Tag: parenting plans

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.

Living Arrangements During a Divorce: Who Stays in the House?

This Week’s Blog by Lauren M. Healy

  • Connecticut law protects each party’s right to live in the martial home during a divorce.
  • You cannot deny your spouse continued use of the marital home without an agreement or Court order.
  • The Court has the authority to give exclusive use of the marital home to either party if warranted.
  • It usually does not harm your case if you voluntarily move out of the house.

Who Gets to Live in the Marital Home During a Divorce?

In Connecticut, both parties are entitled to live in the marital home during the divorce action, unless there is an agreement or Court order stipulating otherwise. If the parties cannot live together, but cannot agree on who should leave, the Court has the authority to order exclusive use of the family home to one party, regardless of how the property is titled. The decision of who lives in the house during the divorce may come down to two main factors: first, what is most practical for your family; and second, the family’s financial circumstances. Sometimes, divorcing couples opt for a “bird nesting” arrangement whereby the children stay in the marital home and the parents rotate in and out. One party leaves the marital home when it is the other party’s turn to reside there, and vice versa.

Can I Change the Locks on my House During the Divorce?

In Connecticut, there are automatic orders (Connecticut Practice Book §25-5) which provide that if you are living together with your spouse on the date that the divorce action is started, you may not deny him or her use of the residence. For this reason, it is always best to consult with an attorney prior to changing the locks on the marital home. 

Will it hurt my Case if I Move out of the Marital Home? 

Divorce can be a contentious, emotional time for families. You may want to live separately but are afraid that you will be accused of abandoning your family or you may be concerned that it will hurt your divorce case in some other way.

Under most circumstances, it does not hurt your divorce case to voluntarily move out of the marital home—specifically, if it is done in order to alleviate stress or tension within the home, especially when there are minor children involved.  In fact, Connecticut General Statutes § 46b-83 provide that if one of parent leaves the family home voluntarily during the case and leaving is in the best interests of the child, the Court may consider that fact in making or modifying custody orders.

How Do I Get a Court Order for Exclusive Occupancy?

If you believe that your circumstances warrant exclusive use of your marital residence, you can file a Motion for Exclusive Possession with the Court to request an order which prevents your spouse from living in the home during the divorce.  This type of Motion is typically only filed in extreme circumstances.

The attorneys at Broder & Orland LLC are experienced in securing exclusive possession for our clients, defending against such claims, and in the alternative, helping to devise living arrangements during the divorce that will meet our clients’ specific needs.

What is an Educational Support Order?

This Week’s Blog by Nicole M. DiGiose

Does the Court have the Authority to Order a Party to Contribute to a Child’s College Expenses? 

Yes.  Pursuant to General Statutes Section 46b-56c(a), the Court has jurisdiction to enter an order requiring one or both parents to provide support for a child to attend an institution of higher education or a private occupational school for the purpose of attaining a bachelor’s or other undergraduate degree, or other appropriate vocational instruction for a total of four full academic years.  

Are there any Prerequisites for the Court to Enter an Educational Support Order?

Yes.  The Court may not enter an educational support order unless the Court finds, as a matter of fact, that it is more likely than not that the parents would have provided support for a child’s higher education or private occupational school, had the family remained intact.  

What does the Court Consider in Determining Whether to Enter an Educational Support Order?

Pursuant to General Statutes Section 46b-56c(c), in determining whether to enter an educational support order, the Court shall consider all relevant circumstances, including: (1) the parents’ income, assets and other obligations, including obligations to other dependents; (2) the child’s need for support to attend an institution of higher education or private occupational school considering the child’s assets and the child’s ability to earn income; (3) the availability of financial aid from other sources, including grants and loans; (4) the reasonableness of the higher education to be funded considering the child’s academic record and the financial resources available; (5) the child’s preparation for, aptitude for and commitment to higher education; and (6) evidence, if any, of the institution of higher education or private occupational school the child would attend. 

What Expenses Qualify as “Educational Expenses?”

An educational support order may include support for any necessary educational expenses, including room, board, dues, tuition, fees, registration and application costs, books, and medical insurance.  

What is the Maximum Amount of an Educational Support Order?

An educational support order may not exceed the amount charged by the University of Connecticut for a full-time, in-state student at the time the child matriculates.  The “UConn cap” applies to the entire educational support order for both parents.

Could Parties Agree to Alternate Arrangements regarding Educational Support Orders?

Yes.  The “UConn cap” may be exceeded by the parties by agreement.

When can the Court enter an Educational Support Order?

The Court may enter an educational support order at the time of a decree of dissolution, legal separation, or annulment.  The Court may reserve jurisdiction to enter an educational support order at a later date.  This is usually done in cases of young children.  If the Court does not reserve jurisdiction to enter an educational support order at a later date, then no educational support order may be entered thereafter.  If the Court does reserve jurisdiction, a party may petition the Court to enter an educational support order at a later date.  

When do Educational Support Orders Terminate? 

An educational support order must terminate no later than a child’s attaining age twenty-three.

Could an Educational Support Order be entered for a Child’s Graduate School Expenses?

No, the Court does not have jurisdiction to enter an educational support order for a child’s graduate or postgraduate education beyond a bachelor’s degree.  However, parties may agree to be responsible for and share these expenses.

At Broder & Orland LLC we have extensive experience in addressing disputes related to a child’s post-secondary educational support throughout Fairfield County and Connecticut, whether the issue arises incident to a dissolution of marriage action or post-judgment.

Can I Get Exclusive Use of the Marital Residence During My Connecticut Divorce?

This Week’s Blog by Jaime S. Dursht

Yes.  Connecticut courts have the authority to award exclusive use and occupancy of the home  to either spouse while a divorce is pending, which means that one spouse can be ordered to vacate the home until further court order.  Connecticut General Statutes 46b-83(a) provides, “At any time after the return day of a complaint … [t]he court may also award exclusive use of the family home or any other dwelling unit which is available for use as a residence pendent lite to either of the parties as is just and equitable without regard to the respective interests of the parties in the property.”

What is the Procedure in Connecticut?

A motion is filed with the court which will be scheduled for hearing before a judge within a few weeks of filing. “Each motion for exclusive possession shall state the nature of the property, whether it is rental property or owned by the parties or one of them, the length of tenancy or ownership of each party, the current family members residing therein and the grounds upon which the moving party seeks exclusive possession.”  Connecticut  Practice Book § 25-25.

Does it Matter Which Party Has Title to the House?

No.  A court may award exclusive occupancy regardless of whose name the home is titled in.  In fact, ownership of a home is not necessary, and a court may order exclusive use of rental properties as well.

Are Specific Grounds Required?

There are no specific statutory grounds, however, the Practice Book requires the motion to state “the grounds upon which the moving party seeks exclusive possession.”  While a court will consider factors such as the nature of the relationship between the parties, the grounds must be more compelling than that of spouses not getting along.  The existence of physical and/or substance abuse for example, will be considered significant, especially if these conditions are taking place in the presence of minor children.

Does It Affect Who Has to Pay the Expenses While the Divorce is Pending?

Courts are reluctant to order the parties to pay for two residences if it is evident they cannot afford it, however, if the circumstances justify it, a court will grant the motion regardless of the financial situation.  While a Connecticut divorce is pending, there are Automatic Orders in effect which are intended to preserve the status quo as to the payment of household expenses, and courts may order the payment of ordinary household expenses from assets if necessary.

What Happens if There are Minor Children Involved?

A court may base its orders on what is in the best interests of the minor children, which often means that the children will stay in the marital home with the primary caregiver.  Depending on the circumstances, the court will also require the parties to work out a temporary schedule of appropriate parenting access.  Sometimes that may involve a schedule of “bird nesting” to keep the children in the marital home while the parents rotate occupancy of the home or part of the home.

The attorneys at Broder & Orland LLC, with offices in Westport and Greenwich, are very experienced with the issue of exclusive use and occupancy of the marital residence during a Connecticut divorce and with assisting clients in developing an appropriate plan to meet individual and family needs.

What is Legal Separation in Connecticut?

This Week’s blog by Lauren M. Healy

What is Legal Separation? 

Legal Separation is a lawsuit that is commenced by one spouse against the other, resulting in an enforceable court order that resolves issues such as custody, division of assets and liabilities and the payment of alimony and/or child support. Married couples who are separating and want to have a formal agreement on important issues have the option of filing for either Divorce or Legal Separation.

Is Legal Separation the same thing as Divorce?

No. Although Legal Separation and Divorce have many similarities, they are two different legal actions. The major difference between Divorce and Legal Separation is that when a Divorce is completed, the parties are free to remarry. When parties are legally separated, they are still legally married and unable to remarry.

Can you turn a Legal Separation into a Divorce? 

Yes. There are two ways to turn a Legal Separation into a Divorce. One option is to convert the action (from Legal Separation to Divorce) while the lawsuit is still pending. This requires filing a simple Motion with the Court, requesting that the action be converted before any orders are final.

It is also possible to wait until after the Legal Separation is finalized to convert the Legal Separation into a Divorce judgment. There is no time limit on requesting a divorce after Legal Separation. Sometimes parties live legally separated for years before getting divorced.

Why file for Legal Separation instead of Divorce?

The decision of whether to file for Legal Separation or Divorce is very personal. In some cases, for religious or other reasons, Divorce is not a suitable option. If a couple wants to live separate and apart physically or financially, without the finality of a Divorce, Legal Separation could be a better choice. Legal Separation can also be used as a stepping stone to Divorce. Since it is so easy to convert to a Divorce, sometimes the party commencing the action chooses to start with the softer concept of Legal Separation.

Also, a couple may choose to pursue Legal Separation if they prefer to be separated but can maintain or acquire benefits by remaining legally married, such as health insurance or social security benefits.

What are the Grounds for Legal Separation in Connecticut? 

In Connecticut, you need a reason, or grounds, to be legally separated. The grounds for Legal Separation are the same as for Divorce. Since Connecticut is a “no fault” state, it is not necessary for either party has to prove that the other caused the marriage to end. Instead, the parties can simply represent that the marriage has broken down irretrievably, with no hope of reconciliation.

Do I need a Lawyer for a Legal Separation?

Just as in a Divorce, parties are not required to have legal representation to obtain a Legal Separation. However, since major parenting and financial issues are negotiated and decided, including custody, assets, liabilities and support, it is advisable to obtain legal counsel in order to fully understand your rights and obligations pursuant to Connecticut law.

At Broder & Orland LLC we apply our experience and knowledge of the law to the specific circumstances of each case, in order to help our clients decide the best course of action when considering a Divorce or Legal Separation.

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.

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.

Should I Attempt To Negotiate the Terms of My Divorce On My Own With My Spouse While I Am Represented by Counsel?

This Week’s Blog by Carole T. Orland

  • During you divorce, conversations with your spouse may be contentious and uncomfortable.
  • If you are in inherently uneven bargaining positions, it will often not be productive to negotiate the case with your spouse on your own.
  • Any communications with your spouse during your divorce should be consistent with the message and strategy you have discussed with your attorney.
  • Four-way meetings may lead to positive results.

There are divorce lawyers who may instruct you not to have any conversations with your spouse on your own once you have legal representation. Our office does not subscribe to that approach in most instances. If you and your spouse, despite the fact that you are divorcing, are able to conduct civil and meaningful conversations, it may be productive to do so. We would qualify that by saying that any such communications should be consistent with the message and strategy you and your lawyer have agreed upon. It is not helpful to your case to have your lawyer proceeding down one path, only to have you travel down another.

One area that divorcing couples are often able to productively discuss on their own is a parenting arrangement for their children. It makes sense. Certainly parents understand their children’s needs and emotions far better than any lawyer in the case and almost always better than any judge who would preside at trial. So, working out arrangements for your children is an area of commonality between you and your spouse. It also can have a secondary benefit of getting the divorce on the right track. Trust in each other to come to an agreement about your children can spill over to the financial aspects of your divorce in a positive way.

Nevertheless, conversations with your spouse about a financial settlement can be tricky. If one spouse is more facile with finances, taxes, and math, it will likely result in an uneven bargaining position. In these situations, it is often better to have lawyers do the negotiating, sometimes with input from an accountant and forensic expert, as necessary. You may still talk to your spouse to arrive at general ideas about settlement, but getting into the granular issues if the bargaining positions are disparate, is likely not going to be productive.

If talking on your own to your spouse about settlement is not comfortable or inadvisable for the reasons stated above, another option might be a four-way meeting, where the parties and their lawyers meet outside of court and attempt to work through the issues. Often the case can be resolved at the conclusion of the meeting. But at the very least, it will be clear as to what the areas of agreement are and the issues about which the Parties agree to disagree. The result is an agreed upon agenda that the Parties with counsel can continue to work on, with the goal of ultimate settlement.

Our lawyers at Broder & Orland LLC are experienced in guiding our clients through negotiations during their divorce. We have an excellent handle on when discussions between the Parties will be productive, when negotiations should be conducted lawyer-to-lawyer, and when four-way meetings may lead to positive results.

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.