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Thursday, August 18, 2016

GAETANO FERRO ON CONNECTICUT DIVORCE IN 1990!

In 1990 Carolyn Battista of "The New York" times discussed Divorce in Connecticut with Attorney Gaetano Ferro!  Here we can see the seeds of today's divorce conflicts in yesterday's demands that people--women?-- "be reasonable." 
"CHANGES in society and in the law have brought changes in divorce, says Gaetano Ferro, a lawyer in Westport. Reasons for divorce as well as settlements and child-custody arrangements are changing, he said, yet many people are still dissatisfied with the process of of dissolving a marriage. 
Courts in the state deal reasonably well with divorce, and couples can minimize its trauma, said Mr. Ferro, who wrote and published ''The Divorce Book, A Step-by-Step Guide to Separation or Divorce in Connecticut.'' The Wilton resident is the chairman of the family-law section of the Connecticut Bar Association and a fellow of the American Academy of Matrimonial Lawyers..."
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Monday, August 15, 2016

DOES A CHILD'S PREFERENCES MATTER DURING A CUSTODY DISPUTE?

My parents were married for over 60 years, but it wasn't all a bed of roses.  I will never forget how, after one of their big fights, my father asked me who I wanted to live with once they divorced--him or my Mom.  I wasn't going to be stupid and answer a question like that--even at ten I knew better!  Sure enough, they made up and the question became moot.  

However, if I'd thought it was a serious question, this is what I might have answered.  I would have said I wanted to live with my Mom, not because she was the better parent, but because she needed me more because of her drug and alcohol addiction.  I'm not sure that would have been such a good idea, however!  

So how do judges decide who gets the children--do they just ask the kids or what?   

The question of who gets custody of the children after a divorce remains a complex and difficult question in some divorce cases.  Luckily, most people see the common sense of keeping Mother in charge when she has been the primary parent on an ongoing basis and allowing for generous visitation from Dad.  But in divorces where custody is under dispute, how does the Court make the decision in regard to custody, and do judges in these cases take into account the preferences of the children involved?  

In CT, under 46b-56(b) the following factors are supposed to be taken into account as follows:
  1. The child's developmental needs
  2. Each parent's ability to meet the child's needs
  3. Each parent's desire to have custody
  4. The child's relationship with each parent, siblings, and anyone else living in either parent's home that may affect the child's best interests
  5. The stability of each parent's residence
  6. Each parent's willingness to encourage a relationship between the child and the other parent
  7. Whether either parent tries to manipulate the child or involve him or her in the parent's dispute
  8. Each parent's ability to be actively involved in the child's life
  9. The child's adjustment to his or her home, school, and community
  10. The length of time the child has lived in the current environment if it's stable
  11. The child and parents' mental and physical health
  12. The child's cultural background
  13. Either parent's history of domestic violence
  14. Whether the child has been abused and neglected
  15. The child's wishes as to custody, and
  16. Any other factors relevant to custody
As you can see, the child's wishes are way down there under 15.  It is not highlighted as a major factor.  

However, what I find really interesting when I talk to people who have not yet been to Court over custody is how many parents believe judges put a lot of weight on what the child wants.  In fact, what the child wants, even when he or she is a teenager, often isn't a major consideration in regard to custody decisions.  I hear so many parents say my daughter or son wants to live with me and he is 8, or 10, or 12 or whatever age, and can now decide.  Well, no, that is not the case.  Ultimately, the judge decides and the decisions will be made based upon the judges' assessment of all the factors under consideration listed 1 - 16 above, even one as vague as #16 "any other factors relevant to custody." 

In addition, keep in mind that the final decision is supposed to be based upon that often vague and greatly vilified standard "the best interests of the child."  

I hope all of you noted the "friendly parent" factor that so many protective mother advocates hate item #6 on the list above.  We do have a friendly parent factor in the State of Connecticut!  

So, despite the limitations involved that I have mentioned, at what age can the Judge begin to take into account the preferences of the child?  In the State of CT at younger than 5, the opinion of the child is not a consideration.  At 13, the child's preferences have a much greater impact. Between 5 and 13, Judges will consider the child's preferences on a case by case basis, whatever that means.  In California, FYI, the age at which a child's preferences are considered is 14.  

However, Judges ultimately have complete discretion regarding the impact a child's preferences will have on a custody decision.  If the Judge thinks that a child's preferences are based on poor judgment, he or she is unlikely to consider them.  As Divorcenet stated "A court can disregard a child's preference when the judge believes it's not in the child's best interests."  

Notoriously, if judges believe that a child's preference is founded upon "Parental Alienation Syndrome" PAS, that judge will be unlikely to grant custody to the alleged offending parent no matter what the child says. This is what happened in the Kathi Sorrentino case where the child was 15 and expressed a preference to be with his mother. However, the child's preference, on the most frivolous grounds, was determined to be an expression of PAS so father was given sole custody.  

Therefore, people who think their child can make up his or her own mind at the age of 13, this is simply not the case.   Case law supports this wishy washy approach as in Knock v. Knock, 224 Conn. 776, 788-9 (1991) where the Supreme Court ruled that the Court "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."  So a Judge may or may not take a child's preferences into consideration.  

So, how does the judge discover what a child's preferences may be.  In Divorcenet, there was a complete discussion regarding judges determining a child's preferences by interviewing the child in chambers along with a discussion of how an attorney should manage that kind of interview.  In all my time hearing about divorce and custody matters in Connecticut during the last decade, I have never known a judge to interview a child in chambers about his or her preferences.  It could be this does happen and I just don't know about it, but still.

Also, there was a discussion of when children can testify in open Court regarding their preferences.  I have known many parents to insist that their children ought to have the right to testify in Court regarding their preferences. As far as I can see, judges absolutely frown on parents who insist upon putting their children through the trauma of testifying in Court.  This is so certain that I can pretty much say that if you insist upon having your children testify while your ex doesn't, that's about a guarantee that you will not get custody of your children!  

For the better part, if there is a custody dispute, what happens is that if your child is under 13, the court will appoint a GAL, a custody evaluator, or a family relations officer to do a thorough investigation of your circumstances in order to present a recommendation to the court which will ordinarily be accepted.  If the child is 13 or older, it is likely the child will be assigned an attorney of the minor child in order to advocate for that child's wishes.  But all of this is really not rigidly adhered to.  I've seen children who have both a GAL and an AMC. I've seen children over 13 who only have a GAL.  It all depends upon the politics of your particular case.  

The real danger of these investigators is that you have to rely on their word that when they report the wishes of the children that they are actually telling the truth.  I have no doubt that they lie on occasion.  Thus, if you have any concerns about the investigator in your case, you might want to have your child sit down and write to the investigator stating what his or her preference is so that it is on the record.  If the custody evaluator or GAL will not accept it, which is what happened to me, you can simply submit it directly to the Court.

You may be accused of manipulating your child to write the letter, but if you have concerns about the truthfulness of the professionals in your case, it is better to be thought of as manipulative than not have your child's preferences considered at all.  

Bottom line is, the State of Connecticut has a presumption of joint legal custody if both of you agree to that.  What is interesting is how few attorneys actually explain that to their clients.  What you are actually fighting over most of the time is which parent is going to be the residential parent, i.e. the home where the children primarily reside, i.e. what is considered their residence legally speaking for matters such as school attendance.  Other than that, the sky is the limit in terms of how much actual time each parent gets to spend with the children.  

Traditionally, the visitation is set for one or two evenings a week and every other weekend for the non-residential parent, but I have known people to renegotiate that for more time for the non-residential parent.  

When you get down to it, fighting over this day here or that day there to the tune of thousands and thousands of dollars is pretty silly, and most couples left to their own devices will work out a modus vivendi.  

The question is do you truly want to create an unpleasant atmosphere by quarreling at every turn.  Many abusive family court attorneys and vendors would love you to, but it is your job to see through them and move forward. Trust me, ten years later when you are considering college tuition fees, you will be happy you did so. 

Bottom line, again, when it comes to the children's preferences, do not count on them to get you custody because it is not an absolute.

Friday, August 12, 2016

HOW FAMILY COURT PERPETUATES DOMESTIC VIOLENCE!

Victoria Law of TRUTHOUT explains as follows:

"When Kate finally escaped her abusive husband, she thought that the violence and terror were over. What she learned instead is that, when children are involved, escape and safety become even more difficult as abusive ex-partners use child custody and the family court system to continue their harassment and abuse.


The first time her husband hit her, Kate was pregnant with their first child. He had forgotten his fanny pack at the drug store, Kate recalled. Once at home, she told Truthout, "he smashed me hard on the back of the head and said, 'How could you be so stupid?'"

It was the first time he had struck her, but her husband had emotionally and verbally abused her for years. "I felt like I was walking on eggshells and was nervous all the time," she explained. "All I could do was grovel and then go back to the drug store to get it..."

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Tuesday, August 9, 2016

HARTFORD COURANT REPORTS JUDICIAL MARSHAL GETS SLAP ON THE WRIST FOR PROMOTING PROSTITUTION, SEXUAL ASSAULT AND TRAFFICKING IN PERSONS!

David Owens of The Hartford Courant reports as follows:
LITCHFIELD -- Former Waterbury judicial marshal Michael A. Connelly was sentenced to one year in prison Tuesday on charges of promoting prostitution, sexual assault and trafficking in persons.
Connelly — brother of the late Waterbury State's Attorney John Connelly — had pleaded guilty under the Alford doctrine, meaning he did not admit guilt but conceded that prosecutors had enough evidence for a conviction.
Connelly, 54, received a sentence of 12 years in prison suspended after one year served and five years' probation.
"I'm sorry. I made some bad decisions," Connelly told Superior Court Judge John A. Danaher III. "I won't be back."
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Monday, July 25, 2016

CT LAW TRIBUNE REPORTS THE STATE OF CT IS SHORTCHANGING SPECIAL ED STUDENTS!

MEGAN SPICER OF THE CT LAW TRIBUNE REPORTS AS FOLLOWS:

"Connecticut's disability rights agency says the state is cutting off school a year too soon for some special education students.

The Office of Protection and Advocacy for Persons with Disabilities filed a federal class action July 15 against the state board of education, alleging that it is treating disabled students differently from their peers by terminating education services at age 21.

General education students can obtain their high school diplomas via adult classes at any age. The federal Individuals with Disabilities Act requires that schools provide the same opportunities to special education students at least until their 22nd birthday, the suit contends..."


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