Ireland v. Ireland

Page 676

717 A.2d 676

246 Conn. 413

Irene IRELAND v. James F. IRELAND.

No. 15769.

Supreme Court of Connecticut.

Argued May 26, 1998.

Decided Aug. 18, 1998.

Lori Welch-Rubin, New Haven, with whom, on the brief, was Geraldine Battistoli, Westbrook, for appellant (plaintiff).

Kathleen A. Hogan, with whom, on the brief, was Sarah S. Oldham, Westport, for appellee (defendant).

Helen D. Murphy, Maureen M. Murphy, New Haven, and Jane K. Grossman filed a brief for the Connecticut Women's Education and Legal Fund as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, BERDON, NORCOTT, KATZ, PALMER and McDONALD, JJ.

KATZ, Associate Justice.

This certified appeal arises out of the trial court's denial of the plaintiff's motion seeking permission to relocate with her minor son to California and its granting of the defendant's motion to enjoin and restrain the relocation. The principal issue is whether the trial court correctly placed the burden on the plaintiff custodial parent to prove that relocation would be in the best interests of the child.

The following facts, which appear in the Appellate Court opinion, are pertinent to this appeal. "The parties' marriage was dissolved on January 30, 1990. Pursuant to the agreement of the parties that was incorporated into the dissolution decree, the court awarded joint custody of their minor son to the parties, with primary physical custody to the plaintiff. From September, 1989, until August, 1995, the order allowed the defendant to visit his son every other weekend. At the time of the dissolution, the plaintiff resided in Connecticut, and the defendant resided in Massachusetts. In 1993, the defendant remarried and settled with his wife in Fairfield county.

"The plaintiff commenced a relationship with Steven Zakar in 1992 and married him in November, 1995. Zakar is a computer consultant whose major consulting contract concluded in April, 1995. He undertook a search for additional work and secured a position in Sacramento, California. In July, 1995, the plaintiff informed the defendant of her plan to join Zakar in California with their son. In reaction to this news, the defendant obtained a temporary injunction that enjoined the plaintiff from leaving the state with the minor child....

"At the three day trial commencing January 30, 1996, the trial court heard evidence and argument on the defendant's motion to enjoin and restrain and the plaintiff's motion for permission to relocate with their son. After analyzing the evidence under the best interests of the child standard, the trial court denied the plaintiff's motion and granted the defendant's motion." Ireland v. Ireland, 45 Conn.App. 423, 425, 696 A.2d 1016 (1997).

In its memorandum of decision, the trial court stated: "[R]elocation in joint custody cases must be viewed on a case-by-case basis with attention to any manifestations of what was contemplated by the parties and the court at the time the original orders were entered, the impact the relocation will have on the minor child, the history of the nonrelocating parent and the child's relationship, the history of the relocating parent and the child's relationship, the input from the attorney for the minor child, the family relations report and the reasons offered by the relocating parent for the move. Additionally, the burden of establishing the benefits of the move must rest with the relocating parent. Underlying all of these factors is the premise that the court must base its decision on what is in the best interest of the minor child."

The plaintiff appealed from the judgment of the trial court. Ireland v. Ireland, supra, 45 Conn.App. at 425, 696 A.2d 1016. In affirming the trial court's decision, the Appellate Court first determined that the trial court had not abused its discretion in requiring the custodial parent seeking to relocate to shoulder the burden of proof as to the child's best interests. Id., at 426, 696 A.2d 1016. Next, pursuant to its supervisory authority to provide guidance to the trial courts, the Appellate Court endorsed certain criteria set forth in the widely cited case of D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27, aff'd, 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976), for determining the best interests of the child in future postjudgment relocation cases. ¹ Although the D'Onofrio criteria differ to some degree from those applied by the trial court in the present case, the Appellate Court concluded that the trial court had "essentially considered those criteria." Ireland v. Ireland, supra, at 429, 696 A.2d 1016. Finally, the Appellate Court sustained the trial court's decision refusing to allow examination by the plaintiff of the minor child's attorney, who had submitted a written report to the trial court recommending that the child's best interests would be served by his remaining in Connecticut. Id., at 430, 696 A.2d 1016.

We granted the plaintiff's petition for certification as to the following issues: "1. Did the trial court consider the correct criteria for determining the best interests of the child when the parent who was awarded primary physical custody of the child wishes to relocate?"; "2. Was the trial court correct in placing the burden of proof on the custodial parent?"; and "3. Was the trial court correct in prohibiting the custodial parent from calling the attorney for the minor child as a witness to examine him with respect to his written report filed with the court recommending that the child's best interest would be served if the child remains in Connecticut?" Ireland v. Ireland, 243 Conn. 905, 701 A.2d 330 (1997). As to the second issue, which is dispositive in this case, we conclude that the trial court improperly placed the entire burden of proof on the custodial parent and, accordingly, we reverse on that issue. In order to provide guidance to the lower courts on remand, we also address the two remaining issues. As to the first, we conclude that although the criteria considered by the trial court were in fact relevant to this case, on remand, the court should consider the additional factors set forth in this opinion. As to the third certified issue, we conclude that the attorney for the child should not have submitted the report at issue to the trial court and, on remand, the court should not consider that report in its deliberations.

I

The issue of whether the trial court was correct in placing the burden of proof on the custodial parent is one of first impression for this court. Because this question is dispositive, we address it first.

The plaintiff argues that the trial court was incorrect in placing the "burden of establishing the benefits of the move [on] ... the relocating parent." She asserts that such a burden allocation created an inherent presumption in favor of the noncustodial parent that relocation is not in the child's best interests. She argues further that creation of such a presumption is a departure from this court's precedent, in which we consistently have declined to impose presumptions in custodial determinations. See, e.g., Presutti v. Presutti, 181 Conn. 622, 627-28, 436 A.2d 299 (1980) (declining to impose presumption either for or against nonresident parent); Simons v. Simons, 172 Conn. 341, 350, 374 A.2d 1040 (1977) (declining to impose presumption favoring mother or presumption against modification). Finally, the plaintiff argues that placement of the burden solely on the custodial parent seeking relocation is improper, and she urges this court to adopt a burden allocation scheme that incorporates either shifting burdens of persuasion, or burdens shared by both parents.

The defendant, on the other hand, argues that the parent proposing relocation, as the party seeking to modify custody or visitation arrangements, should bear the burden of persuading the trial court that the relocation would be in the best interests of the child. The defendant also asserts that the parent seeking relocation, having chosen the new location, is the party better able to produce evidence regarding the potential benefits that the move and the new location may offer. Therefore, he argues that the burden of proof properly should fall on the parent seeking relocation. We conclude that a burden allocation scheme incorporating shifting burdens, as articulated below, is appropriate in relocation cases.

A

It is well settled in this state that, in deciding custody or visitation issues, a court must always be guided by what is in the best interests of the child. See Schult v. Schult, 241 Conn. 767, 777, 699 A.2d 134 (1997); Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993); Yontef v. Yontef, 185 Conn. 275, 282, 440 A.2d 899 (1981). General Statutes § 46b-56 (b) provides in part that "[i]n making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child...." Moreover, "[t]his court has consistently held in matters involving child custody, and, by implication, visitation rights, that while the rights, wishes and desires of the parents must be considered it is nevertheless the ultimate welfare of the child which must control the decision of the court." (Internal quotation marks omitted.) Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980); see also Gallo v. Gallo, 184 Conn. 36, 43, 440 A.2d 782 (1981) (in matters regarding visitation orders, "the court considers the rights and wishes of the parents ... but ... must ultimately be controlled by the welfare of the particular child").

Unlike some of our sister states, ² Connecticut has no statute specifically governing situations in which a custodial parent wishes to relocate with his or her child. Yet, as noted, our statutes expressly mandate that judicial determinations regarding child custody and visitation matters are to be governed by the best interests of the child. This clear legislative policy, in conjunction with the legislature's silence on...