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Appellate Court Says ‘Normal’ Visitation Expenses Don’t Justify Lower Support

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In a case set to be released on May 21, 2013 the Connecticut Appellate Court has overturned a lower court’s ruling that lowered the child support of a visiting father from a presumptive amount of $100 under existing guidelines to $75 as a result of the mother’s relocation within the state.

The trial court in Kavanah vs Kavanah found that Leo Kavanah’s costs in traveling back and forth between Southington, Connecticut and Monroe, Connecticut were ‘extraordinary’ within the meaning of Connecticut’s child support guidelines as they address reasons for deviation from presumptive support amounts.

The higher court held that the trial court had not sufficiently explained the basis for its conclusion that Mr. Kavanah, who had been ordered to do the driving for visitation, would be incurring extraordinary expenses — as opposed to normal expenses — as a result of his wife’s relocation.

This, alone, would not necessarily affect future cases assuming that parents seeking deviation for this reason were careful to present evidence of their visitation costs and that judges ordering deviation were careful to make specific findings about why they were reducing support.

However the Appellate Court did not stop at finding fault with the thoroughness of the lower court’s decision. In addition, they cited with approval another Superior Court decision, Weissman vs. Sissell, in which the court had observed that “[m]any non-custodial parents have some transportation costs to see their child—for parents living within driving distance of each other, for example, the non-custodial parent is likely to pay for fuel and other costs picking up or dropping off the child,
but these ordinary expenses usually do not warrant a deviation from the presumptive amount.’’

Appeals are expensive and, in the case of family law, difficult to win, so it is relatively rare to see a support case with so little at issue reach the Appellate Court.

This is not to say that the difference between $100 and $75 was insignificant to the parties in this case or to other divorcing parents. Certainly the Kavanah case has not closed the door on deviations for low-income individuals for whom in-state or other short-distance travel costs are burdensome, but it raises the bar for how the issue must be presented to the courts and makes it imperative that the court be reminded to make appropriate findings to justify why — in a particular case — transportation expenses that might be normal for some people are extraordinary in the context of the individual circumstances of the family before the court.


WHO PAYS THE PRICE WHEN EX-SPOUSES CAN’T — OR WON’T — CO-PARENT THEIR CHILDREN?

We see it all the time — divorced or divorcing parents who see every compromise on issues of visitation or custody as a loss and who return to the courts time and again to settle everyday disputes.

In a case to be released next week, Lori Hibbard vs. Tony Hibbard,  the Connecticut Appellate Court upheld the decision of a trial court to pick a side in such a case, and to do so in a big way.

The couple divorced in 2007 returning in less than a year with disputes about money and visitation.  In the next 4 years, the parties filed a total of 30 post-judgment motions between them.  According to the appeals court, the disputes increasingly involved access to their daughter –only two years old at the time of the divorce.

Initially, it appears from the decision that the plaintiff mother had a fair amount of success managing to limit the defendant father’s access more and more.  At various points, this even involved requiring that visits be supervised and that overnight visits be suspended.

By the time they returned to court to litigate their last set of four motions — two filed by each party– visitation by the father had been whittled to one weekday afternoon and two 7-hour weekend visits every other week together with some specified holidays and birthdays.

The mother’s two motions sought further restrictions on the father’s access, the father, for his part, asked that the mother be held in contempt of court for failing to allow him several scheduled visits and –more importantly –asked that custody of their child be granted to him.

The mother defended against the contempt motion claiming that although she had not allowed the visits it was because her daughter had reported being touched inappropriately by a friend of the father during an earlier visit.

The trial court did not find the mother’s  claim to be credible noting in a detailed 20-page decision that, in the past, the mother had made various other unrelated claims that had not been substantiated by investigators or by the child’s therapist.  She had argued that the child was afraid of her father, but again was not backed up the child’s therapist.  The judge further noted that the mother had terminated therapy for the child when the therapist asked to meet with the father and had terminated longstanding daycare arrangements after a worker shared information about the child with the father’s current wife.

Concluding that the mother’s strategy was to eliminate the father from their child’s life, the judge awarded sole custody to the father, granting the mother visitation rights.  Considering that she had originally been awarded custody and had historically succeeded, at least  to some extent, in controlling the father’s access, it is a fair guess that this was an unexpectd result.

The mother appealed  and lost.

In this blog, we have commented before about  the toll  that contentious and protracted custody and visitation litigation takes on families, and especially on children.  The adverse effects of serious and prolonged  parental wrangling on children — not just while it is happening but well into adulthood — has been amply documented.

For most families, the financial toll taken by the cost of serial court appearances makes a difference in the quality of life of the entire family and colors the attitudes of the adults towards each other.  This, in turn, makes it even less likely that the children who are at least the official subject of the fighting, can enjoy a carefree, guilt-free and happy childhood.

We do not claim to be in position to judge  or evaluate the merits of Ms. Hibbard’s attacks on Mr. Hibbard’s parenting.  What we can say, however, from many years of experience, is that once custody and visitation issues have been  addressed and decided  — whether  by  agreement  or  by trial — future efforts to change the deal become subject to increasing skepticism. As lawyers, we must always respect the obligation of parent’s to do what they believe to be in the best interest of their children. At the same time, however, we must always counsel our clients — as the experienced lawyers in this case no doubt did — to consider at every step, whether they are motivated by genuine concern for their children or by relationship issues between the adults.  At a minimum, they should be made aware that this will be a question that the court will consider in every instance.


SUPREME COURT DECLINES TO SET STANDARD FOR GRANDPARENT VISITATION

Last month, the United States Supreme Court made news by declining to review an Alabama case in which grandparents had sought visitation rights with their two teenaged grandchildren.  After a lower court   granted them specific visitation rights,  the Alabama Surpreme Court overturned by the Alabama Supreme court which struck down Alabama’s Grandparent Visitation Act on grounds that it violated the  parents’  right to due process.  The U.S . Supreme Court’s refusal to review the case, makes the Alabama Supreme Court’s ruling the final word in that state, at least for now.

All 50 states have some form of  statute specifically  allowing grandparents and other third parties to seek custody or visitation rights under various circumstances but the laws are not uniform among the states. The issues are of such interest nationwide that the Attorneys General of five states filed so-called amicus or friend-of-the court briefs.

In most states, grandparents may seek custody and other rights if the parents have first been declared unfit.  Often, they are allowed to intervene in divorces as well.  This happens when the party most likely to obtain primary custody is  the one least likely to foster a relationship between the children and the intervening grandparents.

A more difficult question and one which remains unsettled as a result of the Supreme Court’s action, is what happens if an intact couple, who has not been found to be unfit, cuts off contact between their children and their own parents. That was the situation in the Alabama case.

In many states — Alabama among them –the answer is nothing much, at least not through the courts.

The debate over whether grandparents could be excluded in this way came to a head back in 2000 with the U.S. Supreme Court case of Troxel v. Granville in which the high court held that the interest of parents in the care, custody, and control of their children was perhaps the oldest of the fundamental liberty interests recognized by the Court. The court went on to say that all courts must presume that fit parents act in the best interest of their children, but the court did not clarify the degree of proof that would be necessary to rebut that presumption.

The Connecticut Supreme Court has looked at various aspects of this issue several times since the Troxel case was handed down.  As the law stands in this state now, in order to seek an order of  visitation with children over the objection of the parents — at least when those parents remain an intact couple —  grandparents must meet a very heavy burden of proof.  First, they must allege specific facts that tend to prove that they  already  have a relationship with the child that is similar in nature to a parent-child relationship. Next, they must allege additional specific facts that would show, if proven, that denial of visitation would cause “real and significant” harm to the child.  Without those allegations, the court will not even have jurisdiction to hear the case.

Assuming the petition contains the necessary claims, and the case does reach hearing stage, the grandparents must still prove their allegation by so-called “clear and convincing” evidence.  This is a burden of proof substantially more rigorous than the usual standard in civil cases. In visitation disputes between natural parents, for example, the parent seeking visitation must only prove that the visitation sought would be in the best interest of the child.

The Alabama Supreme Court’s ruling went even further by ruling that grandparents could not intervene to seek custody unless the parents had already been determined to be unfit.

Although, grandparents who are  estranged from their children would like to see  uniformity in the laws governing their rights to seek custody and visitation, it is clear that no solution favorable to that group is ever likely to come from the courts. Instead, rifts between grandparents and their own children will need to be addressed directly or with the assistance of mediators or family counselling professionals.  All of those options are dependent on the voluntary cooperation of the adults — something not always easy to achieve.

While this truth may leave aggrieved grandparents feeling powerless, it is also true that any court battle over access to children is likely to do permanent damage to everyone concerned, including the children.  One can  only hope that grandparents , worried that their relationships with children and grandchildren might be disintegrating, and who understand from the outset that courts will not come to the rescue, will put their energies into reconciliation rather than confrontation before damage to the extended family becomes irreparable.


CONNECTICUT’S DEPARTMENT OF CHILDREN AND FAMILIES ANNOUNCES BIG CHANGES IN HOW IT WILL HANDLE REPORTS OF CHILD ABUSE OR NEGLECT

Last year, the new Commissioner of the Connecticut Department of Children and Families (DCF), Joette Katz, called an end to surprise home visits in most cases of reported child abuse or neglect. According to the Connecticut Mirror ,  Commissioner Katz felt that the practice was inconsistent with the principles of the Department. Katz believes that only 10 to 20 percent of reports of abuse are serious enough to warrant a surprise visit.  All others are now to be pre-announced by telephone.

Soon, the Department is scheduled to make another big change. Rather than investigating all reports of child abuse or neglect in the way police might investigate crime,  the DCF has announced that beginning in March 2012  it will operate on a model known as Differential Response.  Under that model, only a small percentage of reported abuse or neglect will be investigated.  Instead, cases considered by the department to be less serious will be approached by collaborating with the family. The goal will be to keep children within the family setting by directing the family to appropriate community services.  In keeping with the new policy, the agency’s  child abuse “hotline” has even been re-named the “care line”.

The Differential Response model has both proponents and critics.  Both groups seem to agree that a benefit of using Differential Response is cost savings. Reducing the number of adversarial proceedings related to claims of abuse or neglect and keeping more children in their home settings saves money. Proponents also argue that collaborating with families to support them in efforts to correct behaviors detrimental to the welfare of children, results in better long-term outcomes for the children.

Opponents don’t necessarily disagree with the concept in principle, but caution that the success of the model depends entirely upon how well it is implemented. They argue that, to produce good outcomes for children, social workers need to be able to do adequate screening and follow-up to be sure the desired results  of are actually being achieved and maintained. In other words, DCF workers must be empowered to oversee their cases over time once an initial determination of the seriousness of a case has been made.

Connecticut is just one of many states that have adopted the Differential Response model of child protection, but a 2009 report notes that several states, including Florida abandoned the approach after results were either unsatisfactory or inconsistent among districts.

The question for Connecticut residents is whether the Department can provide funding and resources adequate to ensure that the children of families who have not undergone a traditional investigation will be protected and that their situations will be monitored over time. We would like to know what you think.


GETTING YOUR PRIORITIES STRAIGHT IN CHILD CUSTODY OR ACCESS DISPUTES

Full-blown custody and access disputes cost plenty – not only in dollars — but in the toll they take on families. Once in a while, when one parent is truly neglectful, abusive, or struggling with substance abuse, there is no choice but to do battle in the courts if that’s what it takes to protect the children. Relocation cases — especially when the proposed move is motivated by malice – are another situation where resort to the courts may be necessary to protect the parent/child relationship.  However, too many custody and visitation cases have more to do with a power struggle between embittered parents than about the real needs of the children.

Experienced divorce lawyers are familiar with a pattern that develops when a negotiation over custody or visitation goes toxic. Typically, one or both parents reject a suggestion of the other almost as soon as it is made. Soon it becomes clear that the discussion cannot be shifted away from notions of winning and losing.  Any concession – agreeing to pitch in for more than half of the transportation; allowing an extra overnight visit; permitting an out-of-state vacation – is viewed as a defeat. These reactions have nothing to do with fairness, let alone the best interests of the children. Instead, they are issues of vindication.

Another hallmark of a toxic custody or visitation dispute is that the discussion turns, inevitably, to adult issues. Unless the cause of the breakdown of the marriage has also caused a breakdown of the father/child or mother/child relationship, it should play little part in negotiations over a parenting plan.

Often, lawyers’ efforts to diffuse these disputes and to re-focus on the needs of the children are met with distrust and frustration – a feeling that the lawyer is indifferent to the pain that the offending spouse has caused.  In truth, lawyers are legitimately concerned about how their client will be perceived by the court if they fail to engage in reasonable compromise.

Judges have little patience for these fights because they have been trained to understand that children are the ultimate losers. Commonly, parties who enter the courtroom convinced that a judge will share their indignation over a spouse’s behavior, come away – even before a decision has been rendered – with a stunned realization that it is they who have attracted the sternest reprimands from the bench.

Some time ago, Connecticut family judge Elaine Gordon produced a video for parents who are thinking of using the courts to settle their custody and visitation disputes. In it, she sites an alarming  study identifying a long list of  lasting mental health problems that beset children and adults whose parents have gone to trial on custody issues. The video appears on Connecticut’s official judicial website and is well worth a look for anyone considering taking a child-related issue to court. You can bet, if you do, that your judge has seen it as well.

The lesson here is  to make the strongest possible effort to achieve a healthy parenting plan for your children,  but to do so, whenever possible, through serious and selfless negotiations and to set a goal to reach agreement before trial.