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This
case was an appeal from the judgment of the trial court modifying
a prior custody order and granting shared physical custody of two
minor children to the respondent mother. The issues on appeal here
were (1) did the trial court improperly find a material change in
the mother's circumstances and (2) did the trial court abuse its
discretion when it modified the original order of custody without
making a finding that doing so was in the children's best interests.
The appellate court found that a material change in the mother's
circumstances had occurred but that the trial court misapplied the
law and abused its discretion when modifying the custody arrangement.
For those reasons the appellate court reversed the order of the
trial court and remanded the case with direction to deny the respondent
mother's motion to modify the court's order as to custody of the
children.
The respondents
in this case are the biological parents of two minor children. In
March 2002, the Superior Court adjudicated the children uncared
for while they were in the custody of the mother and awarded primary
physical custody to the father. In September 2004, the mother filed
a motion for modification of the order, seeking physical custody
of the two children. The court thereafter modified the custody order
and transferred primary custody to the mother. (That order was subsequently
vacated in December, 2004.) In March 2005, the court found that
there was a material change in the mother's circumstances. The court
then modified the custody order, giving the parties shared physical
custody. It is from this modification of custody that the father
appealed.
The father
first claimed that the court improperly found a material change
in the mother's circumstances. The appellate court disagreed. After
reviewing the record the court here found that the trial court's
finding of a material change in the mother's circumstances was supported
by the evidence. The court identified at least six factors indicating
material change in the mother's circumstances including; adequate
living conditions, compliance with her current mental health program,
current employment, adequate income, and sufficient child care arrangements.
The father
next claimed that the court had abused its discretion by modifying
the custody order without making a finding that doing so was in
the children's best interests. The appellate court agreed. A conflict
between parents "is best resolved by placing the burden on the noncustodial
parent to prove by a fair preponderance of the evidence that a transfer
of custody is in the best interests of the children." 1
The trial court in this case had explicitly found that the mother
had not met her burden under § 46b-56(b) by showing that a custody
modification was in the children's best interests. Consequently,
the appellate court concluded that the trial court misapplied the
law and abused its discretion when modifying the custody agreement
2. For this reason the judgment of the trial court was
reversed and the case was remanded with direction to deny the respondent
mother's motion to modify the court's order as to custody of the
children.
The case
may be accessed by going to the Judicial Branch website at http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP96/96AP351.pdf
Tara
Liscombe, Legal Intern (7/06)
1. Cookson
v. Cookson, 201 Conn. 229, 239, 514 A.2d 323 (1986).
2. Footnote 5: … "even a minor change in the custody arrangement
is sufficient to require compliance with General Statutes § 46b-56,
which applies to "making or modifying any order with respect to
custody…" .
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