Rubenstein v. Rubenstein, 48 Conn. Sup. 492 (CT 4/21/2004)
| Decision Date | 21 April 2004 |
| Docket Number | File No. FA-96 0537581S. |
| Citation | 48 Conn. Sup. 492 |
| Court | Connecticut Supreme Court |
| Parties | JEFFREY D. RUBENSTEIN <I>v.</I> BONNIE M. RUBENSTEIN. |
Michael R. Hasse & Associates, for the plaintiff.
Gilbert Shasha and Cloutier & Eddy, for the defendant.
Lori Hellum, for the minor child.
Susan Connolly, guardian ad litem, for the minor child.
Asselin & Connolly, for Susan Connolly.
Gregory P. Carnese, for Sam Rubenstein et al.
Peck & O'Brien, for Richard Rubenstein et al.
Seifert & Hogan, for Elaine Dembroff.
This matter comes before the court as part of a prolonged legal battle brought between the parties in our state's family, juvenile and criminal trial courts. The defendant mother, Bonnie M. Rubenstein, removed Randy, her minor child, from the state on or about September 6, 1997 in contravention of a pendente lite custody order. On December 5, 1997, the court, Austin, J., entered a judgment dissolving the marriage and awarding custody of the minor child to the plaintiff father, Jeffrey D. Rubenstein. The defendant, who failed to come to court to defend her position concerning the alleged conduct of the plaintiff, was granted no visitation rights. She remained in hiding with the minor child in various parts of the world until July 25, 2002, when she was taken into custody by federal law enforcement personnel in the state of Florida.
The minor child, whose date of birth is November 9, 1993, was returned to Connecticut accompanied by the guardian ad litem and law enforcement personnel in July, 2002. The Superior Court, Juvenile Division, exercised jurisdiction over the minor child pursuant to an order of temporary custody in favor of the department of children and family services issued by Handy, J., on July 26, 2002. The Juvenile Court later granted custody/ guardianship to the paternal aunt and uncle, Richard and Jeanne Rubenstein, by order of Driscoll, J., on August 8, 2002. The plaintiff was granted restricted access to the minor child in the juvenile and family courts. The custodial arrangement established by order of the Juvenile Court was necessary due to the alienation of the minor child from the plaintiff caused by allegations by the defendant that the minor child was sexually abused by the plaintiff.
The minor child is represented by legal counsel and a guardian ad litem both in the juvenile and family courts. The minor child continues in counseling while he visits with the plaintiff pursuant to access orders established in the Juvenile Court proceeding. That access has expanded from daytime to overnight access with the plaintiff.
The defendant presently enjoys visitation with the minor child pursuant to an order entered after a stipulation of the parties filed on September 12, 2003 and approved by this court. That stipulation provides in part:
The defendant seeks to modify this visitation order by a motion dated October 4, 2003. She claims that she has successfully exercised her supervised visitation. She further contends that it is in the best interest of the minor child that her visitation be increased and unsupervised. The guardian ad litem, through her attorney, commenced a deposition of the defendant on November 26, 2003. During the deposition, the defendant exercised her fifth amendment privilege and refused to answer any questions pertaining to the time period from September 9, 1997 through August 13, 2002. After the court denied the defendant's motion to disqualify the guardian ad litem, she filed another notice of deposition dated December 18, 2003. The defendant, through counsel, pursuant to Practice Book § 13-5, filed a motion for a protective order as amended on December 19, 2003. The defendant, up to and including the hearing held on March 31, 2004, continues to invoke her fifth amendment privilege not to testify as to the five year time period due to potential federal prosecution.1
The guardian ad litem, through her counsel, filed a motion requesting the court to enter an order precluding the defendant from pursuing any post-judgment motions seeking any relief and offering any testimony, witnesses or exhibits in this matter.2 The paternal aunt and uncle, through counsel, filed a motion to adopt (post-judgment) the guardian ad litem's motion to preclude with supporting memorandum and attachment dated January 19, 2004. The plaintiff, through counsel, also filed a motion to adopt (post-judgment) on January 27, 2004. Attorney Lori Hellum, counsel for the minor child, orally moved to adopt the guardian ad litem's motion to preclude at the hearing held on March 31, 2004.
The issue in the present case is whether the trial court should dismiss, stay, or defer action on the defendant's motion to modify visitation based upon her refusal to testify based upon her invocation of the fifth amendment.
The guardian ad litem, together with counsel for the minor child and the custodians (paternal aunt and uncle), contend that the defendant should be precluded from proceeding on her motion to modify visitation dated October 24, 2003. The defendant, from on or about September 6, 1997 through July 25, 2002, had removed her minor son from the care and custody of the plaintiff, who was entrusted with the minor child through court order. The minor child was removed from the jurisdiction of Connecticut without a hearing based upon the unilateral actions of the defendant.
As a consequence of her actions, the defendant is the only person who has knowledge and/or information relative to the facts and circumstances regarding the minor child's experiences and development during this substantial period of time. The opposing parties, together with the guardian ad litem, have been prevented from obtaining any information concerning the whereabouts of the minor child, medical treatment, education, psychological condition and/or treatment, and the like, since the minor child's illegal removal from the custody of the plaintiff and return to Connecticut. The defendant bears the burden to prove that a material change in circumstances has occurred with the best interest of the minor child to be the ultimate test in modifying post-judgment access and/or visitation. Walshon v. Walshon, 42 Conn. App. 651, 657, 681 A.2d 376 (1996); Brubeck v. Burns-Brubeck, 42 Conn. App. 583, 585, 680 A.2d 327 (1996).
The defendant's invocation of her fifth amendment privilege to potential criminal prosecution in the federal and/or state courts is a right recognized in our federal and/or state constitution. The fifth amendment privilege against self-incrimination "not only protects the individual against being voluntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 74, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973); Olin Corp. v. Castells, 180 Conn. 49, 53, 428 A.2d 319 (1980). The opposing parties contend, however, that the fifth amendment privilege cannot be used in a manner that prohibits them from obtaining any information for the five year period concerning the mental and physical health, safety, welfare, and the like, of the minor child who is at the center of the present controversy.3
The defendant contends that her right to invoke the fifth amendment should not preclude her ability to prosecute a motion to modify visitation even though she refuses to divulge information for the five year period of her minor child's life. The defendant contends that the issue of preclusion should be left to the trial judge who hears the motion. She claims that the trial judge should be left with the task of determining whether adverse inferences should be drawn upon the refusal of the defendant to answer questions concerning custody or access. She further argues, through counsel, that she would be prejudiced in pursuing her claims to see the minor child on an increased and unsupervised basis if the court were to dismiss her motion or stay prosecution thereof.
The court is left with the task of determining what order, if any, is required in balancing the interests of the parties in the civil case involving the life of a minor child, who is a victim of this dispute.
The present controversy deals with the ability of the guardian ad litem, the counsel for the minor child, the plaintiff and the custodians, to obtain discovery. Practice Book § 13-14, as amended, provides the court with various sanctions for failure to answer interrogatories, produce nonprivileged documents and/or testify at a deposition. These remedies...
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