Officially released January 21, 2020.
In Short: It remains virtually impossible to successfully intervene as a third party (Boisvert v. Gavis, 332 Conn. 115 (2019), is the exception to the rule). The verified petition should contain the entire case and, ideally, should allege that the child will be summarily executed if the request for visitation is denied.
The Background Facts: The trial court dismissed a third-party petition for visitation brought pursuant to § 46b-59 and Practice Book § 25-4. The Petitioners appealed arguing that the trial court erred in determining that the petition failed to satisfy the jurisdictional pleading requirements set forth in Roth v. Weston, 259 Conn. 202 (2002).
The Petitioners checked the requisite boxes on the petition regarding parent like relationship and real and significant harm and referenced an attached affidavit. The affidavit contained detailed claims regarding a relationship it alleged rose to the parent-like level.
Mother filed a motion to dismiss on the basis that the Petitioners lacked standing and therefore the court lacked subject matter jurisdiction because the petition failed to satisfy the second prong regarding “real and significant harm” that would result if the petition were denied. The Petitioners filed an objection to the motion to dismiss arguing that the request was improper because the real and significant harm was an appropriate subject for a hearing on the merits of the petition. The Petitioners filed an expert witness disclosure for Dr. Horowitz to testify as to the harm that would result from the sudden exclusion of relatives after years of regular involvement. Mother filed a motion to exclude expert testimony arguing that the proper inquiry was whether the petition, as pleaded, was sufficient to afford jurisdiction.
The trial court held a hearing exclusively on the motion to dismiss and granted the motion for failure to satisfy the jurisdictional elements. The Petitioners appealed arguing that the court erred in dismissing the petition and in excluding the expert testimony.
The standard of review on a motion to dismiss is plenary as it tests subject matter jurisdiction. A motion to dismiss requires the court to take the facts alleged and implied in the complaint and to construe them in the manner most favorable to the pleader.
The standard set forth in Roth v. Weston, 259 Conn. 202, 234-35 is as follows:
First, the petition must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship. The petition must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child. As we have stated, that degree of harm requires more than a determination that visitation would be in the child’s best interest. It must be a degree of harm analogous to the kind of harm contemplated by §§ 46b-120 and 46b-129, namely, that the child is ‘neglected, uncared-for or dependent.’ The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition.’’
Pursuant to Firstenberg v. Madigan, 188 Conn. App. 724, 376, the court must dismiss a third party’s petition if it lacks the allegations identified by Roth.
The Appellate Court held that the trial court properly limited the hearing to the allegations in the petition. The expert disclosure was not attached to the petition and constituted an attempt to supplement it. The trial court properly determined that the allegations in the petition failed to satisfy the second element regarding real and significant harm. The judgment was affirmed.
