Fish v. Fish
Full Opinion (html_with_citations)
In this postdissolution child custody proceeding, the issue before the court is whether a third party
The following facts are set forth in the opinion of the Appellate Court. âThe parties
âIn May, 2002, [when the partiesâ daughter was thirteen years old] the defendant . . . [filed] a motion to modify custody in which he sought sole custody of the child with supervised visitation by the plaintiff. The court entered orders for a custody evaluation and ordered that the child live for the remainder of the school year with her maternal aunt, Pamela Martinsen, who lives in Connecticut. The court also ordered that the child spend the summer of 2002 in Aspen, Colorado, with her paternal aunt, Husaluk. In early December, 2002, there was another flurry of activity involving custody and visitation. The court ordered the temporary placement of the child with Martinsen and unsupervised weekend visitation by the parties on rotating weekends. Four days later, following an emergency request by the guardian ad litem, the court modified the visitation order to reflect that the child could elect the extent and the circumstances of her visitation with the defendant.
âTrial in this matter began on December 13, 2002, and continued on March 3, April 21, May 12, 19 and 29, and July 8, 2003. During the course of the trial, the guardian ad litem recommended that custody and placement of the child with Husaluk in Aspen, Colorado, would be in the childâs best interest. The plaintiff, who had had a double mastectomy and was undergoing chemotherapy to treat her breast cancer throughout the trial, agreed with the guardian ad litemâs proposed orders. Both Husaluk and Martinsen filed motions to
âWith respect to the custody of the child and its reasons for awarding joint custody to the plaintiff and Husaluk, the court made exhaustive findings of fact, which we excerpt and summarize from its August 1, 2003 memorandum of decision. Since the dissolution of the partiesâ marriage when the child was four years old, âshe has been the subject of an intense battle between the two parents over their ownership rights in her. She has, by her own account, constantly been âput in the middle,â has been incessantly grilled by each parent after time spent with the other and has been bombarded by what she calls âguilt bombsâ from each parent.â
âThe court found that both parties had put their own interests before the childâs well-being. In addition, the court found that the defendant had failed to provide a clean and appropriate home for the child, demonstrated
âThe court also found that there was a history of conflict between the child and the defendant, and a history of inappropriate behavior by the defendant toward the child. For example, the court credited the childâs testimony that the defendant walked around the house with an open bathrobe exposing his genitals in her presence and that he joked about going to a nudist colony with her. The defendant also made other inappropriate and suggestive comments, including once suggesting at a mall that she wear a âsee-through outfit.â The child also testified that the defendant, when angered, lost control of himself entirely, striking himself and running up and down stairs. She also testified that the defendant drank wine almost every day and that alcohol rendered his moods unpredictable. The child was adamant in her desire not to stay at the defendantâs house overnight and expressed no desire to live with him.
âThe court also found that after living with Martinsen and, later, Husaluk, the child had been away from her parentsâ battles and had seen how other people live in relative peace and in a supportive and nurturing environment. Those experiences increased the childâs yearning for stability and calm in her family life, which she never had enjoyed with her parents. The court noted that, â[m]ost compelling, at one point during her testi
âThe court credited the testimony of John Herd, a teacher and administrator at the childâs school in Connecticut, who testified that after returning from Aspen, the childâs emotional state and the quality of her work in school improved. James Black, a child and adolescent psychiatrist who conducted an evaluation of the child and the parties, also recommended that the child return to Aspen to reside with Husaluk. Black testified that moving to Aspen would be the only thing that could insulate the child from the conflict that the parties have continued to wage and that, in all of his years of practice, he never had recommended sending a child away from her parents. Black recommended that it would be better for the childâs development for her to stay with Husaluk with joint custody with the plaintiff than for her to attend a boarding school or to enter foster care, each of which the defendant had suggested.
âThe court concluded that â[i]t is clear . . . that there exists a deep antagonism between the two parents that has little to do with [the child], which has caused them to place their own needs ahead of their daughterâs. However, since the start of this case, the plaintiffs relationship with her daughter has improved consider
In its subsequent orders, the court directed that the plaintiff and Husaluk consult with the defendant regarding âall major events affecting the childâs life,â with Husaluk having final decision-making authority. The court also directed that the child return to Connecticut for school vacations and for one month during the summer. The court further ordered: âIt is . . . expected that when the child visits Connecticut, she shall be encouraged to spend equal time with each of her parents . . . . However, [due to] . . . concerns about the physical condition of the defendantâs home and the dog, it shall be the childâs decision whether she chooses to spend overnights with her father.â The court ordered the plaintiff and the defendant to share the cost of transporting the child to and from Connecticut and stated that â[t]here shall be reasonable telephone and e-mail contact between the child and her parents. It is
On appeal to the Appellate Court, the defendant claimed, inter alia, that the trial court lacked jurisdiction over Husalukâs motion to intervene and improperly awarded her custody because she had failed to satisfy the heightened pleading requirements and burden of persuasion set forth in Roth. Fish v. Fish, supra, 90 Conn. App. 752. The defendant argued that the Roth standard should apply to third party intervention petitions and custody awards because custody intrudes on the rights of a fit parent at least as much as visitation. See id., 756. The Appellate Court disagreed on the ground that the visitation standard was intended to impose additional requirements so as to avoid invalidating the overly broad visitation statute
In his appeal to this court, the defendant renews his claim that the trial court improperly failed to apply the visitation standard to Husalukâs motion to intervene and to the modified award of custody. We agree with the defendant that third party custody decisions require the application of a standard more demanding than the âbest interests of the child.â We nonetheless conclude that the judicial gloss we placed on the visitation statute in Roth should not be applied to the relevant third party custody statutes because it is not constitutionally necessary to protect the liberty interests of the parents. The Roth standard also gives insufficient weight to the countervailing interests of the child, who may not be in actual physical danger but may be destined to endure continued harmful treatment by the parent if the trial court lacks adequate flexibility and discretion to tailor orders of custody to the unique facts of each case. Finally, it contravenes the intent of the legislature, which did not contemplate a standard of harm or burden of proof for third party custody proceedings as demanding as the standard articulated in Roth.
I
The trial courtâs determination of the proper legal standard in any given case is a question of law subject to our plenaxy review. See, e.g., Hartford Courant Co. v. Freedom of Information Commission, 261 Conn. 86, 96-97, 801 A.2d 759 (2002).
We begin our analysis by examining the reasoning in Roth, in which the trial court granted the petitioners,
âSecond, once these high jurisdictional hurdles have been overcome, the petitioner must prove these allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation. These requirements thus serve as the constitutionally mandated safeguards against unwarranted intrusions into a parentâs authority.â Roth v. Weston, supra, 259 Conn. 234-35.
The defendantâs claim that the trial court should have applied the heightened standard in Roth to Husalukâs motion to intervene and to its custody award implies that the custody statutes are facially unconstitutional and that any lesser standard is insufficient to protect the defendantâs constitutional rights. Accordingly, although he did not frame his claim in constitutional language, it is essentially constitutional in nature. We therefore examine the relevant custody statutes to determine
II
In discussing the constitutional basis for the protection of parental rights, the United States Supreme Court observed in Troxel that â[t]he liberty interest ... of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this [c]ourt. More than [seventy-five] years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 [43 S. Ct. 625, 67 L. Ed. 1042] (1923), we held that the liberty protected by the [d]ue [p]rocess [c] lause includes the right of parents to establish ahorne and bring up children and to control the education of their own. Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, [534-35, 45 S. Ct. 751, 69 L. Ed. 1070] (1925), we again held that the liberty of parents and guardians includes the right to direct the upbringing and education of children under their control. . . . We returned to the subject in Prince v. Massachusetts, 321 U.S. 158 [64 S. Ct. 438, 88 L. Ed. 645] (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. It is cardinal . . . that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Id., [166].â (Citation omitted; internal quotation marks omitted.) Troxel v. Granville, supra, 530 U.S. 65-66. âIn light of this extensive precedent, it cannot now be doubted that the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment protects the fundamental right of parents
Connecticut courts likewise have recognized the constitutionally protected right of parents to raise and care for their children. See, e.g., Denardo v. Bergamo, 272 Conn. 500, 511, 863 A.2d 686 (2005); Crockett v. Pastore, 259 Conn. 240, 246, 789 A.2d 453 (2002); Roth v. Weston, supra, 259 Conn. 216; In re Baby Girl B., 224 Conn. 263, 279-80, 618 A.2d 1 (1992). When legislation affects a fundamental constitutional right, it must be strictly scrutinized. See, e.g., Roth v. Weston, supra, 218; Cas-tagno v. Wholean, 239 Conn. 336, 344, 684 A.2d 1181 (1996), overruled on other grounds by Roth v. Weston, supra, 202. We therefore study the pertinent custody statutes to determine whether they are narrowly tailored to achieve a compelling state interest. See Roth v. Weston, supra, 218; see also Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982) (â[w]hen a statutory classification . . . affects a fundamental personal right, the statute is subject to strict scrutiny and is justified only by a compelling state interestâ). This requires consideration of standing, the standard of harm that the trial court must apply in deciding third party intervention petitions and custody awards, and the proper burden of proof.
Ill
We repeatedly have recognized that when âfundamental rights are implicated . . . standing serves a function beyond a mere jurisdictional prerequisite. It also ensures that the statutory scheme is narrowly tailored so that a personâs personal affairs are not needlessly intruded upon and interrupted by the trauma of litigation.â
Three statutes govern third party custody determinations. General Statutes § 46b-56 (a) provides that, in making or modifying an order of custody, the court may award custody to âeither parent or to a third party . . . .â Additionally, General Statutes § 46b-57 provides that the trial court âmay allow any interested third party or parties to intervene upon motionâ in any existing custody proceeding and âmay award full or partial custody ... of such child to any such third party . . . .â Finally, General Statutes § 46b-56b provides that, in disputes regarding âthe custody of a minor child involving a parent and a nonparent,â there shall be a rebuttable presumption that it is in the best interest of the child for the parent to retain custody unless such custody is shown to be âdetrimentalâ to the child.
The term âthird partyâ is not defined in the foregoing statutes or in any other related statutes. The legislative
When construing similarly broad language concerning third party visitation in Roth, we noted that the 1983 amendment to the visitation statute extending standing to âany personâ;
âTherefore, we acknowledge that a person other than a blood relation may have established a more significant connection with a child than the one established with a grandparent or some other relative. Conversely, we recognize that being a blood relation of a child does not always translate into that relative having significant emotional ties with that child. Indeed, as § 46b-59 implicitly recognizes, it is not necessarily the biological
We thus concluded in Roth that, âin light of the presumption of parental fitness under Troxel, parents should not be faced with unjustified intrusions into their decision-making in the absence of . . . proof of a [parent-like] relationship .... The extension of statutory rights to persons other than a childâs parents comes with an obvious cost. Troxel v. Granville, supra, 530 U.S. 64. Proof of the nature of a parent-like relationship between a person seeking visitation and the child would provide the jurisdictional safeguard necessary to prevent families from having to defend against unjustified petitions for visitation. Accordingly, any third party . . . seeking visitation must allege and establish a parent-like relationship as a jurisdictional threshold in order both to pass constitutional muster and to be consistent with the legislative intent.â (Citation omitted.) Rothv. Weston, supra, 259 Conn. 221-22.
The relevant statutes concerning visitation and custody are overly broad in exactly the same fashion; they fail to define with particularity those persons who may seek visitation and custody other than parents. For this reason, as in the case of visitation, a literal application of the custody statutes could place them in âconstitutional jeopardy.â Castagno v. Wholean, supra, 239 Conn. 345. Accordingly, we conclude that, to avoid constitutional infirmity, the standing requirement that a third party allege a parent-like relationship with the child should be applied for all of the reasons described in Roth to third party custody awards and to third parties seeking intervention in existing custody proceedings.
A
We next consider the harm that a third party must allege and prove to intervene in a custody proceeding or that the trial court must find to justify a third party custody award over the objection of a fit parent. We first note that third party custody disputes differ from those in which both parents seek custody because, in the latter case, each party possesses a constitutionally protected parental right. See McDermott v. Dougherty, 385 Md. 320, 353, 869 A.2d 751 (2005). In cases in which both parents seek custody, â [n] either parent has a superior claim to the exercise of [the] right to provide care, custody, and control of the children. . . . Effectively, then, each fit parentâs constitutional right neutralizes the other parentâs constitutional right, leaving, generally, the best interests of the child as the sole standard to apply to these types of custody decisions. Thus, in evaluating each parentâs request for custody, the parents commence as presumptive equals and a trial court undertakes a balancing of each parentâs relative merits to serve as the primary custodial parent; the childâs best interests [tip] the scale in favor of an award of custody to one parent or the other.
âWhere the dispute is between a fit parent and a private third party, however, both parties do not begin on equal footing in respect to rights to care, custody, and control of the children.
Mindful of the parentâs constitutional rights, we concluded in Roth that Connecticutâs third party visitation statute, without a judicial gloss, was unconstitutional and interfered with the fundamental right of parents to raise and care for their children because it was too broadly written and provided no standard to guide the court in making a visitation decision, other than the best interests of the child. Roth v. Weston, supra, 259 Conn. 222-23. We specifically noted that the visitation statute, on its face, both âignore[d] the presumption that parents act in the best interests of their childrenâ and âallow[ed] parental rights to be invaded by judges based solely [on] the judgeâs determination that the childâs best interests would be better served if the parent exercised his parental authority differently.â Id. Section 46b-56b does not suffer from either of these deficiencies. Inclusion in the statute of a rebuttable presumption
The defendant nonetheless argues that the standard of harm articulated in Roth should apply in third party custody proceedings because Roth declared that â[visitation is a limited form of custody during the time the visitation rights are being exercised . . . .â (Internal quotation marks omitted.) Roth v. Weston, supra, 259 Conn. 229 n.13. This comparison is overly simplistic, however, because it improperly focuses on the time that the child is away from the parent and does not consider that third party visitation and custody intrude on the parental liberty interest in entirely different ways. Specifically, visitation petitions challenge the decision of a fit parent who is presumed to be acting in the childâs best interest to deny or limit the petitionerâs request for visitation. See Troxel v. Granville, supra, 530 U.S. 72-73. The harm alleged in a visitation petition results from the childâs lack of access to the petitioner rather than from the parent-child relationship, which is deemed to be beneficial. See In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984). In contrast, the harm alleged in a third party custody petition arises from the fundamental nature of the parent-child relationship, which may be emotionally, psychologically or physically damaging to the child. Consequently, in light of the fact that a third party custody petition directly challenges the overall competence of the parent to care for the child, the standard employed to protect the liberty interest of the parent must be more flexible and responsive to the childâs welfare than the standard applied in visitation cases,
In addition, when this court had the opportunity to interpret the meaning of detriment to the child in a related context, it did not adopt a construction as restrictive as the standard of harm set forth in Roth. In In re Joshua S., 260 Conn. 182, 184, 796 A.2d 1141 (2002), the rights of the named testamentary guardians of a neglected child were challenged by the department of children and families (department) and by the childâs foster parents following the death of the childâs natural parents. On appeal, we considered whether the department and the foster parents, to whom the trial court had awarded custody, had rebutted the presumption that appointment of the testamentary guardians would be in the childâs best interest, which required a finding
Other jurisdictions that utilize the detriment to the child standard in deciding third party custody petitions also rely on a less restrictive interpretation of the concept so as to give the court sufficient flexibility and discretion to address the unique and complicated circumstances that distinguish such cases. See Turner v. Pannick, 540 P.2d 1051, 1054 (Alaska 1975) (âthe non-parent must show that it clearly would be detrimental to the child to permit the parent to have custodyâ); In re Guardianship of D.A.McW., 460 So. 2d 368, 370 (Fla. 1984) (âcustody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the childâ); Bateman v. Johnson, 818 So. 2d 569, 571 (Fla. App. 2002) (â[t]o deny a parent custody of his child based on a finding of detriment, the change in custody would have to be likely to produce mental, physical, or emotional harm of a lasting natureâ [internal quotation marks omitted]); McDermott v. Dougherty, supra, 385 Md. 325 (âthe trial court must first find . . . that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custody of the parent or parents, before a trial court should consider the âbest interests of the childâ standard as a means of deciding the disputeâ). In In re Marriage of Allen, 28 Wash. App. 637, 645-46, 626 P.2d 16 (1981), the Washington Court of Appeals observed that a bal
A Louisiana appeals court construing former article 146 (B) of the Louisiana Civil Code, which provided that the court must find that parental custody would be detrimental to the child before awarding custody to a third party without parental consent, likewise declared that it was reasonable to assume that the legislature intended the standard to place greater emphasis on the welfare of the child and that the term detriment had been construed by other Louisiana courts as requiring a finding that that the child would experience âsubstantial harmâ if returned to the parent. (Internal quotation marks omitted.) Pittman v. Jones, 559 So. 2d 990, 993 (La. App.), cert. denied, 565 So. 2d 451 (La. 1990). The court also observed that the concept of detriment in Louisiana was intended to embrace a wide range of
When the California legislature enacted a similar statute providing that the court must âmake a finding that an award of custody to a parent would be detrimental to the childâ; (internal quotation marks omitted) In re B.G., 11 Cal. 3d 679, 697, 523 P.2d 244, 114 Cal. Rptr. 444 (1974); the judiciary committee explained that, â[w]hat is detrimental has not been set forth with particularity. It is a nearly impossible task to devise detailed standards which will leave the courts sufficient flexibility to make the proper judgment in all circumstances .... The important point is that the intent of the legislature is that the court consider parental custody to be highly preferable. Parental custody must be clearly detrimental to the child before custody can be awarded to a nonparent.â (Emphasis in original.) Id., 698.
Many of the same jurisdictions have cautioned, however, that third party custody awards should be granted only sparingly. In its subsequent interpretation of the statute, the California Supreme Court emphasized that, although the legislature had changed the parental preference doctrine from its former focus on parental unfitness to its present focus on detriment to the child, the legislature had not intended to change the judicial practice of awarding custody to a nonparent âonly in unusual and extreme cases.â Id. The court stated that custody would be awarded âto a nonparent against the claim of a parent only upon a clear showing that such [an] awar d is essential to avert harm to the child. A finding that such an award will promote the âbest interestsâ or the âwelfareâ of the child will not suffice.â Id., 699.
None of the foregoing jurisdictions has attempted to define detriment to the child more precisely, because
The legislative history of § 46b-56b also reveals that the General Assembly rejected the more explicit standard of harm required for removal of the parent as guardian, which is similar to the type of harm that must be demonstrated under the temporary custody and neglect statutes, so that the court may give more weight to the childâs welfare in determining whether a petitioner has rebutted the presumption in favor of parental custody.
In summary, we conclude that third party custody petitions challenge the liberty interest of a parent in
B
The concurrence makes numerous arguments, beyond those made by the defendant, as to why the foregoing standard is insufficient to protect the constitutional rights of parents whose ability to care for their children is directly challenged in third party custody proceedings. These arguments may be grouped into two general categories. Arguments falling within the first category assert that, because custody intrudes to a far greater extent than visitation on the constitutionally protected right of parents to raise and care for their children, as well as on the reciprocal right of parents and children to family autonomy or family integrity, third party custody determinations should not be made pursuant to a standard less demanding than the standard we articulated in Roth. A corollary of this argument is that the childâs right to protection does not rise to the level of a constitutional right equivalent to that of the parent unless the childâs safety is endangered. Arguments falling within the second category assert that the standard we have adopted is too open-ended and ambiguous, thus providing trial courts with inadequate guidance and raising concerns relating to constitutional vagueness and the standardâs arbitrary application. We disagree with these arguments.
1
The concurrence declares that the standard of harm we articulated in Roth â that the child be deemed neglected, uncared-for or dependent â should apply in third party custody proceedings because visitation is merely a limited form of custody, and, therefore, both intrude on the liberty interest of the parent in essentially the same manner. See Roth v. Weston, supra, 259 Conn.
The concurrence makes the related argument that the Roth standard of harm is necessary because, although a state may impose limitations on the constitutional right of a parent to raise his or her child, this right should
This argument suffers from two defects. On the one hand, many of the statutes and cases cited by the concurrence describe standards of harm that are no more stringent than the standard articulated in the present case. See, e.g., La. Civ. Code Ann. art. 133 (1999) (parental custody would result in âsubstantial harm to the childâ); Tex. Fam. Code Ann. § 102.004 (a) (1) (Vernon Sup. 2007) (parental custody âwould significantly impair the childâs physical health or emotional developmentâ); Evans v. McTaggart, supra, 88 P.3d 1085 (parental custody would be âclearly detrimentalâ to welfare of child [internal quotation marks omitted]); Murphy v. Markham-Crawford, supra, 665 So. 2d 1094 (parental custody clearly would be âdetrimentalâ to welfare of child); Clark v. Wade, supra, 273 Ga. 598 (parental custody would subject child to âphysical harm or significant, long-term emotional harmâ); Stockwell v. Stockwell, supra, 116 Idaho 300 (custody for appreciable period of time and best interests of child dictate that custody be with nonparent); Watkins v. Nelson, supra, 163 N.J. 246, 253 (third party award warranted when âextraordinary circumstancesâ affect welfare of child and denial of petition would cause serious psychological or other harm to child [internal quotation marks omitted]); Bailes v. Sours, supra, 231 Va. 100 (there exist âspecial facts and circumstances . . . constituting an extraordinary reason for taking child from [his or her] parent,â such as effect on psychological health
Furthermore, the standard of harm that we adopt is consistent with the constitutional protections discussed in Troxel. In that case, which required review of a trial courtâs order granting a third party visitation, the United States Supreme Court determined in a plurality opinion that the state statute involved was unconstitutional because of its âsweeping breadth . . . .â Troxel v. Granville, supra, 530 U.S. 73. The plurality did not consider the constitutional question of whether the due process clause required all third party visitation statutes to require a showing of actual or potential harm to a child as a condition precedent to granting visitation, declaring in dictum: âWe do not, and need not, define . . . the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice [Anthony Kennedyâs dissent] that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best âelaborated with care.â . . . Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the
The foregoing observations apply with equal force to third party custody awards and help explain why we articulate a standard of harm that is sufficiently flexible to allow family courts to grant third party custody awards when a childâs actual safety may not be endangered but when the child nevertheless may be suffering from other types of significant harm deserving of the relief that an award of third party custody provides. In light of the fact that the third party custody statute at issue in the present case is not overly broad, unlike the Washington visitation statute in Troxel, we agree with the plurality in Troxel that any remaining constitutional question regarding the standard of harm most likely would arise in connection with the specific manner in which the standard is applied.
2
The concurrence further claims that the standard of harm we adopt is too broad to provide a sufficient
V
We next consider the proper burden of proof, which must satisfy âthe constitutional minimum of fundamental fairness.â (Internal quotation marks omitted.) San-tosky v. Kramer, 455 U.S. 745, 756 n.8, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). The defendant claims that the standard required in third party custody cases should be clear and convincing evidence. In Roth, we determined that, although the clear and convincing standard is not constitutionally mandated in the visitation context, the âstricter standard of proof is sounder because of the ease with which a petitioning party could otherwise intrude upon parental prerogative. . . . The prospect of competent parents potentially getting caught up in the crossfire of lawsuits by relatives and other interested parties demanding visitation is too real a threat to be tolerated in the absence of protection afforded through a stricter burden of proof. Therefore, pursuant to this courtâs inherent supervisory powers,â we concluded that a third party seeking visitation must prove the requisite relationship and harm by clear and convincing evidence. (Citations omitted.) Roth v. Weston, supra, 259 Conn. 232. These same considerations are not significant in third party custody cases. Moreover, other factors, including the legislatureâs express rejection of the clear and convincing standard of proof, weigh against the adoption of that standard in the present context. Finally, the clear and convincing standard is not constitutionally required under the test that the
Section 46b-56b is silent with respect to the burden of proof to be satisfied when a third party seeks the custody of a minor child against the wishes of a fit parent. We therefore recapitulate, in part, the legislative history of the statute. The proposed bill, as originally written, directed that the third party establish, âby clear and convincing evidence . . . grounds which would authorize the removal of the natural parent as guardian under [General Statutes (Rev. to 1985) § 45-44c, now General Statutes § 45a-610].â Substitute House Bill No. 5122, 1985 Sess. An amendment to the bill changed the substantive standard but did not change the clear and convincing burden of proof. See 28 H.R. Proc., Pt. 8, 1985 Sess., p. 2615. When the amended bill reached the Senate, however, various members expressed concern that the burden of proof was too high. See 28 S. Proc., Pt. 5, 1985 Sess., pp. 1751-62. Thereafter, the bill was amended to eliminate the standard. See 28 S. Proc., Pt. 7, 1985 Sess., p. 2231, remarks of Senator Johnston. Senator Avallone expressly noted that the omission of the standard constituted a major revision of the bill and represented a âcompromiseâ designed to ensure that the interests of the child would be protected adequately in light of the presumption of parental custody. Id., pp. 2241-42. When the bill, as amended by the Senate, was returned to the House for approval, Representative Wollenberg described it as greatly âweakenedâ but expressed his satisfaction with the outcome because the statute would now give the fit parent a decided edge over a third party seeking custody of the child, thus addressing the perceived defect in the logic of the majority opinion in McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S.
The legislatureâs rejection of the clear and convincing standard is not inconsistent with the law of other jurisdictions, as there appears to be no uniform rule regarding the burden of proof necessary to rebut a presumption in favor of parental custody. After examining the law of other states, Marylandâs highest court found that some âhave, indeed, adopted a clear and convincing evidence standard in parent/third party custody cases (or in cases that the court found equivalent to a custody dispute). See Murphy v. Markham-Crawford, [supra, 665 So. 2d 1093]; S.G. v. C.S.G., 726 So. 2d 806 (Fla. App. 1999); Clark v. Wade, [supra, 273 Ga. 587]; In re Guardianship of B.H., 770 N.E.2d 283 (Ind. 2002); Greer v. Alexander, 248 Mich. App. 259, 639 N.W.2d 39 (2001). Other [s]tates have adopted [the clear and convincing] standard in cases that, under the law of those [s]tates, are treated more like [termination of parental rights] proceedings than pure custody disputes (Guardianship of Stephen G., 40 Cal. App. 4th 1418, 1426, 47 Cal. Rptr. 2d 409 [1995]), or upon rationales that are inconsistent with [a standard requiring a finding of detriment]. See Watkins v. Nelson, [supra, 163 N.J. 235] (requiring the third party seeking custody to show circumstances that would justify terminating the parentâs parental rights and treating custody in the third party as effectively terminating those rights). A few [s]tates have expressly adopted a preponderance standard for parent/third party custody cases. See Larkin v. Pridgett, 241 Ark. 193, 407 S.W.2d 374 (1966); Greening v. Newman, 6 Ark. App. 261, 640 S.W.2d 463 (1982); In re Perales, 52 Ohio St. 89, 369 N.E.2d 1047 (1977). Some have articulated other tests â âsatisfactory evidenceâ (In re Dependency of Terry Klugman, 257 Minn. 113, 97 N.W.2d 425 [1959]) or âevidence evincingâ (In re Custody of N.A.K., 649 N.W.2d 166 [Minn. 2002]);
It is well established that, â[w]here no standard of proof is provided in a statute, due process requires that the court apply a standard which is appropriate to the issues involved.â In re Juvenile Appeal (83-CD), supra, 189 Conn. 296. âThe function of a standard of proof, as that concept is embodied in the [d]ue [p]rocess [c]lause and in the realm of factfinding, is to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. . . . [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.
âThus, while private parties may be interested intensely in a civil dispute over money damages, application of a fair preponderance of the evidence standard indicates both societyâs minimal concern with the outcome, and a conclusion that the litigants should share the risk of error in roughly equal fashion.â . . . When
â[The United States Supreme] Court has mandated an intermediate standard of proof â clear and convincing evidence â when the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money. . . . Notwithstanding the stateâs civil labels and good intentions . . . this level of certainty [is] necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with a significant deprivation of liberty or stigma.â (Citations omitted; emphasis added; internal quotation marks omitted.) Santosky v. Kramer, supra, 455 U.S. 754-56.
In Santosky, the United States Supreme Court held that, âin a hearing on a petition to terminate parental rights, due process require [s] that the state prove statutory termination criteria by a âclear and convincing evidenceâ standard rather than by a âfair preponderance of the evidenceâ standard. . . .
âThe three factors considered in Santosky to determine whether a particular standard of proof in a particular proceeding satisfies due process are: (1) the private interests affected by the proceeding; (2) the risk of error created by the chosen procedure; and (3) the
We conclude that the fair preponderance standard is permissible in the present context not only because it is consistent with the legislatureâs express rejection of the clear and convincing standard, but, more significantly, because it comports with due process and the requirement of âfundamental fairnessâ described in Santosky v. Kramer, supra, 455 U.S. 756.
A
Turning first to the private interests affected, we distinguish two important differences between the termination of parental rights and third party custody proceedings. In a termination proceeding,
The concurrence disagrees with the preceding analysis for the following reasons. First, the significant constitutional interest at stake, that is, the right to family
With respect to the first two points, we note that the preservation of family autonomy or family integrity, having been placed in issue by the parents of the child in the custody proceeding itself, provides little justification for adopting a heightened burden of proof in this context. See part IV B 1 of this opinion. Moreover, this court determined more than two decades ago that the fair preponderance standard is constitutionally permissible in temporary custody and neglect proceedings because the childâs welfare and safety represents a
Insofar as the concurrence concludes that the childâs interests coincide with those of the parent unless the child is threatened with immediate harm, we disagree. As we previously stated, this court has determined that the interests of a child who is adjudicated neglected, uncared for or dependent, but who is not necessarily threatened with immediate harm, differ from those of the parent. See In re Juvenile Appeal (84-AB), supra, 192 Conn. 263-64. Accordingly, the childâs interests in temporary custody and neglect proceedings are in relative equipoise with the shared interest of the parent and child in family autonomy.
The concurrenceâs view that the relative equipoise in a neglect proceeding exists only because the court has available to it a range of disposition options that correlate directly to the risk to the child and the parentâs ability to meet the childâs needs, including the option of allowing the child to remain with the parent, is incorrect. The concept of equipoise first was considered in In re Juvenile Appeal (83-CD), supra, 189 Conn. 276, in which this court stated that the controlling considerations in a constitutional analysis of the appropriate standard of proof in temporary custody proceedings are âthe nature of the private interest threatened and the
âWhere two important interests affected by a proceeding are in relative equipoise, as they are in [a temporary custody proceeding], a higher standard of proof would necessarily indicate a preference for protection of one interest over the other. . . . We see no reason to make such a value determination . . . and find that the various interests in a temporary custody hearing are best served by applying the normal civil standard of proof which is a fair preponderance of the evidence.â (Citation omitted; emphasis added.) Id., 298-99.
We also observed that an award of temporary custody is neither final nor irrevocable because it can be reviewed during the hearings on the neglect petition under § 46b-129 (a) and upon the filing of a petition by the parent or the state for revocation of custody under § 46b-129. Id., 299. We therefore determined that deprivation of the parentâs right to exercise custody over his or her children is far less serious than in a termination of parental rights proceeding, in which the clear and
Shortly thereafter, we addressed the same issue in the context of a neglect proceeding and again concluded that the proper standard of proof is a fair preponderance of the evidence. See In re Juvenile Appeal (84-AB), supra, 192 Conn. 265. Although the petitioner in a neglect proceeding need not prove that the child is subject to an imminent threat of harm, we concluded that an adjudication of neglect that results in the removal of the child from parental custody is temporary and reviewable and that the two important private interests involved, namely, the safety of the child and the combined family integrity interests of the parent and the child, are in relative equipoise. Id., 264-65. Accordingly, a higher standard necessarily would indicate a preference for the protection of one interest over the other, a choice we did not wish to make. See id.
Even if we accept the concurrenceâs view that the equipoise between the interests of the child and the parent is due to the multiplicity of disposition options available in a neglect proceeding, it would appear that most children adjudicated neglected under the fair preponderance standard are removed from parental custody, at least for a limited period of time. This is reflected in the language of § 46b-129 (j),
Finally, the concurrenceâs assertion that the court has authority to take certain steps to protect a child when there is proof by a fair preponderance of the evidence, but not by clear and convincing evidence, that denial of the third party custody petition will be harmful to the child assumes that the court will take the necessary steps to mitigate further harm. There is no guarantee, however, that the court in any given case will bring the childâs situation to the attention of the department and ultimately order relief, as the concurrence suggests.
B
A weighing of the second Santosky factor also supports the conclusion that the fair preponderance standard of proof is appropriate in third party custody proceedings. Although there may be differences in the ability of a parent and a third party in any given case to participate in the litigation, we are aware of no evidence of a disparity between the abilities and resources of parents and third parties generally that is equivalent in nature to the disparity between the parent and the state in a termination proceeding.
The concurrence asserts, pursuant to the second San-tosky factor, that application of the fair preponderance standard will result in a high risk of erroneous deprivation because (1) the standard of harm that the majority adopts leaves the courtâs decision open to improper influence by the subjective values of the judge, (2) a reduced standard of proof would increase the possibility of an erroneous decision on the basis of a few instances of misconduct, (3) the court has no obligation similar to that in a neglect proceeding to delineate the specific deficiencies that the parent must remedy to regain custody, (4) there is nothing to prevent a third
In considering the risk of erroneous deprivation, the concurrence declares that, even if the standard of harm is high, imposition of the fair preponderance standard of proof improperly will allow the subjective values of the judge to affect the decision or will result in an award of custody without adequate evidence of misconduct. All custodial decisions, however, by their very nature, involve the exercise of judicial discretion because of the infinite variation that exists in the human condition generally and family relationships in particular. The important consideration is whether the court has been provided with sufficient guidance to focus on the proper facts. In the present case, we believe that it has because, to the extent that this court has placed a judicial gloss on the standard of harm set forth in § 46b-56b, courts will have clear notice that third party custody awards may not be based on a few instances of misconduct, that such awards are justified only in exceptional circumstances and that the petitioner must allege and prove, at the very least, that continued parental custody will be clearly damaging, injurious or harmful to the child. This is a heavy burden under either standard of proof. See McGaffin v. Roberts, supra, 193 Conn. 412 (Parskey, J., dissenting) (burden on nonparent to disprove presumption in favor of parental custody is âa heavy oneâ).
With respect to whether the fair preponderance standard will encourage repeated litigation, the potential for repeated litigation will be severely curtailed, if not
As for the procedural protections available in a neglect proceeding, many of the due process protections in chapters 32a and 35a of the Practice Book afforded the parents of a child in a neglect or termination proceeding, including the right to a hearing, are provided in a custody proceeding. See generally Practice Book c. 25. Although there is no exact counterpart in a third party custody proceeding to the specific steps that a parent may be ordered to take in a neglect proceeding, which are intended to notify the parent of deficiencies that must be remedied to regain custody, Practice Book § 25-60 provides the court in a custody proceeding with authority to conduct a custody evaluation and study. The report filed upon completion of the study may be examined by the parties and introduced into evidence if the author is available for cross-examination. Id. In addition, the trial court typically makes findings of fact that describe the childâs troubled relationship with the parent and the specific problems that led the court to deprive the parent of custody, as the trial court did in the present case. General Statutes § 46b-57 also directs the court to award third party custody âupon such conditions and limitations as it deems equitable,â which might include steps that the
In addition, the concurrenceâs assertion that the courtâs decision to remove a child from parental custody in a neglect proceeding is subject to periodic judicial review, unlike third party custody decisions, is simply not true for all children who are adjudicated as neglected. General Statutes § 46b-129 (j) provides in relevant part that, upon an adjudication of neglect, the âcourt may vest [the] childâs or youthâs care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility . . . [and] upon such vesting of the care of such child or youth, such other public or private agency or individual shall be the guardian of such child or youth . . . .â (Emphasis added.) The periodic judicial review described in § 46b-129 applies only if the child is committed to the custody of the department. âThe legislature . . . did not contemplate mandatory, periodic judicial review of cases in which custody, rather than ordered as a commitment of the child to [the department, has] been vested by the court in an appropriate third party in accordance with § 46b-129 . . . .â
The concurrence finally asserts that the clear and convincing standard should apply in third party custody proceedings because the custody statute is substantially similar to the removal of parent as guardian (removal of guardianship) statute; see General Statutes § 45a-610; which requires allegations and proof of harm similar to that in a neglect proceeding but employs the clear and convincing standard of proof. The concurrence asserts that a comparison of the two statutes is appropriate because neither provides the parent with significant procedural protections, which is not the case under the neglect statutes. As we noted previously in this opinion, however, third party custody proceedings provide the parent with procedural protections similar to those in a neglect proceeding. In fact, parents in third party custody proceedings will hereinafter receive one extremely significant protection that parents in removal of guardianship, temporary custody and neglect proceedings do not, namely, the requirement that the petitioner demonstrate a relationship with the child akin to that of a parent. In removal of guardianship and neglect cases, the state, the court and a number of other designated parties and entities that have no relationship
C
With respect to the third Santosky factor, although the state has no direct interest in a custody proceeding that involves two private parties, it has a clear interest in protecting both the constitutional rights of the parent and the welfare of the child by ensuring that the proceeding is conducted fairly and at a reasonable cost.
The fair preponderance standard also is consistent with our declaration in Roth that âthe heightened standard of clear and convincing evidence is not constitutionally mandatedâ in visitation cases. Roth v. Weston, supra, 259 Conn. 231. As we stated in Lehrer, âeven when the contemplated state intrusion is most severe, as in an action for termination of parental rights, the state is required only to provide an appropriately demanding standard of proof so as to guarantee fundamentally fair procedures. . . . Santosky v. Kramer, supra, [455 U.S.] 754. Lesser intrusions, such as custody orders, represent a difference in kind and not in degree . . . from termination proceedings, and thus permit intervention on a lesser standard of proof. The constitutional requirement of procedural due process thus invokes a balancing process . . . .â (Citation omitted; emphasis altered; internal quotation marks omitted.) Lehrer v. Davis, supra, 214 Conn. 238.
The only other jurisdiction that has conducted a detailed and thoughtful analysis of the standard of proof under Santosky has concluded that the clear and convincing standard is neither constitutionally required nor
To summarize, in cases in which a third party seeks to intervene in a custody proceeding brought pursuant to § 46b-56 (a), the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the childâs best interest. In cases in which the trial court considers awarding custody to a third party who has not intervened pursuant to § 46b-57, the court may award custody to the third party provided that the record contains proof of the foregoing facts by a fair preponderance of the evidence.
In the present case, the trial court failed to apply the correct standard when it granted Husalukâs motion to intervene and awarded her custody solely on the basis of the best interest of the child. Thereafter, the Appellate Court properly rejected the defendantâs claim that the trial court should have awarded custody on the basis of the standard articulated in Roth but improperly affirmed the award of custody to Husaluk on the ground that it was in the best interest of the child.
The judgment of the Appellate Court is affirmed insofar as it reverses the trial courtâs judgment as to the allocation of tax dependency exemptions;
In this opinion NORCOTT, VERTEFEUILLE and SULLIVAN, Js., concurred.
The term âthird partyâ refers to any private individual other than a parent of the child, as distinguished from the state. We do not address situations in which the state seeks temporary custody of the child; see General Statutes § 46b-129; or removal of the child from the custody of the childâs parents. See General Statutes § 45a-610.
We granted the defendantâs petition for certification to appeal limited to the following issue: âDid the Appellate Court properly conclude that the trial court was not required to apply a heightened jurisdictional pleading requirement and burden of persuasion as required under Roth v. Weston, [supra, 259 Conn. 234-35]?" Fish v. Fish, 275 Conn. 924, 883 A.2d 1243 (2005).
In its original order, the trial court awarded joint custody to the plaintiff and the defendant.
The plaintiff is now known as Paula J. Pierce. The plaintiff did not submit a brief to this court. The guardian ad litem-attomey for the minor child submitted the only brief contesting the defendantâs claim.
We note that Roth relied on the temporary custody and neglect statutes to define the level of emotional harm that the child would suffer should visitation with the petitioner be denied. See Roth v. Weston, supra, 259 Conn. 235. The Roth standard is therefore inadequate to evaluate the harm alleged in a third party custody proceeding because it does not contemplate the physical or psychological harm that also may form the basis of a third party custody award. Nevertheless, we assume, for purposes of this discussion, that the defendant and the concurrence refer to the physical, psychological and emotional harm described in the temporary custody and neglect statutes when they contend that the Roth standard should apply in third party custody proceedings.
The Appellate Court concluded that the trial court had abused its discretion in ordering the allocation of tax dependency exemptions and, therefore, reversed the trial courtâs judgment only with respect to that order. Fish v. Fish, 90 Conn. App. 744, 764-65, 766, 881 A.2d 342 (2005). On appeal to this court, neither party has challenged the Appellate Courtâs determination of that issue. We therefore affirm that part of the Appellate Courtâs judgment.
collectively as the âpartiesâ or as the âparents.â
Although the partiesâ daughter turned eighteen on April 28, 2007, we agree with the defendant that his appeal would not be rendered moot by that fact in view of his unchallenged representation to this court that he may be entitled to favorable tax and other financial consequences should he prevail.
In her motion to intervene, Husaluk stated: âI am the paternal aunt of the minor child .... By order of the court, [the child] resided with me during the summer of 2002. ... I have maintained contact with [the child] throughout this school year. . . . [The child] spent her spring vacation with me, as ordered by the court. ... I provide a safe and loving environment . . . for [the child]. ... It is [the childâs desire] to reside with me through her high school year[s]. Wherefore, I ask that the court grant me permission to intervene.â
General Statutes § 46b-59 provides in relevant part: âThe Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the courtâs best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable .... In making, modifying or terminating such an order, the court shall be guided by the best interest of the child, giving consideration to the wishes of such child if he is of sufficient age and capable of forming an intelligent opinion. ...â (Emphasis added.)
General Statutes § 46b-56b provides: âIn any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.â
General Statutes § 46b-57 provides: âIn any controversy before the Superior Court as to the custody of minor children, and on any complaint under this chapter or section 46b-1 or 51-348a, if there is any minor child of either or both parties, the court, if it has jurisdiction under the provisions of chapter 815p, may allow any interested third party or parties to intervene upon motion. The court may award full or partial custody, care, education and visitation rights of such child to any such third party upon such conditions and limitations as it deems equitable. Before allowing any such intervention, the court may appoint counsel for the child or children pursuant to the provisions of section 46b-54. In making any order under this section, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference.â
General Statutes § 46b-56 provides in relevant part: â(a) In any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may make or modify any proper order regarding the custody, care, education, visitation and support of the children if it has jurisdiction under the provisions of chapter 815p. Subject to the provisions of section 46b-56a, the court may assign parental responsibility for raising the child to the parents jointly, or may award custody to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party to the action, including, but not limited to, grandparents.
â(b) In making or modifying any order as provided in subsection (a) of this section, the rights and responsibilities of both parents shall be consid
â(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the childâs parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the childâs siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parentsâ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the childâs adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the childâs family home pendente lite in order to alleviate stress in the household; (11) the stability of the childâs existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the childâs cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between aparent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education
Although § 46b-56 was amended in 2005; see Public Acts 2005, No. 05-258, § 3; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of § 46b-56 throughout this opinion.
In Troxel, the United States Supreme Court concluded that the Washington visitation statute was unconstitutional as applied in that case because it was overly broad and accorded no special deference to the custodial parentâs decision that the requested visitation was not in her daughterâs best interests. See Troxel v. Granville, supra, 530 U.S. 67.
General Statutes § 46b-129 (a) provides that children who are deemed âneglected, uncared-for or dependentâ may be removed temporarily from their parentsâ custody and committed to the temporary care and custody of some other suitable agency or person.
We explained in Roth that such a situation would occur in the visitation context when âa person has acted in a parental-type capacity for an extended period of time, becoming an integral part of the childâs regular routine, [such] that [the] child could suffer serious harm should contact with that person be denied or so limited as to seriously disrupt that relationship.â Roth v. Weston, supra, 259 Conn. 225-26.
We note that third party custody petitions may be filed only when there is an existing controversy before the Superior Court. See General Statutes §§ 46b-56 (a) and 46b-57. Thus, they do not create additional litigation to which the parents must respond. Visitation petitions, on the other hand, may be filed at any time by a person who has a parent-like relationship
Section 46b-57 authorizes the formal intervention of an interested third party whose interest may not already be before the court in an existing controversy, thus serving as a procedural supplement to § 46b-56, which does not require a third party to intervene in order for the court to award custody to that party. See Doe v. Doe, 244 Conn. 403, 441, 710 A.2d 1297 (1998); see also Cappetta v. Cappetta, 196 Conn. 10, 14-15, 490 A.2d 996 (1985) (although âorderly adjudication of the custody claims of nontraditional parties is best managed by having such claimants become party intervenors at the earliest possible appropriate time,â statutory scheme permits award of custody to nonparty âif, even without formal intervention, that personâs potential custodial status was properly before the courtâ). Accordingly, when a third party seeks to intervene in a custody proceeding, he or she must allege the same facts that the court must find when awarding custody to a third party who has not intervened in the proceeding but whose interest has been brought before the court in some other manner.
General Statutes § 46b-59 provides in relevant part: âThe Superior Court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. . .
In the present case, the trial court assigned joint custody to the mother and the paternal aunt The analysis that follows, however, applies to all situations in which third parties seek custody of a minor child, regardless of the custodial arrangement that the court ultimately orders.
âA rebuttable presumption is equivalent to prima facie proof of a fact and can be rebutted only by the opposing partyâs production of sufficient and persuasive contradictory evidence that disproves the fact that is the subject of the presumption. ... A presumption requires that a particular fact be deemed true until such time as the proponent of the invalidity of the fact has, by the particular quantum of proof required by the case, shown by sufficient contradictory evidence, that the presumption has been rebutted.â (Citation omitted.) Schult v. Schult, 40 Conn. App. 675, 684, 672 A.2d 959 (1996), aff'd, 241 Conn. 767, 699 A.2d 134 (1997).
The concurrence notes that, because Roth requires proof of a level of emotional harm akin to that contemplated under the temporary custody and neglect statutes, namely, harm that would arise because the child is neglected, uncared-for or dependent; General Statutes §§ 46b-120 and 46b-129; âone reasonably cannot say that the parentâs competency is not at issue in visitation petitions.â We disagree. The competence of the parent to make a visitation decision does not directly implicate the parentâs underlying relationship with the child. Cf. Roth v. Weston, supra, 259 Conn. 206 (plaintiffs alleged visitation was in best interests of children but did not allege defendant was unfit parent). Consequently, the concurrenceâs suggestion that third party visitation and custody petitions raise similar questions regarding parental competency reflects a fundamental misunderstanding of the different interests at stake in visitation and custody proceedings.
Although the legislative history of § 46b-56b has no bearing on the constitutional issue, it provides useful guidance in determining the legislatureâs intent regarding the standard of harm that it wished to impose in third party custody disputes. The proposed legislation originally was presented to the House of Representativeâs in Substitute House Bill No. 5122. That bill provided in relevant part: âIn a dispute between a natural parent and non-parent, the court shall recognize a superior right to custody in the natural parent, unless the non-parent, by clear and convincing evidence, establishes grounds which would authorize the removal of the natural parent as guardian under [General Statutes (Rev. to 1985) § 45-44c, now General Statutes § 45a-610].â Substitute House Bill No. 5122, 1985 Sess. The bill thus required a nonparent to prove the same facts required for removal of a parent as
After the bill was introduced in the House, the language was revised to emphasize the best interests of the child. The House also replaced the language referring to the standard for removal of a parent as guardian with less restrictive language referring to detriment to the child. The revised bill provided: âIn any dispute as to the custody of minor children involving a parent and a non-parent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, unless it is shown, by clear and convincing evidence, that it would be detrimental to the child to permit the parent to have custody.â
During the Senateâs consideration of the revised bill, discussion initially centered on whether the best interests of the child would be adequately protected if a presumption was created in favor of the parent. See 28 S. Proc., Pt. 5, 1985 Sess., pp. 1751-60. Those opposing the bill were concerned that such a presumption would be difficult to rebut. Id., pp. 1760, 1762. The bill failed to gain sufficient support and was defeated; id., p. 1763; but a motion for reconsideration was passed the following day. 28 S. Proc., Pt. 6, 1985 Sess., p. 1774. Upon reconsideration, the Senate adopted an amendment removing all language pertaining to the standard required to rebut the presumption and the burden of proof. See 28 S. Proc., Pt. 7, 1985 Sess., p. 2231, remarks of Senator Richard B. Johnston. The bill then provided: âIn any dispute as to the custody of minor children involving a parent and a non-parent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent.â
In the debate that followed as to what would be required to overcome this presumption, Senator Anthony V. Avallone summarized the position of the billâs proponents, stating: âThe original bill and the amendment are really quite different. The original bill indicated that there would be a presumption that the non-parent would have the burden of establishing by clear and convincing evidence that there was a detriment or there was not a detriment to the child by staying or going with the natural parent. What this bill does is merely say that the natural parent would have a presumption that [it] is in the best interest of the child to be with the natural parent. That is a very, very large gap between what the original bill called for and what . . . the bill as amended would call for. Weâre still dealing with those magic words, the best interest of the child. . . . We are not talking about ... an irrebuttable presumption. We are talking about a rebuttable presumption. ... It does
When the bill returned to the House for approval, Representative William L. Wollenberg noted that it had been weakened by the Senate amendment. 28 H.R. Proc., Pt. 16, 1985 Sess., p. 5798. Representative Wollenberg stated, however, that he was satisfied with the outcome because, although the amended bill did not âgo nearly as farâ as the earlier version, it gave the parent âa leg up,â so to speak, in a custody dispute with a third party. Id., p. 5800. Several representatives also remarked that the amended bill, in effect, counteracted the majority holding in McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985), and incorporated the ideas expressed in Justice Leo Parskeyâs dissent in that case. 28 H.R. Proc., supra, pp. 5801-5802, 5806, 5808, remarks of Representatives Robert F. Frankel, Richard D. Tulisano and Wollenberg; see McGaffin v.Roberts, supra, 405-407; id., 410-14 (Parskey, J., dissenting). In McGaffin, this court held that General Statutes (Rev. to 1983) § 45-43, now General Statutes § 45a-606, did not create a presumption that a surviving biological parent was entitled to preference in a custody dispute. McGaffin v. Roberts, supra, 405-407. Although the court acknowledged the ânatural importance of parenthoodâ; id., 406; it had explained that âthe constitutional concerns are not entirely parental because the preservation of family integrity encompasses the reciprocal rights of both parent[s] and children.â (Internal quotation marks omitted.) Id., 407. Representative Wollenberg declared, in assuring doubters that the best interests of the child would not be ignored, that the presumption in favor of parental custody merely would give âa little more weightâ to the parent in a third party custody dispute. 28 H.R. Proc., supra, p. 5804. The House ultimately adopted the bill as amended by the Senate; id., p. 5811; and the bill was passed and signed into law. See Public Acts 1985, No. 85-244, § 2.
The following year, the legislature amended the statute to clarity that the presumption favoring.parental custody in a dispute between a parent and a third party could be rebutted by showing that an award of custody to the parent would be detrimental to the child. Public Acts 1986, No. 86-224. The new language reflected the understanding of House and Senate members, articulated when debating the merits of the bill one year earlier, that the statute was consistent with the principles set forth in Justice Parskeyâs dissent in McGaffin. Office of Legislative Research, Bill Analysis for Public Acts 1986, No. 86-224; see McGaffin v. Roberts, supra, 193 Conn. 410-14 (Parskey, J., dissenting). The legislature added no new language pertaining to the burden of proof.
The concurrence declares that the majority âmisconstruesâ the relationship it has drawn between visitation and custody. It states that this court âimplicitly recognized in Roth that the stringent standard of harm that we adopted in that case clearly would be justifiedâ in third party custody proceedings, and that âthe lesser intrusion resulting from visitation was sufficiently similar in kind, albeit not degree, to justify the heightened standard.â Footnote 4 of the concurring opinion. This court did not conclude in Roth, however, either implicitly or otherwise, that the visitation standard would be justified in third party custody proceedings. It simply observed that visitation is similar to custody because the person to whom visitation is awarded may be required to make decisions regarding the childâs care during the visitation period. No broader conclusions regarding third party custody may be drawn from the comparison because the issue of third party custody never was raised or addressed in Roth.
The concurrence also fails to acknowledge that Roth relied on a California visitation case, In re Marriage of Gayden, 229 Cal. App. 3d 1510, 1517, 280 Cal. Rptr. 862 (1991), when it noted that visitation âis a limited form of custody during the time the visitation rights are being exercised . . . .â (Internal quotation marks omitted.) Roth v. Weston, supra, 259 Conn. 229 n.13. The California Court of Appeal had compared visitation to custody and determined that an award of custody to a nonparent required a finding that parental custody âwould be detrimental to the childâ; In re Marriage of Gayden, supra, 1516; the same standard that we adopt for third party custody awards and that the California court ultimately adopted for visita
Finally, to the extent that the concurrence declares that we misconstrue its discussion regarding the effect of visitation and custody on the âquintessential rights of parenthood,â it again is mistaken. We make no representation that the concurrence believes that visitation confers such rights. We simply observe that, according to the concurrence, third party custody, unlike visitation, has the additional effect of depriving the parent of the âquintessential rights of parenthoodâ because it removes the child from the parent for a longer period of time and thus may preclude the parent from making fundamental decisions concerning the childâs life.
We do not âdismissâ the constitutional infringement on parental rights that results from an award of custody, as the concurrence suggests. Nor do we rely on the âhypothetical possibilityâ of an award of joint custody to justify its conclusions. Indeed, not only are these gross exaggerations, but they miss the point entirely. First, we recognize at the outset of our discussion that the liberty interest of a parent in the care, custody and control of his or her child is one of the oldest of the fundamental liberty interests deserving of heightened protection. See Troxel v. Granville, supra, 530 U.S. 65. Our
Second, we do not discuss joint custody to justify the standard of harm but to demonstrate the wide variation in custody orders and that a third party custody award does not necessarily preclude a parent from continued participation in the childâs life. See General Statutes § 46b-57 (court may award partial custody to any third party âupon such conditions and limitations as it deems equitableâ). In the present case, for example, the court ordered that â[tjhere shall be reasonable telephone and e-mail contact between the child and her parentsâ and that the paternal aunt would be required to consult with both parents prior to making decisions affecting the childâs welfare. While these orders fall short of allowing the defendant to exercise final decision-making authority, the court in another case might have ordered such decisions to be made jointly by the third party and the parent.
In addition, the concurrenceâs suggestion that our failure to adopt the standard of harm in Roth will encourage nonparents to circumvent the more stringent visitation standards by simply seeking limited joint custody instead of visitation is sheer speculation and suggests, at best, a misunderstanding of the differences between the two standards. Third party visitation petitioners must prove that the child will be harmed by lack of contact with the petitioner, whereas third party custody petitioners must prove that the child will be harmed by an award of custody to the parent. Thus, because third party visitation and custody focus on the childâs relationship with different persons, a nonparent wishing to obtain visitation rights because of his or her close relationship with the child presumably would have no factual evidence available to prove that the childâs relationship with the parent is detrimental, which is necessary to gain custody. In other words, it would appear to be more, rather than less, difficult for apetitioner seeking visitation to obtain contact with the child by seeking custody instead, assuming that the petitioner would even wish to take on the added responsibility that custody requires.
The concurrence further argues that the availability of the less intrusive âdisposition optionâ of joint custody should have âno weight in determining the procedural and substantive protections necessary to protect the constitutional interests at stakeâ; footnote 5 of the concurring opinion; again implying that we consider the availability of joint custody as a justification for adopting the broader standard. As we previously noted, however, we do not view less intrusive disposition options as justification for a broader standard of harm. It is the concurrence that makes the point, in a subsequent part of
We finally note that, if we were to adopt the reasoning of the concurrence, the court could award one parent custody over another under the best interests of the child standard but would be required to apply the very restrictive standard articulated in Roth if it wished to award a parent and a nonparent joint custody over the objection of the other parent.
The concurrence asserts that most of these jurisdictions have not held that âextraordinary circumstancesâ means harm of a âlesser degreeâ than the harm articulated in Roth. Footnote 7 of the concurring opinion. We do not necessarily agree. The jurisdictions in question refer to harm arising from âextraordinary circumstancesâ most likely because they wish the standard to include harm that may not be expressly described within existing statutory and legal definitions. Similarly, our purpose in allowing trial courts to consider harm arising from âextraordinary circumstancesâ is to broaden the standard, thus granting courts additional flexibility in awarding custody to a third party when a child suffers from harm that may not be specifically identified in the temporary custody and neglect statutes.
We disagree with the concurrence that the only reason the United States Supreme Court did not consider the standard of harm in Troxel was âits well established policy of affording substantial deference to state courts in determining the contours of family law, an area of law traditionally relegated to the states.â Footnote 10 of the concurring opinion. In our view, the court was not simply recognizing that such issues are best decided by state courts but was making the additional point that family courts within the states, which confront these issues on a daily basis, are in a better position to resolve them pursuant to a more flexible, rather than a more strictly defined, standard of harm. See Troxel v. Granville, supra, 530 U.S. 73.
The concurrence rejects this standard for reasons that are difficult to grasp. On the one hand, it is critical of our attempt to elaborate on the meaning of detriment so as to provide courts with additional guidance. On the other hand, it charges that we do âlittle to guide the courts in properly balancing the interests at stake.â The concurrence specifically complains that the standard of harm that we adopt could âdevolve to a best interests testâ or be construed to mean (1) âshort-term emotional upheavalâ resulting from dissolution of the parentsâ marriage or some other disruptive event, or (2) âthe inculcation of values and beliefs that are contrary to social norms,â such as a Bohemian lifestyle, thus allowing the court to consider its own more conventional lifestyle preferences when making an award of custody. We have rejected these interpretations, however, and the concurrence concedes as much when it states that the we â[limit] the temporal nature of the harm, requiring something more than the temporary stress attendant to dissolution . . . .â Finally, the concurrence inexplicably concludes that a broad definition of detriment by an intermediate Florida appeals court that makes no reference to the type of harm described in Connecticutâs neglect statutes âis entirely consistentâ with the standard in Roth. See In re Marriage of Matzen, 600 So. 2d 487, 490 (Fla. App. 1992) (â â[d]etrimentâ
We note that the standard of harm that we adopt for third party custody awards does not rely solely on In re Joshua S., supra, 260 Conn. 207, but is consistent with that of numerous other jurisdictions that also have adopted a more flexible approach. See part IV A of this opinion.
The court in Santosky determined that the parentâs interest in the accuracy and justice of a decision terminating his or her parental rights is âa commanding oneâ and that such a decision, because it is âfinalâ and âirrevocable,â results in âa unique kind of deprivation.â (Emphasis in original; internal quotation marks omitted.) Santosky v. Kramer, supra, 455 U.S. 759. Accordingly, consideration of âthe private interest affected . . . weighs heavily against use of the preponderance standard at a state-initiated permanent neglect proceeding.â Id. The court noted that the fact-finding or fault stage of a termination proceeding is ânot intended ... to balance the childâs interest in a normal family home against the parentsâ interest in raising the childâ but, rather, focuses on the fitness of the parent, and thus âpits the [s]tate directly against the parents.â Id. Moreover, during the fact-finding stage of the proceedings, âthe [s]tate cannot presume that a child and his parents are adversaries.â Id., 760.
The concurrence discusses the third, fourth and fifth points in its analysis of the third Santosky factor. We discuss them in this context, however, because the focus of the first Santosky factor is on the private interests involved, which, in third party custody proceedings, include those of the child.
General Statutes § 46b-129 Q) provides: âUpon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such childâs or youthâs care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court. The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent. The commissioner shall be the guardian of such child or youth for the duration of the commitment, provided the child or
Notably, there is no option permitting unsupervised custody following an adjudication of neglect.
The concurrence states that this conclusion is âunfairâ to our trial courts because it reflects a âconcernâ that the courts will not take remedial action in such cases. To the contrary, we have great confidence in the ability of trial courts to interpret the law properly so as not to infringe unnecessarily on the liberty interests of parents. Insofar as we recognize that trial courts will follow the law and refrain from awarding custody to third parties or take other actions to protect children when the burden of proof has not been satisfied, we merely recognize that the courts are not, and may not be, expected to take actions, sua sponte, that are not required pursuant to their duties as adjudicators of the law.
The court in Santosky held that numerous factors combine to magnify the risk of error in a termination proceeding. Santosky v. Kramer, supra, 455 U.S. 762-63. These include âimprecise substantive standards that leave determinations unusually open to the subjective values of the judgeâ; id., 762; the stateâs superior resources and ability to assemble its case, which dwarfs the parentsâ ability to mount a defense, and the stateâs ability to engage in repeated termination efforts, which the parents cannot forestall, upon the gathering of additional evidence, even when they have attained the level of fitness that the state requires. See id., 763-64. The court noted that âthe primary witnesses at the hearing [would] be the agencyâs own professional caseworkers whom the [s]tate [had] empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the [s]tate even has the power to shape the historical events that form the basis for termination.â Id., 763. The court thus concluded that the fair preponderance standard, which by its very terms demands consideration of the quantity rather than the quality of the evidence, âcreate[d] a significant prospect of erroneous termination.â Id., 764. The court further stated that, because the likely consequences of an erroneous termination of parental rights were far more severe for the parents than for the child, who could remain in a foster home, for example, a standard that allocated the risk of error nearly equally between the two outcomes did not reflect properly their relative severity. Id., 766.
We do not ignore the fact that periodic judicial review is directed toward the goal of family reunification but merely observe that when the custody of a child adjudicated as neglected is vested in an appropriate third party under § 46b-129 (j), the custody order is not subject to judicial review. See In re Juvenile Appeal (85-BC), supra, 195 Conn. 361.
The concurrence attempts to diminish this conclusion by stating that In re Juvenile Appeal (85-BC) does not address whether the vesting of custody in a third party directly following the courtâs adjudication of neglect, rather than at some later time following transfer from the custody of the commissioner of children and families (commissioner), as in that case, eliminates the need for âreunification efforts and the attendant measuresâ articulated in § 46b-129. In re Juvenile Appeal (85-BC), however, makes no such hairsplitting distinction. The court merely states that the commissioner does not have the same obligation to conduct judicial review when the trial court vests custody in an appropriate third party as when a child is committed to the commissionerâs custody. See In re Juvenile Appeal (85-BC), supra, 195 Conn. 361. The court explained that commitment cases require judicial
The court in Santosky declared that the third factor, the stateâs countervailing interest in parental rights termination proceedings, consists of âa parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings,â both of which it deemed to be compatible with the clear and convincing standard of proof. Santosky v. Kramer, supra, 455 U.S. 766. The court specifically concluded that âthe parens patriae interest favors
The court ultimately determined that the fair preponderance standard was âconstitutionally intolerableâ in a parental rights termination context because â[t]he individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.â (Internal quotation marks omitted.) Id., 768. The court thus held that either the reasonable doubt standard or the clear and convincing standard would satisfy due process in such a proceeding. See id., 769-70.
Although the Appellate Court summarily concluded that âthere was ample evidence for the [trial] court to conclude that the presumption in the defendantâs favor was rebuttedâ; Fish v. Fish, supra, 90 Conn. App. 757; the court conducted no analysis of whether it would be detrimental to the child to remain in the defendantâs custody.
See footnote 6 of this opinion.