Month: August 2018

What is the Parenting Education Program?

This Week’s Blog by Jaime S. Dursht

  • It is a mandatory course for any parent going through divorce with minor children.
  • The purpose is to educate parents about the impact of divorce on children.
  • The course duration is six hours and can be completed in two 3-hour sessions or three 2-hour sessions.
  • It is not necessary for parents to attend together.
  • The cost of the program is $150 per parent.

The State of Connecticut requires any party to a divorce to participate in the Parenting Education Program whenever a minor child is involved.  As set forth in Connecticut General Statutes § 46b-69b, the course must be an approved program and the topics will include the developmental stages of children, the adjustment of children to parental separation, dispute resolution and conflict management, guidelines for visitation, stress reduction in children and cooperative parenting.  The legislative history of the statute makes it clear that the purpose of the program is to protect children of divorce.

The time frame for completing the course is within the first sixty days of the return date or the filing of the action, which is mandated by the Automatic Orders that go into effect at the initiation of a marital dissolution and/or custody action.  Practice Book § 25-5(5). Your attorney should provide you with the course information and instructions, but it is up to you to locate, register for, and attend the program.  In Fairfield County, there are several approved providers including agencies in Norwalk, Greenwich, Westport, Bridgeport, and Stamford, and there are weekend options to attend as well as weekdays.  Upon completion, a certification is filed with the court.

The statute does permit a court to waive the requirement when it deems participation unnecessary. Conn. Gen. Stats. § 46b-69b(b).  For example, in Russell v. Russell, Superior Court, Judicial District of Hartford, Docket No. HHD FA165041627S (March 28, 2017; Adelman, J.), the court waived the requirement based on the high level of cooperative parenting. The statute also permits the court to waive the requirement when the parties select and attend a comparable parenting education program.  Conn. Gen. Stat. § 46b-69(c).  What is “comparable,” however, is not obvious.  For example, a similar curriculum offered as a course online was not acceptable in Recile v. Recile, Superior Court, Judicial District of Waterbury, Docket No. FA05-4008087S (March 31, 2006, Cutsumpas, JTR). The court found that an online program was not nearly as beneficial as the in-person program that is mandated in Connecticut. Citing legislative hearing research and articles from other states, the court noted that the purpose of the Connecticut program “is to make parents listen to experts explain what is happening to their children, what their children are feeling and offer techniques to lessen the trauma.”  The court concluded that an online course may very well risk the well-being of the child for the sake of convenience which it was unwilling to do.

The Connecticut Parenting Education Program requirement was challenged on constitutional grounds in 2008. Controversy arose over whether the State’s mandate rose to the level of governmental infringement on a parent’s fundamental right to raise his or her own children. Since the United States Supreme Court had  recognized that a parent’s interest in making decisions concerning the care, custody and control of his or her child is a fundamental right, Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054 (2000), a Connecticut parent challenged whether the statutory obligation was constitutional.  The Connecticut Supreme Court ruled that because the course was intended to provide information to parents regarding the effects of family restructuring on children, there was no infringement on a parent’s exercise of care, custody and control over his or her children, and therefore no violation.  Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 947 A.2d 821 (2008).   In fact, the court further concluded that the State has a legitimate interest in promoting the welfare of children, noting that marital dissolution and custody actions are “likely to impact the welfare of children and simultaneously are likely to present parents with extreme emotional or psychological challenges as the family is restructured.”  Id. at 382.

With offices in Westport and Greenwich, the attorneys at Broder & Orland LLC practice exclusively in the area of divorce and custody and can provide you with information about registering for the Parenting Education Program.

Reopening Divorce Judgments on the Basis of Fraud

This Week’s Blog by Andrew M. Eliot

  • A divorce judgment may be “reopened” on the basis of fraud, and potentially set aside, if it is discovered after the judgment was issued that a party made intentional material misrepresentations to the Court.
  • Proof of fraud alone is insufficient to have a judgment reopened; a party seeking to reopen a judgment must also prove that the outcome of a new trial, untainted by the fraud, would likely be different.

As experienced family law and divorce attorneys with offices in Greenwich and Westport, Connecticut, we frequently represent clients who are concerned that their spouse is concealing or secreting assets or income. While such suspicions often turn out to be unfounded or imagined, there are indeed cases where such concealment is discovered during the divorce process (typically during the course of financial discovery), and can therefore can be addressed prior to judgment (whether such judgment is in the form of a judicial decision issued after a trial, or a negotiated agreement).  But what if the concealment of assets or income is not discovered until after a divorce judgment has been rendered? While such a post-judgment discovery of fraud presents a far trickier problem to resolve, it is a problem that can, in certain limited circumstances, be remedied.

If a party can prove in Court that a judgment was in fact based upon fraud or intentional material misrepresentations, Connecticut Courts do have the discretion to reopen such a judgment and set it aside.  That said, the legal threshold that must be met in order for a Court to reopen a judgment is quite high.  Specifically, Connecticut’s Supreme Court has established the following minimum criteria which must be met by a moving party before any motion to reopen a judgment may be granted: (1) there must be clear proof of perjury or fraud; (2) there must have been no unreasonable delay by the injured party after the fraud was discovered; and (3) there must be a substantial likelihood that the result of a new trial would be different.  See Billington v. Billington, 220 Conn. 212 (1991).

Collectively, these criteria present a high hurdle to overcome.  The mere suspicion of fraud, even if the reasonably based, is insufficient for a Court to reopen a judgment.  Rather, there must be clear proof of the fraud and, perhaps even more notably, the fraud must rise to a level sufficient enough for the moving party to prove that the outcome of a new trial — one untainted by the fraud — would likely be different.

Accordingly, even in instances where a genuine post-judgment fraud has been discovered, an aggrieved party should give careful consideration to his or her likelihood of success prior to investing resources in post-judgment litigation.

At Broder & Orland LLC, we have extensive experience handling all aspects of complex post-judgment issues, including both prosecuting and defending motions to reopen judgments on the basis of fraud.

The Connecticut Divorce: What is Family Relations?

This Week’s Blog by Christopher J. DeMattie

  • Family Relations offers a wide variety of services to help resolve parenting, custody, and financial disputes in divorce and post-judgment actions.
  • Depending on the service recommended, you can expect to meet with a Family Relations Counselor for an hour or for an extended period of time over the course of many months.

What is Family Relations Relative to a Connecticut Divorce?

Family Relations or family services is a free service offered by the Judicial Branch to assist the Court and individuals in resolving parenting, custodial, alimony, child support, and property issues.  The Family Relations Counselor assigned to your matter is typically a trained social worker or attorney.

What Services Does Family Relations Offer in a Connecticut Divorce?

Pursuant to Court Form JD-FM211 below is a list and brief explanation of the specific services:

  1. What type of alternative dispute resolution services?
  • Pre-trial Settlement Negotiations – In all Judicial Districts, Family Relations Counselors conduct pre-trial and final judgment settlement conferences with attorneys and parents in conjunction with their attendance at Family Short Calendar and other Family Civil Court dockets.
  • Mediation – Family Relations Counselors mediate custody and access disputes for up to three 2-hour sessions. These efforts are geared toward assisting parents in resolving differences in a self-determining, non-coercive, and confidential manner.
  • Conflict Resolution Conference – This is a confidential, directive process utilizing negotiation and mediation techniques to resolve the primary issues of custody and access. Parents and attorneys participate in the conferences and information from professional sources may be included. The Family Relations Counselor may offer recommendations to the parents at the conclusion of the process if the parties are unable to resolve their dispute. These recommendations are not provided to the Court.
  1. What type of Case Management Services?
  • General Case Management – A Family Relations Counselor will be assigned distinct responsibilities to assist parties in resolving their parenting issues with a report back to the Court. Some components include gathering specific information regarding the family, monitoring compliance with court orders, facilitating settlement conferences to develop parenting plans, conducting home visits, or completing other court-ordered tasks.
  • Intensive Case Management – This service offers parents in the early stages of post judgment court involvement the opportunity to enhance collaboration between the parents and formulate mutual decisions regarding the well-being/care of their children. The role of the Family Relations Counselor is to work with the parents as needed to reduce conflict, offer skills for enhanced communication, reinforce positive parenting, and report progress to the Court.
  1. What type of evaluative services?
  • Issue-Focused Evaluation – This is a non-confidential process of assessing a limited issue impacting a family and/or parenting plan. The goal of an Issue-Focused Evaluation is to explore the defined parenting dispute, gather information regarding only this issue and provide a recommendation to the parents and the Court. This evaluation format is limited in scope, involvement, and duration.
  • Comprehensive Evaluation – This is an in-depth, non-confidential assessment of the family system by the Family Relations Counselor. The information gathered by the counselor, the assessment of the family, and the resulting recommended parenting plan is shared with the parents and attorneys. This recommendation may be used to form the basis of an agreement. At the conclusion of the process, a report with recommendations is filed with the Court.
  1. What type of education services?
  • Parent Education Program (PEP) – Family Services contracts with community and private agencies throughout the state to provide this program. The PEP is a six-hour statutorily mandated, psycho-educational course for separating and divorcing parents that provides information about the impact of family restructuring on children.

What Can I Expect at my Family Relations Meeting in a Connecticut Divorce?

Typically, there are two ways to end up in Family Relations.  First, prior to having an evidentiary hearing on a Motion, you and/or your lawyer must first meet with Family Relations to try and settle the issues.  Your lawyer will present an argument and provide basic backup documents, if requested, and the Family Relations Counselor will try and mediate a resolution and/or provide recommendations.  This meeting could feel rushed as it typically lasts only between 20 and 40 minutes.

Second, if you and your spouse have disputes relative to custody or parenting time, your matter will most likely be referred to Family Relations for an intake screen.   At the intake the Family Relations Counselor will ask you a series of questions to identify the level of conflict and complexity of issues. The screening includes questions about: (a) current court orders, (b) past and present parenting concerns including substance abuse and family violence, and (c) the level of conflict.  This screen helps Family Relations determine if mediation, conflict resolution conference, issue focused evaluation, or a comprehensive evaluation is the appropriate service to help resolve the conflict(s).  Once the appropriate service is determined, an appointment will be scheduled (it may be a joint meeting or an individual meeting) and you will be asked to discuss your concerns about the children and answer concerns that the other parent may raise.  Depending on the service, you may be asked to sign release and/or consent forms to permit the Family Relations Counselor to communicate with doctors, therapists, teachers, and other relevant individuals.  Additionally, the Family Relations Counselor may conduct a visit with you and your children at your home.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce.  We have significant experience with Family Relations and understand the nuances of the process.  Our experience enables us to effectively guide our clients through the process by educating them on what to expect and to prepare them in presenting their concerns and issues in an organized and cogent fashion.

Is it Legal to Record Conversations in Connecticut?

This Week’s Blog by Lauren M. Healy

  • There is a difference between recording in-person conversations and recording phone conversations.
  • Clients often think that recordings will provide helpful evidence in a divorce proceeding. This is usually true only in extreme circumstances (such as abuse or serious custody disputes).
  • Recordings will not be admissible at a Hearing or Trial unless they are actually relevant to the issues in your case.
  • Recording every interaction with your spouse may have the unintended consequence of capturing something that could hurt your own case.
  • Recordings will generally be turned over to your spouse during the discovery process.

As experienced family law and divorce attorneys with offices in Greenwich and Westport, Connecticut, we are often asked whether it is legal to record conversations between spouses for use in a divorce case. The answer depends upon the circumstances.

Is it Legal in Connecticut to Record In-Person Conversations with my Spouse?

In Connecticut, it is legal to record in-person conversations with the consent of only one party to the conversation. As long as you are present for the conversation or interaction with your spouse, you can record it with or without your spouse’s knowledge.

Is it Legal in Connecticut to Record Telephone Conversations with my Spouse?

In order for a phone conversation to be legally recorded each person who is on the phone must consent to the recording in advance. If you, or your spouse, record a phone conversation without the knowledge of each participant, the recording will be considered illegally obtained and it will be inadmissible in Court. You may also be subject to civil action.  Conn. Gen. Stat. Ann. §§ 52-570d; 53a-188.

Is it Legal in Connecticut to Record my Spouse’s Conversations with Other People?

In Connecticut, it is illegal to record conversations if none of the parties to the conversation give consent to do so. For example, if you hide a recording device in your home or your spouse’s car in order to capture his or her conversations with third parties, those recordings are considered illegal. Not only will the recordings be inadmissible at a Hearing or Trial, there may also be criminal implications for the recording party pursuant to Connecticut’s eavesdropping laws. Conn. Gen. Stat. Ann §§ 52-184a; 53a-189.

Are Voicemail Recordings Admissible as Evidence in a Connecticut Divorce Case?

Generally, a voicemail message is considered a voluntary recording by the party who leaves the message and will be allowed in Court if it meets the other criteria for admissible evidence.

It is always best to discuss the issue of recordings with your divorce counsel. At Broder & Orland LLC we have we have extensive experience handling complex evidentiary issues, including recordings in Connecticut divorce cases, and can help clients assess how to address recordings in the context of his or her case.

Attorneys Broder and Orland Recognized by Best Lawyers®, 2019

Broder & Orland LLC is thrilled to announce that its founding partners, Attorneys Eric J. Broder and Carole Topol Orland, have both been selected for recognition in the Best Lawyers® 25th Edition of The Best Lawyers in America® in the area of Family Law. This distinction indicates legal expertise, ethics, and professionalism of the highest caliber.

The complete 25th Edition of The Best Lawyers in America® is now available to the public through the Best Lawyers® website.

What Can I Do to Make My Connecticut Divorce Case Move More Quickly?

This Week’s Blog by Sarah E. Murray

  • Provide requested information and documents promptly
  • To the extent possible, make or respond to a settlement offer as early in your case as you and your attorney think is appropriate
  • If both parties and their counsel are motivated to get a case done quickly, it can be accomplished

What is the Relationship between Discovery and How Quickly My Connecticut Divorce Case Moves?

Many Connecticut divorce clients from Greenwich to Fairfield want to know what they can do to ensure that their case moves in a timely fashion.  For many people, once they have made the difficult decision to get a divorce, they do not want the divorce case itself to move slowly.  The timing of Connecticut divorce cases is not always within the control of the client or his or her attorney, but there are certain things that clients can do to ensure that the case moves as quickly as possible.

At Broder & Orland LLC, one of the things that we encourage clients to do in order to help their case move in a timely fashion is to provide financial discovery to the other side as soon as possible.  Some clients even provide financial discovery to the opposing party before he or she requests it.  There are standard documents that, under Connecticut Practice Book Section 25-32, are to be exchanged in divorce cases: personal tax returns, tax returns for any business in which a party has an interest, W-2s, 1099s, K-1s, pay stubs and other evidence of income for the current year, bank and brokerage account statements for the past two years, the most recent retirement account statements, the most recent life insurance statement, current health insurance information, information regarding the cost of COBRA following the divorce, and any written appraisals of assets owned by the parties.  In cases where the finances are more complicated or where there are specific issues for which a party seeks discovery, the discovery requests are more comprehensive than the preceding list.  Top Fairfield County attorneys will provide their clients with comprehensive document requests early in the case, and sometimes at the initial consultation, so that clients know what to expect from opposing counsel and can begin gathering their responsive documents.

Clients who want to move their Fairfield County divorce cases quickly will begin gathering the requested documentation as early as possible so that there is no delay in getting that information to the other side.  Under Connecticut rules of practice, parties generally have 60 days to respond to discovery requests, but waiting that entire time to provide discovery will only prolong the case.  Failing to provide all of the requested information is another way to ensure that the case takes longer, as the opposing party will then have to request the missing information and will sometimes file a motion to obtain a Court order that it be provided.

When Can My Divorce Case be Settled?

Once discovery is complete (or nearly complete) in a case, many attorneys will discuss with their clients the possibility of settling the case.  Settling a divorce case has many advantages, and one of them is that settlements can occur at any time in a case, including in the beginning.  Some Fairfield County divorce clients even settle their cases before filing for divorce in order to ensure that the process goes quickly once the case is filed.

Trial dates in divorce cases normally are not scheduled until later in a case, and sometimes not until the case has been pending for almost one year.  If a case goes to trial, a judge has 120 days to issue a decision.  After the decision is issued, one or both parties can file motions to reargue certain issues or to clarify the decision.  Additionally, one or both parties can take an appeal from a trial court decision, which typically takes at least a year to resolve.

Therefore, settling a divorce case well before the trial dates is usually a way to ensure that the case ends in a timely fashion. Issuing a settlement proposal (or responding to one) early on in a case can be an effective way of moving the case toward a final judgment.  The case can be settled as soon as you and your attorney think it is appropriate to begin settlement discussions, usually after discovery is exchanged and the necessary information is gathered.

At Broder & Orland LLC, we understand that many of our clients want their divorce cases to move quickly.  The biggest predictor of how quickly a divorce case will move is the parties and their counsel.  We find that when both parties and their counsel are motivated to get through a case quickly, it usually will happen.  Problems can arise when either the opposing party does not want the divorce to occur quickly, and/or that party’s counsel is not cooperative in efforts to accelerate the case.  Both parties do not need to agree on everything in order for their case to move quickly, but both parties do need to be responsive and work with their attorneys to achieve a resolution of the issues.  When both parties are working toward the same goal, i.e., early resolution of their case, it can be accomplished.

Do My Child’s Wishes Matter in a Custody Dispute?

This Week’s Blog by Andrew M. Eliot

  • In adjudicating custody and parenting time disputes, Courts are required to give consideration to a child’s wishes only in instances where a child is, “of sufficient age and capable of forming an intelligent preference.”
  • There is no fixed age at which a child’s wishes must be considered by a Court in rendering a custody determination.
  • Even if a child who is child determined to be of sufficient age and capable of forming an intelligent preference expresses such a preference regarding custody or parenting time, Courts are not bound to follow the child’s wishes. Rather, Courts have the discretion to determine that a child’s preference is not in his or her best interest.

Understandably, many parents who are facing (or are in the midst of) a custody dispute, wish to know what impact their child’s wishes or preferences will have with respect to physical custody arrangements (i.e., which parent a child will predominantly reside with, and when and how often a child will be with the other parent).  There are a several common misconceptions on this topic.  Perhaps most notably, many people incorrectly believe that a child’s preferences must be considered by a Court in a custody dispute, and/or that upon reaching a certain age their child will have the absolute right to determine his or her own custody arrangement.  Each of these notions is inaccurate.

Pursuant to the applicable Connecticut statute pertaining to custody determinations (C.G.S. §46b-56(c)), the only factor Courts must consider in rendering custody determinations is the “best interests of a child.” With respect to a child’s preferences, the statute provides only that a Court may consider the “informed preferences of a child,” in determining what is in a child’s best interest.  Notably, Courts have interpreted this portion of the statute to mean that a child’s preferences shall only be considered by a Court if a child is of sufficient age and is capable of forming an intelligent preference.  Whether a particular child meets this initial hurdle is a determination that is within the sound discretion of the Court, but is generally one that depends not only upon a particular child’s chronological age, but also upon the child’s maturity level and intellectual capacity, as assessed by the Court through whatever evidence a Court deems relevant.  Such evidence may include witness testimony from individuals such as a child’s parents, a Guardian Ad Litem if one has been appointed, and/or any Family Relations officer or Court appointed mental health professional who may have conducted a custody study or psychological evaluation of the child.  Such evidence might also include documentation relating to a child’s academic performance at school, such as a report card.  If a Court determines that a child does indeed meet this initial threshold, the Court must next identify what the child’s wishes are and, finally, determine how much weight the child’s preference should be afforded.

Notably, even where it is determined that it is appropriate to consider a child’s custody preferences, Courts still have the discretion to determine that the child’s expressed preference is not in the child’s best interest, and render custody orders that are contrary to the child’s wishes.  Additionally, parents should also be aware that Courts may be inclined to view the expressed wishes of a child with a degree of skepticism or distrust, given that a child caught up in a custody dispute may be likely to have conflicting feelings about custodial arrangements, may have preferences that are subject to change at any given moment, and/or are succumbing to pressure from one parent to express preferences in favor of that parent.

At Broder & Orland LLC, we have extensive experience handling complex and emotionally-charged custody disputes throughout Fairfield County and can help clients properly assess whether and to what extent a child’s wishes might be considered by the Court.