|
Jurisdictional
issues abound in Denardo V. Bergamo, where the Connecticut
Supreme Court retroactively applied its own previously espoused
criteria for non-custodial visitation and terminated a child's grandparents'
visitation rights. In Denardo, the plaintiff grandparents sought
and obtained visitation rights to their grandchild, over the defendant
mother's strenuous objections. Subsequent to the trial court's 2001
order granting visitation to the grandparents, the Connecticut Supreme
Court decided the cases of Roth v. Weston [1]
and Crockett v. Pastore [2]
, cases that held that a person seeking visitation rights pursuant
to Conn. Gen. Stat. § 46b-59 [3]
must satisfy jurisdictional and substantive requirements for the
statute to be constitutional as applied. The key holding of Roth
was that in order for a court to have jurisdiction over a petition
filed under § 46b-59, contrary to the wishes of a "fit" parent,
the petition must allege that the petitioners' relationship with
the child was similar to a parent-child relationship and denial
of visitation would cause real and significant harm to the child.
Without those findings, court does not have subject matter jurisdiction.
In light of Roth, the mother moved to modify and terminate
the grandparents' visitation. She alleged, inter alia,
that the grandparents were overly intrusive upon her parental rights,
butting in to school and extracurricular affairs. The trial court
granted that Roth and Crockett were applicable
to eh motion to terminate the grandparents' visitation, and that
these cases applied retroactively to the case at hand.
The
Supreme Court agreed that Roth applied retroactively and
the trial court appropriately applied the jurisdictional standard
regardless of whether the grandparents moved to secure an initial
order of visitation or the parent moved to modify such an order.
Only in the event of exceptional circumstances or overriding needs
of public policy would a "prospective only" application
of subject matter jurisdictional rulings. In Denardo, the court
found that no such exceptional circumstances existed, and the "overriding
needs of public policy weigh heavily in favor of a retrospective
application of Roth." [4]
The constitutional right of a parent to raise her child as she sees
fit and the parental decision making presume that she is acting
in the "best interests" of her child. Thus, where a fit parent moves
to terminate visitation, she is presumed to act in the child's best
interest. Without specific good faith allegations that the grandparents'
relationship was similar to the parent-child relationship, or allegations
that the denial of visitation would cause real and significant harm
to the child, the prior visitation order was deemed rendered without
subject matter jurisdiction.
This
case may be accessed at the Judicial Branch website by going to
www.jud.state.ct.us/external/supapp/Cases/AROcr/CR272/272cr23.pdf
(JES)
[1]
259 Conn. 202 (2002).
[2] 259 Conn.
240 (2002).
[3] The statute
provides, in pertinent part, that "[t]he Superior Court may grant
the right of visitation with respect to any minor child or children
to any person, upon an application of such person." Here, the grandparents
invoked this statute seeking non-custodial visitation.
[2] 272 Conn.
at 511.
|
