In Connecticut, parents frequently ask trial courts to modify child custody or visitation orders. There are many reasons for a parent to seek a change to a parenting plan and courts face an endless variety of family dynamics when making these decisions.
On March 29, the Appellate Court of Connecticut said in Dolan v. Dolan, 211 Conn.App. 390 (2022), that the trial court was within its discretion when it modified the custody and visitation provisions of a divorce decree. We consider the Dolan decision’s place in Connecticut jurisprudence surrounding custody modification.
Trial judge has broad discretion in a custody modification request
The divorce decree in Dolan incorporated the litigants’ custody and visitation agreement providing that after the school year, the ex-wife and child would relocate closer to the ex-husband in Massachusetts but within one hour of her job in Hartford. After getting a promotion at work she asked the court to modify the custody order to allow them to stay in West Hartford instead of relocating.
She said that changed circumstances brought the relocation agreement into conflict with the son’s best interests. The mother’s new supervisory role would require more time at work without the possibility of regular remote work. The move would no longer be in the son’s best interest because he would have to leave his friendships, school and community activities.
The trial judge emphasized the father’s negative behaviors. For example, the court described his testimony as a “self-serving” attempt to sow confusion about his “manipulation of the [mother]” about finances and visitation. The court found the father in contempt for violating an order that he not use “demeaning, denigrating, or otherwise maligning language” toward the mother as well as for withholding required mortgage payments, which the judge wrote was “egregious” and put the mother in “financial peril.”
The trial court said the mother was more credible and more open to compromise for the child’s welfare. The father displayed anger and threatening, unreasonable and demanding behavior. His “overall lack of civility” toward the mother interfered with his coparenting and “ability to act in the best interest of their son.”
The lower court said the mother’s promotion would be a substantial change and a “significant opportunity,” but would make the relocation unworkable. The promotion would strengthen her financial ability to provide for her and her son, so it would be in both of their best interests.
The child was doing well, so the court found it in his best interests to remain primarily with his mother in West Hartford. Accordingly, the judge modified the parenting plan to eliminate the relocation provision and amended the future visitation schedule to resemble the original arrangement.
Appellate court asks whether the trial court abused its discretion in modifying custody
The trial court when making or modifying any custody order must weigh factors that impact the child’s best interests. The judge may consider any relevant factor, including 17 factors in the statute. CT Gen. Stat. §46b-56(c).
A trial court’s modification decision stands unless it clearly abused its discretion. The overarching principle is that the court must have been directed by the child’s best interests as “reasonably supported by the evidence.”
The father argued that the mother’s promotion and a young child’s social life were not enough for a “substantial change in circumstances.” The appeals court, however, found no abuse of discretion, noting that the judge had credited the mother’s testimony about the promotion’s benefits and the lack of other opportunities. The trial court also made findings about why the modification would be in the child’s best interest.
Takeaways from Dolan
Three aspects of Dolan are noteworthy. One, when a litigant disobeys court orders or interacts disrespectfully or worse toward the other litigant, it can make a significantly negative impression on the trial judge. This may raise questions about the misbehaving litigant’s character, impacting the court’s assessment of what parental access arrangement is in a child’s best interest, leaning away from the misbehaving parent toward the other.
Two, at first glance this may appear to be a relocation case, which would be governed by a different statute. The father urged this interpretation, but the court clarified that if the decision did not involve a request to move with the child, the modification statute would instead apply. Here, the request was not to move away, but to stop a move to which the litigants had previously agreed.
Three, the opinion emphasized the child’s best interests as the primary issue in a request for custody or visitation modification. However, while it found the job promotion to be a significant change in circumstances, it did not discuss whether the court must answer both questions, perhaps leaving uncertainty about whether a material change is circumstances is required to modify or if a threat to the child’s best interests is sufficient.
Must there be a significant change of circumstances before a modification?
The Connecticut Supreme Court spoke at length about custody and visitation modification most recently in 1982 in Hall v. Hall, 186 Conn. 118, although Dolan does not cite Hall or many other cases. The Hall opinion interpreted the custody modification statute, CT Gen. Stat. 46b-56, to require that a trial court may modify custody orders if there was a material change in circumstances impacting the child’s best interests or the original order did not serve the child’s best interests.
The Hall court went on to discuss the “’material change of circumstances’ rule of postdecree custody modification” with roots in the family interest in a custody order’s finality that they can rely on not being modified on a whim, but only with a substantial change, citing Simons v. Simons, 172 Conn. 341 (1977).
Simons sheds light on the material-change-of-circumstances rule, explaining that Connecticut courts first considered this rule in the context of interpreting New York law, but that eventually Connecticut courts adopted it.
Application has varied. For example, one court said that even without an explicit finding of a material change in circumstances, an “implicit finding … will satisfy the threshold predicate for modification.” Weaver v. Sena, 199 Conn.App. 852 (2020). Some courts have said that if the request is only for a visitation modification, but not for actual custody, the change in circumstances is not necessary, while some have confusingly lumped custody and visitation together as requiring the change. Compare Szczerkowski v. Karmelowicz, 60 Conn.App. 429 (2000) and Denardo v. Bergamo, 272 Conn. 500 (2005).
And finally, several courts have said that the “ultimate test” for modification is the best interests of the child despite the material-change requirement. Batista v. Cortes 203 Conn.App. 365 (2021)
The bottom line
An experienced Connecticut family lawyer will understand the history and nuances of the standards applied to custody or visitation modification. When something comes to light that threatens children’s best interests, judges consider how the law will allow them to protect the children.
Even the threat to the child’s best interest itself may arguably be a material change in circumstances, so the two questions are implicitly related. Presenting relevant, strong evidence of both changed circumstances and risk to the child’s best interests is likely a good preliminary approach.
(Note: When a court in another state or country entered the custody or visitation order at issue in a modification request, different legal issues may arise beyond the scope of this post.)