Connecticut Judicial Branch Law Libraries
Copyright © 2001-2008, Judicial Branch, State of Connecticut. All rights reserved.
Child Custody
Actions in Connecticut
A Guide to Resources in the Law Library
· “‘Joint Custody’ means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.” Conn. Gen. Stat. § 46b-56a(a).
· “Shared physical custody” means a situation in which each parent exercises physical care and control of the child for periods substantially in excess of a normal visitation schedule. An equal sharing of physical care and control of the child is not required for a finding of shared physical custody.” Conn. Agencies Regs. § 46b-215a-1(22) Child Support and Arrearage Guidelines (eff. August 1, 2005).
· “Split custody” means a situation in which there is more than one child in common and each parent is the custodial parent of at least one of the children..” Conn. Agencies Regs. § 46b-215a-1(23) Child Support and Arrearage Guidelines (eff. August 1, 2005).
· Temporary custody: “Commitment of child or youth. Petition for neglected, uncared-for, dependent child or youth. Hearing re temporary custody, order to appear or petition. Review of permanency plan. Cost of care and maintenance of child or youth; reimbursement. Revocation of commitment. Applicability of provisions re placement of child from another state and Interstate Compact on the Placement of Children.” CONN. GEN. STATS. § 46b-129 (2008). See Chapter 4 of volume 1. Juvenile Law in Connecticut.
· Child of the marriage: “ . . . the meaning of that concept, in the context of a marital dissolution case, is limited to a child conceived by both parties, a child adopted by both parties, a child born to the wife and adopted by the husband, a child conceived by the husband and adopted by the wife, and a child born to the wife and conceived through artificial insemination by a donor pursuant to §§ 45a-771 through 45a-779.” Doe v. Doe, 244 Conn. 403, 435 (1998).
· “The child of the marriage and the parent of the child are two sides of the same coin... Thus, it confines the meaning of parentage to a child conceived by both parties, or to a child who either had been adopted by both parties or was a natural child of one party who had been adopted by the other.” Doe v. Doe, 244 Conn 403, 439 (1998).
· LEGISLATIVE HISTORY: “Our statutes providing for awards of joint custody are modeled after the California statutes on the same subject. See remarks of Representative Robert Farr, 24 H. Proc., Pt. 20, 1981 Sess., pp. 6769-70. General Statutes 46b-56a(a) defines joint custody but does not do so in the same terms as the California statutes. Since our statute was intended to track California's statute, we interpret our definition as including joint legal custody, meaning joint decision making, and joint physical custody, meaning a sharing of continued contact with both parents. Further, joint physical custody is severable from joint legal custody.” Emerick v. Emerick, 5 Conn. App. 649, 656-657, 502 A.2d 933 (1985).
· Third Party: “The term ‘third party’ refers to any private individual other than a parent of the child, as distinguished from the state.” Fish v. Fish, 285 Conn. 24, 27, fn 1 (2008).
Sections in this chapter:
§ 2. Third Party Custody Actions
§ 3. Temporary or Pendente Lite Custody Orders
§ 5. Modification of Child Custody
§ 6. Habeas Corpus Custody Proceedings
§ 7. Writ of Ne Exeat in Child Custody Actions
§ 8. Out of state child custody orders
Tables in this chapter:
Table 1. Statutes Relating to Custody Issues
Table 2. New Factors Court May Consider When Awarding Custody
Table 3. Connecticut Legislative Histories in the Courts
Table 4. Excerpt from Official Legislative History of Conn. Gen. Stats. § 46b-61
Table 5. Custody Statutes with case text
Table 9. History of the Writ of Ne Exeat
Table 10. Uniform Child Custody Jurisdiction and Enforcement Act
Figure in this chapter
Web sites:
http://www.larcc.org/pamphlets/children_family.htm
http://www.law.cornell.edu/topics/child_custody.html
http://www.nolo.com/encyclopedia/div_ency.html#Subtopic82
http://www.findlaw.com/01topics/15family/sites.html
Treated Elsewhere:
· Child Abuse and Neglect in Connecticut
· Grandparents’ Rights in Connecticut
A Guide to Resources in the Law Library
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SCOPE: |
Bibliographic resources relating to child custody actions in Connecticut including:
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SEE ALSO: |
Best Interest of the Child Standard in Connecticut
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DEFINITIONS: |
· U.S. Supreme Court: “The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L.Ed. 49 (2000). · “Connecticut courts likewise have recognized the constitutionally protected right of parents to raise and care for their children . . . . When legislation affects a fundamental constitutional right, it must be strictly scrutinized.” Fish v. Fish, 285 Conn. 24, 41 (2008). (emphasis added). · Standing Requirement: “Where fundamental rights are implicated, such as in the present case, standing serves a function beyond a mere jurisdictional prerequisite. It also ensures that the statutory scheme is narrowly tailored so that a person's personal affairs are not needlessly intruded upon and interrupted by the trauma of litigation.” Roth v. Weston, 259 Conn. 202, 219, 789 A.2d 431 (2002). · Third party or nonparent custody: “We recognize that, in many households, grandparents, as well as people who have no biological relationship with a child, undertake duties of a parental nature and that states have sought to ensure the welfare of children by protecting those relationships.” Ibid., p. 43 · Parent-like relationship: “Proof of the nature of a parent-like relationship between a person seeking visitation and the child would provide the jurisdictional safeguard necessary to prevent families from having to defend against unjustified petitions for visitation. Accordingly, any third party, including a grandparent or a great-grandparent, seeking visitation must allege and establish a parent-like relationship as a jurisdictional threshold in order both to pass constitutional muster and to be consistent with the legislative intent.” Roth v. Weston, 259 Conn. 202, 221-222, 789 A.2d 431 (2002) · “Where the dispute is between a fit parent and a private third party, however, both parties do not begin on equal footing in respect to rights to ‘care, custody, and control’ of the children. The parent is asserting a fundamental constitutional right. The third party is not. A private third party has no fundamental constitutional right to raise the children of others. Generally, absent a constitutional statute, the non-governmental third party has no rights, constitutional or otherwise, to raise someone else's child.” McDermott v. Dougherty, 385 Md. 320, 353-354, 869 A.2d 751 (2005). Cited in Fish v. Fish, 285 Conn. 24, 45 (2008). · Standard of Harm: “the harm alleged in a third party custody petition arises from the fundamental nature of the parent-child relationship, which may be emotionally, psychologically or physically damaging to the child. Consequently, in light of the fact that a third party custody petition directly challenges the overall competence of the parent to care for the child, the standard employed to protect the liberty interest of the parent must be more flexible and responsive to the child’s welfare than the standard applied in visitation cases, in which the underlying parent-child relationship is not contested.” Ibid., p. 47. Third Party Custody Actions
· Under Conn. Statute § 46b-56(a): “in cases in which a third party seeks to intervene in a custody proceeding brought pursuant to § 46b-56 (a), the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child's best interest.” Ibid. p. 89. · Under Conn. Statute § 46b-57:“In cases in which the trial court considers awarding custody to a third party who has not intervened pursuant to § 46b-57, the court may award custody to the third party provided that the record contains proof of . . . facts by a fair preponderance of the evidence . . . demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child's best interest.” Ibid. · Under Conn. Gen. Statute § 46b-56b. “The rebuttable presumption and the standard of harm articulated in the third party custody statute thus protect parental rights because they preclude the court from awarding custody on the basis of a purely subjective determination of the child's best interests or the judge's personal or lifestyle preferences. As a result, we conclude that the statute is facially constitutional.” Ibid. 46-47.
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STATUTES:
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CONN. GEN. STATS. (2008) Chapter 815j. Dissolution of marriage, legal separation and annulment · § 46b-56(a). Orders re custody, care, education, visitation and support of children. Best interests of the child. Access to records of minor child by noncustodial parent. Orders re therapy, counseling and drug or alcohol screening. · 46b-56c. Presumption re best interest of child to be in custody of parent · § 46b-57. Third party intervention re custody of minor children. Preference of child.
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COURT RULES
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Connecticut Practice Book (2008) · Chapter 25 Superior Court – Procedure in Family Matters § 25-3. Action for Custody of Minor Child § 25-5. Automatic Orders Upon Service of Complaint § 25-7. Pleadings in general; Amendments to complaint or application § 25-9. —Answer, Cross Complaint, Claims for Relief by Defendant § 25-24. Motions § 25-26. Modification of Custody, alimony or support § 25-28. Order of Notice § 25-30. Statements to be Filed [Financial Affidavits] § 25-34. Procedure for Short Calendar § 25-38. Judgment Files § 25-57. Affidavit concerning Children § 25-59. Closure of courtroom in family matters § 25-59A. Sealing files or limiting disclosure of documents in family matters § 25-60. Family Division Evaluations and Studies § 25-61. Family division § 25-62. Appointment of Guardian Ad Litem
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LEGISLATIVE HISTORY:
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· Public Acts 1974, No. 74-169, §12, 17 H.R. Proc., Pt. 6, 1974 Sess., p. 2805 [Conn. Gen. Stat. §46b-61] “...expands the jurisdiction of the superior court involving minor children and further states that the section can be used in controversies not only involving a husband and wife but in controversies involving parents of minor children or children if they are no longer married or were never married.”
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LEGISLATIVE REPORTS:
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· Lawrence K. Furbish, Child Custody in Marriage Dissolutions, Connecticut General Assembly, Office of Legislative Research Report No. 99-R-0791 (August 5, 1999).
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FORMS:
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· JD-FM-161. Custody / Visitation Application · JD-FM-158. Notice of Automatic Orders · JD-FM-164. Affidavit Concerning Children · JD-FM-164A. Addendum to Affidavit Concerning Children · JD-FM-183. Custody/Visitation Agreement · JD-FM-6. Financial Affidavit · JD-FM-176. Motion for Orders Before Judgment (Pendente Lite) · JD-FM-173. Motion for Contempt · JD-FM-174. Motion for Modification
Unofficial Forms· Temporary or Pendente Lite Orders Mary Ellen Wynn & Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer 106‑116 (1991) · Modification of Automatic Orders Barbara Kahn Stark et al., Friendly Divorce Guidebook For Connecticut 369 (1998). Motion for Relief From Automatic Orders Representing Yourself in a Custody Case: A How to Do it Yourself Booklet, Legal Assistance Resource Center of Connecticut, Sample 7 (2003). · Exparte Orders Mary Ellen Wynn & Ellen B. Lubell, Handbook of Forms for the Connecticut Family Lawyer 145-150 (1991)
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CASES: |
· Foster v. Foster, 84 Conn. App. 311, 320, 853 A.2d 588 (2004). “As the plaintiff has no constitutionally protected right to counsel in a custody or visitation proceeding, we decline to require the court, in every custody or visitation dispute confronted with a pro se litigant, to grant a continuance simply because the request is founded on a parent’s right to raise a child without undue interference. Although we recognize the value of family integrity, we acknowledge also that the state has an interest in the orderly presentation of cases and the ability of the court to manage its docket. We therefore conclude that, balancing all the interests, the court’s refusal to grant a continuance did not result in a constitutional deprivation.” · “It is well established that the court may require the parties and the child to undergo a psychiatric or psychological evaluation for the purpose of properly disposing of a family matter, in a modification of custody case, to assist in determining the best interest of the child.” Foster v. Foster, 84 Conn. App. 311, 323, 853 A.2d 588 (2004). · Knock v. Knock, 224 Conn. 776,788, 621 A.2d 267 (1993). “Section 46b-56(b) does not require that the trial court award custody to whomever the child wishes; it requires only that the court take the child’s wishes into consideration.” · Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980). “In this case, the evidence showed that the children were living in a familiar and stable environment with love and attention from their paternal grandparents; that the plaintiff at times had an adverse effect upon the children; and that the plaintiff’s psychological instability was such that it posed a threat to the children’s well-being.” · Stevens v. Leone, 35 Conn. Supp. 237, 239, 406 A.2d 402 (1979). “It seems obvious ... that it was the intent of the legislature to expand the jurisdiction of the Superior Court regarding custody issues from controversies arising out of a dissolution of marriage to controversies in which a child had been born without benefit of marriage.” · Rudolewicz v. Rudolewicz, Superior Court, judicial district of Hartford at New Britain, Docket No. 410812 (August 20, 1986), 1 C.S.C.R. 664, 666. 20 factors the court should consider when determining the “best interest of the child”
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WEST KEY NUMBERS:
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· Children Out-of-Wedlock #20.1– #20.13 #20.1 Rights of mother #20.2 Rights of father · Child Custody #20 – #88 Grounds and factors in general · Infants #19 #19.2 Matters considered in awarding custody #19.3 Determination of right to custody
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ENCYCLOPEDIAS: |
· 24A Am. Jur. 2d Divorce and Separation (1998). §§ 929-1000 § 929. Discretion of the court § 930. Rights and duties of custodian in raising child, generally §§ 931-938. Factors in determining custody §§ 939-943. Types of custody §§ 944-960. Jurisdiction §§ 961-967. Procedural aspects §§ 968-972. Custody orders or decree · 67A C.J.S. Parent and Child (2002). § 55. Rights as to custody, generally § 58. Rights of custody as between parents § 59. Right of custody as against third persons § 60. Contracts, agreements, or stipulations as to custody, generally § 61. Right of parent not consenting to transfer § 62. Revoking release of right to custody; return of custody §§ 63-93. Considerations affecting custody §§ 94-155. Proceedings to determine custody · George L. Blum, Annotation, Religion as Factor in Child Custody Cases, 124 ALR5th 203 (2004). · Robin Cheryl Miller, Annotation, Child Custody and Visitation Rights Arising From Same-Sex Relationship, 80 ALR5th 1 (2000). · Linda A. Francis, Annotation, Mental Health of Contesting Parent as Factor in Award of Child Custody, 53 ALR5th 375 (1997). · Elizabeth Trainor, Annotation, Initial Award or Denial of Child Custody to Homosexual or Lesbian Parent, 62 ALR5th 591 (1998). · Harriet Dinegar Milks, Annotation, Smoking as Factor in Child Custody and Visitation Cases, 36 ALR5th 377 (1996). · Danny R. Veilleux, Annotation, Age of Parent as Factor in Awarding Custody, 34 ALR5th 57 (1995). · Mary E. Taylor, Annotation, Parent’s Use of Drugs as a Factor in Award of Custody of Children, Visitation Rights, or Termination of Parental Rights, 20 ALR5th 534 (1994). · Claudia G. Catalano, Annotation, Child Custody and Visitation Rights of Person Infected with AIDS, 86 ALR4th 211 (1991). · 22 Am. Jur. Trials 347 Child custody litigation (1975). §§ 1-8. Introduction §§ 15-26. Fees and costs §§ 38-43. Use of expert witnesses and consultants §§ 44-54. Selecting the remedy §§ 55-57. Parties §§ 58-65. Jurisdiction §§ 66-68. Filing the proceeding §§ 69-80. Initial pleadings §§ 81, 82. Notice and service §§ 83-86. Pretrial motions §§ 87-101. Discovery §§ 102-106. Pretrial conference and settlement §§ 109-132. The trial or final custody hearing §§ 133-137. Final judgment or decree §§ 138-153. Post trial matters §§ 138, 139. Enforcement of local or foreign custody decree §§ 150, 151. Modification of custody decree §§ 152, 153. Appeal
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TEXTS & TREATISES:
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· 8 Arnold H. Rutkin et al., Connecticut Practice: Family Law and Practice with Forms (2000). Chapter 40. Jurisdiction to enter and enforce custody orders Chapter 41. Pendente lite custody and visitation Chapter 42. Child custody and visitation · Barbara Kahn Stark, Friendly Divorce Guidebook for Connecticut (2003). Chapter 8. Children · Law Practice Handbooks, Family Law Practice in Connecticut (1996). Chapter 10 (1996). Child Custody and Visitation (Jeffrey D. Ginzberg) §§ 10.1- 10.14. Jurisdiction § 10.7. Simultaneous proceeding in another State § 10.8. Forum inconveniens § 10.9. Jurisdiction declined by reason of reprehensive conduct § 10.10. Child custody affidavit § 10.11. Joinder of additional parties § 10.12. The force and effect of custody decrees § 10.13. Recognition of out of state custody decrees § 10.14. Procedure for handing custody proceedings involving out of state witnesses and out of state hearings · American Bar Association, Standards of Practice for Lawyers Representing Children in Custody Cases, reprinted in 37 Fam. L. Q. 131 (2003). (approved by the ABA House of Delegates, Aug. 2003) · American Law Institute, Principles of the Law of Family Dissolution: Analysis & Recommendations Chapter 2 (2002). The Allocation of Custodial and Decisionmaking Responsibility for Children · 2 Sandra Morgan Little, Child Custody & Visitation Law and Practice (2007). Chapter 10. Custody Disputes Between Parents · 5 Sandra Morgan Little, Child Custody & Visitation Law and Practice (2007). Chapter 30. Rights of Putative Fathers to Custody & Visitation · Mimi E. Lyster, Child Custody: Building Parenting Agreements that Work (3d ed., 1999).
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PAMPHLETS: |
· Legal Assistance Resource Center of Connecticut, Representing Yourself in a Custody Case: A How to Do it Yourself Booklet (2003). · Custody Disputes: What to Expect From the Family Relations Office. Published by the Legal Assistance Resource Center of Connecticut (2001).
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ARTICLES: |
· Linda D. Elrod, Raising the Bar for Lawyers Who Represent Children: ABA Standards of Practice for Custody Cases, 37 Fam. L. Q. 105 (2003). · Stephen J. Bahr et al., Trends in Child Custody Awards: Has the Removal of Maternal Preference Made a Difference? 28 Fam. L. Q. 247 (1994).
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COMPILER: |
· Lawrence Cheeseman, Supervising Law Librarian, Connecticut Judicial Branch, Law Library at Middletown, One Court Street, Middletown, CT 06457. (860) 343-6560.
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Table 1 Statutes Relating to Custody Issues
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Custody Related Issues Conn. Gen. Stats. (2008) |
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Paternity matters |
Chapter 319o. Department of Social Services § 17b-27. Voluntary acknowledgment of paternity program. Chapter 815y, Paternity Matters, §§46b-160 et seq. § 46b-172. Acknowledgment of paternity and agreement to support; judgment. Review of acknowledgment of paternity § 46b-172a. Filing of claim for paternity by putative father. Child as party. Attorney General as party. Hearing. Three-judge court. Rights and responsibilities upon adjudication or acknowledgment of paternity. Claim for paternity after death of putative father.
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Guardianship |
Chapter 802h, Part II Guardians of the Person of the Minor, §§45a-603 et seq. § 45a‑606. Father and mother joint guardians. § 45a-607. Temporary custody of minor pending application to probate court for removal of guardian or termination of parental rights.
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Annulment, Divorce, Legal Separation
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Chapter 815j Dissolution of Marriage, Legal Separation and Annulment § 46b-56. Orders re custody, care, education, visitation and support of children. Best interests of the child. Access to records of minor child by noncustodial parent. Orders re therapy, counseling and drug or alcohol screening § 46b‑61. Orders re Children where parents live separately. Commencement of proceedings § 46b-64. Orders of court prior to return day of complaint. § 46b-66, Review of agreements; incorporation into decree. Arbitration § 46b-69b. Parenting Education Program. Required.
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UCCJEA
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Chapter 815p Uniform Child Custody Jurisdiction & Enforcement Act § 46b-115a. Definitions § 46b-115m. Modification of custody determination of another state § 46b-115w. Procedure for registering an out-of-state child custody order §§ 46b-115x to 46b-115gg. Enforcement of child custody determination
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Support
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· Chapter 816 Support Part II Obligations of Relatives § 46b-215. Relatives obliged to furnish support, when. § 46b‑215(b). Attorney General as party to the case when person is receiving public assistance. |
Table 2 New Factors Court May Consider When Awarding Custody
Effective October 1, 2005, Conn. Stats. § 46b-56(c)
“In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:
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1. The temperament and developmental needs of the child;
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2. The capacity and the disposition of the parents to understand and meet the needs of the child;
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3. Any relevant and material information obtained from the child, including the informed preferences of the child;
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4. The wishes of the child’s parents as to custody;
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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;
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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;
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7. Any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
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8. The ability of each parent to be actively involved in the life of the child;
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9. The child’s adjustment to his or her home, school and community environments;
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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 pendent lite in order to alleviate stress in the household;
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11. The stability of the child’s existing or proposed residences, or both;
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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;
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13. The child’s cultural background;
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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;
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15. Whether the child or a sibling of the child has been abused or neglected, as defined repectively in section 46b-120;
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16. Whether the party satisfactorily complete participation in a parenting education program established pursuant to section 46b-69b.
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Table 3 Connecticut Legislative Histories in the Courts
Connecticut Legislative Histories in the CourtConn. Gen. Stats. § 46b-61
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Greco v. Greco, No. FA01-0448175 (May 30, 2001), 29 CLR 579 |
In 1974, the General Assembly deleted the language "between a husband and wife or former husband and wife" from the statute thereby removing the limitation that the controversy before the court involve persons who were currently married and who had formerly been married. Public Acts 1974, No. 74-169, § 8. There is no support in the legislative history behind this change for the plaintiffs' claim that the purpose of the amendment was to allow nonparent third parties to initiate a custody action against a parent of the minor child. The changes enacted by Public Act 74-169 were primarily technical in nature. 17 H.R. Proc., Pt. 6, 1974 Sess., p. 2806. One of the few substantive changes made by the act was an amendment to General Statutes § 46b-61. Previously, § 46b-61 allowed any husband and wife living separately to file an action for custody of their minor children. Section 12 of Public Act 74-16 expanded the jurisdiction of the Superior Court to include complaints filed by parents living separately who were no longer married or who had never been married. 17 H.R. Proc., Pt. 6, 1974 Sess., p. 2805. Since parents who had never been married could now file a custody action pursuant to § 46b-61, it appears that the changes made by § 8 of Public Act 74-169 merely conformed § 46b-56 to the changes made by § 12 of the Public Act by deleting the requirement that custody controversies involve parents who were or had been married.
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Moll v. Gianetti, 8 Conn. App. 50, 56, 510 A.2d 1009 (1986) |
A review of the legislative history of General Statutes 46b-61 discloses that in 1974 the phrase "[i]n any case in which any husband and wife" was replaced by "[i]n all cases in which the parents of a minor child." Public Acts, 1974, No. 74-169, 12. The express purpose of this amendment was to expand the court's jurisdiction to "controversies involving parents . . [who] were never married. This permits the Superior Court to provide for the custody and care and support of minor children." 17 H.R. Proc., Pt. 6, 1974 Sess., p. 2805; see also Grynkewich v. McGinley, 3 Conn. App. 541, 543 n. 2, 490 A.2d 534 (1985); Stevens v. Leone, 35 Conn. Sup. 237, 239, 406 A.2d 402 (1979).
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Stevens v. Leone, 35 Conn. Sup. 237, 239-240, 406 A.2d 402 (1979) |
In the 1974 session, the chairman of the judiciary committee introduced before the house the bill which contained several amendments to the original actconcerning the dissolution of marriages. In referring to the section which has ultimately become section 46b-61 of the General Statutes the chairmanstated the following: "In section 12 which addresses itself to section 19 of the Dissolution of Marriage Act further expands the jurisdiction of the SuperiorCourt involving minor children and further states that the section can be used in controversies not only involving a husband and wife but to controversiesinvolving parents of minor children or children if they are no longer married or were never married. This permits the Superior Court to provide for thecustody and care and support of minor children."17 H.R. Proc., Pt. 6, 1974 Sess., p. 2805.It seems obvious then from the remarks of the chairman of the house judiciary committee at the time that the amendment in question was introducedthat it was the intent of the legislature to expand the jurisdiction of the Superior Court regarding custody issues from controversies arising out of a dissolution of marriage to controversies in which a child had been born without benefit of marriage. The court concludes that in view of the legislative history resulting in the present § 46b-61 of the General Statutes, the father of an illegitimate child need nolonger be limited to bringing a petition for a writ of habeas corpus to invoke the jurisdiction of the Superior Court in a question regarding custody. It is clear that it was the intent of the legislature to permit an illegitimate father to institute a cause of action regarding custody under the authority of § 46b-61, as was done in the present case.
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Table 4 Excerpt from Official Legislative History of Conn. Gen. Stats. § 46b-61
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From Official Legislative History Conn. Gen. Stats. § 46b-61
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17 H.R. Proc., Pt. 6, 1974 Sess., p. 6769House of Representatives
Thursday, May 21, 1981
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SPEAKER ABATE: Will you remark further on the adoption of House Amendment Schedule "A"?
REP. FARR:(19th) Mr. Speaker.
SPEAKER ABATE: Rep. Robert Farr.
REP. FARR:(19th) Mr. Speaker, briefly on behalf of the amendment. First of all I would point out I think that the amendment cures a lot of the defects in the file copy. And even if some individuals feel that the amendment itself is not perfect, this amendment is, I believe, far better than the file copy.
It does move more in the direction of the California law. There's been a lot of talk about the fact that we're seeking to have what California has. The file copy would have created a preference towards joint custody. That is not what California does. California has an order of preference but the first preference is joint custody or custody to either party.
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17 H.R. Proc., Pt. 6, 1974 Sess., p. 6770 |
The only real difference between this and the California type approach I think is that California has more resources devoted to the divorce area to be able to pay for some of the intervention in terms of custody areas, so that peopiaa—more do go to a state conciliation conference paid for by the state. We don't have the resources to do that. So that's one major change.
I think the amendment is an improvement over the file copy and I would urge adoption of the amendment.
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A Guide to Resources in the Law Library
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SCOPE: |
Bibliographic resources relating to the right of nonparents to intervene in child custody actions
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SEE ALSO: |
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CURRENCY: |
· 2008 Edition
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DEFINITIONS: |
· Custody vs. visitation “third parties cannot initiate custody proceedings, unlike third parties who are permitted to initiate proceedings in visitation cases . . . .” Fish v. Fish, 285 Conn. 24, 72 (2008). · Parent-like relationship: “. . . to avoid constitutional infirmity, the standing requirement that a third party allege a parent-like relationship with the child should be applied for all of the reasons described in Roth to third party custody awards and to third parties seeking intervention in existing custody proceedings.” Fish v. Fish, 285 Conn. 24, 44 (2008). (Emphasis added.) · Standard of harm: “the statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent's custody.” Ibid. · Burden of proof: “To summarize, in cases in which a third party seeks to intervene in a custody proceeding brought pursuant to § 46b-56 (a), the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child's best interest. In cases in which the trial court considers awarding custody to a third party who has not intervened pursuant to § 46b-57, the court may award custody to the third party provided that the record contains proof of the foregoing facts by a fair preponderance of the evidence.” Ibid. p. 89
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STATUTES:
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Conn. Gen. Stat. (2007)
· § 46b-56. Orders re custody, care, education, visitation and support of children. Best interests of the child. Access to records of minor child by noncustodial parent. Orders re therapy, counseling and drug or alcohol screening. · § 46b-56b. Presumption re best interest of child to be in custody of parent · § 46b-57. Third party intervention re custody of minor children. Preference of child.
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LEGISLATIVE HISTORY: |
Legislative History of Conn. Gen. Stats. § 46b-56b. · “The legislative history of § 46b-56b also reveals that the General Assembly rejected the more explicit standard of harm required for removal of the parent as guardian, which is similar to the type of harm that must be demonstrated under the temporary custody and neglect statutes, so that the court may give more weight to the child's welfare in determining whether a petitioner has rebutted the presumption in favor of parental custody.” Fish v. Fish, 285 Conn. 24, 52 (2008). · “Although the legislative history of § 46b-56b has no bearing on the constitutional issue, it provides useful guidance in determining the legislature's intent regarding the standard of harm that it wished to impose in third party custody disputes.” Footnote 23, Ibid., p.52 [continues to page 54]
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OLR REPORTS: |
· Susan Price, Grandparents’ Rights, Connecticut General Assembly, Office of Legislative Research Report No. 2005-R-0832 (Nov. 9, 2005). “You asked for an explanation of Connecticut law on grandparents’ custody of, and visitation with, their grandchildren.” · Saul Spigel, Programs That Help Grandparents Raising Their Grandchildren, Office of Legislative Research Report No. 2004-R-0786 (October 12, 2004). “You asked for a description of programs that help grandparents who are raising their grandchildren.” · Saul Spigel, Grandparents’ Custody of Grandchildren, Connecticut General Assembly, Office of Legislative Research Report No. 2003-R-0596 (Sept. 22, 2003).
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COURT RULES
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Connecticut Practice Book (2008) · Chapter 25. Superior Court - Procedure in Family Matters § 25-3. Action for Custody of Minor Child § 25-4. Action for Visitation of Minor Child § 25-5. Automatic Orders Upon Service of Complaint § 25-23. Motions, Requests, Orders of Notice, and Short Calendar § 25-24. Motions § 25-30. Statements to be Filed § 25-34. Procedure for Short Calendar § 25-57. Affidavit Concerning Children § 25-59. Closure of courtroom in family Matters § 25-59A. Sealing files or limiting disclosure of documents in family matters § 25-62. Appointment of Guardian Ad Litem
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FORMS:
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· JD-CL-12. Appearance · JD-FM-75. Application for Waiver of Fees · JD-FM-161. Custody / Visitation Application · JD-FM-162. Order to Attend Hearing and Notice to the Defendant · JD-FM-158. Notice of Automatic Orders · JD-FM-164. Affidavit Concerning Children · JD-FM-164A. Addendum to Affi |