PAULA J. FISH v. ANDREW J. FISH, JR. (SC 17500)

The emotional and sexual abuse of children always seems difficult for Family Court in Connecticut to handle.  We saw that in the Wiegand/Wilkerson case.  Recently, this issue came up for me again.  While doing research on other matters, I came across the case of Paula J. Fish v. Andrew J. Fish, Jr.  Let me know what you think of this case 

I understand that when I summarize a Court's Memorandum of Decision, the entire piece of writing could be a work of fiction, but on face value, this is what we have.  In the words of the Court, here is a rundown on the story. 

The Parties in this case were married on June 21, 1985 and then had a child, a little girl, in 1989.  The marriage lasted for around eleven years or so and then was dissolved on March 5, 1996. Both parents shared joint custody including an evenly divided parenting arrangement.

After the divorce there was ongoing tension between the Parties, ie. arguments over tax issues, over tuition for the Child's private school, as well as child support--your general money issues. 

The child was often caught between the warring parents and the Plaintiff Mother constantly asked the child for a detailed report of what happened when she visited the Father. So it is not surprising that in June, 2001, Attorney Emily J. Moskowitz was appointed as the Guardian Ad Litem for the little girl later taking on the additional role of Attorney for the Minor Child. 

Then in May 2002, the Defendant Father filed a Motion to Modify custody in which he requested sole custody of the child with supervised visitation for the Plaintiff. 

This is where I get to the point of saying, you've got to be kidding me.  This is how the Court describes this man.  He is a person who "failed to provide a clean and appropriate home for the child" one who "demonstrated inappropriate behavior of a sexual nature in the child's presence", i.e. walked around with an open bathrobe exposing his genitals to her.  Not only that, he "kept a dangerous dog in his home." 

Ok, now I get why the Plaintiff was asking her daughter for detailed information regarding her visits to the Father's house.  If I were this child's mother, I would be going out of my mind knowing what was going on and not being able to do anything to stop it. 

Perhaps someone can tell me why the Defendant Father's inappropriate, if not criminal, behavior was reported in a Supreme Court Decision and there is no mention that this Father was arrested for child abuse for doing this to his daughter.  If the Defendant Father went to a local park and did this he would be in jail for indecent exposure, but guess it is OK if you do it at home to your daughter.  Please, someone, explain why this is not a criminal act.  All I can say is that my heart goes out to the Mother. 

Ok, back to Dad and what he has been up to.  The Memorandum of Decision continues with the Court stating that at the Defendant's house, the child "has been exposed to a filthy and unkept environment, with multiple cats, cat feces and urine odors throughout the home."  Aren't we talking another criminal offense here?  Aren't people who keep multiple cats and don't know how to care for them ordinarily brought up on charges of animal abuse? 

But let's not stop, there is more.  According to the Court, when the Defendant got angry, he would lose control of himself, hit himself, and run up and down stairs.  Furthermore, he drank wine every day which made him extremely unpredictable.  And the Court stated, "The child was adamant in her desire not to stay at the defendant's house overnight and expressed no desire to live with him." 

Meanwhile, in 2002, when the proceedings in the Trial Court were underway, the Plaintiff Mother had just had a double mastectomy and was undergoing chemotherapy.  Please, if I had this to deal with I would have a lot more than just cancer!  But getting down to it, come on, THIS is the time when the Defendant Father decides he is going to Court to take the child away from the mother.  Wow, what a guy!  No wonder his daughter doesn't want to have anything to do with him. 

And guess what!  Who do you think the Defendant hired as his attorney?  Our friend, Attorney Louis Kiefer who represented Mr. Tom Wilkinson in the Wiegand/Wilkinson case.  Ahh!  Ain't it nice to see old friends again!

The final determination of the Trial Court which was affirmed upon appeal by the Appellate Court was an arrangement in which the Plaintiff Mother, Paula J. Fish and the child's paternal aunt, Barbara Husaluk, shared joint custody, and the child's primary residence was in Aspen, Colorado with the Aunt. The Defendant Father was to be included in all major decision making, as was Plaintiff Mother, with the paternal aunt, Barbara Husaluk, making the final decisions.  Both the Plaintiff, the child, the Attorney For the Minor Child, and the Custody Evaluator, Dr. James C. Black agreed that this was the best arrangement.

So does the Defendant Father just shut up and let everyone be happy?  No, on he goes to the Supreme Court.  After all, litigating is so much fun! 

On the Supreme Court level, the Court reversed the decision and remanded the case to the Trial Court for further proceedings based upon a legal technicality.  The Supreme Court's decision is sixty seven pages long, and I have to admit, I didn't have the patience to plow through the entire discussion.  But this is the gist of what I understood. 

As far as Supreme Court was concerned, the primary question at hand was what burden of proof did the Plaintiff have to meet in establishing that the Defendant was not a fit parent so as to justify denying him parental rights.  Did it have to be the standard of clear and convincing evidence as determined in Roth v. Weston, 259 Conn. 202, 234-235 or did it merely have to be that of the best interests of the child standard as delineated in Connecticut General Statutes 46b-56b.  

In this case, since custody was handed over to a third party who was not a parent, the Supreme Court determined that the standard must be one of the fair preponderance of the evidence.  Since both the Trial Court and the Appellate Courts in this case wrongly based their determinations on the "best interests of the child" standard, rather than the standard of "Fair Preponderance of the Evidence", their decisions were overturned.

Ok, I'm a joker, does anyone know if there is a difference between preponderance of the evidence versus fair preponderance of the evidence?  Does anybody care?

Do you get what I am trying to say?  We have a suffering child here, who is being abused by a drunken, emotionally and sexually abusive father, whose mother is dying, and all the judicial system is able to do is argue over the standard of evidence for sixty seven pages?  Give me a break! 

And I want to stress for you how seriously the Supreme Court took this situation.  At first the case was only going to be argued before a panel of judges, but then the Court decided to give far more weight to the case by having the case heard en banc thus adding on two additional Justices.  Not only that, not only did you have counsel for the Plaintiff and the Defendant arguing the case, three additional Attorneys--Attorney Campbell D. Barrett, Attorney Steven R. Dembo, and Attorney Justine Rakich-Kelly filed a brief for the Children's Law Center as amicus curiae (Friends of the Court) regarding this case. 

So there is no doubt that, judicially speaking, the Court worked hard to address the concerns raised by this case.  Still, despite all these resources, I cannot help but think that justice was not done, not for the Mother, and certainly not for her little girl.  They should have been protected and defended, but they weren't, by a system that was fully operational, but, simply put, maintained a focus that was sadly misplaced.  In other words, I'm not saying that the judges were evil or ill intentioned, or that the attorneys were heartless and bad people, I'm just saying that the legal system, because it is structured the way it is structured at this time, caught these people up in a judicial process that extraordinarily failed to address the pressing needs of the victims in this case.  In a day and age where we have skyping, we have cell phones, we have cars, and modern medicine, and live in what we hope is a reasonably efficient democracy, failures of this kind are no longer acceptable.

As a final note, the Supreme Court's decision in this case came out in 2006.  This  means that by the time the Supreme Court arrived at its decision the child was 17 and could pretty much decide for herself where she was going to stay.  This litigation, which lasted around four years, must have cost thousands and thousands of dollars of taxpayer money and have cost this mother and her little girl untold suffering. Talking about legal abuse!

And who is laughing?  Who was able to abuse and harass his dying ex-wife and get the whole legal system churning away on nonsense for years at the taxpayers expense?  Guess Who?  Our Defendant Father--that's who. 

According to the Court, "both parties had put their own interests before the child's well-being."  Really.  Both Parents?  And mother was bad because of her attempts to make the child feel guilty about visiting the father.  Oh, really?  And the parents "battled".  I wonder why.  I mean, God forbid Mom ask Dad to put his pants on when his daughter is in the house. 

This father didn't want to pay child support, didn't want to pay for airline tickets (so the daughter could visit her Aunt in Colorado), didn't want to pay for school tuition, didn't want to pay for taxes, but he did want to pay multiple thousands of dollars to harass and bully his dying ex wife and child through the Court System for years and years?  And the Court System let him do it?

The way it looks to me, the Court System is so unwilling to hold an abusive Father accountable for his behavior, no matter how reprehensible or criminal, that such a Father can pretty much exploit the judicial system, manipulate it at will, use it as his own personal playground to torture his child and ex wife in until he gets bored and decides to move on.  That isn't right.

Thoughts anyone?