MARKLE, J.
This matter came before this court for hearing on October 5, 2009 to address the defendant's Motion for Modification (filing #147) requesting this court to change the primary physical residence of the minor child, Taliah S. Rivera, whose date of birth is March 26, 1996. The parties currently share joint legal custody with physical custody and place of residence with the father by court order (Kenefick, J.), entered on January 23, 2007.
This court has continuing jurisdiction over a custody decree . . . and the non-custodial parent retains the option to move to modify custody based on a substantial change in circumstances affecting the welfare of the children." Cookson v. Cookson, 201 Conn. 229, 236 (1986).
"The burden is on the party seeking modification to show the existence of a substantial change in circumstances." Jaser v. Jaser, 37 Conn.App. 194, 204 (1995); Emerick v. Emerick, 28 Conn.App. 794, 802, cert. denied, 224 Conn. 915 (1992); see also Walshon v. Walshon, 42 Conn.App. 651 (1996), (dismissing plaintiff's motion for modification for failure to make out a prima facie case of a material change in circumstances). A finding of a material change in circumstances must be based on circumstances that have arisen since the previous order of custody. "If such a material change is found, the court may then consider past conduct as it bears on the present character of a parent and the suitability of that parent as custodian of the child." Simons v. Simons, 172 Conn. 341, 342-43 (1977).
This court has carefully considered the testimony of the parties, the testimony from the family services counselor who conducted a Comprehensive Custody Evaluation submitted into evidence, the testimony from the guardian ad litem, the transcripts of findings CT Page 18987 and orders previously entered by the court (Kenefick, J.), and has considered the criteria set forth in Connecticut General Statute § 46b-56(c). Accordingly, this court makes the following findings:
Defendant's Exhibit A.
FINDINGS
1. On January 23, 2007 the court, James G. Kenefick, Jr., entered orders regarding the custody and care of a minor child to Taliah S. Rivera.
2. There has been a substantial change of circumstances since the decision of January 23, 2007 in the following ways:
a. The father has since separated from his wife, Elaine Rivera, to whom he had previously been married for over ten years. That Mr. Rivera is the subject of a full protective order as the consequence of a domestic dispute with Mrs. Rivera and as a result he has relocated from his marital home to the paternal grandmother's apartment with his minor child Taliah. As a result, the family unit that offered Taliah a stable environment is no Longer in tact.
b. The father has lost his employment at the New Haven public schools which provided him a schedule that allowed him to be home with his daughter at the end of the school day.
c. That by the father's own admissions, he has difficulty managing his anger and that his anger has been the cause for uprooting Taliah from her home and separating her from her step-mother Mrs. Rivera and her step-siblings.
3. What has not changed is that Ms. Munoz, still has a relationship with her boyfriend Jose Dishmey, who has an extensive criminal background and has served time in jail and that he frequently visits Ms. Munoz's home on an overnight basis.
4. Taliah, the minor child, now age (13) thirteen, has expressed her wishes to have more contact with her mother.
5. The plaintiff and the defendant, while they agree to share CT Page 18988 joint legal custody, do not possess the skills necessary to joint parent in a meaningful way primarily because the parties adhere to different parenting approaches. The father's approach to parenting is more rigid and he has trouble with communication skills while the mother's parenting approach is more flexible and open. There is credible evidence that the father has restricted Taliah's communications with the mother during punishment which is inappropriate. There is also credible evidence to elicit concern over Ms. Munoz's household and the fact that she allows Mr. Dishmey to remain overnight in her home.
6. The court further finds the child, Taliah, to be torn between the two different parenting styles, and further, that these co-parenting differences have imposed anxiety and unhappiness upon their child.
7. That Taliah has consistently performed very well in school despite the parent's inability to work together.
8. This court finds that due to the child's anxieties and due to the fact that she has just recently changed her residence as a result of her father's separation from his wife, that it is in the best interests of Taliah to remain to reside primarily with the father but to increase access and parenting time with the mother.
9. It is the intention of this court not to disrupt the child's routine in such a way that requires her to make a significant change in her lifestyle and which may impact on her sense of stability while at the same time provides her sufficient contact with both parents.
The court enters the following orders:
ORDERS
1. The parties shall share joint legal custody of the minor child, Taliah S. Rivera, whose date of birth is March 26, 1996. Physical residence of the minor child shall remain at the residence of Mr. Rivera but with increased parenting and access by the mother, Ms. Munoz. The minor child shall reside with the mother every other weekend from Friday after school until Sunday at 5:00 p.m. and every Wednesday after school until Thursday morning.
2. The parties shall participate in the "Focus on K.I.D.S." program offered through the Connecticut Council of Family Service CT Page 18989 Agencies or in similar co-parenting counseling to address and manage their communication difficulties. Both parents shall become enrolled in said counseling program within 14 days of this court order.
3. In the event that the father gains employment and is unavailable for after school supervision, and in the event the paternal grandmother is also unavailable, then Taliah shall remain at Ms. Munoz's home until such time as supervision is in place.
4. Taliah is to have unlimited phone access to either parent at all times, regardless of her behavior.
5. Mr. Rivera is to continue to engage in therapeutic counseling to manage his anger until such time as it is deemed by the provider that he has completed such counseling.
6. All other previous orders entered on January 23, 2007 remain in effect.