BENZ v. SMITH, No. FA01 0183235 S (Sep. 1, 2004)

NOVACK, JUDGE TRIAL REFEREE.

The parties, who never married, are the parents of a minor child, Ashley ("Ashley" or "child") born July 19, 1999. The plaintiff ("father") executed a written acknowledgment of paternity on July 20, 1999, and the defendant ("mother") signed the document affirming the father's statement on the same date. The child resided with her mother in Connecticut from the time of her birth until March 2001, shortly before this action commenced. The father has resided continuously in Connecticut for approximately the last fourteen years. The court finds that Connecticut was the home state of Ashley at the time this action was commenced, and, therefore, has jurisdiction concerning the custody and visitation issues raised in this case.

The father is requesting the court order joint legal custody and establish a parenting plan as set forth by him in great detail. The mother is seeking sole legal custody and a minimal schedule as to the father's contacts with Ashley.

The current pendente lite arrangement is the mother has sole legal custody, by stipulation, and the child lives with her in Warrensburg, New York. The father spends alternating Saturdays with the child, one in Warrensburg for approximately nine hours during the day. The other visit is in Norwalk, Connecticut. The mother transports Ashley there who then spends Saturday with her father from 10:00a.m. to 7:00 p.m. and Sundays 10:30 am. to 4:00 p.m. The father's wife is present at all times Ashley visits with her father.

Background

1. The mother is 42 years old. She attended high school for 2 1/2 years before dropping out. She has worked as a clerical person and trained as a dental assistant. She is currently unemployed and claims to be unable to work as a result of lingering effects of injuries that occurred in previous years and is seeking disability payments from the State of New CT Page 13113 York. She has never been married but has two children as a result of two separate relationships, a 13-year-old son, Sean, and Ashley. She currently resides with her two children and her fiancé

2. The father is 46 years old. He complained of no current health problems. He attended high school, but left in the 10th grade. He is employed as an oil burner technician. He is married and lives with his wife in Norwalk, Connecticut. His wife works for Family and Children's Aid in Norwalk as an aide to elderly and handicapped people.

3. Ashley recently celebrated her fifth birthday. She was described during testimony as a spirited, energetic, warm, affectionate child. She appears to be comfortable and happy with the four adults in her life. (The mother and her fiancé and the father and his wife.) She interacts very well with both parents.

Witnesses

I. Doctor Jeffrey Von Kohorn, a clinical psychologist, was retained by the parties to perform a psychological evaluation of them and their daughter and a custody study. The purpose of his assignment was to determine and assess issues relevant to assisting the parents, attorneys and court in making a decision regarding the child's primary residence and time spent with each parent.

Dr. Von Kohorn testified and his report was entered as an exhibit. (#1) Among his recommendations, he suggested that the mother should have sole legal custody, and Ashley should reside with her mother. He further recommended a detailed parenting plan, including overnight visits with the father. He believes it appropriate for Ashley to work with a therapist and obtain an educational evaluation to rule out learning disabilities.

2. Attorney Doris Knapp was appointed Guardian Ad Litem for Ashley and testified at the trial. She concluded after her involvement with Ashley and her parents that joint legal custody would be the best arrangement. She suggested a parenting plan that included overnight visits with the father commencing later this year.

3. Each party testified in detail as to the history of their relationship and their concerns and desires as to the other parent's involvement with Ashley. The maternal grandmother and the father's wife presented evidence for the court's consideration.

Findings and Conclusions CT Page 13114

The court has carefully considered the evidence presented by the parties, the documentary evidence and the arguments of counsel. In reaching its decision, the court has been guided by the best interests of the child standard mandated by Section 46b-56 of the General Statutes of Connecticut. Hall v. HaIl, 186 Conn. 123-24 (1982).

The court finds that the mother has a loving, close relationship with her daughter. It is clear, however, that the mother has resisted giving the father the opportunities to develop a meaningful relationship with Ashley.

Without any reasonable explanation, the mother took the child and relocated from Norwalk to Warrensburg, New York a distance of over 400 miles from Norwalk. She had no employment opportunities awaiting her, no relatives living there and no other connection to that area. This immediately impacted the amount of available contacts between father and child.

The current action has been pending for three years. The file reveals that part of the delay is the mother's failure to cooperate with Dr. Von Kohorn's investigation as well as her requiring the father to bring numerous motions to enforce and/or enlarge his visitation times.

The mother has failed to convince the court that the father is unfit to develop a meaningful relationship with Ashley and to play a significant role in her life. No evidence was presented that the father cannot control his drinking habits. Also, the father's past interest in pornographic material was not shown to result in his acting improperly with his daughter. Two mental health professionals opined that he does not present any threat to Ashley.

The father has a good relationship with Ashley. He has demonstrated clearly his desire to being involved in her life. He has regularly traveled a substantial distance to have limited visitation at great expense and inconvenience. Also, he has for the past three years vigorously pursued his lawsuit to expand his time with Ashley. Even though he denies the mother's claims against him, he is willing to agree to having a supervisor for some limited period of time during his visitation periods. He is to be commended for his efforts. A lesser parent would have "thrown in the sponge" a long time ago.

It is clear that an award of joint legal custody is inappropriate in this case. An ability to communicate between the parties as well as a sensitivity to the needs of a child to have both parents involved in her CT Page 13115 life are required for such a custodial arrangement to work. Both elements are woefully lacking here. The use of a parent coordinator is a worthful suggestion, but would not help for the reasons stated as well as the costs involved and the distance between the homes of the parties.

The real dispute in this case, as stated by the father's counsel, concerns a parenting plan that includes overnights with the father. The court can find no reason why the father's parenting time should not be expanded, but because of the present age of the child, it is necessary to progress at a reasonable pace. The mother's cooperation is needed and expected to assist her daughter in adjusting to the changes in her life. Failure of the mother to cooperate will not be in the child's best interests and may be cause for consideration for changing physical custody in the future.

Orders

1. Sole custody of the minor child is awarded to the mother. The child shall reside primarily with her mother.

The mother shall furnish the father with copies of all medical, educational and religious documents pertaining to Ashley. The provisions of Connecticut General Statutes, Section 46b-56(e) shall be implemented.

Any major decisions regarding schooling or non-emergency medical treatments shall be shared with the father prior to enactment. The mother shall consider the father's opinion before making the final decisions.

2. The parenting plan for times Ashley spends with her father shall be in accordance with the following schedule:

I. September 2004 — February 2005

Alternating Saturdays, one in Warrensburg and one in Norwalk. In Warrensburg, father shall visit the child from 10:00 a.m. to 7:00 p.m. In Norwalk, mother shall transport the child both ways, dropping the child off at the father's residence at 10:00 a.m., and the child shall visit the father through Sunday at 4:00 p.m., continuously including overnight on the Saturday, when the mother shall pick up the child at the father's residence.

II. March 2005 — June 2005

Alternating weekends, one in Warrensburg and one in Norwalk. In Warrensburg, father shall visit child on Saturdays from 10:00 a.m. to CT Page 13116 7:00 p.m. In Norwalk, the minor child shall visit with her father from Friday at 8:00 p.m. through Sunday at 6:00 p.m. continuously, including overnight on Friday and Saturday. The father shall pick up his daughter at her mother's home in Warrensburg at 8:00 p.m., and the mother shall pick up her daughter at the father's home in Norwalk on Sunday at 6:00 p.m.

The parties may, by agreement, exchange the child on the weekends she spends in Norwalk at some location midway between their two homes. For example, the mother may drive the child approximately 100 miles from her home, where the father will meet them on Friday. On Sunday, the father may return the child to that location.

III. July 2005 — August 2005

Same alternating weekends as ordered for March 2005 — June 2005, with the following addition: One of the alternating weekends spent in Norwalk in the months of July and one in August shall be extended to three consecutive overnights from Thursday at 8:00 p.m. through Sunday at 6:00 p.m.

The selection of which of the alternating weeks shall be determined by the father who shall give the mother at least four weeks advance notice in writing. However, any weekend in July on which the child's birthday may occur shall not be selected by the father in consecutive years.

IV. September 2005 — Further Order of the Court

During the school year, the same visitation schedule as ordered for March 2005 — June 2005 shall be in effect.

During July and August, the same visitation schedule as ordered for July and August 2005 shall remain in effect.

These orders are subject to revision at the August 2005 review as hereinafter ordered.

V. Holidays

All orders shall supercede regular weekend visitation schedules, if in conflict.

A. Thanksgiving: Mother — even numbered years Father — odd numbered years CT Page 13117

On father's holiday visit he shall pick the child up in Warrensburg on Wednesday at 5:00 p.m., and the child shall visit with the father continuously until Friday at noon when the mother shall pick the child up in Norwalk.

B. Christmas

December 24th — 12:00 p.m. until December 26th — 4:00 p.m.

Mother — odd numbered years

Father — even numbered years

December 26th — 4:00 p.m. until December 28th — 4:00 p.m.

Mother — even numbered years

Father — odd numbered years

On father's holiday visit, he shall pick the child up on December 24th at noon or December 26th at 4:00 p.m. in Warrensburg, and the child shall visit continuously until December 26th at 4:00 p.m. or December 28th at 4:00 p.m. when the mother shall pick up the child in Norwalk.

C. Easter — the holiday weekend (Friday, 5 p.m. to Sunday 6:00 p.m.) shall be alternated with the mother having the odd numbered years and the father even numbered years.

D. Mother's Day: With Mother

E. Father's Day: With Father

VI. School Vacations

No orders are entered at this time.

VII. Miscellaneous Orders

1. The entire parenting plan will be reviewed in August 2005. The parties shall schedule appointments with the Family Services Unit in Stamford, Superior Court in July 2005 to review the schedule ordered and arrange for a hearing before the court.

2. Mrs. Donna Benz, the wife of the father, shall be present and supervise all visits and transportation by the father until further order CT Page 13118 of the court or agreement of the parties.

3. If there are any missed visits, the party causing the visit to be missed shall promptly schedule a make-up visit and shall be responsible for paying the costs, if any, of the other party whose visit was missed.

In the event winter storms prevent the father from getting to Warrensburg or the mother leaving Warrensburg, the other party shall be immediately notified. The make-up date shall be the following weekend.

4. The father, as requested by him to allay any fears of the mother, is ordered to refrain from drinking alcohol for 24 hours before the commencement of any period he spends with Ashley through the completion of the visitation.

5. If the mother intends to relocate she shall furnish written notice to the father at least 90 days in advance.

6. Dr. Von Kohorn has recommended that Ashley be seen by a therapist. The mother has been aware of this for a considerable time and to date has failed to make the necessary arrangements. The excuse offered by her is not credible. She shall obtain a therapist for Ashley by October 1, 2004 and the father shall be notified of the name and telephone number of the therapist. If the mother fails to retain a therapist by October 1, 2004, then she shall make the child available for a therapist selected by the father, preferably in the Glen Falls, New York area or in Connecticut, if necessary. The cost of the therapist shall be equally shared by the parties after any bills are submitted to the health insurance carriers of the parties.

7. The child requires an educational evaluation to rule out learning disabilities. The mother has not taken any steps to accomplish this. She shall request the school where Ashley will attend this year to obtain this evaluation. If there is no commitment by the school by October 1, 2004, the father may arrange for the evaluation either in New York State or Connecticut. If it is scheduled in Connecticut, the mother shall transport Ashley to and from the location where the evaluation occurs. The parties shall equally share the costs of the evaluation.

3. Child Support

The child support guidelines provide for the payment of $154 per week as the father's obligation. He has been paying $160 per week, pendente lite, and has indicated a willingness to continue paying that amount. He, therefore, shall pay $160 per week to the mother, in advance, CT Page 13119 commencing the week of August 23, 2004 and continuing until Ashley reaches majority, subject to the provisions of Connecticut General Statutes, § 46b-84(b). A contingent wage withholding order may enter.

The father may claim Ashley as dependency exemption for income tax purposes.

The parties differ as to whether there are any arrearages due on the pendente lite order. The court reserves jurisdiction to determine this issue if they are unable to agree.

4. Educational Support Order

The court reserves jurisdiction to enter an educational support order in the future, pursuant to the provisions of Section 46b-56c of the Connecticut General Statutes.

5. Health Insurance

The mother shall continue to provide the primary health insurance coverage for the minor child while the same is available to her. The father may provide additional health insurance coverage for the minor child in his discretion. Section 46b-84(e) of the Connecticut General Statutes shall apply.

Any unreimbursed or uninsured medical expenses of the child shall be shared as follows:

1. The first $100 per year shall be the responsibility of the mother.

2. The remaining expenses shall be allocated 76% to the father and 24% to the mother.

6. Life Insurance

The father shall name the child as beneficiary of term life insurance on the father's life in the amount of $15,000 for as long as the father is required to pay child support or educational support payments.

7.

The parties agreed to equally share the fees of Doctor Von Kohorn. There is a balance of $1,200 due the doctor from the mother. She shall be responsible for payment of that amount and shall promptly contact the doctor to arrange a payment schedule. CT Page 13120

If the father is required to pay the balance due the doctor, the mother shall reimburse the father for the payments made by him.

8. Fees

Each party shall pay her or his own legal fees.

JUDGMENT MAY ENTER ACCORDINGLY.

NOVACK, J.T.R CT Page 13121