Enforcing Judgments for Money Damages

After a civil lawsuit has been won in court, the process of collecting an award of money damages is not yet over. Sometimes the losing party in a lawsuit will pay the award right away, but often, collecting an award of money damages is not that simple. Connecticut courts will not follow up on their own initiative after a lawsuit to make sure that the money damages awarded to a winning party are paid by the other party; as such, the winner of a lawsuit needs to pursue the matter on his own. After an award has been made by a judge, the winner of the lawsuit becomes the “judgment creditor” and the party owing money becomes the “judgment debtor.” A money judgment may be enforced against any asset of the judgment debtor that is not otherwise exempt by law. The amount that can be recovered includes the judgment itself and the costs incurred in obtaining the judgment.
When the judgment debtor is a natural person, the judgment creditor can petition the court for an order setting up an installment payment plan to satisfy the judgment. If the judgment debtor does not make the court ordered payments, the judgment creditor may apply to the court to have a portion of the judgment debtor’s wages taken until the debt is satisfied.
Another option available to a judgment creditor is to request that the court clerk “issue an execution” to collect the judgment. This is a request to grant a judgment creditor permission to hire a state marshal to “execute” the judgment for him. The marshal will present legal documents to a financial institution or other person holding some of the judgment debtor’s assets, ordering that money be paid to the marshal. The marshal will then turn the money over to the creditor, satisfying the debt. However, before this is done, a judgment creditor needs to find out what assets a judgment debtor has that can be usedto satisfy his debt. This process involves submitting a formal set of questions, called “interrogatories”, to the judgment debtor. The court does not get involved in this aspect of the post-judgment process unless the judgment debtor objects to, or refuses to answer, the questions asked. In that case, the judgment creditor has to go back to the court for help and permission to engage in additional discovery of information about the judgment debtor’s assets. This discovery process can get as extensive as the full discovery process that parties are allowed in any civil action, and if those who are asked to participate in discovery do not cooperate, they can be held in contempt of court and may be ordered to pay penalties.
A judgment lien is another option that gives the creditor the right to be paid a certain amount of money from proceeds from the sale of the debtor’s property. In Connecticut, a judgment lien can be attached to the debtor’s real property, including a house, condo, or land, or to the debtor’s personal property, things like antiques, art, jewelry, and other collectibles and valuables. However, to protect the debtor, there are strict rules on how and when the liens can be recorded and what types of property are exempt.
It is also important to note that a judgment creditor himself may run afoul of the law if he attempts to collect the debt by fraudulent, harassing or other illegal means. Both state and federal laws regulate debt collection activities and could result in significant fines and costs if not followed.
The process of enforcing a judgment can be complicated and drawn out. To collect an award of money damages as quickly and efficiently as possible, please call our firm today, and we will be happy to advise you on the specifics of your case.

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Collecting Unpaid Contractual Debts in Small Claims Court

Almost every small business will encounter customers who are overdue on or are avoiding paying their bills. Failure to pay bills is a breach of contract on the part of the non-paying customer, and Connecticut courts provide a means to collect this debt. For controversies involving $5,000 or less, these types of matters may be brought before Small Claims Courts. There, such cases are decided by magistrates; the results are binding decisions that cannot be appealed to a higher court.
Simplified rules of evidence and procedure apply in Small Claims Court that are less complicated than those in regular civil courts. However, there is a number of technical requirements for bringing a case to Small Claims Court that may pose some difficulty for those who are unfamiliar with the system. One of these requirements is that the contract in question has met the statutory requirements to be enforceable. Generally, courts will not get involved with the enforcement of contracts that the law considers to be invalid.
An initial distinction between types of contracts is between those for “goods” and those for other things, like services and real estate. For instance, contracts for sale of goods for $500 or more must be in writing and signed by the parties in order to be enforceable. Conn. Gen. Stat. § 42a-2-201.
Contracts for the sale of things other than goods do not always have to be in writing. For example, oral contracts for the provision of services or the sale of goods for less than $500 are enforceable in the courts. However, many common types of contracts do have to be put in writing to be enforceable, including agreements regarding administration of estates, agreements regarding the debts of others, prenuptial agreements, sales of real estate, contracts for something to happen over 1 year from the time of agreement, and contracts for loans in excess of $50,000.
If you have an unfulfilled contract and are thinking about filing a lawsuit, we can help. There are many other considerations to take into account when deciding whether or not one of these matters is worth pursuing in court, and there are other alternatives to Small Claims Court that may be more cost effective in collecting outstanding business debts. Our office has experience consulting with businesses to decide the best course of action for collecting their outstanding debts, and we would be happy to speak with you regarding your issue any time!

 

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Conservatorships

When a person becomes incapacitated and requires help with managing his own affairs, appointing a conservator becomes necessary.  Conservatorship is a legal mechanism by which the probate court appoints a substitute decision-maker for an individual who is determined to be incapable of managing his or her own financial or personal affairs. The definitions of incapacity vary slightly from jurisdiction to jurisdiction and depend on the level of support sought for the incapacitated person.  Generally, however, a person is considered incapacitated if his or her ability to receive and evaluate information or communicate decisions is so impaired that the person cannot take care of his or her own physical health or safety (meaning provide the healthcare, food, shelter, clothing, etc. the person needs to avoid serious physical injury or illness).

In Connecticut, a conservator of the estate supervises financial affairs, including, among others, caring for property, managing bank accounts and ensuring the safe handling of the person’s income. A conservator of the person supervises personal affairs assuring that the person’s basic needs, including food, shelter, clothing and health care, are met. In Massachusetts, only the nomenclature differs in that a conservator of the person is called a guardian, and a conservator of the estate is called a conservator.   Conservatorships are under the jurisdiction of the local probate court.

There is a difference between a voluntary conservatorship and an involuntary conservatorship. To appoint a voluntary conservator, an individual simply files a written application with the probate court specifying who should serve as the individual’s conservator. Unless there is a good reason not to do so, the probate court judge will appoint whoever is designated in the conservatorship application.

In contrast, an involuntary conservator is requested by a third party to manage the financial or personal affairs of someone who is legally incapable of doing so himself or herself.  Many involuntary conservatorships are initiated by medical facilities, such as, for example, hospitals, assisted living facilities or nursing homes.  Once medical personnel determines that a person cannot make decisions regarding his or her welfare, the facility will begin the involuntary conservatorship process by alerting the State authorities. A hearing is then held at a probate court, which receives evidence regarding the individual’s mental and physical condition, the ability of the individual to care for himself or herself or to manage his or her affairs, and the ability of the individual to meet his or her needs without the appointment of a conservator.  To affirm the appointment of an involuntary conservator, a probate court in Connecticut must find by “clear and convincing” evidence that the individual is incapable of caring for himself or herself. The court must also find that a conservatorship is the least restrictive means of intervention. For example, the court must determine that the individual does not have a valid durable power of attorney or appointment of health care representative or if those instruments are present, they are not sufficient to carry out the individual’s financial and personal affairs. Similar standards apply under Massachusetts probate law.

In appointing a conservator, the court tries to put the best interests of the individual first, trying to determine who the conserved person prefers. For example, a court will not approve a conservator who has interests that may conflict with those of the conserved person, such as, for example, a creditor of the conserved person.  Generally, however, almost anyone (except a minor) willing to take on the responsibility can be appointed as a conservator. The conservator can be a relative or friend, a private professional conservator, or a state-appointed conservator, such as a lawyer.

All conservators are obligated to promote and protect the well being of the individual and to encourage the development of maximum self-reliance and independence. Conservators must seek court approval before taking certain actions including making gifts, changing investments or mortgaging/selling a conserved person’s primary residence.

Our law firm is frequently called by the probate courts to serve as a conservator for an incapacitated person or an attorney for an incapacitated person who is sought to be conserved.  Building on the strength of our experience, our firm can offer expert yet compassionate advice for families and individuals considering a Connecticut or Massachusetts conservatorship.  We can advise you regarding the best solution for your personal situation, and whether a conservatorship or some other legal alternative would best suit your needs.

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A Workplace Nightmare: Who Decides?

by Polina Bodner Shapiro, Esq.

The summer is winding to a close and with it, the relaxation of vacation and time-off spent with family and friends. People are gradually returning to the normal rhythms of their work places, as well as their stresses.

For better or worse, every office has its own cast of characters: the jokester, the slacker, the gossip, the brownnose, to name a few.  But there are also those fellow employees who can make your job downright miserable. What happens when your coworker’s behavior goes beyond annoying, and becomes insulting and emotionally harmful? And what type of legal remedy is available, if any?

In Cassotto v. Aeschliman, 130 Conn. App. 230 (2011), a plaintiff brought suit against a coworker for intentional infliction of emotional distress. To demonstrate intentional
infliction of emotional distress in Connecticut, it is necessary to show that (1) the person intended to inflict the harm or knew it was likely to result; (2) the conduct was extreme and outrageous; (3) the conduct directly caused the emotional distress; and (4) the distress caused was severe.

You may be asking, naturally, how extreme and how outrageous? In Cassotto, the plaintiff complained that the defendant deliberately lied to him about commands that came from the plaintiff’s superior, and thus endangered his job. The defendant spread rumors
that the plaintiff was prone to outbursts and irrational behavior. The defendant also became violently angry at the plaintiff, and seemingly threatened him when he looked at the plaintiff and said “Bang, Bang.”

The defendant certainly may have had some answering to do with the HR department, but as far as the court was concerned, that level of annoying behavior was NOT an example of extreme and outrageous conduct. The opinion reiterated that it was the court’s prerogative
to decide what constituted extreme and outrageous conduct for the purpose of intentional infliction of emotional stress, and at least in this case, they seemed intent on setting a high standard.

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Steering Clear of Liability

by Polina Bodner Shapiro, Esq.

In tort law, a defendant can only be held liable for injuring a plaintiff if
the defendant’s negligence caused the plaintiff’s injuries.  There must be a direct link between the negligent behavior and the injury so that the behavior is both the actual and the proximate cause of the injury. The concept of proximate cause limits a defendant’s liability for its negligence to consequences reasonably related to the negligent conduct. In other words, the determination of liability turns on whether the plaintiff’s injury is a foreseeable result of defendant’s actions.

Suppose, for example, that a defendant negligently causes an automobile accident, injuring another driver. The colliding cars also knock down a utility pole, resulting in a power outage. Clearly the defendant’s negligence has in fact caused both the accident and power outage. Most people would agree that the negligent defendant should be liable for the other driver’s injuries, but should he also be liable to an employee who, due to the
failure of her electric alarm clock, arrives late for work and is fired?  Sounds too far-fetched?  Think again – consider the following two recent cases decided by Connecticut courts.
Imagine this scenario: you stopped your car at an intersection, waiting for a break in traffic so you can turn left. Suddenly, due to no fault of your own, your car is struck from behind. You left the wheels slightly turned to the left, anticipating your turn, and as a result of the collision, your car veers into oncoming traffic.

To what extent can you, as the driver, be found liable for the damage to an oncoming
vehicle? Connecticut appellate court discussed this precise situation in  Sic v. Nunan, 128 Conn. App. 692 (2011) and ultimately held that a reasonable jury could conclude that one does in fact owe a duty of care to oncoming traffic. How?  The angle, at which one keeps its wheels while stopped at an intersection, could be an issue for a jury to consider in judging whether a driver breached a duty of care owed to other drivers.

Consider another situation – a truck crashes, spilling diesel fuel over the road. Police
comes, sets up cones and road crews begin the clean-up. Before the spill is cleared, another vehicle hydroplanes on the road slicked by the fuel, and smashes into an emergency vehicle. The driver of that vehicle sustains serious injuries.  Who is at fault: the truck
driver, the town that employs the emergency personnel or the injured driver himself? In Kumah v. Brown, 127 Conn. App. 254 (2011), another recent Connecticut case, the court decided on the issue of liability where several different causes arguably contributed to the plaintiff’s injuries. As too many variables got in the way, the court held that the driver who smashed through the cones and into the accident scene could not blame the truck driver,
who caused the fuel spill. However, the court allowed the plaintiff to proceed with a suit against the town, whose employees could have done more to secure the spill scene.

If you have been injured in a motor vehicle accident, these are just a few of the many
nuances that can make or break your case or significantly affect how much compensation
you receive.  Give us a call today at the Bodner Shapiro Law Group – our experienced legal team will provide effective legal representation to ensure the best possible outcome for your case!


 

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Recent Developments in Massachusetts Divorce Law – Alimony

Alimony is the legal obligation to provide financial support to one’s spouse after a divorce. Alimony restrictions depend on the state of residence, with some states allowing lifetime support and others terminating payments after the recipient becomes self-supporting.  Importantly, in September 2012, Massachusetts passed the Alimony Reform Act, which terminates payments when the person who pays alimony retires or after a 12-year period of alimony payments.

In 2007, the American Academy of Matrimonial Lawyers (AAML) attempted to construct a national formula that would serve as a “starting point” for alimony payments. The formula loosely suggests:

“…Take 30 percent of the payer’s gross income minus 20 percent of the payee’s gross income. That amount, when added to the gross income of the payee, should not exceed 40% of the combined gross incomes of the parties. The AAML suggests calculating the duration by multiplying the length of the marriage by a certain numerical factor…”

The formula is meant to serve as a rudimentary but standard place of reference. Significant factors such as the payee’s age, health, and potential minor responsibilities are also considered.

The conflict between adhering to a formula and weighing a judge’s decision is heavily debated. On the one hand, formulas offer a fair and predictable way of going through a very hard situation. On the other hand, court discretion allows for more personal, case-by-case review.

There is no doubt that divorce is a difficult time for both
parties. Often, it is important to discuss uncomfortable issues to prevent a
larger problem.  If you want to know your legal rights when it comes to alimony or divorce in general, come to Bodner Shapiro Law Group – we can help you!

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The Importance of Prenuptial Agreements in Connecticut

By Polina Bodner Shapiro, Esq.
Until recently, agreements made prior to a marriage regarding the dissolution of the marriage were disfavored in the United States and Connecticut. That changed in 1980 with the ruling of the Connecticut Supreme Court case of McHugh v. McHugh, which stated that prenuptial agreements can be binding on the court in a marriage dissolution action.

Prenuptial agreements have a strong presumption of validity, and are generally upheld by the courts.  Prenuptial agreements can be challenged on the principle of unconscionability, which is often difficult to prove.   As a result, the courts are reluctant to refuse the enforcement of a prenuptial agreement, unless there is a striking evidence of injustice, unfairness and/or unconscionability present in the circumstances surrounding the execution of the agreement.

Earlier this year, the Connecticut courts were called upon to investigate the enforceability of postnuptial agreements.  Postnuptial agreement is entered into by spouses after marriage but before separation.  In the recent Connecticut Supreme Court case Bedrick v. Bedrick, the Court showed renewed skepticism for enforcing agreements regarding dissolution actions between the spouses.  In Bedrick case, Deborah and Bruce Bedrick executed a postnuptial agreement one year after their marriage, setting out their rights and responsibilities in case ofdivorce.  Their agreement called for a one-time cash settlement instead of any alimony.

When Mrs. Bedrick filed for divorce, she sought to receive alimony and an equitable distribution of their property.  Mr. Bedrick insisted on having the postnuptial agreement enforced – deny all alimony and distribution of property in exchange for a cash settlement.  This case ultimately ended in the Connecticut Supreme Court.  While noting that postnuptial and prenuptial agreements are very similar to each other, the Court nonetheless provided a list of strict “fairness” requirements that must be present in order to have an enforceable postnuptial agreement.  The Court reasoned that was necessary to ensure that spouses were not forced into agreements under the threat of divorce.  Under
the fairness test, the Court ruled that the Bedrick’s postnuptial agreement was
unenforceable because of the spouses’ combined commitments to the property at stake (primarily, a car wash business which they had both worked at for 30 years) and the large difference between the settlement amount and the value of the property.

If you want to make sure that the agreement you make regarding the dissolution of a marriage is enforced in court, it is best to execute that agreement before you take your
vows.  Prenuptial agreements have a better chance than postnuptial agreements of being accepted by the court as binding on the parties.

www.bodnershapiro.com

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Adding a Loved One to Your Deed

One might think that adding a loved one’s name to their deed is a good idea.  Whether it is an elderly parent adding an adult child in an attempt to simplify the probate process or a couple in a new
relationship trying to show commitment, the truth is: it may not be a good idea.

When you add someone’s name to your deed, you are giving away part of your asset, forever.

A house is an asset that creditors may use to satisfy unpaid debts.
Legally, adding someone to your deed will allow the asset to be used to
satisfy debts of that person, like unpaid credit card bills, court judgments and others.  Although your loved one may be in good financial and legal standing currently, the situation can change in an instant.  A bad car accident, a sudden layoff, and other endless possibilities exist.  The reverse is also true – your own misfortune could put at risk your co-owner’s residence.

You are also taking a risk with your personal relationship.  Your
loved one may have a change of heart and find someone else; would you want them to take part of your assets in addition to breaking your heart?  I doubt it.  Additionally, even if the relationship is sound, other complications can threaten your asset and financial situation.
If others are listed as co-owners on the deed, refinancing requires
their agreement and depends upon their credit score.  This could have a dramatic impact on the loan terms made available to you, even if you have great credit.  A bad situation for them could turn into a
bad situation for yourself.

If you decide to sell, the co-owner would have to sign most of the important documents, such as the listing agreement, sales contract, deed, and others.  That gives your co-owner a lot of leverage and could result in long delays and legal complications.  It could leave
you with the entire mortgage payment but only half of an ownership stake.  Not an ideal situation.

The tax consequences can be serious as well.  Adding a loved one’s
name to the deed means gifting at least half of the asset’s value to them.  Depending on the value, that gift may trigger gift tax obligations, affect your estate planning or, at minimum, burden you with additional tax preparations for gift tax returns.  Depending on the circumstances, you also may be saddling your loved one with a hefty capital gains tax bill on the future sale of the property.

To show your love, don’t add your loved one’s name to your deed.
Protect your loved ones properly by providing for them in a will drafted
by an experienced attorney, who is familiar with your family’s situation.

 

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DAMAGES IN PERSONAL INJURY CASES

In a personal injury lawsuit, an injured party (plaintiff) is entitled to recover all the damages caused by the negligent act, provided that the plaintiff establishes, by preponderance of evidence, a causal relation between the injury and the physical condition, which he claims resulted from it.  Under the law of damages, insofar as money can do it, the plaintiff is entitled to receive fair, just and reasonable compensation for all injuries and losses, past and future, which are proximately caused by the defendant’s proven negligence. Negligence is a proximate cause of a loss or injury if it is a substantial factor in bringing that loss or injury about.

The law imposes certain rules to govern the award of damages in any case where liability is proven. Just as the plaintiff has the burden of proving liability by preponderance of the evidence, he has the burden of proving his entitlement to recover damages by preponderance of the evidence. Thus, the plaintiff must prove (1) the nature and extent of each particular loss or injury for which he seeks to recover damages and (2) that the loss or injury in question was proximately caused by the defendant’s negligence.

Once the plaintiff has proved the nature and extent of his compensable injuries and losses, it becomes the jury’s job (or the court’s if there is no jury) to determine what is fair, just and reasonable compensation for those injuries and losses. There is often no mathematical formula in making this determination. Instead, the jury (or the judge) must use human experience and apply sound common sense in determining the amount of the verdict.

In a personal injury action, there are two general types of damages: economic and noneconomic damages. Economic damages are monies awarded as compensation for monetary losses and expenses, which the plaintiff has incurred, or is reasonably likely to incur in the future, as a result of the defendant’s negligence. They are awarded for such things as the cost of reasonable and necessary medical care and lost earnings. Noneconomic damages are monies awarded as compensation for non-monetary losses and injuries, which the plaintiff has suffered, or is reasonably likely to suffer in the future, as a result of the defendant’s negligence. They are awarded for such things as physical pain and suffering, mental and emotional pain and suffering, and loss of diminution of the ability to enjoy life’s pleasures.

Following are recoverable economic and noneconomic damages in a personal injury case:

ECONOMIC DAMAGES

Medical Care and Expenses

The plaintiff is entitled to recover the reasonable value of medical care and expenses incurred for the treatment of injuries sustained as a result of the defendant’s negligence. The plaintiff must prove that the expenses he claims were reasonably necessary and proximately caused by the defendant’s negligence.

Loss of Earnings or Earning Capacity

The plaintiff is also entitled to recover any lost earnings that he proves to have been proximately caused by the defendant’s negligence. With respect to lost earnings up to the present time, the plaintiff must prove that the defendant’s negligence has prevented him from receiving the earnings for which he seeks compensation. He must do so by establishing a reasonable probability that his injury brought about a loss of earnings. The evidence must establish a basis for a reasonable estimate of that loss.

Loss of Earning Capacity

The plaintiff is also entitled to damages for the loss of future earnings based upon the evidence as to what he probably could have earned but for the harm caused by the defendant’s negligence and as to what the plaintiff can now earn through the earning period of his life.

NONECONOMIC DAMAGES

Mental Distress and Suffering

A plaintiff who is injured by the negligence of another is entitled to be compensated for mental suffering caused by the defendant’s negligence for the results that proximately flow from it in the same manner as he is for physical suffering. Included within this class of damages is the fear that death will result from an injury, if the jury concludes the plaintiff honestly had this fear.

Loss of the Ability to Enjoy Life’s Pleasures

The jury must consider, as a separate category for awarding damages in this case, the length of time the plaintiff was, or will probably be, disabled from engaging in activities which he enjoys.

Permanent Impairment or Loss of Function

If the jury finds that it is reasonably probable that the plaintiff has suffered permanent physical harm, loss of function or disfigurement, he is entitled to be compensated for that category of injury. The award should be in accordance with the nature and extent of such physical impairment, loss of function, or disfigurement and the length of time he is reasonably expected to endure its negative consequences. Evidence such as age, health, habits, and physical condition may also be considered.

Disfigurement

The jury may also assess fair compensation for any disfigurement such as scaring. It must take into consideration any reasonable probability that the disfigurement will be less noticeable as time goes on and also taking into consideration any mortification and anguish the plaintiff has suffered and will in the future suffer.

Pre-existing Condition

The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant’s negligence even though those injuries and losses are more serious than they otherwise would have been because of a pre-existing condition. The jury may not compensate the plaintiff for the pre-existing injury itself. But, the aggravation of such an injury, proximately caused by the defendant’s negligence, is a proper item of noneconomic damages.

Damages for Death

Damages for death are allowed as compensation for the destruction of the decedent’s capacity to carry on life’s activities, including his capacity to earn money. It is the sum that would have compensated the deceased so far as money could do for the destruction of his capacity to carry on life’s activities, as he would have done had he not been killed, including the destruction of his earning capacity.

Loss of Consortium

The law allows damages for the loss of consortium. These are damages due a spouse because of injuries to the other spouse.  “Consortium” encompasses the services of the spouse and the variety of intangible relations that exist between spouses living together in marriage. These intangibles are generally described in terms of affection, society, companionship, and sexual relations. They have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid, that are legally recognizable, protected rights arising out of he civil contract of marriage.

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CHILD CUSTODY IN CONNECTICUT

Is there an age at which a child, who is the subject of a dispute, can choose the parent or other party that he/she prefers to have custody?

SUMMARY

A child’s preference is never the only criterion for making a custody decision in a dissolution of marriage proceeding, regardless of the child’s age. Neither case law nor Connecticut statutes establish or designate a particular age that is considered old enough to state a preference in a custody determination. In any proceeding for an annulment, dissolution of marriage, or legal separation, judges use the “best interests of the child” standard in awarding custody of minor children. If both parents agree, the statutes establish a presumption of joint custody. There is also a presumption that it is in the child’s best interest to be in the custody of a parent over a non-parent. But, testimony or other evidence can rebut both of these presumptions. The court must consider any “relevant and material information obtained from the child, including the informed preferences of the child” in making or modifying an order. The court exercises its discretion in each case and set of circumstances in considering the appropriate age of a child expressing a custody preference.

Connecticut courts have held that the law requires only that the court take the child’s wishes into consideration and that the court’s ultimate determination of the child’s best interest depends on all the facts of a particular case.

BEST INTEREST STANDARD

In any family relations case, including marriage dissolutions, the court is authorized to require an investigation of the circumstances of the child and family, and if it orders one, cannot dispose of the case until the investigation report has been filed (CGS §§ 46b-6 and -7). The investigation can include the child’s parentage and surroundings; his or her age, habits, and history; the home conditions; habit; and character of the parents; an evaluation of the child’s physical and mental condition; the cause of the marital discord; and the financial ability of the parties to provide support. The court may also appoint counsel for any minor child when it deems it to be in the child’s best interest (CGS § 46b-54).

The court can make and modify any order regarding custody, care, support, or visitation. The court can assign custody to the parents

jointly, to either parent, or to a third party “according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. ” In making or modifying such an order the court must consider a number of factors such as the child’s temperament and developmental needs, the parents’ capacity and disposition to meet those needs; the child’s relationship with each parent; and relevant and material information the child provides, including his or her “informed preferences” (CGS § 46b-56).

JOINT CUSTODY PRESUMPTION

Joint custody is defined as an order awarding legal custody to both parents, providing for joint decision-making by the parents, and requiring that physical custody be shared by the parents so as to ensure the child has continuing contact with both parents. The court can award joint legal custody without awarding joint physical custody if the parents agree to it (CGS § 46b-56a).

The statute establishes a presumption that joint custody is in the child’s best interest, if the parents have so agreed. In such a case, if the court declines to enter a joint custody award, it must state the reasons in its decision. If only one parent seeks joint custody, the court can order both parties to submit to conciliation at their own expense with the costs allocated between them based on ability to pay and as determined by the court.

PARENTAL CUSTODY PRESUMPTION

In any custody dispute involving a parent and a non-parent, the law establishes a presumption that it is in the child’s best interest to be in a parent’s custody (CGS § 46b-56b). A showing that it would be detrimental for the child to be in the parent’s custody can rebut this presumption.

The law specifically authorizes interested third parties to file a motion to intervene in a custody dispute (CGS § 46b-57). The court can award full or partial custody to such a party “upon such conditions and limitations as it deems equitable. ” In such situations, the court must appoint an attorney to represent the child’s best interest. The same conditions described above that must guide the court in making its decision apply, such as the child’s best interest and his or her wishes, if the child is “of sufficient age and capable of forming an intelligent preference. ”

CASE LAW

In an appeal of a Superior Court decision in a case dissolving a marriage and awarding custody of a minor child, the Connecticut Supreme Court ruled that the trial court did not abuse its discretion in deciding the child’s wish to live with one parent was not in her best interests. The Supreme Court ruled that “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” (Knock v. Knock, 224 Conn. 776, 788-9 (1993)). Although a child’s preference is one factor the court considers, it is not the only or the determinative one.

In another case, the court concluded that a minor child who was five years old at the time of the hearing, was not “of sufficient age or capable of forming an intelligent preference” (Faria v. Faria, 38 Conn. Supp. 37, 40 (1982)). More generally, in a Connecticut Appellate Court ruling that involved the trial court’s interview of a seven-year-old child in chambers in the absence of the parties and their counsel, the court held:

[W]hether the child’s preferences and feelings as to custody and visitation are a significant factor in the court’s ultimate determination of the best interest of the child will necessarily depend on all the facts of the particular case, including the child’s age and ability intelligently to form and express those preferences and feelings (Gennarini v. Gennarini, 2 Conn. App. 132, 137 (1984))

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