In re Joseph W.

Connecticut Appellate Court

June 8, 2010

DETERMINING CUSTODIAL STATUS OF BIOLOGICAL PARENTS

The Appellate Court of Connecticut reversed a termination of parental rights decision on the ground that the trial court erroneously found that the respondent father was the non-custodial parent of his newborn son. The court held that absent a court order to the contrary, biological parents have equal right to custody of a child. Therefore, it was not appropriate for the trial court to assume the mother was custodial and make the father prove his custodial status.

The respondents, an un-married couple who had their first child committed to DCF, had two other children committed to DCF when they were born. At the hearing on the neglect petitions regarding both children the mother entered a plea of nolo contendere; the father was not permitted to participate because he was deemed the non-custodial parent. After subsequent motions were filed addressing the question of the father’s non-custodial status, the court ordered that the issue be resolved by the fact-finder at the subsequent termination of parental rights trial. At the termination hearing, the court determined that the father had not provided enough evidence to prove that he was a custodial parent and terminated both the mother and father’s parental rights. On appeal the father claimed his parental rights were improperly terminated since he was not allowed to take part in the neglect proceeding and he was indeed a custodial parent.

The Appellate Court found the father to be a custodial parent here because the mother did not have to prove she was a custodial parent and because there is no legal authority that stands for the proposition that a parent must prove that he or she is custodial to contest a neglect petition. There is a presumption that the rights of both parents with regard to their children are equal, and here both parents were at the hospital together for the births of both children, and they spent equal amounts of time with them before the children were taken into custody by the DCF.

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