Lead Opinion
Opinion
In this postdissolution child custody proceeding, the issue before the court is whether a third party
“In May, 2002, [when the parties’ daughter was thirteen years old] the defendant . . . [filed] a motion to modify custody in which he sought sole custody of the child with supervised visitation by the plaintiff. The court entered orders for a custody evaluation and ordered that the child live for the remainder of the school year with her maternal aunt, Pamela Martinsen, who lives in Connecticut. The court also ordered that the child spend the summer of 2002 in Aspen, Colorado, with her paternal aunt, Husaluk. In early December, 2002, there was another flurry of activity involving custody and visitation. The court ordered the temporary placement of the child with Martinsen and unsupervised weekend visitation by the parties on rotating weekends. Four days later, following an emergency request by the guardian ad litem, the court modified the visitation order to reflect that the child could elect the extent and the circumstances of her visitation with the defendant.
“Trial in this matter began on December 13, 2002, and continued on March 3, April 21, May 12, 19 and 29, and July 8, 2003. During the course of the trial, the guardian ad litem recommended that custody and placement of the child with Husaluk in Aspen, Colorado, would be in the child’s best interest. The plaintiff, who had had a double mastectomy and was undergoing chemotherapy to treat her breast cancer throughout the trial, agreed with the guardian ad litem’s proposed orders. Both Husaluk and Martinsen filed motions to intervene during the course of the trial,
“With respect to the custody of the child and its reasons for awarding joint custody to the plaintiff and Husaluk, the court made exhaustive findings of fact, which we excerpt and summarize from its August 1, 2003 memorandum of decision. Since the dissolution of the parties’ marriage when the child was four years old, ‘she has been the subject of an intense battle between the two parents over their ownership rights in her. She has, by her own account, constantly been “put in the middle,” has been incessantly grilled by each parent after time spent with the other and has been bombarded by what she calls “guilt bombs” from each parent.’
“The court found that both parties had put their own interests before the child’s well-being. In addition, the court found that the defendant had failed to provide a clean and appropriate home for the child, demonstrated inappropriate behavior of a sexual nature in the child’s presence, kept a dangerous dog in his home and, in sum, had emotionally neglected the child. The court stated: ‘In the plaintiffs home, [the child] has had to endure her mother’s attempts to make her feel guilty over the time spent at the defendant’s home. In the defendant’s home, she has had to deal with her father’s incessant attempts to get her to his side. At his house, she also has been exposed to a filthy and unkempt environment, with multiple cats, cat feces and urine odors throughout the home.’
“The court also found that there was a history of conflict between the child and the defendant, and a history of inappropriate behavior by the defendant toward the child. For example, the court credited the child’s testimony that the defendant walked around the house with an open bathrobe exposing his genitals in her presence and that he joked about going to a nudist colony with her. The defendant also made other inappropriate and suggestive comments, including once suggesting at a mall that she wear a ‘see-through outfit.’ The child also testified that the defendant, when angered, lost control of himself entirely, striking himself and running up and down stairs. She also testified that the defendant drank wine almost every day and that alcohol rendered his moods unpredictable. The child was adamant in her desire not to stay at the defendant’s house overnight and expressed no desire to live with him.
“The court also found that after living with Martinsen and, later, Husaluk, the child had been away from her parents’ battles and had seen how other people live in relative peace and in a supportive and nurturing environment. Those experiences increased the child’s yearning for stability and calm in her family life, which she never had enjoyed with her parents. The court noted that, ‘[m]ost compelling, at one point during her testimony, the child asked the court to please emancipate her.’ The child’s aunts, Martinsen and Husaluk, impressed the court as loving and nurturing women who have helped the child ‘develop a voice for herself,’ which she had lacked while in her parents’ care. Martinsen, Husaluk, the plaintiff, the child and the guardian ad litem agreed that it was in the child’s best interest that she live with Husaluk in Aspen. While in Aspen the previous summer, the child thrived, working at the Husaluk family business, participating in sports and making new friends. The defendant, in contrast to the child’s aunts, refused to pay for the child’s airplane ticket for her trip home because the child had refused to stay overnight at his house. Husaluk paid for the ticket.
“The court concluded that ‘[i]t is clear . . . that there exists a deep antagonism between the two parents that has little to do with [the child], which has caused them to place their own needs ahead of their daughter’s. However, since the start of this case, the plaintiffs relationship with her daughter has improved considerably. She has come to realize that her daughter’s placement with [Husaluk] in Colorado for the next four years of high school is in the child’s best interest. Unfortunately, the same cannot be said of the defendant. He is a controlling individual who believes that he is the only one qualified to decide what is in [the child’s] best interest. . . . [H]e is incapable of working with the [plaintiff] or either of the aunts, including his own sister [Husaluk], to promote the child’s best interest. ... It is clear to this court that this child has been emotionally neglected by the defendant. He has had many opportunities and ample time to improve the condition of his home and has chosen not to. . . . The defendant does not hear his daughter and gives little credence to her opinions, ideas and needs. The court is persuaded that this fourteen year old is quite capable of making an intelligent, well thought out decision with respect to her living situation.’ ” Fish v. Fish,
In its subsequent orders, the court directed that the plaintiff and Husaluk consult with the defendant regarding “all major events affecting the child’s life,” with Husaluk having final decision-making authority. The court also directed that the child return to Connecticut for school vacations and for one month during the summer. The court further ordered: “It is . . . expected that when the child visits Connecticut, she shall be encouraged to spend equal time with each of her parents . . . . However, [due to] . . . concerns about the physical condition of the defendant’s home and the dog, it shall be the child’s decision whether she chooses to spend overnights with her father.” The court ordered the plaintiff and the defendant to share the cost of transporting the child to and from Connecticut and stated that “[t]here shall be reasonable telephone and e-mail contact between the child and her parents. It is hoped that both parents shall continue to have a full and active role in providing a sound ethical, economic, and educational environment for the child when she is in their care. . . . The parents shall exert their best efforts to work cooperatively with [Husaluk] to develop future plans for the child consistent with the best interests of the child and to amicably resolve such disputes as may arise from time to time.”
mount concern in Roth was the right of a fit parent to raise a child free from interference by others; id., 756; but that the principal concern in custody cases is the “best interest of the child.” (Internal quotation marks omitted.) Id., 757. The court thus concluded that, although “the defendant enjoys the rights of a parent recognized in Roth and other cases, the jurisdictional pleading requirements and heightened burden of persuasion of Roth, which are specific to cases involving third party petitions for visitation over the objection of a fit parent, are inapposite to this contested custody case . . . .” Id., 752. The Appellate Court finally observed that the trial court had determined that it was in the child’s best interest to award joint custody to the plaintiff and Husaluk pursuant to the governing custody statutes, namely, General Statutes §§ 46b-57,
In his appeal to this court, the defendant renews his claim that the trial court improperly failed to apply the visitation standard to Husaluk’s motion to intervene and to the modified award of custody. We agree with the defendant that third party custody decisions require the application of a standard more demanding than the “best
I
The trial court’s determination of the proper legal standard in any given case is a question of law subject to our plenaxy review. See, e.g., Hartford Courant Co. v. Freedom of Information Commission,
We begin our analysis by examining the reasoning in Roth, in which the trial court granted the petitioners, the maternal grandmother and maternal aunt, visitation with the defendant’s two minor children following their mother’s death. See Roth v. Weston, supra,
“Second, once these high jurisdictional hurdles have been overcome, the petitioner must prove these allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation. These requirements thus serve as the constitutionally mandated safeguards against unwarranted intrusions into a parent’s authority.” Roth v. Weston, supra,
The defendant’s claim that the trial court should have applied the heightened standard in Roth to Husaluk’s motion to intervene and to its custody award implies that the custody statutes are facially unconstitutional and that any lesser standard is insufficient to protect the 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 custody statutes to determine whether they provide fit parents who oppose third party custody petitions with sufficient protection to survive a constitutional challenge and, if not, whether § 46b-56b, in particular, should be subject to the same judicial gloss that we placed on the visitation statute at issue in Roth.
II
In discussing the constitutional basis for the protection of parental rights, the United States Supreme Court observed in Troxel that “[t]he liberty interest ... of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this [c]ourt. More than [seventy-five] years ago, in Meyer v. Nebraska,
Connecticut courts likewise have recognized the constitutionally protected right of parents to raise and care for their children. See, e.g., Denardo v. Bergamo,
Ill
We repeatedly have recognized that when “fundamental rights are implicated . . . standing serves a function beyond a mere jurisdictional prerequisite. It also ensures that the statutory scheme is narrowly tailored so that a person’s personal affairs are not needlessly intruded upon and interrupted by the trauma of litigation.”
The term “third party” is not defined in the foregoing statutes or in any other related statutes. The legislative history of the statutes sheds no additional light on the matter. As we stated in Castagno, “courts are bound to assume that the legislature intended, in enacting a particular law, to achieve its purpose in a manner which is both effective and constitutional. . . . [T]his presumption of constitutionality imposes upon the trial court, as well as this court, the duty to construe statutes, whenever possible, in a manner that comports with constitutional safeguards of liberty.” (Citation omitted; internal quotation marks omitted.) Castagno v. Wholean, supra,
When construing similarly broad language concerning third party visitation in Roth, we noted that the 1983 amendment to the visitation statute extending standing to “any person”;
“Therefore, we acknowledge that a person 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 not always translate into that relative having significant emotional ties with that child. Indeed, as § 46b-59 implicitly recognizes, it is not necessarily the biological aspect of the relationship that provides the basis for a legally cognizable interest. Rather, it is the nature of the relationship that determines standing.” (Citations omitted.) Id., 220-21.
We thus concluded in Roth that, “in light of the presumption of parental fitness under Troxel, parents should not be faced with unjustified intrusions into their decision-making in the absence of . . . proof of a [parent-like] relationship .... The extension of statutory rights to persons other than a child’s parents comes with an obvious cost. Troxel v. Granville, supra,
The relevant statutes concerning visitation and custody are overly broad in exactly the same fashion; they fail to define with particularity those persons who may seek visitation and custody other than parents. For this reason, as in the case of visitation, a literal application of the custody statutes could place them in “constitutional jeopardy.” Castagno v. Wholean, supra,
IV
A
We next consider the harm that a third party must allege and prove to intervene in a custody proceeding or that the trial court must find to justify a third party custody award over the objection of a fit parent. We first note that third party custody disputes differ from those in which both parents seek custody because, in the latter case, each party possesses a constitutionally protected parental right. See McDermott v. Dougherty,
“Where the dispute is between a fit parent and a private third party, however, both parties do not begin on equal footing in respect to rights to care, custody, and control of the children.
Mindful of the parent’s constitutional rights, we concluded in Roth that Connecticut’s third party visitation statute, without a judicial gloss, was unconstitutional and interfered with the fundamental right of parents to raise and care for their
The defendant nonetheless argues that the standard of harm articulated in Roth should apply in third party custody proceedings because Roth declared that “[visitation is a limited form of custody during the time the visitation rights are being exercised . . . .” (Internal quotation marks omitted.) Roth v. Weston, supra,
In addition, when this court had the opportunity to interpret the meaning of detriment to the child in a related context, it did not adopt a construction as restrictive as the standard of harm set forth in Roth. In In re Joshua S.,
Other jurisdictions that utilize the detriment to the child standard in deciding third party custody petitions also rely on a less restrictive interpretation of the concept so as to give the court sufficient flexibility and discretion to address the unique and complicated circumstances that distinguish such cases. See Turner v. Pannick,
A Louisiana appeals court construing former article 146 (B) of the Louisiana Civil Code, which provided that the court must find that parental custody would be detrimental to the child before awarding custody to a third party without parental consent, likewise declared that it was reasonable to assume that the legislature intended the standard to place greater emphasis on the welfare of the child and that the term detriment had been construed by other Louisiana courts as requiring a finding that that the child would experience “substantial harm” if returned to the parent. (Internal quotation marks omitted.) Pittman v. Jones,
When the California legislature enacted a similar statute providing that the court must “make a finding that an award of custody to a parent would be detrimental to the child”; (internal quotation marks omitted) In re B.G.,
Many of the same jurisdictions have cautioned, however, that third party custody awards should be granted only sparingly. In its subsequent interpretation of the statute, the California Supreme Court emphasized that, although the legislature had changed the parental preference doctrine
None of the foregoing jurisdictions has attempted to define detriment to the child more precisely, because to do so would limit a court’s ability to weigh and balance the numerous factors that a court ordinarily must consider in making a finding of harm. See, e.g., id., 698. Nevertheless, most jurisdictions that employ a broader standard have observed that third party custody awards should be exceptional in nature and that the concept of detriment involves a type of analysis qualitatively different from that involving the “best interests of the child,” a conclusion with which we agree. See, e.g., Evans v. McTaggart,
The legislative history of § 46b-56b also reveals that the General Assembly rejected the more explicit standard of harm required for removal of the parent as guardian, which is similar to the type of harm that must be demonstrated under the temporary custody and neglect statutes, so that the court may give more weight to the child’s welfare in determining whether a petitioner has rebutted the presumption in favor of parental custody.
In summary, we conclude that third party custody petitions challenge the liberty interest of a parent in a way that is fundamentally different from visitation petitions and that the judicial gloss we placed on the visitation statute in Roth should not be applied to § 46b-56b because it does not give adequate consideration to the welfare of the child, whose relationship with the parent is at issue in a custody proceeding because of its allegedly harmful effects. This is not the case in a visitation proceeding, in which the child’s relationship with the parent has not been placed in issue. The constitutional question in a third party custody proceeding therefore must be framed and resolved in a manner that respects parental rights but that also takes the child’s welfare more directly into account. Furthermore, the legislature, for all practical purposes, rejected the temporary custody and neglect standard that we adopted in Roth when it deleted language in the third party custody bill that limited the definition of harm to the harm required for removal of a natural parent as guardian. Accordingly, we conclude that the statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for
B
The concurrence makes numerous arguments, beyond those made by the defendant, as to why the foregoing standard is insufficient to protect the constitutional rights of parents whose ability to care for their children is directly challenged in third party custody proceedings. These arguments may be grouped into two general categories. Arguments falling within the first category assert that, because custody intrudes to a far greater extent than visitation on the constitutionally protected right of parents to raise and care for their children, as well as on the reciprocal right of parents and children to family autonomy or family integrity, third party custody determinations should not be made pursuant to a standard less demanding than the standard we articulated in Roth. A corollary of this argument is that the child’s right to protection does not rise to the level of a constitutional right equivalent to that of the parent unless the child’s safety is endangered. Arguments falling within the second category assert that the standard we have adopted is too open-ended and ambiguous, thus providing trial courts with inadequate guidance and raising concerns relating to constitutional vagueness and the standard’s arbitrary application. We disagree with these arguments.
1
The concurrence declares that the standard of harm we articulated in Roth — that the child be deemed neglected, uncared-for or dependent — should apply in third party custody proceedings because visitation is merely a limited form of custody, and, therefore, both intrude on the liberty interest of the parent in essentially the same manner. See Roth v. Weston, supra, 259 Conn. 229 n. 13 (“ [visitation is a limited form of custody during the time the visitation rights are being exercised” [internal quotation marks omitted]). The concurrence also contends, however, that the more intrusive custody award has two additional consequences that further justify application of the visitation standard in Roth. The first is that, because third party custody removes a child from the parent for a longer period of time, it deprives the parent of the “quintessential rights of parenthood . . . .” These include the right to make medical, educational, religious and other decisions that affect the most fundamental aspects of the child’s life during the custodial period. The second is that custody, unlike visitation, infringes on the broader but related right of family autonomy or family integrity, which encompasses the reciprocal right of parents and children in not
These observations, considered in isolation, are appealing. Considered in the context of real cases and controversies, however, they fail to recognize or address the ambiguity inherent in troubled family relationships and the variation that inevitably occurs when courts attempt to tailor orders of custody to the unique facts of each case. For example, although it is true that third party custody represents a greater infringement on parental rights than visitation, not all custody awards result in the complete elimination of parental control over the child’s life for a significant period of time. Custody awards vary in the length of time that custody is vested in the third party, the amount of contact, if any, that the parent is allowed to retain and the nature and extent of the custodial rights granted. In the present case, the court ordered that joint custody reside with child’s mother as well as with the child’s paternal aunt, who also was assigned physical custody and ordered to consult with each parent before making major decisions affecting the child’s welfare. Both parents therefore continued to participate in the child’s life, albeit to varying degrees.
The concurrence makes the related argument that the Roth standard of harm is necessary because, although a state may impose limitations on the constitutional right of a parent to raise his or her child, this right should not be abridged unless it has been demonstrated that the parent’s constitutional interests are no longer paramount, as when the parent is deemed unfit or the child’s safety will be jeopardized if the parent retains custody. To support this argument, the concurrence cites a number of statutes and cases from other jurisdictions that purportedly have adopted a more demanding standard that provides the proper degree of constitutional protection for the parental rights at stake.
This argument suffers from two defects. On the one hand, many of the statutes and cases cited by the concurrence describe standards of harm that are no more stringent than the standard articulated in the present case. See, e.g., La. Civ. Code Ann. art. 133 (1999) (parental custody would result in “substantial harm to the child”); Tex. Fam. Code Ann. § 102.004 (a) (1) (Vernon Sup. 2007) (parental custody “would significantly impair the child’s physical health or emotional development”); Evans v. McTaggart, supra,
The foregoing observations apply with equal force to third party custody awards and help explain why we articulate a standard of harm that is sufficiently flexible to allow family courts to grant third party custody awards when a child’s actual safety may not be endangered but when the child nevertheless may be suffering from other types of significant harm deserving of the relief that an award of third party custody provides. In light of the fact that the third party custody statute at issue in the present case is not overly broad, unlike the Washington visitation statute in Troxel, we agree with the plurality in Troxel that any remaining constitutional question regarding the standard of harm most likely would arise in connection with the specific manner in which the standard is applied.
2
The concurrence further claims that the standard of harm we adopt is too broad to provide a sufficient constitutional safeguard,
V
We next consider the proper burden of proof, which must satisfy “the constitutional minimum of fundamental fairness.” (Internal quotation marks omitted.) San-tosky v. Kramer,
Section 46b-56b is silent with respect to the burden of proof to be satisfied when a third party seeks the custody of a minor child against the wishes of a fit parent. We therefore recapitulate, in part, the legislative history of the statute. The proposed bill, as originally written, directed that the third party establish, “by clear and convincing evidence . . . grounds which would authorize the removal of the natural parent as guardian under [General Statutes (Rev. to 1985) § 45-44c, now General Statutes § 45a-610].” Substitute House Bill No. 5122, 1985 Sess. An amendment to the bill changed the substantive standard but did not change the clear and convincing burden of proof. See 28 H.R. Proc., Pt. 8, 1985 Sess., p. 2615. When the amended bill reached the Senate, however, various members expressed concern that the burden of proof was too high. See 28 S. Proc., Pt. 5, 1985 Sess., pp. 1751-62. Thereafter, the bill was amended to eliminate the standard. See 28 S. Proc., Pt. 7, 1985 Sess., p. 2231, remarks of Senator Johnston. Senator Avallone expressly noted that the omission of the standard constituted a major revision of the bill and represented a “compromise” designed to ensure that the interests of the child would be protected adequately in light of the presumption of parental custody. Id., pp. 2241-42. When the bill, as amended by the Senate, was returned to the House for approval, Representative Wollenberg described it as greatly “weakened” but expressed his satisfaction with the outcome because the statute would now give the fit parent a decided edge over a third party seeking custody of the child, thus addressing the perceived defect in the logic of the majority opinion in McGaffin v. Roberts,
The legislature’s rejection of the clear and convincing standard is not inconsistent with the law of other jurisdictions, as there appears to be no uniform rule regarding the burden of proof necessary to rebut a presumption in favor of parental custody. After examining the law of other states, Maryland’s highest court found that some “have, indeed, adopted a clear and convincing evidence standard in parent/third party custody cases (or in cases that the court found equivalent to a custody dispute). See Murphy v. Markham-Crawford, [supra,
It is well established that, “[w]here no standard of proof is provided in a statute, due process requires that the court apply a standard which is appropriate to the issues involved.” In re Juvenile Appeal (83-CD), supra,
“Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a fair preponderance of the evidence standard indicates both society’s minimal concern with the outcome, and a conclusion that the litigants should share the risk of error in roughly equal fashion.’ . . . When the [s]tate brings a criminal action to deny a defendant liberty or life, however, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. . . . The stringency of the beyond a reasonable doubt standard bespeaks the weight and gravity of the private interest affected . . . society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that society impos[e] almost the entire risk of error upon itself. . . .
In Santosky, the United States Supreme Court held that, “in a hearing on a petition to terminate parental rights, due process require [s] that the state prove statutory termination criteria by a ‘clear and convincing evidence’ standard rather than by a ‘fair preponderance of the evidence’ standard. . . .
“The three factors considered in Santosky to determine whether a particular standard of proof in a particular proceeding satisfies due process are: (1) the private interests affected by the proceeding; (2) the risk of error created by the chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure.” Cookson v. Cookson,
We conclude that the fair preponderance standard is permissible in the present context not only because it is consistent with the legislature’s express rejection of the clear and convincing standard, but, more significantly, because it comports with due process and the requirement of “fundamental fairness” described in Santosky v. Kramer, supra,
A
Turning first to the private interests affected, we distinguish two important differences between the termination of parental rights and third party custody proceedings. In a termination proceeding,
The concurrence disagrees with the preceding analysis for the following reasons. First, the significant constitutional interest at stake, that is, the right to family autonomy, is insufficiently protected by the lower standard. Second, even a temporary deprivation of the parent’s fundamental right to care for his or her child is an irreparable loss that may require a heightened burden of proof to assure the correctness of the judgment. Third, this court has stated that the child’s interests coincide with those of the parent unless the child is subject to the threat of serious physical harm or danger. Fourth, the equipoise in a neglect proceeding does not apply because a court adjudicating neglect has available a range of disposition options that correlate directly to the risk to the child and the parent’s ability to meet the child’s needs, including allowing the child to remain in the parent’s custody. Fifth, in a case in which there is proof by a preponderance of the evidence, but not by clear and convincing evidence, that denial of third party custody would result in real and substantial harm to the child, the court still would have authority to protect the child by bringing the department of children and families (department) into the action, ordering supervised custody or committing the child to the department.
With respect to the first two points, we note that the preservation of family autonomy or family integrity, having been placed in issue by the parents of the child in the custody proceeding itself, provides little justification for adopting a heightened burden of proof in this context. See part IV B 1 of this opinion. Moreover, this court determined more than two decades ago that the fair preponderance standard
Insofar as the concurrence concludes that the child’s interests coincide with those of the parent unless the child is threatened with immediate harm, we disagree. As we previously stated, this court has determined that the interests of a child who is adjudicated neglected, uncared for or dependent, but who is not necessarily threatened with immediate harm, differ from those of the parent. See In re Juvenile Appeal (84-AB), supra,
The concurrence’s view that the relative equipoise in a neglect proceeding exists only because the court has available to it a range of disposition options that correlate directly to the risk to the child and the parent’s ability to meet the child’s needs, including the option of allowing the child to remain with the parent, is incorrect. The concept of equipoise first was considered in In re Juvenile Appeal (83-CD), supra,
“Where two important interests affected by a proceeding are in relative equipoise, as they are in [a temporary custody proceeding], a higher standard of proof would necessarily indicate a preference for protection of one interest over the other. . . . We see no reason to make such a value determination . . . and find that the various interests in a temporary custody hearing are best served by applying the normal civil standard of proof which is a fair preponderance of the evidence.” (Citation omitted; emphasis added.) Id., 298-99.
We also observed that an award of temporary custody is neither final nor irrevocable
Shortly thereafter, we addressed the same issue in the context of a neglect proceeding and again concluded that the proper standard of proof is a fair preponderance of the evidence. See In re Juvenile Appeal (84-AB), supra,
Even if we accept the concurrence’s view that the equipoise between the interests of the child and the parent is due to the multiplicity of disposition options available in a neglect proceeding, it would appear that most children adjudicated neglected under the fair preponderance standard are removed from parental custody, at least for a limited period of time. This is reflected in the language of § 46b-129 (j),
Finally, the concurrence’s assertion that the court has authority to take certain steps to protect a child when there is proof by a fair preponderance of the evidence, but not by clear and convincing evidence, that denial of the third party custody petition will be harmful to the child assumes that the court will take the necessary steps to mitigate further harm. There is no guarantee, however, that the court in any given case will bring the child’s situation to the attention of the department and ultimately order relief, as the concurrence suggests.
B
A weighing of the second Santosky factor also supports the conclusion that the fair preponderance standard of proof is appropriate in third party custody proceedings. Although there may be differences in the ability of a parent and a third party in any given case to participate in the litigation, we are aware of no evidence of a disparity between the abilities and resources of parents and third parties generally that is equivalent in nature to the disparity between the parent and the state in a termination proceeding.
The concurrence asserts, pursuant to the second San-tosky factor, that application of the fair preponderance standard will result in a high risk of erroneous deprivation because (1) the standard of harm that the majority adopts leaves the
In considering the risk of erroneous deprivation, the concurrence declares that, even if the standard of harm is high, imposition of the fair preponderance standard of proof improperly will allow the subjective values of the judge to affect the decision or will result in an award of custody without adequate evidence of misconduct. All custodial decisions, however, by their very nature, involve the exercise of judicial discretion because of the infinite variation that exists in the human condition generally and family relationships in particular. The important consideration is whether the court has been provided with sufficient guidance to focus on the proper facts. In the present case, we believe that it has because, to the extent that this court has placed a judicial gloss on the standard of harm set forth in § 46b-56b, courts will have clear notice that third party custody awards may not be based on a few instances of misconduct, that such awards are justified only in exceptional circumstances and that the petitioner must allege and prove, at the very least, that continued parental custody will be clearly damaging, injurious or harmful to the child. This is a heavy burden under either standard of proof. See McGaffin v. Roberts, supra,
With respect to whether the fair preponderance standard will encourage repeated litigation, the potential for repeated litigation will be severely curtailed, if not eliminated entirely, by the fact that § 46b-57, unlike the visitation statute, permits third party intervention only in an existing controversy before the court. Furthermore, the requirement that a petitioner must allege and establish proof of a relationship with the child akin to that of a parent in order to be granted standing is an extremely difficult standard to satisfy. Finally, because third party custody, unlike visitation, requires an extraordinary level of personal, emotional and financial commitment to the child over a lengthy period of time, very few individuals are likely to petition the court for third party custody even one time in any given case, much less repeatedly.
As for the procedural protections available in a neglect proceeding, many of the due process protections in chapters 32a and 35a of the Practice Book afforded the parents of a child in a neglect or termination proceeding, including the right to a hearing, are provided in a custody proceeding. See generally Practice Book c. 25. Although there is no exact counterpart in a third party custody proceeding to the specific steps that a parent may be ordered to take in a neglect proceeding, which are intended to notify the parent of deficiencies that must be remedied to regain custody, Practice Book § 25-60 provides the court in a custody proceeding with authority to conduct a custody evaluation
In addition, the concurrence’s assertion that the court’s decision to remove a child from parental custody in a neglect proceeding is subject to periodic judicial review, unlike third party custody decisions, is simply not true for all children who are adjudicated as neglected. General Statutes § 46b-129 (j) provides in relevant part that, upon an adjudication of neglect, the “court may vest [the] child’s or youth’s care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility . . . [and] upon such vesting of the care of such child or youth, such other public or private agency or individual shall be the guardian of such child or youth . . . .” (Emphasis added.) The periodic judicial review described in § 46b-129 applies only if the child is committed to the custody of the department. “The legislature . . . did not contemplate mandatory, periodic judicial review of cases in which custody, rather than ordered as a commitment of the child to [the department, has] been vested by the court in an appropriate third party in accordance with § 46b-129 . . . .” (Emphasis added.) In re Juvenile Appeal (85-BC),
The concurrence finally asserts that the clear and convincing standard should apply in third party custody proceedings because the custody statute is substantially similar to the removal of parent as guardian (removal of guardianship) statute; see General Statutes § 45a-610; which requires allegations and proof of harm similar to that in a neglect proceeding but employs the clear and convincing standard of proof. The concurrence asserts that a comparison of the two statutes is appropriate because neither provides the parent with significant procedural protections, which is not the case under the neglect statutes. As we noted previously in this opinion, however, third party custody proceedings provide the parent with procedural protections similar to those in a neglect proceeding. In fact, parents in third party custody proceedings will hereinafter receive one extremely significant protection that parents in removal of guardianship, temporary custody and neglect proceedings do not, namely, the requirement that the petitioner demonstrate a relationship with the child akin to that of a parent. In removal of guardianship and neglect cases, the state, the court and a number of other designated parties and entities that have no relationship or significant personal bond with the child are permitted to initiate proceedings that may result in the removal of the child from parental custody. See General Statutes § 45a-614 (any adult relative by blood or marriage, court on own motion and counsel for minor may apply for removal of parent as guardian); General Statutes § 46b-129 (a) (“[a]ny selectman, town manager, town, city or borough welfare department, any probation officer, or the Commissioner of Social Services, the Commissioner of Children and Families or any child-caring institution or agency approved by the Commissioner of
C
With respect to the third Santosky factor, although the state has no direct interest in a custody proceeding that involves two private parties, it has a clear interest in protecting both the constitutional rights of the parent and the welfare of the child by ensuring that the proceeding is conducted fairly and at a reasonable cost.
The fair preponderance standard also is consistent with our declaration in Roth that “the heightened standard of clear and convincing evidence is not constitutionally mandated” in visitation cases. Roth v. Weston, supra,
The only other jurisdiction that has conducted a detailed and thoughtful analysis of the standard of proof under Santosky has concluded that the clear and convincing standard is neither constitutionally required nor appropriate in third party custody cases. Shurupoff v. Vockroth, supra,
To summarize, in cases in which a third party seeks to intervene in a custody proceeding brought pursuant to § 46b-56 (a), the party must prove by a fair preponderance of the evidence facts demonstrating
VI
In the present case, the trial court failed to apply the correct standard when it granted Husaluk’s motion to intervene and awarded her custody solely on the basis of the best interest of the child. Thereafter, the Appellate Court properly rejected the defendant’s claim that the trial court should have awarded custody on the basis of the standard articulated in Roth but improperly affirmed the award of custody to Husaluk on the ground that it was in the best interest of the child.
The judgment of the Appellate Court is affirmed insofar as it reverses the trial court’s judgment as to the allocation of tax dependency exemptions;
In this opinion NORCOTT, VERTEFEUILLE and SULLIVAN, Js., concurred.
Notes
The term “third party” refers to any private individual other than a parent of the child, as distinguished from the state. We do not address situations in which the state seeks temporary custody of the child; see General Statutes § 46b-129; or removal of the child from the custody of the child’s parents. See General Statutes § 45a-610.
We granted the defendant’s petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the trial court was not required to apply a heightened jurisdictional pleading requirement and burden of persuasion as required under Roth v. Weston, [supra, 259 Conn. 234-35]?" Fish v. Fish,
In its original order, the trial court awarded joint custody to the plaintiff and the defendant.
The plaintiff is now known as Paula J. Pierce. The plaintiff did not submit a brief to this court. The guardian ad litem-attomey for the minor child submitted the only brief contesting the defendant’s claim.
We note that Roth relied on the temporary custody and neglect statutes to define the level of emotional harm that the child would suffer should visitation with the petitioner be denied. See Roth v. Weston, supra,
The Appellate Court concluded that the trial court had abused its discretion in ordering the allocation of tax dependency exemptions and, therefore, reversed the trial court’s judgment only with respect to that order. Fish v. Fish,
collectively as the “parties” or as the “parents.”
Although the parties’ daughter turned eighteen on April 28, 2007, we agree with the defendant that his appeal would not be rendered moot by that fact in view of his unchallenged representation to this court that he may be entitled to favorable tax and other financial consequences should he prevail.
In her motion to intervene, Husaluk stated: “I am the paternal aunt of the minor child .... By order of the court, [the child] resided with me during the summer of 2002. ... I have maintained contact with [the child] throughout this school year. . . . [The child] spent her spring vacation with me, as ordered by the court. ... I provide a safe and loving environment . . . for [the child]. ... It is [the child’s desire] to reside with me through her high school year[s]. Wherefore, I ask that the court grant me permission to intervene.”
General Statutes § 46b-59 provides in relevant part: “The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court’s best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable .... In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. ...” (Emphasis added.)
General Statutes § 46b-56b provides: “In any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.”
General Statutes § 46b-57 provides: “In any controversy before the Superior Court as to the custody of minor children, and on any complaint under this chapter or section 46b-1 or 51-348a, if there is any minor child of either or both parties, the court, if it has jurisdiction under the provisions of chapter 815p, may allow any interested third party or parties to intervene upon motion. The court may award full or partial custody, care, education and visitation rights of such child to any such third party upon such conditions and limitations as it deems equitable. Before allowing any such intervention, the court may appoint counsel for the child or children pursuant to the provisions of section 46b-54. In making any order under this section, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference.”
General Statutes § 46b-56 provides in relevant part: “(a) In any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children if it has jurisdiction under the provisions of chapter 815p. Subject to the provisions of section 46b-56a, the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party to the action, including, but not limited to, grandparents.
“(b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be considered and the court shall enter orders accordingly that serve the best interests of the child and provide the child with the active and consistent involvement of both parents commensurate with their abilities and interests. Such orders may include, but shall not be limited to: (1) Approval of aparental responsibility plan agreed to by the parents . . . (2) the award of joint parental responsibility of a minor child to both parents, which shall include (A) provisions for residential arrangements with each parent in accordance with the needs of the child and the parents, and (B) provisions for consultation between the parents and for the making of major decisions regarding the child’s health, education and religious upbringing; (3) the award of sole custody to one parent with appropriate parenting time for the noncustodial parent where sole custody is in the best interests of the child; or (4) any other custody arrangements as the court may determine to be in the best interests of the child.
“(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between aparent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers. . .
Although § 46b-56 was amended in 2005; see Public Acts 2005, No. 05-258, § 3; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of § 46b-56 throughout this opinion.
In Troxel, the United States Supreme Court concluded that the Washington visitation statute was unconstitutional as applied in that case because it was overly broad and accorded no special deference to the custodial parent’s decision that the requested visitation was not in her daughter’s best interests. See Troxel v. Granville, supra,
General Statutes § 46b-129 (a) provides that children who are deemed “neglected, uncared-for or dependent” may be removed temporarily from their parents’ custody and committed to the temporary care and custody of some other suitable agency or person.
We explained in Roth that such a situation would occur in the visitation context when “a person has acted in a parental-type capacity for an extended period of time, becoming an integral part of the child’s regular routine, [such] that [the] child could suffer serious harm should contact with that person be denied or so limited as to seriously disrupt that relationship.” Roth v. Weston, supra,
We note that third party custody petitions may be filed only when there is an existing controversy before the Superior Court. See General Statutes §§ 46b-56 (a) and 46b-57. Thus, they do not create additional litigation to which the parents must respond. Visitation petitions, on the other hand, may be filed at any time by a person who has a parent-like relationship with the child. Roth v. Weston, supra,
Section 46b-57 authorizes the formal intervention of an interested third party whose interest may not already be before the court in an existing controversy, thus serving as a procedural supplement to § 46b-56, which does not require a third party to intervene in order for the court to award custody to that party. See Doe v. Doe,
General Statutes § 46b-59 provides in relevant part: “The Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. . .
In the present case, the trial court assigned joint custody to the mother and the paternal aunt The analysis that follows, however, applies to all situations in which third parties seek custody of a minor child, regardless of the custodial arrangement that the court ultimately orders.
“A rebuttable presumption is equivalent to prima facie proof of a fact and can be rebutted only by the opposing party’s production of sufficient and persuasive contradictory evidence that disproves the fact that is the subject of the presumption. ... A presumption requires that a particular fact be deemed true until such time as the proponent of the invalidity of the fact has, by the particular quantum of proof required by the case, shown by sufficient contradictory evidence, that the presumption has been rebutted.” (Citation omitted.) Schult v. Schult,
The concurrence notes that, because Roth requires proof of a level of emotional harm akin to that contemplated under the temporary custody and neglect statutes, namely, harm that would arise because the child is neglected, uncared-for or dependent; General Statutes §§ 46b-120 and 46b-129; “one reasonably cannot say that the parent’s competency is not at issue in visitation petitions.” We disagree. The competence of the parent to make a visitation decision does not directly implicate the parent’s underlying relationship with the child. Cf. Roth v. Weston, supra,
Although the legislative history of § 46b-56b has no bearing on the constitutional issue, it provides useful guidance in determining the legislature’s intent regarding the standard of harm that it wished to impose in third party custody disputes. The proposed legislation originally was presented to the House of Representative’s in Substitute House Bill No. 5122. That bill provided in relevant part: “In a dispute between a natural parent and non-parent, the court shall recognize a superior right to custody in the natural parent, unless the non-parent, by clear and convincing evidence, establishes grounds which would authorize the removal of the natural parent as guardian under [General Statutes (Rev. to 1985) § 45-44c, now General Statutes § 45a-610].” Substitute House Bill No. 5122, 1985 Sess. The bill thus required a nonparent to prove the same facts required for removal of a parent as guardian when the parent does not consent, namely: (1) abandonment of the child in the sense that the parent has failed to maintain a reasonable degree of concern or responsibility for the child’s welfare; (2) evidence of child abuse or unexplained injuries; or (3) lack of parental care, guidance or control necessary for the child’s physical, emotional, educational or moral well-being, either because the parent is physically or mentally incapable or because of habit, misconduct or neglect, thereby indicating that the parent either cannot, or in the child’s best interest should not, be permitted to be a parent at that time. See General Statutes (Rev. to 1985) § 45-44c.
After the bill was introduced in the House, the language was revised to emphasize the best interests of the child. The House also replaced the language referring to the standard for removal of a parent as guardian with less restrictive language referring to detriment to the child. The revised bill provided: “In any dispute as to the custody of minor children involving a parent and a non-parent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, unless it is shown, by clear and convincing evidence, that it would be detrimental to the child to permit the parent to have custody.”
During the Senate’s consideration of the revised bill, discussion initially centered on whether the best interests of the child would be adequately protected if a presumption was created in favor of the parent. See 28 S. Proc., Pt. 5, 1985 Sess., pp. 1751-60. Those opposing the bill were concerned that such a presumption would be difficult to rebut. Id., pp. 1760, 1762. The bill failed to gain sufficient support and was defeated; id., p. 1763; but a motion for reconsideration was passed the following day. 28 S. Proc., Pt. 6, 1985 Sess., p. 1774. Upon reconsideration, the Senate adopted an amendment removing all language pertaining to the standard required to rebut the presumption and the burden of proof. See 28 S. Proc., Pt. 7, 1985 Sess., p. 2231, remarks of Senator Richard B. Johnston. The bill then provided: “In any dispute as to the custody of minor children involving a parent and a non-parent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent.”
In the debate that followed as to what would be required to overcome this presumption, Senator Anthony V. Avallone summarized the position of the bill’s proponents, stating: “The original bill and the amendment are really quite different. The original bill indicated that there would be a presumption that the non-parent would have the burden of establishing by clear and convincing evidence that there was a detriment or there was not a detriment to the child by staying or going with the natural parent. What this bill does is merely say that the natural parent would have a presumption that [it] is in the best interest of the child to be with the natural parent. That is a very, very large gap between what the original bill called for and what . . . the bill as amended would call for. We’re still dealing with those magic words, the best interest of the child. . . . We are not talking about ... an irrebuttable presumption. We are talking about a rebuttable presumption. ... It does not give as much to the natural parent by any stretch of the imagination that the original bill would have. ... I think that this is a reasonable compromise.” 28 S. Proc., Pt. 7, 1985 Sess., pp. 2241-42. Shortly thereafter, the Senate adopted the bill, as amended. Id., p. 2243.
When the bill returned to the House for approval, Representative William L. Wollenberg noted that it had been weakened by the Senate amendment. 28 H.R. Proc., Pt. 16, 1985 Sess., p. 5798. Representative Wollenberg stated, however, that he was satisfied with the outcome because, although the amended bill did not “go nearly as far” as the earlier version, it gave the parent “a leg up,” so to speak, in a custody dispute with a third party. Id., p. 5800. Several representatives also remarked that the amended bill, in effect, counteracted the majority holding in McGaffin v. Roberts,
The following year, the legislature amended the statute to clarity that the presumption favoring.parental custody in a dispute between a parent and a third party could be rebutted by showing that an award of custody to the parent would be detrimental to the child. Public Acts 1986, No. 86-224. The new language reflected the understanding of House and Senate members, articulated when debating the merits of the bill one year earlier, that the statute was consistent with the principles set forth in Justice Parskey’s dissent in McGaffin. Office of Legislative Research, Bill Analysis for Public Acts 1986, No. 86-224; see McGaffin v. Roberts, supra,
The concurrence declares that the majority “misconstrues” the relationship it has drawn between visitation and custody. It states that this court “implicitly recognized in Roth that the stringent standard of harm that we adopted in that case clearly would be justified” in third party custody proceedings, and that “the lesser intrusion resulting from visitation was sufficiently similar in kind, albeit not degree, to justify the heightened standard.” Footnote 4 of the concurring opinion. This court did not conclude in Roth, however, either implicitly or otherwise, that the visitation standard would be justified in third party custody proceedings. It simply observed that visitation is similar to custody because the person to whom visitation is awarded may be required to make decisions regarding the child’s care during the visitation period. No broader conclusions regarding third party custody may be drawn from the comparison because the issue of third party custody never was raised or addressed in Roth.
The concurrence also fails to acknowledge that Roth relied on a California visitation case, In re Marriage of Gayden,
Finally, to the extent that the concurrence declares that we misconstrue its discussion regarding the effect of visitation and custody on the “quintessential rights of parenthood,” it again is mistaken. We make no representation that the concurrence believes that visitation confers such rights. We simply observe that, according to the concurrence, third party custody, unlike visitation, has the additional effect of depriving the parent of the “quintessential rights of parenthood” because it removes the child from the parent for a longer period of time and thus may preclude the parent from making fundamental decisions concerning the child’s life.
We do not “dismiss” the constitutional infringement on parental rights that results from an award of custody, as the concurrence suggests. Nor do we rely on the “hypothetical possibility” of an award of joint custody to justify its conclusions. Indeed, not only are these gross exaggerations, but they miss the point entirely. First, we recognize at the outset of our discussion that the liberty interest of a parent in the care, custody and control of his or her child is one of the oldest of the fundamental liberty interests deserving of heightened protection. See Troxel v. Granville, supra,
Second, we do not discuss joint custody to justify the standard of harm but to demonstrate the wide variation in custody orders and that a third party custody award does not necessarily preclude a parent from continued participation in the child’s life. See General Statutes § 46b-57 (court may award partial custody to any third party “upon such conditions and limitations as it deems equitable”). In the present case, for example, the court ordered that “[tjhere shall be reasonable telephone and e-mail contact between the child and her parents” and that the paternal aunt would be required to consult with both parents prior to making decisions affecting the child’s welfare. While these orders fall short of allowing the defendant to exercise final decision-making authority, the court in another case might have ordered such decisions to be made jointly by the third party and the parent.
In addition, the concurrence’s suggestion that our failure to adopt the standard of harm in Roth will encourage nonparents to circumvent the more stringent visitation standards by simply seeking limited joint custody instead of visitation is sheer speculation and suggests, at best, a misunderstanding of the differences between the two standards. Third party visitation petitioners must prove that the child will be harmed by lack of contact with the petitioner, whereas third party custody petitioners must prove that the child will be harmed by an award of custody to the parent. Thus, because third party visitation and custody focus on the child’s relationship with different persons, a nonparent wishing to obtain visitation rights because of his or her close relationship with the child presumably would have no factual evidence available to prove that the child’s relationship with the parent is detrimental, which is necessary to gain custody. In other words, it would appear to be more, rather than less, difficult for apetitioner seeking visitation to obtain contact with the child by seeking custody instead, assuming that the petitioner would even wish to take on the added responsibility that custody requires.
The concurrence further argues that the availability of the less intrusive “disposition option” of joint custody should have “no weight in determining the procedural and substantive protections necessary to protect the constitutional interests at stake”; footnote 5 of the concurring opinion; again implying that we consider the availability of joint custody as a justification for adopting the broader standard. As we previously noted, however, we do not view less intrusive disposition options as justification for a broader standard of harm. It is the concurrence that makes the point, in a subsequent part of its analysis, that it is the range of available disposition options that correlate directly to the risk to the child and the parent’s ability to meet the child’s needs that justifies application of the fair preponderance standard rather than the clear and convincing standard in neglect proceedings. The concurrence provides no explanation for this apparent inconsistency in its reasoning.
We finally note that, if we were to adopt the reasoning of the concurrence, the court could award one parent custody over another under the best interests of the child standard but would be required to apply the very restrictive standard articulated in Roth if it wished to award a parent and a nonparent joint custody over the objection of the other parent.
The concurrence asserts that most of these jurisdictions have not held that “extraordinary circumstances” means harm of a “lesser degree” than the harm articulated in Roth. Footnote 7 of the concurring opinion. We do not necessarily agree. The jurisdictions in question refer to harm arising from “extraordinary circumstances” most likely because they wish the standard to include harm that may not be expressly described within existing statutory and legal definitions. Similarly, our purpose in allowing trial courts to consider harm arising from “extraordinary circumstances” is to broaden the standard, thus granting courts additional flexibility in awarding custody to a third party when a child suffers from harm that may not be specifically identified in the temporary custody and neglect statutes.
We disagree with the concurrence that the only reason the United States Supreme Court did not consider the standard of harm in Troxel was “its well established policy of affording substantial deference to state courts in determining the contours of family law, an area of law traditionally relegated to the states.” Footnote 10 of the concurring opinion. In our view, the court was not simply recognizing that such issues are best decided by state courts but was making the additional point that family courts within the states, which confront these issues on a daily basis, are in a better position to resolve them pursuant to a more flexible, rather than a more strictly defined, standard of harm. See Troxel v. Granville, supra,
The concurrence rejects this standard for reasons that are difficult to grasp. On the one hand, it is critical of our attempt to elaborate on the meaning of detriment so as to provide courts with additional guidance. On the other hand, it charges that we do “little to guide the courts in properly balancing the interests at stake.” The concurrence specifically complains that the standard of harm that we adopt could “devolve to a best interests test” or be construed to mean (1) “short-term emotional upheaval” resulting from dissolution of the parents’ marriage or some other disruptive event, or (2) “the inculcation of values and beliefs that are contrary to social norms,” such as a Bohemian lifestyle, thus allowing the court to consider its own more conventional lifestyle preferences when making an award of custody. We have rejected these interpretations, however, and the concurrence concedes as much when it states that the we “[limit] the temporal nature of the harm, requiring something more than the temporary stress attendant to dissolution . . . .” Finally, the concurrence inexplicably concludes that a broad definition of detriment by an intermediate Florida appeals court that makes no reference to the type of harm described in Connecticut’s neglect statutes “is entirely consistent” with the standard in Roth. See In re Marriage of Matzen,
We note that the standard of harm that we adopt for third party custody awards does not rely solely on In re Joshua S., supra,
The court in Santosky determined that the parent’s interest in the accuracy and justice of a decision terminating his or her parental rights is “a commanding one” and that such a decision, because it is “final” and “irrevocable,” results in “a unique kind of deprivation.” (Emphasis in original; internal quotation marks omitted.) Santosky v. Kramer, supra,
The concurrence discusses the third, fourth and fifth points in its analysis of the third Santosky factor. We discuss them in this context, however, because the focus of the first Santosky factor is on the private interests involved, which, in third party custody proceedings, include those of the child.
General Statutes § 46b-129 Q) provides: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court. The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent. The commissioner shall be the guardian of such child or youth for the duration of the commitment, provided the child or youth has not reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, provided such child or youth has not reached the age of twenty-one years, by consent of such youth, or until another guardian has been legally appointed, and in like manner, upon such vesting of the care of such child or youth, such other public or private agency or individual shall be the guardian of such child or youth until such child or youth has reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, until such child or youth has reached the age of twenty-one years or until another guardian has been legally appointed. The commissioner may place any child or youth so committed to the commissioner in a suitable foster home or in the home of a person related by blood to such child or youth or in a licensed child-caring institution or in the care and custody of any accredited, licensed or approved child-caring agency, within or without the state, provided a child shall not be placed outside the state except for good cause and unless the parents or guardian of such child are notified in advance of such placement and given an opportunity to be heard, or in a receiving home maintained and operated by the Commissioner of Children and Families. In placing such child or youth, the commissioner shall, if possible, select a home, agency, institution or person of like religious faith to that of a parent of such child or youth, if such faith is known or may be ascertained by reasonable inquiry, provided such home conforms to the standards of said commissioner and the commissioner shall, when placing siblings, if possible, place such children together. As an alternative to commitment, the court may place the child or youth in the custody of the parent or guardian with protective supervision by the Commissioner of Children and Families subject to conditions established by the court. Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall determine whether the Department of Children and Families made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the child’s or youth’s best interests, including the child’s or youth’s health and safety.” (Emphasis added.)
Notably, there is no option permitting unsupervised custody following an adjudication of neglect.
The concurrence states that this conclusion is “unfair” to our trial courts because it reflects a “concern” that the courts will not take remedial action in such cases. To the contrary, we have great confidence in the ability of trial courts to interpret the law properly so as not to infringe unnecessarily on the liberty interests of parents. Insofar as we recognize that trial courts will follow the law and refrain from awarding custody to third parties or take other actions to protect children when the burden of proof has not been satisfied, we merely recognize that the courts are not, and may not be, expected to take actions, sua sponte, that are not required pursuant to their duties as adjudicators of the law.
The court in Santosky held that numerous factors combine to magnify the risk of error in a termination proceeding. Santosky v. Kramer, supra,
We do not ignore the fact that periodic judicial review is directed toward the goal of family reunification but merely observe that when the custody of a child adjudicated as neglected is vested in an appropriate third party under § 46b-129 (j), the custody order is not subject to judicial review. See In re Juvenile Appeal (85-BC), supra,
The concurrence attempts to diminish this conclusion by stating that In re Juvenile Appeal (85-BC) does not address whether the vesting of custody in a third party directly following the court’s adjudication of neglect, rather than at some later time following transfer from the custody of the commissioner of children and families (commissioner), as in that case, eliminates the need for “reunification efforts and the attendant measures” articulated in § 46b-129. In re Juvenile Appeal (85-BC), however, makes no such hairsplitting distinction. The court merely states that the commissioner does not have the same obligation to conduct judicial review when the trial court vests custody in an appropriate third party as when a child is committed to the commissioner’s custody. See In re Juvenile Appeal (85-BC), supra,
The court in Santosky declared that the third factor, the state’s countervailing interest in parental rights termination proceedings, consists of “a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings,” both of which it deemed to be compatible with the clear and convincing standard of proof. Santosky v. Kramer, supra,
The court ultimately determined that the fair preponderance standard was “constitutionally intolerable” in a parental rights termination context because “[t]he individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” (Internal quotation marks omitted.) Id., 768. The court thus held that either the reasonable doubt standard or the clear and convincing standard would satisfy due process in such a proceeding. See id., 769-70.
Although the Appellate Court summarily concluded that “there was ample evidence for the [trial] court to conclude that the presumption in the defendant’s favor was rebutted”; Fish v. Fish, supra,
See footnote 6 of this opinion.
Concurrence Opinion
with whom BORDEN and PALMER, Js., join, concurring. I agree with the majority’s conclusion that the judgment of the Appellate Court affirming the trial court’s judgment awarding custody 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. Specifically, I agree with part IIA of the majority opinion that, in order to satisfy the constitutional concerns highlighted by this court in Roth v. Weston,
The majority determines that a third party may obtain custody over the objection of a parent who has not been deemed unfit upon demonstrating by a mere preponderance of the evidence that parental custody would be “detrimental to the child” pursuant to General Statutes § 46b-56b.
I disagree with this reasoning. The time-tested Roth standard strikes the proper balance between protecting the constitutional rights at stake and safeguarding the child’s welfare. Because the intrusion on the constitutionally protected interests of the parent and the family unit is significantly greater when a court acts to deprive a parent of custody of his or her child than when a court awards visitation to a third party over a parent’s objection, I cannot agree that a lesser standard suffices. Indeed, because third party custody not only deprives the parent and child of each other’s companionship, but also deprives the parent of the right to make decisions affecting every aspect of a child’s physical, social and moral development, the infringement on a parent’s right to raise his or her own child and on the family unit’s autonomy is akin to that arising from the termination of parental rights for as long as custody is vested in that third person to the exclusion of the parent. Accordingly, I would conclude that, in order to divest a parent of custody, a third party must plead and prove, by clear and convincing evidence, that they have a parent-like relationship with the child and that “real and substantial harm”; Rothv. Weston, supra,
I
To address the question of whether the Roth standard of harm constitutionally is mandated, I begin with this court’s reasoning for adopting that standard in that case. In Roth v. Weston, supra,
With this background in mind, I turn to the question of whether third party custody petitions implicate any lesser or substantively different intrusion on family autonomy and a parent’s right to exercise care, control and custody over a child than the intrusion resulting from a third party visitation petition, such that the custody statutes need not embody the same procedural and substantive protections that we applied, as a judicial gloss, to § 46b-59 in Roth. I would conclude that they do not. Indeed, it is evident that third party custody constitutes a significantly greater infringement.
In Roth, after articulating the requisite pleading and proof requirements, the court expressly noted: “We recognize that the burden of harm that the statute imposes may be deemed unusually harsh in light of the fact that visitation, as opposed to custody, is at issue. We draw no distinction, however, forpurposés of this discussion. Visitation is a limited form of custody during the time the visitation rights are being exercised . . . .”
Although clearly related, the legal rights and privileges attendant to an order of custody are more intrusive than those attendant to an order of visitation. As one judge explained: “Full custody denotes the care, control, and maintenance of a child including all physical and legal aspects of custody, and the child resides with the person to whom custody was awarded. . . . Visitation normally represents a period of access by a non-custodial individual. It differs from full custody in that the child does not dwell with the non-custodial individual, and, although this individual can be responsible for the care and safety of the child, he or she may not make important decisions for the child. . . . Full custody confers rights and authority upon the one in whom it is placed as opposed to the privilege of visiting.” (Citations omitted.) Hiller v. Fausey,
Thus, an award of full custody to a third person deprives the parent of far more than the right to the child’s companionship for some limited period during which visitation occurs. It deprives the parent of the quintessential rights of parenthood — to make decisions that affect the child’s development, such as determining the child’s associations, education and medical treatment, and to inculcate religious beliefs and moral values. See Wisconsin v. Yoder,
In considering the constitutional question before us, it is important to recognize that the constitutional rights at stake include more than the parent’s right to control the child’s upbringing. It also includes the broader right of family autonomy or family integrity. “[The] right to family integrity . . . encompasses the reciprocal rights of both parent and children . . . the interest of the parents in the companionship, care, custody and management of [their] children . . . and of the children in not being dislocated from the emotional attachments that derive from the intimacy of daily association with the parent . . . .” (Citations omitted; internal quotation marks omitted.)
Although this court and the United States Supreme Court have recognized that there is an independent interest in “safeguarding the physical and psychological well-being of a minor”; (internal quotation marks omitted) Osborne v. Ohio,
Turning to the parental presumption set forth in § 46b-56b, which requires a nonparent to show that parental custody would be “detrimental to the child,” undoubtedly such a standard could be reconciled with Roth, depending on what detriment means. If “detriment” is construed to mean any degree of harm, no matter how insubstantial or short-lived, that standard readily could devolve to a best interests test, in contravention to the holdings of Roth and Troxel. See Evans v. McTaggart,
Mindful of such concerns, one of our sister states applied the following judicial gloss to the detriment standard: “Detriment refers to circumstances that produce or are likely to produce lasting mental, physical or emotional harm. . . . [Detriment [i]s more than the normal trauma caused to a child by uprooting him from familiar surroundings such as often occurs by reason of divorce, death of a parent or adoption. It contemplates a longer term adverse effect that transcends the normal adjustment period in such cases. . . . Parental rights do not evaporate merely because parents have not been ideal parents.” (Citations omitted; internal quotation marks omitted.) In re Marriage of Matzen, 600 So. 2d 487, 490 (Fla. App. 1992). Undoubtedly, this gloss is entirely consistent with the Roth standard.
The majority implicitly recognizes the constitutional problems inherent in the vagueness of the term “detriment,” by virtue of its numerous attempts to refine its meaning. The majority engrafts onto the “detriment” standard the following gloss: “damaging, injurious or harmful to the child,” a definition of “detriment” previously cited by this court in In re Joshua S.,
Specifically, the majority cites the court’s statement in In re Joshua S., supra,
The majority’s addition of the qualifying term “exceptional circumstances” hardly provides meaningful guidance to the trial courts. Although some other jurisdictions have used a similar term, many have used the term in conjunction with specific examples of harm to provide a contextual gauge for the requisite harm; many others have eschewed such an amorphous standard altogether in favor of a more fact specific inquiry or have declined to permit third party custody in the absence of parental unfitness. See footnote 7 of this concurring opinion. The majority at least limits the temporal nature of the harm, requiring something more than the temporary stress attendant to dissolution, but declines to tether the detriment standard to the contextual gauge provided by the Roth standard’s time-tested application and its well understood contours.
The majority declines to do so because it finds the Roth standard lacking sufficient flexibility to address the myriad circumstances under which courts may need to intervene to protect children. It cites the possibility of some “unpredictable” significant harm that might fall short of the Roth standard, yet warrant removing a child from his or her parent’s custody. I find this concern puzzling and troubling for several reasons. Contrary to the majority’s suggestion, the definitions of neglected, uncared for and dependent are not limited to circumstances wherein the child’s “actual safety may be . . . endangered.”
I am unaware of any criticism from our trial courts or the family law bar that our long-standing and expansively defined neglect standards have failed to meet the needs of the children of this state. Indeed, under our neglect statutes, the petitioner need not even allege and prove actual harm, only the genuine potential for real and substantial harm. See In re Jermaine S.,
I cannot accept the majority’s premise that harm that falls short of the minimum threshold for an adjudication of neglect provides a constitutionally permissible basis for divesting a parent of custody in a third party custody petition. I have no doubt that trial courts will have difficulty drawing the line between detriment that falls short of neglect yet exceeds a mere best interests of the child determination. See Evans v. McTaggart, supra,
Therefore, consistent with our obligation to construe statutes to avoid constitutional infirmities; see Clerk of the Superior Court v. Freedom of Information Commission,
II
I next turn to the issue of whether the heightened burden of proof prescribed in Roth similarly should apply to third party custody petitions. In Roth, this court concluded that the clear and convincing burden of proof was not constitutionally mandated in the context of third party visitation,
Although § 46b-56b does not state expressly by what degree of proof the parental presumption must be overcome, I agree with the majority that the legislative history to the statute indicates that the legislature declined to require that the courts apply the heightened burden of clear and convincing proof. As I previously have noted, however, given this court’s evolving view of what the constitution mandates in third party visitation petitions, we reasonably could not expect the legislature to have been cognizant of such developments. See footnote 8 of this concurring opinion. Nonetheless, this court may impose a heightened burden of proof if the constitution so mandates. The majority concludes that the lowest possible burden of proof — preponderance of evidence — is constitutionally adequate because an award of custody differs from a proceeding to terminate parental rights in that custody: (1) involves the additional interest of the child’s welfare; and (2) does not permanently sever parental rights. I disagree with this reasoning.
Specifically, the question before us is whether due process is violated by application of the preponderance of the evidence standard to a decision to award custody to a third party over a parent’s objection, pursuant to General Statutes §§ 46b-56, 46b-56b and 46b-57, or whether due process mandates the more exacting standard of clear and convincing evidence. It is well settled that “[t]he function of a standard of proof, as that concept is embodied in the [d]ue [p]rocess [c]lause and in the realm of factfinding, is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. . . . [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.” (Citations omitted; internal quotation marks omitted.) Santosky v. Kramer, supra,
I agree with the majority that the nature of the process due in a third party custody proceeding turns on the balancing of the following three distinct factors: “the private interests affected by the proceeding; the risk of error created by the [s]tate’s chosen procedure; and the countervailing governmental interest supporting
In Connecticut, the state may seek a summary or ex parte order for immediate temporary custody when: (1) a child is suffering from serious physical injury or serious physical illness or is in immediate physical danger from his surroundings; and (2) immediate removal from the home is necessary to ensure the child’s safety. See General Statutes § 17-38a (e); In re Juvenile Appeal (83-CD), supra,
Accordingly, in Santosky v. Kramer, supra,
A
Under the first factor, the question of “[wjhether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss.” Santosky v. Kramer, supra,
Although a custody proceeding also implicates another interest, that of the child’s safety and well-being; see In re Juvenile Appeal (83-CD), supra,
The Supreme Court has recognized that even a temporary deprivation of a constitutional right may require a heightened burden of proof to assure the correctness of the judgment. See Santosky v. Kramer, supra,
This court has understood that a temporary deprivation of a parent’s constitutional right to care and custody of his or her child gives rise to a risk of such irreparable harm that it has deemed interlocutory orders affecting that interest final judgments for purposes of appeal. See Sweeney v. Sweeney,
Thus, the fact that a parent later may seek to regain custody by filing a motion for modification of the judgment does not dimmish substantively the constitutional significance of the deprivation of the interest at stake. Indeed, this court determined that the lesser preponderance burden was permissible for neglect proceedings in part because the dispositional options available to the court included keeping the child in the parent’s custody. In re Juvenile Appeal (84-AB), supra,
B
Turning to the second factor, “we next must consider both the risk of erroneous deprivation of private interests resulting from use of a ‘fair preponderance’ standard and the likelihood that a higher evidentiary standard would reduce that risk. . . . Since the [third party] proceeding is an adversary contest between the [third party] and the . . . parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties.” (Citation omitted.) Santosky v. Kramer, supra,
Santosky raised some specific concerns as to the risk of erroneous deprivation in a termination proceeding. One of these concerns, the imbalance of resources to litigate the action, is not implicated in a meaningful way when the state is not a party to the proceeding. Private litigants always face the risk that they may have to defend against a party with greater resources. Other concerns raised in Santosky, however, are implicated in the present
Additionally, as in termination proceedings, there is no double jeopardy or other doctrinal bar to protect a parent from a third party’s repeated efforts to relitigate the custody issue. Cf. Rivera v. Minnich,
Other concerns that were not implicated in Santosky, however, arise in third party custody proceedings that demonstrate that the preponderance standard creates a substantial risk of erroneous deprivation of the right to family integrity. Specifically, although this court concluded that an adjudication of neglect, uncared for or dependent under §§ 46b-120 and 46b-129 requires only proof by a preponderance of the evidence, the different effect of, and protections attendant to, that state initiated
First, a neglect adyudication under § 46b-129 does not result necessarily in an order depriving the parent of custody, a factor that we have deemed constitutionally significant. See, e.g., In re Juvenile Appeal (84-AB), supra,
The majority points to the fact that one possible disposition under our neglect statutes is an order vesting custody in a “suitable and worthy” third person; see General Statutes § 46b-129 (j); and rationalizes that, because this court had held in a 1985 opinion that periodic judicial review is not required in such circumstances; see In re Juvenile Appeal (85-BC),
Notably, the only other mechanism available to a third party seeking to deprive a parent of custody is by way of an application to have the parent removed as guardian. See General Statutes § 45a-610.
“Given the weight of the private interests at stake, the social cost of even occasional error is sizable. Raising the standard of proof would have both practical .and symbolic consequences. Cf. Addington v. Texas, [supra,
C
Finally, I turn to the third factor, the countervailing governmental interest supporting use of the challenged procedure. Santosky v. Kramer, supra,
Although the state is not a party to a third party custody proceeding, in light of the substantial relationship that must be established by the third party, I would view the third party intervening in a custody
The interest in protecting the child’s welfare does not mandate the lesser preponderance burden of proof. In the rare case in which there is proof by a preponderance of the evidence, but not clear and convincing evidence, that denial of the third party custody petition would result in real and substantial harm to the child, the court still has authority to take action to protect the child. The court could bring the department into the action and either order supervised parental custody or commit the child to the department. In so doing, the court would trigger the full panoply of the procedural protections attendant to neglect proceedings to promote family integrity. The majority’s concern that our trial courts would not take remedial action to ensure some oversight of the child in the rare case wherein the petitioner has proved by a preponderance of the evidence, but not clear and convincing evidence, that a child is at risk of serious harm is, quite simply, unfair to our trial courts. I have full faith that our trial courts would not look the other way should such a case be presented. Thus, application of the heightened burden of proof to third party custody petitions would prevent the erroneous deprivation of family autonomy without increasing the risk that the child could be exposed to serious harm. Cf. Rivera v. Minnich, supra,
As the court noted in Santosky v. Kramer, supra,
Finally, I note that the state’s administrative and fiscal burdens also do not weigh in favor of the lesser burden of proof. Our trial judges, and in particular family court judges, are well versed in the application of the clear and convincing standard in numerous other contexts. See, e.g., General Statutes §§ 17a-78 and 17a-80 (hospitalization of child with mental disorder); General Statutes §§ 17a-111b, 17a-112 and 45a-717 (termination of parental rights); General Statutes § 45a-610 (removal of parent as guardian); General Statutes § 45a-650 (appointment of conservator); General Statutes § 45a-676 (appointment of plenary guardian for mentally retarded person); General Statutes § 46b-129 (termination of department’s duty to make reasonable efforts to reunify family).
Balancing the three aforementioned factors, the logical conclusion is that due process requires application of the clear and convincing burden of proof. “The reason for adopting this heightened burden of proof in custody disputes between a biological parent and a third party is the same as the reason for adopting a heightened standard in termination of parental rights cases. The state and federal constitutions require a heightened standard because of the possible effects the proceeding might have on a biological parent’s parenting rights. ... To prevent unwarranted termination or interference with a biological parent’s parenting rights, the grounds for judicial action must be established by clear and convincing evidence. . . . Evidence that satisfies this heightened burden of proof eliminates any serious or substantial doubt concerning the correctness of the conclusion to be drawn from the evidence .... It should produce in the fact-finder’s mind a firm belief or conviction regarding the truth of the allegations sought to be established.” (Citations omitted.) Ray v. Ray,
Accordingly, I respectfully concur in the judgment.
General Statutes § 46b-56b provides: “In any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.”
In Castagno v. Wholean, supra,
The Supreme Court’s decisions recognizing this fundamental right date back to at least 1923. See Meyer v. Nebraska,
The majority dismisses these statements as “overly simplistic” in the context of the issue in the present case and misconstrues the relationship that I have drawn between visitation and custody. With respect to the first point, this court implicitly recognized in Roth that the stringent standard of harm that we adopted in that case clearly would be justified if the state was engaging in the greater intrusion on the parent’s constitutional rights attendant to a custody order, but that the lesser intrusion resulting from visitation was sufficiently similar in kind, albeit not degree, to justify the heightened standard.
The majority misconstrues the point I have made in citing to this analogy by asserting that the concurrence declares that: visitation is “merely” a limited form of custody; that both therefore “intrude on the liberty interest of the parent in essentially the same manner”; and that “because third party custody removes a child from the parent for a longer period of time, it deprives the parent of the ‘quintessential rights of parenthood ....’” With the lone exception of accurately quoting the phrase “quintessential rights of parenthood,” the majority misconstrues the discussion herein as to the relationship between, and the differences attendant to, visitation and custody. As the discussion herein clearly makes evident, visitation is one limited aspect of the bundle of rights that constitutes custody. Irrespective of how long the period of visitation ordered, visitation never confers the “quintessential rights of parenthood” attendant to custody.
The majority’s reliance on the possibility of joint custody is troubling for several reasons. The present case does not illustrate the availability of this disposition. The trial court did not order that joint custody be shared with the parent that opposed Husaluk’s petition for custody; the court ordered that Husaluk and the plaintiff, Paula J. Fish, the child’s mother, who did not object to Husaluk’s petition, share custody. Moreover, the court’s orders pertaining to both parents leave them with none of the essential rights of parenthood, only the illusory right of “consultation” before Husaluk makes any decision regarding the child’s upbringing. Thus, the present case illustrates the unlikelihood that a court will determine that parental custody is contrary to the child’s interests and yet still permit that parent to share custody with a third party.
More troubling, however, is the effect of the majority’s suggestion that joint custody is a proper disposition when a third party seeks custody over a fit parent’s objection in conjunction with its holding that less stringent standards of pleading and proof apply in custody petitions than those applied in third party visitation petitions. By so concluding, the majority in effect encourages nonparents to circumvent the more stringent visitation standards by simply seeking limited joint custody instead of visitation.
Finally, I note that, even if joint legal custody may be a disposition option in a third party custody dispute, the fact that a less intrusive disposition may be available has no weight in determining the procedural and substantive protections necessary to protect the constitutional interests at stake. Courts gauge requisite constitutional standards on the basis of the greatest possible infringement that could result from an adverse decision in the proceeding, not the least intrusive result. For example, in a proceeding to terminate parental rights, a heightened standard of proof is constitutionally mandated, even though the court may determine in the dispositional phase that termination is not warranted, because the proceeding could result in the termination of parental rights. See In re Deana E.,
The Supreme Court continually has reaffirmed that “a [sjtate’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ ... ‘A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.’ . . . Accordingly, [the court has] sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” (Citations omitted.) New York v. Ferber,
See, e.g., La. Civ. Code Ann. art. 133 (West 1999) (custody to parent would result in “substantial harm” to child); Minn. Stat. §§ 257C.01 (3) and 257C.03 (6) and (7) (2006) (child has lived with petitioner two years immediately preceding custody petition without parent’s presence and without parental involvement for six months to one year, depending on child’s age; parent has abandoned, neglected or disregarded child’s well-being to extent that child will be harmed by living with parent, presence of physical and/or emotional danger to child in remaining with parent, or other extraordinary circumstances); Tex. Fam. Code Ann. §§ 102.004 (a) (1) and 153.131 (a) (Vernon 2002) (parental custody “presents a serious question concerning child’s physical health or welfare” or “would significantly impair the child’s physical health or emotional development”); H.E.B. v. J.A.D.,
Although the majority suggests that some of these jurisdictions apply a standard that is comparable to the one it has adopted, it overlooks the fact that most of those jurisdictions have not held, as has the majority implicitly, that extraordinary circumstances means harm of a lesser degree than when a child “is being denied proper care and attention, physically, educationally, emotionally or morally, or ... is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . . .” General Statutes § 46b-120 (9) (B) and (C) (defining neglect). It also glosses over the fact that many of these jurisdictions apply a clear and convincing burden of proof. See footnote 12 of this concurring opinion.
I also note that, although some states do not provide specifically for statutory intervention by third parties in dissolution proceedings to obtain custody, as does Connecticut, a majority of states have considered the question of when it is proper for a court to award custody to a third party over a parent. That question may arise in any one of several contexts — a guardianship, dissolution or paternity proceeding or in some other context not expressly provided for by statute. Because in my view the constitutional limits on a state’s ability to exercise its power to vest custody of a child in a third party over a parent’s objection generally remain the same irrespective of which procedural vehicle is used to invoke the court’s authority, I do not distinguish the states based on the particular procedure by which the third party may obtain custody.
This court’s recognition in In re Joshua S. that Roth and Troxel signal a change in the legal landscape also undermines reliance on legislative intent as to the meaning of detriment. Although I do not agree with the majority that the legislative history demonstrates a rejection of the Roth standard of harm, because the focus of legislative debates preceding adoption of the parental presumption in § 46b-56b clearly was on the burden of proof, we cannot presume in any event that the legislature adopted the detriment standard fully mindful of the constitutional implications. The legislature amended § 46b-56b in 1986 to add the provision regarding the grounds for rebutting the parental presumption. See Public Acts 1986, No. 86-224. In light of the fact that, in 2000, this court in Roth overruled its 1994 holding in Castagno following the Supreme Court’s 2000 decision in Troxel, we hardly could expect the legislature to be more prescient than this court in predicting constitutional developments. Moreover, even if the legislature had considered what the constitution demands, it clearly is the province of the court to determine whether a statutory standard passes constitutional muster. See Office of the Governor v. Select Committee of Inquiry,
General Statutes § 46b-120 provides the following relevant definitions: “(4) ‘[Ajbused’ means that a child or youth (A) has been inflicted with physical injury or injuries other than by accidental means, or (B) has injuries that are at variance with the history given of them, or (C) is in a condition that is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment ... (7) a child or youth may be found ‘dependent’ whose home is a suitable one for the child or youth, save for the financial inability of parents, parent, guardian or other person maintaining such home, to provide the specialized care the condition of the child or youth requires ... (9) a child or youth may be found ‘neglected’ who (A) has been abandoned, or (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth, or (D) has been abused; (10) a child or youth may be found ‘uncared for’ who is homeless or whose home cannot provide the specialized care that the physical, emotional or mental condition of the child requires. . . .”
In my view, the majority misconstrues the Supreme Court’s disinclination in Troxel v. Granville, supra,
In Roth, the court did not elaborate on the basis for its determination that due process did not mandate a heightened burden of proof, stating only: “We recognize that due process requires the clear and convincing test be applied to the termination of parental rights because it is the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent; Santosky v. Kramer, supra,
In recognition of the significance of the interest at stake, many states apply the clear and convincing burden of proof to a custody contest between a parent and a third party as a matter of legislative or judicial policy. See, e.g., Ariz. Rev. Stat. § 25-415 (B) (2007); Mich. Comp. Laws § 722.25 (2005); Minn. Stat. § 257C.03 (6) and (7) (2006); N.M. Stat. Ann. § 40-10B-8 (2006); Va. Code Ann. § 20-124.2 (B) (2004); Evans v. McTaggart,
Only a few courts, however, have addressed the question of what burden of proof is mandated by due process. There is no clear consensus among those courts, and, as a general matter, the courts summarily have reasoned either that the heightened burden of proof is mandated because of the significance of the constitutional interest at stake; see, e.g., In the Matter of Guardianship of Blair, Court of Appeals, Docket No. 2-950,
I also note that, to extent that the majority relies on dicta in Lehrer v. Davis,
In the present case, under the trial court’s order, the defendant has no authority to render decisions on any major events affecting his child’s life, only the right of consultation with the intervening paternal aunt, Husaluk, in whom the court vested custody and final authority on all such matters. Although 1he court ordered that the child return to Connecticut during her breaks from school, the order provides only that she is to be “encouraged” to spend equal visitation time with her parents and that she may decline to stay overnight with the defendant.
As this court recently explained in Sweeney v. Sweeney, supra, 271 Conn. 211, wherein at issue was an order permitting a minor child to attend a parochial school against one parent’s wishes: “The lost opportunity to have a child exposed only to academic and religious influences sanctioned by a joint legal custodian cannot be replaced by any subsequent court order. Moreover, such a pendente lite order may impact this parental right over a significant period of time, with the harm to the parental interest increasing exponentially as the minor child spends more time in the educational institution at issue. Subsequent attempts by an aggrieved parent to modify such a pendente lite order also may not be an adequate substitute for vindication of the parent’s rights through an appeal. Finally, a pendente lite order such as this may result in a spillover effect with regard to subsequent decisions related to the enrollment of the minor child. Charged with the determination as to what is in the best interests of the minor child, the trial court may later be reluctant to create a degree of instability in the daily life of the minor child, and adversely impact personal bonds created with teachers and classmates, by ordering the transfer of the minor child to another educational institution.”
Thus, I disagree both as a matter of fact and logic with the majority’s contention that a lesser standard of proof is warranted because “§ 46b-57, unlike the visitation statute, permits third party intervention only in an existing controversy before the court.” This reasoning appears to resurrect the precise logic that this court rejected in Roth v. Weston, supra,
The court, must determine within sixty days after issuing an ex parte temporary custody order or committing the child to the department’s custody whether the department has made reasonable efforts to keep the parent with the child prior to the issuance of the court’s order. General Statutes § 46b-129 (b) and Q). Nine months after an order of commitment, the commissioner of children and families (commissioner) must file a motion for review of a permanency plan for the child. General Statutes § 46b-129 (k) (1). The permanency plan may recommend family reunification, with or without supervision. General Statutes § 46b-129 (k) (2) (B). Nine months after the permanency plan is approved, the commissioner must file a motion for review of the plan, and a hearing must be held within ninety days after the motion is filed. General Statutes § 46b-129 (k) (1). After an initial permanency hearing, subsequent, permanency hearings must be held at least, every twelve months as long as the child remains in custody of the department. General Statutes § 46b-129 (k) (1). The commissioner can avoid its obligation to reunify the child with the parent if the court determines, by clear and convincing evidence, that the parent has subjected the child to certain aggravated circumstances, such as sexual or physical abuse. General Statutes § 17a-111b (b).
The majority points to chapter 25 of the Practice Book and asserts that “many of the due process protections in chapters 32a and 35a of the Practice Book accorded the parents of a child in a neglect or termination proceeding, including the right to a hearing, are provided in a custody proceeding.” Chapter 25 does not, however, provide for appointment of counsel for parents contesting custody. It provides for appointment of counsel for the minor child; Practice Book § 25-24; appointment of counsel in civil contempt proceedings related to family matters; Practice Book § 25-63; and appointment of counsel in state initiated paternity actions. Practice Book § 25-68; see also Foster v. Foster,
The majority also posits that certain broadly phrased permissive provisions of our General Statutes and rules of practice applicable to custody “might” prompt a trial court to issue specific steps to aid reunification efforts following an order of third party custody. There is, however, no mandate to do so.
General Statutes § 45a-610 provides: “If the Court of Probate finds that notice has been given or a waiver has been filed, as provided in section 45a-609, it may remove a parent as guardian, if the court finds by clear and convincing evidence one of the following: (1) The parent consents to his or her removal as guardian; or (2) the minor child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility for the minor child’s welfare; or (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being, as a result of acts of parental commission or omission, whether the acts are the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and the parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not in the best interests of the minor child be permitted to exercise, parental rights and duties at the time; or (4) the minor child has had physical injury or injuries inflicted upon the minor child by a person responsible for such child’s health, welfare or care, or by a person given access to such child by such responsible person, other than by accidental means, or has injuries which are at variance with the history given of them or is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation, deprivation of necessities, emotional maltreatment or cruel punishment; or (5) the minor child has been found to be neglected or uncared for, as defined in section 46b-120. If, after removal of a parent as guardian under this section, the minor child has no guardian of his or her person, such a guardian may be appointed under the provisions of section 45a-616. Upon the issuance of an order appointing the Commissioner of Children and Families as guardian of the minor child, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the minor child with his or her parents prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the minor child’s best interests, including the minor child’s health and safety.”
As the statute indicates, if the commissioner is appointed as guardian, rather than a private party, the department still has the obligation to make reasonable efforts to reunify the family, if possible.
The parent is entitled to appointed counsel in a guardianship proceeding. General Statutes § 45a-609 (Jo). If the commissioner, rather than a third party, is appointed as guardian, the court must determine whether reasonable efforts were made to keep the child with the parent before the court issued the order. General Statutes § 45a-610.
Thus, contrary to the majority’s statement, the Supreme Court recognized that more than the parent’s interest is at stake in termination proceedings, specifically, the child’s welfare, but nonetheless concluded that the child’s interest, to the extent that it might diverge from the parent’s interest, adequately was protected by the heightened burden of proof.