Fish v. Fish
Fish v. Fish
Opinion of the Court
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. “The parties
“In May, 2002, [when the parties’ 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.
“Trial 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 child’s 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 litem’s proposed orders. Both Husaluk and Martinsen filed motions to
“With 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 parties’ marriage when the child was four years old, ‘she 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 “put in the middle,” has been incessantly grilled by each parent after time spent with the other and has been bombarded by what she calls “guilt bombs” from each parent.’
“The court found that both parties had put their own interests before the child’s well-being. In addition, the court found that the defendant had failed to provide a clean and appropriate home for the child, demonstrated
“The 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 child’s 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 ‘see-through outfit.’ 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 defendant’s house overnight and expressed no desire to live with him.
“The court also found that after living with Martinsen and, later, Husaluk, the child had been away from her parents’ battles and had seen how other people live in relative peace and in a supportive and nurturing environment. Those experiences increased the child’s yearning for stability and calm in her family life, which she never had enjoyed with her parents. The court noted that, ‘[m]ost compelling, at one point during her testi
“The court credited the testimony of John Herd, a teacher and administrator at the child’s school in Connecticut, who testified that after returning from Aspen, the child’s 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 child’s 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.
“The court concluded that ‘[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 daughter’s. 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 “all major events affecting the child’s life,” 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: “It 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 defendant’s home and the dog, it shall be the child’s decision whether she chooses to spend overnights with her father.” The court ordered the plaintiff and the defendant to share the cost of transporting the child to and from Connecticut and stated that “[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 Husaluk’s 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 Husaluk’s 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 “best interests of the child.” 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 court’s 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,
“Second, 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 parent’s authority.” Roth v. Weston, supra, 259 Conn. 234-35.
The defendant’s claim that the trial court should have applied the heightened standard in Roth to Husaluk’s 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 defendant’s 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 “[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].” (Citation omitted; internal quotation marks omitted.) Troxel v. Granville, supra, 530 U.S. 65-66. “In 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) (“[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 interest”). 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 “fundamental 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 person’s personal affairs are not needlessly intruded upon and interrupted by the trauma of litigation.”
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 “either parent or to a third party . . . .” Additionally, General Statutes § 46b-57 provides that the trial court “may allow any interested third party or parties to intervene upon motion” in any existing custody proceeding and “may award full or partial custody ... of such child to any such third party . . . .” Finally, General Statutes § 46b-56b provides that, in disputes regarding “the custody of a minor child involving a parent and a nonparent,” 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 “detrimental” to the child.
The term “third party” 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 “any person”;
“Therefore, 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, “in 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 child’s 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.” (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 “constitutional jeopardy.” 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, “ [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 parent’s constitutional right neutralizes the other parent’s 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 parent’s request for custody, the parents commence as presumptive equals and a trial court undertakes a balancing of each parent’s relative merits to serve as the primary custodial parent; the child’s best interests [tip] the scale in favor of an award of custody to one parent or the other.
“Where 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 parent’s constitutional rights, we concluded in Roth that Connecticut’s 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 “ignore[d] the presumption that parents act in the best interests of their children” and “allow[ed] parental rights to be invaded by judges based solely [on] the judge’s determination that the child’s best interests would be better served if the parent exercised his parental authority differently.” 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 “[visitation is a limited form of custody during the time the visitation rights are being exercised . . . .” (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 child’s best interest to deny or limit the petitioner’s request for visitation. See Troxel v. Granville, supra, 530 U.S. 72-73. The harm alleged in a visitation petition results from the child’s 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 child’s 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 child’s foster parents following the death of the child’s 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 child’s 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) (“the non-parent must show that it clearly would be detrimental to the child to permit the parent to have custody”); In re Guardianship of D.A.McW., 460 So. 2d 368, 370 (Fla. 1984) (“custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child”); Bateman v. Johnson, 818 So. 2d 569, 571 (Fla. App. 2002) (“[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 nature” [internal quotation marks omitted]); McDermott v. Dougherty, supra, 385 Md. 325 (“the 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 ‘best interests of the child’ standard as a means of deciding the dispute”). 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 “substantial harm” 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 “make a finding that an award of custody to a parent would be detrimental to the child”; (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, “[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.” (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 “only in unusual and extreme cases.” Id. The court stated that custody would be awarded “to 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 ‘best interests’ or the ‘welfare’ of the child will not suffice.” 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 child’s 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 child’s right to protection does not rise to the level of a constitutional right equivalent to that of the parent unless the child’s 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 standard’s arbitrary application. We disagree with these arguments.
1
The concurrence declares that the standard of harm we articulated in Roth — that the child be deemed neglected, uncared-for or dependent — 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 “substantial harm to the child”); Tex. Fam. Code Ann. § 102.004 (a) (1) (Vernon Sup. 2007) (parental custody “would significantly impair the child’s physical health or emotional development”); Evans v. McTaggart, supra, 88 P.3d 1085 (parental custody would be “clearly detrimental” to welfare of child [internal quotation marks omitted]); Murphy v. Markham-Crawford, supra, 665 So. 2d 1094 (parental custody clearly would be “detrimental” to welfare of child); Clark v. Wade, supra, 273 Ga. 598 (parental custody would subject child to “physical harm or significant, long-term emotional harm”); 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 “extraordinary circumstances” 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 “special facts and circumstances . . . constituting an extraordinary reason for taking child from [his or her] parent,” 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 court’s 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 “sweeping breadth . . . .” 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: “We 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 Kennedy’s 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 ‘elaborated with care.’ . . . 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 child’s 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 “the constitutional minimum of fundamental fairness.” (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 “stricter 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 court’s inherent supervisory powers,” 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 legislature’s 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, “by 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].” 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 “compromise” 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 “weakened” 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 legislature’s 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, Maryland’s highest court found that some “have, 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 parent’s 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 — ‘satisfactory evidence’ (In re Dependency of Terry Klugman, 257 Minn. 113, 97 N.W.2d 425 [1959]) or ‘evidence evincing’ (In re Custody of N.A.K., 649 N.W.2d 166 [Minn. 2002]);
It is well established that, “[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.” In re Juvenile Appeal (83-CD), supra, 189 Conn. 296. “The 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.
“Thus, 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 society’s minimal concern with the outcome, and a conclusion that the litigants should share the risk of error in roughly equal fashion.’ . . . When
“[The United States Supreme] Court has mandated an intermediate standard of proof — clear and convincing evidence — when the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money. . . . Notwithstanding the state’s 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.” (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, “in a hearing on a petition to terminate parental rights, due process require [s] that the state prove statutory termination criteria by a ‘clear and convincing evidence’ standard rather than by a ‘fair preponderance of the evidence’ standard. . . .
“The 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 legislature’s express rejection of the clear and convincing standard, but, more significantly, because it comports with due process and the requirement of “fundamental fairness” 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 child’s welfare and safety represents a
Insofar as the concurrence concludes that the child’s 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 child’s interests in temporary custody and neglect proceedings are in relative equipoise with the shared interest of the parent and child in family autonomy.
The concurrence’s 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 parent’s ability to meet the child’s 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 “the nature of the private interest threatened and the
“Where 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.” (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 parent’s 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 concurrence’s 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 concurrence’s 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 child’s 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 court’s 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 “a heavy one”).
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 child’s 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 “upon such conditions and limitations as it deems equitable,” which might include steps that the
In addition, the concurrence’s assertion that the court’s 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 “court may vest [the] child’s or youth’s 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 . . . .” (Emphasis added.) The periodic judicial review described in § 46b-129 applies only if the child is committed to the custody of the department. “The 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 . . . .”
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 “the heightened standard of clear and convincing evidence is not constitutionally mandated” in visitation cases. Roth v. Weston, supra, 259 Conn. 231. As we stated in Lehrer, “even 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 . . . .” (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 child’s 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 Husaluk’s 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 defendant’s 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 court’s judgment as to the allocation of tax dependency exemptions;
In this opinion NORCOTT, VERTEFEUILLE and SULLIVAN, Js., concurred.
The term “third party” 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 child’s parents. See General Statutes § 45a-610.
We granted the defendant’s petition for certification to appeal limited to the following issue: “Did 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 defendant’s 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 court’s 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 Court’s determination of that issue. We therefore affirm that part of the Appellate Court’s judgment.
collectively as the “parties” or as the “parents.”
Although the parties’ 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: “I 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 child’s desire] to reside with me through her high school year[s]. Wherefore, I ask that the court grant me permission to intervene.”
General Statutes § 46b-59 provides in relevant part: “The 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 court’s 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. ...” (Emphasis added.)
General Statutes § 46b-56b provides: “In 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.”
General Statutes § 46b-57 provides: “In 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.”
General Statutes § 46b-56 provides in relevant part: “(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.
“(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
“(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 child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s 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 parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s 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 child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s 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 child’s 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 parent’s decision that the requested visitation was not in her daughter’s best interests. See Troxel v. Granville, supra, 530 U.S. 67.
General Statutes § 46b-129 (a) provides that children who are deemed “neglected, uncared-for or dependent” may be removed temporarily from their parents’ 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 “a person has acted in a parental-type capacity for an extended period of time, becoming an integral part of the child’s 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.” 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 “orderly adjudication of the custody claims of nontraditional parties is best managed by having such claimants become party intervenors at the earliest possible appropriate time,” statutory scheme permits award of custody to nonparty “if, even without formal intervention, that person’s potential custodial status was properly before the court”). 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: “The 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.
“A rebuttable presumption is equivalent to prima facie proof of a fact and can be rebutted only by the opposing party’s 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.” (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; “one reasonably cannot say that the parent’s competency is not at issue in visitation petitions.” We disagree. The competence of the parent to make a visitation decision does not directly implicate the parent’s 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 concurrence’s 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 legislature’s 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 Representative’s in Substitute House Bill No. 5122. That bill provided in relevant part: “In 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].” 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: “In 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.”
During the Senate’s 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: “In 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.”
In the debate that followed as to what would be required to overcome this presumption, Senator Anthony V. Avallone summarized the position of the bill’s proponents, stating: “The 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. We’re 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 “go nearly as far” as the earlier version, it gave the parent “a leg up,” 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 Parskey’s 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 “natural importance of parenthood”; id., 406; it had explained that “the constitutional concerns are not entirely parental because the preservation of family integrity encompasses the reciprocal rights of both parent[s] and children.” (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 “a little more weight” 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 Parskey’s 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 “misconstrues” the relationship it has drawn between visitation and custody. It states that this court “implicitly recognized in Roth that the stringent standard of harm that we adopted in that case clearly would be justified” in third party custody proceedings, and that “the lesser intrusion resulting from visitation was sufficiently similar in kind, albeit not degree, to justify the heightened standard.” 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 child’s 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 “is a limited form of custody during the time the visitation rights are being exercised . . . .” (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 “would be detrimental to the child”; 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 “quintessential rights of parenthood,” 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 “quintessential rights of parenthood” 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 child’s life.
We do not “dismiss” the constitutional infringement on parental rights that results from an award of custody, as the concurrence suggests. Nor do we rely on the “hypothetical possibility” 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 child’s life. See General Statutes § 46b-57 (court may award partial custody to any third party “upon such conditions and limitations as it deems equitable”). In the present case, for example, the court ordered that “[tjhere shall be reasonable telephone and e-mail contact between the child and her parents” and that the paternal aunt would be required to consult with both parents prior to making decisions affecting the child’s 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 concurrence’s 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 child’s 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 child’s 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 “disposition option” of joint custody should have “no weight in determining the procedural and substantive protections necessary to protect the constitutional interests at stake”; 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 “extraordinary circumstances” means harm of a “lesser degree” 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 “extraordinary circumstances” 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 “extraordinary circumstances” 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 “its 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.” 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 “little to guide the courts in properly balancing the interests at stake.” The concurrence specifically complains that the standard of harm that we adopt could “devolve to a best interests test” or be construed to mean (1) “short-term emotional upheaval” resulting from dissolution of the parents’ marriage or some other disruptive event, or (2) “the inculcation of values and beliefs that are contrary to social norms,” 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 “[limit] the temporal nature of the harm, requiring something more than the temporary stress attendant to dissolution . . . .” 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 Connecticut’s neglect statutes “is entirely consistent” with the standard in Roth. See In re Marriage of Matzen, 600 So. 2d 487, 490 (Fla. App. 1992) (“ ‘[d]etriment’
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 parent’s interest in the accuracy and justice of a decision terminating his or her parental rights is “a commanding one” and that such a decision, because it is “final” and “irrevocable,” results in “a unique kind of deprivation.” (Emphasis in original; internal quotation marks omitted.) Santosky v. Kramer, supra, 455 U.S. 759. Accordingly, consideration of “the private interest affected . . . weighs heavily against use of the preponderance standard at a state-initiated permanent neglect proceeding.” Id. The court noted that the fact-finding or fault stage of a termination proceeding is “not intended ... to balance the child’s interest in a normal family home against the parents’ interest in raising the child” but, rather, focuses on the fitness of the parent, and thus “pits the [s]tate directly against the parents.” Id. Moreover, during the fact-finding stage of the proceedings, “the [s]tate cannot presume that a child and his parents are adversaries.” 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: “Upon 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 child’s or youth’s 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 “unfair” to our trial courts because it reflects a “concern” 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 “imprecise substantive standards that leave determinations unusually open to the subjective values of the judge”; id., 762; the state’s superior resources and ability to assemble its case, which dwarfs the parents’ ability to mount a defense, and the state’s 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 “the primary witnesses at the hearing [would] be the agency’s 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.” 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, “create[d] a significant prospect of erroneous termination.” 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 court’s 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 “reunification efforts and the attendant measures” 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 commissioner’s 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 state’s countervailing interest in parental rights termination proceedings, consists of “a 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,” 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 “the parens patriae interest favors
The court ultimately determined that the fair preponderance standard was “constitutionally intolerable” in a parental rights termination context because “[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.” (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 “there was ample evidence for the [trial] court to conclude that the presumption in the defendant’s favor was rebutted”; 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 defendant’s custody.
See footnote 6 of this opinion.
Concurring Opinion
with whom BORDEN and PALMER, Js., join, concurring. I agree with the majority’s conclusion that the judgment of the Appellate Court affirming the trial court’s judgment awarding custody of the minor child of the defendant, Andrew J. Fish, to the child’s paternal aunt, Barbara Husaluk, over the defendant’s objection must be reversed and the case remanded for further proceedings. Specifically, I agree with part IIA of the majority opinion that, in order to satisfy the
The majority determines that a third party may obtain custody over the objection of a parent who has not been deemed unfit upon demonstrating by a mere preponderance of the evidence that parental custody would be “detrimental to the child” pursuant to General Statutes § 46b-56b.
I disagree with this reasoning. The time-tested Roth standard strikes the proper balance between protecting the constitutional rights at stake and safeguarding the child’s welfare. Because the intrusion on the constitutionally protected interests of the parent and the family unit is significantly greater when a court acts to deprive a parent of custody of his or her child than when a court awards visitation to a third party over a parent’s objection, I cannot agree that a lesser standard suffices. Indeed, because third party custody not only deprives the parent and child of each other’s companionship, but also deprives the parent of the right to make decisions affecting every aspect of a child’s physical, social and moral development, the infringement on a parent’s right to raise his or her own child and on the family unit’s autonomy is akin to that arising from the termination of parental rights for as long as custody is vested in that third person to the exclusion of the parent. Accordingly, I would conclude that, in order to divest a parent of custody, a third party must plead and prove, by clear and convincing evidence, that they have a parent-like relationship with the child and that “real and substantial harm”; Rothv. Weston, supra, 259 Conn. 229; akin to that under our neglect statutes will result should custody not be vested in the third party.
To address the question of whether the Roth standard of harm constitutionally is mandated, I begin with this court’s reasoning for adopting that standard in that case. In Roth v. Weston, supra, 259 Conn. 209-10, this court determined that, in light of the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), we must reconsider the constitutional gloss that we had placed on the third party visitation statute, General Statutes § 46b-59, just six years earlier in Castagno v. Wholean, 239 Conn. 336, 684 A.2d 1181 (1996).
With this background in mind, I turn to the question of whether third party custody petitions implicate any lesser or substantively different intrusion on family autonomy and a parent’s right to exercise care, control and custody over a child than the intrusion resulting from a third party visitation petition, such that the custody statutes need not embody the same procedural and substantive protections that we applied, as a judicial gloss, to § 46b-59 in Roth. I would conclude that they do not. Indeed, it is evident that third party custody constitutes a significantly greater infringement.
Although clearly related, the legal rights and privileges attendant to an order of custody are more intrusive than those attendant to an order of visitation. As one judge explained: “Full custody denotes the care, control, and maintenance of a child including all physical and legal aspects of custody, and the child resides with the person to whom custody was awarded. . . . Visitation normally represents a period of access by a non-custodial individual. It differs from full custody in that the child does not dwell with the non-custodial individual, and, although this individual can be responsible for the care and safety of the child, he or she may not make important decisions for the child. . . . Full custody confers rights and authority upon the one in whom it is placed as opposed to the privilege of visiting.” (Citations omitted.) Hiller v. Fausey, 588 Pa. 342, 378-79, 904 A.2d 875 (2006) (Newman, J., concurring), cert. denied, 549 U.S. 1304, 127 S. Ct. 1876, 167 L. Ed. 2d 363 (2007).
Thus, an award of full custody to a third person deprives the parent of far more than the right to the child’s companionship for some limited period during which visitation occurs. It deprives the parent of the quintessential rights of parenthood — to make decisions that affect the child’s development, such as determining the child’s associations, education and medical treatment, and to inculcate religious beliefs and moral values. See Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) (“the primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American
In considering the constitutional question before us, it is important to recognize that the constitutional rights at stake include more than the parent’s right to control the child’s upbringing. It also includes the broader right of family autonomy or family integrity. “[The] right to family integrity . . . encompasses the reciprocal rights of both parent and children . . . the interest of the parents in the companionship, care, custody and management of [their] children . . . and of the children in not being dislocated from the emotional attachments that derive from the intimacy of daily association with the parent . . . .” (Citations omitted; internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089 (1998); see In re Christina M., 280 Conn. 474, 486-87, 908 A.2d 1073 (2006) (“[i]n cases involving parental rights, the rights of the child coexist and are intertwined with those of the parent” [internal quotation marks omitted]); see also Santosky v. Kramer, 455 U.S. 745, 760-61, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (prior to termination, it is presumed that interests of child and parent coincide). An award of custody to a third party invariably attenuates and potentially destroys the emotional attachments that the child derives from the intimacy of daily association with his or her parent. Thus, family integrity is undermined as a result of third party custody in a manner that is not implicated in third party visitation. In sum, the constitutional infringement is greater in third party custody; hence, a lesser standard of harm than that which we required in Roth for visitation reasonably cannot be justified. Moreover, the hypothetical possibility of an award of joint custody in third party custody petitions, which the majority relies on to dismiss the greater con
Although this court and the United States Supreme Court have recognized that there is an independent
Turning to the parental presumption set forth in § 46b-56b, which requires a nonparent to show that parental custody would be “detrimental to the child,” undoubtedly such a standard could be reconciled with Roth, depending on what detriment means. If “detriment” is construed to mean any degree of harm, no matter how insubstantial or short-lived, that standard readily could devolve to a best interests test, in contravention to the holdings of Roth and Troxel. See Evans v. McTaggart, 88 P.3d 1078, 1086-87 (Alaska 2004) (noting concern that detriment standard might not be readily distinguishable from best interest test). Such an open-ended term also could be construed to allow a third party to obtain custody solely because a child is suffering short-term emotional upheaval as a result of the dissolution of the parents’ marriage or other disruptive
Mindful of such concerns, one of our sister states applied the following judicial gloss to the detriment standard: “Detriment refers to circumstances that produce or are likely to produce lasting mental, physical or emotional harm. . . . [Detriment [i]s more than the normal trauma caused to a child by uprooting him from familiar surroundings such as often occurs by reason of divorce, death of a parent or adoption. It contemplates a longer term adverse effect that transcends the normal adjustment period in such cases. . . . Parental rights do not evaporate merely because parents have not been ideal parents.” (Citations omitted; internal quotation marks omitted.) In re Marriage of Matzen, 600 So. 2d
The majority implicitly recognizes the constitutional problems inherent in the vagueness of the term “detriment,” by virtue of its numerous attempts to refine its meaning. The majority engrafts onto the “detriment” standard the following gloss: “damaging, injurious or harmful to the child,” a definition of “detriment” previously cited by this court in In re Joshua S., 260 Conn. 182, 207, 796 A.2d 1141 (2002); “exceptional circumstances”; not “temporary harm of the kind resulting from the stress of the dissolution proceeding itself, but significant harm arising from the pattern of dysfunctional behavior that has developed between the parent and the child over a period of time”; and a “qualitatively different [analysis] from that involving the ‘best interests of the child’ . . . .’’In my view, these descriptive terms, in conjunction with the majority’s rejection of the Roth standard, do little to guide the courts in properly balancing the interests at stake.
Specifically, the majority cites the court’s statement in In re Joshua S., supra, 260 Conn. 207, wherein we held that “detriment may be shown, not just by demonstrating unfitness . . . but by demonstrating considerations that would be damaging, injurious or harmful to the child.” The majority ignores entirely, however, the context in which the court made this statement. The custody dispute in In re Joshua S. was between testamentary guardians and foster parents, a fact that led the court to reject the constitutional presumption afforded to parents and the applicability of the Roth and Troxel holdings to the case. Id., 203-205. Accordingly, the court did not examine the meaning of detriment through a constitutional lens; rather, it simply looked to the dictionary for the common meaning of the term. Id., 207 n.19, citing Webster’s New World Dictionary (2d Ed.). Notably, in rejecting the testamen
The majority’s addition of the qualifying term “exceptional circumstances” hardly provides meaningful guidance to the trial courts. Although some other
The majority declines to do so because it finds the Roth standard lacking sufficient flexibility to address the myriad circumstances under which courts may need to intervene to protect children. It cites the possibility of some “unpredictable” significant harm that might fall short of the Roth standard, yet warrant removing a child from his or her parent’s custody. I find this concern puzzling and troubling for several reasons. Contrary to the majority’s suggestion, the definitions of neglected, uncared for and dependent are not limited to circumstances wherein the child’s “actual safety may be . . . endangered.” Indeed, the majority appears to equate the Roth standard with “abuse,” rather than with the pertinent terms. Compare General Statutes § 46b-120 (4) (defining “abused”) with General Statutes § 46b-120 (7), (9) and (10) (respectively, defining “dependent,” “neglected” and “uncared for”).
I am unaware of any criticism from our trial courts or the family law bar that our long-standing and expansively defined neglect standards have failed to meet the needs of the children of this state. Indeed, under our neglect statutes, the petitioner need not even allege and prove actual harm, only the genuine potential for real and substantial harm. See In re Jermaine S., 86 Conn. App. 819, 831, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005). Moreover, our trial courts are well versed in ascertaining the unique needs of each child and circumstances of each family even when determining the lesser standard of best interests of the child in family matters generally. See Strohmeyer v. Strohmeyer, 183 Conn. 353, 356, 439 A.2d 367 (1981) (noting “inherently fact-bound” inquiry in best interests of child determination).
I cannot accept the majority’s premise that harm that falls short of the minimum threshold for an adjudication
Undoubtedly, the more open-ended the standard, the more flexibility it allows. While flexibility may be a virtue in some circumstances, we are operating in the realm of constitutional rights, where concerns of vagueness and arbitrary application counsel against
Therefore, consistent with our obligation to construe statutes to avoid constitutional infirmities; see Clerk of the Superior Court v. Freedom of Information Commission, 278 Conn. 28, 38-39, 895 A.2d 743 (2006); I would construe the “detrimental to the child” standard under § 46b-56b to mean harm of the same nature and degree as that required in § 46b-59 under Roth. Accordingly, I would conclude that a third party seeking custody must plead and prove real and substantial harm, akin to the kind of harm contemplated by §§ 46b-120 and 46b-129.
II
I next turn to the issue of whether the heightened burden of proof prescribed in Roth similarly should apply to third party custody petitions. In Roth, this court concluded that the clear and convincing burden of proof was not constitutionally mandated in the context of third party visitation,
Although § 46b-56b does not state expressly by what degree of proof the parental presumption must be overcome, I agree with the majority that the legislative history to the statute indicates that the legislature declined to require that the courts apply the heightened burden of clear and convincing proof. As I previously have noted, however, given this court’s evolving view of what the constitution mandates in third party visitation petitions, we reasonably could not expect the legislature to have been cognizant of such developments. See footnote 8 of this concurring opinion. Nonetheless, this court may impose a heightened burden of proof if the constitution so mandates. The majority concludes that the lowest possible burden of proof — preponderance of evidence — is constitutionally adequate because an award of custody differs from a proceeding to terminate parental rights in that custody: (1) involves the additional interest of the child’s welfare; and (2) does not permanently sever parental rights. I disagree with this reasoning.
Specifically, the question before us is whether due process is violated by application of the preponderance of the evidence standard to a decision to award custody to a third party over a parent’s objection, pursuant to General Statutes §§ 46b-56, 46b-56b and 46b-57, or whether due process mandates the more exacting standard of clear and convincing evidence. It is well settled that “[t]he 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 factfinder concerning the degree of confidence our society thinks
I agree with the majority that the nature of the process due in a third party custody proceeding turns on the balancing of the following three distinct factors: “the private interests affected by the proceeding; the risk of error created by the [s]tate’s chosen procedure; and the countervailing governmental interest supporting use of
In Connecticut, the state may seek a summary or ex parte order for immediate temporary custody when: (1) a child is suffering from serious physical injury or serious physical illness or is in immediate physical danger from his surroundings; and (2) immediate removal from the home is necessary to ensure the child’s safety. See General Statutes § 17-38a (e); In re Juvenile Appeal (83-CD), supra, 189 Conn. 288-89
Accordingly, in Santosky v. Kramer, supra, 455 U.S. 759, the Supreme Court determined that clear and convincing proof was required to terminate parental rights principally because the state’s action resulted in the final and irrevocable destruction of the parent’s fundamental right and numerous considerations combined to magnify the risk of erroneous deprivation of that right: imprecise subjective standards are applied by the court; litigation resources available to the state usually dwarf those of the parents; and no protections are available to bar repeated termination efforts. Id., 762-64. By
A
Under the first factor, the question of “[wjhether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss.” Santosky v. Kramer, supra, 455 U.S. 758. The fundamental, constitutional dimension of the interest at stake when a child is removed from a parent’s custody is well established. “[I]t [is] plain beyond the need for multiple citation that a natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.” (Internal quotation marks omitted.) Id., 758-59; accord In re Juvenile Appeal (83-CD), supra, 189 Conn. 284. As I have noted in part I of this concurring opinion, the constitutional interest, more broadly framed, is recognized as a right to family integrity or family autonomy that is held collectively by parent and child. See Pamela B. v. Ment, supra, 244 Conn. 310.
The Supreme Court has recognized that even a temporary deprivation of a constitutional right may require a heightened burden of proof to assure the correctness of the judgment. See Santosky v. Kramer, supra, 455 U.S. 759. Indeed, the court’s decision in Addington v. Texas, supra, 441 U.S. 422, in which the court deter
This court has understood that a temporary deprivation of a parent’s constitutional right to care and custody of his or her child gives rise to a risk of such irreparable harm that it has deemed interlocutory orders affecting that interest final judgments for purposes of appeal. See Sweeney v. Sweeney, 271 Conn. 193, 208-10, 856 A.2d 997 (2004) (pendente lite order related to religious and educational upbringing of minor child); In re Shamika F., 256 Conn. 383, 405-406, 773 A.2d 347 (2001) (order of temporary custody pursuant to neglect statute); Taff v. Bettcher, 243 Conn. 380, 386-87, 703 A.2d 759 (1997) (judicially imposed one year ban on review of custody and visitation issues); Madigan v. Madigan, 224 Conn. 749, 756-58, 620 A.2d 1276 (1993) (order of temporary physical custody in dissolution action). As this court explained with respect to a court order imposing a one year filing ban on parties to a dissolution action, such an order “may interfere with a parent’s custodial rights over a significant period in a manner that cannot be redressed at a later time. A lost opportunity to spend significant time with one’s child is not recoverable. . . . Any chance by the noncustodial parent to restructure custody and visitation to enhance the relationship or further establish a foundation in that interval cannot be replaced by a subsequent modification one year later. Nor can any harm to the child caused by the custodial arrangement be
Thus, the fact that a parent later may seek to regain custody by filing a motion for modification of the judgment does not dimmish substantively the constitutional significance of the deprivation of the interest at stake. Indeed, this court determined that the lesser preponderance burden was permissible for neglect proceedings in part because the dispositional options available to the court included keeping the child in the parent’s custody. In re Juvenile Appeal (84-AB), supra, 192 Conn. 263; In re Juvenile Appeal (83-CD), supra, 189 Conn. 288. Accordingly, the first factor weighs in favor of the heightened clear and convincing standard of the burden of proof.
Turning to the second factor, “we next must consider both the risk of erroneous deprivation of private interests resulting from use of a ‘fair preponderance’ standard and the likelihood that a higher evidentiary standard would reduce that risk. . . . Since the [third party] proceeding is an adversary contest between the [third party] and the . . . parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties.” (Citation omitted.) Santosky v. Kramer, supra, 455 U.S. 761.
Santosky raised some specific concerns as to the risk of erroneous deprivation in a termination proceeding. One of these concerns, the imbalance of resources to litigate the action, is not implicated in a meaningful way when the state is not a party to the proceeding. Private litigants always face the risk that they may have to defend against a party with greater resources. Other concerns raised in Santosky, however, are implicated in the present case. As I have explained in part I of this concurring opinion, the detriment standard adopted by the majority leaves the adjudication unusually open to the subjective values of the judge. Indeed, this court has recognized that such problems may arise even under the more specific neglected, dependent and uncared for standard under §§ 46b-120 and 46b-129. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 292 (“[petitions for neglect and for temporary custody orders, like the petitions to terminate parental rights . . . are particularly vulnerable to the risk that judges or social workers will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child’s natural parents with those of prospective adoptive parents [or foster parents]” [citations omitted; internal quotation marks omitted]). This subjectivity is magnified when these standards are applied to a third party cus
Additionally, as in termination proceedings, there is no double jeopardy or other doctrinal bar to protect a parent from a third party’s repeated efforts to relitigate the custody issue. Cf. Rivera v. Minnich, 483 U.S. 574, 582, 107 S. Ct. 3001, 97 L. Ed. 2d 473 (1987) (concluding that finality of judgment in paternity suit weighs in favor of preponderance standard). Although a third party can intervene only in an existing custody controversy before the court; see General Statutes § 46b-57; it is not uncommon for numerous such controversies to come before the court over a period of years.
Other concerns that were not implicated in Santosky, however, arise in third party custody proceedings that demonstrate that the preponderance standard creates a substantial risk of erroneous deprivation of the right to family integrity. Specifically, although this court concluded that an adjudication of neglect, uncared for or dependent under §§ 46b-120 and 46b-129 requires only proof by a preponderance of the evidence, the different effect of, and protections attendant to, that state initiated proceeding underscores why the preponderance standard is inadequate to prevent error in third party custody petitions.
First, a neglect adyudication under § 46b-129 does not result necessarily in an order depriving the parent of custody, a factor that we have deemed constitutionally significant. See, e.g., In re Juvenile Appeal (84-AB), supra, 192 Conn. 261; In re Juvenile Appeal (83-CD), supra, 189 Conn. 288. If the facts demand the less preferable option of removing the child from the home, the focus of the state’s efforts subsequent to that disposition is to enhance the possibility of reunification of the family. See General Statutes § 17a-111b; In re Devon B., 264 Conn. 572, 581-82, 584, 825 A.2d 127 (2003); In re Juvenile Appeal (84-AB), supra, 258. There are numerous procedural protections prescribed to meet that goal. See generally Practice Book c. 32a (setting forth rights of parties to neglect and termination proceedings); Practice Book c. 35a (prescribing procedures for hearing concerning neglected, uncared for and dependent children). The court must provide to the parent specific steps he or she must take in order to regain custody. General Statutes § 46b-129 (b) and (d); see, e.g., In re Ebony H., 68 Conn. App. 342, 344, 789 A.2d 1158 (2002). The court also provides to the depart
By contrast, in a third party custody petition, the sole relief sought by the party initiating the proceeding is to remove the child from the parent’s custody. Neither the state nor third party has any obligation to aid in the reunification of the family. The parent is not entitled to the procedural protections to which he or she would have been entitled had the state, rather than a third party, alleged that the child was neglected, uncared for or dependent.
The majority points to the fact that one possible disposition under our neglect statutes is an order vesting custody in a “suitable and worthy” third person; see General Statutes § 46b-129 (j); and rationalizes that, because this court had held in a 1985 opinion that periodic judicial review is not required in such circumstances; see In re Juvenile Appeal (85-BC), 195 Conn. 344, 361, 488 A.2d 790 (1985); the absence of such protections should not bear on the issue before us. The majority assumes too much. Our appellate courts never have considered whether a court is authorized under the statute to vest custody with a third party directly following an adjudication of neglect without providing the procedural protections otherwise prescribed under § 46b-129, nor have our courts considered whether the constitution mandates application of those procedural protections even if the child is transferred from the custody of the commissioner of children and families (commissioner) to a third party. In In re Juvenile Appeal (85-BC), supra, 345-48, the court simply addressed the question of “whether, under ... § 46b-129, the commissioner . . . must petition to extend a commitment of custody of two minor children, who had been adjudicated neglected, when their custody was committed originally to the commissioner but subsequently had been transferred to their paternal grandmother . . . .’’In that case, the court considered a pure question of statutory construction, expressly basing its conclusion on the fact that the statute requires a motion to extend commitment only when the commissioner assumes custody, and the court emphasized certain “critical” facts of the particular case, namely, that the
Notably, the only other mechanism available to a third party seeking to deprive a parent of custody is by way of an application to have the parent removed as guardian. See General Statutes § 45a-610.
“Given the weight of the private interests at stake, the social cost of even occasional error is sizable. Raising the standard of proof would have both practical .and symbolic consequences. Cf. Addington v. Texas, [supra, 441 U.S. 426]. The [Supreme] Court has long considered the heightened standard of proof used in criminal prosecutions to be ‘a prime instrument for reducing the risk of convictions resting on factual error.’ In re Winship, 397 U.S. [358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)]. An elevated standard of proof . . . would alleviate ‘the possible risk that a factfinder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or] . . . idiosyncratic behavior.’ Addington v. Texas, [supra, 427]. ‘Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate’ [deprivations of parental custody] will be ordered.” Santosky v. Kramer, supra, 455 U.S. 764-65. Accordingly, the second factor weighs in favor of the clear and convincing burden of proof.
C
Finally, I turn to the third factor, the countervailing governmental interest supporting use of the challenged procedure. Santosky v. Kramer, supra, 455 U.S. 766, identified two interests that also are relevant here: “a 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 pro
Although the state is not a party to a third party custody proceeding, in light of the substantial relationship that must be established by the third party, I would view the third party intervening in a custody dispute as representing the state’s interest in protecting the child’s welfare. This court has concluded, however, that it is only when serious physical harm or immediate danger is present, “that the child’s interest no longer coincides with that of the parent, thereby diminishing the magnitude of the parent’s right to family integrity . . . and therefore the state’s intervention as parens patriae to protect the child becomes so necessary that it can be considered paramount.” (Citation omitted.) In re Juvenile Appeal (83-CD), supra, 189 Conn. 287-88. Moreover, although the child’s interests in family integrity and his welfare are in equipoise in a neglect proceeding; In re Juvenile Appeal (84-AB), supra, 192 Conn. 263-64; that balance exists because the court has available to it a range of disposition options that correlate directly to the risk to the child and the parent’s ability to meet the child’s needs. Thus, under our neglect statutes, even though a child has been found to be neglected, uncared for or dependent, the proper disposition nonetheless may be to keep the family unit intact. Id., 263. Indeed, due process requires that steps short of removal be undertaken when possible in preference to disturbing the family integrity. In re Juvenile Appeal (83-CD), supra, 288; see also Pamela B. v. Ment, supra, 244 Conn. 313 (“[although a child’s physical and emo
The interest in protecting the child’s welfare does not mandate the lesser preponderance burden of proof. In the rare case in which there is proof by a preponderance of the evidence, but not clear and convincing evidence, that denial of the third party custody petition would result in real and substantial harm to the child, the court still has authority to take action to protect the child. The court could bring the department into the action and either order supervised parental custody or commit the child to the department. In so doing, the court would trigger the full panoply of the procedural protections attendant to neglect proceedings to promote family integrity. The majority’s concern that our trial courts would not take remedial action to ensure some oversight of the child in the rare case wherein the petitioner has proved by a preponderance of the evidence, but not clear and convincing evidence, that a child is at risk of serious harm is, quite simply, unfair to our trial courts. I have full faith that our trial courts would not look the other way should such a case be presented. Thus, application of the heightened burden of proof to third party custody petitions would prevent the erroneous deprivation of family autonomy without increasing the risk that the child could be exposed to serious harm. Cf. Rivera v. Minnich, supra, 483 U.S. 581 (Concluding that the preponderance standard was proper because “in a paternity suit the principal adver
As the court noted in Santosky v. Kramer, supra, 455 U.S. 766-67, “[sjince the [sjtate has an urgent interest in the welfare of the child, it shares the parent’s interest in an accurate and just decision at the factfinding proceeding. ... As parens patriae, the [sjtate’s goal is to provide the child with a permanent home. . . . Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds. . . . [T]he [sjtate registers no gain towards its declared goals when it separates children from the custody of fit parents.” (Citations omitted; internal quotation marks omitted.)
Finally, I note that the state’s administrative and fiscal burdens also do not weigh in favor of the lesser burden of proof. Our trial judges, and in particular family court judges, are well versed in the application of the clear and convincing standard in numerous other contexts. See, e.g., General Statutes §§ 17a-78 and 17a-80 (hospitalization of child with mental disorder); General Statutes §§ 17a-111b, 17a-112 and 45a-717 (termination of parental rights); General Statutes § 45a-610 (removal of parent as guardian); General Statutes § 45a-650 (appointment of conservator); General Statutes § 45a-676 (appointment of plenary guardian for mentally retarded person); General Statutes § 46b-129 (termination of department’s duty to make reasonable efforts to reunify family).
Accordingly, I respectfully concur in the judgment.
General Statutes § 46b-56b provides: “In 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.”
In Castagno v. Wholean, supra, 239 Conn. 350, the court engrafted threshold jurisdictional requirements onto § 46b-59 that would permit the trial court to entertain a petition for visitation only when the family life of the minor child had been disrupted either by state intervention analogous to the situations included within the custody statutes, General Statutes §§ 46b-56 and 46b-57 or “in a manner similar to that addressed by §§ 46b-56 and 46b-57, but in which the courts have not yet become involved.” The court declined to state precisely what those similar circumstances would be, but cited as possibilities the death of a parent, a de facto separation of the parents or “when there has been a good faith allegation by a third party of abuse or neglect.” Id., 352.
The Supreme Court’s decisions recognizing this fundamental right date back to at least 1923. See Meyer v. Nebraska, 262 U.S. 390, 399, 401-403, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) (concluding that “proficiency in foreign language ... is not iq jurious to the health, morals or understanding of the ordinary child” and recognizing right of parents to “establish a home and bring up children” and to “control the education of their own”); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925) (holding that state could not interfere with parents’ decision to send children to private schools when decision was “not inherently harmful” and recognizing right “to direct the upbringing and education of children under their control”); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) (exempting Amish from state compulsory education law requiring children to attend public school until age eighteen, recognizing that “primary
The majority dismisses these statements as “overly simplistic” in the context of the issue in the present case and misconstrues the relationship that I have drawn between visitation and custody. With respect to the first point, this court implicitly recognized in Roth that the stringent standard of harm that we adopted in that case clearly would be justified if the state was engaging in the greater intrusion on the parent’s constitutional rights attendant to a custody order, but that the lesser intrusion resulting from visitation was sufficiently similar in kind, albeit not degree, to justify the heightened standard.
The majority misconstrues the point I have made in citing to this analogy by asserting that the concurrence declares that: visitation is “merely” a limited form of custody; that both therefore “intrude on the liberty interest of the parent in essentially the same manner”; and that “because third party custody removes a child from the parent for a longer period of time, it deprives the parent of the ‘quintessential rights of parenthood ....’” With the lone exception of accurately quoting the phrase “quintessential rights of parenthood,” the majority misconstrues the discussion herein as to the relationship between, and the differences attendant to, visitation and custody. As the discussion herein clearly makes evident, visitation is one limited aspect of the bundle of rights that constitutes custody. Irrespective of how long the period of visitation ordered, visitation never confers the “quintessential rights of parenthood” attendant to custody.
The majority’s reliance on the possibility of joint custody is troubling for several reasons. The present case does not illustrate the availability of this disposition. The trial court did not order that joint custody be shared with the parent that opposed Husaluk’s petition for custody; the court ordered that Husaluk and the plaintiff, Paula J. Fish, the child’s mother, who did not object to Husaluk’s petition, share custody. Moreover, the court’s orders pertaining to both parents leave them with none of the essential rights of parenthood, only the illusory right of “consultation” before Husaluk makes any decision regarding the child’s upbringing. Thus, the present case illustrates the unlikelihood that a court will determine that parental custody is contrary to the child’s interests and yet still permit that parent to share custody with a third party.
More troubling, however, is the effect of the majority’s suggestion that joint custody is a proper disposition when a third party seeks custody over a fit parent’s objection in conjunction with its holding that less stringent standards of pleading and proof apply in custody petitions than those applied in third party visitation petitions. By so concluding, the majority in effect encourages nonparents to circumvent the more stringent visitation standards by simply seeking limited joint custody instead of visitation.
Finally, I note that, even if joint legal custody may be a disposition option in a third party custody dispute, the fact that a less intrusive disposition may be available has no weight in determining the procedural and substantive protections necessary to protect the constitutional interests at stake. Courts gauge requisite constitutional standards on the basis of the greatest possible infringement that could result from an adverse decision in the proceeding, not the least intrusive result. For example, in a proceeding to terminate parental rights, a heightened standard of proof is constitutionally mandated, even though the court may determine in the dispositional phase that termination is not warranted, because the proceeding could result in the termination of parental rights. See In re Deana E., 61 Conn. App. 185, 189, 763 A.2d 37 (2000) (citing clear and convincing evidence standard applied in two tier analysis before termination may be ordered and noting “[i]t is thus possible for a court to find that a statutory ground for termination of parental rights exists but that it is not in the best interests of the child to terminate the parental relationship, although removal from the custody of the parent may be justified” [internal quotation marks omitted]), cert. denied, 255 Conn. 941, 768 A.2d 949 (2001); see also In re Baby Girl B., 224 Conn. 263, 279, 618 A.2d 1 (1992) (“[t]ermination of parental rights does not follow automatically from parental conduct justifying the removal of custody”).
The Supreme Court continually has reaffirmed that “a [sjtate’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ ... ‘A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.’ . . . Accordingly, [the court has] sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” (Citations omitted.) New York v. Ferber, 458 U.S. 747, 756-57, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982). With the exception, however, of cases involving neglect or abuse consistent with the standard under §§ 46b-120 and 46b-129, wherein a parent temporarily may lose custody or eventually have his or her parental rights terminated, the cases in which the court has permitted the state to infringe upon the constitutionally protected rights of the parent and family unit upon a lesser degree of harm involve a discrete, limited intrusion on one aspect of parental decision-making, not a wholesale usurpation of the parent’s role or the destruction of the family unit. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 168, 64 S. Ct. 438, 88 L. Ed. 645 (1944) (upholding statute prohibiting child from distributing literature on street
See, e.g., La. Civ. Code Ann. art. 133 (West 1999) (custody to parent would result in “substantial harm” to child); Minn. Stat. §§ 257C.01 (3) and 257C.03 (6) and (7) (2006) (child has lived with petitioner two years immediately preceding custody petition without parent’s presence and without parental involvement for six months to one year, depending on child’s age; parent has abandoned, neglected or disregarded child’s well-being to extent that child will be harmed by living with parent, presence of physical and/or emotional danger to child in remaining with parent, or other extraordinary circumstances); Tex. Fam. Code Ann. §§ 102.004 (a) (1) and 153.131 (a) (Vernon 2002) (parental custody “presents a serious question concerning child’s physical health or welfare” or “would significantly impair the child’s physical health or emotional development”); H.E.B. v. J.A.D., 909 So. 2d 840, 842 (Ala. App. 2005) (parent “is guilty of . . . [such] misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question” [internal quotation marks omitted]); Evans v. McTaggart, 88 P.3d 1078, 1079, 1083-84 (Alaska 2004) (parent unfit or parental custody clearly detrimental to welfare of child); Murphy v. Markham-Crawford, 665 So. 2d 1093, 1094 (Fla. App. 1995) (same), review denied, 675 So. 2d 928 (Fla. 1996); Clark v. Wade, 273 Ga. 587, 598, 544 S.E.2d 99 (2001) (physical harm or significant, long-term emotional harm); Stockwell v. Stockwell, 116 Idaho 297, 299-300, 775 P.2d 611 (1989) (parent patently unfit or has abandoned his child; or nonparent has custody of child for appreciable period of time and best interests of child dictate custody being placed with nonparent); In re Guardianship of Williams, 254 Kan. 814, 826, 869 P.2d 661 (1994) (parent must be unfit unless “highly unusual or extraordinary circumstances” demonstrate parental presumption has “no application”); Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989) (parental unfitness as shown by abuse, moral delinquency, abandonment, emotional or mental illness, or failure, for reasons other than poverty alone, to provide essential care of child); In the Matter of Jeffrey G., 153 N.H. 200, 204, 892 A.2d 1234 (2006) (specific harm to child requires showing that parent is unfit as determined in either abuse and neglect proceeding or termination of parental rights proceeding); Watkins v. Nelson, 163 N.J. 235, 245, 748 A.2d 558 (2000) (parent’s gross misconduct or unfitness or other “extraordinary circumstances” affecting welfare
Although the majority suggests that some of these jurisdictions apply a standard that is comparable to the one it has adopted, it overlooks the fact that most of those jurisdictions have not held, as has the majority implicitly, that extraordinary circumstances means harm of a lesser degree than when a child “is being denied proper care and attention, physically, educationally, emotionally or morally, or ... is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child . . . .” General Statutes § 46b-120 (9) (B) and (C) (defining neglect). It also glosses over the fact that many of these jurisdictions apply a clear and convincing burden of proof. See footnote 12 of this concurring opinion.
I also note that, although some states do not provide specifically for statutory intervention by third parties in dissolution proceedings to obtain custody, as does Connecticut, a majority of states have considered the question of when it is proper for a court to award custody to a third party over a parent. That question may arise in any one of several contexts — a guardianship, dissolution or paternity proceeding or in some other context not expressly provided for by statute. Because in my view the constitutional limits on a state’s ability to exercise its power to vest custody of a child in a third party over a parent’s objection generally remain the same irrespective of which procedural vehicle is used to invoke the court’s authority, I do not distinguish the states based on the particular procedure by which the third party may obtain custody.
This court’s recognition in In re Joshua S. that Roth and Troxel signal a change in the legal landscape also undermines reliance on legislative intent as to the meaning of detriment. Although I do not agree with the majority that the legislative history demonstrates a rejection of the Roth standard of harm, because the focus of legislative debates preceding adoption of the parental presumption in § 46b-56b clearly was on the burden of proof, we cannot presume in any event that the legislature adopted the detriment standard fully mindful of the constitutional implications. The legislature amended § 46b-56b in 1986 to add the provision regarding the grounds for rebutting the parental presumption. See Public Acts 1986, No. 86-224. In light of the fact that, in 2000, this court in Roth overruled its 1994 holding in Castagno following the Supreme Court’s 2000 decision in Troxel, we hardly could expect the legislature to be more prescient than this court in predicting constitutional developments. Moreover, even if the legislature had considered what the constitution demands, it clearly is the province of the court to determine whether a statutory standard passes constitutional muster. See Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 574-75, 858 A.2d 709 (2004), citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803).
General Statutes § 46b-120 provides the following relevant definitions: “(4) ‘[Ajbused’ means that a child or youth (A) has been inflicted with physical injury or injuries other than by accidental means, or (B) has injuries that are at variance with the history given of them, or (C) is in a condition that is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment ... (7) a child or youth may be found ‘dependent’ whose home is a suitable one for the child or youth, save for the financial inability of parents, parent, guardian or other person main
In my view, the majority misconstrues the Supreme Court’s disinclination in Troxel v. Granville, supra, 530 U.S. 73, to reach the issue of whether a specific showing of harm constitutionally was required before a third party could obtain visitation over a fit parent’s objection. The court’s statement that, “[b]ecause much state-court adjudication in this context occurs on a case-by-case basis, we would hesitate to hold that specific nonparental visitation statutes violate the [djue [pjrocess [cjlause as a per se matter”; id.; simply reflects its 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. See Elk Grove Unified School District v. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) (“One of the principal areas in which this [c] ourt has customarily declined to intervene is the realm of domestic relations. Long ago we observed that ‘[tjhe whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the [sjtates and not to the laws of the United States.’ ... So strong is our deference to state law in this area that we have recognized a ‘domestic relations exception’ that ‘divests the federal courts of power to issue divorce, alimony, and child custody decrees.’ . . . Thus, while rare instances arise in which it is necessary to answer a substantial federal question that transcends or exists apart from the family law issue ... in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.” [Citations omitted.]).
In Roth, the court did not elaborate on the basis for its determination that due process did not mandate a heightened burden of proof, stating only: “We recognize that due process requires the clear and convincing test be applied to the termination of parental rights because it is the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent; Santosky v. Kramer, supra, 455 U.S. 747-48; while abuse and neglect petitions require proof only by a preponderance of the evidence because ‘any deprivation of rights [at that stage] is reviewable and nonpermanent and, thus, warrants a slightly less exacting standard of proof.’ ... In re Shamika F., 256 Conn. 383, 401 n.22, 773 A.2d 347 (2001). It is evident, however, that in the visitation context, the heightened standard of clear and convincing evidence is not constitutionally mandated.” (Emphasis in original.) Roth v. Weston, supra, 259 Conn. 231.
In recognition of the significance of the interest at stake, many states apply the clear and convincing burden of proof to a custody contest between a parent and a third party as a matter of legislative or judicial policy. See, e.g., Ariz. Rev. Stat. § 25-415 (B) (2007); Mich. Comp. Laws § 722.25 (2005); Minn. Stat. § 257C.03 (6) and (7) (2006); N.M. Stat. Ann. § 40-10B-8 (2006); Va. Code Ann. § 20-124.2 (B) (2004); Evans v. McTaggart, 88 P.3d 1078, 1079 (Alaska 2004); Calle v. Calle, 625 So. 2d 988, 990 (Fla. App. 1993); Clark v. Wade, 273 Ga. 587, 587-88, 544 S.E.2d 99 (2001); In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002); In re Guardianship of D.J., 268 Neb. 239, 247-49, 682 N.W.2d 238 (2004); Watkins v. Nelson, 163 N.J. 235, 249, 748 A.2d 558 (2000). As I discuss further in part II B of this concurring opinion, the Connecticut legislature also has determined that the clear and convincing burden of proof applies in a petition to remove a parent as guardian, the only proceeding other than a dissolution action in which a third party may seek custody.
Only a few courts, however, have addressed the question of what burden of proof is mandated by due process. There is no clear consensus among those courts, and, as a general matter, the courts summarily have reasoned either that the heightened burden of proof is mandated because of the significance of the constitutional interest at stake; see, e.g., In the Matter of Guardianship of Blair, Court of Appeals, Docket No. 2-950, 2003 WL 182981 at *5 (Iowa January 29, 2003); Pittman v. Jones, 559 So. 2d 990, 994 (La. App.), cert. denied, 565 So. 2d 451 (La. 1990); In the Matter of R.A. & J.M., 153 N.H. 82, 98-101, 104, 891 A.2d 564 (2005); In the Matter of R.A. & J.M., supra, 110 (Nadeau and Galway, Js., concurring in part and dissenting in part); Bennett v. Hawks, 170 N.C. App. 426, 428-29, 613 S.E.2d 40 (2005); Ray v. Ray, 83 S.W.3d 726, 733 (Term. App. 2001); Paquette v. Paquette, 146 Vt. 83, 92, 499 A.2d 23 (1985); or that the lesser burden is permissible because an award of custody is not necessarily a permanent deprivation of that interest. See In re Custody of A.D.C., 969 P.2d 708, 710 (Colo. App. 1998); In re Guardianship of Doe, 106 Haw. 75, 77-79, 101 P.3d 684 (App. 2004); In re Guardianship of Barros, 701 N.W.2d 402, 408 (N.D. 2005); In the Matter of the Marriage of Winczewski, 188 Or. App. 667, 706 n.30, 72 P.3d 1012 (2003) (Deits, J., concurring), review denied, 337 Or. 327, 99 P.3d 291 (2004); In the Matter of the Marriage of Winczewski, supra, 758 n.4 (Brewer, J., dissenting). The only court to consider this question at length and to apply expressly all of the factors prescribed for such an inquiry by the United States Supreme Court in Santosky v. Kramer, supra, 455 U.S. 754, is the Maryland Court of Appeals, which concluded that application of the preponderance standard did not violate due process. See Shurupoff v. Vockroth, 372 Md. 639, 660, 814 A.2d 543 (2003). I do not find the reasoning of Shurupoff persuasive, however, because the court therein principally relies, as does the majority in the present case, on the fact that an award of custody is not equivalent to termination of parental rights. See id., 656-57. I do not read Santosky to stand for the proposition that the preponderance
I also note that, to extent that the majority relies on dicta in Lehrer v. Davis, 214 Conn. 232, 238, 571 A.2d 691 (1990), for the proposition that this court already has concluded that a lesser standard of proof would be constitutionally permissible, the majority again appears to take an anachronistic view of third party intervention into family autonomy, unwilling to recognize the watershed effect of Troxel on this court’s reevaluation of its jurisprudence in this area.
In the present case, under the trial court’s order, the defendant has no authority to render decisions on any major events affecting his child’s life, only the right of consultation with the intervening paternal aunt, Husaluk, in whom the court vested custody and final authority on all such matters. Although 1he court ordered that the child return to Connecticut during her breaks from school, the order provides only that she is to be “encouraged” to spend equal visitation time with her parents and that she may decline to stay overnight with the defendant.
As this court recently explained in Sweeney v. Sweeney, supra, 271 Conn. 211, wherein at issue was an order permitting a minor child to attend a parochial school against one parent’s wishes: “The lost opportunity to have a child exposed only to academic and religious influences sanctioned by a joint legal custodian cannot be replaced by any subsequent court order. Moreover, such a pendente lite order may impact this parental right over a significant period of time, with the harm to the parental interest increasing exponentially as the minor child spends more time in the educational institution at issue. Subsequent attempts by an aggrieved parent to modify such a pendente lite order also may not be an adequate substitute for vindication of the parent’s rights through an appeal. Finally, a pendente lite order such as this may result in a spillover effect with regard to subsequent decisions related to the enrollment of the minor child. Charged with the determination as to what is in the best interests of the minor child, the trial court may later be reluctant to create a degree of instability in the daily life of the minor child, and adversely impact personal bonds created with teachers and classmates, by ordering the transfer of the minor child to another educational institution.”
Thus, I disagree both as a matter of fact and logic with the majority’s contention that a lesser standard of proof is warranted because “§ 46b-57, unlike the visitation statute, permits third party intervention only in an existing controversy before the court.” This reasoning appears to resurrect the precise logic that this court rejected in Roth v. Weston, supra, 259 Conn. 212, when it overruled the holding in Castagno, wherein this court previously had attempted to remedy the constitutional concerns by construing § 46b-59 “to afford the trial court jurisdiction to entertain a petition for visitation only when the minor child’s family life has been disrupted in a manner analogous to the situations addressed by [the custody statutes] §§ 46b-56 and 46b-57.” Castagno v. Wholean, supra, 239 Conn. 352.
The court, must determine within sixty days after issuing an ex parte temporary custody order or committing the child to the department’s custody whether the department has made reasonable efforts to keep the parent with the child prior to the issuance of the court’s order. General Statutes § 46b-129 (b) and Q). Nine months after an order of commitment, the commissioner of children and families (commissioner) must file a motion for review of a permanency plan for the child. General Statutes § 46b-129 (k) (1). The permanency plan may recommend family reunification, with or without supervision. General Statutes § 46b-129 (k) (2) (B). Nine months after the permanency plan is approved, the commissioner must file a motion for review of the plan, and a hearing must be held within ninety days after the motion is filed. General Statutes § 46b-129 (k) (1). After an initial permanency hearing, subsequent, permanency hearings must be held at least, every twelve months as long as the child remains in custody of the department. General Statutes § 46b-129 (k) (1). The commissioner can avoid its obligation to reunify the child with the parent if the court determines, by clear and convincing evidence, that the parent has subjected the child to certain aggravated circumstances, such as sexual or physical abuse. General Statutes § 17a-111b (b).
The majority points to chapter 25 of the Practice Book and asserts that “many of the due process protections in chapters 32a and 35a of the Practice Book accorded the parents of a child in a neglect or termination proceeding, including the right to a hearing, are provided in a custody proceeding.” Chapter 25 does not, however, provide for appointment of counsel for parents contesting custody. It provides for appointment of counsel for the minor child; Practice Book § 25-24; appointment of counsel in civil contempt proceedings related to family matters; Practice Book § 25-63; and appointment of counsel in state initiated paternity actions. Practice Book § 25-68; see also Foster v. Foster, 84 Conn. App. 311, 320, 853 A.2d 588 (2004) (parent has no constitutional right to counsel in custody or visitation proceedings).
The majority also posits that certain broadly phrased permissive provisions of our General Statutes and rules of practice applicable to custody “might” prompt a trial court to issue specific steps to aid reunification efforts following an order of third party custody. There is, however, no mandate to do so.
General Statutes § 45a-610 provides: “If the Court of Probate finds that notice has been given or a waiver has been filed, as provided in section 45a-609, it may remove a parent as guardian, if the court finds by clear and convincing evidence one of the following: (1) The parent consents to his or her removal as guardian; or (2) the minor child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility for the minor child’s welfare; or (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being, as a result of acts of parental commission or omission, whether the acts are the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and the parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not in the best interests of the minor child be permitted to exercise, parental rights and duties at the time; or (4) the minor child has had physical injury or injuries inflicted upon the minor child by a person responsible for such child’s health, welfare or care, or by a person given access to such child by such responsible person, other than by accidental means, or has injuries which are at variance with the history given of them or is in a condition which is the result of maltreatment such as, but not limited to, malnutrition, sexual molestation, deprivation of necessities, emotional maltreatment or cruel punishment; or (5) the minor child has been found to be neglected or uncared for, as defined in section 46b-120. If, after removal of a parent as guardian under this section, the minor child has no guardian of his or her person, such a guardian may be appointed under the provisions of section 45a-616. Upon the issuance of an order appointing the Commissioner of Children and Families as guardian of the minor child, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the minor child with his or her parents prior to the issuance of such order and, if such efforts were not made, whether such
As the statute indicates, if the commissioner is appointed as guardian, rather than a private party, the department still has the obligation to make reasonable efforts to reunify the family, if possible.
The parent is entitled to appointed counsel in a guardianship proceeding. General Statutes § 45a-609 (Jo). If the commissioner, rather than a third party, is appointed as guardian, the court must determine whether reasonable efforts were made to keep the child with the parent before the court issued the order. General Statutes § 45a-610.
Thus, contrary to the majority’s statement, the Supreme Court recognized that more than the parent’s interest is at stake in termination proceedings, specifically, the child’s welfare, but nonetheless concluded that the child’s interest, to the extent that it might diverge from the parent’s interest, adequately was protected by the heightened burden of proof.
Reference
- Full Case Name
- Paula J. Fish v. Andrew J. Fish, Jr.
- Cited By
- 50 cases
- Status
- Published