child’s legal rights. Accordingly, we do not consider whether the child’s due process rights were violated by the trial court’s judgment.
The plaintiffs do not make clear whether their due process claim is brought pursuant to the state or the federal constitution. They have failed to provide any independent analysis of the claim pursuant to the state constitution. Accordingly, we limit our analysis to those guarantees provided in the federal constitution. See State v. DeJesus, 270 Conn. 826, 834 n.14, 856 A.2d 345 (2004).
In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., supra, 458 U.S. 87, the Supreme Court held that the broad grant of jurisdiction to the bankruptcy courts contained in