Fish v. Fish

FISH, v. ANDREW J. JR. PAULA J. FISH 17500) (SC Vertefeuille, Sullivan, Borden, Norcott, Katz, Palmer, Zarella and Js.* * justices seniority listing status as of the date of reflects their argument. oral panel consisting originally argued before a of this court This case was Thereafter, court, Norcott, Katz,Palmer, Zarella. Vertefeuille and Justices sponte, pursuant (b), Book 70-7 sua ordered that the case be to Practice Accordingly, Justices Borden and Sullivan were added considered en banc. record, transcript panel, they of oral have read the briefs argument. officially January 15,

Argued September 18, released 200 6 for the Kiefer, appellant (defendant). Louis Moskowitz, Kor, Emily Robert J. with whom was J. for the minor child.

Campbell Barrett, D. Steven R. Dembo and Justine Rakich-Kelly filed a brief for the Children’s Law Center as amicus curiae.

Opinion postdissolution custody In this child ZARELLA, J. a third the issue before the court is whether proceeding, satisfy jurisdictional require- must party1 pleading persuasion and burden of articulated in Roth ments 202, 234-35, 259 Conn. 789 A.2d 431 Weston, (2002), when of a minor child over the seeking objection parent.2 defendant, of a fit Andrew J. Fish, Jr., appeals Appellate from the judgment affirmed Court, which modi- order of the trial court joint fying original by awarding order3 cus- tody plaintiff, Fish,4 Paula J. and the child’s paternal aunt, Husaluk, intervenor Barbara and direct- primary that the child’s residence be with Husaluk ing Aspen, Colorado. The defendant claims that the trial jurisdiction court grant lacked Husaluk’s motion to improperly intervene and awarded her because prove by she failed to allege convincing clear and facts required by evidence the Roth for third visita- relationship tion. These facts include a with the child akin to that of a and real and substantial emo- tional harm to analogous required prove the harm to that a child “neglected, dependent” uncared-for or 1 party” any private The term “third refers to individual other than a child, distinguished of the as from the state. We do not address situations temporary custody child; in which the state seeks of the see General Statutes 46b-129; custody parents. § or removal of the child from the of the child’s § See General Statutes 45a-610. 2 granted petition appeal We the defendant’s for certification to limited following Appellate properly to the issue: “Did the Court conclude that the required apply jurisdictional heightened pleading trial court was not to requirement persuasion required Weston, and burden of under Roth v. [supra, Fish, 924, 883 A.2d (2005). 259 Conn. 275 Conn. 1243 234-35]?" Fish v. 3 order, original joint custody plaintiff In its the trial court awarded and the defendant. 4 plaintiff plaintiff The is now known as Paula J. Pierce. The did not submit guardian litem-attomey a brief to this court. The ad for the minor child only contesting submitted the brief the defendant’s claim. Gen- custody neglect the and statutes.5 temporary

under 46b- 46b-129; eral see also General Statutes § Statutes We conclude that 120; Weston, supra, Roth v. 234-35. proof that we requirements the and burden pleading constitutionally are mandated articulated in Roth not custody proceedings, present third which party those raised in visitation issues that are different from however, trial conclude, We also that the proceedings. apply failed a standard of harm improperly court to the interests of the child” more than “best stringent when it Husaluk’s motion intervene granted custody opposition over the of the defen- awarded her part6 judgment dant. we reverse Accordingly, Appellate Court. opinion are in the of the The facts set forth following parties7 “The were on June Appellate Court. married 1985, was of the in 1989.8 21, marriage and child bom temporary neglect note on the statutes We that Roth relied define of emotional harm that the child would suffer should the level Weston,supra, petitioner be Roth 259 Conn. visitation with the denied. See inadequate alleged to evaluate harm 235. The Roth standard is therefore party custody contemplate proceeding in a third because it does party physical psychological harm that form the basis of a third also Nevertheless, purposes discussion, assume, we award. this physical, psychological refer to the defendant and the concurrence temporary neglect described in the statutes and emotional harm they apply cus when contend that the Roth standard should tody proceedings. 6 Appellate court had discre Court concluded that the trial abused its exemptions therefore, dependency and, ordering tion in allocation of tax only respect judgment Fish v. reversed trial court’s that order. 764-65, Fish, App. 744, (2005). appeal this 90 Conn. 881 A.2d 342 On court, challenged Appellate Court’s determination of neither has Appellate part judgment. that issue. affirm that Court’s We therefore collectively “parties” “parents.” as the or as the April Although parties’ daughter eighteen 28, 2007, on we turned by agree appeal not be with the defendant that his would rendered moot unchallenged representation fact in his to this that he view of court consequences be entitled to favorable tax and other financial should prevail. he 1996, after 5, on was March marriage The dissolved with the child joint parties which the shared There have arrangement. evenly parenting divided an disputes respect with frequent contentious been payment and the placement educational child’s ad June, In support. 2001, guardian and child tuition child, she continues appointed was for the and litem child’s well as as the capacity serving in that to serve 2002. attorney December, since was thir- 2002, parties’ the May, daughter “In [when . . motion to . years teen defendant [filed] old] custody of the custody in he sole modify sought which by The supervised plaintiff. visitation child with and for a evaluation court entered orders of the that the live for remainder ordered child aunt, Martinsen, year with her maternal Pamela school who lives in Connecticut. The court also ordered Colorado, spend Aspen, the child summer of 2002 early December, paternal aunt, with her Husaluk. cus- flurry activity involving there was 2002, another temporary tody and visitation. The court ordered the placement unsupervised of the child with Martinsen and parties rotating weekend visitation on weekends. days later, request by an following emergency Four ad visitation guardian litem, the court modified the order to reflect that the child could elect the extent the circumstances her visitation the defendant. 13, 2002,

“Trial in this on began matter December on 3, April 21, May 12, 29, and continued March 19 and July 2003. course During trial, ad litem place- recommended that guardian in Aspen, Colorado, ment of the child with Husaluk would be in the interest. who plaintiff, child’s best had a double and was che- mastectomy had undergoing motherapy treat her breast cancer throughout trial, proposed with the ad agreed guardian litem’s orders. Both and Martinsen Husaluk filed motions trial,9 the course of the which the court during

intervene trial, ordered, alia, the court inter granted. Following joint custody plaintiff that Husaluk and the share residence child, primary with the child’s [to be] with Husaluk her school Aspen, Colorado, during high to commence. The court years, which were about parties during ordered visitation with each of the school specifically . . . the child the gave vacations but with the spend overnight of whether to visits choice ad guardian defendant. The court ordered that the litem years ‘should appointed remain to the child for four any issues arise . . . .’ child and its respect

“With of the plaintiff joint reasons for awarding fact, made exhaustive Husaluk, findings the court and summarize from its excerpt August which we of decision. Since the dissolution 2003 memorandum years parties’ when the child was four marriage old, subject ‘she has been the of an intense battle parents ownership over their rights between the two by account, constantly her own been has, in her. She incessantly by been each “put middle,” grilled in the has with the and has been spent after time other from by bombarded what she calls bombs” “guilt parent.’ each parties put that both had their own

“The court found child’s well-being. addition, interests before the provide court found that the defendant had failed home for the demonstrated appropriate child, clean and intervene, paternal In her motion to Husaluk stated: “I am the aunt of By court, .... resided with me the minor child order [the child] during the summer of 2002. ... I have maintained contact with [the child] year. spent spring throughout this . . . her vacation with school [The child] me, provide loving ... I as ordered the court. a safe and environment through . . . ... child’s to reside with me It is [the desire] [the child]. year[s]. Wherefore, grant permission high her school I ask that the court me to intervene.” nature in the child’s of a sexual

inappropriate behavior and, in his home dog presence, kept dangerous the child. The court emotionally sum, neglected had home, has had to plaintiffs ‘In the stated: [the child] guilty make her feel attempts her mother’s endure home. spent over the time at the defendant’s had to deal with her father’s home, defendant’s she has house, her to his side. At his attempts get incessant filthy unkempt to a and exposed she also has been multiple cats, cat feces and urine environment, with throughout odors the home.’ history that there was a

“The court also found and a defendant, child and the conflict between the defendant history inappropriate behavior credited the example, toward the child. For the court walked around the testimony child’s that the defendant his in open exposing genitals house with an bathrobe joked he about to a nudist presence going her and that colony inap- defendant also made other with her. The comments, including sug- and once propriate suggestive ‘see-through at a mall that she wear a outfit.’ gesting when defendant, The child also testified that entirely, of himself himself angered, striking lost control up and and down stairs. She also testified that running every day and that the defendant drank wine almost unpredictable. alcohol rendered his moods The child stay was adamant in her desire not to at the defendant’s expressed and no desire to live with overnight house him. that after with Martinsen living

“The court also found away and, later, Husaluk, the child had been from her live in parents’ people battles and had seen how other envi- peace supportive nurturing relative and in a experiences ronment. Those increased child’s stability family life, for and calm in her which yearning enjoyed parents. she never had with her The court noted that, point at one her testi- compelling, during ‘[m]ost emancipate please court to the child asked the

mony, Husaluk, impres- Martinsen and aunts, The child’s her.’ who have women nurturing loving sed the court herself,’ which ‘develop a voice helped the child Martinsen, care. parents’ while in her had lacked she and the ad guardian the child Husaluk, plaintiff, interest that in the child’s best that it was agreed litem Aspen Aspen. While live with Husaluk she thrived, at the summer, working the child previous sports family business, participating Husaluk defendant, in contrast new friends. The making airplane pay for the child’s aunts, refused child’s the child had refused to trip home because ticket for her paid Husaluk for the ticket. at his house. stay overnight Herd, a testimony of John credited the “The court the child’s school Con- and administrator at teacher Aspen, returning after from who testified that necticut, her work quality and the of emotional state the child’s and adolescent Black, a child improved. James school of the child conducted an evaluation psychiatrist who that the child return also recommended parties, and the that Husaluk. Black testified to reside with Aspen that could only thing Aspen would be moving parties have from the conflict that the child insulate years prac- in all his of that, wage continued to away a child sending had recommended tice, he never would be that it parents. her Black recommended from stay her to with development for for the child’s better plaintiff than for joint custody with Husaluk with care, or to enter foster school boarding her to attend had suggested. the defendant of which each is clear . . . that that “The court concluded ‘[i]t parents between the two deep antagonism there exists has caused child], which has little to do with [the daughter’s. needs ahead of their place their own them to case, plaintiffs the start of this However, since improved consider- her has relationship daughter with place- ably. daughter’s She has come to realize that her years ment with in Colorado for the next four [Husaluk] in the child’s best interest. Unfortu- high school is defendant. He nately, the same cannot be said he is a individual who believes that is controlling only qualified one to decide what is in best [the child’s] incapable working interest. . . . with the [H]e own sister [plaintiff] aunts, or either of the his including ... It [Husaluk], promote the child’s best interest. emotionally is clear to that this child has been this court many He has had neglected opportuni- the defendant. ample improve ties and time to the condition of his home and has chosen not to. . . . The defendant does not hear his little credence to her daughter gives opinions, persuaded ideas and needs. The court is year this an quite capable making fourteen old is respect out intelligent, thought well decision with ” Fish, her situation.’ Fish v. 90 Conn. living App. 744, 747-52, 881 A.2d 342 The trial court thus con- (2005). cluded that it would be in the child’s best interests to joint custody plaintiff award and Husaluk. subsequent orders, its the court directed that the plaintiff and Husaluk consult with regard- the defendant ing major “all events affecting life,” the child’s authority. Husaluk final having decision-making court also directed that the child return to Connecticut for school vacations and for one month the during sum- mer. The court further ordered: “It is . . . expected that when the child visits Connecticut, she shall be spend to encouraged equal parents time with each of her . . . . However, . . . concerns about the [due to] physical condition of the defendant’s dog, home and the it shall be the child’s decision whether she chooses to spend with overnights her father.” The court ordered plaintiff the and the defendant to share the cost of the child to and transporting from Connecticut and stated that shall be telephone reasonable “[t]here e-mail parents. contact between the child and her It is a full both shall continue to have

hoped parents economic, ethical, role a sound providing and active she is for the child when and educational environment . their best parents care. . . The shall exert in their develop with cooperatively efforts to work [Husaluk] best inter- consistent with the plans future the child amicably disputes such of the child and to resolve ests may arise time to time.” from Appellate Court, the defendant appeal On to the jurisdiction trial lacked claimed, alia, inter that the court improperly to intervene and over Husaluk’s motion satisfy custody she failed to awarded her because had requirements and burden heightened pleading the Fish, supra, set in Roth. Fish v. persuasion forth that the Roth App. argued Conn. 752. The defendant peti to third intervention apply standard should custody because intrudes on custody tions and awards at least as as visitation. the fit much rights on the id., Appellate 756. Court disagreed See visitation standard was intended ground so invalidat requirements additional as to avoid impose overly broad visitation statute10 on constitutional ing case present whereas the defendant in the grounds, statutes, the relevant challenged had particular, 46b-56b,11 General Statutes as unconstitu § para- id. tional. See The court further noted that provides part: Superior Statutes relevant “The Court § General 46b-59 may right respect any grant minor child or children of visitation any person, upon person. application of such order shall be an Such subject upon according judgment to the facts of the case and court’s best making, equitable as it deems .... to such conditions and limitations order, by guided modifying terminating such an court shall be child, giving consideration wishes of such child best interest of forming opinion. capable intelligent age ...” if he is of sufficient an added.) (Emphasis any provides: dispute “In General Statutes 46b-56b as to nonparent, presump involving parent and a there shall be a of a minor child child tion that it is in the best interest of the to be in the parent, presumption showing be which be rebutted that it would parent custody.” permit detrimental to the child to have parent was the of a fit right mount concern in Roth by id., 756; others; a child free from interference raise custody concern in cases is the principal but that the quotation “best interest of the child.” marks (Internal Id., that, 757. The court thus concluded omitted.) of a enjoys “the defendant although rights cases, jurisdictional in Roth and other recognized requirements per- burden of pleading heightened Roth, specific involving suasion of which are to cases objection for over the of party petitions visitation parent, inapposite custody a fit are to this contested finally . . . .” Id., Appellate case 752. The Court observed that the trial court had determined that it was joint custody the child’s best interest to award to the plaintiff pursuant custody and Husaluk to the governing statutes, namely, 46b-57,12 General Statutes 46b-5613 §§ provides: any controversy Supe § General Statutes 46b-57 “In before the children, any complaint rior Court as to the of minor and on under chapter 51-348a, any this or section 46b-1 or if there is minor child of either parties, court, jurisdiction provisions or both if it has under the chapter 815p, may any parties allow interested third or to intervene upon may partial custody, care, motion. The court award full or education rights any party upon and visitation of such child to such third such condi equitable. any allowing tions and limitations as it deems Before such inter vention, may appoint pursuant the court counsel for the child or children provisions any making section, to the of section 46b-54. In order under this guided child, giving the court shall be the best interests of the consider age capable ation to the wishes of the child if the child is of sufficient forming intelligent preference.” an provides part: any “(a) General Statutes 46b-56 in relevant In contro versy Superior children, before the Court as to the or care of minor any day any complaint and at time after the return under section 46b- may modify any proper regarding custody, the court make or order care, education, support jurisdiction visitation and of the children if it has provisions chapter 815p. Subject provisions under the to the of section 46b-56a, may parental responsibility assign raising the court the child parents jointly, may to the or award to either or to a third party, according judgment upon subject to its best the facts of the case and equitable. to such conditions and limitations as it deems The court also any granting right any make order of visitation of child to a third action, to, including, grandparents. but not limited any “(b) making modifying provided (a) order as in subsection section, responsibilities parents rights this of both shall be consid-

and The Court thus concluded that Appellate 46b-56b. accordingly that serve the interests ered and the court shall enter orders best provide the with the and consistent involvement of child and the child active parents interests. of both with their abilities and Such orders commensurate may aparental include, (1) Approval responsibil- to: of but shall not be limited ity by parents joint parental plan (2) respon- agreed . the to the . . award of sibility parents, provisions (A) a minor child which shall include of to both parent arrangements with each in accordance the needs for residential with provisions parents, (B) of the and the and for consultation between child major parents regarding making the for the of decisions the child’s and health, upbringing; (3) religious award of and the sole education parent parent appropriate parenting the to one with time for noncustodial child; any (4) where is best interests of the or other sole in the may custody arrangements as be in the interests the court determine to best the child. any provided “(c) making (a) modifying as in and In or order subsections child, section, (b) of the shall consider the best interests of the this court may to, doing consider, one and in so but shall not be limited or more of (1) temperament developmental following the and needs of the factors: child; parents (2) capacity disposition of to and the and the the understand any child; (3) meet needs of the relevant and material information the child, preferences child; including the obtained from the informed of the custody; past (4) parents (5) as to the the wishes of the child’s and current parent, siblings relationship the child with the interaction and each child’s any person may significantly and affect the best interests of the other who child; ability parent willingness encourage (6) each facilitate the and to and parent-child relationship continuing the child other such between and the any parent appropriate, compliance orders; (7) including court any parents manipulation or behavior in coercive an effort ability parents’ dispute; parent (8) child in the the of each involve the adjustment actively child; (9) in the the child’s to his be involved the life of community home, environments; (10) length or her school and of time satisfactory has lived the child in a stable environment and continuity environment, provided desirability maintaining such voluntarily favorably court consider who leaves the child’s family pendente household; (11) in the home lite order alleviate stress stability proposed residences, existing both; (12) or of the child’s or disability physical involved, except mental and health all individuals that a itself, party, proposed of a custodial other in and of not be or shall proposed arrangement determinative of unless the custodial is not child; (13) background; (14) in the interests of the child’s cultural best abuser, any an the effect on the child of the actions of if domestic violence aparent parents has between occurred between or another individual child; (15) sibling has or the whether the child or a of the child been abused 46b-120; neglected, respectively (16) whether as defined section satisfactorily completed participation parenting in a education apply the stan- properly had declined to the trial court Id., articulated in Roth. 757. dard court, this the defendant renews his appeal his improperly apply court failed to claim that the trial to Husaluk’s motion to intervene visitation standard custody. agree and to the modified award of We party custody require the defendant that third decisions application the of a standard more than the demanding “best interests of the child.” We nonetheless conclude judicial placed that the we on the visitation statute gloss applied in Roth should not be to the relevant third party custody constitutionally statutes because it is not necessary protect liberty parents. to interests of the gives weight Roth standard also insufficient to the may countervailing child, interests who not be in physical actual but be destined to endure danger continued harmful treatment if the trial adequate flexibility court lacks and discretion to tailor unique orders of facts of each case. Finally, it the legislature, contravenes intent of contemplate which did not a standard of harm or burden proof party custody proceedings as as the standard articulated in Roth. demanding

I proper The trial court’s determination of the legal any question subject standard in case is a of law given plenaxy See, to our review. e.g., Courant Co. Hartford Commission, v. Freedom 261 Conn. 86, of Information 96-97, (2002). A.2d 759 analysis by

We our begin examining the reasoning Roth, which the trial court granted petitioners, pursuant program required to established section 46b-69b.The court is not assign any any weight to . . factors that it considers. Although 2005; 2005, § 46b-56 was amended in see Public Acts No. 05- 258, 3; bearing appeal. § those amendments have no on the merits of this simplicity, § In the interest of we refer to the current revision of 46b-56 throughout opinion. this aunt, visitation grandmother maternal maternal following two minor children their with the defendant’s Weston, mother’s death. See Roth supra, v. 259 Conn. in Roth appeal court, 204. In his to this the defendant that, Supreme United States argued light v. Granville, decision in Troxel 530 U.S. Court’s 2054, 147 L. Ed. 2d 49 the Connecticut (2000), S. Ct. may- the court statute, provides which visitation any “with minor respect of visitation right grant upon any person, application children an child or . court’s best person according judg such . . subject case to such upon the facts of the ment it Gen equitable”; and limitations as deems conditions 46b-59; facially was either unconstitu eral Statutes applied to the facts of the tional or unconstitutional Weston, case. Roth 205. We that this agreed statute, like the visitation Washington state’s visitation Troxel,14 adequately at issue in statute “[did] parents’ in the care, status of interest acknowledge the children, perhaps of their as the control liberty interests recognized of the fundamental oldest quota Supreme] Court.” by (Internal United States [the Troxel Gran v. Id., marks omitted.) quoting tion ville, Nevertheless, 65. rather than invalidating for a that would statute, we searched construction the purpose declared accomplish the that legislature’s jurisdiction petition could exercise over a court a fit party visitation wishes of against only petition “specific, allega if faith good contains petitioner relationship has a with the child tions that parent-child relationship. to a that is similar in nature specific, also contain faith alle petition good The must will real that denial of the visitation cause gations 14 Troxel, Supreme Washing Court that the United States concluded applied statute unconstitutional in that case because ton visitation was overly special no to the custodial was broad and accorded deference it requested daughter’s parent’s that visitation was not in her best decision Granville, supra, Troxel 67. interests. See U.S. have harm to the child. As we significant [emotional] stated, requires of harm more than a deter- degree that visitation would be in the child’s best mination It be a of harm degree analogous interest. must contemplated by 46b-129,15 kind of harm 46b-120 and §§ namely, the child is uncared-for or ‘neglected, dependent.’16 degree specificity allegations justify must be sufficient the fit requiring subject to unwanted judgment his or her if litigation. Only specific, good allegations these faith jurisdiction petition. are made will a court have over the “Second, jurisdictional high once these hurdles have overcome, petitioner prove allega- been must these Only tions clear and evidence. if that convincing persuasion enhanced burden of has been met court an requirements enter order of visitation. These constitutionally thus serve as the mandated safeguards unwarranted against parent’s intrusions into author- ity.” Roth v. Weston, supra, 259 Conn. 234-35.

The defendant’s claim that the trial court should have applied heightened standard in Roth to Husaluk’s motion to intervene and to its implies award facially that the statutes are unconstitutional any and that lesser standard protect is insufficient to defendant’s constitutional rights. Accordingly, although he did not frame his claim in constitutional language, it is essentially constitutional in nature. We therefore examine the relevant statutes to determine 15 provides (a) § General Statutes 46b-129 that children who are deemed “neglected, dependent” may temporarily uncared-for or be removed from parents’ custody temporary their and committed to the care and agency person. of some other suitable 16 explained We in Roth that such a situation would occur in the visitation person parental-type capacity context when “a has acted in a an for extended period time, becoming integral part regular routine, of an of the child’s that child could suffer serious harm should contact [such] [the] with that person seriously disrupt relationship.” be denied or so limited as to that Weston, supra, v. Roth 259 Conn. 225-26. oppose they parents fit who provide

whether protection to survive with sufficient petitions 46b- and, not, if whether challenge a constitutional subject judicial 56b, particular, should be same on visitation statute at issue placed that we the gloss in Roth.

II protec basis the the constitutional for discussing Supreme States Court tion of the United rights, liberty ... of observed in Troxel that interest “[t]he chil care, custody, and control of their parents in the lib ... the of the fundamental perhaps dren is oldest erty by this More than recognized interests [c]ourt. Nebraska, v. ago, Meyer years 262 U.S. [seventy-five] 399, Ct. 67 L. Ed. we 390, 625, (1923), S. [43 1042] liberty protected [p]rocess held that the [d]ue ahorne parents lause of to establish right includes [c] of children and to control education bring up and Sis Society in Pierce v. years later, Two their own. Ed. ters, 751, 45 S. Ct. 69 L. [534-35, U.S. 1070] and liberty parents held we (1925), again to direct upbringing includes the guardians right . . We their control. . and education of children under Massachusetts, in Prince subject v. returned to the 438, 88 L. Ed. (1944), again U.S. 158 S. Ct. 645] [64 dimension to confirmed that there a constitutional of their parents upbringing direct right . custody, cardinal . . that the care children. It is parents, first in the whose nurture of the child reside preparation include primary function freedom Id., supply state can neither nor hinder. obligations the omitted.) omitted; quotation marks (Citation internal [166].” Granville, “In light 530 U.S. 65-66. Troxel it cannot now be doubted precedent, of this extensive [p]rocess [d]ue [c]lause [f]ourteenth parents protects right the fundamental [a]mendment

41 custody, care, concerning to make decisions 66. Id., control of their children.” the con- likewise have recognized Connecticut courts and care stitutionally protected parents to raise right Bergamo, Denardo v. See, for their children. e.g., Pastore, Crockett v. 500, 511, (2005); Conn. 863 A.2d 686 Weston, Roth v. 240, 246, (2002); 259 Conn. 789 A.2d 453 Girl Baby B., In re 224 Conn. supra, 216; 259 Conn. When affects 263, 279-80, (1992). legislation 618 A.2d strictly a fundamental constitutional it must be right, Cas- Weston, supra, Roth See, 218; v. e.g., scrutinized. tagno Wholean, 336, 344, v. 239 Conn. 684 A.2d 1181 Weston, Roth v. by overruled on other (1996), grounds study 202. pertinent We therefore they narrowly statutes to determine whether are tai- state interest. See Roth lored to achieve a compelling Weston, Keogh Bridgeport, v. v. supra, 218; see also 53, 66, statutory Conn. 444 A.2d 225 (1982) (“[w]hen . classification . . affects a personal fundamental subject scrutiny the statute is to strict right, and is justified only by a state compelling This interest”). requires consideration of of harm standing, standard that the trial apply court must deciding petitions intervention awards, and the proper burden proof.

Ill repeatedly We have recognized that when “funda- rights implicated mental are . . . standing serves a beyond jurisdictional function a mere prerequisite. It statutory also ensures that the scheme narrowly tai- person’s personal lored so that a affairs are not need- lessly intruded upon interrupted by the trauma Weston, Roth of litigation.”17 supra, 259 Conn. 219. party custody may petitions only We note that third be filed when there existing controversy Superior is an before the Court. See General Statutes they (a) Thus, litigation §§ 46b-56 and 46b-57. do not create additional parents respond. petitions, hand, which the must Visitation on the other any person parent-like relationship be filed at time who has a analysis requires scrutiny a strict that

Accordingly, statutory narrowly respect drawn with to scheme be in a may who seek to intervene persons the class of custody may be custody or to whom proceeding id. by awarded the court.18 See custody party Three third determina- govern statutes in provides that, (a) § tions. General Statutes 46b-56 custody, may an order of the court making modifying or party to a custody parent award to “either or third Additionally, provides . . .” General Statutes 46b-57 § . “may party any allow interested third that trial court any in parties upon existing to intervene motion” full or cus- custody “may partial award proceeding party . . . .” tody any child to such ... of such in dis- Finally, provides that, Statutes 46b-56b § General custody involving “the of a minor child putes regarding there shall be a rebuttable nonparent,” and a in that it is best interest of the child presumption custody custody such to retain unless for the child. shown be “detrimental” to to party” foregoing The term “third is not defined any legislative other related statutes. The statutes or in Weston, 221-22; v. see General Statutes with the Roth 259 Conn. child. 46b-59. § intervention of an interested third Section 46b-57 authorizes formal already existing party in an interest be before court whose 46b-56, procedural supplement controversy, serving to which as a thus require party to award does not a third to intervene in order the court 403, custody Doe, 441, party. v. See Doe 244 Conn. 710 A.2d Cappetta Cappetta, 14-15, (1998); see 196 Conn. 490 A.2d 996 also “orderly adjudication (1985) (although claims nontradi parties party managed having inter such claimants become tional is best statutory time,” permits possible appropriate venors at scheme the earliest “if, intervention, nonparty formal even without award person’s potential properly court”). status before the Accord custodial was custody proceeding, ingly, he or seeks to in a when a third intervene awarding allege find must same facts that the court must when she proceeding in the but whose who has not intervened a third brought in some other manner. interest has before the court been history of the statutes sheds no additional on the light matter. As we stated in Castagno, “courts are bound to assume that the legislature intended, enacting particular law, purpose to achieve its in a manner which is both effective and pre constitutional. . . . [T]his sumption of constitutionality imposes upon the trial court, as well as this court, duty statutes, construe whenever possible, a manner that comports with constitutional safeguards liberty.” of (Citation omitted; quotation internal marks omitted.) Castagno Who v.

lean, supra, 239 Conn. 344-45.

When similarly construing broad language concern- third visitation in Roth, we noted that the 1983 ing amendment to the visitation statute extending standing “any to person”;19 Public Acts No. 83-95; reflected “the legislature’s that recognition persons other than parents may have substantial relationships with chil- dren that warrant preservation.” Roth v. Weston, supra, 259 Conn. 220. We also recognized that, “in many house- holds, grandparents, as well people as who have no biological relationship with child, a undertake duties parental of a nature and that states have sought to ensure the welfare of children protecting those rela- tionships. Some states have done this expressly . . . while others by judicial have done so gloss. . . .

“Therefore, we person that a acknowledge other than a blood relation may have established a more significant connection with a child than the one established with a grandparent or some other relative. Conversely, we recognize that being a blood relation of a child does always translate into that relative having significant emotional ties with that child. Indeed, 46b-59 § implicitly recognizes, it is not necessarily the biological provides General part: Statutes Superior 46b-59 in relevant “The Court may grant right respect any of visitation with to minor child or children any person, upon application person. an of such . . a basis for relationship provides

aspect Rather, it is the nature of interest. cognizable legally relationship (Citations determines standing.” omitted.) Id., 220-21. Roth pre “in that, light thus

We concluded Troxel, parents fitness under sumption into unjustified faced with intrusions should not be proof . in the of . . absence decision-making their relationship .... The extension [parent-like] a parents persons other than child’s statutory rights Granville, with an obvious cost. Troxel comes parent-like nature of a relation U.S. 64. Proof and the child person visitation ship seeking between necessary jurisdictional safeguard provide the would against having families from defend prevent any Accordingly, for visitation. unjustified petitions allege . seeking . . visitation must relationship jurisdictional a parent-like establish a pass to constitutional muster in order both threshold intent.” (Citation be with the legislative and to consistent omitted.) Weston, supra, 259 Conn. 221-22. Rothv. visitation and cus- concerning statutes relevant fashion; they overly exactly in the same tody are broad particularity persons who define with those fail to parents. For custody other than this seek visitation application a literal reason, visitation, as in the case of in custody place statutes could them “constitutional Castagno Wholean, Conn. 345. jeopardy.” to avoid constitutional Accordingly, that, we conclude infirmity, requirement party that a third standing parent-like relationship a with the child should allege Roth in to all of the reasons described applied be for custody parties seeking awards and to third party third custody proceedings. in existing intervention IV A must harm that a third We next consider the custody in prove proceeding to intervene a allege and justify to a third or that the trial court must find We objection parent. over the of a fit award disputes differ from party custody note that third first in custody because, seek parents those in which both constitutionally a party possesses latter each case, v. Dougherty, See McDermott protected parental right. A.2d 751 In cases which 320, 353, (2005). 385 Md. “ parent supe- has a parents custody, both seek either [n] care, right provide rior claim to the exercise of [the] Effectively, . custody, and control of the children. . . neutralizes then, parent’s right each fit constitutional parent’s leaving, gener- the other constitutional right, of the child as the sole standard ally, best interests apply types Thus, to these decisions. parent’s request custody, par- each evaluating presumptive equals and a trial court ents commence as parent’s of each relative merits balancing undertakes primary parent; to serve as the custodial the child’s best [tip] interests the scale in favor of an award of parent to one or the other. dispute

“Where the is between a fit and a private party, however, parties both do not begin equal respect on footing rights care, custody, and control of the children.20 The asserting right. party fundamental constitutional The third is not. private A third no has fundamental constitutional right Generally, to raise the children of others. absent a statute, constitutional the third non-governmental 20 present case, joint custody assigned In the the trial court to the mother paternal analysis follows, however, applies and the aunt The that to all parties child, regardless situations in which third seek aof minor arrangement ultimately of the custodial that the court orders.

46 otherwise, to raise some- constitutional has no rights, emphasis origi- omitted; (Citation child.” one else’s Id. omitted.) marks quotation nal; internal we con- rights, parent’s constitutional Mindful of the party visitation in Roth that Connecticut’s cluded was unconstitutional judicial gloss, statute, without parents right the fundamental and interfered it was too because for their children raise and care the guide no standard broadly provided written and than the decision, other a visitation in making court supra, 259 Weston, Roth v. of the child. best interests the visitation noted that specifically 222-23. We Conn. presumption face, “ignore[d] its both statute, on their children” best interests of act parents that by judges invaded to be parental rights and “allow[ed] determination solely judge’s based [on] if the par- served would be better best interests child’s differently.” Id. Sec- authority parental his ent exercised these either of not suffer from 46b-56b does tion a rebuttable in the statute of Inclusion deficiencies. custody addresses parental in favor of presumption21 defeat flaw that contributed the constitutional in Troxel statute at issue visitation Washington of the judicial place court, part, this prompted and that Granville, supra, v. See Troxel on 46b-59. gloss Stat- supra, 232-35. General Weston, Roth v. 72-73; U.S. presumption that the provides 46b-56b also utes § by only demonstrating be rebutted . . . .” The rebutta- to the child “detrimental would be prima proof equivalent a fact presumption facie “A rebuttable by opposing party’s production only of sufficient and can be rebutted contradictory disproves persuasive the fact that is evidence that requires particular presumption subject presumption. that a ... A of the invalidity proponent until such time as fact be deemed true by case, required quantum proof shown has, by particular the fact contradictory evidence, presumption has been rebut that the sufficient 675, 684, Schult, App. omitted.) 672 A.2d (Citation 40 Conn. Schult ted.” 'd, (1997). (1996), 699 A.2d 134 aff Conn. and the standard of harm articulated presumption ble party custody protect parental in the third statute thus they preclude rights awarding because the court from custody purely subjective on the basis of a determina- best judge’s personal tion of the child’s interests or the lifestyle preferences. result, or As a we conclude that facially the statute is constitutional.

The defendant nonetheless that argues the standard party of harm articulated in Ro th should in apply third because Roth proceedings declared “[visi tation is a limited form of during the time the visitation are . . . rights being (Internal exercised .” quotation omitted.) Weston, supra, marks Roth comparison overly Conn. 229 n.13. This simplistic, is however, because it improperly focuses on the time away parent the child is from the and does not consider that third visitation and intrude liberty on the entirely interest in different ways. Specifically, visitation petitions challenge parent decision of a fit who presumed to be acting deny the child’s petitioner’s best interest to or limit the request for Granville, supra, visitation. See Troxel v. 530 U.S. harm alleged petition 72-73. The in a visitation petitioner results from the child’s lack of access parent-child rather than from the relationship, which is deemed to be beneficial. See In Appeal re Juvenile (84-AB), 192 Conn. 263, 471 A.2d 1380 (1984). In contrast, the harm in a alleged party custody petition arises from the par fundamental nature of the relationship, ent-child which emotionally, psy be chologically physically damaging to the child. Consequently, light the fact that a third custody petition directly challenges compe the overall tence of the to care for the child, the standard employed protect liberty interest of the must be more flexible responsive to the child’s applied welfare than the standard cases, visitation parent-child relationship is not underlying in which the Appeal (83-CD), See In re Juvenile 189 contested.22 child’s 287, (when 455 A.2d 1313 “the 276, (1983) Conn. . . . with that of interest coincides the longer no parent’s family right integrity” magnitude the the weigh These considerations diminished). against is Roth harm in third application of the standard requirements the articu- because proceedings judicial room for the Roth provide lated in insufficient necessary to that take formulate solutions discretion of each unique facts and circumstances into account particular case. had the addition, opportunity

In when this court in a to the child interpret meaning detriment adopt did a construction context, related it not in Roth. In standard of harm set forth restrictive as the S., 184, 1141 In re Joshua 260 Conn. 796 A.2d testamentary of the named guardians (2002), rights by department were challenged of a child neglected child’s (department) by families of children and of the child’s natural parents following foster the death depart- we whether the parents. appeal, On considered whom trial court parents, ment foster and the custody, presumption had rebutted had awarded testamentary would appointment guardians that required finding which interest, be in the child’s best 22 that, proof requires Roth a level of the jurisdictions Other that utilize the detriment to custody petitions child standard in deciding rely interpretation on a less restrictive of the con also flexibility to and cept give so as the court sufficient unique complicated discretion to address the cir cumstances that such cases. See v. distinguish Turner Pannick, 1051, (Alaska 540 P.2d 1054 non- 1975) (“the parent clearly must show that it would be detrimental permit parent to the child to the to have In custody”); Guardianship of D.A.McW., re 460 So. 2d 368, (Fla. 1984) (“custody parent should be denied to the natural only will, fact, when such an award be detrimental Johnson, to the welfare of the Bateman v. child”); So. 2d (Fla. App. (“[t]o deny parent a 2002) custody of his child based on a finding detriment, change likely produce would have to be mental, physical, or emotional harm of a lasting nature” quotation marks omitted]); McDermott [internal Dougherty,supra, 385 Md. 325 trial (“the court must first . . extraordinary find . that circumstances exist which are significantly detrimental to the child remaining parent parents, before a trial court should consider the ‘best interests of the child’ standard as a means of deciding dispute”). Marriage In re Allen, App. 637, 645-46, 28 Wash. 626 P.2d 16 (1981), Appeals Court of observed Washington bal- interests of than the “best more stringent test

ancing justify an award of required the child” was that, concluded specifically The court nonparent. ato to the con- must be accorded deference although great 646; those parents; id., stitutionally protected rights yield to the fundamen- and must are not absolute rights the state interests of important child or tal of the rights are such when “circumstances situations, as in certain be detri- development would growth that the child’s an otherwise fit mentally placement affected “In further declared: Id., . . .” 647. The court . circumstances, placing extraordinary [in which] detrimental fit would be with an otherwise child custody is outweighed child, parent’s right child’s welfare. There interest in the by the [s]tate’s child, actual detriment showing must be comparative balancing than something greater Precisely interests of the child’ test. analyses of the ‘best be deter- rights must outweigh what might case-by-case basis. But unfitness on a mined Id., 649. not be shown.” parent need article former appeals construing A Louisiana court Code, provided which Louisiana Civil 146 of the (B) custody parental would must find that that the court custody to a awarding to the child before be detrimental consent, likewise declared parental without assume that the legislature was reasonable to that it emphasis on the place greater intended the standard term detriment had the child and that the welfare of requiring courts as by other Louisiana been construed experience “substantial that that the child would finding parent. quotation (Internal if returned to the harm” 990, 2d Jones, 559 So. marks Pittman omitted.) The 1990). So. 2d 451 denied, (La. cert. (La. App.), concept that the of detriment court also observed range a wide was intended to embrace Louisiana court sufficient freedom so as to give situations See id. appropriate an solution. craft enacted a similar stat- legislature When the California finding must “make a that the court providing ute be detrimental custody to a would an award of omitted) marks In re quotation child”; (internal to the Rptr. 114 Cal. 697, 244, 523 P.2d B.G., 11 Cal. 3d explained that, judiciary committee (1974); partic- has not been set forth with is detrimental “[w]hat nearly impossible task to devise detailed ularity. It is a courts sufficient flexibil- which will leave the standards in all ity proper make the circumstances judgment point is that the intent important .... parental custody consider

legislature is that the court must be highly preferable. custody to be Parental clearly detrimental to the child can be before nonparent.” Id., (Emphasis original.) awarded to 698.

Many jurisdictions cautioned, of the same have how- ever, party custody that third awards should be granted only subsequent interpretation its sparingly.

statute, Supreme emphasized that, the California Court parental pref- had although legislature changed erence doctrine from its former focus on present child, unfitness to its focus on detriment judicial change had not intended to legislature “only practice nonparent to a awarding cases.” Id. The court stated that unusual extreme nonparent would be awarded “to a against parent only upon claim of a a clear that such showing awar d is essential to avert harm to the child. A [an] promote an will the ‘best inter- finding that such award Id., ests’ or the ‘welfare’ of the child will not suffice.” 699. jurisdictions attempted

None of the has to foregoing precisely, define detriment to the child more because 52 ability weigh to limit a court’s

to do so would ordinarily a factors that court the numerous balance See, e.g., of harm. finding in a making must consider a employ that jurisdictions Nevertheless, most id., 698. cus observed that standard have broader in nature and exceptional be tody awards should analysis type a detriment involves concept of the “best involving from that different qualitatively with which we a conclusion child,” interests of P.3d 1078, 1079, 88 McTaggart, v. See, e.g., Evans agree. Markham-Crawford, 665 v. Murphy 1085 (Alaska 2004); denied, 675 review 1093, App. 1995), 1094 (Fla. So. 2d 598-99, 587, 273 Ga. Wade, v. 2d 928 Clark (1996); So. 116 Idaho Stockwell, v. Stockwell (2001); 544 S.E.2d Nelson, v. Watkins (1989); P.2d 611 297, 299-300, 775 Bailes (2000); 748 A.2d 558 235, 252-54, 163 N.J. In re (1986); 96, 100, Va. 340 S.E.2d Sours, 231 144-45, 136 P.3d 126, Wash. 2d Shields, 157 Custody of 117 (2006). 46b-56b also reveals history of §

The legislative stan- explicit the more Assembly rejected General as parent required for removal of harm dard type of harm that which is similar guardian, temporary under must be demonstrated more give court statutes, so that the and neglect whether determining welfare to the child’s weight in favor of presumption has rebutted petitioner a Representa- fact, the House custody.23 history bearing on the Although legislative § 46b-56b has no determining legisla issue, guidance provides useful it constitutional impose in third regarding harm that it wished to the standard of ture’s intent originally presented proposed legislation disputes. was Representative’s Bill No. 5122. That bill in Substitute House the House parent part: dispute and non- provided a natural “In a between relevant superior right recognize in the natural parent, the court shall evidence, convincing non-parent, establishes parent, clear unless guardian natural as grounds the removal of the which would authorize 45-44c, (Rev. 1985) § Statutes 45a- now General Statutes under [General required Sess. The bill thus Bill No. Substitute House 610].” required nonparent prove removal of a same facts

53 for custody bill amended the original tive’s consent, namely: (1) of guardian parent abandonment when the does not parent has to maintain a reasonable in the that the failed the child sense welfare; responsibility (2) of degree the child’s evidence of or for concern care, injuries; (3) guidance unexplained or lack of or child abuse emotional, necessary physical, moral educational or for the child’s or control mentally incapable parent physically well-being, or the is or either because thereby indicating parent habit, neglect, the or because of misconduct cannot, not, permitted be be to or in the child’s best interest should either (Rev. 1985) § parent to 45-44c. a at that time. See General Statutes House, language revised to the bill was introduced in the the was After replaced emphasize the the the child. The House also best interests of parent referring guardian with language removal a as to the standard for of language referring child. revised bill restrictive to detriment to the The less custody provided: any involving dispute a “In as of minor children parent presumption non-parent, there be a that it in the best and a shall is shown, parent, to be in of the unless it is interest child the convincing evidence, it the child clear and that would be detrimental to parent custody.” permit the have to to initially During bill, the Senate’s consideration of the revised discussion adequately would on whether the best interests of the child be centered protected parent. presumption if a See 28 S. was created favor of the Proc., 5, 1985 Sess., pp. opposing Pt. Those the bill concerned 1751-60. were presumption Id., pp. 1760, that such a would be difficult to rebut. 1762. defeated; id., 1763; gain support p. was but a bill failed to sufficient and 6, day. Proc., passed following the Pt. motion reconsideration was S. Sess., reconsideration, adopted p. Upon 1774. Senate an amendment pre required removing language pertaining all the standard to rebut the to 2231, proof. Proc., Sess., p. sumption and 28 S. Pt. the burden See any provided: then “In remarks of Senator Richard B. Johnston. The bill dispute involving a non- of minor children parent, presumption it there shall be a is in the best interest of parent.” child to be required In the debate that followed as to what would be to overcome presumption, Anthony position V. this Senator Avallone summarized the really proponents, stating: original bill are the bill’s “The amendment original presumption quite different. The bill indicated that there would be a non-parent establishing by that the would have the burden of clear convincing there was evidence that was a detriment or there not a detriment by staying going parent. the child with the natural What this bill does merely say presumption is that the natural would have a that [it] very, parent. the best of the child be with the natural is a interest That very gap large original what bill for and . . . the between called what words, dealing magic bill as amended would call for. We’re still with those talking . . . ... best interest the child. We are not about an irrebuttable presumption. talking presumption. We are ... It does about rebuttable express purpose all eliminating references to the standard of harm proof and the burden of required rebut the presumption parental custody. in favor of See give parent by any imagination as much to the natural stretch of the original that the bill would have. ... I think that this is a reasonable compromise.” Proc., 7, Sess., pp. Shortly thereafter, 28 S. Pt. 2241-42. adopted bill, Id., p. the Senate the as amended. 2243. approval, Representative When bill the returned to the House for William Wollenberg by L. noted that it had been weakened the Senate amendment. Proc., 16, Sess., p. Representative stated, 28 H.R. Wollenberg Pt. 5798. however, because, although that he was satisfied with the outcome the nearly “go version, gave amended bill did not as far” as the earlier it parent up,” leg speak, custody dispute party. Id., “a so to in a with a third p. representatives bill, 5800. Several also remarked that the amended effect, majority holding Roberts, counteracted the v. 193 Conn. McGaffin 393, denied, (1984), 1050, 1747, 479 A.2d 176 cert. 470 U.S. 105 S. Ct. 84 L. (1985), incorporated expressed Ed. 2d 813 and the ideas in Justice Leo Parskey’s Proc., supra, pp. 5801-5802, 5806, dissent in that case. 28 H.R. 5808, Representatives Frankel, remarks of F. Robert Richard D. Tulisano and Wollenberg; see McGaffin v.Roberts, supra, 405-407; id., J., (Parskey, 410-14 dissenting). McGaffin, In (Rev. 1983) this court held that General Statutes 45-43, 45a-606, presumption § now § General Statutes did not create a surviving parent biological preference custody dispute. a was entitled to in a Roberts, supra, Although v. acknowledged 405-407. the court McGaffin importance parenthood”; id., 406; explained “natural it had that “the entirely parental preservation constitutional concerns are not because the family integrity encompasses reciprocal rights parent[s] of both (Internal quotation omitted.) Id., Representative children.” marks 407. Wol lenberg declared, assuring doubters that the best interests of the child ignored, presumption parental custody would not be that the in favor of merely give weight” parent would “a little more to the in a third custody dispute. Proc., supra, p. ultimately adopted 28 H.R. 5804.The House by Senate; id., p. 5811; passed bill as amended and the bill was signed 1985, 85-244, into law. See Public Acts No. 2. following year, legislature clarity The amended the statute to that the presumption favoring.parental custody dispute parent in a between a by showing could be rebutted that an award of 1986, would be detrimental to the child. Public Acts No. 86-224.The language understanding new members, reflected the of House and Senate debating year earlier, articulated when the merits of the bill one that the principles Parskey’s statute was consistent with the set forth in Justice Legislative Research, Analysis dissent in Office of Bill for Public McGaffin. 86-224; Roberts, supra, Acts No. see 193 Conn. 410-14 McGaffin (Parskey, J., dissenting). legislature language pertaining added no new proof. to the burden of Sess., 2231, remarks of Senator Proc., 7, 1985 p. 28 S. Pt. bill, summarizing the amended Richard B. Johnston. was “a Anthony stated that there V. Avallone Senator bill called veiy, very gap original between what large call for. . . bill as amended would for and what . the words, the best magic with those dealing We’re still . . about . . talking the child. . . We are not interest of parent]. favor of the presumption an irrebuttable [in ... It presumption. talking We are about rebuttable any as much to the natural give does not original bill would imagination that the stretch of compro I is a reasonable have. ... think this 2241-42. When added.) Id., pp. mise.” (Emphasis Repre final approval, bill was sent back to the House for the best Wollenberg William L. stated that sentative would and that the ignored interests of the child not be parental custody in would presumption give favor of nonpar the the parent “a little more vis-á-vis weight” custody Proc., 28 H.R. dispute. ent in a third Pt. p. Representative 16, Sess., Wollenberg 5804. also that, observed the amended bill did although “go version, parent as it nearly gave as far” the earlier custody in up,” speak, dispute “a so with a leg a party. Id., p. year, statute, third The following 5800. any which had been enacted without reference to stan harm, dard little was amended with debate include the current detriment to the child. language regarding history legislative Public Acts No. 86-224. that the suggests legislature therefore conceived the applied standard of harm to be in as less than proceedings broader and restrictive employed temporary custody neglect standard in because the latter standard had been elimi proceedings nated from the bill various members original had legislature expressed serious concerns regarding the welfare of the child debate during legislative on the matter. summary, party custody we conclude that third

petitions liberty parent interest a in challenge way fundamentally that is different from visitation

petitions judicial placed that the we on the gloss visitation statute in Roth applied should not be to 46b- adequate 56b because it does not give consideration to the welfare of the child, relationship whose with the parent is at issue in a because proceeding its harmful effects. This is allegedly not the case in a visitation in which the proceeding, relationship child’s placed has not been in issue. The consti question tutional in a third party proceeding therefore must be framed and resolved in a manner respects parental but rights that also takes the directly child’s welfare more into account. Further more, practical for all legislature, purposes, rejected temporary custody and neglect standard that we adopted in Roth when it deleted language the third party custody bill that limited the definition of harm to required harm for removal of a natural guardian. we conclude Accordingly, statutory that the presumption parental custody may favor of be rebut only exceptional ted only upon circumstances and clearly that it would showing injurious be damaging, or harmful for the parent’s child to remain in the cus G., See In re B. tody. 11 Cal. 3d 698. We add that temporary this does not mean harm of the kind resulting from the stress of the dissolution itself proceeding but harm significant pattern dysfunctional from a arising of behavior that has developed between the and period the child over a of time. Such a standard is not constitutionally susceptible infirm or to the criticism sometimes leveled against “best interests of the child” test because it does not allow the court to apply its own “personal essentially and lifestyle unreviewable preferences . quotation . . .” (Internal marks omit Roth Weston, supra, 259 Conn. 223. At the same ted.) time, adopt narrowly the standard we is tailored to limit the scope of intervention to those exceptional cases in harm significant would result which compelling state interest child, serving thus liberty parents while interests protecting of welfare. sensitive to the child’s remaining B arguments, makes numerous concurrence why defendant, beyond by the those made consti- protect insufficient to standard is foregoing ability to care for their parents of whose rights tutional directly challenged in third children is into may be two arguments grouped These proceedings. the first falling within general categories. Arguments to a that, assert because intrudes far category constitutionally extent than visitation on the greater and protected parents to raise care their right parents children, reciprocal as well as on the right family autonomy family integrity, and children to or party custody third determinations should not be made pursuant demanding to a standard less than the stan- in Roth. A corollary dard we of this argument articulated protection is not rise to right that the child’s does equivalent of a to that right level constitutional safety endangered. unless the child’s within Arguments falling category the second assert adopted open-ended the standard we have is too thus trial courts with inade- ambiguous, providing quate guidance raising relating concerns consti- arbitrary tutional vagueness standard’s application. We disagree arguments. these

The concurrence declares that the standard harm we be articulated Roth —that child deemed apply neglected, dependent uncared-for —should party custody because visitation is proceedings custody, and, therefore, limited merely a form both liberty parent essentially on the interest of the intrude Weston, the same manner. See Roth 259 supra, Conn. 229 n. 13 is a (“ custody limited form of during [visitation the time the visitation are rights being exercised” [inter- quotation nal marks omitted]). The concurrence also contends, however, that custody more intrusive award has two additional consequences that further justify application of the visitation standard in Roth. that, first is because third party custody removes a child from for a longer period time, of it deprives “quintessential rights of parenthood . . . .” These include the to make right medical, educational, religious and other decisions that affect aspects the most fundamental of the child’s life during period. the custodial The second is custody, visitation, unlike infringes on the broader but related right family autonomy family or integrity, which encompasses reciprocal right parents and chil- dren in not being deprived intimacy of daily asso- ciation.24 majority The concurrence declares that the “misconstrues” the relation ship custody. it has drawn between visitation and It states that this court “implicitly recognized stringent in Roth that the standard of harm that we adopted clearly justified” party custody pro in that case would be in third ceedings, resulting and that “the lesser intrusion from visitation was suffi ciently kind, degree, justify heightened similar in albeit not standard.” opinion. concurring Roth, Footnote 4 of the This court did not conclude in however, implicitly otherwise, either that the visitation standard would justified party custody proceedings. simply be in third It observed that custody person visitation is similar to because the to whom visitation is may required regarding during awarded be to make decisions the child’s care period. regarding party custody

the visitation No broader conclusions comparison party custody be drawn from the because the issue of third never was raised or addressed in Roth. acknowledge The concurrence also fails to that Roth relied on a California case, Marriage Gayden, App. 1510, 1517, visitation In re 229 Cal. 3d Rptr. (1991), Cal. when it noted that visitation “is a limited form of custody during rights being the time the visitation are exercised . . . .” (Internal quotation omitted.) Weston, marks Roth v. 259 Conn. 229 Appeal compared n.13. The California Court of had visitation to nonparent required and determined that an finding award of to a parental custody child”; Marriage “would be detrimental to the In re Gayden, supra, 1516; adopt the same standard that we for third ultimately adopted awards and that the California court for visita- isolation, are observations, considered

These real cases context of in the Considered appealing. or recognize to however, they fail

controversies, family rela- inherent in troubled ambiguity address the inevitably occurs when variation that tionships and the unique custody of to tailor orders attempt to courts it is true that example, although For facts of each case. infringement greater custody represents party third custody awards visitation, not all than parental rights on of control elimination complete in the result of time. period for a significant child’s life over the custody of time that vary length in the Custody awards contact, if of party, the amount in the third is vested the nature to retain and is allowed any, parent that the present In the granted. rights of the custodial and extent custody reside joint court ordered case, the aunt, paternal well as with the child’s mother as child’s custody and ordered physical assigned also was who major decisions parent making before consult with each therefore parents Both child’s welfare. affecting albeit to life, in the child’s participate continued to varying degrees.25 Roth, Id., Consequently, cannot cite the concurrence

tion awards. 1516-17. proposition Marriage Gay den, by implication, that third for the In re custody require application proceedings of the visitation standard. Finally, misconstrue declares that we the extent that the concurrence “quintes- regarding on the of visitation and the effect its discussion representa- parenthood,” again make no rights it is mistaken. We sential rights. We confers such believes that visitation tion that the concurrence custody, concurrence, that, according simply third observe parent depriving visitation, of the has the additional effect unlike parenthood” “quintessential rights the child from the because it removes may preclude parent period from parent longer of time and thus for a concerning making the child’s life. fundamental decisions infringement parental rights on “dismiss” the constitutional We do not suggests. custody, Nor do as the concurrence that results from an award of joint possibility” rely “hypothetical of an award of we on Indeed, only gross exaggerations, justify but are these conclusions. its entirely. First, recognize they point outset of our discussion we at the miss the care, liberty control of his in the interest of a that the liberty deserving interests the oldest of the fundamental or her child is one of Granville, supra, protection. Our heightened 530 U.S. 65. See Troxel subsequent ignore conclusion is not intended to diminish or this interest gives in Roth but is based on our view that the standard we articulated parent-child relationship, directly weight which is insufficient to the troubled similarly party custody proceeding. challenged in a We conclude that family autonomy family integrity, right and child to extremely although significant, be viewed with caution in the also must custody party proceeding view that it is context of a third because of our autonomy custody preserve family will to if result

not desirable significant harm to the child. custody justify Second, joint we do not discuss to the standard of harm custody orders and that a third but to demonstrate the wide variation necessarily party custody preclude parent award does not a from continued (court may participation Statutes 46b-57 in the child’s life. See General custody any “upon partial party and limita- award to such conditions present case, example, equitable”). it In the for the court tions as deems telephone “[tjhere and e-mail contact ordered that shall be reasonable parents” paternal and that the aunt would be between the child and her required parents prior making affecting consult with both to decisions to allowing fall short of the defendant the child’s welfare. While these orders decision-making authority, might the court in another case to exercise final jointly by party and such decisions to be made the third have ordered parent. the adopt addition, suggestion failure to the the concurrence’s that our encourage nonparents of harm in Roth will to circumvent the more standard by simply joint custody stringent seeking limited instead visitation standards speculation suggests, best, misunderstanding and at a of of visitation is sheer petitioners party the differences between the two standards. Third visitation by peti- prove will harmed lack contact with the must that the child be of tioner, party petitioners prove whereas third must that child Thus, parent. will harmed an award because third be of relationship party focus on the child’s with different visitation persons, nonparent wishing rights of his or to obtain visitation because relationship presumably with the child would have no factual her close relationship prove with the is evidence available to that the child’s custody. words, detrimental, necessary gain which to In other it would is appear more, less, apetitioner seeking to be rather than difficult for visitation by seeking custody instead, assuming that to obtain contact with the child petitioner responsibility would even wish to take on the added that custody requires. availability argues further that the of the less intrusive The concurrence joint custody determining “disposition option” weight should have “no necessary protect procedural protections and substantive to constitu- stake”; concurring opinion; again implying interests at 5 ofthe tional footnote availability joint custody justification adopt- as a that we consider the however, ing previously noted, view the broader standard. As we we do not justification disposition options standard of less intrusive for broader point, subsequent part harm. It is the concurrence that makes the in a recognize fails concurrence significantly, More cus- visitation between qualitative difference opinion, in this previously tody that we discussed is at relationship itself parent-child namely, that the visita- is not in a whereas it custody dispute, in a issue merely seeks which the third dispute, in tion presumed are parents and the the child to visit right reason, the concurrence’s For this caring. loving be is family autonomy integrity family observation custody award result as a a third undermined family right unconvincing. Infringement is family in other key consideration autonomy may be a daily association intimacy of controversies, but the the more by applying protect concurrence seeks ironically, in Roth also, restrictive standard must examine harm that the court source alleged is custody award party a third determine whether to pro- must be family autonomy Thus, justified. although extent, simply it is possible greatest tected to the family any right on rely great degree to logical rejecting for family as a reason autonomy integrity custody custody award in favor a third what family autonomy precisely is when the value of custody. seeks in issue when a third placed that the argument makes the related The concurrence a necessary because, although Roth standard of harm is constitutional may impose right limitations on the state this should child, right raise his or her parent of a disposition options analysis, range that correlate that it is the available its ability directly parent’s meet the child’s the child and the to the risk to preponderance justifies application standard rather that of the needs fair neglect proceedings. convincing The concur- standard in than the clear and apparent inconsistency provides explanation in its rea- no for this rence soning. concurrence, finally that, adopt reasoning if we were to of the We note parent custody the best over another under the court could award one very required apply of the child standard but would be interests parent articulated in Roth if it wished to award restrictive standard objection parent. nonparent joint custody of the other over the not be unless it has been demonstrated that abridged parent’s para- constitutional interests are no longer mount, as when the is deemed unfit or the child’s safety jeopardized custody. will be if the retains support To argument, this concurrence cites a num- jurisdictions ber of statutes and cases from other purportedly adopted have a more demanding standard provides the proper degree protec- of constitutional for at parental rights tion stake.

This suffers from two argument defects. On the one hand, many statutes cases cited the con- currence describe standards of harm that are no more than stringent present the standard articulated See, case. La. Civ. Code Ann. art. 133 e.g., (1999) (paren- tal would harm result “substantial child”); Tex. Fam. Code Ann. 102.004 (a) (1) (Vernon Sup. 2007) (parental “would significantly impair physical develop- the child’s health or emotional McTaggart, supra, Evans v. ment”); (paren- 88 P.3d 1085 “clearly tal would be detrimental” to welfare quotation of child Murphy marks omitted]); [internal v. Markham-Crawford, supra, 665 So. 2d 1094 (parental custody clearly would be “detrimental” to welfare of Wade, supra, Clark v. 273 Ga. 598 child); (parental cus- tody subject “physical would child to harm or signifi- cant, emotional long-term harm”); Stockwell supra, 116 Stockwell, (custody appreciable Idaho 300 period of time and best interests of child dictate that Nelson, supra, be with Watkins v. nonparent); (third party 163 N.J. award warranted when “extraordinary circumstances” affect welfare of child petition and denial of would cause serious psychologi- cal or other harm to child quotation marks [internal Sours, supra, Bailes v. 231 Va. 100 omitted]); (there “special exist . . . facts and circumstances constitut- extraordinary an reason for child from ing taking [his parent,” or such as effect on health psychological her] marks omit- quotation stability and emotional [internal 2d 144 157 Wash. Shields, supra, Custody In re ted]); “actual demonstrating circumstances (extraordinary development”).26 and growth detriment to child’s adopt we is harm that Furthermore, the standard of discussed protections consistent with the constitutional of a trial required which review case, in In that Troxel. United visitation, the party a third granting court’s order plurality opinion in a Court determined Supreme States involved was unconstitutional that the state statute . .” Troxel v. . . “sweeping of its breadth because did not con- plurality U.S. 73. The Granville, supra, 530 due whether question of sider the constitutional visitation statutes required all third process clause harm to a potential require a of actual showing visitation, precedent granting child as a condition define not, not, do and need in dictum: “We declaring process scope right . . due precise . the respect, agree we in the visitation context. this the constitu- Kennedy’s that [Anthony Justice dissent] awarding visitation tionality any standard for that standard specific on the manner in which turns protections in applied that the constitutional with care.’ . . . Because this area are best ‘elaborated in context occurs adjudication this much state-court hesitant to hold case-by-case basis, we would be on a statutes violate the specific nonparental visitation jurisdictions these have not held The concurrence asserts that most of “extraordinary degree” “lesser than circumstances” means harm of a concurring opinion. 7 of the We do the harm articulated in Roth. Footnote arising necessarily jurisdictions question agree. to harm from refer “extraordinary likely they most because wish the standard circumstances” statutory may expressly existing within include harm that not be described allowing Similarly, purpose legal trial courts to con definitions. our “extraordinary arising circumstances” is to broaden sider harm from flexibility standard, awarding granting thus courts additional specifically suffers from harm that not be a third when child temporary neglect identified in the statutes. per (Citation se matter.” [p]rocess [c]lause [d]ue Kennedy’s In dis- Id. Justice omitted; emphasis added.) plurality referred, he to which opinion, senting be elabo- protections must that constitutional explained in mind that keep must with care because rated “[w]e confront these factual family [fifty] in courts [s]tates are best situated to consider day, each variations that arise.”27 yet inevitable, issues unpredictable, 101. Id., force to apply equal with observations foregoing why help explain we custody awards party

third sufficiently flexible harm that is articulate a standard of family party third grant to allow courts safety may not be endan- when a child’s actual awards suffering be when the child nevertheless but gered deserving harm types significant from other In provides. relief that an award of custody statute at the third of the fact that light overly unlike the broad, is not present in the case issue Troxel, in we agree visitation statute Washington in Troxel any constitutional remaining plurality likely of harm most question the standard regarding specific with the manner arise in connection would applied. which the standard is that the standard of further claims The concurrence a sufficient provide too broad to adopt harm we only disagree reason the United States with the concurrence that the We Supreme was “its the standard of harm Troxel Court did not consider policy affording to state courts substantial deference well established traditionally family law, relegated determining an area of law the contours of opinion. view, concurring the court 10 of the our to the states.” Footnote simply recognizing state courts issues are best decided was not such states, family making point that courts within the was the additional but daily position basis, in a on a are better which confront these issues flexible, strictly defined, pursuant rather than a more to a more resolve them Granville, supra, 530 U.S. 73. standard of harm. See Troxel of the door to claims opening safeguard, constitutional arbitrary and the standard’s constitutional vagueness a stan- proposed We have not application. We disagree. “any harm,” as the degree would include dard that the standard transforming thus suggests, concurrence previously stated, As we into a best interests test. from a best interests qualitatively

standard is different test because it does rely on its allow the court lifestyle preferences requires but subjective own would of harm that the child court to focus on the level custody. concur- retain suffer should the we have excluded appreciate rence also fails to contemplate only or short-lived harm and insubstantial justify that would an award type harm significant in circumstances. We reiterate exceptional allow courts some degree that the reason we must flexibility impos- this standard is that it is interpreting harm anticipate types the infinite of significant sible exposed which a child be if he or she remains may satisfy the standard parent, with the not all of which temporary custody articulated in the stat- neglect utes.28 we do not that the standard Accordingly, agree rejects The concurrence this standard for reasons that are difficult to hand, attempt grasp. On the one it is critical of our to elaborate on the provide meaning guidance. of detriment as additional On so courts with hand, charges guide properly the other it that we do “little to the courts in specifically complains balancing the interests at stake.” The concurrence adopt that the standard of harm that we could “devolve to best interests (1) upheaval” resulting test” or be construed to mean “short-term emotional parents’ disruptive event, marriage from dissolution of the or some other contrary (2) “the inculcation of values and beliefs that are to social norms,” lifestyle, allowing such as a Bohemian the court to thus consider lifestyle preferences making its own more conventional when an award of custody. rejected interpretations, however, We have these and the concur temporal rence concedes much when we it states that the “[limit] harm, requiring something temporary nature of the more than the stress Finally, inexplicably attendant to . . . .” con dissolution concurrence appeals cludes that a broad definition of detriment an intermediate Florida type court that makes no reference to the of harm described Connecticut’s neglect entirely statutes “is consistent” with the standard in Roth. See In Marriage App. of Matzen, (Fla. 1992) (“ re 600 So. 2d ‘[d]etriment’ Roth constitutionally required harm set forth in custody proceedings.29 of third the context

V which proof, burden of proper We next consider minimum of fundamen- satisfy “the constitutional must San- marks quotation omitted.) tal fairness.” (Internal n.8, 1388, 102 S. Ct. tosky Kramer, 745, U.S. 756 v. 455 the The defendant claims that L. 2d 599 (1982). 71 Ed. be custody cases should party in third required standard Roth, we determined evidence. convincing clear not standard is convincing clear and that, although the context, visitation constitutionally mandated in the is sounder because proof of “stricter standard could otherwise party a petitioning with which ease . . . prospect parental prerogative. upon intrude up in caught parents potentially getting competent inter- by and other lawsuits relatives the crossfire of is too real a threat visitation parties demanding ested afforded protection absence of in the to be tolerated Therefore, pursuant proof. a stricter burden through con- powers,” we supervisory inherent to this court’s prove must party seeking visitation that a third cluded con- harm clear and relationship and requisite Weston, Roth v. omitted.) (Citations evidence. vincing are same considerations 232. These supra, 259 Conn. Moreover, custody cases. party in third significant express rejec- factors, including legislature’s other proof, standard of convincing tion of the clear pres- that standard adoption weigh against standard Finally, convincing the clear and ent context. under the test that constitutionally required is not likely produce mental, produce lasting or are refers to circumstances that harm”). physical or emotional adopt for third of harm that we We note that the standard S., 207, rely solely on In re Joshua Conn. but awards does not jurisdictions adopted that also have other is consistent with that of numerous opinion. approach. part IV A this See a more flexible Supreme Santosky Court established in United States We therefore conclude that Kramer, supra, 756 n.8. preponderance fair proper proof standard of is a of the evidence. respect silent with to the burden

Section 46b-56b is proof to be satisfied when a third seeks the custody of a minor child the wishes of a fit against parent. We recapitulate, part, legislative therefore history proposed bill, of the statute. The as originally written, party establish, “by directed that the third clear . . . evidence which would convincing grounds guardian authorize the removal of the natural 45-44c, under Statutes now (Rev. 1985) § [General House Bill No. General Statutes Substitute § 45a-610].” An 5122, changed 1985 Sess. amendment to the bill change substantive standard but did not the clear and proof. Proc., burden of H.R. Pt. convincing See 28 Sess., p. When the bill reached the 2615. amended Senate, however, expressed various members concern proof Proc., that the burden of was too See 28 S. high. 5, Sess., pp. Thereafter, Pt. 1985 1751-62. the bill was amended to eliminate the See 28 S. Pt. Proc., standard. 7, Sess., p. 2231, 1985 remarks of Senator Johnston. expressly Senator Avallone noted that the omission of major the standard constituted a of revision the bill represented “compromise” a to ensure that designed protected adequately the interests of the child would be custody. in light presumption parental Id., pp. of the 2241-42. bill, Senate, When the as amended was approval, Representative returned to the House for Wol lenberg greatly described it as “weakened” but expressed his satisfaction with the outcome because the statute would now the fit a decided give a edge child, over of the seeking addressing perceived thus defect in the logic majority opinion Roberts, 393, v. 193 Conn. McGaffin 479 A.2d (1984), denied, 1050, 176 cert. 470 U.S. 105 S.

68 28 Pt. Proc., L. Ed. 2d 813 See H.R. 1747, (1985).

Ct. 5798, 16, Sess., pp. 5800, 5804. rejection convincing the clear and legislature’s juris law of not inconsistent with the other

standard is appears regard be no uniform rule dictions, as there a proof necessary to rebut the burden ing parental custody. favor of After examin presumption in Maryland’s court states, highest the law of other ing “have, a indeed, adopted found some clear parent/third party cus evidence standard convincing tody equivalent in cases that the court found (or cases Murphy Markham-Crawford, See v. custody dispute). a 1093]; C.S.G., 726 So. 2d 806 [supra, 665 So. 2d S.G. 587]; Wade, [supra, Clark v. 273 Ga. (Fla. App. 1999); Guardianship 2002); re 770 N.E.2d 283 of B.H., (Ind. Alexander, App. 259, 248 Mich. N.W.2d Greer v. adopted have clear and Other (2001). [the [s]tates that, under the law of standard cases convincing] more like [s]tates, those are treated [termination custody disputes parental pure than rights] proceedings Stephen App. 1418, (Guardianship G., 40 Cal. 4th upon Rptr. 2d 409 rationales [1995]), 47 Cal. requiring finding that are inconsistent standard [a Nelson, [supra, See Watkins v. 163 N.J. of detriment]. show party seeking custody the third (requiring 235] justify par terminating circumstances would in the third rights treating ent’s effectively those A few terminating rights). stan expressly adopted preponderance have [s]tates parent/third party custody dard cases. See Larkin 193, 374 v. 241 Ark. 407 S.W.2d Green Pridgett, (1966); ing Newman, 261, v. 6 Ark. 640 S.W.2d 463 App. (1982); In re N.E.2d Perales, 89, (1977). 52 Ohio St. 369 1047 ‘satisfactory Some have articulated other evi tests — Minn. Dependency Terry Klugman, dence’ re 257 (In of 113, (In 97 N.W.2d 425 or ‘evidence [1959]) evincing’ 166 Custody N.A.K., 2002]); re 649 N.W.2d [Minn. of

69 (Kees 2d 92 Fallen, v. 207 So. clearly’ ‘showing [Miss. Wrigley, v. (McDonald and conclusive’ ‘clear 1968]); convincing’ 1994]); ‘cogent P.2d 777 870 [Okla. it [s]tates, Most Va. [supra, 96]). 231 Sours, v. (Bailes standard any particular defined have not appears, through parental rights protect sought but have proof on the placed burden heavy substantive ‘cogent’ or unfitness, ‘compelling’ or show party —to 502, Ill. 2d (In Townsend, Custody re reasons [86 reasons’ ‘convincing (see 1231 (1981)], 427 N.E.2d [1980]; A.2d 512 363, Pa. 416 Hooks, v. Ellerbe Fetters, 320, 491 Pa. ex rel. v. Albright Commonwealth Nelson, supra, v. as in Watkins [1980]) or, 421 A.2d ^[235] circumstances that would justify termination Md. Vockroth, Shurupoff parental rights.” A.2d 543 655-66, (2003). that, no standard

It is well established “[w]here statute, process requires due in a proof provided is appropriate a standard which apply the court Appeal (83-CD), involved.” re Juvenile issues proof, a standard of “The function of 189 Conn. 296. [p]rocess in is embodied concept [d]ue [c]lause fact- is to instruct factfinding, realm of society of confidence our degree finder concerning of factual have the correctness thinks he should adjudication. . . . type of particular for a conclusions the minimum standard any proceeding, given [I]n reflects process requirement the due proof tolerated public interests private of the only weight about how the affected, judgment but also a societal litigants. between the risk of error should be distributed interested parties be “Thus, private while money appli- dispute damages, over intensely in a civil evidence standard preponderance cation of a fair with the out- society’s minimal concern indicates both should share litigants that the come, and a conclusion . . . When equal fashion.’ roughly the risk of error deny action to a defendant a criminal brings [s]tate however, the interests of the defendant liberty life, historically that and without magnitude are of such they been any requirement constitutional have explicit by proof to exclude protected designed standards an nearly possible the likelihood of erroneous as beyond a reason- stringency . . . The of the judgment. bespeaks the and weight gravity able doubt standard society’s . . . interest private interest affected a convictions, judgment erroneous and avoiding society impos[e] require those interests together . . . upon entire risk of error itself. almost the an Supreme] United States Court has mandated “[The proof convincing standard of intermediate —clear in a the individual interests at stake evidence —when proceeding state particularly important are both money. mere loss . . . Not- more substantial than intentions good the state’s civil labels withstanding certainty necessary preserve . . . this level of [is] government-initi- variety fundamental fairness proceedings ated that threaten the individual involved deprivation liberty or stigma.” with a significant added; quotation internal omitted; emphasis (Citations Santosky Kramer, supra, 455 U.S. omitted.) marks 754-56. Santosky, Supreme States Court held the United

that, petition “in a on a to terminate hearing process require prove that the state statu- rights, due [s] by a ‘clear and evi- tory convincing termination criteria by preponderance a ‘fair dence’ standard rather than . . . of the evidence’ standard. Santosky factors considered in to deter-

“The three particular proof particu- standard of in a mine whether process private due are: proceeding (1) lar satisfies by the the risk of proceeding; (2) interests affected procedure; and (3) error created the chosen use supporting interest countervailing governmental Cookson, v. 201 Cookson procedure.” the challenged A.2d 323 229, 234-35, (1986). 514 Conn. is standard preponderance that the fair

We conclude only because it present in the context not permissible express rejection legislature’s is consistent with the but, more convincing standard, signifi- and clear comports process it with due cantly, because in fairness” described requirement of “fundamental Kramer, supra, v. 455 U.S. 756. Santosky

A private affected, first to the interests we dis- Turning important two differences between the termi- tinguish party custody and third parental rights nation of In a termination the sole proceedings. proceeding,30 parent, issue is the fitness of the whereas three interests party custody in proceeding: are at stake a third in parents’ liberty interest the care and of the child; the child’s shared interest with the in fam- ily autonomy family and the state’s and the integrity; interests in the child’s welfare. countervailing child’s Davis, 232, 236-38, Cf. Lehrer v. 214 Conn. 571 A.2d Appeal (83-CD), supra, In re Juvenile (1990); specifically Conn. 297-300. Section 46b-56b directs the nent Accordingly, finding stage raising the child” stage heavily racy internal and his “pits “a child’s interest “irrevocable,” commanding The court in neglect proceeding.” of a termination against use of the parents quotation [s]tate directly justice consideration results in “a are adversaries.” Santosky one” and that such a but, rather, of a decision marks a normal proceedings, proceeding against omitted.) Santosky Kramer, preponderance unique Id. The court noted that determined that the of “the family focuses terminating kind of Id., “the parents.” is “not private home on the 760. [s]tate decision, deprivation.” standard at a state-initiated against intended interest affected fitness of the his or her Id. cannot parent’s Moreover, because it is “final” and (Emphasis presume ... parents’ interest fact-finding parental parent, during to balance the . 455 U.S. 759. that a child in the accu . interest . and thus rights the fact- original; or fault weighs perma is presumption whether the rebuttable

court to consider by facts show- custody is overcome parental in favor of child. custody would be detrimental that such ing is therefore on primary proceeding focus of the fitness. Sec- the child rather than detriment to subject an award of to third ond, circum- changed upon showing modification may (a) (court Statutes 46b-56 stances; see General custody); order modify any proper regarding and communication continued visitation allow for child, and the parent the noncustodial between custody thus party An award of third present the case. relationships intrusion into familial represents a lesser because it rights than does the termination final and irrevocable severance of does not result in a deprivation” kind of that unique or “a parental rights in a termination to confront the state parents forces San- quotation omitted.) marks (Internal proceeding. Kramer, Parental tosky rights 455 U.S. 759. the by requirement, the protected standing are further custody proceed- cannot initiate parties fact that third initiate permitted who are to parties unlike third ings, compare General Stat- cases; in visitation proceedings and the 46b-59; General Statutes § utes 46b-57 with requires of harm that a third substantive standard prove detriment allege to seeking custody. This significant the retain child should parties without close discourage burden should in frivolous engaging the child from relationships preclude repeated and thus attempts to obtain unnecessary Accordingly, consideration litigation. does not the private suggest of the interests affected prepon- a fair a more than demanding need for standard derance of the evidence. analy- preceding with the disagrees

The concurrence con- First, significant reasons. the following sis for the family stake, is, right interest at stitutional lower stan- by insufficiently protected autonomy, is par- of the deprivation temporary even a Second, dard. child is an for his or her to care right ent’s fundamental burden of may require heightened irreparable loss Third, the judgment. the correctness of proof to assure coincide interests stated that the child’s this court has subject unless the child with those of the Fourth, danger. harm or physical of serious the threat apply does not proceeding equipoise neglect in a available a has adjudicating neglect a court because directly to that correlate disposition options range of ability to meet the parent’s risk to the child and to remain the child needs, including allowing child’s which there is in a case in custody. Fifth, parent’s evidence, but by preponderance proof denial of third evidence, that convincing clear and harm to result in real and substantial custody would authority protect still would have child, the court department of children by bringing the child action, super- ordering into the (department) families depart- child to the committing vised these turn. arguments ment.31 We address each of points, we note that respect With to the first two family autonomy family integrity, preservation of parents in of the child placed been issue having justifica- itself, provides in little proceeding in proof a burden of this adopting heightened tion for Moreover, this part opinion. See IV B 1 of this context. than two decades that the ago court determined more constitutionally permis- is preponderance fair standard temporary custody proceedings in and neglect sible a safety represents welfare and because the child’s third, points analysis fifth in its The concurrence discusses the fourth and Santosky factor. We discuss them in this context, however, of the third Santosky private is on the interests because the focus of the first factor party custody proceedings, involved, which, include those of in third child. in with equipoise interest relative

strong countervailing liberty parent. interest of the See In re Juvenile child’s Appeal (when 189 Conn. 287 (83-CD), parent, with that of magni- interest no coincides longer family diminished); is parent’s right integrity tude of Appeal (84-AB), 192 Conn. see also In re Juvenile although A.2d 1380 263-64, (1984). Accordingly, the concurrence that the interest we with agree extremely may require addi- parent significant standard of protection by imposing heightened tional circumstances, there is well established proof in other standard preponderance the fair precedent applying proceedings. in third that the child’s as the concurrence concludes Insofar unless the interests coincide with those harm, with immediate we disagree. child is threatened has previously stated, we this court determined As adjudicated who is neglected, the interests of a child necessarily but who is not dependent, uncared for or harm, immediate differ from those of threatened with Appeal (84-AB), supra, In re Juvenile parent. See in 263-64. the child’s interests Accordingly, 192 Conn. in rela- proceedings are temporary neglect the shared interest of the equipoise tive family autonomy. and child equipoise The concurrence’s view that the relative only because the court has proceeding exists neglect disposition options it a that corre- range available to parent’s directly to the risk to the child and the late needs, option ability including to meet the child’s parent, child to remain with the is incor- allowing concept equipoise first was considered rect. The Conn. Appeal (83-CD), supra, In re Juvenile considera- controlling in which this court stated that analysis stan- appropriate in a constitutional tions custody are proof temporary proceedings in dard interest threatened and the private “the nature of quotation (Internal of the threatened loss.” permanency respect factor, With to the first omitted.) Id., marks 297. safety the child’s explained that, although the court in temporary hearing, concern a primary family parent integrity. has a interest competing interest Id., parent’s 298. The child also shares the family state, parens patriae, Id. The as has integrity. safety. a interest in the child’s Id. corresponding to balance the state’s interest in the child’s attempting safety the combined interests of the against family child in we ele- integrity, concluded “[a]n proof protect vated standard of cannot the child’s inter- . . . ests because some interest of the child is adversely affected parent pre- whether the state or the vails. The child’s protected by interests are best an proof, by elevated standard of but the ‘risk of harm’ standards .... important

“Where by pro- two interests affected ceeding are in equipoise, they relative are in [a temporary custody proceeding], higher standard of proof necessarily pro- would preference indicate a tection one interest over the other. . . . We see no reason to make such a value determination . . . and find that the various temporary custody interests in a hearing are best served applying normal civil proof standard of which is a preponderance fair evidence.” (Citation omitted; emphasis Id., added.) 298-99.

We also observed that an temporary custody award of is neither final nor irrevocable because it can be reviewed during hearings neglect petition on the under (a) upon petition by 46b-129 of a filing § or the state for revocation of under Id., 46b-129. 299. We therefore depri- determined that parent’s vation of the right to exercise over his or her children is far less serious than in a termination rights proceeding, which the clear and constitutionally required standard is

convincing Id., termination order. finality of the of the because 299-300. same issue thereafter, we addressed

Shortly and concluded proceeding again neglect of a the context preponderance a fair proof is standard proper that the Appeal (84-AB), Juvenile See In re the evidence. in a petitioner Although 265. 192 Conn. is that the child prove need not proceeding neglect harm, we concluded threat of an imminent subject to results in the that adjudication neglect that an temporary is parental child from of the removal private inter- important two and that the and reviewable child and the safety of the involved, namely, the ests family interests integrity combined Accord- Id., 264-65. equipoise. are in relative child, would indicate necessarily standard higher ingly, over the of one interest protection for the preference to make. See id. did not wish a choice we other, that the view accept the concurrence’s Even if we the child and the interests of between equipoise options multiplicity disposition to the parent is due appear that it would proceeding, in a neglect available pre- the fair under adjudicated neglected most children parental from cus- are removed standard ponderance This is period of time. for a limited tody, at least pro- which (j),32 of 46b-129 language in the reflected adjudging “Upon finding Q) provides: § 46b-129 General Statutes dependent, uncared-for, neglected any youth or the court or that child youth may Commissioner of Children or commit such child until further order of shall remain in effect commitment Families. Such rights may court, except be revoked or such commitment by court, or any vest such child’s or the court at time terminated public any private agency personal that is youth’s or care and dependent by neglected, or children permitted uncared-for law to care for worthy persons youths any person suitable and found to be or or steps specific responsibility shall order the court. The court of such youth child or the return of the must take to facilitate guardian parent. of such shall be the The commissioner of such commitment, provided youth the child or for the duration of child or options disposition list of lengthy with a vides the state only but makes warranted when removal is deemed option permit- of alternative to the one brief reference the child. custody of supervised parent to retain ting acknowledge fails the concurrence Correspondingly, necessarily pre- custody awards do that third or, years age eighteen in the case of a child youth reached the of has not school, secondary school, youth a technical in a in full-time attendance or provided job training program, such child or college a or a state-accredited by twenty-one years, age of such youth consent of has not reached appointed, legally and in like youth, guardian has been or until another youth, manner, upon vesting or such other care of such child such of the guardian public private agency of such child shall be the or individual or years eighteen youth age youth of has reached or until such child or secondary youth in a or, attendance a child or full-time in the case of job training pro- school, school, college a state-accredited a or a technical twenty-one years youth age or of gram, has reached the until such child or may appointed. legally guardian The commissioner has been until another any youth in suitable place commissioner a so committed to the child or by person blood to such child or related home or in the home of foster youth child-caring of or in the care or in a licensed institution agency, accredited, approved child-caring without any within or or licensed except placed state, provided state be outside the a child shall not parents guardian good such child are notified or cause and unless heard, opportunity placement given in a an to be or advance of such operated by of Children receiving the Commissioner home maintained and shall, youth, placing if child or the commissioner and Families. In such person religious home, possible, agency, of like faith institution or select a may youth, parent be if such faith is known or to that of a of such child or by inquiry, provided conforms to the such home ascertained reasonable shall, placing when of said commissioner and the commissioner standards place together. siblings, possible, to com- children As an alternative if such youth mitment, may place in the the child or the court protective supervision by guardian the Commissioner or Upon by subject the court. and Families to conditions established Children youth committing the Commissioner the child or the issuance of an order days Families, sixty not later than after the issuance of Children and or Department order, whether the of Children such the court shall determine youth keep or with his made reasonable efforts to the child and Families and, parents guardian prior if issuance of such order such or her possible, made, efforts were not efforts were not whether such reasonable interests, youth’s including taking child’s or best into consideration the safety.” youth’s (Emphasis added.) child’s or health and custody following Notably, option permitting unsupervised an is no there adjudication neglect. control over their chil- parents exercising vent from that the provides dren’s lives. General Statutes 46b-57 separation of the child from complete court avoid by partial custody to the third awarding and limitations as it party “upon such conditions equitable.” deems

Finally, the concurrence’s assertion that the court a child authority steps protect has to take certain fair proof by preponderance when there is evidence, evidence, convincing but not clear will petition of the third be that denial will harmful to the child assumes that the court take necessary steps further harm. There is mitigate any that the court in case however, given no guarantee, of will the child’s situation to the attention bring ultimately relief, and order as the concur- department likely is Indeed, rence the more outcome suggests.33 child will continue to live with the that the might continue to suffer the harm that otherwise have preponderance been avoided had the fair standard been Moreover, of the concurrence applied. reasoning a in the law in that a third incongruity creates bizarre by a fair party prove preponderance who is able to evidence, evidence, but not clear and convincing dependent for or in neglected, that a child is uncared party custody would not be able to proceeding third in a child, obtain of the whereas the court custody of a child to a proceeding grant could neglect pursuant third in similar circumstances to 46b- § concurrence states that this conclusion is “unfair” to our trial courts it reflects a “concern” that the courts will not take remedial action because ability contrary, great we have confidence in the in such cases. To unnecessarily interpret properly infringe trial courts to the law so as not to liberty parents. recognize on the interests of Insofar as we that trial courts awarding custody parties will law and refrain from to third follow the protect proof when the burden of has not take other actions to children merely not, may satisfied, recognize not been we that the courts are be, expected actions, sponte, required pursuant to take sua that are not adjudicators law. their duties as by a fair adjudication neglect an following 129 (j) Statutes See General of the evidence. preponderance “suit- custody of child with may vest 46b-129 (j) (court adjudication worthy” person following able any provide fails to The concurrence therefore neglect). standard why preponderance the fair reason convincing first San- constitutionally permissible under the is tosky factor.

B sup- also Santosky factor A of the second weighing preponderance fair stan- ports the conclusion that the party custody proof appropriate dard of in the there be differences proceedings. Although any given and a third case ability of a we are aware of no evi- participate litigation, in the abilities and resources disparity dence of a between the equivalent that is parents parties generally and third parent and the disparity in nature to the between the indi- state in a termination As the court proceeding.34 magnify Santosky held that numerous factors combine to The court proceeding. Santosky Kramer, supra, risk of error in a termination “imprecise that leave 455 U.S. 762-63. These include substantive standards unusually open subjective judge”; id., values of the determinations ability case, 762; superior the state’s resources and to assemble its which parents’ ability defense, ability and the state’s dwarfs the to mount forestall, repeated efforts, parents engage in which the cannot termination they upon evidence, gathering the of additional even when have attained id., requires. The court noted the level of fitness that the state See 763-64. primary hearing agency’s that “the witnesses at the be the own [would] empowered professional caseworkers whom the both to investi [s]tate [had] family testify parents. Indeed, gate against to the because the situation and power already agency custody, has the to the child is in the even [s]tate Id., shape that form the basis for termination.” 763. the historical events standard, by preponderance which The court thus concluded that the fair quality very quantity terms demands consideration of the rather than the its evidence, prospect significant a of erroneous termination.” of the “create[d] likely consequences Id., that, 764. The court further stated because parental rights termination of were far more severe for the an erroneous home, example, parents child, in a than for the who could remain foster nearly equally the risk of error between the two a standard allocated severity. Id., properly outcomes did not reflect their relative 766. ability termina- Santosky, bring the state’s to a cated in parents’ ability parents “dwarfs against tion case Santosky Kramer, defense”; to mount a custody pro- party which is not true in third 763; U.S. private parties. Accordingly, two that involve ceedings improper third prospect can be no significant there merely parties are custody awards because party parents. resources than the child’s likely to have more parent of an erro- Furthermore, consequences as custody award are not severe party neous third abil- parent’s proceeding light in a termination modify the award custody by ity regain seeking circumstances; see of error or upon showing changed a and in of the court’s 46b-56; fight Statutes § General visitation and com- ability continued grant of the third with the child as a condition munication child, turn, protected custody award. by fact that the third award from an erroneous he or she has a or obtain unless may not seek a with the child akin to that of relationship award if the for modification of the by potential unlikely error. It is thus parent is able to demonstrate an consequences will serious from that the child suffer preponder- under the fair erroneous award of ance standard. the second San- asserts, pursuant to

The concurrence preponderance of the fair tosky factor, application depriva- risk of erroneous high will result in a standard majority of harm that the because the standard (1) tion open improper the court’s decision adopts leaves values of the subjective judge, (2) influence possibil- would increase the proof standard of reduced basis of a few decision on the ity of an erroneous the court has no misconduct, obligation (3) instances to delineate neglect proceeding similar to that remedy must that the specific deficiencies a third prevent custody, nothing there regain (4) custody issue, (5) repeatedly relitigating party from parent provide custody does third parents that are available protections procedural in the petitioner (6) and proceedings, in neglect parent as the natural removing parallel proceeding neglect in a harm akin to that prove must guardian None of by convincing evidence. clear proceeding examination. withstands close these reasons deprivation, of erroneous the risk considering of harm that, even if the standard concurrence declares standard preponderance of the fair imposition is high, subjective values of will allow the proof improperly in an award the decision or will result to affect judge of misconduct. adequate without evidence very nature, their decisions, however, All custodial because of judicial discretion involve the exercise that exists in the human condition the infinite variation family relationships particular. generally the court has been important consideration is whether proper to focus on the provided guidance with sufficient because, case, we believe that it has present facts. In the judicial placed gloss extent that this court has 46b-56b, forth in courts on the standard of harm set party custody awards will have clear notice that misconduct, few instances of may not be based on a only exceptional cir- justified that such awards are petitioner allege cumstances and that must very that continued prove, least, at the clearly injurious will or harmful to the damaging, be heavy burden under either standard child. This is proof. Roberts, supra, See 193 Conn. McGaffin nonparent to dis- (Parskey, J., on dissenting) (burden parental custody in favor of is “a prove presumption heavy one”). preponderance to whether the fair stan- respect

With potential repeated dard will encourage litigation, severely curtailed, will be if not repeated litigation entirely, by 46b-57, eliminated the fact that unlike the § only statute, permits party visitation third intervention controversy in an before the court. Further- existing more, requirement petitioner allege the that a must relationship of a with the child akin to proof establish an parent granted standing that of a in order to be satisfy. extremely Finally, difficult standard to because an party custody, visitation, requires third unlike extraordinary personal, level of emotional and financial period time, the of lengthy commitment child over likely very petition few individuals are the court for custody any case, even one time in given repeatedly. much less procedural protections for the available in a

As many process protec- of the due neglect proceeding, Book chapters tions in 32a and 35a the Practice in a parents afforded the of a child or termina- neglect the to a are proceeding, including right hearing, tion custody See Prac- provided proceeding. generally in a counterpart tice Book c. 25. there is no exact Although party custody proceeding specific steps in a third parent may pro- that a be ordered to take in a neglect notify parent which are intended to ceeding, custody, that must be remedied to regain deficiencies in a provides Practice Book 25-60 court § authority to conduct a evalua- proceeding study. report upon completion tion and filed study may parties and introduced be examined into evidence if the author is available for cross-exami- trial addition, typically nation. Id. court makes rela- of fact that describe the child’s troubled findings tionship parent specific problems with the and the deprive parent custody, as the led the court present trial court did case. General Statutes 46b-57 also directs the court to award third § custody “upon such conditions and limitations as it equitable,” include that the might steps deems which custody child. General take to regain must provides that, example, 46b-56 (i), Statutes “[a]s . court . . concerning a decision part any parents or both of may order either counseling parents participate such child of custody . . . .” The evalua- alcohol screening or drug findings often report, the trial court’s exhaustive tion the conditions attached custody in a proceeding the same as party custody award, although not a third may steps proceeding, in a specific neglect ordered spe- similar to of the serve a function that nonetheless steps of with notice providing cific remedied actions that that must be deficiencies custody full of child. must be taken regain addition, assertion that concurrence’s parental custody from decision to a child court’s remove subject periodic judicial is neglect proceeding in a custody decisions, simply review, unlike third all who are as adjudicated true for children in provides General 46b-129 neglected. (j) § Statutes that, adjudication part upon neglect, relevant an of per- youth’s “court vest child’s or care and [the] private public in or that is any agency sonal by neglected, law or permitted to care uncared-for or dependent youths any person children or or worthy respon- to be persons suitable and such found of upon . . . such the care sibility vesting [and] of of public private agency or youth, such child such other guardian child or or individual shall be such (Emphasis added.) periodic judicial . . . .” youth applies only if the child review described 46b-129 § “The department. is committed to the peri- contemplate mandatory, . . . legislature did not custody, in which rather judicial odic review cases than ordered a commitment the child [the appro- department, by been vested the court in an has] . .” party in with 46b-129 . . priate third accordance § Appeal (85-BC), In re Juvenile (Emphasis added.) 344, 361, Moreover, Conn. 488 A.2d 790 we have (1985). declared, neglect proceeding, in the context of party, when of the child is vested a third “subject to modification court custody order is [the] . . . if such is in the best interests of the [A]n [child]. custody by adjudication of that results neglect [the final nor irrevocable. . . . We department] is neither express one, nor did the perceive reason, legislature no under 46b-129 ... to a vesting to insulate such or revocation. subsequent from modification may petition any the court . . . natural mother [T]he birthday for revoca- prior eighteenth time to the child’s party]. judicial commitment A tion of the [third to the natural mother the provide would then hearing no cause for commitment opportunity showing quotation internal marks omitted; exists.” (Citation we have determined Id., Accordingly, 367. omitted.) adjudicated as custody that the of children who are custody and are guardianship and whose neglected appropriate party required in an third is not vested periodic judicial review but be modified undergo judicial initiated subsequent hearing or revoked at a procedures parent.35 the natural This is similar judicial ignore periodic directed toward We do not the fact that review is merely custody family goal reunification but observe that when the of adjudicated appropriate party neglected as is vested in an third of a child custody subject judicial (j), is not review. See § under 46b-129 order Appeal (85-BC), supra, In 195 Conn. 361. re Juvenile attempts by stating this conclusion that In The concurrence to diminish custody Appeal (85-BC) vesting does not address whether the of re Juvenile adjudication party directly following neglect, rather in a third the court’s of custody following later time transfer from the of the commis- than at some case, (commissioner), in sioner of children and families that eliminates and the attendant measures” articulated the need for “reunification efforts Appeal (85-BC), however, hair- § in In re Juvenile makes no such 46b-129. merely splitting does distinction. The court states that the commissioner judicial obligation trial not have the same to conduct review when the court custody appropriate party in an third as when a child is committed vests custody. Appeal (85-BC), to the commissioner’s See In re Juvenile judicial explained require 361. The court that commitment cases 195 Conn. custody in which party proceedings, in third apply that order parent subsequent is free to seek a the natural custody of the child. See General to regain modification judicial periodic insofar as Thus, 46b-56. Statutes which the concerned, proceedings in review is neglect a custody child in third ultimately vests court proce- with necessarily provide parents party do any protections than avail- protections greater dural custody proceedings. party in third parents able clear and finally asserts that the The concurrence custody apply party in third standard should convincing substantially statute proceedings because parent (removal as guardian similar to the removal 45a-610; statute; Statutes § see General guardianship) proof of harm similar to which requires allegations employs clear and in but neglect proceeding that a concurrence asserts proof. standard convincing appropriate comparison of the two statutes is significant with provides because neither protections, which is not the case under the procedural opinion, previously As we noted this neglect statutes. proceedings provide however, procedural protections similar those parents in third proceeding. fact, neglect receive one will hereinafter proceedings extremely protection parents removal significant temporary custody neglect pro- guardianship, the requirement peti- the that not, namely, do ceedings a with the child akin relationship tioner demonstrate In parent. guardianship of a removal of and to that state, a number of other cases, the the court and neglect relationship parties and entities that have no designated regarding lengthy placements legislative of review of concerns because period, during her the children in foster homes or ot institutions commitment placed appropriate which do not exist when the child is in the of an Finally, § See the fact that the court did not third under 46b-129. id. judicial is no consider whether constitution mandates review reason present analysis judicial ignore its review in the context. personal permitted or with the significant bond child are may to initiate that result in the proceedings removal parental custody. of the child from See General Statutes by 45a-614 adult (any marriage, § relative blood or court may on apply own motion and counsel for minor parent removal of General guardian); Statutes 46b- town, city town (a) (“[a]ny selectman, manager, or department, any probation officer, welfare borough or Services, Commissioner of Social the Commissioner any and of Children Families or child-caring institution approved by or agency the Commissioner Children Families, a representative child or such child’s or attorney parent or foster of a child . . . file with Superior Court ... verified petition plainly a stat- youth such facts as child ing bring the within the jurisdiction of the as neglected, court uncared-for or unlikely dependent”). contrast, it highly there would be more than a person one other than in a child satisfy life of who would be able to heightened requirement relationship of a akin standing a parent. to that of Application preponder- the fair ance standard in a third thus proceeding any should result in depri- risk of erroneous greater vation in than risk inherent removal neglect or guardianship proceeding.

C respect With Santosky factor, third although no in custody state has direct interest proceeding private two parties, involves it has a clear interest in protecting both the rights constitutional and the welfare of the child ensuring pro- that the fairly is conducted and at a cost.36 ceeding reasonable Santosky factor, court declared that the state’s counter vailing rights proceedings, interest termination consists of “a parens patriae preserving promoting interest in the welfare of the child reducing and a fiscal and administrative interest the cost and burden of proceedings,” compatible such both of which it deemed to be with the clear proof. Santosky Kramer, convincing standard of 455 U.S. 766. specifically parens patriae The court concluded that “the interest favors with compatible is fair standard preponderance clearly by articu- court is guided because the goal this detriment to the child standing and rules regarding lated inter- child’s as well the protect parental rights are with Connecticut courts familiar Moreover, ests. family law context in the preponderance fair standard custody in other applied is because the same standard disputes par- between including proceedings, Cookson, 201 Conn. see, supra, ents; e.g., Cookson applicable because “the standard is (preponderance custody dispute between interests involved a private wrought on those interests parents and the effect such that judicial transfer of are not convincing’ use a ‘clear and requires constitution of see temporary custody proof’); hearings; standard of Appeal 189 Conn. 297 (83-CD), supra, In re Juvenile required tempo- not convincing standard (clear of rary custody because, unlike termination hearing parental hearing, private the nature rights “[1] hearings differs, in the kinds of interests concerned two ^[2] deprivation rights in a temporary adjudication irrevocable”); is neither final nor and hear- testamentary appointment ings regarding guard- See In re 260 Conn. 206 S., ians. Joshua id., 766-67; preservation, severance, bonds”; natural and that not familial proof imposing would factual “a stricter standard reduce error without upon Id., burdens 767. The court stated that substantial fiscal [s]tate.” goals by “procedures promote would be served an accurate these parents provide determination of whether the natural can and will a normal family regard, judges New home.” Id. this the court noted that York court already parental higher proof were in other familiar with the standard permanent proceedings involving neglect. rights termination Id. ultimately preponderance The court the fair standard determined that “constitutionally rights in a was intolerable” termination context society equally because individual should not be asked share “[t]he possible injury significantly risk of when error individual any (Internal quotation greater possible than marks harm the state.” omitted.) Id., 768. The court thus held that either the reasonable doubt satisfy convincing process clear and due standard standard would proceeding. id., See in such 769-70. (preponderance required standard presump rebut tion in favor of testamentary see guardian); also South Windsor v. South Windsor Police Union Local 15, AFSCME, Council AFL-CIO, 800, 825, Conn. 770 A.2d 14 (2001) (in civil litigation, normal burden of persuasion preponderance of evidence). Although we that the recognize clear and convincing standard also is applied family in the context, law including cases involving parental termination of rights; see General Statutes 17a-111b §§ 17a-112 (b), (i) and (j), 45a- 717 (f) and and the (g); removal of a as guardian; see General Statutes 45a-610; we cannot conclude that Santosky third factor weighs against application of the fair preponderance of the evidence standard in third party custody disputes. preponderance

The fair standard also is consistent with our declaration in Roth that “the heightened stan- dard of clear and convincing evidence is not constitu- tionally mandated” in visitation cases. Roth v. Weston, supra, 259 Conn. 231. As we stated in Lehrer, “even contemplated when the state intrusion is most severe, as in an action for termination of rights, state is required only provide an appropriately demanding proof standard of so as to guarantee funda- mentally procedures. fair . . . Santosky v. Kramer, 754. Lesser intrusions, such as cus- [455 U.S.] tody orders, represent a in kind and not in difference degree . . . termination proceedings, and thus from permit intervention on a lesser standard proof. The requirement constitutional procedural process due thus invokes a balancing process . . . .” omit- (Citation ted; emphasis altered; quotation internal marks omit- ted.) Lehrer v. Davis, supra, 214 Conn. 238. only jurisdiction other that has conducted a

detailed and thoughtful analysis of proof the standard of under Santosky has concluded that the clear and con- vincing standard is constitutionally neither required nor Shurupoff v. cases. in third appropriate Court Shurupoff, Md. 660. supra, 372 Vockroth, from that, aside initially noted Maryland Appeals temporary, is a custody award fact nature, varied in orders are order, custody modifiable complete always legal lose does when a Even Id., 653. custody of the child. physical custody, physical legal both party third awarded necessarily the to visit right lose the does child, keep of the with abreast the and communicate or development child’s activities, influence the child’s all which would be inheritance, the child an leave Id., 653-54. The terminated. parental rights lost if were party in a the issue third further observed that court safety is, may be, and often the immediate custody case party child, and short-term welfare of preserve parental relationship custody awards that period a limited of time many are cases for granted prove changed can circumstances to until the that, The court concluded regain custody. Id., 657-58. may “it well be the proof high, if is too the standard Id., who will suffer.” 658. child party in which a third seeks summarize, To cases pursuant custody proceeding brought in a intervene by fair party prove preponder- must a (a), § 46b-56 demonstrating the evidence facts that he she ance of parent, has child akin to that of a relationship custody be detrimental clearly would that third and, upon finding detriment, the child custody in the child’s best interest. In would be cus- awarding in which the trial court considers cases pursuant has not intervened tody to a third who custody 46b-57, court award to the third proof of the party provided that the record contains by a fair of the evidence. preponderance facts foregoing

VI present case, the trial court apply failed to correct standard when it granted Husaluk’s motion to intervene and awarded her solely on the basis of the best interest of the child. Thereafter, Appel- late Court properly rejected the defendant’s claim that the trial court should have awarded on the basis of the standard articulated in Roth but improperly affirmed the award of to Husaluk on the ground that it was in the best interest of the child.37

The judgment Appellate Court is affirmed inso- far as it reverses the trial court’s judgment as to the allocation dependency of tax exemptions;38 the judg- ment of Appellate Court is reversed in all other respects and the case is remanded to that court with direction to reverse the trial court’s judgment and to remand the case to the trial court for proceed- further ings according to law.

In opinion this NORCOTT, VERTEFEUILLE and SUL- LIVAN,Js., concurred.

KATZ, J., with whom BORDEN and PALMER, Js., join, I concurring. agree with majority’s the conclusion that the judgment Appellate of the Court affirming the trial court’s judgment custody awarding of the minor child of the defendant, Andrew J. Fish, to the child’s paternal aunt, Barbara Husaluk, over the defendant’s objection must be reversed and the case remanded for further proceedings. I Specifically, agree part with IIA majority opinion that, satisfy order to the 37Although Appellate summarily Court concluded that “there was ample evidence for the presumption court to conclude that [trial] in the rebutted”; Fish, defendant’s favor was App. 757; Fish v. 90 Conn. analysis the court conducted no of whether it would be detrimental custody. child to remain in the defendant’s opinion. See footnote 6 of this by this court Roth highlighted constitutional concerns 234-35, (2002), Conn. 789 A.2d Weston, party like a seeking custody, seeking a third party third relationship visitation, allege parent-like must a a custody pre- to seek over standing the child to have I that the objection. also sumptively parent’s agree fit solely on improperly trial awarded court third was party a basis of determination my where in the interests of the child. That is best ends. majority with the agreement a obtain majority determines that third a who has not objection custody over a mere by pre upon demonstrating been deemed unfit would ponderance of the evidence pursuant to the child” to General Stat be “detrimental majority implicitly con Although § utes 46b-56b.1 it requires judicial gloss, cludes that 46b-56b require ultimately proof concludes that less stringent in Roth to ments than those established this court constitutionally protected rights safeguard family petitions and the unit when protect for are same consti adequate visitation those party petitions interests a third cus tutional when tody. harm, rejecting the Roth standard of the Roth majority following reasoning: (1) relies on the sufficiently “provide is not standard “flexible” [s] judicial necessary room for the discretion insufficient unique take into to formulate solutions that account case”; particular facts and circumstances of each (2) jurisdictions adopted other a have “detriment” standard preci that more but have declined define term with flexibility; (3) sion allow such court declined to this any provides: dispute custody General Statutes “In as to the 46b-56b parent involving nonparent, presump a of a minor child and a there shall be custody tion that it is in the best of the child to be in the of the interest parent, presumption may showing which be rebutted that it would be permit parent custody.” child to detrimental to the have as restrictive as the Roth

adopt a standard harm opportunity standard when we had an interpret context; detriment standard in a related and (4) prior Roth, rejected to our decision in the legislature in Roth. In rejecting the adopted standard of harm clear and heightened convincing proof burden of that Roth, applied majority this court reasons that a comports process lesser burden with due in essence party custody because third does not rise to the level parental termination of rights. reasoning. The time-tested Roth I with this disagree proper standard strikes the balance between protecting rights constitutional at stake and safeguarding the child’s welfare. Because the intrusion on the constitu- tionally protected parent family interests of the and the unit is significantly greater when a court deprive acts to parent of his or her child than when a court awards visitation to a third a parent’s over I objection, agree cannot that a lesser standard suffices. Indeed, party custody only because third deprives not and child of companionship, each other’s but deprives also to make decisions right every affecting aspect physical, of a child’s social and moral development, parent’s on a infringement right to raise his or her own child family and on the unit’s autonomy is akin to that arising from the termination for as rights long is vested in person parent. to the exclusion of the Accord- I ingly, that, would conclude in order to a parent divest custody, plead a third prove, by must clear evidence, they have a convincing parent-like relationship with the child and that “real and substantial Weston, Rothv. harm”; 229; Conn. akin to that under neglect our statutes will result should be party. vested the third

I Roth standard question of whether the To address the this mandated, begin I with constitutionally harm of in that adopting that standard reasoning court’s 209-10, 259 Conn. this Weston, supra, In v. case. Roth of the United States that, light determined court 530 Granville, in Troxel v. Court’s decision Supreme 49 we 147 L. Ed. 2d 57, 2054, (2000), 120 S. Ct. U.S. that had we gloss must reconsider the constitutional statute, party visitation General on the third placed v. just Castagno earlier in 46b-59, years six Statutes § (1996).2 A.2d 1181 The Wholean, 336, 239 Conn. 684 jurisdictional requirements that court concluded adequately Castagno we added in not that had “[did] care, in the parents’ interest acknowledge status ‘perhaps children as and control of their liberty recognized of the fundamental interests oldest ”3 Weston, v. 216. by Supreme] Court.’ Roth [the 2 350, Castagno Wholean, supra, engrafted v. Conn. the court thresh 239 permit jurisdictional requirements old onto 46b-59 that would the trial family petition only when the of the court to entertain a for visitation life disrupted by analogous child state intervention minor had been either custody statutes, §§ within General 46b- the situations included Statutes by §§ 56 and 46b-57 or “in a manner similar to that addressed 46b-56 and 46b-57, yet but involved.” in which the courts have not become The court precisely be, declined to state what those similar circumstances would but possibilities parent, separation facto cited death of a de parents good allegation has a third “when there been a faith Id., neglect.” abuse or 352. 3 Supreme recognizing right Court’s decisions this fundamental date 399, Nebraska, 390, 401-403, Meyer back to at least 1923. See v. 262 U.S. 625, “proficiency (1923) (concluding foreign 43 S. Ct. L. Ed. 1042 jurious iq health, language understanding ... is not morals or ordinary parents recognizing right child” and “establish a home up bring own”); and to v. children” “control the education of their Pierce Society Sisters, 510, 534-35, 571, (1925) 268 U.S. 45 S. Ct. 69 L. Ed. 1070 parents’ (holding to send that state could interfere decision children private inherently recogniz schools when “not harmful” and decision was ing right upbringing “to direct the and education of children under their control”); Yoder, 205, 232, Wisconsin 406 U.S. 92 S. Ct. L. Ed. 2d compulsory (1972) (exempting requiring Amish education law from state public eighteen, recognizing “primary age children to attend school until

Therefore, the court considered “what interest would sufficiently be to warrant state compelling intrusion parent’s deny into a decision to limit or visitation to a party.” 222. Id., that, The court reasoned light “[i]n compelling stake, the interest at the best interests secondary parents’ of the child are . . . rights. Because parenting protected remains a fundamental due right, process clause leaves little room for states parent’s to override a decision even when parent’s that arbitrary decision is and neither serves nor is motivated by the best interests of the child.” (Citations omitted.) Id., 223. recognizing the constitutional signifi- While stake, cance of the interests at the court was mindful that are . . . limitations on these “[t]here . . . is rights. unquestionable that in the face of [I]t parents that are allegations unfit, the state intrude upon family’s a integrity.” (Citations Id., 224; omitted.) parents upbringing role of their children is now established beyond enduring tradition”); debate as an American see v. also Prince Massachusetts, 158, 166, 438, (1944) (“[i]t 321 U.S. 64 S. L. Ct. 88 Ed. 645 custody, is cardinal that the with us care and nurture of the child reside parents, primary preparation first whose function and freedom include obligations supply hinder”); Stanley Illinois, the state can neither nor v. 645, 651, 1208, plain (1972) (“[i]t 405 U.S. 92 S. Ct. 31 L. Ed. 2d 551 is parent companionship, care, custody, management the interest of a in the respect of his or her children to this with a momentum for ‘come[s] [c]ourt lacking appeal merely shifting when is made to liberties which derive from Walcott, arrangements’ ”); 246, 255, Quilloin economic v. 434 U.S. 98 S. Ct. 549, (1978) (“[w]e recognized L. Ed. 2d 511 have on numerous occasions relationship parent constitutionally protected”); that the between and child is R., 584, 602, 2493, (1979) Parham v. J. 442 U.S. 99 S. Ct. 61 L. Ed. 2d 101 historically (“Our jurisprudence concepts has reflected Western civilization family parental authority of the as a unit with broad over minor children. consistently course.”); Santosky Kramer, Our cases have followed that v. 745, 753, 1388, (1982) (discussing 455 U.S. S. L. 102 Ct. 71 Ed. 2d 599 “[t]he liberty parents care, custody, fundamental interest of natural in the management Washington child”); Glucksberg, 702, 720, of their v. 521 U.S. (1997) (“[i]n long cases, 117 S. Ct. 138 L. Ed. 2d 772 line of we have that, specific protected by held in addition to the freedoms [b]ill [r]ights, ‘liberty’ specially protected by [p]roeess the [d]ue [c]lause righ[t] upbringing includes the ... to direct the education and of one’s omitted]). children” [citations long (“so 68-69 Granville, see Troxel [i.e., children for his or her adequately cares no reason for normally will be fit], there [s]tate family to further private realm inject itself into the best to make ability of that question the parent’s chil- concerning rearing decisions require- “a reasoned that the court Accordingly, dren”). abuse, neglect such as ment of an allegation pre- provide proper safeguards would abandonment intru- unwarranted defending against vent families from narrowly protect to be tailored sions and would Weston, supra, v. 224. The court at stake.” Roth interest justify such some lesser harm could considered whether only that “the level emo- intrusion, an but concluded intervention is one justify tional harm that could court would allow the is akin to the level of harm that 46b- custody to assume under General Statutes §§ state namely, ‘neglected, that the child is 120 and 46b-129— dependent’ uncared-for or as those terms have been that, “although court reasoned Id., defined.” 226. The issue, avoided the plurality [opinion] Troxel [had] decisions Supreme prior United States [the Court’s] for interference with clearly reflect a tolerance safety of the child only decisions when the health or potential jeopardized will be or there exists the Id., burdens.” 228. significant social mind, question I turn to the background With this custody petitions implicate any of whether third substantively family different intrusion on lesser or autonomy parent’s care, and a to exercise control right custody resulting over a child than the intrusion that the cus- petition, from a third visitation such embody procedural the same tody statutes need not applied, judi- that we as a protections and substantive cial 46b-59 in Roth. I would conclude that gloss, party custody they Indeed, do not. it is evident that third constitutes a significantly greater infringement. Roth, articulating requisite pleading after expressly court noted: “We rec

proof requirements, imposes of harm that the statute ognize that the burden unusually light be deemed harsh in of the fact that at issue. We draw visitation, opposed custody, is distinction, however, forpurposés no of this discussion. time during Visitation is a limited form of exercised . . . .”4 rights being (Inter the visitation are Weston, supra, marks Roth v. quotation omitted.) nal den, n.13; Marriage Gay 259 Conn. 229 accord In re App. 1510, 1517, Rptr. 229 Cal. 3d 280 Cal. 862 (1991) “a the time (visitation during limited form rights being exercised”); the visitation are Jackson Fitzgerald, 724, (D.C. 1962) right 185 A.2d (“[t]he [c]ustody”); of visitation derives from the Alison right 656-57, 572 N.E.2d Virginia M., 651, D. v. 77 N.Y.2d N.Y.S.2d 586 allow the courts to (1991) (“[t]o award visitation —a limited form of a third —to necessarily impair parents’ person right would majority “overly simplistic” these statements as in the dismisses relationship present issue in the case and misconstrues the context of the custody. respect With the first that I have drawn between visitation and to implicitly stringent point, recognized in Roth that the standard this court clearly justified adopted in would be if the state of harm that we that case parent’s rights engaging greater was in the intrusion on the constitutional custody order, resulting the intrusion from attendant to a but that lesser justify sufficiently kind, degree, was similar in albeit not the visitation heightened standard. majority point citing analogy the I have made in to this misconstrues “merely” by asserting that the concurrence declares that: visitation is custody; liberty that both therefore “intrude on the interest limited form of essentially manner”; parent of the the same and that “because third time, custody parent longer period a child from the for a of it removes deprives parent ‘quintessential rights parenthood ....’” With the of the of exception accurately phrase “quintessential rights quoting of the lone parenthood,” majority of misconstrues the discussion herein as to the between, to, relationship visitation and cus- and the differences attendant tody. clearly evident, limited As the discussion herein makes visitation is one custody. aspect Irrespective rights of the of that constitutes of how bundle ordered, “quintessen- long period of visitation visitation never confers the custody. rights parenthood” tial attendant to Clark, 554, 294 N.C. custody control”); Clark privileges 575-76, (“[visitation 243 S.E.2d 129 (1978) v. John- custody”); a lesser Middleton degree are but 585, 594, (App. 2006) 633 S.E.2d 162 son, 369 S.C. included penumbra custody is the lesser (“[u]nder right visitation”). privi clearly related, rights

Although legal custody more intru to an order of are leges attendant As attendant to an order of visitation. sive than those custody care, explained: “Full denotes judge one physi of a child all control, including and maintenance custody, and the child resides aspects cal and legal . . . custody whom was awarded. person with the by a normally represents period of access Visitation from full non-custodial individual. It differs does not dwell with the non-custodial that the child responsi this individual can be individual, and, although safety child, of the he or she ble for the care and child. . . . Full important not make decisions for the authority upon the one in rights confers opposed of vis placed privilege whom it is Fausey, 342, Hiller v. 588 Pa. iting.” omitted.) (Citations 378-79, J., concurring), 904 A.2d 875 (2006) (Newman, 1876, 549 U.S. 127 S. Ct. 167 L. Ed. denied, cert. 2d 363 (2007). person an award of full to a third

Thus, deprives of far more than the right period for some limited companionship during child’s deprives occurs. It which visitation parenthood make decisions quintessential rights —to development, determining that affect the child’s such as associations, the child’s education and medical treat- ment, and to inculcate beliefs and moral val- religious 232-33, v. 92 Yoder, 205, ues. See Wisconsin 406 U.S. L. Ed. 2d 15 role 1526, (1972) (“the primary S. Ct. in the children is now parents upbringing of the of their beyond debate as an American enduring established standards, of “moral particularly matters tradition,” good citizenship”). and elements of beliefs, religious implicates a custody petition such, party a third As parent’s intrusion on a constitu- significantly greater party petition. visitation than does a third tional interest us, before question constitutional In considering the constitutional rights important recognize it is parent’s to control right include more than at stake the broader right It also includes upbringing. the child’s family right family autonomy integrity. of “[The] reciprocal encompasses rights . . . family integrity . . . the interest both and children of custody and man care, companionship, in the parents . and the children children . . agement [their] attachments from the emotional being dislocated intimacy daily association with from the that derive quota omitted; .” internal (Citations . . . Ment, Pamela B. 296, v. 244 Conn. omitted.) tion marks M., see In re Christina (1998); 709 A.2d 1089 (“[i]n A.2d 1073 cases 474, 486-87, (2006) Conn. of the child coexist rights parental rights, involving parent” with those of the and are intertwined [internal Santosky see also quotation omitted]); marks 1388, 71 L. Ed. Kramer, 455 U.S. 745, 760-61, 102 S. Ct. presumed that termination, it is (prior 2d 599 (1982) An award of parent coincide). child and interests of invariably poten attenuates and party a third attachments that the child tially destroys the emotional his intimacy daily association with from the derives family is undermined parent. Thus, integrity or her custody in a manner that is not party of third result sum, the constitu party in third visitation. implicated custody; in third greater tional infringement we of harm than that which hence, a lesser standard in Roth for visitation reasonably cannot be required an hypothetical possibility of justified. Moreover, the petitions, in third joint award greater on to dismiss the con- majority relies which of cus- to an award attendant infringements stitutional effect of the the fundamental tody, change does not intrusion.5 Supreme and the United States this court

Although independent that there is an Court have recognized custody troubling possibility joint majority’s is reliance on availability present case does not illustrate for several reasons. The joint custody disposition. be shared The trial court did not order that this petition custody; parent opposed the court with the Husaluk’s Fish, mother, plaintiff, and the Paula J. the child’s ordered that Husaluk custody. Moreover, object petition, the court’s who did not to Husaluk’s share parents rights pertaining to both leave them with none of the essential orders only illusory parenthood, right of “consultation” before Husaluk makes any Thus, present regarding upbringing. child’s case illus decision parental custody is trates the unlikelihood that a court will determine that contrary yet permit still to share to the child’s interests custody party. with a third however, majority’s troubling, suggestion that More is the effect of the joint custody proper disposition is a when a third seeks over objection parent’s conjunction holding stringent a fit in with its that less proof apply custody petitions applied pleading standards of in than those petitions. By concluding, majority in third visitation so in effect encourages nonparents stringent to circumvent the more visitation standards simply seeking joint limited instead of visitation. Finally, that, joint custody may disposition option legal I note even if be a may party custody dispute, disposition in a third the fact that a less intrusive procedural weight determining be available has in and substantive no protections necessary protect the constitutional interests at stake. Courts requisite possible gauge greatest standards on the basis of the constitutional proceeding, infringement that could result from an adverse decision in the example, proceeding terminate not the least intrusive result. For parental proof constitutionally mandated, rights, heightened standard of may dispositional phase though that termina even the court determine warranted, proceeding tion is not because the could result in the termination parental E., App. 185, 189, rights. In re Deana 61 Conn. 763 A.2d 37 See (citing convincing applied (2000) tier clear and evidence standard two may possible analysis noting is thus before termination be ordered and “[i]t statutory parental rights ground for termination of for a court to find that a exists but that it is not in the best interests of the child to terminate the parental relationship, although removal from the justified” quotation omitted]), denied, be marks cert. 255 Conn. [internal B., 263, 279, (2001); Baby 224 Conn. 768 A.2d 949 see also In re Girl automatically (“[t]ermination parental rights (1992) A.2d 1 does not follow custody”). justifying from conduct the removal of physical psychological

interest in “safeguarding marks omit quotation minor”; (internal of a well-being 1691, 103, 109, U.S. 110 S. Ct. Ohio, v. 495 Osborne ted) Appeal In re accord Juvenile (1990); 109 L. Ed. 2d 98 455 A.2d 1313 276, 287, (1983); Conn. (83-CD), 189 interest rejected the view that this Supreme Court has it such that right, of a constitutional rises to the level with the constitutional equal footing stand on would Winnebago DeShaney v. family autonomy; see right 201, 109 Services, 189, 489 U.S. Dept. Social County of had no (1989) (“[s]tate L. Ed. 2d 249 998, S. Ct. from abuse while duty protect constitutional [child recently declined and this court parent’s custody]”); in our state constitution. See that issue under to address n.16, 865 734, 272 Conn. Ragaglia, T. v. Teresa scope in of of certified light (declining, A.2d 428 (2005) “that plaintiffs argument reach appeal, on questions protec to child process right due there is a substantive this As Connecticut”). the constitution of tion under interest Roth, however, the state’s recognized court magnitude children is of sufficient protecting on these constitutional may impose “limitations” state 224. The court Weston, supra, 259 Conn. Rothv. rights.6 continually [sjtate’s Supreme has reaffirmed that “a interest Court physical psychological well-being ‘safeguarding of a minor’ is continuance, upon society rests, ‘compelling.’ for its ... ‘A democratic maturity people healthy, growth young into full of well-rounded legislation Accordingly, aimed at . court sustained citizens.’ . . [the has] well-being youth physical when the protecting even and emotional constitutionally protected rights.” operated in the sensitive area of laws have Ferber, 756-57, 747, omitted.) Ct. New York (Citations v. 458 U.S. 102 S. exception, however, (1982). 3348, of cases involv L. 2d 1113 With the 73 Ed. and 46b- ing neglect §§ with the standard under 46b-120 or abuse consistent eventually 129, temporarily have his lose wherein a permitted terminated, parental rights has the cases in which the court or her constitutionally protected rights upon infringe the state to discrete, family degree upon limited a lesser of harm involve a unit decision-making, usurpa aspect not a wholesale intrusion on one family See, e.g., Prince parent’s or the destruction of the unit. tion of the role Massachusetts, 158, 168, (1944) 64 S. Ct. 88 L. Ed. 645 321 U.S. distributing (upholding prohibiting on street child from literature statute pleading jurisdictional therein explained akin to the harm real and substantial requirement both addresses and 46b-129 46b-120 requirements §§ jurispru- conforms to constitutional concern and this may interfere with state that the providing dence there is sufficient autonomy only when family’s no are longer interests that the constitutional evidence safety health or as when the child’s paramount, such Appeal also In re Juvenile Id., 228; see jeopardized. is Stat- (“The language 287-88 (83-CD), [General scope of intervention clearly limits the 17-38a utes] [e] .... compelling interest is to cases where the state only physical where ‘serious permitted Intervention or where injury’ is found physical illness or serious point It is at this present. is physical danger’ ‘immediate with that interest no coincides longer that the child’s of the thereby magnitude parent, diminishing . . . and therefore family integrity parent’s right child protect parens patriae intervention as state’s para- considered necessary that it can be becomes so pre- As I have noted omitted.]). mount.” [Citations reached that conclusion viously herein, the court “clearly body of case law of the substantial because parental with a tolerance for interference reflecting] the child safety health or of only when the decisions potential exists the jeopardized will be or there 228; Weston, supra, Roth v. social burdens.” significant 604, 442 99 S. Ct. R., 584, Parham v. J. U.S. see also respec- 2493, (1979) (“[i]n defining 61 L. Ed. 2d 101 parent in of the child and prerogatives tive and rights we conclude that our voluntary setting, commitment religious expression notwithstanding freedom of statute’s effect on faith); practices religious parent’s right see also to teach child tenets and 657-58, 1208, Illinois, 645, 651-52, Stanley 31 L. Ed. v. U.S. 92 S. Ct. “companionship, that, (1972) (concluding father’s interest in 2d 551 whereas care, custody, management” “cognizable and substan- of his children is tial,” caring if father is in for his children is “de minimis” state’s interest parent). fact fit if parents substantial, to retain a precedents permit dominant, decision, finding not the role absent abuse, presumption and that the traditional neglect their parents that the act in the best interests of child compet- these Indeed, recognition should apply”). many permitted other states have an concerns, ing parent only if award of to a third over seriously unfit or the child’s welfare is parent at stake.7 7See, (West 1999) (custody e.g., Code Ann. art. 133 La. Civ. (3) child); §§ harm” to Minn. Stat. 257C.01 would result in “substantial petitioner years (6) (7) (2006) (child with two and 257C.03 has lived immediately custody petition parent’s presence preceding without and with year, depending to one on child’s out involvement for six months abandoned, disregarded well-being age; parent neglected or child’s has parent, presence physical living extent that child will be harmed with remaining parent, danger emotional to child in or other extraordi and/or nary (a) (1) circumstances); §§ Tex. Fam. Code Ann. 102.004 and 153.131 (parental “presents question concerning (a) (Vernon 2002) a serious impair physical significantly or “would the child’s child’s health or welfare” development”); J.A.D., physical or emotional H.E.B. v. 909 So. 2d health 840, App. 2005) (parent guilty (Ala. . . . “is misconduct or [such] improper person neglect degree an unfit and to a which renders upbringing question” entrusted with the care and of the child in to be 1078, 1079, quotation omitted]); McTaggart, v. 88 P.3d marks Evans [internal parental custody clearly (Alaska 2004) (parent 1083-84 unfit or detrimental Markham-Crawford, child); Murphy v. to welfare of 665 So. 2d App. denied, (Fla. 1996); (Fla. 1995) (same), review 675 So. 2d 928 Clark 598, Wade, 587, (2001) (physical significant, harm or 273 Ga. 544 S.E.2d 99 Stockwell, 297, 299-300, harm); long-term v. emotional Stockwell 116 Idaho (parent patently child; (1989) P.2d 611 unfit or has abandoned his or 775 custody appreciable period nonparent of time and best has of child for custody being placed nonparent); interests of child dictate In re Guard Williams, 814, 826, ianship (1994) (parent Kan. 869 must 254 P.2d 661 extraordinary “highly unfit unless unusual or circumstances” demonstrate be Collinsworth, parental presumption application”); has Davis v. 771 “no by 329, 1989) (parental abuse, (Ky. unfitness as shown moral S.W.2d 330 illness, failure, delinquency, abandonment, emotional or mental or for rea poverty alone, provide child); In the sons other than essential care of G., 200, 204, (2006) (specific Jeffrey 153 N.H. 892 A.2d 1234 harm

Matter of requires showing is unfit as determined in either abuse to child that proceeding parental rights proceeding); neglect or termination of Wat Nelson, 235, 245, (parent’s gross (2000) v. 748A.2d 558 miscon kins 163N.J. “extraordinary affecting circumstances” welfare duct or unfitness or other

103 than different standard that a majority concludes because, unlike custody disputes apply Roth should to care competence visitation, “the overall party in third directly challenged the child is for Mitchell, child); v. petition would cause harm of child—denial of McDuffie engaged (parent App. 587, 591, (2002) has in “acts 573 S.E.2d 606 155 N.C. any abandonment,’ ‘unfitness, neglect, other or would constitute [or] that forfeiture of his type egregious in defendant’s so as to result of conduct 165, denied, parent”), N.C. constitutionally protected 357 as a review status 574, 579, Smith, 586 S.E.2d 565 (2003); v. 355 S.C. Camburn 580 S.E.2d 368 App. (Tenn. unfitness); Ray Ray, (2003) (parental S.W.3d v. minor, harm, danger meaning that is not 2001) (substantial “real hazard or Sours, 96, 100, trivial, 340 S.E.2d 824 insignificant”); 231 Va. Bailes or voluntary divestiture, unfitness, previous relin (1986) (parental order of quishment, “special . . . consti and circumstances abandonment or facts parent”); extraordinary taking its In re tuting for a child from an reason Shields, 126, 144-45, 136 (2006) (extraordi Custody 157Wash. 2d P.3d growth nary demonstrating detriment to child’s circumstances actual E.G., 715, 719-20, (2002) development); S.E.2d 325 212 W. Va. In re immorality, abandonment, misconduct, neglect, (parent or unfit because of by agreement duty, right, or or other dereliction of or has waived such transferred, relinquished permanently or surrendered such otherwise has custody). majority jurisdictions apply Although suggests that of these a some comparable adopted, the fact to the one it has it overlooks standard is held, majority implicitly, jurisdictions as has the that most of those have not extraordinary degree when circumstances means harm of a lesser than attention, physically, educationally, being proper a child “is denied care and conditions, emotionally morally, being permitted or or ... is to live under injurious well-being . . . .” of the child circumstances or associations (defining neglect). glosses (9) (B) (C) It also General Statutes 46b-120 many jurisdictions apply convincing a clear and over the fact that of these proof. concurring opinion. burden of See footnote 12 of this that, provide specifically although I some states do not for also note statutory by parties proceedings to obtain intervention in dissolution custody, Connecticut, majority of states have considered the as does question proper of when it is for a court to award to third any parent. question several contexts —a over a That arise one of paternity proceeding guardianship, or in some other context dissolution my expressly provided view the constitutional statute. Because ability power to vest of a child in limits on a state’s to exercise its irrespective parent’s objection generally the same a third over a remain authority, procedural to invoke the court’s I do of which vehicle used by particular procedure distinguish which the the states based on the custody. party obtain Roth, rejected . . . .” I this court petitions disagree. proof less than possibility something 46b-120 contemplated harm akin to that §§ kind of namely, “neglected, the child is 46b-129, provide would a sufficient dependent” uncared-for or Weston, Roth v. safeguard. constitutional as, inter circum- alia, 225-26. is defined Neglect Conn. care proper wherein a child “is denied being stances emotionally educationally, or attention, physically, live condi- morally, permitted or ... under being injurious or associations to the tions, circumstances youth, or . . . has been well-being of the child (D). 46b-120 (9) (B) (C) abused.” General Statutes § Given that Roth party a third visitation requires seeking and substantial harm akin to that under prove real petition should the not be neglect granted, our statutes say reasonably parent’s competency cannot that the one I petitions. at in visitation Accordingly, is not issue that no lesser standard of constitu- would conclude applied which this court protections tional than that Roth can custody. apply to third set forth in parental presumption to the

Turning requires nonparent which to show that 46b-56b, child,” to the parental custody would be “detrimental undoubtedly such a standard could be reconciled Roth, If “detri on what detriment means. depending any harm, to mean no degree ment” is construed short-lived, matter how insubstantial or that standard readily test, to a best interests in contra could devolve of Ro th and Troxel. See Evans holdings vention McTaggart, 1078, 1086-87 2004) 88 P.3d (Alaska (noting readily that detriment standard not be might concern open- an test). from best interest Such distinguishable be to allow a third ended term also could construed custody solely to obtain because a child is suffer upheaval short-term emotional result of ing disruptive or other parents’ marriage dissolution of the 470, 586 M., 459, Conn. See In re Jessica events. parent- most unlikely that is not (1991) (“[i]t A.2d 597 is intervention in which state relationships child incidental custody disputes required, including also Detriment strain”). divorce, signs will exhibit values mean the inculcation be construed to could Cf. Painter contrary to social norms. that are and beliefs N.W.2d 152 Bannister, 1393-96, 140 1390, 258 Iowa v. lifestyle, of father’s Bohemian disapproval (citing child and and concern for of his care despite evidence stable, con provided “a home grandparents’ view middle-class, background” middlewest ventional, custody to grandpar award of affirming rationale for denied, 949, 385 U.S. over father’s cert. objection), ents Santosky also L. Ed. 2d 227 see 317, 17 (1966); 87 S. Ct. Kramer, supra, 455 U.S. 764 standard elevated (“[a]n possible risk that a proof . . . would alleviate the an individual based [deprive] factfinder decide to might of unusual conduct solely on a few isolated instances idiosyncratic quotation . . behavior” . [internal [or] some further Thus, it is evident that omitted]). marks necessary to of the term “detriment” is refinement uniform, application. constitutional ensure our sister states concerns, Mindful of such one of the detriment applied judicial following gloss pro- “Detriment refers to circumstances standard: likely produce mental, physical lasting duce or are than the harm. . . . more or emotional [Detriment [i]s him from by uprooting trauma caused to a child normal by reason of such as often occurs surroundings familiar contemplates a divorce, adoption. death of a It the normal term adverse effect that transcends longer rights in such cases. . . . Parental adjustment period have not been evaporate merely parents because do quotation parents.” omitted; internal (Citations ideal Matzen, 600 So. 2d Marriage In re marks omitted.) Undoubtedly, this App. 1992). gloss 490 (Fla. the Roth standard. entirely consistent with majority implicitly recognizes the constitutional of the term “detri problems vagueness inherent in the attempts numerous to refine its ment,” by virtue of its majority onto the “detriment” engrafts The meaning. injurious or gloss: “damaging, the following standard pre a definition of “detriment” child,” harmful to the S., this cour t in Inre Joshua viously by 260 Conn. cited “exceptional A.2d 1141 circum 182, 207, (2002); 796 resulting harm of the kind stances”; “temporary not itself, but proceeding from the stress of the dissolution pattern dysfunc arising harm from significant developed has between the tional behavior that period time”; “qualitatively over a and a and the child different the ‘best inter [analysis] involving from descriptive my view, . . . .’’In these ests of the child’ majority’s rejection conjunction in with the terms, properly in Roth standard, guide do little to the courts at stake. the interests balancing cites the court’s statement Specifically, majority S., in In re Joshua 207, 260 Conn. wherein we may shown, just by be demon- held that “detriment by demonstrating . . . but consider- unfitness strating injurious harmful to would be damaging, ations that however, the majority entirely, The ignores the child.” in which the court made this statement. context S. was between testa- custody dispute in In re Joshua parents, and foster a fact that led mentary guardians reject presumption the constitutional the court of the Roth parents applicability and the afforded and Troxel Id., case. 203-205. Accord- to the holdings of detri- meaning the court did not examine ingly, lens; rather, simply a it through ment constitutional dictionary meaning for the common looked to New World Id., n.19, citing term. Webster’s Notably, in the testamen- Dictionary rejecting (2d Ed.). case, Doe, Doe v. pre-Roth on a tary reliance guardians’ wherein the 403, 455, (1998), 710 A.2d 1297 Conn. regard given as due long court had held that “[s]o . . . interests presumption best [parental] ‘[t]he of a court’s remains the ultimate basis standard ” S. stated: “In decision,’ light the court In re Joshua visitation concerning of our recent decisions [supra, 202]; . 259 Conn. Crockett Weston, . . Roth v. now Conn. 789 A.2d 453 we Pastore, (2002); vitality of the standard as set out Doe question a presumption favoring which to rebut the custody dispute.” In re nonparent over a Joshua Thus, n.17. In re Joshua S. does no more S., supra, 202 dictionary than definition of the term “detri- provide pr ment” and that this court’s e-Roth and acknowledge pre-Troxel questionable precedential case law have value in sufficient constitutional standards for setting party custody disputes.8 majority’s

The qualifying “excep- addition of the term hardly tional provides circumstances” meaningful guid- ance to the trial courts. some other Although recognition signal This in court’s In re Joshua S. that Roth and Troxel change legal landscape legislative in the also undermines reliance on intent meaning Although agree majority as to the of detriment. I do not with the history legislative rejection that the demonstrates a of the Roth standard of harm, legislative preceding adoption the because focus of debates parental presumption clearly proof, §in 46b-56b was on the burden of we presume any legislature adopted cannot event that the the detriment fully implications. legislature standard mindful of the constitutional The provision regarding grounds § amended 46b-56b in 1986 to add the the parental presumption. rebutting 1986, See Public Acts No. 86-224. In light that, holding of the fact this court in Roth overruled its 1994 Castagno following Supreme Troxel, Court’s 2000 decision in we hardly expect prescient legislature could to be more than this court in developments. Moreover, predicting legislature constitutional even if the demands, clearly province had considered what the constitution it is the statutory passes the court to determine whether a standard constitutional Inquiry, muster. See v. the Governor Select Committee Office of 540, 574-75, (2004), citing Marbury Madison, Conn. 858 A.2d 709 5 U.S. 137, 177, (1 Cranch) (1803). 2 L. Ed. 60 many have used term, have used a similar

jurisdictions harm examples of conjunction specific with term in harm; requisite for the gauge a contextual provide amorphous an stan- such many others have eschewed inquiry specific a more fact in favor of altogether dard custody in permit third have declined to this footnote 7 of unfitness. See absence at least limits the tem- majority The opinion. concurring more something harm, requiring nature of poral dissolution, but attendant temporary stress than the to the contex- standard to tether the detriment declines time-tested standard’s provided the Roth tual gauge contours. its well understood application it finds the to do so because majority declines flexibility to address sufficient lacking standard Roth may courts need under which myriad circumstances possibility It cites the protect children. to intervene might harm that “unpredictable” significant of some yet removing warrant standard, of the Roth fall short custody. I this find parent’s his or her a child from reasons. for several troubling puzzling concern the definitions Contrary majority’s suggestion, are not limited dependent for and uncared neglected, safety the child’s “actual wherein to circumstances majority appears to Indeed, the . . . endangered.” be rather than with “abuse,” the Roth standard equate Statutes 46b- Compare § General pertinent terms. Statutes 46b- with General “abused”) (4) (defining “depen- defining (10) (respectively, 120 and (7), (9) Thus, by con- for”).9 and “uncared dent,” “neglected” 9 provides following definitions: the relevant § Statutes 46b-120 General youth (A) “(4) ‘[Ajbused’ or has been inflicted means that a child injuries means, (B) injury injuries physical or has other than accidental or them, history given (C) is in a condition or are at variance with the malnutrition, as, to, not limited of maltreatment such but that is the result necessities, exploitation, deprivation emotional molestation or sexual youth may punishment (7) be found ... a child or or cruel maltreatment youth, ‘dependent’ the child or save for home is a suitable one for whose person inability parents, parent, guardian other main- or financial the

109 standard the Roth harm short of that some eluding determines necessarily majority suffices, proper care denied “being to the child than lesser harm emotionally or educationally, attention, physically, and to live under condi- permitted . morally, being or . . injurious or associations tions, circumstances Statutes 46b- youth”; or General of the child well-being constitutionally permis- would be a (C); 120 (9) (B) custody. As deprive on which to sible basis the case law is to previously, I have discussed contrary. trial courts any from our

I am unaware of criticism expan family long-standing law bar that our or the to meet the standards have failed sively neglect defined under our Indeed, of this state. needs of the children allege need not even statutes, petitioner neglect for real harm, only potential prove genuine actual S., 86 Conn. harm. See In re Jermaine and substantial denied, 938, 273 Conn. 720, 863 A.2d cert. App. 819, trial courts are well Moreover, A.2d our (2005). unique needs of each child ascertaining versed in family even when determin and circumstances of each best interests of child the lesser standard of ing v. Stroh family Strohmeyer See generally. matters A.2d 367 meyer, 353, 356, (1981) (noting Conn. in best interests of child “inherently inquiry fact-bound” determination). majority’s premise that harm that accept

I cannot adjudication minimum threshold for an falls short of the home, specialized taining provide care the condition of the child such youth may ‘neglected’ youth requires (9) who ... a child or be found or proper attention, abandoned, (B) being (A) care and has been or is denied emotionally morally, being permitted physically, educationally, (C) or or injurious conditions, to the well- to live under circumstances or associations youth youth, abused; (10) being (D) has been a child or of the child or provide cannot ‘uncared for’ who is homeless or whose home be found specialized physical, mental condition of the care that the emotional or requires. child . . .” constitutionally permissible a basis provides of neglect party custody in a third divesting parent a trial courts will have petition. I have no doubt between detriment that falls difficulty drawing the line yet exceeds a mere best interests of neglect short of v. McTaggart, supra, the child determination. See Evans concern that detriment stan- (noting 88 P.3d 1086-87 readily distinguishable dard not be from best might majority, I favor our giving interest Unlike the test). a standard rather than inviting trial courts time-tested amorphous to a more standard on a case- challenges by-case Moreover, Supreme basis. I do not construe the standards to constitute Court’s deference to state court its of such sanctioning vagaries.10 open-ended standard, more

Undoubtedly, the flexibility may flexibility it allows. While be more circumstances, we are in the operating virtue in some where concerns of rights, realm of constitutional arbitrary application counsel against vagueness 10 my majority Supreme view, Court’s disinclina misconstrues Granville, supra, 73, 530 U.S. to reach the issue of whether tion Troxel constitutionally required specific showing was before a third of harm parent’s objection. over a fit The court’s statement could obtain visitation adjudication that, occurs on a much state-court this context “[b]ecause case-by-case basis, specific nonparental we would hesitate to hold that per matter”; [djue [pjrocess [cjlause statutes violate the as a se visitation policy id.; simply affording substantial defer reflects its well established family law, determining an law courts in the contours of area of ence state traditionally relegated states. See Elk Grove School District v. Unified 12, 2301, Newdow, (2004) (“One L. Ed. 542 U.S. 124 S. Ct. 2d 98 customarily principal areas in which this ourt has declined to intervene [c] ‘[tjhe Long ago we observed that whole is the realm of domestic relations. wife, child, subject of the domestic relations of husband and [sjtates belongs and not to the laws of the United States.’ to the laws of the strong law in this area that we have ... So is our deference to state recognized exception’ a ‘domestic relations that ‘divests the federal courts Thus, divorce, alimony, power and child decrees.’ . . . to issue necessary arise in which it is to answer a substantial while rare instances apart family question law issue federal that transcends or exists from appropriate general for the federal courts to leave delicate issues ... it is omitted.]). of domestic relations to the state courts.” [Citations in Roth a standard adopted We amorphous standards. flexibility to meet the sufficient both provided that has suffi- and well-being of the child’s concerns legitimate of rights constitutional protect cient constraints family and unit. to construe obligation with our Therefore, consistent infirmities; see Clerk constitutional statutes to avoid Com- v. Freedom Superior Court of Information I 28, 38-39, (2006); 895 A.2d mission, 278 Conn. to the child” standard the “detrimental would construe same nature and to mean harm of the under 46b-56b § Accord- in 46b-59 under Roth. required as that degree party seeking cus- conclude that a third I would ingly, harm, prove real and substantial tody plead must and by 46b-120 contemplated kind of harm §§ akin to the and 46b-129.

II issue of whether the heightened I next turn to the similarly in Roth should proof prescribed burden custody petitions. Roth, In this court apply party to third proof convincing that the clear and burden of concluded constitutionally mandated in the context of was not should party visitation,11 but that it nonetheless constitutional interest at stake apply because of the 11 Roth, the court did not elaborate on the basis for its determination heightened proof, stating process not mandate a burden of that due did process requires only: recognize convincing test “We that due the clear complete parental rights applied because it is the be termination by legal relationship, rights severance all court order of the with its Kramer, parent; Santosky v. responsibilities, between the child and his 747-48; petitions require proof only supra, neglect abuse and 455 U.S. while ‘any deprivation rights preponderance of the evidence because [at nonpermanent and, thus, slightly stage] reviewable and warrants a is F., proof.’ In re Shamika exacting less standard of ... 256 Conn. evident, however, n.22, (2001). It is that in the visitation 773 A.2d 347 context, heightened convincing standard of clear and evidence is not Weston, constitutionally Roth v. (Emphasis original.) mandated.” 259 Conn. 231. greater with which a third

and the ease Weston, Roth could intrude on that interest. resources In the context of a third supra, 259 Conn. 231-32. however, I would conclude that petition, constitution- proof burden of convincing clear ally mandated. expressly by what 46b-56b does not state

Although § presumption must be over- proof degree majority legislative with the that the his- come, agree I that the declined tory legislature to the statute indicates burden require apply heightened that the courts previously As I have convincing proof. of clear and what this court’s view of noted, however, given evolving peti- in third visitation the constitution mandates reasonably expect not tions, legislature we could developments. such See foot- cognizant to have been opinion. Nonetheless, this concurring note 8 of this if the may impose proof burden of heightened court majority so mandates. The concludes constitution proof preponderance burden of possible the lowest — constitutionally an adequate because of evidence —is proceeding award of differs from terminate custody: the addi- (1) in that involves parental rights welfare; (2) the child’s and does tional interest of I rights. disagree sever permanently reasoning. this before is whether due

Specifically, question us by application preponderance of the process is violated the evidence standard to a decision to award objection, pursuant parent’s to a third over a 46b-56, 46b-57, 46b-56b and General Statutes §§ stan- process exacting mandates the more whether due It is well settled of clear and evidence. convincing dard as that con- proof, function of a standard of that “[t]he [p]rocess and in cept is embodied [c]lause [d]ue is to instruct the factfinder factfinding, the realm of society of confidence our thinks degree concerning conclusions of factual have in the correctness he should any given . . . type adjudication. particular for a [I]n tolerated proof standard of the minimum proceeding, only reflects not requirement process the due affected, but public interests private weight risk of error about how the judgment a societal also litigants.” (Citations between the should be distributed Santosky marks omitted; quotation omitted.) internal its Kramer, stating general U.S. 754-55. In “has mandated an Court noted that it rule, Supreme convincing proof standard of intermediate —clear in a interests at stake evidence —when the individual particularly important state are both proceeding money. . . . Not mere loss of more substantial than civil labels and intentions withstanding good state’s certainty . . . has deemed this level of nec the [c]ourt variety in a essary preserve fundamental fairness that threaten government-initiated proceedings deprivation individual involved with a of lib significant Addington Texas, erty See, or . . . v. stigma. e.g., [441 418, 424, 1804, U.S. 99 S. Ct. 60 L. Ed. 2d 323 (1979)] Woodby [Immigration & Natu v. (civil commitment); Service, ralization 276, 285, 483, 385 U.S. 87 S. Ct. 17 Chaunt v. United L. Ed. 2d 362 (1966)] (deportation); States, S. Ct. 5 L. Ed. 2d 350, 147, 364 U.S. 353 [81 v. United (denaturalization); Schneiderman (1960) 120] States, 118, 125, 1333, 320 159 S. Ct. 87 L. U.S. [63 omitted; Ed. (1943) (denaturalization).” (Citations 1796] Santosky Kramer, quotation internal marks v. omitted.) supra, 756-57. majority process of the

I with the that the nature agree turns on the proceeding due in a third “the of the three distinct factors: balancing following by affected the risk of private proceeding; interests by procedure; chosen and the error created [s]tate’s of supporting interest use countervailing governmental 114 Id., 754. those procedure.”12 Applying

the challenged 12 stake, many significance recognition at states of the interest proof apply convincing and burden of to a contest between the clear judicial policy. See, legislative a a and a third as matter of Comp. (2005); e.g., (B) (2007); § § 25-415 Mich. Laws 722.25 Ariz. Rev. Stat. (2006); (6) (7) (2006); § N.M. Stat. Ann. 40-10B-8 § Minn. Stat. 257C.03 and McTaggart, 1078, 1079 (B) (2004); Va. Ann. 20-124.2 Evans v. 88 P.3d Code Calle, 988, (Fla. App. 1993); 2004); (Alaska v. 625 2d 990 Clark v. Calle So. Guardianship Wade, 587, 587-88, (2001); In re 273 Ga. 544 S.E.2d 99 of B.H., 283, 2002); Guardianship D.J., (Ind. In re 268 Neb. 770 N.E.2d 287 of Nelson, 235, 249, 239, 247-49, (2004); v. 682 N.W.2d 238 Watkins 163 N.J. part concurring (2000). I further in II B of this 748 A.2d 558 As discuss opinion, legislature also has determined that the clear the Connecticut petition convincing proof applies a to remove a as burden of only proceeding guardian, in which a other than a dissolution action party may custody. seek Only however, question courts, have of what burden a few addressed among proof process. is mandated due There is no clear consensus of summarily courts, and, matter, general the courts have reasoned those proof heightened is mandated because of the either that the burden of stake; see, e.g., significance In the Matter of the constitutional interest at 2-950, Guardianship Blair, Appeals, WL Court of Docket No. 2003 of of January 29, Jones, 990, 2003); (Iowa v. 2d 994 182981at *5 Pittman 559 So. 1990); (La. App.), denied, (La. & So. 2d 451 In the Matter R.A. cert. 565 of J.M., 82, 98-101, 104, (2005); In R. A. & 153 N.H. 891 A.2d 564 the Matter of Js., part dissenting J.M., supra, Galway, concurring (Nadeau 110 Hawks, App. 426, 428-29, (2005); part); 170 613 S.E.2d 40 Bennett v. N.C. Paquette Paquette, Ray Ray, 726, (Term. App. 2001); v. 146 83 S.W.3d 733 permissible 83, 92, 499 (1985);or that the lesser burden is because Vt. A.2d 23 necessarily permanent deprivation of that an award of is not 708, Custody A.D.C., (Colo. App. 1998); In re 969 P.2d interest. See of Guardianship Doe, 75, 77-79, (App. 2004); 106 Haw. 101 P.3d 684 In re Barros, 402, (N.D. 2005); Guardianship 701 N.W.2d In the In re Winczewski, App. 667, n.30, Marriage 72 P.3d 188 Or. Matter of J., denied, (2003) (Deits, concurring), review 337 Or. 99 P.3d 291 Marriage Winczewski, supra, (Brewer, (2004); 758 n.4 In the Matter J., only question length dissenting). The court to consider this at and to by prescribed inquiry apply expressly factors for such an the all of the Kramer, 754, Supreme Santosky supra, States Court in v. 455 U.S. United Maryland Appeals, application which concluded that of is the Court of process. Shurupoff v. preponderance standard did not violate due See 660, reasoning Vockroth, (2003). A.2d I do not find the 372 Md. Shurupoff persuasive, however, principally because the court therein of majority present case, relies, on the fact that an award as does the id., equivalent parental rights. 656-57. is not to termination of See of Santosky proposition preponderance to stand for the that the I do not read held Supreme Court States factors, the United three convincing the clear mandates process that due terminate in a to proof proceeding of burden held that due contrast, this court Id., By 768-69. rights. preponder- by application not violated process is by petition either a standard to of the evidence ance child; In re Juvenile custody of a temporary for the state by the 295; petition supra, 189 Conn. (83-CD), Appeal for or uncared neglected, a child adjudicate state Appeal (84-AB), In re Juvenile dependent; Roth for visitation. petition 263; party or a third Conn. gauge 231. In order supra, 259 Conn. Weston, v. case, I con- present in the process due requirements of within falls petition where a third sider put question precedent. To of this spectrum the nature of briefly summarizing I context, begin cases, reasoning and the at issue in these proceedings applied therein. proof particular burden for the summary or ex may seek a Connecticut, the state custody when: temporary order for immediate parte injury physical serious suffering is from a child (1) physical immediate or is in physical illness or serious immediate (2) surroundings; from his danger necessary to ensure from the home is removal 17-38a In re safety. (e); General Statutes § child’s See 288-89 supra, 189 Conn. Appeal (83-CD), Juvenile may any deprivation constitutionally applied proof short be burden parental rights. complete For the reasons set and final destruction disagree concurring opinion, part I also with the concern IIC of this forth in majority opinion shares, by Maryland Appeals, which the voiced Court of parental] presumption proof rebutting for that “if the standard [the Id., high, will suffer.” 658. it well be the child who too majority that, relies on dicta Lehrer note to extent that the I also proposition 232, 238, (1990), Davis, 571 A.2d 691 214 Conn. proof already standard of would be has concluded that a lesser this court majority again appears constitutionally permissible, an anachro- to take family autonomy, unwilling intervention into nistic view of third of its recognize on this court’s reevaluation the watershed effect of Troxel jurisprudence in this area. 46b-129 to authorize immediate (construing § [b] only under same circumstances removal of child removal from the home 17-38a When immediate [e]). § may necessary, is not but the child nonetheless be dependent, uncared for or the state initiates neglected, petition adjudicate the child’s status and to determine disposition appropriate. what General Statutes 46a- § options available to the court (a). Disposition range supervised unsupervised parental from or cus- ordering department the child to the of chil- tody, committing a specified period dren and families (department) personal custody care and time, vesting child’s person to a suitable third General Statutes agency. depart- 46a-129 If the child is committed to the (j). § ment, thereafter seek to continue the the state placement, to return the child to the or to termi- parental nate General Statutes 17a-llla and rights. §§ parental rights 46b-129 The termination of sev- (k) (2). parent and child. permanently legal ers ties between (8) ‘[tjermination See General Statutes 45a-707 (“ parental complete means the severance court rights’ with all legal relationship, rights order of the its responsibilities, par- between the child the child’s parents adoption ent or so that the child is free for except it shall not affect the of inheritance of the right religious child”). child or the affiliation Santosky Kramer, 455 U.S. Accordingly, Supreme Court determined that clear and con- required to terminate vincing proof rights was principally because the state’s action resulted in the parent’s final and irrevocable destruction of the funda- and numerous considerations combined right mental deprivation the risk of erroneous of that magnify subjective applied by standards are right: imprecise usually court; resources available to the state litigation protections and no are avail- parents; dwarf those of the repeated Id., By to bar termination efforts. 762-64. able the prepon- that court determined contrast, when this adequate for constitutionally was derance standard the petitions, neglect orders and temporary safety of the child’s emphasized: that the interests court autonomy if family’s justify intervention the would of suffering, imminent risk suffering, was or at the child disposition harm; the court had physical that serious the parent’s the child from options removing short of final decision was neither custody; and that the court’s via subject change was because it nor irrevocable In re prescribed stages of review. statutorily numerous 263-64; In 192 Conn. Appeal supra, (84-AB), Juvenile 287-88, 189 Conn. Appeal (83-CD), supra, re Juvenile mind, I to the three With turn background 291. this custody. of third Sanlosky factors in the context A “[wjhether factor, question first Under the by particular type proceeding a is loss threatened cer- average warrant more than sufficiently grave to on tainty part factfinder turns both on the of the private perma- interest threatened and the nature v. nency Santosky Kramer, loss.” the threatened fundamental, constitutional supra, U.S. 758. The when a is dimension of the interest at stake child parent’s custody removed from a well established. plain beyond multiple the need for citation that “[I]t [is] parent’s companion- right a natural desire for or care, management of his her chil- ship, custody, any precious property dren is an far than interest more Id., 758-59; marks right.” (Internal quotation omitted.) Appeal (83-CD), supra, In re Juvenile 189 Conn. accord I part concurring opinion, 284. As have noted in I of this broadly framed, more is rec- interest, the constitutional family integrity family autonomy ognized right collectively by parent is held and child. See Pamela B. 310. Ment, supra, Conn.

Although implicates also proceeding interest, safety another child’s and well- Appeal re (83-CD), Juvenile see being; I 287; interest, Conn. address that to the extent that it family conflicts with child’s interest in maintaining Santosky integrity, when analyzing factor in a countervailing proof. interest lesser burden of I juncture, my underscore this however, at disagreement appears equivalent with what be weight given majority safety the child’s interest (or more accurately majority’s standard, under the the child’s protected interest in from being any degree of harm) the family and constitutional parent interests the As previously, authority unit. noted the given absence of holding safety equal that the child’s interest general is of constitutional dimension to the interest child’s in main family taining integrity unit and to the parent’s DeShaney Winnebago County Dept. v. Social rights; Services, supra, T. v. Teresa 201; see Ragaglia, U.S. n.16; I Conn. would conclude that the rights paramount constitutional should be the concern the proper See San proof. burden of determining tosky Kramer, supra, 455 U.S. 760-61 the fact- (“At finding, a presume cannot child his [s]tate parents are adversaries. the [sjtate After has established parental unfitness at that initial proceeding, the court may dispositional assume at the stage that the interests parents of the child natural do . . . diverge. until proves But unfitness, the child [s]tate parents and his share a vital interest in erro preventing neous relationship. Thus, termination their natural the factfinding, at the interests of the child and his parents natural coincide to favor use of error-reducing omitted.]); see also In re Juve procedures.” [Citation Appeal nile (83-CD), supra, 287 (state’s interest safety only child’s paramount becomes when serious physical injury or illness is found or when immediate is physical danger present). is it clear deprivation, extent of

Turning custody petition does third a successful parental rights nor parent a of all necessarily deprive Nonetheless, explained custody permanently. contrasting when concurring opinion I part of this that of a petition with a visitation effect of deprived of period parent that a during the petition, child her vis-á-vis the custody, rights full his or of a whose to those substantial similarities bear Indeed, an award of cus- been terminated. rights have irreparably. As family tody integrity can undermine of full to a previously, an award emphasized deprives parent of the most essential third parenthood make decisions right attributes —the development, determining child’s such as affecting associations, and medical treat- the child’s education beliefs and religious ment and the to inculcate right v. Yoder, supra, Wisconsin 406 U.S. moral values. See supra, 259 Conn. 216-17. 232-33; Weston, Roth v. clearly demonstrates, Indeed, present as the case party custody petition may not granting court any authority decision-making leave the not respect child, may meaning- with and order ful visitation.13 tempo- that even a Supreme recognized Court has require

rary right may a a deprivation of constitutional proof to burden of assure the correctness heightened Santosky Kramer, supra, See v. 455 judgment. of Addington v. Indeed, U.S. 759. the court’s decision Texas, 422, in which the court deter- supra, 441 U.S. 13 order, present case, no In the under the trial court’s the defendant has authority major life, any affecting his render decisions on events child’s to aunt, only intervening paternal Husaluk, right of consultation with authority final in whom court on all such matters. vested Although during her 1he court ordered that the child return to Connecticut only school, provides “encouraged” that she is be breaks from the order to spend equal parents that to visitation time with her she decline to stay overnight with the defendant.

120 mined that the clear and convincing burden was required in a civil commitment one proceeding, such example. As a result of that proceeding, appellant involuntarily had been committed to a state mental hospital for an period. Id., indefinite 420-21. The court heightened required concluded that burden was even though, law, appellant under Texas had the treatment, periodic of right condition, review his when immediate release he no longer was deemed to danger be a to himself or to Id., others. 422. court depriva-

This has understood a temporary parent’s a tion of constitutional right to care and cus- tody his or her child rise to a gives risk such irreparable harm it interlocutory has deemed pur- orders that interest final affecting judgments poses Sweeney Sweeney, 271 Conn. appeal. See v. 193, 208-10, 856 A.2d (pendente 997 lite order (2004) to religious related and educational of minor upbringing re F., Shamika 405-406, child); 383, Conn. temporary A.2d 347 (2001) (order custody pursuant Bettcher, v. neglect statute); 380, 243 Conn. Taff 386-87, 703 A.2d 759 (1997) (judicially imposed one year ban on review of and visitation issues); Madigan Madigan, 224 Conn. 756-58, A.2d physical (1993) (order temporary custody in explained respect dissolution As this court action). with year parties to a court order a one imposing filing ban on action, “may a dissolution such an order interfere parent’s rights period custodial over significant in a manner that be cannot redressed at a later time. A opportunity spend lost significant time with one’s Any . . child is recoverable. . chance the non- custodial to restructure and visitation relationship to enhance the or further establish a foun- replaced by dation in that interval cannot be a subse- quent year any modification one later. Nor can harm to the child caused the custodial be arrangement it year (Cita- occurs.” addressed one after meaningfully Indeed, 387. this Bettcher, supra, omitted.) Taffy. tion while the recognized that actions undertaken court has custody may have parent’s removed from the child is parent-child and the effect on the child long lasting a parental if thereafter relationship even 211. Sweeney Sweeney, supra, v. See restored.14 may to a seek regain the fact that later Thus, of the judg motion for modification custody by a filing substantively the constitutional not dimmish ment does at deprivation of the interest stake. the significance preponder that the lesser this court determined Indeed, proceedings for permissible neglect burden was ance options available to dispositional part in because in parent’s keeping included child the court supra, 192 Appeal (84-AB), In re custody. Juvenile Appeal supra, 189 263; (83-CD), In re Juvenile Conn. in first favor Accordingly, weighs 288. factor Conn. standard of the convincing of the clear and heightened proof. burden of recently explained Sweeney Sweeney, supra, As this court permitting a to wherein at issue was an order minor child attend Conn. parent’s opportunity parochial against “The lost to a school one wishes: exposed only religious a to influences sanctioned

have child academic any by joint replaced by subsequent legal court a custodian cannot be order. pendente may parental right Moreover, impact this over such a lite order time, increasing significant period of with harm to the interest a exponentially spends more in the as the minor child time educational institu parent modify Subsequent attempts by aggrieved at an such tion issue. may adequate pendente a lite order also not be an substitute vindication parent’s Finally, pendente rights through appeal. an lite order such subsequent may spillover regard this result effect with decisions Charged with enrollment of the minor child. the determination related child, in the the trial court as to what is best interests of minor instability daily degree life later be reluctant create a child, adversely impact personal minor bonds created teachers classmates, by ordering the the minor child to another transfer of educational institution.”

B to the second Turning factor, “we next must consider both deprivation the risk of erroneous of private inter- ests from use of a ‘fair resulting preponderance’ stan- dard and the likelihood that a higher evidentiary . . standard would reduce that risk. . Since the [third party] proceeding adversary is an contest between the the . . . party] parents, the relevant question [third is preponderance fairly whether a standard allocates the risk of an erroneous factfinding between these two parties.” (Citation Santosky v. omitted.) Kramer, supra, 455 U.S. 761.

Santosky specific raised some concerns as to the risk deprivation of erroneous in a termination proceeding. One of concerns, these the imbalance of resources to action, is litigate implicated in a meaningful way when the state not a to the proceeding. always Private litigants they face the risk that may have to defend against with greater resources. Other concerns raised in Santosky, however, implicated are in the I present explained part case. As have I of this opinion, the concurring detriment standard adopted by the majority adjudication leaves the unusually open subjective Indeed, values of the judge. this court has problems such recognized that arise even under the more specific neglected, dependent and uncared for standard under 46b-120 and §§ 46b-129. See In re Juve- Appeal nile (83-CD), supra, 189 Conn. 292 (“[petitions temporary custody and for neglect orders, like the petitions to terminate . . . particu- are rights larly to the risk or vulnerable social judges workers will consciously be tempted, unconsciously, to com- pare unfavorably the material advantages of the child’s natural parents with those of prospective adoptive par- ents parents]” omitted; foster quo- internal [or [citations tation subjectivity marks This omitted]). is magnified when these standards applied are a third party cus- the concomitant the court lacks tody petition because neglect the state initiates a it has when obligation the that specific the deficiencies petition to delineate custody. See General remedy regain must to (b) (d). and Statutes 46b-129 § is there proceedings, as in termination

Additionally, protect doctrinal bar to no other jeopardy double repeated relitigate efforts to party’s from a third 574, Minnich, v. 483 U.S. custody Cf. Rivera the issue. (concluding 97 L. Ed. 2d 473 3001, (1987) S. Ct. 582, 107 in favor finality paternity weighs in suit judgment a third can standard). Although of preponderance controversy before an only existing intervene in is uncom 46b-57; see it not court; the General Statutes such to come before for numerous controversies mon v. years.15 See, period e.g., over a the court Taff dissolu 243 Conn. 382-83 1994 Bettcher, supra, (after filed to cus relating tion defendant motions judgment, Janik, in and v. tody 1996); and visitation 1995 Janik 763 65 App. 175, 176-77, (2000) (after 61 Conn. A.2d modify judgment, plaintiff dissolution moved to 1995 940, 255 denied, in cert. Conn. 1998), 1997 see v. Conn. Strobel, 768 A.2d 949 also Strobel 92 (2001); years 662, A.2d since App. 663, (2005) (in eight 886 865 plaintiff motions, father filed action, dissolution had 111 Berglass mother had filed 119 motions); and defendant 771, v. Conn. A.2d Berglass, App. 774, (2002) 889 15Thus, majority’s disagree logic as a of fact I both matter 46b-57, proof “§ contention that lesser standard of warranted because statute, permits only third intervention in an unlike visitation appears existing controversy reasoning This resurrect before court.” logic rejected Weston, precise supra, court v. 259 Conn. that this Roth Castagno, previously 212, holding when it wherein this court overruled remedy by attempted construing § 46b- had constitutional concerns jurisdiction petition visitation 59 “to afford trial court entertain a family disrupted only life has in a manner when the minor child’s been analogous §§ addressed 46b-56 situations [the statutes] Castagno Wholean, 352. and 46b-57.” Conn.

(in years prior two to 1998 judgment dissolution, there were 124 entries; docket during postjudgment years of 1998 and forty-six there were entries).

Other concerns that were not implicated in Santosky, however, party custody arise proceedings demonstrate that preponderance standard creates a substantial risk of erroneous deprivation of the right family Specifically, integrity. this court con- although adjudication cluded that an of neglect, uncared for or dependent under requires 46b-120 and 46b-129 only §§ proof by a preponderance of the evidence, the different effect of, protections attendant to, that state initi- ated proceeding why underscores preponderance standard is inadequate prevent to error in custody petitions.

First, adyudication a neglect under 46b-129 does not § necessarily result in an order depriving parent the custody, a factor that we have constitutionally deemed Appeal In re Juvenile significant. See, e.g., (84-AB), In Appeal re Juvenile 261; 192 Conn. (83-CD), supra, 189 Conn. 288. If the facts prefer demand the less option able the child from removing home, the the focus of the subsequent state’s efforts disposi to that tion is to enhance the possibility of reunification of the family. See General In re Devon 17a-111b; Statutes § B., 572, 264 Conn. 581-82, 584, 825 A.2d 127 (2003); Appeal re Juvenile (84-AB), supra, 258. There are procedural protections numerous prescribed to meet that goal. See generally Practice Book c. 32a (setting parties forth rights to neglect pro and termination Practice ceedings); Book c. 35a (prescribing procedures for hearing concerning neglected, uncared for and dependent The children). provide court must parent specific steps he or she must take in order to custody. regain General Statutes 46b-129 (b) (d); § In re Ebony H., 68 Conn. App. 342, 344, 789 see, e.g., A.2d 1158 (2002). provides The court also to depart- the

125 provide must to the steps that it take specific ment the necessary reasonably to parent support services 46b-129 § reunification. General Statutes accomplish J., B., supra, (Zarella, In re see Devon (b) (d); provisions of 46b-129 ‘specific steps’ § (“the dissenting) on parent instruct the purposes: first, have two to engage in which he or she must specific conduct satisfy petitioner and trial court that order to parent ensure that and, second, he or is a fit she reasonably facilitate, does can to petitioner what it Indeed, this impede, reunification”). rather than may use recently recognized court that the courts their power department contempt civil to ensure that are on obligations, predicated meets which these S., at stake. See In re Leah constitutional interests 696-97, The (2007). Conn. 935 A.2d decision deprive subject specified, is periodic judicial department to ensure that the review goal.16 reasonable efforts to advance this See making Finally, (b), (j) (k). General Statutes 46b-129 these is entitled to throughout proceedings, court, sixty days parte issuing an ex must within after determine department’s custody temporary committing the child to order keep parent department has whether the made reasonable efforts to prior with the to the of the General Statutes child issuance court’s order. commitment, Q). (b) § and Nine months after an order of commis 46b-129 (commissioner) for sioner of children and families must file a motion review permanency plan (k) (1). § of a for the 46b-129 The child. General Statutes family permanency plan reunification, recommend with or without supervision. (k) (2) (B). months § General Statutes 46b-129 Nine after the permanency plan approved, is the commissioner must file a motion for ninety days plan, hearing review and a be held of the must within after the (k) (1). permanency § motion is filed. General Statutes 46b-129 After an initial least, hearing, subsequent, permanency every hearings must be held at twelve custody long department. months as the child remains in General as obligation (k) (1). Statutes § 46b-129 The commissioner can avoid its to reunify by parent determines, with the if the court clear and the child evidence, subjected convincing parent to has the child certain circumstances, aggravated physical or General such as sexual abuse. Stat (b). § utes 17a-111b

appointed counsel if he or she cannot afford one. Gen- eral Statutes 46b-129 (b) (d), (b). §§ 46b-135

By contrast, party custody petition, in a third the sole relief sought initiating proceeding parent’s custody. to remove the child from the Neither any the state nor third has to aid in obligation family. the reunification of the The is not entitled procedural protections to which he or she would state, have been entitled had the rather than party, alleged that the child was for neglected, uncared dependent.17 This has protections court cited such significant determining process whether due has Appeal been satisfied. See In re Juvenile (84-AB), 263-64; Appeal (83- 192 Conn. In re Juvenile CD), supra, 288-91, 299-300; 189 Conn. see also In re B., supra, Devon (Zarella, J., Conn. 589 dissenting) (“[t]hese provisions are to ensure that designed [the] department ‘appropriate takes measures ... to secure reunification of and child’ ... so that family the parent’s right fundamental is not integrity procedural pro- violated” omitted]). Although [citation necessarily tections will not obviate the need for a heightened proof; burden of see, e.g., Santosky v. 17 majority points chapter The 25 of the Practice Book and asserts that “many process protections chapters of the due 32a and 35a of the Practice parents neglect proceeding, Book accorded the of a child in a or termination including right provided hearing, proceeding.” to a are in a Chapter not, however, provide appointment 25 does for of counsel for parents custody. contesting provides appointment It of counsel for the child; 25-24; appointment contempt § minor Practice Book of counsel in civil family proceedings matters; 25-63; appoint § related to Practice Book paternity 25-68; ment of counsel in state initiated actions. Practice Book Foster, App. 311, 320, 853 see also Foster v. (2004) (parent 84 Conn. A.2d 588 right proceedings). has no constitutional counsel or visitation majority posits broadly phrased permissive provi- also that certain practice applicable sions of our General Statutes and rules of “might” prompt specific steps a trial court to issue to aid reunification following party custody. is, however, efforts an order of third There no mandate to do so. pro- (citing procedural 748-49

Kramer, supra, U.S. permanent neglect York’s provided under New tections protections weigh of such does the absence statutes); the risk proof a burden of that decreases in favor of of error. possible fact that one dis- majority points

The vesting is an order under our statutes position neglect worthy” person; see custody in a third “suitable that, 46b-129 and rationalizes (j); § General Statutes peri- opinion in a 1985 this court had held because required in such circum- judicial review is not odic 195 Conn. stances; Appeal (85-BC), see In re Juvenile pro- A.2d the absence of such 344, 361, (1985); the issue before us. should not bear on tections never appellate assumes much. Our courts majority too a court is authorized under have considered whether directly a statute to vest adjudication neglect providing an without following protections prescribed otherwise under procedural 46b-129, nor have our courts considered whether § application procedural of those constitution mandates from the protections even if the child transferred custody of the commissioner of children and families party. to a third In re Juvenile (commissioner) 345-48, simply Appeal (85-BC), the court question “whether, under ... 46b- addressed petition the commissioner . . . must to extend children, minor who commitment of of two adjudicated been when their neglected, had but sub- was committed to the commissioner originally sequently paternal grand- had been transferred to their case, pure . . . .’’In the court mother considered its question statutory construction, expressly basing requires on the fact that the statute a motion conclusion only to extend commitment when the commissioner emphasized custody, assumes and the court certain case, namely, that the particular “critical” facts custody of the children had been transferred from the commissioner to the fifteen months after grandparents petition had filed a neglect eight the commissioner months after the court had committed the children to Id., the commissioner. 349-50. The court never stated that reunification efforts and the attendant measures if required are not a court vests in a third adjudication an following neglect. only

Notably, other mechanism available to a deprive parent by a seeking way application parent of an to have the removed as See General Statutes 45a-610.18Guardian- guardian. § provides: General Statutes 45a-610 “If the Court of Probate finds that filed, given provided been or a waiver has as notice has been section 45a-609, may parent guardian, by it remove a as if the court finds clear and convincing following: (1) parent evidence one of the consents to his guardian; (2) by or her removal as or the minor child has been abandoned parent parent in the sense that the has failed to a maintain reasonable interest, degree responsibility welfare; concern or for the minor child’s care, necessary (3) guidance or the minor child has been denied the or control physical, educational, well-being, for his or her moral or emotional as a parental omission, result of acts of commission or whether the acts are the physical incapability parent result of or mental or conditions parental habits, neglect, attributable to misconduct or and the acts support exercise, or deficiencies the conclusion that the cannot or permitted exercise, should not in the best interests of the minor child be time; parental rights (4) physical and duties at the or the minor child has had injury injuries by person responsible upon or a inflicted the minor child health, care, by person given such child’s welfare or or a access to such by person, by means, responsible child such other than accidental or has injuries history given which are at variance of them or is as, to, condition which is the result of maltreatment such but not limited malnutrition, molestation, deprivation necessities, sexual emotional mal punishment; (5) treatment or cruel the minor child has been found to neglected for, If, be or uncared as defined in section 46b-120. after removal section, guardian guardian minor under this child has no person, guardian may appointed provisions of his or her such a be under the Upon appointing of section 45a-616. the issuance of an order the Commis guardian child, sioner of Children and Families as of the minor or not later sixty days order, than after the issuance of such the court shall make Department a determination whether the of Children and Families made keep parents prior reasonable efforts to the minor child with his or her and, made, the issuance of such order if such efforts were not whether such physical legal bears substantial similarities ship Appeal (85-BC), custody. See In re Juvenile custody-guardian- of a ultimate effect (“the Conn. 365 in a ‘suitable Superior Court ship vested may be pursuant (j)] 46b-129 worthy’ party [§ by appointment guard- an to that rendered identical see also General by Court”); made the Probate ianship means guard- (4) (“ ‘[gjuardianship’ Statutes 45a-707 § of a specified, person of the ianship, unless otherwise control, of care and obligation minor and refers to the to make duty authority right welfare, including, the minor’s major affecting decisions determinations to, regarding but not limited consent major in the armed forces and marriage, enlistment Just as a medical, psychiatric surgical treatment”). may a motion parent regain through seek to seek to be reinstated as modification, for General Statutes 45a-611. A third guardian. § See petition must fall guardianship via seeking persons within a limited class of Gen- granted standing; 45a-614; prove eral Statutes and must harm akin to § required under the statute. See footnote 18 neglect however, opinion. party, of this The third concurring prove requisite harm clear and convincing must if Accordingly, evidence. General Statutes 45a-610. preponderance apply standard were to to a third party custody petition, deprivation the risk of erroneous parental custody would be than if the state greater proceeding, prepon- had initiated a wherein the neglect applies derance burden but the receives substan- procedural protections, tial than if a third greater wherein guardianship proceeding, had initiated a possible, taking reasonable efforts were not into consideration the minor safety.” interests, including child’s best the minor child’s health and indicates, appointed guardian, As the statute if the commissioner private party, department obligation to make rather than a still has the reunify family, possible. reasonable efforts to if procedural fewer applies burden but the heightened provided.19 are protections stake, interests at private weight

“Given the error is sizable. Rais- of even occasional the social cost practical would have both proof standard of ing Texas, Addington consequences. Cf. symbolic .and long Court has [Supreme] [supra, U.S. 426]. used in proof standard of heightened considered instrument prime to be ‘a prosecutions criminal on factual error.’ resting of convictions the risk reducing L. 90 S. Ct. Winship, In re [358, 363, U.S. . . . proof standard of An elevated (1970)]. Ed. 2d 368 might risk that a factfinder possible alleviate ‘the would solely on a few an individual based [deprive] decide to . . . idio- conduct instances of unusual isolated [or] Texas, [supra, Addington v. syncratic behavior.’ 427]. way impress proof is one the burden of ‘Increasing the decision and importance with the the factfinder inappropri- the chances that thereby perhaps to reduce custody] will be ordered.” [deprivations ate’ Accord- Santosky Kramer, supra, 455 U.S. 764-65. v. in favor of the clear factor weighs the second ingly, proof. burden of convincing C factor, countervailing I turn to the third Finally, challenged use of the supporting interest governmental Santosky Kramer, U.S. procedure. here: “a that also are relevant identified two interests preserving promoting in parens patriae interest and a fiscal and administrative of the child welfare pro- and burden of such reducing the cost interest proceeding. appointed guardianship counsel in a is entitled to party, (Jo). commissioner, If rather than a § 45a-609 General Statutes appointed guardian, whether reasonable as the court must determine is keep court issued child with the before the efforts were made to Statutes 45a-610. the order. General prepon- more strict than proof A standard of

ceedings. consistent with both derance of the evidence is interests.”20 is not a to a third the state

Although of the substantial relation proceeding, light I would ship party, that must be established the third custody dispute in a party intervening view the third the state’s interest representing protecting concluded, however, welfare. This court has that child’s only physical when harm or immediate it is serious no present, longer “that the child’s interest danger parent, thereby diminishing coincides with that of the parent’s family magnitude right integrity parens . . . and therefore the state’s intervention as necessary the child becomes so patriae protect paramount.” it can be considered (Citation omitted.) Appeal (83-CD), supra, re Juvenile 189 Conn. 287-88. family Moreover, integ the child’s interests in although rity equipoise pro and his welfare are in in a neglect Appeal (84-AB), supra, In re Juvenile ceeding; 263-64; Conn. that balance exists because the court disposition options has available to it a range directly parent’s correlate to the risk to the child and the ability Thus, neglect to meet the child’s needs. under our statutes, even a child has been found to be though dependent, proper disposi uncared for or neglected, keep family tion nonetheless be to the unit intact. Id., Indeed, process requires steps 263. due short possible preference be undertaken when in removal family Appeal to the In re disturbing integrity. Juvenile supra, 288; Ment, supra, see also Pamela B. v. (83-CD), physical 244 Conn. 313 a child’s and emo- (“[although contrary Thus, majority’s statement, Supreme recog to the Court parent’s proceed nized that more than the interest is at in stake termination ings, specifically, welfare, the child’s but nonetheless concluded that the interest, might diverge parent’s interest, child’s to the extent that it from the adequately protected by heightened proof. was burden of preserving well-being outweighs interest in

tional family disruption family integrity, of a child’s beyond what is extended should not be environment preserve safeguard unequivocally needed to interests”). dual interests The child’s child’s best equi- family personal integrity not in welfare are poise, a third seeks however, when only party petition can result because a successful even in the absence child and does so in removal of the danger the child. imminent protecting welfare does the child’s The interest proof. preponderance burden of mandate the lesser by preponder- proof a in which there is In the rare case convincing clear and evi- evidence, but not ance of the party custody petition denial of the third dence, that child, harm to the in real and substantial would result protect authority to take action to the court still has department bring the into The court could the child. supervised and either order the action department. doing, so or commit the child procedural panoply trigger the full of the court would pro- proceedings protections neglect attendant majority’s family integrity. that our concern mote remedial action to ensure courts would not take trial oversight rare case wherein of the child some by preponderance petitioner proved of the has convincing evidence, that but not clear and evidence, quite simply, unfair is, harm a child is at risk of serious full faith that our trial courts trial courts. I have to our way be should such case would not look the other application heightened presented. burden Thus, custody petitions prevent proof would to third family autonomy deprivation without the erroneous exposed increasing the child could be the risk that supra, 483 U.S. Minnich, Cf. Rivera v. serious harm. preponderance (Concluding was standard that the principal proper paternity adver- suit the because “in a father, each of putative mother and saries are the important, but nevertheless extremely an whom has in the outcome. Each would relatively interest equal, way consequences of an adverse in suffer a similar share appropriate roughly each ruling; thus, it determina- of an inaccurate factual equally the risk proof of burden Accordingly, heightened tion.”). family integrity both properly balances interests safety. and the child’s Santosky Kramer,

As the court noted in has [sjtate urgent an interest 766-67, “[sjince U.S. parent’s it shares the interest child, in the welfare of the factfinding pro- at just in an and decision accurate is to parens patriae, [sjtate’s goal ... As ceeding. . . . permanent with a home. Yet provide the child nurtur- positive, while there is still reason to believe that exist, patriae parent-child relationships parens ing preservation, severance, interest of natural favors . . no [sjtate registers familial . gain bonds. [T]he separates when it goals towards its declared children parents.” (Citations omitted; from the of fit quotation omitted.) internal marks Finally, I note that the state’s administrative fiscal burdens do not in favor of the lesser burden weigh also particular family proof. judges, of Our trial court application in the judges, are well versed clear convincing standard numerous other contexts. 17a-78 See, e.g., (hospi General Statutes and 17a-80 §§ talization of child mental General Stat disorder); 17a-111b, utes 17a-112 and 45a-717 (termination §§ Statutes rights); (removal § General 45a-610 General guardian); § Statutes 45a-650 General Statutes (appointment conservator); § 45a- mentally (appointment plenary guardian Statutes person); (termina retarded General 46b-129 duty to make department’s tion reasonable efforts reunify family). the three Balancing factors, aforementioned the logi- cal process requires conclusion is that due application of the clear and convincing proof. burden of “The rea- son for this adopting heightened proof burden of custody disputes between a biological parent and a third is the same as the reason for a adopting heightened standard termination of parental rights cases. The state and federal require constitutions a heightened standard because of the possible effects the proceeding might have on a biological parent’s parent- prevent ... ing rights. To unwarranted termination or biological parent’s interference with a parenting rights, judicial grounds action must be established clear and . . . convincing evidence. Evidence that sat- isfies heightened proof this burden of any eliminates serious or substantial doubt concerning correctness of the conclusion to be drawn from the evidence .... It produce should in the fact-finder’s mind a firm belief or conviction regarding the truth of the allegations to be (Citations omitted.) Ray sought established.” Ray, 83 S.W.3d 726, App. 733 (Term. 2001). Therefore, in accordance with this court’s obligation to construe statutes to avoid constitutional I defects, would con- clude that a seeking intervene must proceeding allege prove, by clear and convinc- ing relationship evidence: (1) the child that is parent-child similar to a relationship; (2) real and substantial harm to the child akin to that under 46b- §§ deny and 46b-129 should the petition. court respectfully I

Accordingly, concur in the judgment. notes The concurrence because temporary contemplated under the akin to that emotional harm namely, neglect statutes, would arise because the child harm that dependent; neglected, §§ and 46b- General Statutes 46b-120 uncared-for reasonably say parent’s competency 129; issue is not at “one cannot that the disagree. competence petitions.” to make We in visitation parent’s underlying directly implicate the does not a visitation decision Weston, (plaintiffs with the child. Cf. Roth v. relationship Conn. allege alleged but defen was in best interests of children did not visitation Consequently, suggestion parent). was the concurrence’s dant unfit questions custody petitions regarding raise similar visitation misunderstanding parental competency of the differ reflects a fundamental custody proceedings. in visitation and ent interests at stake the child to grant it would be “detrimental” to testamentary id., See 199. guardians. employed in testa- that the standard of detriment Noting imported mentary directly cases had been guardianship 201-202, Bristol v. 46b-56b; id., citing see from Brundage, App. 402, 406, (1991); 24 Conn. 589 A.2d ultimately “detriment be we determined that shown, just by unfitness of the testa- demonstrating mentary . . . but condi- guardian demonstrating or harmful injurious tions that would be damaging, S., supra, 207. the child.” re Joshua

Case Details

Case Name: Fish v. Fish

Court Name: Supreme Court of Connecticut

Date Published: Jan 15, 2008

Citation: 939 A.2d 1040

Docket Number: SC 17500

Court Abbreviation: Conn.