Officially released June 5, 2018.
Short version: the trial court has wide discretion as to factual findings in ex parte applications for custody and for relief from abuse. The trial court cannot delegate authority to enter custody and parenting orders to a psychologist or other non-judicial entity.
The parties were divorced in 2009 by agreement. The judgment provided joint legal custody with primary physical custody of the parties’ minor child to father. Father had been subject to a prior restraining order based on violence and threats of violence.
In 2016 Mother filed three motions: (1) an application for ex parte order of custody under 46b-56f seeking temporary custody and no contact between child and Father, (2) a motion for modification seeking sole custody of the child, and (3) in a separate action, an application for relief from abuse under 46b-15 to protect both herself and child.
With regard to the ex parte application for custody and the motion to modify custody, Mother alleged that Father had been arrested for an incident of physical abuse of his fiancé in front of the child. As to the application for relief from abuse, she alleged that Father had a history of violence, criminal record for abuse, stalking and harassment, and had threatened to kill Mother if she took the child from him. The trial court granted the ex parte applications and scheduled a hearing.
The parties stipulated that a medical report regarding the child by the child’s psychologist be admitted into evidence. The trial court continued the restraining order, as to mother only, and entered an order restricting Father’s access to that recommended by the psychologist stating “I am restricting that contact so that the mental health professional can be in charge.” Father appealed.
The first issue on appeal was whether Mother failed to meet her burden of proof as to the application for relief from abuse under § 46b-15, as to the ex parte application under § 46b56f and as to the motion to modify under § 46b-56. The “clearly erroneous” standard of review applied to review of the trial court’s findings of fact. The Appellate Court rejected the argument that there was insufficient evidence to find immediate present risk of physical danger or psychological harm to the child and found that the trial court was within its discretion to apply the 46b-15 relief to the dependent child as well as Mother.
The second issue on appeal was whether the trial court committed plain error by admitting the child’s mental health reports after the parties waived the privilege on behalf of the child, arguing that such waiver was invalid due to each party having a conflict of their own self-interest over that of the child. The Appellate Court noted that under § 45a-606 the parties jointly held the power to waive the privilege that would otherwise be afforded the child under § 52-146c(b). The plain error doctrine is an “extraordinary remedy” used to correct errors of “monumental proportion.” It requires that the error be clear and harmful to the point of working a manifest injustice. The Appellate Court found no authority indicating that the trial court’s admission of the report was improper and ruled that Father did not meet his burden as to the claim of plain error.
The third and final issue on appeal was whether the court improperly delegated its authority as to custody and parenting to a nonjudicial entity, the psychologist. The Appellate Court noted that the court cannot delegate authority to issue orders affecting the parties or children, citing Keenan v. Casillo, 149 Conn. App. 642, 660, 89 A.3d 912, cert. denied 312 Conn. 910, 93 A.3d 594 (2014). The Appellate Court found that the trial court had improperly delegated such authority by providing the psychologist the ability to increase and decrease contact between Father and child, and remanded for further proceedings as to that issue alone.
