A.D. v. L.D. 220 Conn. App. 172 (2023) (constitutional issues & abuse of discretion & custody modification)
Officially released June 27, 2023
In Short: The trial court’s suspension of Father’s access and criteria for filing a future motion to modify did not violate his federal constitutional rights to family integrity and did not constitute abuse of discretion. The preponderance of the evidence standard is the appropriate evidentiary standard for modification of custody and did not violate Father’s right to due process.
The parties were married in 1999 and had six children. They were divorced in 2018 after a twenty-day trial with the court adopting the parties’ agreement as to joint legal custody with primary residence to Mother. Father initially had every other weekend and Wednesdays after school with the three younger children, and weekly reunification with the older three children.
The parties then engaged in substantial post-judgment litigation culminating in an eighteen-day trial before Judge Diana. The trial court issued a memorandum of decision in 2020 resolving forty-one outstanding motions, including Mother’s motion for sole legal and physical custody of the minor children.
The trial court found that the children had not visited with Father since 2018, after an incident when Father broke his son’s phone and slapped two of the children. Since that date, the children had rejected all Father’s efforts to exercise access. The interactions and communications between the children and Father demonstrated extreme and crisis levels of disfunction. The result of the communication and attempted interactions included deleterious impacts on the children’s health such as panic attacks, missed school and extracurriculars, police and DCF involvement, Father’s arrest and a protective order. The trial court found that there had been a material change in circumstances. Reunification therapy had been terminated by the therapist after only two sessions based on the therapist’s conclusion that continued therapy was not appropriate under the circumstances.
The trial court found that Father’s obsession with proving that Mother had an affair during the marriage had continued and the same obsessive conduct now pertained to Father’s belief that Mother had alienated the children, for which the trial court found no credible evidence. Those behaviors, coupled with Father’s own actions and communication and his belief that he is blameless contributed to Father’s lack of relationship with the children. The trial court found Mother to be credible and Father to be defiant and misguided.
The trial court ordered that Mother have sole legal and physical custody. The trial court suspended Father’s access until further order and that he have no contact with the children by any means. The children were provided the option of a dinner visit with Father every Wednesday at a local restaurant. Mother was ordered to ensure that the children meet with a reunification therapist at least twice per year to reassess the possibility of initiating reunification therapy. Father would be permitted to file a motion to modify upon his completion of the Intimate Partner Violence Program (“IPVP”). Father appealed.
Father’s first claim on appeal was that the trial court violated his federal constitutional right to family integrity, in that the trial court terminated his custody, visitation and access and effectively terminated his parental rights without means to reinstate them, by awarding Mother control over potential access.
The Appellate Court noted that a parent’s interest in the care, custody and control of their children is a fundamental liberty protected by the fourteenth and ninth amendments to the United States Constitution. However, the Appellate Court found that the trial court’s orders did not effectively terminate Father’s parental rights, but instead suspended access and established a mechanism for reunification. Father’s claim that the only potential access he may have was through Mother and that she had alienated him from the children was unsupported by the evidence.
Father’s second claim on appeal was that the trial court abused its discretion by rendering a near impossibility that he can ever regain visitation with his children. Father argued that Mother controlled whether the children would meet with the reunification therapist and that he could not complete the IPVP without the participation of Mother and the children. The Appellate Court noted that the reunification therapy was not required before Father could file a motion, only the IPVP. The Appellate Court took judicial notice of the fact that Father had already completed the IPVP at the time of the decision, and had already filed (and argued and lost) subsequent motions to modify, so his claim as to impossibility must fail.
Father’s third claim on appeal was that the application of the preponderance of the evidence standard instead of the clear and convincing evidence standard violated his due process rights. The Appellate Court found that the clear and convincing evidence standard is required for termination of parental rights proceedings and that the preponderance of the evidence standard is the proper standard of proof for modification of custody, spending some time reviewing the history of the application of such standards. With termination of parental rights, the power of the state is brought against the parent(s) and may be brought multiple times to permanently terminate a parent’s rights, whereas in a custody dispute two parents are in dispute with each other. The Appellate Court found that Father’s due process rights were not violated.
The Judgment was affirmed.
