Batista v. Cortes, 203 Conn. App. 365 (2021) (judicial discretion and custody orders)
Officially released March 23, 2021
In Short: The trial court has substantial discretion regarding the best interest of the child and seeking a change in primary residence can be challenging.
The parties were never married and parents to a child born in 2004. Mother lived in Florida and Father in Connecticut. In 2006 they entered into a parenting plan agreement providing joint legal custody with primary residence to mother in Florida. In 2008 the court ordered Father to pay $71 per week in child support.
In 2018 Father filed a motion for contempt seeking to revise the parenting plan to award him primary residence and seeking to recover alleged overpayments of child support he claimed were made due to misrepresentations of Mother. During a hearing on that motion in 2018 Father alleged that mother used corporal punishment against the child and the Court referred the matter to DCF and appointed a Guardian Ad Litem (“GAL”) for the child.
Thereafter, Father filed a motion to modify custody. Father alleged that it was in the child’s best interests to live with him, and that the GAL agreed with that contention. The trial court held a two-day hearing on that motion. The trial court told Father it could not rule on the issue of his alleged past overpayment of support, but the court heard testimony on support insofar as it related to the issues of custody.
The trial court issued a decision analyzing the child’s situation with both parents pursuant to the criteria of § 46b-56(c) to determine the best interests of the child. On balance, the trial court found that the best interests of the child were best served by preserving primary residence with Mother. The trial court also increased Father’s weekly child support obligation to $95 per week plus arrearage payments.
Father appealed claiming that the trial court erred in denying his motion to modify primary residence and failing to examine his alleged overpayment of child support.
Father claimed that the court erred on the issue of custody in that it (1) failed to address the alleged corporal punishment, (2) exhibited bias against him, (3) failed to appoint proper representation for the child, and (4) improperly credited the testimony of the mother’s witness. The Appellate Court noted the abuse of discretion standard and found nothing in the record to support father’s claim as to corporal punishment. The trial court had referred the matter to DCF and appointed a GAL who testified extensively at the hearing. The fact that the trial court did not make any specific findings as a result of its referral to DCF does not demonstrate error. The Appellate Court found that Father’s remaining arguments on this point were unreviewable. Father failed to allege bias by motion for disqualification or ask the judge to recuse herself. Father failed to contest the appointment of the GAL or ask for any other appointment. The assessment of credibility of witnesses is the province of the trier of fact.
Father claimed that the trial court did not properly consider his claim of child support overpayment. The Appellate Court determined that the trial court did not issue any order regarding audits of prior support payments or support enforcement services audits, it only issued orders as to future payments. There was, therefore, nothing to review on appeal.
The Judgment was affirmed.
