Fish v. Fish, 17500.

CourtSupreme Court of Connecticut
Citation939 A.2d 1040,285 Conn. 24
Decision Date15 January 2008
Docket NumberNo. 17500.,17500.
PartiesPaula J. FISH v. Andrew J. FISH, Jr.
939 A.2d 1040
285 Conn. 24
Paula J. FISH
Andrew J. FISH, Jr.
No. 17500.
Supreme Court of Connecticut.
Argued September 18, 2006.
Decided January 15, 2008.

[939 A.2d 1042]

Louis Kiefer, Hartford, for the appellant (defendant).

Robert J. Kor, with whom was Emily J. Moskowitz, West Hartford, for the minor child.

Campbell D. Barrett, Steven R. Deambo, Hartford and Justine Rakich-Kelly, filed a brief for the Children's Law Center as amicus curiae.


[939 A.2d 1043]


285 Conn. 27

In this postdissolution child custody proceeding, the issue before the court is whether a third party1 must satisfy the jurisdictional pleading requirements and burden of persuasion articulated in. Roth v. Weston, 259 Conn. 202, 234-35, 789 A.2d 431 (2002), when seeking the custody of a minor child over the objection of a fit parent.2 The defendant, Andrew J. Fish, Jr., appeals from the judgment of the Appellate Court, which affirmed the order of the trial court modifying the original custody order3 by awarding joint custody to the plaintiff, Paula J. Fish,4 and the child's paternal aunt, intervenor Barbara Husaluk, and directing that the child's primary residence be with Husaluk in Aspen, Colorado. The defendant claims that the trial court lacked jurisdiction to grant Husaluk's motion to intervene and improperly awarded her custody because she failed to allege and prove by clear and convincing evidence the facts required by Roth for third party visitation. These facts include a relationship with the child akin to that of a parent and real and substantial emotional harm analogous, to the harm required to prove that a child is "neglected, uncared-for or dependent"

285 Conn. 28

under the temporary custody and neglect statutes.5 General Statutes § 46b-129; see also General Statutes § 46b-120; Roth v. Weston, supra, at 234-35, 789 A.2d 431. We conclude that the pleading requirements and burden of proof that we articulated in Roth are not constitutionally mandated in third party custody proceedings, which present issues that are different from those raised in visitation proceedings. We also conclude, however, that the trial court improperly failed to apply a standard of harm more stringent than the "best interests of the child" when it granted Husaluk's motion to intervene and awarded her custody over the opposition of the defendant. Accordingly, we reverse in part6 the judgment of the Appellate Court.

939 A.2d 1044

The following facts are set forth in the opinion of the Appellate Court. "The parties7 were married on June 21, 1985, and a child was born of the marriage in 1989.8

285 Conn. 29

The marriage was dissolved on March 5, 1996, after which the parties shared joint custody of the child with an evenly divided parenting arrangement. There have been frequent contentious disputes with respect to the child's educational placement and the payment of tuition and child support. In June, 2001, a guardian ad litem was appointed for the child, and she continues to serve in that capacity as well as serving as the child's attorney since December, 2002.

"In May, 2002, [when the parties' daughter was thirteen years old] the defendant ... [filed] a motion to modify custody in which he sought sole custody of the child with supervised visitation by the plaintiff. The court entered orders for a custody evaluation and ordered that the child live for the remainder of the school year with her maternal aunt, Pamela Martinsen, who lives in Connecticut. The court also ordered that the child spend the summer of 2002 in Aspen, Colorado, with her paternal aunt, Husaluk. In early December, 2002, there was another flurry of activity involving custody and visitation. The court ordered the temporary placement of the child with Martinsen and unsupervised weekend visitation by the parties on rotating weekends. Four days later, following an emergency request by the guardian ad litem, the court modified the visitation order to reflect that the child could elect the extent and the circumstances of her visitation with the defendant.

"Trial in this matter began on December 13, 2002, and continued on March 3, April 21, May 12, 19 and 29, and July 8, 2003. During the course of the trial, the guardian ad litem recommended that custody and placement of the child with Husaluk in Aspen, Colorado, would be in the child's best interest. The plaintiff, who had a double mastectomy and was undergoing chemotherapy to treat her breast cancer throughout the trial, agreed with the guardian ad litem's proposed orders. Both Husaluk and Martinsen filed motions to

285 Conn. 30

intervene during the course of the trial,9 which the court granted. Following trial, the court ordered, inter alia, that Husaluk and the plaintiff share joint custody of the child, with the child's primary residence [to be] in Aspen, Colorado, with Husaluk during her high school years, which were about to commence. The court ordered visitation with each of the parties during school vacations ... but specifically gave the child the choice of

939 A.2d 1045

whether to spend overnight visits with the defendant. The court ordered that the guardian ad litem remain appointed to the child for four years `should any issues arise....'

"With respect to the custody of the child and its reasons for awarding joint custody to the plaintiff and Husaluk, the court made exhaustive findings of fact, which we excerpt and summarize from its August 1, 2003 memorandum of decision. Since the dissolution of the parties' marriage when the child was four years old, she has been the subject of an intense battle between the two parents over their ownership rights in her. She has, by her own account, constantly been "put in the middle," has been incessantly grilled by each parent after time spent with the other and has been bombarded by what she calls "guilt bombs" from each parent.'

"The court found that both parties had put their own interests before the child's well-being. In addition, the court found that the defendant had failed to provide a clean and appropriate home for the child, demonstrated

285 Conn. 31

inappropriate behavior of a sexual nature in the child's presence, kept a dangerous dog in his home and, in sum, had emotionally neglected the child. The court stated: `In the plaintiff's home, [the child] has had to endure her mother's attempts to make her feel guilty over the time spent at the defendant's home. In the defendant's home, she has had to deal with her father's incessant attempts to get her to his side. At his house, she also has been exposed to a filthy and unkempt environment, with multiple cats, cat feces and urine odors throughout the home.'

"The court also found that there was a history of conflict between the child and the defendant, and a history of inappropriate behavior by the defendant toward the child. For example, the court credited the child's testimony that the defendant walked around the house with an open bathrobe exposing his genitals in her presence and that he joked about going to a nudist colony with her. The defendant also made other inappropriate and suggestive comments, including once suggesting at a mall that she wear a `see-through outfit.' The child also testified that the defendant, when angered, lost control of himself entirely, striking himself and running up and down stairs. She also testified that the defendant drank wine almost every day and that alcohol rendered his moods unpredictable. The child was adamant in her desire not to stay at the defendant's house overnight and expressed no desire to live with hint

"The court also found that after living with Martinsen and, later, Husaluk, the child had been away from her parents' battles and had seen how other people live in relative peace and in a supportive and nurturing environment. Those experiences increased the child's yearning for stability and calm in her family life, which she never had enjoyed with her parents. The court noted that, `[m]ost compelling, at one point during her testimony,

285 Conn. 32

the child asked the court to please emancipate her.' The child's aunts, Martinsen and Husaluk, impressed the court as loving and nurturing women who have helped the child `develop a voice for herself,' which she had lacked while in her parents' care. Martinsen, Husaluk, the plaintiff, the child and the guardian ad litem agreed that it was in the child's best interest that she live with Husaluk in Aspen. While in Aspen the previous summer, the child thrived, working at the Husaluk family business, participating in sports and making new friends. The defendant, in contrast to the child's aunts, refused to pay for the child's airplane ticket for her trip home because the child had refused to stay overnight at his house. Husaluk paid for the ticket.

939 A.2d 1046

"The court credited the testimony of John Herd, a teacher and administrator at the child's school in Connecticut, who testified that after returning from Aspen, the child's emotional state and the quality of her work in school improved. James Black, a child and adolescent psychiatrist who conducted an evaluation of the child and the parties, also recommended that the child return to Aspen to reside with Husaluk. Black testified that moving to Aspen would be the only thing that could insulate the child from the conflict that the parties have continued to wage and that, in all of his years of practice, he never had recommended sending a child away from her parents. Black recommended that it would be better for the child's development for her to stay with Husaluk with joint custody with the plaintiff than for her to attend a boarding school or to enter foster care, each of which the defendant had suggested.

"The court concluded that `[i]t is clear ... that there exists a deep antagonism between the two parents that has little to do with [the child], which has caused them to place...

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