Tag: child custody

You Lost Your Job Because of COVID-19—What Happens to Your Alimony and/or Child Support Obligation?

This Week’s Blog by Sarah E. Murray and Nicole M. DiGiose

The coronavirus pandemic and resulting measures to stem its spread have caused record unemployment numbers in the United States. While the full economic impact is not yet known, people who live and work in New York City and Fairfield County, two of the harder hit places in the tri-state area, have already begun to feel the effects with respect to job loss and loss of income. For those who have an alimony and/or child support obligation pursuant to a Connecticut Divorce Judgment, the natural question after losing a job, whether due to COVID-19 or otherwise, is: what impact will the job loss or reduction of income have on my obligation to pay alimony and/or child support?

Can I Modify My Alimony and/or Child Support Obligation if I Become Unemployed Because of COVID-19?

Connecticut General Statutes Section 46b-86(a) provides that alimony and/or child support obligations may be modified. Alimony may be modified “[u]nless and to the extent that the decree precludes modification.” So, unless your Divorce Agreement or Court Decision states that alimony is non-modifiable, you have the option of modifying your alimony obligation based on the loss of your employment.

In order to obtain a Court Order modifying alimony and/or child support, the party seeking the modification must prove that there has been a substantial change in circumstances. In determining whether there has been a substantial change in circumstances, a Court will compare the circumstances at the time of the last Court Order with the circumstances at the time that a party seeks a modification of that Order. Typically, a job loss in and of itself is considered to be a substantial change in circumstances. In these unprecedented times, many people are losing their jobs as a result of the economic impact of the pandemic; so, you will not be the only person making claims in a Connecticut Court that you lost your job due to COVID-19.

I Lost My Job Due to COVID-19, but I Am Receiving a Severance: Can I Still Modify?

If you receive severance payments for a period of time that are the same or substantially the same as the income received when employed, the receipt of that severance income means, in the eyes of the Court, that there has not yet been a substantial change in circumstances.

When Can I File a Motion to Modify?

Every situation is unique, but generally the appropriate time to file such a Motion is toward the end of the severance payment term, assuming that you have not found a job before that time or, if you have found a job, your income at your new employment is now substantially less.

Is My Ability to File a Motion to Modify in Court Affected by COVID-19?

Under Connecticut law, a person requesting a modification may request that the Court Order relief retroactive to the date that the Motion to Modify was personally served on the other party. The party filing the Motion to Modify must file the Motion with the Court, have a Hearing date assigned by the Court Clerk’s office, and then serve the Motion to Modify on the opposing party. The earliest date that the moving party can request for retroactivity purposes is the date of personal service on the opposing party.

As of the time of writing this article, the Courts in Connecticut are open with limited hours and are only permitting individuals to enter the building under certain circumstances, none of which include filing a Motion to Modify in person. Notwithstanding that fact, Motions may still be filed by mail or by e-filing; so, you can still file the Motion to Modify with the Court. Once you receive the assigned Hearing date from the Clerk’s office, the Motion can be served on the other party.

Because of the pandemic and resulting effects on the Connecticut Court system, the timing for receiving assigned Hearing dates on Motions to Modify that have been filed has been delayed, meaning that the date of personal service on the other party will also likely be delayed. Family lawyers in Connecticut have been seeking clarification from the Judicial Branch regarding whether temporary changes to the rules will be permitted so that there is some other standard for retroactivity, other than personal service on the opposing party, in order to address this issue. As of the time of writing this article, there has not yet been a solution presented to this problem, but the fact that there are discussions about this issue signifies that there is no harm in filing a Motion to Modify now (if appropriate to do so) and, in fact, there may be a benefit to doing so in order to preserve retroactivity.

What Documentation Should I Gather Regarding My Modification Case?

You can expect that one of the inquiries at the hearing on your Motion will be what you have done and what you currently are doing to find employment. A Court will want to know that you have made and are making bona fide efforts to obtain employment at or near the level of your prior employment. Be sure to save all of your written communications regarding your employment search, as it could become evidence at a Hearing on a Motion to Modify. It is not difficult to imagine that those seeking jobs as a result of job loss due to COVID-19 will have difficulty finding new employment in the current economic climate and that they will encounter increased competition for positions, which will be useful information to present to a Court as part of a Hearing on a Motion to Modify.

I Was Furloughed as a Result of COVID-19: Can I Modify Alimony and/or Child Support?

Some people living in Fairfield County are not permanently losing their employment as a result of COVID-19, but may suffer a temporary loss of employment or a reduction in income. Even if this change of financial circumstances is temporary, it may be appropriate to file a Motion to Modify in order to seek retroactive modification of alimony and/or child support for the time period during which the payor (or recipient, as the case may be) was receiving less income.

Can I Stop Paying or Reduce My Alimony and/or Child Support Payments if I Lose My Job or am Furloughed?

A Court Order remains in place unless and until it is modified by a Court or by agreement between the parties. Ceasing or reducing alimony and/or child support payments without the Court’s prior permission may be viewed by the Court as “self-help.” Additionally, a payor who ceases or reduces alimony and/or child support payments may be subject to a Motion for Contempt. If you have lost your job or have been furloughed, it is a good idea to file a Motion to Modify now in order to preserve retroactivity. While the Motion is pending, it may be possible to work out an agreement as to how alimony and/or child support payments may be modified.

Could I be Held in Contempt if I Stop Making or Reduce my Alimony and/or Child Support Payments?

In order to prove contempt, the moving party must demonstrate to the Court, by clear and convincing evidence, that there has been a willful violation of a clear and unambiguous Court Order. Divorce Agreements and Court Decisions are Court Orders. The question of whether an Order is clear and unambiguous is for the Judge to decide. Assuming the Court Order is clear and unambiguous, the Judge will next decide if the cessation or reduction of alimony and/or child support was willful. In determining willfulness, a Court could look at why you lost your employment, what other sources of funds you had available to you to pay alimony, and what your job search efforts have been.

At Broder & Orland LLC, our attorneys have significant experience handling cases involving the modification of alimony and/or child support when a client has lost his or her employment. We can consult with clients to shed light on whether a potential alimony and/or child support modification case is viable. Losing your job can be one of the most stressful events in your life. Our attorneys at Broder & Orland LLC are available to discuss your options with you and can provide you with a plan going forward with respect to your alimony and/or child support obligation, which may include filing a Motion to Modify and negotiating and drafting an agreement with the other side. It is our goal to give you peace of mind during these difficult times.

What is a Motion for Reargument and What Effect Does It Have on My Connecticut Family Law Case?

This Week’s Blog by Sarah E. Murray

What is a Motion for Reargument?

Under Practice Book Rules 11-11 and 11-12, a party who has litigated a case (or aspect of a case), including a family law case, may file a Motion for Reargument. A Motion for Reargument may be filed after the issuance of a final decision in a family law case, but also may be filed following receipt of an order resulting from most contested proceedings during a family law case, such as a pendente lite order. “[T]he purpose of a reargument is…to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts…It also may be used to address alleged inconsistencies in the trial court’s memorandum of decision as well as claims of law that the [movant] claimed were not addressed by the court.” Opoku v. Grant, 63 Conn. App. 686, 692 (2001). A Motion for Reargument must be filed within twenty days of the issuance of a decision or order, unless you obtain permission from the trial court for an extension of time within which to file.

Why File a Motion for Reargument After a Case Has Been Litigated?

As Opuku indicates, if, after receiving a decision in a Connecticut family law case, it appears that the trial court has overlooked controlling law, or misconstrued the factual evidence before the trial court, you and your lawyer may decide to file a Motion for Reargument. The Motion for Reargument can bring these claims before the trial court, allowing the trial court to reconsider its prior decision and possibly correct the errors you allege. Filing a Motion for Reargument is a way to bring these issues to a trial court such that an appeal of the trial court’s decision or order may be avoided.

Is a Motion for Reargument an Opportunity to Relitigate the Case?

No. A Motion for Reargument does not allow you to raise new claims to the trial court, nor does it allow you to present the same arguments to the trial court in an attempt to convince the judge to overrule his or her decision or order. A properly filed Motion for Reargument points out factual inaccuracies in the trial court’s decision or order and/or raises applicable law that the trial court ignored in the decision or order. The Motion for Reargument is not an opportunity to relitigate your case. If you or your counsel presented your best arguments during the litigation and the trial judge disagreed, a Motion for Reargument will not be an appropriate vehicle. In such a situation, you may be best served by simply filing an appeal if the decision is a final judgment for appeal purposes.

If a Motion for Reargument is Filed in My Connecticut Family Law Case, What Effect Does It Have?

If a Motion for Reargument is filed pursuant to Practice Book Section 11-11, it tolls the time period within which an appeal must be filed. Practice Book Section 11-11 applies to judgments that are final for appeal purposes. Practice Book Section 11-12, on the other hand, applies to judgments that are not final for appeal purposes. If your intention is to file a Motion for Reargument regarding a final judgment for appeal purposes so that the appeal period is tolled, it is critical that you title your Motion for Reargument an “11-11 Motion” and note that it is an 11-11 Motion on the bottom of the first page of the Motion before filing it with the Court. Otherwise, you could jeopardize your ability to appeal your case if you so choose. If you file a Motion for Reargument pursuant to Practice Book Section 11-11, the trial court judge could alter his or her decision if he or she grants the motion. Therefore, the appeal period is extended, as a party may decide that an appeal is not needed following the decision on the Motion for Reargument.

What Happens After a Motion for Reargument is Filed?

Once a Motion for Reargument is filed, the trial court judge who heard the case can either deny the Motion outright without a hearing, or grant the Motion for Reargument. The trial judge’s granting or denying of the Motion is typically done fairly quickly after filing. If the Motion for Reargument is granted, typically the trial court will then schedule a hearing date for reargument, at which time both parties can present their arguments as to why relief should or should not be granted. Following reargument, the trial court judge then will issue a decision on the Motion for Reargument, wherein the relief may or may not be granted. Sometimes, a trial court judge will grant the Motion for Reargument and hold a hearing, but ultimately will not change his or her decision or order following the reargument hearing. The trial judge has 120 days in order to make a decision following argument, but most judges will issue a decision much sooner than that. Once the trial court judge issues the decision regarding the Motion for Reargument, either side has twenty days following the date of reargument decision within which to file an appeal of the original decision or order, again, so long as the Motion for Reargument was framed as a Practice Book 11-11 Motion.

Broder and Orland LLC provides appellate representation, in addition to litigating family and divorce cases at the trial court level. If you are contemplating an appeal and/or have questions regarding whether a Motion for Reargument should be filed in your case following the issuance of a decision or order, contact Sarah E. Murray, Esq., Chair of the firm’s Center for Family Law Appeals.

Mediation in Divorce Cases

This Week’s Blog by Carole T. Orland

What is Mediation in the Context of Divorce?

Mediation can be a helpful approach in certain divorce cases. Typically the mediator is a lawyer who objectively tries to help resolve your case or specific issues within the case.

Are There Different Kinds of Divorce Mediations?

Yes.  Sometimes the parties hire a divorce mediator before either one has filed for divorce or shortly thereafter. Often the reason is that they are desirous of an amicable process and resolution at a moderate cost.

In other instances, the parties litigate the divorce with counsel and at some point decide they want assistance in settling the case, typically before trial. In this model, they usually hire a retired judge or elder statesman of the bar to conduct a session with the parties and counsel. This process can last anywhere from several hours to a full day.

On occasion, parties who are represented by counsel may hire a mediator near the beginning of the case to help resolve disputes as the case is litigated.

Is Mediation the Opposite of Litigation?

Not necessarily. As described above, mediation is often done in the context of litigation. Litigation is not necessarily a scary term and does not have to be contentious or nasty. It is often a conventional way of moving the divorce process along. In some instances it can be easier, quicker, and less expensive than mediation.

When Does Mediation Without Counsel Work Best?

If the parties have trust in each other and share the same objective and timetable for resolving their divorce, mediation can be a good approach. Of course, it is key to hire a reputable, experienced mediator. 

When Does Mediation Not Work Best?

Often, trust has eroded leading up to divorce. Also, sometimes the parties are on such unequal footing with regard to an understanding of financial issues, that the well informed party has an inherent advantage to the detriment of the other party. A common refrain is: “Let’s go to mediation. We will avoid lawyers and save money. We can work this out!” Sometimes, that obfuscates the underlying motive of trying to “put one over” on the other party. A failed mediation can be a real detriment to ultimately resolving the divorce as it can be a waste of time and money, as well as a disappointment when it is perceived that a spouse has not acted in good faith.

Is Mediation a Good Approach to Resolving the Part of the Case Relating to Child Custody and Parenting Time?

It can be. Good divorce lawyers make it their business to resolve custody and parenting issues at the beginning of the case. But an alternative might be that the parties resolve these issues on their own with a mediator. In that case, the mediator may be a mental health professional, such as a family therapist.

What Does it Mean to Have a Mediation Coach or Review Counsel?

Most of the time, parties who hire a mediator on their own will also separately hire lawyers to coach them as to divorce laws, strategy, and outcomes. They also may hire review counsel to review the Separation Agreement drafted by the mediator. The coach and review counsel are often the same person. This adds another layer to the process and additional cost. There is also the potential that review counsel’s opinions may de-rail the process at the end of mediation. It is important for parties to stress to their review counsel that they are not looking to re-write the proposed Separation Agreement, but rather looking for any potential minefields.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we are experienced in all forms of divorce mediation. We act as mediators for parties who have or do not have counsel, and attend mediation with our clients in many of the cases we litigate.

Imputing Income for Child Support Purposes

This Week’s Blog by Andy M. Eliot

How is Child Support Generally Determined in Connecticut?

In Connecticut, the amount of a non-custodial parent’s child support obligation to a custodial parent is directly tied to the respective incomes of both parents. Pursuant to the Connecticut Child Support Guidelines, parents’ respective incomes are plugged into a mathematical formula which yields a presumptively correct weekly child support obligation that one parent must pay to the other.

What Does Voluntary “Underemployment” Mean?

Voluntary underemployment occurs when a parent (whether it be the child support obligor or the parent receiving child support) voluntarily earns less income then he or she is capable of earning based upon his or her education, training and past earnings.  Consider, for example, a scenario in which a child support obligor voluntarily leaves a high-paying job on Wall Street shortly before a child support award will issue to pursue a far less lucrative career as a musician; this would be an example of “voluntary underemployment.”

Do Courts Have Any Means to Redress Voluntary Underemployment in Issuing Child Support Awards?

Yes.  In such circumstances, courts have the discretion to attribute or “impute” income to a parent (whether it be the parent paying child support, the parent receiving child support, or both) for purposes of determining child support obligations.  In other words, when plugging a parent’s income into the mathematical child support formula set forth in the Connecticut Child Support Guidelines, courts may utilize an income figure that reflects the amount of income that a parent could potentially be earning (commonly referred to as “earning capacity”), rather than the amount the parent is actually earning at the time.

How do Courts Determine what Amount of Income to Impute to a Party?

In determining a party’s earning capacity for purposes of imputing income to that party, there is not a precise methodology that Courts employ.  Rather, in any given case, the determining Court will examine the unique set of facts in that particular matter in order to make a determination.  However, factors that Courts typically would consider in this context would include the relevant party’s historical earnings, employment history, vocational skills, employability, age and health.

Are Experts Ever Used to Determine Earning Capacity?

Yes.  In cases where earning capacity is an issue, it is common for either or both parties to hire vocational experts for the purpose of proving (or disproving) the other parent’s earning capacity. A vocational expert will generally testify about what a person with similar experience and expertise should make.

Cases involving earning capacity claims are complex and, in order to be handled properly, require a great deal of attention and expertise.  At Broder & Orland LLC, we have extensive experience handling matters where earning capacity is at issue and have a well-established track record of achieving favorable results for our clients in such matters.

What Should I Expect at my Initial Divorce Consultation in Connecticut?

This Week’s Blog by Sarah E. Murray

What is the Purpose of the Initial Divorce Consultation?

After having made the difficult decision to contact an attorney regarding divorce and after making an appointment to meet with him or her, it is natural to feel apprehensive or to be unsure of what to expect at that initial meeting.  Most Fairfield County divorce clients have many questions about the divorce process, possible outcomes, and how Connecticut law applies to his or her case.  Those are all appropriate issues to be discussed in an initial consultation.  One of the primary purposes of the initial divorce consultation, in addition to information gathering, is for the potential client and the potential lawyer to meet in order to determine whether both the client and the lawyer are comfortable working together.  As a client, it is important to feel that you can trust your divorce attorney and that there is good communication between you and your divorce attorney.  The initial consultation is a good opportunity for both the lawyer and client to assess whether they can have a good working relationship during a sometimes difficult process.  

What Do I Need to Bring with Me to My First Meeting with a Potential Divorce Lawyer?

Among other things, it is important for a divorce attorney to have as much information as possible so that he or she can accurately evaluate the case and give the appropriate advice.  Of course, if you were the person served with divorce papers, you should bring those papers to the initial consult so that the attorney can review them and explain them to you.  At the first meeting with a divorce lawyer, however, it is not required that you bring any other documents with you.  The divorce attorney will listen to you and ask questions in order to gain a better understanding of the basic facts of the case.  There will be plenty of time after the initial consultation for you to provide relevant documentation to your lawyer.  While you do not need to bring documents with you to the initial consult, there are some documents that you can bring to make the meeting more productive.  For example, if there is a Prenuptial or Postnuptial Agreement in your case, you should bring a copy of that to the meeting.  Most top Fairfield County divorce attorneys will even ask to see the document in advance of the meeting so that he or she can review it beforehand.  Some people also like to bring relevant financial documentation to the meeting, such as tax returns and bank and brokerage accounts, so that specific financial questions they have can be addressed.

Is What I Discuss at My Initial Divorce Consultation Confidential?

The short answer to this question is: yes.  The information you provide to a potential divorce lawyer, even if you do not hire that person, is kept confidential.  Keep in mind, however, the caveat discussed below.

Should I Bring My Friend (or Family Member) to the Initial Consultation Meeting?

It is normal for people to want emotional support at an initial divorce consultation.  If a third party is present in a meeting between a potential client and a lawyer, that presence can jeopardize the confidentiality of the meeting, as confidentiality and attorney-client privilege typically only extend to the potential client.  If you deem it critical to bring a friend or family member with you to the initial consultation, you can discuss how to handle it with the potential divorce lawyer with whom you are meeting.  You and the divorce attorney may decide to have the friend or family member wait in the reception area during all or part of the meeting in order to protect the information discussed.

What are the General Topics Discussed during the Initial Consult?

In general terms, the best initial consultations cover the following topics, as applicable to the facts of your case: the divorce process in Connecticut, custody of minor children and parenting plans, discovery of relevant information during the divorce, division of assets and liabilities, and alimony and child support.  Top Fairfield County attorneys will also discuss with you strategy concerns and any other issues that may be particular to your case.  In order for the divorce lawyer to give you good advice, he or she will ask many questions, ranging from basic to very personal.  The more information you provide, the more you and a potential divorce attorney can begin crafting a timeline and strategy for your case.

What Questions Should I Ask at the Initial Divorce Consultation?

There is no question too insignificant for an initial divorce consult.  A good divorce attorney will want you to feel comfortable that your questions have been answered and will welcome any and all questions that you have.  There is very little that experienced divorce attorneys have not heard or been asked; so, do not be shy about sharing information or asking questions.  Beyond the typical questions about the divorce process, how long divorces in Connecticut typically last, and what to expect with respect to parenting and finances, you should also ask questions about the financial relationship between you and the potential lawyer.  You will want to know the attorney’s hourly rate, requested retainer or other fee arrangements, and how frequently you will receive invoices reflecting time spent on your case.    

At Broder & Orland LLC, we pride ourselves on our informative initial consultations, which typically initiate an effective attorney-client relationship that lasts throughout the case.  We strive to advise potential clients in a forthright manner so that they feel comfortable about what to expect from the divorce process in Connecticut and so that they understand their options moving forward.

Divorce in Connecticut: The Guardian Ad Litem (GAL)

This Week’s Blog by Eric J. Broder

What is a Guardian Ad Litem in a Connecticut Divorce Case?

In the event that the parties cannot reach a resolution on parenting or custodial matters, a Guardian Ad Litem (GAL) is often appointed by the Court, either directly by the Judge or after agreement between the parties and counsel. The primary function of a GAL is to promote and protect the child(ren)’s best interests throughout the divorce case.

Who qualifies to be a Guardian Ad Litem?

To qualify, a GAL must be an attorney in good standing who is licensed to practice law in the state of Connecticut, or a mental health professional in good standing who is licensed by the Connecticut Department of Public Health in the areas of clinical social work, marriage and family therapy, professional counseling, psychology, or psychiatry.

Further, pursuant to Connecticut Practice Book Section 25-62 there is a training program which must be completed in order for a person to qualify as a GAL.

What is the Role of the Guardian Ad Litem?

The primary role of a GAL is to determine what is in the best interests of the child(ren) with respect to custody and/or a parenting plan. The GAL will investigate all relative facts and claims, meet with the parties, the child(ren), and any relevant third parties such as teachers, childcare providers, coaches, and/or medical professionals/therapists treating the child(ren) and the parties.

The GAL will participate in court hearings and possibly testify. If the matter goes to trial, the GAL will make recommendations to the court as to how the outstanding child(ren) related issues should be decided. In my opinion, the primary function of a GAL, in addition to the above, is to strongly encourage the resolution of disputes between the parties. 

Who Pays for the Guardian Ad Litem?

The GAL is paid for by the parties. The court will review the financial affidavits to determine the percentage each party will contribute to the GAL’s fees. If the parties cannot afford a GAL’s rate there is a sliding scale that the court can apply thereby limiting the hourly rate of the GAL.

What is the Difference Between a Guardian Ad Litem and an Attorney For the Minor Child (AMC)?

The basic difference is that a GAL represents the child(ren)’s best interests and, while the AMC supports the best interest of the child(ren), he or she primarily represents the child(ren)’s legal interests.  Generally speaking, a GAL is appointed for younger children, while an AMC is appointed for older children.

Another notable difference between a GAL and an AMC is that a GAL may testify as a witness at a hearing or trial and an AMC may not.

Can a Guardian Ad Litem be Removed from a Case?

While it is an extremely rare occurrence, it is possible for a GAL to be removed from a case. In order to do so, a party must file a motion with the court to seek the GAL’s removal and prove that the GAL is not acting in the best interests of the child(ren) and has a prejudice and/or bias against one of the parties.

At Broder & Orland LLC we carefully analyze and make all efforts to choose the most appropriate GAL for our client as well as his/her child(ren). Our hope and expectation is that a GAL will be able to work with the parties and their counsel directly to achieve a settlement which first and foremost benefits the child(ren).

What Do I Need to Know about Connecticut Prenuptial Agreements?

This Week’s Blog by Sarah E. Murray

How Do I know if a Prenuptial Agreement is Right for Me?

In general terms, a Prenuptial Agreement is a contract that two people sign prior to getting married.  Prenuptial Agreements can be appropriate in a variety of situations, including second marriages, marriages in which one or both parties wants to protect his or her premarital assets, marriages in which a party has an interest (or will acquire an interest during the marriage) in a closely held business, including a family business, and marriages in which one or both parties anticipates receiving a substantial inheritance during the marriage.

What Topics Are Addressed in a Connecticut Prenuptial Agreement?

A Prenuptial Agreement can be used to address each party’s rights and obligations with respect to property held by the other, whether acquired before or during the marriage, and each party’s rights to buy, sell, transfer, mortgage, encumber, dispose of, or otherwise control and manage property during the marriage.  Prenuptial Agreements address the disposition of property upon separation, divorce, and/or death and can be used either to establish the terms for or to eliminate spousal support in the event of a divorce.

Are There Other Topics Included in Connecticut Prenuptial Agreements? 

Parties can use a Prenuptial Agreement to provide for the ownership of life insurance policies, how the proceeds from life insurance policies will be disposed of upon a party’s death, and the rights of each party to the other party’s retirement plan.  Prenuptial Agreements will also state what state law will apply in enforcing or interpreting the agreement.

Are There Topics that Cannot be Addressed in a Connecticut Prenuptial Agreement?

Under Connecticut law, the right of a child to support cannot be adversely affected by a Prenuptial Agreement.  Additionally, any custody or visitation arrangements contracted to in a Prenuptial Agreement are subject to review and change by a Court at the time of a divorce.  In other words, while a couple can set forth child support and child custody terms in a Prenuptial Agreement, there is no guarantee that those terms would be upheld by a Court in the event of a divorce.

When is a Connecticut Prenuptial Agreement Enforced?  

In some divorce cases, the parties agree at the time of the divorce to abide by the terms of the Prenuptial Agreement.  In those relatively simple cases, the divorce judgment will incorporate the provisions of the Prenuptial Agreement and the parties can agree upon or have the Court decide any issues not set forth in their Prenuptial Agreement.

If the parties are unable to agree as to whether the Prenuptial Agreement will govern the terms of their divorce, the question of whether a Prenuptial Agreement is enforceable is decided during the divorce case, either as a preliminary matter or at the end of the case.

At Broder & Orland LLC, we frequently consult with clients who have questions about whether a Prenuptial Agreement would be right for them and we have significant experience representing clients who want to best protect themselves in the drafting and negotiation of a Prenuptial Agreement.

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.