246 Conn. 413 | Conn. | 1998
Lead Opinion
Opinion
This certified appeal arises out of the trial court’s denial of the motion by the plaintiff, Irene Ireland, seeking permission to relocate with her minor son to California and its granting of the motion by the defendant, James F. Ireland, to enjoin and restrain the relocation. The principal issue is whether the trial court correctly placed the burden on the plaintiff custodial
The following facts, which appear in the Appellate Court opinion, are pertinent to this appeal. “The parties’ marriage was dissolved on January 30, 1990. Pursuant to the agreement of the parties that was incorporated into the dissolution decree, the court awarded joint custody of their minor son to the parties, with primary physical custody to the plaintiff. From September, 1989, until August, 1995, the order allowed the defendant to visit his son every other weekend. At the time of the dissolution, the plaintiff resided in Connecticut, and the defendant resided in Massachusetts. In 1993, the defendant remarried and settled with his wife in Fair-field county.
“The plaintiff commenced a relationship with Steven Zakar in 1992 and married him in November, 1995. Zakar is a computer consultant whose major consulting contract concluded in April, 1995. He undertook a search for additional work and secured a position in Sacramento, California. In July, 1995, the plaintiff informed the defendant of her plan to join Zakar in California with their son. In reaction to this news, the defendant obtained a temporary injunction that enjoined the plaintiff from leaving the state with the minor child ....
“At the three day trial commencing January 30, 1996, the trial court heard evidence and argument on the defendant’s motion to enjoin and restrain and the plaintiffs motion for permission to relocate with their son. After analyzing the evidence under the best interests of the child standard, the trial court denied the plaintiffs motion and granted the defendant’s motion.” Ireland v. Ireland, 45 Conn. App. 423, 425, 696 A.2d 1016 (1997).
In its memorandum of decision, the trial court stated: “[R]elocation in joint custody cases must be viewed on
The plaintiff appealed from the judgment of the trial court. Ireland v. Ireland, supra, 45 Conn. App. 425. In affirming the trial court’s decision, the Appellate Court first determined that the trial court had not abused its discretion in requiring the custodial parent seeking to relocate to shoulder the burden of proof as to the child’s best interests. Id., 426. Next, pursuant to its supervisory authority to provide guidance to the trial courts, the Appellate Court endorsed certain criteria set forth in the widely cited case of D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27, aff'd, 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976), for determining the best interests of the child in future postjudgment relocation cases.
We granted the plaintiffs petition for certification as to the following issues: “1. Did the trial court consider the correct criteria for determining the best interests of the child when the parent who was awarded primary physical custody of the child wishes to relocate?”; “2. Was the trial court correct in placing the burden of proof on the custodial parent?”; and “3. Was the trial court correct in prohibiting the custodial parent from calling the attorney for the minor child as a witness to examine him with respect to his written report filed with the court recommending that the child’s best interest would be served if the child remains in Connecticut?” Ireland v. Ireland, 243 Conn. 905, 701 A.2d 330 (1997). As to the second issue, which is dispositive in this case, we conclude that the trial court improperly placed the entire burden of proof on the custodial parent and, accordingly, we reverse on that issue. In order to provide guidance to the lower courts on remand, we also address the two remaining issues. As to the first, we conclude that although the criteria considered by the trial court were in fact relevant to this case, on remand,
I
The issue of whether the trial court was correct in placing the burden of proof on the custodial parent is one of first impression for this court. Because this question is dispositive, we address it first.
The plaintiff argues that the trial court was incorrect in placing the “burden of establishing the benefits of the move [on] . . . the relocating parent.” She asserts that such a burden allocation created an inherent presumption in favor of the noncustodial parent that relocation is not in the child’s best interests. She argues further that creation of such a presumption is a departure from this court’s precedent, in which we consistently have declined to impose presumptions in custodial determinations. See, e.g., Presutti v. Presutti, 181 Conn. 622, 627-28, 436 A.2d 299 (1980) (declining to impose presumption either for or against nonresident parent); Simons v. Simons, 172 Conn. 341, 350, 374 A.2d 1040 (1977) (declining to impose presumption favoring mother or presumption against modification). Finally, the plaintiff argues that placement of the burden solely on the custodial parent seeking relocation is improper, and she urges this court to adopt a burden allocation scheme that incorporates either shifting burdens of persuasion, or burdens shared by both parents.
The defendant, on the other hand, argues that the parent proposing relocation, as the party seeking to modify custody or visitation arrangements, should bear the burden of persuading the trial court that the relocation would be in the best interests of the child. The
A
It is well settled in this state that, in deciding custody or visitation issues, a court must always be guided by what is in the best interests of the child. See Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997); Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993); Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). General Statutes § 46b-56 (b) provides in part that “[i]n making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child . . . .” Moreover, “[t]his court has consistently held in matters involving child custody, and, by implication, visitation rights, that while the rights, wishes and desires of the parents must be considered it is nevertheless the ultimate welfare of the child which must control the decision of the court.” (Internal quotation marks omitted.) Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980); see also Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981) (in matters regarding visitation orders, “the court considers the rights and wishes of the parents . . . but . . . must ultimately be controlled by the welfare of the particular child”).
Unlike some of our sister states,
Clearly, there is a very close relationship between the protection of the interests of children in custody and visitation matters and the interests of children in relocation cases. The only difference relevant to this discussion is that the former are expressly protected by statute whereas the latter are protected by interpretation of the policy behind the statutes. “Just as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent . . . courts must discharge their responsibility, in case by case adjudication, to assure that the body of the law — both common and statutory — remains coherent and consistent.” (Citations omitted.) Fahy v. Fahy, supra, 227 Conn.
B
We recognize the difficult issues that relocation cases present. The interests of the custodial parent who wishes to begin a new life in a new location are in conflict with those of the noncustodial parent who may have a strong desire to maintain regular contact with the child. At the heart of the dispute is the child, whose best interests must always be the court’s paramount concern. Those interests do not necessarily coincide, however, with those of one or both parents.
Historically, most states have discouraged the relocation of a custodial parent with minor children, in part, to protect and preserve the children’s relationship with the noncustodial parent, under the assumption that it is in a child’s best interests to live near both biological parents.
The notion that relocation might be in the best interests of the child, in large part because such a move would also be in the best interests of the custodial parent, finds support in the writings of legal scholars. “Prohibiting a move by the custodial parent may force that parent to choose between custody of his or her child and opportunities that may benefit the family unit, including the child as well as the parent. . . . Imposing this choice can be severely detrimental to the psychological and economic well-being of the parent over many years. It also has the potential for burdening the parent-child relationship for many years, regardless of the choice the parent makes. A parent who relinquishes a significant life-enhancing opportunity in order to maintain custody of a child may become distraught and depressed. . . . The child may well experience diminished parenting as a result of the parent’s discouragement and suffering. . . . The child may suffer great anguish and blame himself or herself for having stood in the way of the parent.” J. Wallerstein & T. Tanke, “To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce,” 30 Fam. L.Q. 305, 315 (1996).
It should be noted, however, that allowing relocation need not be only for the purpose of avoiding such negative effects. The move may offer benefits, such as the promise of economic, emotional, financial, or educational enhancement of the child’s life. In other words, the prospects awaiting the custodial parent in a new location may be such that the child’s best interests would be served by the custodial parent being allowed to pursue those prospects. The new location may offer
1
We must recognize the possibility, however, that a custodial parent could be motivated to relocate, not by a desire to build a new and better life for the child and the new family unit as a whole, but rather, for example, by a vindictive desire to interfere in the relationship between the noncustodial parent and the child. Such an improper motive should not serve as the basis for a decision to put a greater distance between a noncustodial parent and a child. Because we recognize that such situations exist, we find useful the relevant provision addressing such concerns that has been set forth by the American Law Institute in its Principles of the Law of Family Dissolution: Analysis and Recommendations (Tentative Draft No. 3, Pt. I, March 20,1998) (Principles of the Law of Family Dissolution). The provision provides that “[a] parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose.” Id., § 2.20 (4) (a).
The standard proposed by the American Law Institute properly places the initial burden of proof on the custodial parent, which is the party with the best access to information relevant to the legitimacy of the motives behind the planned relocation. We conclude, therefore, that the custodial parent must bear the burden of proving, by a preponderance of the evidence, that the relocation is for a legitimate purpose and, further, that the proposed location is reasonable in light of that purpose.
2
Once the custodial parent has made a sufficient showing as required, it must still be demonstrated that the relocation is in the child’s best interests. The question remains as to who should bear the burden of proof on this issue. Although some states place a substantial burden on the relocating custodial parent to demonstrate the benefits that the relocation would offer the child, others apply presumptions favoring relocation. According to the American Law Institute, “[t]he clear trend has been that of increasing leniency toward the parent with whom the child has been primarily living.” Principles of the Law of Family Dissolution, supra, § 2.20 (4) (a), comment (d).
Our society is an increasingly mobile one. Largely “[b]ecause of the instability and unpredictability of the employment market . . . the high incidence of remarriage, and the high incidence of second divorces,
It should be noted that there are no constraints, beyond the conscience of the noncustodial parent, prohibiting that parent from relocating wherever he or she chooses, even if the new location is geographically distant from the child’s residence. In D’Onofrio v. D’Onofrio, supra, 144 N.J. Super. 207-208, one of the leading relocation cases, the court addressed this notion: “[A] noncustodial parent is perfectly free to remove himself from [a] jurisdiction despite the continued residency [there] of his children in order to seek opportunities for a better or different life style for himself. And if he does choose to do so, the custodial parent could hardly hope to restrain him from leaving [the] State on the ground that his removal will either deprive the children of the [parental] relationship or depreciate its quality. The custodial parent, who bears the essential burden and responsibility for the children, is clearly entitled to the same option to seek a better life for herself and the children, particularly where the exercise of that option appears to be truly advantageous to their interests and provided that the . . . interest [of the noncustodial parent] can continue to be accommodated, even if by a different visitation arrangement than theretofore.” We likewise believe that a custodial parent with potentially bright prospects on a distant horizon should not be tethered indefinitely to the noncustodial parent’s choice of residence, as long as the proposed relocation is in the best interests of the child. For the
In summary, we hold, therefore, that a custodial parent seeking permission to relocate bears the initial burden of demonstrating, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, and (2) the proposed location is reasonable in light of that purpose. Once the custodial parent has made such a prima facie showing, the burden shifts to the noncustodial parent to prove, by a preponderance of the evidence, that the relocation would not be in the best interests of the child.
II
While resolution of the second certified issue regarding the allocation of the burden of proof is dispositive, in order to provide guidance in this evolving area of law, we will also address the first certified issue: “Did the trial court consider the correct criteria for determining the best interests of the child when the parent who was awarded primary physical custody of the child wishes to relocate?” Ireland v. Ireland, supra, 243 Conn. 905.
The legislature has not defined “best interests of the child.” Historically, this court has likewise eschewed defining the phrase in different, contexts as opportunities to do so have arisen. In the case before us, however, exercising its supervisory authority, the Appellate Court endorsed the criteria set forth in D’Onofrio v. D’Onofrio, supra, 144 N.J. Super. 200, for use in determining the best interests of a child in future relocation cases. See Ireland v. Ireland, supra, 45 Conn. App. 427. These factors, as set forth by the Appellate Court, are: “(1) advantages of the move in terms of its likely capacity to improve the general quality of life for the custodial
The plaintiff asserts that, because the best interests of the child are so intricately interwoven with the interests of the custodial parent, any determination of the child’s best interests necessarily encompasses an inquiry into the interests of the custodial parent. The defendant argues that the analytical approach advanced by the plaintiff of shifting the focus of the inquiry from the best interests of the child to those of “some other person or entity,” here, the new family unit, contravenes this court’s long-standing commitment to the best interests of the child standard. The plaintiff responds that the best interests of the child remain the appropriate focus in relocation cases and that she has not suggested that the interests of the new family unit are “either paramount or the sole factor to be considered in a custodial relocation case.”
We agree with the plaintiffs characterization of her argument and take this opportunity to reaffirm that the best interests of the child must always govern decisions involving custodial or visitation matters. An approach that takes into consideration the interests of the new family unit as a whole is consistent with the best interests of the child standard. In fact, we believe that an attempt to determine what is best for the child without consideration of what is best for the family unit, with
While the Appellate Court endorsed the D’Onofrio criteria for use in future relocation cases, the plaintiff urges this court to adopt instead the factors advanced by the New York Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). These factors are: “[E]ach parent’s reasons for seeking or opposing the move, the quality of the relationships
The defendant argues, on the other hand, that the Appellate Court considered the correct criteria in determining the best interests of the child. He asserts that the D’Onofrio criteria are “clearly relevant to the competing interests of the parties and the child.”
The D’Onofrio criteria, which have been widely cited in the past two decades, have proven useful to many courts in their analyses of the best interests of children in relocation cases.
Examination of both sets of criteria reveal that each of the factors set forth in D’Onofrio is essentially included in the Tropea list. While one D’Onofrio criterion — the likelihood of the custodial parent to comply with visitation orders necessitated by relocation — is not expressly stated in the Tropea factors, it is implicit in two of the factors: “[T]he impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent . . . and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.” Tropea v. Tropea, supra, 87 N.Y.2d 740-41. Moreover, the additional factors listed by the Tropea court but not considered by the D’Onofrio court, such as the quality of the relationship between the child and each parent, the relationship between the parents themselves and its potential negative impact, if any, on the child, and the relationships between the child and members of his or her extended family; id.; all carry the potential to shed further light on what the best interests of the child may be in relocation cases. The focus of these
In endorsing the use of the Tropea factors in future relocation cases, we also follow the example of the New York Court of Appeals in providing a cautionary word to our trial courts. As that court stated: “[N]o single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome. There are undoubtedly circumstances in which the loss of midweek or every weekend visits necessitated by a distant move may be devastating to the relationship between the noncustodial parent and the child. However, there are undoubtedly also many cases where less frequent but more extended visits over summers and school vacations would be equally conducive, or perhaps even more conducive, to the maintenance of a close parent-child relationship, since such extended visits give the parties the opportunity to interact in a normalized domestic setting.” Id., 738.
We emphasize that the list of factors we endorse today should not be considered exclusive, nor should any single factor be presumed to carry dispositive weight. Moreover, any other facts or circumstances that could have a bearing on the court’s determination of the child’s best interests should be considered and given
We return now to the present case. Although the trial court essentially considered several of the factors we adopt today, on remand, it should consider all of the factors to determine their bearing, if any, on the case. We remind the trial court that the list of factors is not exhaustive and that the court should consider any other facts or circumstances relevant to a determination of the child’s best interests.
Ill
The final certified issue in this appeal is: “Was the trial court correct in prohibiting the custodial parent from calling the attorney for the minor child as a witness to examine him with respect to his written report filed with the court recommending that the child’s best interest would be served if the child remains in Connecticut?” Ireland v. Ireland, supra, 243 Conn. 905. Although we need not address this issue to dispose of this appeal, we discuss it as it is likely to arise again on remand.
The following facts as set forth in the Appellate Court opinion are pertinent to a discussion of this issue: “Prior to trial, on November 6,1995, [the attorney for the child] submitted a report to the trial court recommending that the child’s best interest would be served by preserving the status quo and remaining in Connecticut. The plaintiff attempted to call [the attorney] as a witness to question him about the report. The trial court ruled that the attorney could not be questioned.” Ireland v. Ireland, supra, 45 Conn. App. 430. On appeal, the Appellate Court affirmed the trial court’s ruling. Id.
The plaintiff argues that, because the attorney’s report contained “personal biases, presumptions and
The defendant argues that the trial court correctly excluded the attorney as a witness. He relies on General Statutes § 46b-54 (c), which provides in part that “[c]ounsel for the child or children shall be heard on all matters pertaining to the interests of any child . . . so long as the court deems such representation to be in the best interests of the child.” (Emphasis added.) Specifically, the defendant argues that the statute does not limit the methods of communication available to the attorney for the child and, therefore, it was permissible for the attorney to submit the report.
A trial court, in exercising its broad discretion in determining what is in a child’s best interests, “may appoint counsel for any minor child ... if the court deems it to be in the best interests of the child . . . .” General Statutes § 46b-54 (a). “The purpose of appointing counsel for a minor child . . . is to ensure independent representation of the child’s interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.” Schult v. Schult, supra, 241 Conn. 778.
Although issues involving attorneys for minor children have previously come before this court, we have never taken the opportunity to delineate the precise role those attorneys should play in legal proceedings regarding custody and visitation. See, e.g., id., 779 (stating court has not delineated exact roles of attorney for child and guardian ad litem and recognizing roles could conflict); Knock v. Knock, supra, 224 Conn. 791 (noting neither legislature nor court has determined obligations
In his argument that the attorney’s actions in submitting his report and not being subjected to questioning were proper, the defendant, in his brief, relies on Practice Book § 285A, now Practice Book (1998 Rev.) § 5-1, which provides in part that “[t]he parties may, as of right, or shall, if the court so orders, file, at such time as the court shall determine, written trial briefs discussing the issues in the case and the factual or legal basis upon which they ought to be resolved. . . .’’(Emphasis added.) The defendant asserts that the attorney’s report contains “exactly the type of material provided for in § 285A: a discussion of the factual and legal basis upon which the relocation issue should be resolved.” Section 285A, however, governs the filing of trial briefs. The unsolicited report in question is not a trial brief. It is, in fact, a two page report containing the attorney’s personal opinions as to the nature of the relationships between the parents and the child, and the quality of parenting experienced by the child. It also contains the attorney’s opinion that the child’s best interests would be served by his remaining in Connecticut. In short, the report is a statement of personal opinions, devoid of legal analysis. Therefore, contrary to the defendant’s assertions, the attorney’s report does not provide a “factual and legal basis” for resolution of the relocation issue.
Moreover, we can think of no good reason, nor has the defendant provided one, to justify inteipreting § 285Aso as to permit the introduction of an attorney’s personal
This is not to say that an attorney for a child should not be heard regarding the child’s best interests. The legislature has deemed such input to be relevant. See General Statutes § 46b-54 (c). Rather, as indicated by this court, an attorney for the child should provide “independent representation of the child’s interests . . . within the usual constraints applicable to such representation.” (Emphasis added.) Schult v. Schult, supra, 241 Conn. 778. We conclude that such representation is limited to the type of representation enjoyed by unimpaired adults. In other words, the attorney for the child is just that, an attorney, arguing on behalf of his or her client, based on the evidence in the case and the applicable law. The attorney is not, however, a witness, whether quasi-expert or otherwise. Thus, an attorney
The unsolicited report in question, submitted to the court months in advance of trial, contained a conclusion as to the proper outcome of the case, supported only by the attorney’s opinion as to what would be in the best interests of the child. As a foundation for his ultimate conclusion that the child’s best interests would be served by his remaining in Connecticut, the attorney began with the premise that “the child’s best interest is served by spending the maximum time possible with each of his biological parents.” The attorney provided no legal or analytical basis for this premise but, rather, based it on his own obseivations. Such a position is more properly advanced by a guardian ad litem; and, even then, such an opinion should ordinarily be submitted through testimony subject to cross-examination, rather than through an unsolicited written report.
As we have stated: “ ‘Typically, the child’s attorney is an advocate for the child, while the guardian ad litem is the representative of the child’s best interests.’ ” Id., 779, quoting Newman v. Newman, supra, 235 Conn. 96. Further, we have expressed a concern about conflating the two roles. See Schult v. Schult, supra, 241 Conn. 779 (“we expressed concern about creating conflict in
Returning to the appeal before us, we conclude, without attempting to define the precise parameters of the functions of the guardian ad litem, that such a distinction between the two roles is proper. An attorney for the child should not express to the court, in advance of trial, his or her opinion as to the best interests of the child, particularly when that opinion is at the heart of the ultimate issue in the case. An attorney for the child should participate in legal proceedings by submitting trial briefs, questioning witnesses, giving oral argument, and, generally, by functioning in a manner similar to an attorney for an unimpaired adult. The proper forum and method for communication of his or her opinion is during final argument. Outside of that forum, his or her opinion has no place in the proceedings.
IV
In conclusion, on remand, the custodial parent seeking to relocate must prove, by a preponderance of the evidence, that the proposed relocation is motivated by a legitimate purpose and that the new location bears a reasonable relation to that purpose. Once the custodial parent has made such a prima facie showing, the burden shifts to the noncustodial parent to prove, by a preponderance of the evidence, that the relocation would not be in the best interests of the child. To determine the
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for a new hearing.
In this opinion CALLAHAN, C. J., and BORDEN, BER-DON and PALMER, Js., concurred.
According to the D’Onofrio court, in order “to accommodate the compelling interests of all of the family members” in relocation cases, a court should “consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children. It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation orders when she is no longer subject to the jurisdiction of the courts of this State. It must likewise take into account the integrity of the noncustodial parent’s motives in resisting the removal
See Ariz. Rev. Stat Ann. § 25-408 (C) (1) (West Sup. 1997); Cal. Fam. Code § 7501 (Deering 1996); Ind. Code § 31-17-2-23 (1997); Kan. Stat. Ann. § 60-1620 (1994); Mass. Gen. Laws Ann. c. 208, § 30 (West 1994); Minn. Stat
Another common rationale for disallowing relocation of a custodial parent and his or her child is the desire of the court system to retain jurisdiction over matters involving the child. See, e.g., Auge v. Auge, 334 N.W.2d 393, 399 (Minn. 1983) (“[i]n the past, removal was commonly denied because of the potential loss of jurisdiction over custody issues”); In re Marriage of Francis, 919 P.2d 776, 784 (Colo. 1996) (“[ijnitially, courts discouraged removal in part to promote a meaningful relationship between the child and the non-custodial parent and in part to avoid disputes over the appropriate jurisdiction of the court prior to passage of the Uniform Child Custody Jurisdiction Act”).
See, e.g., In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 482-83 and n.10, 51 Cal. Rptr. 2d 444 (1996) (overruling precedent that placed burden on custodial parent to justify proposed move as “necessary” or “essential and expedient”); Bernick v. Bernick, 31 Colo. App. 485, 487-88, 505 P.2d 14 (1972) (“in the absence of a clear showing to the contrary,
The tentative draft of the Principles of the Law of Family Dissolution also provides as examples of legitimate purposes to relocate: “[T]o be close to significant family or other support networks, for significant health reasons, to protect the safety of the child or another member of the child’s household from a significant risk of harm, to pursue a significant employment or educational opportunity, or to be with one’s spouse [or spouse equivalent, if such is defined in Chapter 6] who is established, or who is pursuing a
This analytical approach mirrors that followed by the Colorado Supreme Court in 1996, in In re Marriage of Francis, supra, 919 P.2d 776. There, the court held that, in removal cases, “the custodial parent must present a prima facie case showing that there is a sensible reason for the move. . . . Once the prima facie case has been made, a presumption allowing the child to remain with the custodial parent arises and the burden shifts to the noncustodial parent to show that the move is not in the best interests of the child.” (Citation omitted.) Id., 784-85.
Several other states have established burdens of proof or presumptions that require the noncustodial parent to demonstrate that the proposed relocation is not in the best interests of the child. See, e.g., In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 482-83, 51 Cal. Rptr. 2d 444 (1996) (placing burden on noncustodial parent to show move will be harmful to child); Sefkow v. Sefkow, 427 N.W.2d 203, 214 (Minn. 1988) (removal allowed absent showing by noncustodial parent that such action would endanger child’s well-being); Aaby v. Strange, supra, 924 S.W.2d 629-30 (relocation allowed unless noncustodial parent proves that relocation is motivated by desire to defeat visitation rights or poses danger to well-being of child); Lane v. Schenck, 158 Vt. 489, 499, 614 A.2d 786 (1992) (relocation must be allowed unless noncustodial parent proves that best interests of child would be “so undermined by a relocation . . . that a transfer of custody is necessary”); but see, e.g., Pollock v. Pollock, 181 Ariz. App. 275, 277, 889 P.2d 633 (1995) (placing burden regarding best interests of child on custodial parent seeking to relocate); Staab v. Hurst, 44 Ark. App. 128, 134, 868 S.W.2d 517 (1994) (placing burden on custodial parent to show “some real advantage” to relocation); Ramos v. Ramos, 697 So. 2d 280, 283 (La. App. 1997) (placing burden on custodial parent to prove that “the move is in the child’s best interest”); Burnham v. Basta, 241 App. Div. 2d 628, 629, 659 N.Y.S.2d 945
The D’Onofrio criteria have been either specifically cited with approval or essentially adopted by many state courts. See Pollock v. Pollock, 181 Ariz. App. 275, 278, 889 P.2d 633 (1995); Staab v. Hurst, 44 Ark. App. 128, 134, 868 S.W.2d 517 (1994); In re Marriage of Chester, 907 P.2d 726, 730 (Colo. App. 1995); Mize v. Mize, supra, 621 So. 2d 417; In re Marriage of Eckert, 119 Ill. 2d 316, 325, 518 N.E.2d 1041 (1988); In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 479 (Iowa 1993); Yannas v. Frondistou-Yannas, 395 Mass. 704, 710, 481 N.E.2d 1153 (1985); Anderson v. Anderson, 170 Mich. App. 305, 309, 427 N.W.2d 627 (1988); Auge v. Auge, supra, 334 N.W.2d 398-99; Effinger v. Effinger, 913 S.W.2d 909, 912 (Mo. App. 1996); Trent v. Trent, 111 Nev. 309, 316, 890 P.2d 1309 (1995); Stout v. Stout, 560 N.W.2d 903, 908-909 (N.D. 1997); Gruber v. Gruber, 400 Pa. Super. 174, 184-86, 583 A.2d 434 (1990); Fortin v. Fortin, 500 N.W.2d 229, 232 (S.D. 1993); Taylor v. Taylor, 849 S.W.2d 319, 331 (Tenn. 1993); Love v. Love, 851 P.2d 1283, 1289 (Wyo. 1993).
We note that while the New York Court of Appeals did not determine, in Tropea, which party should bear the burden of proof as to the child’s best interests, lower courts of that state have since placed the burden on the custodial parent seeking relocation to demonstrate that the proposed relocation would be in the child’s best interests. See, e.g., Burnham v. Basta, 241 App. Div. 2d 628, 659 N.Y.S.2d 945, 947 (1997) (placing burden on custodial parent). Although we have chosen to place this burden on the noncustodial parent opposing the relocation; see part IB 2 of this opinion; we note that the issue regarding the allocation of the burden of proof is distinct from that of establishing criteria to be employed in determining what the child’s best interests are. Therefore, we are free to adopt the Tropea factors while establishing our own burden allocation scheme.
As additional support for his position, the defendant cites Wolf v. Wolf, 39 Conn. App. 162, 163, 664 A.2d 315 (1995), stating that the Appellate Court in that case expressly indicated that a trial court order that counsel for the children prepare a report similar to that submitted by the attorney in the present case was within the scope of General Statutes § 46b-54 (c). For several reasons, however, Wolf does not support the defendant’s position. For example, the report in Wolf was expressly solicited by the court and was to be submitted after conclusion of the trial and only “in the event of a disagreement between the parties concerning whether their daughter would attend boarding school . . . .” Id. In such circumstances, the attorney was to ascertain the child’s wishes on that very limited question and prepare a posijudgment report for the trial court. Id. Therefore, the report in Wolf, submitted at the court’s request and limited in its subject matter, was very different than the report at issue in the present case, which was unsolicited and which contained an opinion as to the ultimate conclusion in the case.
Chapter 815j of the General Statutes, which governs the resolution of custody disputes, does not require the appointment of a guardian ad litem. See generally General Statutes §§ 46b-40 through 46b-87a. General Statutes § 45a-132 (a), however, provides in part that a judge or magistrate “[i]n any proceeding before a court of probate or the Superior Court. . . may appoint a guardian ad litem . . .
Concurrence Opinion
concurring. I fully concur with and join the majority opinion. I write separately only to respond briefly to the statement in the concurring opinion of Justice Palmer that “the burden allocation scheme the majority adopts today will be dispositive only in those relatively rare cases in which the evidence adduced regarding the best interests of the child with respect to relocation is in equipoise.” First, once the custodial parent has met his or her initial burden of establishing the legitimacy of the relocation, it is very unlikely that the evidence will be in equipoise.
Furthermore, although the statement of Justice Palmer is true — that is, allocating a burden of proof by the preponderance of the evidence is dispositive only when the fact finder determines that the evidence is in equipoise, and therefore the party with the burden loses — the emphasis on that truism unduly minimizes the other, significant aspects of the allocation of a burden of proof. In addition to determining when the allocation will be dispositive, it also informs the parties of what precisely they have to prove. Furthermore, it provides a structure for the trial court regarding how to think about the case as it hears the evidence.
Concurrence Opinion
concurring. I fully concur and join in the majority opinion. But I must confess that many of the concerns expressed by Justice Norcott in his dissenting opinion are also troubling for me. One of those concerns I share with him is that our decision today may cause additional litigation with respect to the initial custody determination because of the presumption in favor of the custodial parent once he or she demonstrates to the court “that the relocation is for a legitimate purpose and . . . that the proposed location is reasonable in light of that purpose.” A parent realizing that his or her visitation may be effectively eliminated or severely restricted because of a possible future relocation of the other parent may think twice before voluntarily agreeing that the other parent should have custody.
More importantly, it is clear that reasonable visitation for the noncustodial parent is generally in the best interests of the child and putting distance between the child and that parent obviously will impact on those best interests. I realize that some scholars have advocated that the best interests of the child require that visitation be at the sole discretion of the custodial parent; J.
Nevertheless, there are no real perfect solutions when the biological parents of the child decide to go their separate ways — especially when it is not done in an amicable manner. I join in the majority opinion because once the biological parent demonstrates that he or she has an ongoing relationship with the child, that it is important for the best interests of the child that that relationship be maintained, and that the place to which the custodial parent’s plans to relocate will severely impede on that relationship, that presumption will be overcome. I believe that with the adoption of the factors set forth in Tropea v. Tropea, 87 N.Y.2d 727, 740-41, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), for the purposes of guiding our trial courts in determining whether the noncustodial parent has sustained his or her burden of overcoming the presumption, the best interests of the child should be fully protected.
“Once it is determined who will be the custodial parent, it is that parent, not the court, who must decide under what conditions he or she wishes to raise the child. Thus, the noncustodial parent should have no legally enforceable right to visit the child, and the custodial parent should have the right to decide whether it is desirable for the child to have such visits. What we have said is designed to protect the security of an ongoing relationship — that between the child and the custodial parent. At the same time the state neither makes nor breaks the psychological relationship between the child and the noncustodial parent, which the adults involved may have jeopardized. It leaves to them what only they can ultimately resolve.” J. Goldstein, A. Freud & A. Solnit, supra, p. 38.
Concurrence Opinion
concurring. I join the majority opinion for the reasons set forth therein. I write separately,
I agree with the majority that, in circumstances in which one parent has been awarded sole physical custody of a child, and that parent wishes to relocate, as long as he or she establishes that the move is for a legitimate purpose and is reasonable in light of that purpose, the noncustodial parent properly bears the burden of showing why the move would not be in the child’s best interests. This approach gives appropriate voice to the custodial parent’s bona fide interest in relocating. I discern nothing in the majority opinion, moreover, that may be interpreted as signaling a departure from what remains the proper, and sole, focus of the court’s analysis, namely, the best interests of the child. Therefore, it is true, as the majority states, that there will be situations in which a child’s interests will be best served by permitting the custodial parent to relocate with the child. It is equally true, however, that there also will be circumstances in which, although the custodial parent establishes that a relocation would be in his or her own best interests, the noncustodial parent will be able to demonstrate that, for any number of legitimate reasons, the child’s best interests militate in favor of preserving the nature and frequency of the
Of course, there may be other persuasive reasons why relocation would not be in the child’s best interests.
Two statements in the concurring opinion of Borden, J., warrant a brief response. First, Justice Borden asserts that “once the custodial parent has met his or her initial burden of establishing the legitimacy of the relocation, it is very unlikely that the evidence will be in equipoise.” It is not clear to me upon what this conclusion is based. More importantly, however, at that stage of the proceedings, the noncustodial parent will not yet have had the opportunity to establish that relocation is not in the child’s best interests. Thus, whether the evidence is or is not in equipoise when the burden shifts to the noncustodial parent is simply beside the point. As I have indicated, the burden allocation scheme the majority adopts today will be dispositive only in those few cases in which the custodial parent has met his or her initial burden and the noncustodial parent has demonstrated only that, in light of all relevant factors, the status quo is no better for the child than relocation.
Second, Justice Borden’s statement that the burden allocation scheme adopted by the majority “establishes what the law considers to be the presumed outcome” of this type of case is potentially misleading. Of course, it is true that, under the majority’s approach, once the custodial parent has established legitimate reasons to move, the noncustodial parent will be required to show, by a preponderance of the evidence, that relocation is not in the child’s best interests. This burden allocation scheme presumes no outcome; rather, it places a very light “thumb on the scale” in favor of the custodial parent who can establish bona fide reasons to relocate. Thus, although the burden the majority places on the noncustodial parent will be decisive in the rare case in which the relative merits of relocation, on the one hand, and the status quo, on the other, are in equipoise, the only truly outcome determinative consideration is the child’s best interests.
Dissenting Opinion
dissenting. I agree with part II of the majority opinion that the factors set forth in Tropea v. Tropea, 87 N.Y.2d 727, 740-41, 665 N.E.2d 145, 642
The issue of whether the trial court was correct in placing the burden of establishing the benefits of the move on the custodial parent is one of first impression for this court.
As a preliminary matter, it is an unfortunate reality “that divorce causes irrevocable changes in parent-child relationships.” Gruber v. Gruber, supra, 400 Pa. Super.
The majority reasons that the noncustodial parent should be required to bear the burden of demonstrating that the move is not in the best interests of the child because of its assumption that the decision by the custodial parent to relocate, having demonstrated that the decision is not motivated by an improper motive and is for a legitimate purpose, is presumed to be in the best interests of the child.
It is undisputed that the parent who has physical custody will be called upon to make countless daily decisions that affect the life and well-being of the child. I further acknowledge that in situations where custody is contested, the trial court, in awarding physical custody, has recognized that living with the custodial parent is in the best interests of the child. In the present case, the majority seeks to extend this presumption to the decision to relocate to a home that is on the other side of the country, upon demonstrating that the relocation is in good faith, for a legitimate purpose and to a location that is reasonable in light of that purpose. The fact that a custodial parent was awarded physical custody because it was determined to be in the best interests of the child should not be considered in a vacuum.
Moreover, in adopting a presumption whereby the custodial parent’s decision to relocate is presumed to be in the child’s best interests, the majority has departed from long-standing precedent. This court has consistently eschewed the use of presumptions in custodial determinations. See, e.g., Presutti v. Presutti, 181 Conn. 622, 627-28, 436 A.2d 299 (1980) (declining to impose presumption either for or against nonresident parent); Simons v. Simons, 172 Conn. 341, 350, 374 A.2d 1040 (1977) (declining to impose presumption favoring mother or presumption against modification). The reason we have done so is because such determinations are highly individualized and require a case-by-case determination, one that has as its goal the best interests of the child. As a rule, a presumption, at a minimum, shifts the burden of producing evidence. 2 C. McCormick, Evidence (4th Ed. 1992) § 342, p. 450. The burden of going forward is on the party against whom the presumption operates to produce evidence to negate the presumption. See Doe v. Doe, 244 Conn. 403, 455, 710 A.2d 1297 (1998). Under the presumption adopted by the majority, a custodial parent would have to demonstrate only that the relocation was for a legitimate purpose and that the proposed location was reasonable in light of that purpose, not that specific benefits would cause it to be in the best interests of the child. By adopting a presumption in what should be a balancing test to ascertain the best interests of the child, the majority places its thumb on the scale firmly on the side of the custodial parent.
Because the presumption favors the custodial parent’s decision to move, it might be thought that this analytical framework will reduce litigation in these cases. The parties, however, upon realizing the significance of having physical custody, then will have the incentive to litigate this at an earlier stage of the proceedings to prevent the other parent from being able to move away with the children. Because of its emphasis on labels, the majority opinion, by adopting a presumption in favor of a custodial parent, as in In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 51 Cal. Rptr. 2d 444 (1996), and its progeny, “[promises to] foster custodial battles at the beginning stages of a case because of the awesome consequences of long-distance relocation of children.” R. Bryan, “Beyond Burgess,” 20 Fam. Advoc. 14, 16-17 (1997).
The issue to be resolved in such cases distills to whether the benefit to the child in relocating outweighs the loss or diminution of contact with the noncustodial parent. The analysis must begin, therefore, by ascertaining the benefits of the proposed move, a highly factual and individualized determination ill-suited to the use of a presumption. Cases in which a custodial parent’s desire to relocate conflicts with the desire of a noncustodial parent to maximize visitation opportunity are simply too complex to be satisfactorily handled with a mechanical approach that interferes with a simultaneous weighing and comparative analysis of all of the relevant facts and circumstances. The imposition of a presumption in such a situation necessarily detracts from focusing on whether the relocation is in the best interests of the child, which must remain our touchstone. A custodial parent, in making the decision to relocate, is likely to underestimate the value of a continued relationship between the child and the noncustodial parent. “Sensitive case-by-case balancing is required to ensure that all interests are treated as equitably as
Rather than construe the authority to relocate children out-of-state as inherent in the award of physical custody, as does the majority, I view the decision to relocate analytically indistinct from a modification of the visitation established by the parties at the time of dissolution. A move out-of-state will render it impossible for the noncustodial parent to continue the current visitation schedule and, therefore, the existing order will require modification. As the party seeking to disrupt the status quo and thereby effecting a change in visitation, the custodial parent is the logical party to identify the benefits of the move that necessitate what may be a dramatic reduction in visitation with the noncustodial parent. The custodial parent is in the best position to identify the reasons why the locale was selected, the advantages of the relocation, and how the change would parlay into an improvement of the child’s situation such that the move would be in the best interests of the child. This framework is consistent with our approach when a party seeks to modify visitation. See General Statutes § 46b-56 (b) (1) (“[i]n making or modifying any order with respect to custody or visitation, the court shall... be guided by the best interests of the child”); Cookson v. Cookson, 201 Conn. 229, 241, 514 A.2d 323 (1986) (party seeking to modify visitation bears burden of persuasion that modification is in child’s best interests). Moreover, requiring the custodial parent to articulate the benefits of the relocation imposes only a slight burden. It stands to reason that demonstrating such
Other jurisdictions similarly have required the custodial parent to establish that the relocation is in the best interests of the child. See, e.g., Pollock v. Pollock, 181 Ariz. App. 275, 277, 889 P.2d 633 (1995) (custodial parent seeking to move has burden of proving move is in child’s best interests); Staab v. Hurst, 44 Ark. App. 128, 134, 868 S.W.2d 517 (1994) (custodial parent should have burden of first demonstrating some real advantage will result from move); In re Marriage of Clark, 246 Ill. App. 3d 479, 481, 616 N.E.2d 2 (1993) (“In removal cases, the paramount question is whether the move is in the best interest of the child. The burden of proof is on the custodial parent.”); Ramos v. Ramos, 697 So. 2d 280, 283 (La. App. 1997) (custodial parent must show that there is good reason for move and that move is in child’s best interests); Yannas v. Frondistou-Yannas, supra, 395 Mass. 711-12 (if custodial parent demonstrates “real advantage” then interests of other parties are considered collectively); Effinger v. Effinger, supra, 913 S.W.2d 912 (consideration of various factors in determining if relocation is in best interests of child); Harder v. Harder, 246 Neb. 945, 946, 524 N.W.2d 325
I propose that once the custodial parent has made a prima facie showing that the move is in the best interests of the child, the burden should shift to the noncustodial parent to prove, by a preponderance of the evidence, that the relocation is not in the best interests of the child. Such a burden shifting scheme retains the focus on the effect of the move on the children, who, yet again, are caught between battling parents. It has been said that there are no winners in these battles. That may be true, but when faced with these difficult issues, the focus of this court should not waiver from the best interests of the child.
Although Blake v. Blake, 207 Conn. 217, 541 A.2d 1201 (1988), was a relocation case, we did not establish the analytical framework to be used in such cases.
The burden shifting scheme adopted by the majority “mirrors that followed by the Colorado Supreme Court in 1996, in In re Marriage of Francis, supra, 919 P.2d 776.” See footnote 6 of the majority opinion.
Primary physical custody in the present case was the result of an agreement between the parties, not the result of a judicial determination of the best interests of the child.
Dissenting Opinion
dissenting. I would uphold the trial court’s decision placing the burden of proof upon the custodial parent. As Justice Norcott points out, many other states require the custodial parent to bear the
The majority places the burden on the noncustodial parent — the father in this case — to establish that his child should not be moved across the country at the convenience of the custodial parent. In the future, any parent would be foolish to forego physical custody or not stipulate that the custodial parent keep the child within a number of miles of Connecticut.
In this case, the father, while sharing joint legal custody of the child with the mother, had agreed that she would have primary physical custody. The father attempted to maintain his relationship with his son by so-called “reasonable visitation.” Because the mother’s new husband may have had better employment opportunities in California, she sought an order that would deem coast-to-coast visits reasonable visitation. After hearing the witnesses, the trial court found that “the evidence against the move [was] overwhelming,” and that the move was “not in the minor child’s best interests.” I would affirm the Appellate Court in upholding the trial court’s well reasoned, careful and thoughtful opinion.
The majority refers to the financial, marital and cohabitational opportunities that such travel would afford the custodial parent, as if such opportunities would replace the father’s role in his son’s life.
In this case, the noncustodial parent is the father. In a changing world, a mother with a demanding job and a homemaking husband could find herself to be the noncustodial parent. See M. Petersen, “The Short End of Long Hours: A Female Lawyer’s Job Puts Child Custody at Risk,” N.Y. Times, July 18, 1998, p. D1 (discussing Young v. Hector, 740 So. 2d 1153 [Fla. App. 1998], superceded by 740 So. 2d 1158 [Fla. App. 1999]).
As to the first and third certified questions, I would affirm the well reasoned opinion of the Appellate Court.
Accordingly, I respectfully dissent.
In so doing, the majority cites with approval, in a footnote, the tentative draft of the American Law Institute’s “Principles of the Law of Family Dissolution.” See footnote 5 of the majority opinion. The use of such footnotes to advance a set of values has drawn the attention of scholars. See generally, e.g., A. Austin, “Political Correctness Is a Footnote,” 71 Or. L. Rev. 543 (1992).
