Category: Child Custody

What Provisions Should Be Included in a Parenting Plan?

This Week’s Blog by Nicole M. DiGiose.

What is a Parenting Plan?

A Parenting Plan is a document, usually in the form of an agreement, that addresses child-related issues, such as legal custody and a parental access schedule. In the absence of an agreed-upon Parenting Plan, a Court will determine a Parenting Plan that it believes is in the child(ren)’s best interests.

 When does a Parenting Plan need to be Submitted to the Court?

 A proposed Parenting Plan must be submitted to the Court on or before the Case Management Date, which is approximately ninety days after filing an action for dissolution of marriage. If parenting issues are disputed at the time of the Case Management Date, the parties are required to appear in Court and may be ordered to meet with a Family Relations counselor.

 What is Legal Custody?

Legal custody is the power to make decisions for a minor child(ren). Such decisions include the child(ren)’s health, education, religion, and welfare. Legal custody may be shared jointly, awarded to one parent only after good faith consultation with the other parent, or awarded solely to one parent without good faith consultation. A Parenting Plan must set forth how legal custody is shared and typically includes a definition of legal custody.

What is a Parenting Coordinator?

A Parenting Coordinator, or “P.C.,” is an individual who may be engaged by parents to help them communicate better, make decisions on behalf of their child(ren), and resolve disputes. P.C.s are generally mental health professionals or social workers. P.C.s are not judges and cannot make binding decisions—they can, however, make recommendations. Often, parents will elect to include a provision about a P.C. in their Parenting Plan. These provisions typically require both parents to meet with a P.C. in an attempt to resolve any parenting dispute before submitting the matter to a Court.

 What is a Regular Parental Access Schedule?

A regular parental access schedule sets forth when each parent will parent the child(ren) during non-holiday and vacation time. It is the day-to-day schedule. A regular parental access schedule is not “one size fits all” and will vary from family to family.

 What is a Holiday and Vacation Schedule?

 A holiday and vacation schedule sets forth all holidays that are celebrated by a family and delineates how they are shared. Parents often elect to alternate holidays such that one parent has parenting time in even-numbered years and the other parent has parenting time in odd-numbered years. Parents may also elect to assign a specific holiday to one parent in every year. A holiday and vacation schedule also addresses summer vacation. Parents will typically select a number of weeks, consecutive or non-consecutive, that each parent will have during the summer.

 What Other Provisions Should be Included?

 Parenting Plans almost always contain non-disparagement language. They should also address notice provisions with respect to travel, as well as provisions related to the attendance of medical appointments, school conferences, extracurricular activities, and the introduction of new significant others.

 What is a Right of First Refusal?

Some parents elect to include a Right of First Refusal in their Parenting Plan. If a parent is unavailable to parent the child(ren) for a certain number of hours on his or her parenting time, he or she must give the other parent the option of parenting the child(ren) before he or she engages a childcare provider. If the non-scheduled parent is also unavailable, then the scheduled parent is typically responsible for the cost of any necessary childcare. The number of hours will vary from family to family. Four to six waking hours are common.

 What if my Spouse has issues with Drugs or Alcohol?

 Drug and alcohol testing may be included in a Parenting Plan. If one or both parents are struggling with substance abuse, he or she may be required to submit to drug or alcohol testing. A testing protocol, including the frequency of tests, will be delineated in the Parenting Plan. Said protocol will also include consequences in the case of a missed or positive test. If the parent struggling with substance abuse issues is able to achieve a certain level of sobriety, his or her parenting time may be expanded upon his or her reaching certain milestones.

Can Parenting Plans be Modified?

 Yes. Parenting Plans may be modified if there has been a material change of circumstances which alters a Court’s finding of the best interests of the child(ren) or a finding that the original order sought to be modified was not based upon the best interests of the child(ren).

At Broder & Orland LLC, we understand the sensitive nature of parenting issues in a divorce or custody dispute in Connecticut. Our skilled attorneys will guide you through the process of crafting a Parenting Plan that is consistent with your minor child(ren)’s best interests.

Children and Custody Disputes: Do My Child’s Wishes Matter?

This Week’s Blog by Andrew M. Eliot

Must a Judge Consider My Child’s Wishes in a Custody Dispute?

No.  It is a common misconception that Judges must consider a child’s preferences in making determinations regarding a child’s custodial arrangement.

In fact, the only factor that a Judge must consider in rendering a custody determination is the “best interests” of a child.

Will a Judge Consider My Child’s Wishes in a Custody Dispute?

The short answer is — it depends.  Under the applicable Connecticut statute pertaining to custody determinations (C.G.S. §46b-56(c), Judges may — but are not required — to consider the “informed preferences of a child,” in determining what custodial arrangement is in a child’s best interest.  In practice, and through relevant judicial decisions, Courts have interpreted this to mean that a child’s preferences shall only be considered if a child is of sufficient age and is capable of forming an intelligent preference.

How Will a Judge Determine if my Child is of Sufficient Age and Capable of Forming an Intelligent Preference?

There is no precise answer to this question and no fixed age at which a child will be deemed to automatically meet this threshold.  Rather, whether a particular child meets this initial threshold is a determination that falls within the discretion of the Judge.

However, in considering whether a child is of sufficient age and is capable of forming an intelligent preference, such that his or her custodial preferences may be considered by the Court, a Judge is likely to consider not only a child’s chronological age (though this will certainly be a factor), but also the child’s maturity level and intellectual capacity.  A Judge is likely to make such assessments by hearing witness testimony from relevant individuals (such as a child’s parents, a Guardian Ad Litem, and/or any relevant mental health professionals) and potentially considering additional evidence such as documentation relating to a child’s academic performance at school.

If my Child is deemed of Sufficient Age and Capable of Forming an Intelligent Preference, will a Judge Honor His or Her Wishes?

Not necessarily.  Notably, even if a Judge determines that it is appropriate to consider a child’s custodial preferences, he or she still has the discretion to determine that the expressed preferences of the child are not in the child’s best interest, and render orders that are contrary to the child’s wishes.

Parents should also be aware that Judges are often inclined to view the expressed wishes of a child with skepticism or distrust, given that a child who is the subject of a custody dispute may have conflicting feelings about custodial arrangements, may feel pressure from one parent (or both) to express certain preferences, and may have preferences that are subject to change at any moment.

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

Emancipation Laws in Connecticut

This Week’s Blog by Lauren M. Healy

What is Emancipation?

Connecticut law provides a process for a child who has reached the age of sixteen, and is residing in Connecticut, to be declared emancipated and thereafter treated as a legal adult, with the same rights as an individual who has attained the age of eighteen.

Can My Child Request Emancipation?

Yes. In Connecticut, it is possible for either the child (who has attained the age of sixteen) or the child’s parents/guardian to petition the probate court for the minor’s emancipation. If the child files the petition for emancipation, the parents/guardian will be notified by a Summons from the Court. If it is the parents/guardian who make the petition, the child will be notified the same way. The Court must assign a Hearing within thirty days of the Petition for Emancipation being filed.

What is the Process for Emancipation in Connecticut?

After a Petition for Emancipation is filed and before the Hearing date, there is a period of information gathering.  The Probate Judge must ask the Connecticut Department of Children and Families (“DCF”) to investigate the matter and gather data that may be helpful to the Judge in the proceeding. This includes interviewing the child, the parents/guardian and speaking with other third parties, such as family members. The Judge must also appoint an Attorney for the Minor Child (“AMC”), to represent the child during the proceeding. The AMC acts as an advocate for the child’s wishes.

If warranted by reasonable cause, the Judge can also appoint a doctor or mental health professional to examine the minor. The Judge can also order the examination of a parent or guardian when there is a dispute about his or her mental health competency or ability to care for the minor.

What Does the Judge Consider When Making an Order for Emancipation?

Pursuant to Connecticut General Statutes §46b-150b, after the Hearing, the Judge may order the emancipation of the minor, if:

  • The minor has entered into a valid marriage, whether or not the marriage has been terminated by dissolution; or
  • The minor is on active duty with any of the armed forces of the United States of America; or
  • The minor willingly lives separate and apart from his or her parents/guardian with or without consent of the parents/guardian, and the minor is managing his or her own financial affairs, regardless of the source of any lawful income; or
  • For good cause shown, it is in the best interest of the minor, any child of the minor or the parents/guardian of the minor.

There is no specific definition of “good cause shown” in the context of an emancipation proceeding. The Probate Court has discretion to consider the individual circumstances of the case, and find that there is a substantial reason or excuse to order emancipation.

What Happens After a Child is Emancipated in Connecticut?

Once emancipated, the child has all of the rights of an adult and his parents are no longer his guardians. Pursuant to Connecticut General Statutes §46b-150d, the effect of emancipation includes (but is not limited to):

  • The right of the child to control his own personal life, including the establishment of his own residence;
  • The right of the child to consent to medical, dental or psychiatric care without parental consent, knowledge or liability;
  • The responsibility of the child to support himself financially;
  • The right of the child to sign contracts in his own name.

How does an Order of Emancipation Impact a Custody Agreement or Separation Agreement Regarding That Child?

If a child is emancipated, it has the same practical effect upon a Custody or Separation Agreement as if the child attained the age of eighteen. A parenting plan no longer applies to the child and the parents no longer have decision-making authority over the child. Also, the parents are relieved of any obligation to support the minor child, such as the payment of child support for the benefit of the child.

Whether or not the emancipation impacts the obligations of the parents to pay for college or health insurance would depend on the specific provisions of the Custody or Separation Agreement, and may continue beyond the child’s emancipation.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law, and divorce.  We have experience helping families navigate through all aspects of child custody issues and disputes, including emancipation-related cases.

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.

What is Child Custody in a Connecticut Divorce Case?

This Week’s Blog by Eric J. Broder

  • The term “child custody” can be broken down into two separate definitions, legal custody and physical custody.
  • Legal custody addresses which parent has the right to make major decisions concerning the child(ren). Major decisions include those relating to a child’s education, health/medical, and religion. Based upon my experiences as a Connecticut divorce lawyer I can estimate that over 95% of Connecticut parents have joint legal custody. It is certainly the exception for a party to have sole legal custody.
  • Physical custody addresses the schedule of which parent has time with the child on a given day. In actuality, a parent who is with a child one day a week has physical custody of that child on that day. At times, language is written into a divorce agreement establishing a child’s residence for school purposes.

What happens if the Parties Do Not Agree to Joint Legal Custody?

  • In the event the parties cannot agree on joint legal custody the process is called a contested custody case. This will mean that third parties will become an integral part of the case. For example, the court may appoint a Guardian ad Litem for the minor child to investigate and make a recommendation as to the best interest of the child(ren) or an AMC to represent the child(ren).
  • After hearing all the relevant information in such a case a Judge will decide custody based on the “best interest of the child(ren)”.

What is the Role of the Guardian Ad Litem in a Connecticut Divorce Case?

  • A Guardian ad Litem (“GAL”) is appointed to ensure that the children’s best interests are represented in the event of a custody battle. A GAL may be an attorney or mental health professional. Connecticut has specific certification requirements in order for someone to be appointed as a GAL.
  • The GAL will meet with various individuals involved in the child’s life, including the parents, therapists/counselors, close family friends, teachers, and anyone else who has a strong tie to the family and the child. A GAL will analyze this information and make a recommendation to the court as to what is in the best interests of the child(ren).

What is the Role of the Attorney for the Minor Child in a Connecticut Divorce Case?

  • An Attorney for the Minor Child (“AMC”) is generally appointed to represent the child(ren) in cases involving older children. While there is no specific age at which an attorney will be appointed, I find that children in middle school and high school are more likely to have an attorney appointed to them rather than a GAL. The attorney has the ability to represent the child’s wishes, but also is concerned with the child’s best interest.
  • Unlike a GAL, an AMC will not be permitted to testify during a trial. However, the attorney may and will ask questions of the parents as well as other third parties on the witness stand.

Who Pays the Fees of The Guardian Ad Litem/Attorney For The Minor Child?

  • The parties are responsible for the fees however it is not always an equal split. A court may apportion a different percentage to each party depending on the parties’ financial situation. These fees can and will become costly in the event there is a contested custody trial.

As experienced Fairfield County divorce lawyers, the lawyers at Broder & Orland LLC have represented both mothers and fathers at trial in complex contested custody matters. These cases can and will become expensive, and sadly, have a lasting impact on the children and the parents. We work hard to resolve custody and parenting disputes to ensure that the children’s best interests are always at the forefront.

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.

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.

 

The Basics of Bird Nesting

This Week’s Blog by Carole T. Orland

On occasion, clients who consult with divorce lawyers in Greenwich, Westport and other Fairfield County cities and towns, inquire about arrangements where the children stay in their home and the parents alternate moving in and out. This is commonly known as “bird nesting.” The motivation for this type of parenting plan is often financial. Parents sometimes recognize an inability to have two homes that are adequate to meet the needs of their children, especially during the pendency of a divorce. Or sometimes parents feel they are being more compassionate toward their children if they keep them full time in the home they are used to, particularly when the divorce action has just started and emotions are raw.

For these reasons, bird nesting sometimes may be a reasonable short term solution, however it is rarely ideal. Unless the family home is very expansive, privacy of each parent can be an issue. Sharing rooms, particularly the former marital bedroom, can lead to unwanted encroachment of personal space. It can also create emotional confusion for the children. Usually, a clean break although painful in the short term, is more realistic.

Certainly once a divorce is final, bird nesting is rarely practical. An alternative that works in some cases is to have both parents live in close proximity to each other. Although this means the children go back and forth, if both parents remain in the same neighborhood, the children are able to sustain their connection with what is familiar and comforting to them. Of course, this means the divorced parents must feel comfortable being in proximity to a former spouse, which often is not the case given the contentiousness that permeates many divorces. So like concentric circles, moving further out but still in the same geographic location is often the best move.

Children are generally resilient and in time most get used to two households. Often it is a relief from the tension and fighting they have observed prior to the divorce, sometimes for many years. And they may even think it is “creepy” for their parents to bird nest once the divorce is inevitable or after it occurs.

If you are considering bird nesting, it can be helpful to consult with a therapist who can meet with the parents and children, sometimes in different constellations, so that everybody can express their true feelings and concerns about such an arrangement. And it is a good idea to establish clear ground rules that ensure privacy and respect.

At Broder & Orland LLC, we are able to develop bird nesting plans that meet our clients’ needs. We are creative in our approach and thoughtful in the execution. We also assist our clients in remaining flexible when it is necessary to tweak or modify an arrangement that might work better for the family as time goes on.

What State Has Jurisdiction over Custody of My Children? Part II

The previous post in this series discussed the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) and this post will continue with the Parental Kidnapping Prevention Act (“PKPA”).

PART II – PKPA

The PKPA, codified at 28 U.S.C. §1738A, which was signed into law by President Jimmy Carter on December 28, 1980, establishes federal standards for the determination of child custody jurisdiction.  It requires a State to give full faith and credit to any custody or visitation determination made by another State, if the determination was made consistently with the provisions of the PKPA.  Further, a State may not modify a determination made by a State of another State, unless the issuing State no long has jurisdiction or if it declined to exercise jurisdiction.   A determination is consistent with the provisions of the PKPA only if:

  1. The Court has jurisdiction under its local laws (Connecticut’s local law is its version of the UCCJEA); AND
  2. One of the following conditions are met:

a.) Such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;

b.) (i) it appears that no other State would have jurisdiction under subparagraph (a), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;

c.) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or parent of the child has been subjected to or threatened with mistreatment or abuse;

d.) (i) it appears that no other State would have jurisdiction under subparagraph (a), (b), (c), or (e), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody or visitation of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or

e.) The court has continuing jurisdiction pursuant to subsection (d) of this section.

 

Subsection (d) is a catchall provision which confers jurisdiction to a State that made a determination consistently with the provisions of the PKPA if it has jurisdiction under its local laws and it remains the residence of the child or a parent.

At first glance, it may appear that the provisions of the UCCJEA and PKPA are identical, however there are significant differences.  First, the PKPA involves a two part analysis, whereas there is only one analysis under the UCCJEA.  Thus, a determination could be valid under the UCCJEA (or local laws of a State), but it could be invalid under the PKPA if the provisions of the PKPA are stricter than the local laws of the issuing State.

Second, the PKPA interjects the concept of “best interest of the child” when referring to significant connection and substantial evidence, whereas the UCCJEA does not directly consider “best interest of the child.” The “best interest of the child” standard provides the court with broad discretion to exercise jurisdiction if it determines that there is no “home state.”  Thus, it may be necessary during a PKPA hearing to elicit testimony and offer exhibits related to the “best interests of the child”.  Contrary to popular belief, the PKPA statutory analysis does not always end with “home state” status.

The attorneys at Broder & Orland LLC are experienced with the PKPA and its various exceptions. No two cases are the same.  We effectively advocate for our clients in cases of this nature by applying the appropriate provisions of the statute to the facts of each case.

What is a Guardian ad Litem?

A Guardian ad Litem, often referred to as “GAL,” is an individual appointed by the Court to ensure that the minor child’s best interests are represented during a parenting or custody dispute. Not every divorce case or custody dispute requires the appointment of a Guardian ad Litem. In fact, if at all possible, the Court tends to encourage parties to resolve parenting disagreements without the involvement of third parties.  When parties are unable to agree on custody or a parenting access arrangement, or if there are specific parenting issues that simply cannot be resolved, a Guardian ad Litem may be appointed to either assist the parties in reaching an agreement, or to inform the Court as to the best interest of the minor child.

A Guardian ad Litem may be appointed upon the Motion (request) of one party, the agreement of both parties, or when a Judge determines that a Guardian ad Litem is necessary in the case.  The role of a Guardian ad Litem is usually served by an attorney or a mental health professional. In order to be appointed, the Guardian ad Litem must be qualified by the Connecticut Judicial Branch after completing specific course training. Furthermore, the State of Connecticut Judicial Branch has developed a code of conduct which outlines the obligations, expectations and responsibilities of a Guardian ad Litem.

Although a Guardian ad Litem may be an attorney by profession, the role of a Guardian ad Litem is not the same as that of an Attorney for the Minor Child. An Attorney for the Minor Child, sometimes called “AMC,” is legal counsel for the minor child, both representing the child’s legal interest while considering the child’s best interest.  Conversely, the Guardian ad Litem does not provide legal representation to the child or the parties. No privilege exists regarding communications between the Guardian ad Litem and the child or the Guardian ad Litem and the parties. The Guardian ad Litem may serve, and often does, as a witness in the case at Hearings and Trial, and can testify about things that were said by the child and the parties, to the extend these communications are admissible under our Rules of Evidence.

At the time of the appointment, the Court will issue an Order with the specific duties of the Guardian ad Litem, which depend on the issues that are outstanding in the case. These duties may include, but are not limited to: investigating facts, interviewing the parties and the child, reviewing files and records, speaking to teachers, coaches and others, speaking to medical professionals, participating in Court hearings, making recommendations to the Court, and encouraging and facilitating the settlement of disputes.

While the Guardian ad Litem should be fair and impartial, this does not mean that he or she is not allowed to have an opinion or make recommendations.  Sometimes these recommendations will align more with one party’s philosophy of the case than the other’s. While the Court is not bound to accept the recommendations of the Guardian ad Litem, and the GAL does not make decisions for the Court, his or her recommendations and testimony are usually carefully considered by the Court when making a final determination about parenting issues.

The fees of the Guardian ad Litem are paid by the parties. The initial retainer amount and the hourly fee will be established by the Court at the time the Guardian ad Litem is appointed. If the parties cannot agree on an appropriate payment arrangement, the Court will make an order after reviewing the financial circumstances of the parties, including reviewing the parties’ signed, sworn Financial Affidavits.

The decision as to whether to appoint a Guardian ad Litem and then choosing the right person to serve as Guardian ad Litem is extremely important to the tenor and outcome of any custody dispute. The attorneys at Broder & Orland LLC are experienced in serving as Guardians ad Litem and litigating and settling cases where a Guardian ad Litem has been appointed.