- Family Law
- Dispute Resolution
By law, child custody arrangements are determined based on what is deemed to be in the best interests of the child.
Family Court Judges must consider a broad range of statutory factors when determining what is in a child’s best interests and their formulation of the related custody orders. Judges have an enormous amount of discretion in weighing and balancing statutory factors when forming their court orders, which sixteen (16) factors include:
(1) The temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) any relevant and material information obtained from the child, including the informed preferences of the child;
(4) the wishes of the child’s parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child;
(6) the 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;
(7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
(8) the ability of each parent to be actively involved in the life of the child;
(9) the child’s adjustment to his or her home, school and community environments;
(10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household;
(11) the stability of the child’s existing or proposed residences, or both;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;
(13) the child’s cultural background;
(14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;
(15) whether the child or a sibling of the child has been abused or neglected; and
(16) whether the party satisfactorily completed participation in a parenting education program.
Family Court Judges tend to favor orders that allow both parents to co-parent, and both actively participate, but this does not always mean equally.
Parents can negotiate and enter into child custody arrangements and parenting plans by agreement. In most cases, far better results are achieved by parents who manage to negotiate a child custody agreement/parenting plan through compromise than to go to trial and have a family judge decide.
Child custody is a legal term that signifies the rights that each parent or one parent may have in regards to the guardianship of their children or child.
Generally, there are two (2) types of child custody:
Physical Child Custody
Legal Child Custody
Physical Child Custody
Physical custody refers to where a child will primarily live and which parent will care for them on a daily basis.
Joint or shared custody is most common in which the child or children may spend time living with both parents, but on terms and/or a schedule that is not always equally divided.
Legal Child Custody
Legal custody refers to a parent’s decision making authority/rights with respect to their child.
These “major” decisions typically revolve around education, healthcare, religion, and general upbringing. Some examples of decisions a parent with legal custody will be able to make the decision if they want their child to attend public or private school; if they want their child to be vaccinated; or, if they want their child to be involved in a religious group, etc.
There are two types of legal custody arrangements in Connecticut:
Joint Custody / Shared Custody
Joint child custody (a.k.a. “shared custody”) is the most common type of custody arrangement in Connecticut. This is when both parents share responsibilities for their child/children. This could mean both parents share responsibilities when it comes to physical custody–meaning a child goes back and forth between living with both parents; and/or the parents share legal custody–meaning the parents make joint decisions about their child/children with respect to things like healthcare, education, and religion.
Typically, when parents have joint physical custody they also have joint legal custody, however the inverse is not as consistently true, meaning–joint legal custody awards do not always correlate or align as directly with shared physical custody.
Sole legal custody is when one parent is awarded full responsibility for making all major parenting decisions about a child’s life and the other parent is allowed very minimal or no involvement. Sole physical and/or sole legal custody is generally awarded when one parent is deemed unfit typically for drug, financial, alcohol, or abuse issues. Courts are not fond of granting sole custody; Courts ideally want both parents to be involved in each child’s life. Even if sole legal custody is awarded to one parent, it is likely that the other parent will receive some sort of visitation rights. Demonstrating to a family law judge that sole custody will be in the best interests of a child is a very high bar to clear.
Under Connecticut Law, there is no fixed age at which a family court judge must consider a child’s preferences with respect to where they live or with whom they live (a.k.a. physical custody). The law simply says that a child must be “of sufficient age” for their opinions to be considered. This “sufficient age” is typically around 12 or 13 years old, but depends on the maturity of the child. Courts generally disregard the opinions and preferences of children under 5 years old.
It is always important to remember that family court judges have complete discretion in determining if a child’s preference is relevant to the custody decision and, in turn, how much weight to put behind the child’s preference, if any at all. If a judge does consider the child’s preference, they will most likely consider the child’s maturity and reasoning when factoring it and balancing their decision. That said, a judge could also disregard a child’s preference if granting custody to the preferred parent would not be in that child’s best interest.
Yes, a custody order may be modified upon a finding of a “material change in circumstances,” while a parenting plan may be modified upon a finding that the current plan is no longer in the best interests of the child or children.
Every situation is unique, but examples of situations that may support a successful application for a modification of child custody are:
If the facts of your situation meet the standard of a “material change in circumstances” with respect to your child custody matter, you may decide to file a Motion for Modification. A hearing is then scheduled, the matter is heard, evidence is presented, and a family law judge takes the motion under consideration and issues revised orders.
Upon a finding of a “material change in circumstances” warranting a modification, the judge uses the same standard when deciding the motion to modify as was used in the original determination of your custody orders: “what is the best interest of the child” for your Motion to Modify.
A child custody agreement that has been approved by a Connecticut family law judge and entered as an order of the court is legally binding on the parties involved.
If a parent violates a court-ordered or agreed-upon parenting plan, they run the risk of being held in contempt of court upon a finding of a willful violation of a clear court order. The parent who violates the order can face serious consequences. Always remember, the Court’s primary directive is to determine and protect the best interests of the child.
With all that said, there are three ways to deal with and pursue enforce a Child Custody or Visitation Order:
COMPROMISE AND COMMON SENSE (negotiation with the help of a skilled family lawyer and perhaps some form of limited scope mediation or similar negotiation process)
MOTION TO ENFORCE / MOTION FOR CONTEMPT (which seeks to enforce the order and/or hold the other parent in contempt of court for violating the court order)
If you have serious enforcement concerns regarding Child Custody and/or Visitation, it is highly recommended that you contact an experienced family law firm like Needle|Cuda sooner rather than later to help you assess your situation and put an appropriate strategy in place to prevent your situation from unnecessarily escalating.
Shared custody and visitation is difficult, even in the best of circumstances. A little extra patience and common sense goes a long way. Things happen even with the best of intentions. You may want to think twice before escalating what might be an isolated incident, a reasonable deviation from your plan, or simple mix-up into a major battle.
It may be difficult, but always try to be patient and flexible. Things get very serious, expensive and can’t be un-done after you involve the police and/or formally escalate your enforcement issue with the courts.
If you need a buffer or intermediary as a go-between for you and the other parent, an experienced divorce and family law attorney can be very helpful and persuasive in negotiating a private settlement that brings your situation back into alignment and protects your parental rights as well as the best interests of your child(ren).
Every situation has its limits and only you will know when you have objectively reached yours. So when it is time to act, here are a few things to consider:
Examples of serious custody or visitation violations that may rise to a level that a family judge deems are not in the best interest of the child:
Document and Gather Evidence of Violations
Keep a written record of all violations in a calendar or journal. Include dates, times, and detailed descriptions of each problem, event, problematic interaction. Timestamped social media posts, pictures, and texts can also be helpful. Keep copies of any police reports or other papers, including copies of emails and/or phone records.
In practice, police officers are reluctant to get involved in family matters unless the custody or visitation violation rises to the level of a crime like child abuse, abduction, or kidnapping. What happens when you call the police will vary greatly from town to town and which officers show up at your house.
When it comes to the health and safety of your kids, you should always trust your instincts. If by way of example, you have legitimate concerns for their well-being in the care of the other parent based on some prior knowledge or statement, you should call the police.
Depending on the situation, the officer may simply direct you back to court, but if you end up in front of a judge, you will at least have the police report as evidence to help support your case.
MOTION TO ENFORCE / MOTION FOR CONTEMPT
You and your spouse are duty bound to comply with any and all court orders including, but not limited to: scheduled visitations, child support payments, alimony payments, tuition payments, medical reimbursements, document and information disclosures (e.g. tax filings and bonus payments). Any person failing to comply with a court order can be charged with contempt.
A person found guilty of contempt can be ordered to comply with the court orders, pay fines, face wage garnishment, or even receive jail time.
So when compromise and all avenues for a private settlement (e.g. negotiation, mediation, etc.) have failed and it’s time to consider formal action before the court, there are two main options:
Motion for Contempt – A Motion for Contempt can be a very serious charge. A finding of contempt can come with jail time, fines, sanctions, attorneys’ fees and costs.
Motion to Enforce – A Motion to Enforce is a request to the court to require someone else to take a certain action per the orders of the court. After a divorce judgment, it is most often used to require a party to that judgment to follow the court’s orders.
CHOOSING THE RIGHT ENFORCEMENT STRATEGY
While the option to file a Motion for Contempt or Motion to Enforce is available and Needle | Cuda can aggressively pursue these options at any time, it may not always be the best or most efficient way to solve your problem. It is important to consider that some judges shy away from contempt rulings. Or, it may be prudent in the bigger picture to avoid the potentially serious penalties for the other parent.
No, under Connecticut law both parents have the legal right to seek custody and/or visitation time with their child(ren). Although many people may presume that the mother has a better chance of being awarded custody if there is a disagreement/litigation, this is not the case in Connecticut. When fighting for custody both parents start on the same ground and have equal rights. The courts focus on the best interests of the child, not the gender of the parents.
With respect to parents, both the mother and the father of a child have a legal right to seek custody of the child and/or visitation time with the child. When a child custody case begins both the mother and the father are treated equally and have equal rights.
More broadly, anyone who was involved in the child’s life can petition the court for visitation rights in Connecticut. So, technically speaking someone like a stepparent or aunt could petition for visitation rights because the court recognizes they might have had a significant relationship with the child. Typically, this is extremely difficult task as the court will want to see evidence and a relationship history that demonstrates the following:
Do Grandparents Have Visitation Rights?
Yes, grandparents can petition the courts for visitation rights just as any third party. The courts will use the same standard of the child’s best interest to determine if the grandparents should have visitation rights. In order to be awarded visitation, the grandparents must also convey to the court that they have a parent like relationship with the child and that depriving them of visitation rights would significantly affect the child.
A temporary custody order is a legal decision by the court to award physical and legal custody of a minor child to an adult who may or may not be the child’s legal parent for a set period of time. Temporary custody orders do not turn final and are only temporary. These may be ordered by the court pendent lite (during the case), or following a granting of an ex parte application (until the hearing on the ex parte application is heard).
Temporary custody orders do not become final orders without a new order from a judge. However, once a temporary custody order is put in place, it lasts until a date stated in the order, or until a judge makes a new custody ruling.
Disputes involving contested custody arrangements, visitation, and parenting plans that are part of a pending divorce action can take a long time to fully resolve in court — until final orders are issued by the court.
During the pendency of divorce actions, temporary orders are routinely issued family court judges as an interim step to ensure that sufficient structure, process, and rules are in place that protect the best interests of the child(ren).
Temporary custody orders are also useful in situations where one parent is unfit (for reasons such as substance abuse, sexual abuse, mental illness, and/or violence). If evidence can be presented that demonstrates your child’s safety or well-being is in jeopardy, then pursuing a temporary custody order is an appropriate course of action to protect the best interests of your child.
If or when DCF gets involved in your case and believes your child is in danger and neglected, they too can ask the court for permission to remove your child from your or a parent’s custody. Often, DCF will ask for temporary custody. A judge will decide whether to give DCF permission to keep your child until there is a hearing.
An emergency ex parte application for custody is an application that is filed with the court asking for an order to be issued without a full-hearing on the issue, based only on the representations included in an affidavit attached to the application. It is only used in extreme situations when imminent physical or psychological danger threatens the physical and/or emotional safety and welfare of a child or children. If the judge issues an emergency ex parte order based on the application, the judge will schedule a hearing where both parties have the opportunity to appear within 14 days and the other party must be served at least 5 days before that hearing.
Even if the application is denied, the judge will enter a hearing date for the underlying allegations and claims for relief sought in the ex parte application.
Emergency ex parte applications for custody can be filed in emergency situations when an immediate and present risk of physical danger or psychological harm to the child or children exists.
An applicant for emergency ex parte custody order may seek temporary legal and physical custody relief with a narrowly defined parenting schedule that is monitored and/or “court supervised.” Under certain conditions relief can include a temporary award of sole custody to the moving parent–meaning no parenting time at all and all decisions may be made by the parent with custody.
An applicant may also seek other forms of specific relief including, but not limited to:
In most cases judges rule on emergency ex parte applications for custody on the same day that they are filed. Written orders are immediately issued, which must be served on the other side within a prescribed period of time. The judge will then assign a date for the hearing on the ex parte application within fourteen (14) days. Even if the judge denies the ex-parte application, a court date will still be assigned for a hearing on the underlying claims for relief.