R.H. v. M.H. ___ Conn. App. ___ (2023) (discretion to delegate authority over access to a custodial parent)
Officially released June 6, 2023
In Short: With one dissenting opinion, this decision shifts the ground underneath what now appears to be fairly unsettled law as to whether, to what extent, and under what circumstances, the family court is permitted to award discretion to one parent to make decisions about the other parent’s access with the children.
The parties’ marriage was dissolved by separation agreement in March 2019, providing for joint legal and shared physical custody of their ten- and eleven-year-old children. The parties were to work with a co-parenting coordinator, follow a 2-2-3 schedule, and keep the children enrolled in the present school district.
In June 2019 Father filed a post-judgment motion for contempt alleging that Mother ceased working with the co-parenting coordinator, moved to Middletown requiring the children to wake up at 5:30 a.m. to get to school, and unilaterally contacted a state trooper and counselor about one of the children purportedly conducting inappropriate internet searches. Father also filed a post-judgment motion to modify custody and access seeking sole legal and physical custody of the parties’ minor children. The parties thereafter agreed to the appointment of a GAL and a custody evaluator and that Mother would be monitored by Soberlink.
In October 2019, Father filed an ex parte application for custody pursuant to C.G.S. § 46b-56f(a) based on an affidavit from the GAL indicating that Mother had tested positive for alcohol and failed retesting requirements, which the trial court granted on the papers. The parties entered into an agreement resolving and modifying the ex parte order, including further orders as to access and Soberlink. A hearing was scheduled for April 2021. Numerous additional motions were filed. Father filed an additional ex parte application which was denied on the papers but which resulted in an order of final decision-making and certain restrictions on Mother’s access to various providers. A six-day hearing was held between April and November of 2021 on all then-pending motions, including Father’s underlying motion to modify.
In November 2021, Judge Albis issued a memorandum of decision. The trial court found that Mother generated the vast majority of the parties’ issues and problems and that Father had been a steady hand in supporting the children and making appropriate decisions. The trial court found that Mother posed no threat of physical harm but failed to recognize the psychological harm of her actions on the children. The trial court denied Father’s motions for contempt but granted his motion for modification and awarded him sole legal custody and primary residence. Mother was ordered to participate in specific mental health treatment.
Mother’s access to the children was limited to various forms of supervised access. With one child, Mother was permitted additional access “as the parties may agree upon recommendation of the family therapist.” With the other child, in addition to specific orders regarding supervised access, the trial court ordered that:
“[U]nless [Father] reasonably determines, after consultation with [the child’s] therapist, that the supervised visits are causing negative behavioral or emotional consequences for [the child], then [Mother] shall thereafter be entitled to reasonable, incrementally increased, unsupervised visitation with [the child] on a schedule approved by [Father] from time to time. If at any time [Father] reasonably determines, after consultation with [the child’s] therapist, that the unsupervised visits are causing negative behavioral or emotional consequences for [the child], then [Father] may either suspend [Mother’s] visitation or reinstate the requirement of supervision of the visits by a third party of his choice, with [Father] responsible for the cost of supervision, if any ….”
The trial court also modified the parties’ ability to claim the children as dependency exemptions on their taxes, which was not challenged in this appeal, but bears mentioning in light of the recent decision of Lehane v. Murray, 215 Conn. App. 305 (2022) which held that such exemptions were non-modifiable aspects of property division.
Mother appealed arguing that the trial court improperly (1) granted Father’s emergency ex parte application, (2) delegated judicial authority by giving Father decision-making authority over Mother’s access to the children, and (3) infringed on her privacy rights by permitting testimony about her medical information and including information about it in its decision.
Mother’s First Claim on Appeal was that the trial court erred in granting the ex parte. Mother first argued that this was because insufficient evidence was presented to support an immediate present risk of physical danger or psychological harm because the children were not in her care at the time of the application.
The Appellate Court indicated that the proper standard of proof for an order of temporary custody is the normal civil standard of a fair preponderance of the evidence, and that review of factual findings is governed by the clearly erroneous standard of review. The evidence before the trial court supported a finding that Mother had been drinking to excess during her time with the children and when she was responsible for getting them to school. Mother’s argument essentially boiled down to the fact that, by the time the ex parte was filed, the children were already at school and thus no longer in danger. The Appellate Court held that the evidence supported a danger that was “immediate and present” inasmuch as it was presented to the trial court and that any other construction based on the children being temporarily not in Mother’s care would be too narrow and irrational.
Mother’s first claim also challenged the ex parte on the basis that the court did not hold a hearing on the first ex parte application. The parties had submitted multiple agreements continuing those ex parte orders in effect while they negotiated an agreement. There was one occasion where the record did not provide clarity as to why a hearing was not held, but that date was followed by an agreement of the parties resolving the ex parte. The Appellate Court concluded that there was no violation of due process based on the agreements of the parties.
Taking Mother’s appellate arguments out of order to leave the most important for last, Mother’s Third Claim on Appeal is that the trial court violated her privacy rights under state and federal law by permitting witnesses to testify about her medical history and referencing that history in its memorandum of decision. Appellate Court determined that Mother failed to preserve these claims for appeal and did not address them.
Mother’s Second Claim on Appeal is the heart of this decision, that the trial court “improperly delegated its judicial authority by giving [Father] the authority to decide the nature and scope of her visitation…” The Appellate Court addressed on the portion of Mother’s claim that the trial court permitted Father to “determine the frequency of visitation between the defendant and [child], including the ability to cancel visits and modify visitation if [Father] determines the visits are causing negative behavioral or emotional consequences…”
The Appellate Court stated that “[a] court improperly delegates its judicial authority to [a nonjudicial entity] when that person is given authority to issue orders that affect the parties or the children” and noted that such claims are governed by plenary review.
The Appellate Court reviewed three cases that are instructive. First, very recently, the decision in Lehane v. Murray, held that permitting a father to “alter, change or modify” a mother’s visitation schedule did not constitute impermissible delegation, because it “does not permit him to reduce, suspend or terminate her access to their son.” However, that holding seems based on a very limited interpretation of what a plain reading indicates the order actually permitted. Second, in Kyle S. v. Jayne K., 182 Conn. App. 353 (2018), delegation to permit a therapist to determine the scope of access was held to constitute improper delegation. That seems a much easier decision and not particularly on point, because it delegated the decision to a third party rather than a parent. Third, in Zilkha v. Zilkha, 180 Conn. App. 143 (2018), an order “granting teenage children control over their father’s access” was upheld. The Zilkha decision avoided the delegation problem by awarding the father no rights while allowing the children voluntary visits.
In this case, the Appellate Court held that the “portion of the order pertaining to [Mother’s] visitation … is an improper delegation of authority because the court effectively delegated to [Father], in consultation with the child’s therapist, the authority to suspend or terminate [Mother’s] visitation … and its attendant obligation to consider the best interests of [the child] pursuant to § 46b-56 (c) before doing so.” The Appellate Court found that the reference to Father’s making his decision in consultation with the child’s therapist acted to exacerbate the problem rather than salvage the order, because it implied the delegation of consideration of the best interest standard to a third party.
The Appellate Court distinguished this case from Zilkha by finding that, here, the trial court’s order granted Mother specific rights of visitation and discussed her entitlement to increased access over time. The lesson of this distinction seems to be that if the trial court wishes to vest authority in one party to avoid future conflict and provide flexibility to the more trusted parent, it must award the other parent no rights and allow any delegated flexibility to constitute a purely voluntary act.
The Appellate Court distinguished this order from Lehane, by finding that Lehane permitted the father to modify the schedule, rather than the right to visitation. That seems a limited and tortured interpretation of what the Lehane order actually permitted the father to do on the face of the plain language of the order. It seems clear that if you can “alter” a schedule, you can reduce or terminate it as a form of alteration. Such action reducing or terminating the mother’s access under the Lehane language would not support a finding contempt of a clear and unambiguous court order.
The Appellate Court cited to numerous out-of-state cases, in particular Rainey v. Rainey, 74 Va. App. 359 386 (2022), for the principle that, “from a practical standpoint, there are obvious problems inherent in delegating judicial decision-making functions to a party. First, particularly in child custody and visitation cases, parties are likely to have difficulty communicating and seeing past their inherent biases. Leaving the sole power of increased visitation with such a party invites abuse and inequity.”
Judge Bright concurred in part but dissented as to the second claim regarding delegation that made up the heart of the decision. Judge Bright argued that the cases on which the majority relied were inapplicable to a visitation order affording a custodian with sole legal custody discretion over the non-custodial parent’s access. The issue was therefore abuse of discretion and Judge Bright would have upheld the decision.
Judge Bright’s dissent argued that the broad discretion afforded to the trial court under C.G.S. § 46b-56, coupled with its authority to deny all access to one parent, and the need to permit the trial court flexibility, supports his interpretation. Judge Bright’s dissent highlights the extent to which the majority decision splits hairs (making a “distinction without a difference”) by distinguishing this case from Zilkha and in the argument that awarding Mother here some level of “rights” invalidated the decision to provide Father with discretion to limit those rights. Judge Bright also disagreed with the concept that requiring Father to consult with the child’s therapist before exercising his own discretion afforded some delegation to the therapist, rather than a restriction on Father. Judge Bright did not argue with the law regarding third-party delegation nor suggest that this should be common practice or never constitute abuse of discretion, his dissent was limited to delegation to a party with sole custody.
One note to bear in mind if Judge Bright’s interpretation is later vindicated in future appellate decision: C.G.S. § 46b-56 provides authority for the trial court to award custody “to either parent or to a third party…” which would seem to open this loophole (likely in exceptional circumstances which might narrow this problem substantially) to third-party delegation, if that third party were actually awarded sole legal custody of the children.
In all, for the various faults of the majority decision, it does provide a road map of guidance for how future trial courts may best avoid running afoul of the delegation issue while still permitting discretion to a party with sole legal custody:
- Afford the parent who is not granted the discretion no rights, as in Zilkha, such that the discretion afforded other parent be merely an exercise of the custodial parent’s own parenting authority.
- Only permit the custodial parent the right to increase access of the other parent, never to suspend, terminate or reduce.
- Do not link such discretion to any third party. Any requirement that a parent consult with, e.g., a child’s therapist, should be separate and disconnected from the discretionary provision and crafted as for the benefit of the child.