Officially Released July 2, 2019.
The (Really) Short Version: Once a third-party secures visitation under § 46b-59, a fit parent seeking terms and conditions on the already-ordered access must demonstrate good faith and that the requested terms are in the child’s best interests.
The Short(ish) Version: In ordering visitation to a third-party under § 46b-59 there is no requirement that the trial court order the third-party to abide by all decisions regarding custody and care by a fit parent. A fit parent seeking terms and conditions on the visitation of a third-party must make a specific and timely request and state whether the request implicates fundamental parental rights. The fit parent bears the burden of demonstrating that such request for terms and conditions is in good faith.
The Long Version of the Facts is ugly and depressing. Father and Mother married in 2011, had a child in 2012 and divorced in 2013. During the marriage Father subjected Mother to a “course of domestic violence, threats and humiliation” that resulted in his incarceration on seven separate occasions. Mother was awarded sole custody and Father had no visitation until April of 2015 when he was awarded supervised access. Maternal Grandparents were divorced but had significant relationships with the child from birth, particularly during the twenty-two months that Father was incarcerated.
Mother died in March of 2016 and Father was awarded custody of the child. Father cut off access between the child and Maternal Grandparents in June of 2016 believing that they were seeking custody and his incarceration. Maternal Grandparents filed a verified petition for visitation pursuant to 46b-59 in November of 2016.
At the evidentiary hearing on the petition Dr. Humphrey, licensed clinical psychologist testified as an expert witness stating that the Maternal Grandparents had been very involved as the child’s primary caretakers during the twenty-two months of Father’s incarceration, that Mother’s death was “very traumatic … and severely disruptive …” for the child, that Maternal Grandparent’s disappearance had compounded the sense of loss, that lack of contact would cause real and significant harm if allowed to continue, and that it was in the best interests of the child to see Maternal Grandparents. The GAL testified to a parent like relationship with Maternal Grandmother and a healthy and positive relationship, albeit not parent-like, with Maternal Grandfather. Father did not raise any concerns about contact between the child and other relatives during the hearing on the petition.
The Trial Court issued a Memorandum of Decision finding, by clear and convincing evidence, that both Maternal Grandparents had a parent-like relationship with the child and that denial of visitation would cause real and significant harm. Maternal Grandmother was awarded every other weekend and Maternal Grandfather was awarded Wednesdays after school. Father appealed this decision.
Father filed a post-judgment motion for order pursuant to 25-24(a) that the Maternal Grandparents allow no contact with the Maternal Aunt. Father argued that refusal to honor that request constituted a denial of his fundamental parental right to make decisions regarding the child’s care, control and associations. Father did not testify at the hearing on this motion and presented no evidence. The Trial Court denied the motion. Father filed a motion to reargue claiming that evidence was irrelevant because a fit parent’s decisions must be presumed to be in the best interest of the child and the constitutional limitations that constrain granting third-party visitation necessarily apply to the terms of such visitation order. The motion to reargue was denied. Father filed an application for an expedited public interest appeal from this denial pursuant to § 52-265a and Practice Book § 83-1, claiming the denial violated § 46b-59 and the due process clause of the 14th Amendment of the U.S. Constitution. The application for expedited appeal was granted and the appeals were consolidated.
While those consolidated appeals were pending, Father filed a post-judgment motion to open and terminate visitation claiming that a substantial change in circumstances, his voluntary offer of four hours per week access to the paternal grandparents, divested the trial court of subject matter jurisdiction. Father argued that, where there was not denial of visitation, there could be no real and significant harm resulting from denial of visitation under § 46b-59(b).
Maternal Grandparents filed motions for contempt because Father had refused the court ordered access. Father moved to dismiss that motion for lack of subject matter jurisdiction on the same basis as his post-judgment motion. The trial court denied Father’s motion to dismiss, held Father in contempt, and issued a stayed order of incarceration to compel compliance with the visitation orders and modest counsel fees. Father filed an amended appeal seeking review of the trial court’s denial of his motion to dismiss. This was treated as another application for expedited appeal and consolidated.
The Supreme Court first undertook a detailed review of the fundamental principles governing third-party access from 1925 to present.
The First Issue on Appeal was whether the court was denied subject matter jurisdiction based on Father’s voluntary offer of visitation after the orders had entered. Father argued that there could no longer be any real and significant harm under § 46b-59(b) from denial of visitation where he was voluntarily offering visitation. Subject matter jurisdiction is subject to plenary review. The Supreme Court held that voluntarily stopping a challenged action does not deprive the court of power to determine the legality of the action, because such a rule would free the challenged individual to restart the action at any time. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000). A party cannot evade judicial review or defeat an order by temporarily halting the challenged action. Voluntary conduct can only moot a case if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. The mooting party bears the burden. Father did not meet his heavy burden of demonstrating that his offer was in good faith rather than designed to undermine the order. His behavior demonstrated the opposite. Thus, the trial court had subject matter jurisdiction to continue the order and enforce the order.
The Second Issue on Appeal was whether the trial court’s order of visitation violated the implicit requirements of § 46b-59 and the due process clause of the 14th Amendment of the U.S. Constitution “because it failed to include a provision affirmatively directing the plaintiffs to abide by his decisions regarding [the child’s] care during the duration of their visit with [the child.]” This was not a challenge to the underlying Roth findings of the trial court, but to the lack of affirmative direction to abide by the parent’s decision concerning the minor child’s care, control, education, health, religion and associations. Plenary review applies to both review of statutory construction and constitutionality of a statute. The Supreme Court held nothing in § 46b-59 requires an order of third-party visitation to include an affirmative order not to override the fit parent’s decisions regarding care. The statute specifically provides the trial court with authority to craft “terms and conditions that the court determines are in the best interests of the minor child.”
As to the constitutional challenge, the Supreme Court held that once the high hurdle of § 46b-59 is surmounted by clear and convincing evidence, the presumption that the fit parent is acting in the child’s best interests has been rebutted. This does not mean a fit parent has forfeited parental rights or the third party has obtained them, only that those rights are not absolute. Visitation is a limited form of custody during the time of its exercise. Roth v. Weston, 259 Conn. 202, 229 n.13 (2002). The Supreme Court established the procedure that a “party seeking to impose terms and conditions on the order of visitation must make a specific and timely request. A request is specific if it is tailored to identify and ameliorate the party’s concern and is accompanied by an explanation of how the requested terms and conditions further the best interests of the child.” If a parent believes the requested terms implicate fundamental parental rights the parent must alert the trial court. A belated request “may support an inference that it is not made in good faith…”
In making terms and conditions, the trial court must give special weight to a fit parent’s preferences. “[P]roperly tailored parental requests made in good faith should not be rejected by the trial court solely on the basis of the third party’s conflicting views or the judge’s own personal lifestyle preference.” (quoting Fish v. Fish, 285 Conn. 24 at 47 (2008). There are many decisions that do not fall within the scope of fundamental parental prerogative and even as to fundamental matters, the trial court must satisfy that the request was made in good faith and that the request is in the child’s best interest.
Here, the request was untimely as it was made after the close of evidence on the grant of access and was a demand without explanation regarding origin or basis. Thus, the trial court was upheld.
The Third Issue on Appeal was the claim that the amount of visitation awarded violated Father’s fundamental parental rights under the 14th Amendment. The Supreme Court held that this claim was not preserved as it was never made at the trial level. Notwithstanding the failure to preserve this issue, because a fundamental parental right was implicated under the U.S. Constitution, the Supreme Court was entitled to consider whether review was appropriate. State v. Golding, 213 Conn. 233, 239-40 (1989). Nevertheless, the Supreme Court held that the record was inadequate for review of this issue under the Golding standard.
The Judgment was affirmed.
 The short version of the facts is also ugly and depressing. Mother and Father married, had a child and divorced. Father was abusive and repeatedly incarcerated resulting in his absence and supervised access. Mother died, Father was awarded custody and subsequently refused access to the child with Maternal Grandparents. Maternal Grandparents petitioned for visitation under § 46b-59 and prevailed. Father sought orders that require Maternal Grandparents to abide by his request for no contact with Maternal Aunt, which the trial court denied, and Father appealed. Father offered limited voluntary access to Maternal Grandparents and claimed this denied the court subject matter jurisdiction because there was no longer denial of visitation, the trial court denied and Father appeals. Father was found in contempt for violating the access orders and his motion to dismiss the contempt on the basis of lack of subject matter jurisdiction was denied and Father appealed. All appeals were consolidated.