R.H. v. M.H.

1

R. H. v. M. H.^[*]

No. SC 20882

Supreme Court of Connecticut

August 15, 2024^[**]

Argued December 18, 2023

Procedural History

Action for the dissolution of a marriage, and for other relief brought to the Superior Court in the judicial district of Middlesex, where the defendant filed a cross complaint thereafter, the court, Albis, J., rendered judgment dissolving the marriage and granting certain other relief in accordance with the parties' separation agreement; subsequently, the court granted the plaintiff's motion to modify custody of the parties' minor children, and the defendant appealed; thereafter, the Appellate Court, Clark and Seeley Js., with Bright, C.J, concurring in part and dissenting in part, reversed in part and remanded the case for further proceedings; subsequently, the Appellate Court granted the plaintiff's motion for reconsideration en banc, and the appeal was transferred to this court. Reversed in part; further proceedings.

M. S self-represented, the appellant (defendant).

Kenneth J. McDonnell, with whom was Paige S. Quil-liam, for the appellee (plaintiff).

Giovanna Shay, Jill Davies, Enelsa Diaz, Lorraine Carcova, Nilda Havrilla, Shelley White, Jessica Nelson and Bryan Pimentel, law school intern, filed a brief for the Greater Hartford Legal Aid et al. as amici curiae.

Cindy Cartier filed a brief for the Shared Parenting Council of Connecticut, Inc., as amicus curiae. Aidan R. Welsh filed a brief for the Connecticut Bar Association as amicus curiae.

Robinson, C.J., and McDonald, D'Auria, Mullins, Ecker, Alexander and Dannehy, Js.

OPINION

McDONALD, J.

The sole issue in this appeal is whether the trial court improperly delegated its judicial authority when it gave the plaintiff father, R. H., the authority to decide the nature and scope of the visitation his exspouse, the defendant mother, M. H., could have with their minor child, R. Specifically, the trial court's visitation order provided that, if, ''at any time,'' the plaintiff ''reasonably determines'' that R was negatively impacted by the defendant's visitation, the plaintiff may, among other things, ''suspend'' the defendant's visitation with R. The defendant appeals from the trial court's decision to grant the plaintiff's motion for modification of the order of custody over the parties' minor children. The defendant claims that the trial court improperly delegated its judicial authority to the plaintiff when it gave him the authority to suspend her visitation with R if the plaintiff reasonably determined that the unsupervised visits were causing R to endure negative behavioral or emotional consequences. Although the trial court attempted to balance the interests of the parties and the children, we conclude that the trial court improperly delegated its judicial authority to the plaintiff. Accordingly, we reverse that part of the trial court's order^[1]modifying custody.

The following facts and procedural history are relevant to our analysis. Following the dissolution of their marriage, the parties had joint legal custody and shared physical custody of their daughter, S, and their son, R. Over the ensuing months, the parties' ability to effectively coparent broke down. On June 12, 2019, the plaintiff filed a motion to open the judgment and to modify custody that sought sole legal and physical custody of the children. While the June 12 motion was pending, in September, 2019, the parties agreed to a custody evaluation to be performed by a psychologist specializing in family matters and not to consume alcoholic beverages in excess during each party's parenting time with the children. The defendant had abused alcohol, and she agreed to use Soberlink, an alcohol monitoring devise.

Before the trial court took any action on the June 12 motion, on October 30, 2019, the plaintiff filed an application for an emergency ex parte order of custody, requesting temporary sole custody of the children on the ground that the defendant had been intoxicated at 6:49 a.m. that same day while the children were in her care. The court granted the emergency application, awarding temporary custody to the plaintiff and ordering that the defendant was to have ''reasonable visitation as agreed by the parties and with such supervision as [the plaintiff] may approve or require.'' The trial court subsequently clarified its order on the emergency application to state that the plaintiff was to have temporary sole physical custody of the children. Numerous other motions were filed by the parties during the months prior to the court's hearing on the June 12 motion.

In June, 2020, the trial court modified the ex parte order of custody to allow the defendant to have unsupervised visitation with her children provided she complied with certain conditions. Thereafter, the defendant filed a motion for clarification, seeking the court's guidance on, among other things, how the parties should proceed if they cannot agree to visitation as required by the court's previous order. In the motion, the defendant explained: ''I am asking for clarification because I am being prevented from seeing my children; visitation is being hindered by the plaintiff .... Since the filing of the ex parte motion, I have seen my children for less than seventy hours in the past year, due to the [plaintiff's] . . . failure to agree to regular and substantial visitation.... Not only has [the plaintiff] failed to agree to regular visitation, he has failed to allow any contact between me and my children. I have had no contact with my children since [August 10] 2020.'' (Emphasis omitted; footnote omitted.) The court denied the motion.

At a status conference in November, 2020, the trial court scheduled a hearing on the various pending motions to begin in April, 2021. Prior to the start of that hearing, however, the plaintiff filed a motion to modify the then existing ex parte order, seeking sole legal custody of the children. Following a hearing on that motion, the trial court declined to award the plaintiff sole legal custody but concluded that the plaintiff would have final decision-making authority in the event of an impasse on certain decisions about the children's therapy or education.

Over the course of six separate dates, spanning several months, the trial court heard evidence concerning the numerous outstanding motions that it had yet to rule on, including the plaintiff's June 12 motion. Thereafter, the trial court issued a memorandum of decision addressing the various pending motions. The trial court found, among other things, that the defendant's behavior was the underlying cause of the majority of the issues between the parties. The court explained that the defendant's ''love for the children and [her] positive parenting qualities [were] neutralized by her mistrust of the [plain- tiff] and others, her denigration of the [plaintiff], and her efforts to justify her actions and [to] advance her own agenda.''^[2] The trial court also cited several examples of the defendant's negative conduct, including that she threatened the children's medical providers with complaints of violations of medical privacy laws, accused S's therapist of insurance fraud, threatened litigation against R's school, accused the children's guardian ad litem of committing check fraud, and threatened to seek the arrest of the parties' parenting counselor. The court also noted the negative impact some of the defendant's actions had on her children. As to the plaintiff, the court noted that he ''has not always been as communicative about the children with the [defendant] as would be ideal. Under the circumstances, his reticence is understandable, but it has heightened the [defendant's] mistrust of him. To his credit, the [plaintiff] has been a steady hand in raising the children through the periods of conflict with the [defendant] and her attempts to cope with her personal issues.'' As a result, the trial court granted the plaintiff's June 12 motion and awarded him sole legal custody of the children. It further ordered that the children reside primarily with the plaintiff, explaining that the defendant needed to engage in mental health treatment before her parenting time could be increased.

The trial court's order also limited the defendant's visitation with S to family therapy and ordered that the parties may agree on further visitation if recommended by the family therapist. With respect to R, the trial court ordered that ''the [defendant] shall also be entitled to have in person visits with [R]'' after engaging in at least four sessions with a mental health professional. Relevant to this appeal, the order as to R also provides: ''Unless the [plaintiff] reasonably determines, after consultation with [R's] therapist, that the supervised visits are causing negative behavioral or emotional consequences for [R], then the [defendant] shall thereafter be entitled to reasonable, incrementally increased, unsupervised visitation with [R] on a schedule approved by the [plaintiff] from time to time. If, at any time, the [plaintiff] reasonably determines, after consultation with [R's] therapist, that the unsupervised visits are causing negative behavioral or emotional consequences for [R], then the [plaintiff] may either suspend the [defendant's] visitation or reinstate the requirement of supervision of the visits by a third party ....'' (Emphasis added.) It is this particular order that is at issue in this appeal.

The defendant appealed from the trial court's order. On appeal, the defendant argued, among other things that are not at issue in this appeal, that the trial court had improperly delegated its judicial authority by giving the plaintiff decision-making authority over the defendant's visitation with the children. R....