Officially released October 31, 2017.
Mother appealed a judgment sustaining an emergency ex parte order which denied mother access with the parties’ minor child. The parties were never married. Custody, support and visitation had been litigated throughout the child’s life. Father had retained sole legal and primary physical custody since 2005. At the time of the filing of the underlying ex parte motion, the child was twelve years old. A GAL had been previously appointed for the minor child.
On May 10, 2015, a physical altercation occurred between the child and Mother during Mother’s access in her home. The child telephoned Father during the disturbance and both Father and the GAL overheard a portion of the altercation on that call. The police interviewed the child following the incident and determined that the access could not continue in a civil manner at that time.
On May 12, 2015, Father filed a motion for an emergency ex parte order of custody pursuant to Conn. Gen. Stat. § 46b-56f. The Trial Court found “that an immediate and present risk of physical or psychological harm to the child existed,” entered orders suspending Mother’s access and denying her any contact with the child, and scheduled a hearing for nine days later. The hearing was conducted over four days on May 21, June 16, June 24, and September 1 of 2015.
The Appellate Court ordered the Trial Court to articulate the factual basis for the conclusion that an immediate risk to the child existed and the Trial Court articulated a number of bases including the child’s statements, child’s desire not to see Mother, child’s psychological condition, therapist’s recommendations and academic regression.
Mother first claimed that the Trial Court violated 46b-56f(c), by refusing her an opportunity to be heard prior to the entry of the ex parte order, in light of the fact that she was available, wanted to participate and was physically in the courthouse when the ex parte was entered. The Appellate Court held that 46b-56f does not require the Trial Court to allow the respondent to be heard prior to entering ex parte relief, only requiring that the applicant submit an affidavit that states, inter alia, the actions taken to notify respondent or reason why those actions were not taken and that the court order a hearing on the application.
Mother’s second claim was that 46b-56f(c) mandates that the hearing be completed within fourteen days of the issuing of the ex parte order. The Appellate Court held that the hearing need only be scheduled within fourteen days, not completed within that time, finding that the statute was plain and unambiguous and noting that the statute provides for “postponement and continuance under certain conditions.”
Mother’s third claim was that the Trial Court’s ex parte order “expired ‘automatically’ after thirty days pursuant to Practice Book § 4-5” and that the Trial Court lost jurisdiction over the ex parte application after such time. Practice Book § 4-5 (b) states that “[w]hen an application for a temporary injunction is granted without … a hearing, the court shall schedule an expeditious hearing as to whether the temporary injunction should remain in effect. Any temporary injunction which was granted without a hearing shall automatically expire thirty days following its issuance, unless the court, following a hearing, determines that said injunction should remain in effect.” This is, practically speaking, an extension of Mother’s second claim, arguing that failure to complete the hearing within a specific time frame was in error. The Appellate Court noted that 46b-56(c) provides fourteen days for a hearing but that ex parte orders may be continued by order of the court “for good cause shown.” The Appellate Court further found that a substantial portion of the delay was due to accommodation of Mother’s own witnesses. Of more importance to the family practitioner, the Appellate Court also noted in so holding, that Mother did not “object” to the continuations of the orders, despite the fact that her counsel did ask for those orders to be removed at the end of multiple of the days of trial.
Mother’s fourth claim was that the Trial Court violated her constitutional right to due process under the Fourteenth Amendment, arguing that “a postdeprivation hearing spanning 112 days following the entry of an ex parte emergency order is unreasonable, and that § 46b-56f (c) should be invalidated as applied to the facts of her case.” The Appellate Court noted that the due process clause “demands that an individual be afforded adequate notice and a reasonable opportunity to be heard when the government deprives her of a protected liberty interest” but that “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” The Appellate Court found, again, that a substantial portion of the delay was due to Mother’s own actions in calling witnesses out of order, introducing testimony of extraneous events and filing numerous additional motions that needed to be addressed. The Appellate Court once again found that Mother failed to object to the length of the hearing and “agreed to the dates upon which the hearing was scheduled.” The suggestion here is that a family practitioner must formally object to the continuance and somehow not agree to dates upon which the hearing is scheduled. The Appellate Court did not opine on what facts would cause a delay to become a constitutional violation, only finding that this was not such a violation.
Mother’s final claim was that the Trial Court “lacked sufficient evidence to support its finding that an immediate and present risk of psychological harm to the child existed, pursuant to § 46b-56f.” Mother argued that psychological harm under the statute required a greater showing including testimony of a mental health expert or neutral fact witness. The Appellate Court noted that there are no explicit criteria for psychological harm under the 46b-56fh, that the standard of proof is the standard fair preponderance of the evidence and found that there were ample facts to support the Trial Court’s conclusion.
