1997 Conn. Super. Ct. 9813 | Conn. Super. Ct. | 1997
The pertinent facts alleged in support of the motion to dismiss are largely undisputed. On April 26, 1988, Melissa Matthews gave birth to a minor child, Shana M. Thomasen. The mother and father lived together after Shana's birth, but eventually separated in the spring of 1993. Barry Thomasen has had physical custody of Shana since February 24, 1994. On December 11, 1995, he obtained sole legal custody in New Britain Superior Court in the matter of Michelle Matthews v. BarryThomasen, Docket Number FA 89-0434886S.1 The mother was granted reasonable rights of visitation and also ordered to pay child support to the father. On October 7, 1996, the mother filed a motion to modify the visitation, alleging that the father would not permit her to see Shana. No court action was ever taken on this motion.
On July 22, 1996, plaintiff Michelle Matthews filed an application for removal of guardian and temporary custody against CT Page 9814 Thomasen in Bristol Probate Court. She alleged abandonment and denial of appropriate care and guidance by Thomasen. On September 10, 1996, the removal of guardianship proceeding was transferred to the Superior Court for Juvenile Matters in Plainville. The petition was dismissed with prejudice by that court on October 15, 1996.
The maternal grandmother and maternal aunt allege that Thomasen, as custodial parent, once permitted them reasonable and liberal visitation, but recently terminated all visitation. The child's mother, Melissa Matthews, is presently incarcerated but does not oppose visitation between Shana and her grandmother and aunt.
At oral argument, this court indicated it would not dismiss this action on the basis of res judicata. The doctrine of res judicata, or claim preclusion, provides that a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. Connecticut Natural GasCorporation v. Miller,
The second ground for dismissal, lack of jurisdiction over the subject matter, is premised on the claimed applicability ofCastagno v. Wholean, which held that third parties who seek to establish visitation with minor children must first demonstrate disruption of the family sufficient to justify state intervention. In the absence of this threshold requirement, a trial court lacks jurisdiction to decide the issue of visitation by third parties. In Castagno, the Supreme Court ruled, ". . . the legislature intended Section
Unlike Castagno, which involved grandparents filing an action for visitation against parents who were still married and residing together with their children, this court is faced with a "nontraditional" family of two unmarried parents and a child where the parents have separated. Recently in Paraskevas v.Tunick, the trial court, (Dranginis, J.), was faced with a case involving a mother and her former boyfriend. The boyfriend was seeking visitation rights with a child born to the mother during the couple's relationship. The mother had sought a restraining order prohibiting all contact. Although the boyfriend was not the child's biological father, he had a close relationship with the child he sought to preserve. The court noted, "the parties . . . constituted a "nontraditional" family and the separation of the parties is tantamount to a `de facto' separation. Additionally, the obtaining of the restraining order has already invoked the power of the court to intercede in this family and cannot now be said to be meaningless when it comes to invoking the power of the state. Thus, even under Castagno, the plaintiff has standing."Paraskevas v. Tunick, 19 CONN. L. RPTR. No. 2, 39, 47, (May 12, 1997).
Until 1993, the parents in this case also constituted a nontraditional family, and their separation would be tantamount to a "de facto" separation. In addition, Thomasen, in obtaining an order of custody in the Superior Court in 1985, previously invoked the intervention of the state into this family's privacy in a manner analogous to the situations addressed in §§
"When a non-traditional relationship is dissolving, the child is as likely to become a victim of turmoil and adult hostility as is a child subject to the dissolution of a marriage. In reCustody of H.S.H.-K.,
For the foregoing reasons, the motion to dismiss is denied.
KELLER, J.