Month: May 2018

What is Parental Alienation?

This Week’s Blog by Jaime S. Dursht

“Parental alienation is the process, and the result, of psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members. It is a distinctive form of psychological abuse towards both the child and the rejected family members that occurs almost exclusively in association with family separation or divorce, particularly where legal action is involved.”  Lorandos, Bernet and Sauber, Parental Alienation: The Handbook for Mental Health and Legal Professionals (Charles C. Thomas, Ed. 2013).

  • In Family Law, parental alienation is a term used to describe the dynamic of a child’s unreasonable rejection of one parent with the encouragement/tacit approval of the other parent.
  • The issue of parental alienation arises in high conflict custody cases both pre- and post-divorce when one party seeks sole legal and/or physical custody of the child(ren).
  • Connecticut Family Courts consider evidence of parental alienation in the context of making or modifying custody orders in accordance with what is in the best interests of the child pursuant to C.G.S. § 46b-56.
  • Courts may order the involvement of mental health professionals and custody evaluation experts to investigate allegations of parental alienation and make recommendations of intervention if necessary.

Generally, parental alienation is the psychological manipulation of a child by one parent to unjustifiably reject the other parent, and although it is not regulated as a punishable offense in the United States, it is considered a crime of child abuse in other countries carrying criminal penalties. In Connecticut, allegations can, and often do, arise in cases of contested custody, and there is a wide body of case law identifying the characteristics and conduct of an alienated child as well as that of an alienating parent.   For example, children who suddenly refuse to see a parent or declare hatred of a parent based on minor or unfounded complaints may be a signal of alienation.  A parent who falsely alleges physical or sexual abuse, exaggerates allegations of substance abuse or other inappropriate conduct, interferes with the other parent’s access to school records and information, restricts the other parent’s parenting time, or involves the children with details of litigation—these may be considered efforts to deliberately undermine the relationship between the child and the other parent, and the consequences can be severe. In some cases the court may order specific interventions to remedy the situation, such as therapeutic treatment for child and/or parent, or reunification therapy, or in extreme cases, the court may order a complete reversal of custody.

The statutory factor under which the court will consider evidence is C.G.S. § 46b-56(c)(6): “[T]he 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.”  See e.g., Hibbard v. Hibbard, 139 Conn. App. 10, 55 A.3d 301 (2012) (“Because the child has lived with the plaintiff since birth, the court does not take lightly the prospect of changing her primary residence at this point.  Nevertheless, the court determined that such a modification to the custody order was in the best interests of the child because the plaintiff demonstrates a real deficiency in her willingness and ability to facilitate and encourage such continuing parent-child relationship between the child and the other parent. … The court referenced the plaintiff’s strategy of pursuing the elimination of the defendant from their daughter’s life and concluded that the result of leaving the child with the plaintiff would be the eventual loss to the child of her father.”)

Connecticut does not recognize parental alienation as a diagnosable syndrome as it was initially proposed in the 1980’s (officially discredited as a mental disorder by the American Psychiatric Association in 2012). “There is insufficient evidence that the description offered of parental alienation syndrome has any scientific basis.  There is no credible evidence that this syndrome has been the subject of any scientific studies published with approval in peer-reviewed scientific literature.” Snyder v. Cedar, Superior Court, Judicial District of New Haven, NNH CV010454296, February 16, 2006 (Pittman, J.).  However, courts have made factual findings that a parent has engaged in parental alienation. See Ruggiero v. Ruggiero, 76 Conn. App. 338, 349, 819 A.2d 864 (2003) (“Following the presentation of evidence, the court stated:  [I]t’s my finding that [the plaintiff] has been guilty of parental of alienation in two ways:  One of them is that he attempted to alienate the children from [the defendant] …”). Courts also note, however, that a claim of parental alienation may be an effort by one parent to gain tactical legal advantage over another parent. Mastrangelo v Mastrangelo, Superior Court, Judicial District of New Haven, No. FA054012782S, February 1, 2017 (Kenefick, J.)  (“This was not a case of severe parental alienation orchestrated by the mother. The father had a significant role in creating the problems he had with his children … his continued attempt to expose [the plaintiff] for being an alienating mother is not going to endear his children to him. … [he] was a on a mission to punish [the plaintiff] to the detriment of seeing his children.”).

All child custody cases are complex. It is imperative for the professionals involved in every case to be knowledgeable and experienced in the particular dynamic at issue. Broder & Orland LLC, with offices in Greenwich and Westport, are experienced in custody cases involving parental alienation.

Annulment vs. Divorce

This Week’s Blog by Andrew M. Eliot

  • Annulment is a frequently misunderstood legal concept. In contrast to a divorce, which ends a valid marriage, an annulment is a decree declaring that a valid marriage never existed
  • Similar to most jurisdictions, annulments are available in Connecticut only in certain limited circumstances, and are exceedingly rare
  • A legal (or civil) annulment is different from, and should not be confused with, a religious annulment. A legal annulment is granted by a court, whereas a religious annulment is granted by a religious institution and has no legal impact on marital status in the eyes of the state of Connecticut

As matrimonial attorneys practicing in towns such as Greenwich and Darien well know, annulment is a frequently misunderstood legal concept. The legal distinction between a divorce and an annulment is as follows: whereas a divorce ends a valid, existing marriage, an annulment is a decree declaring that no valid marriage ever occurred in the first place.

In order to qualify for an annulment in Connecticut, a party must be able to prove one of a series of available grounds (i.e., reasons) for an annulment. Notably, the various grounds for annulment (set forth below) fall into one of two distinct categories: (1) those which render the purported marriage null and void from the outset; and (2) those which render the purported marriage merely “voidable,” meaning that the marriage is viewed as valid unless and until one of the parties actively seeks to have it set aside in an annulment proceeding.

The following grounds for annulment render a purported marriage “void”:

  • Consanguinity – The spouses are related by blood, or have “affinity,” (meaning a close family relationship).  Specifically, no person can marry a parent, grandparent, child, grandchild, sibling, parent’s sibling, sibling’s child, stepparent, or stepchild;
  • Bigamy – One spouse is already legally married to someone else at the time of the second marriage.

The following grounds for annulment render a purported marriage “voidable”:

  • One spouse was mentally incompetent at the time of the marriage ceremony;
  • A person who is not legally authorized to perform a wedding performed the marriage ceremony;
  • One or both spouses consented to the marriage only because of force, fraud, or duress from another person;
  • One spouse suffers from a health problem or physical condition that goes to the essence of the marriage (i.e., a husband conceals a medical problem with impotence that prevents the couple from having sexual relations).

Notably, there are several common misconceptions about annulment. For example, simply being married to someone for a very short period of time does not qualify a person or a couple for annulment, as many people assume.  Moreover, contrary to what many people believe, even where annulment is available as an option, it is not typically a quicker and less expensive process than a divorce. In fact, an annulment proceeding is a fairly complex process that can easily take the same amount of time, effort, and resources as a divorce might.  One reason for this is that in annulment proceeding, a plaintiff must prove the grounds for the annulment by “clear and convincing evidence,” (a high legal standard of proof).  This is in stark contrast to a divorce, where a plaintiff does not need to prove any grounds for a divorce at all, but instead merely needs to allege that the marriage has “broken down irretrievably.”  Finally, and this is a common misconception somewhat unique to Connecticut, obtaining an annulment in Connecticut does not preclude a court from dividing assets or liabilities between the parties.  While in most state courts are not authorized to divide property or debts as part of an annulment case (the logic being that there cannot be a marital estate if there wasn’t a valid marriage), in Connecticut courts are permitted to equitably divide a couple’s assets and liabilities in deciding an annulment case, just like in a divorce.

At Broder & Orland LLC, we have extensive experience with annulment law and proceedings and can help clients properly evaluate whether annulment is available to them as an option and, if so, whether it is an option that is worth pursuing as a practical matter, as opposed to pursuing a divorce.

Alcohol Testing

This Week’s Blog by Christopher J. DeMattie

  • The Court has the authority to order a parent to submit to alcohol testing as a condition of exercising parenting time with a minor child
  • The alcohol testing protocol can be designed for the purpose of determining whether a parent is abstaining from alcohol, to protect the child, or both. The frequency and duration of the testing can vary depending on the purpose of the protocol
  • There are numerous devices available, including the SCRAM Bracelet, Soberlink, Urine Testing, and Intoxalock

At Broder & Orland LLC, we handle many cases where a parent either has issues with alcohol or where there are allegations of alcohol abuse.  When alcohol issues are present, it can impact all aspects of a divorce case, but this article will focus on how it impacts custody and parenting time.

C.G.S. § 46b-56(i) states: “As part of a decision concerning custody or visitation, the court may order either parent or both of the parents and any child of such parents to participate in counseling and drug or alcohol screening, provided such participation is in the best interests of the child.”

If alcohol testing is ordered, and the purpose is to determine whether a parent is abstaining from alcohol, the testing will be frequent and often redundant.  For example, a Court can order a parent to completely abstain from any use of alcohol and comply with a protocol established by an expert in alcohol testing to ensure full compliance with the abstinence order as nearly as possible.  Some examples of alcohol testing devices and protocols are as follows:

SCRAM Bracelet

This device is worn 24/7 and tests automatically every 30 minutes to measure for alcohol consumption by sampling perspiration.  The positive of a SCRAM Bracelet is that testing occurs automatically around the clock.  A negative is that the results are not transmitted in real-time, so if a parent is with a child and consuming alcohol while wearing a SCRAM Bracelet, the other parent will not know until the following day, at the earliest.  Therefore, it is not an effective tool to protect a child.

Soberlink

This is a handheld device that measures a person’s breath-alcohol concentration.  To ensure compliance, the device takes a picture of the person blowing into the breathalyzer—along with his or her GPS location—and then transmits that data to anyone authorized to receive the data, including the other parent.  The tests may be scheduled every day at set intervals, for example 7:00 a.m., 12:00 p.m., 5:00 p.m., and 10:00 p.m., or be scheduled randomly between the hours of 6:00 a.m. and 10:00 p.m.  Alternatively, the tests may be scheduled to occur only before, during, and after parenting time.  The positive of Soberlink is the results are transmitted in real-time, so a positive or missed test can be addressed immediately.  The negative is there are gaps in the testing, so a person can drink a beer at 12:01 p.m. and likely test negative at 5:00 p.m.

Urine Test

One way to potentially eliminate the testing gap is to schedule random weekly urine tests, which would include EtG and EtS panels.  EtG and EtS are direct metabolites of alcohol, and the presence of the same in urine is an indicator that alcohol was consumed within the past 80 hours.  The negative of random urine testing is that it is costly.

Intoxalock

This is an ignition interlock device which requires a person to submit to a breathalyzer test in his or her motor vehicle prior to and while driving.  The latter is to ensure the driver does not consume alcohol after passing the initial test.  If alcohol is detected, the motor vehicle will not start, or if in motion, will shut down.  Intoxalock may include facial recognition software so that a parent cannot have a sober person pass the test for him or her.  In addition, if a parent has a Soberlink device, he or she can submit to a Soberlink test prior to driving, so the other parent knows the driver has not consumed alcohol.

Broder & Orland LLC, with offices in Westport and Greenwich, Connecticut, concentrates specifically in the areas of family law, matrimonial law, and divorce. We have vast experience representing parents who have alcohol issues, as well as parents who are married to or who have been married to individuals with such issues.  Based on that experience, our attorneys know how to properly draft an alcohol testing protocol to detect abstinence, protect a child, or to establish evidence sufficient to refute any false claims of alcohol consumption.