In Re Anthony E.

Appellate Court of Connecticut

96 Conn. App. 414 (2006)

July 11, 2006

 

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 athttp://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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