The August 14 decision in R.H. v. M.H., SC 20882, addresses the failure of the court to serve the  best interests of the children in this and many other custody cases. While the primary argument centers around judicial discretion, the Court acknowledges that the current family court system is slow and inefficient in serving the best interests of children. The decision sides with SPCs Amicus brief and suggests that it will address excessive emphasis on form over substance in family court. Similar concerns are raised by Judge Moukawsher (retired in 2023) in several decisions, and in his 2023 book, “The Common Flaw,” Brandeis University press.

This newsletter points out flaws in current child custody proceedings, presents alternatives to current court processes, defines a fit parent standard, and suggests specific ways for courts to address the needs of children in a timely manner.

 The Supreme Court recognizes that CT’s family courts fail to serve children’s interests

In the next to last page of SC 20882, the court references SPC’s Amicus brief arguing that the court failed to serve the children due to lengthy adversarial proceedings. SPC’s brief is reflected in the Court’s language: family judges face “ever-changing and volatile circumstances … an urgent need to make modifications in the light of developments in the case.” R.H. v. M.H. began in 2019. Now one child is less than 9 months from aging out of the system, and that child has refused to see the mother following several emotionally damaging episodes. The other child has less than two years before aging out.

The case illustrates general problems with Connecticut’s family court:

• Parents in family courts are treated very differently than similar parents involved with DCF.  In DCF, numerous wraparound support services are relatively quickly offered to parents and DCF is obligated to exhaust all reasonable efforts/services – usually without cost – to ensure the strengthening of the family. However, in Family court intervention is lethargic and untimely, sometimes taking 6-9 months or more just to get a hearing, and parents are required to pay for these services. Meantime, a parent may go significant time without seeing their child, a delay that is likely to trigger strong emotional fight or flight responses.
• Family Court litigants would benefit from the same urgency and resources as given to families involved with DCF. Family courts should operate under the same obligation to exhaust all support and advocacy services to maximize chances of successfully strengthening the separated family.  If measured by a time standard alone, the Family courts in Connecticut are failing. Litigation is not a successful parenting model.

How to refocus family court on the children

SPC’s brief provided a number of solutions to excessively lengthy, expensive procedures in family court. (See https://sharedparentinginc.org/wp-content/uploads/2024/09/Signed-SPC-Amicus-Curiae-Brief.pdf for the brief.) Most importantly, SPC argues for reducing adversarial environment by limiting the ability of lawyers representing parents to file motions that have little to do with children’s well-being. Importantly, SPC advocates for a DCF-like procedure using pre-defined standards for determining if a parent is fit, i.e., the fit parent does not present a physical or psychological threat to the children or the other parent. Unlike Family court, DCF rigorously defines abuse and neglect (https://portal.ct.gov/dcf/1-dcf/child-abuse-and-neglect-definitions ) and provides a timely two-part investigation by trained professionals when a mandated reporter observes an issue. Moreover “DCF operates 12 Quality Parenting Centers now at locations around the state and plans to open an additional three, said Michael Williams, DCF’s deputy director. … Quality Parenting Centers across Connecticut have capacity for about 46,500 visits annually, according to DCF.” see   https://ctmirror.org/2024/05/17/ct-quality-parenting-centers/ for many important facts about this initiative which is designed for parents whose parental rights have been terminated by DCF.

Can Connecticut family court change their focus from antagonistic litigation to keeping fit parents involved with their children? Can they move towards a DCF-like model?

Judge Moukawsher’s book provides numerous ways to speed up court decisions, including but not limited to:

• Stipulations as to facts – the Judge argues that most facts such as the value of the family home can be quickly determined up to a reasonable approximation.
• “Baseball arbitration” where each lawyer pleads his best solution to a dispute and the judge picks one, not a compromise between the two.
• Determining up front whether a parent is unfit. The fit parent principle is a reasonable inference from the Judge’s writing, not plainly stated.

 Judge Moukawsher’s writing relevant to the fit parent standard

Many custody decisions contain an internal contradiction: a parent is deemed fit to spend every other weekend with his or her children, but workable proposals for up to 50% co-parenting time are hotly contested and often denied. The Judge addresses the “fit parent” issue in several parts of his book, and in Connecticut custody rulings.

In chapter 17 the Judge summarizes a real case:

“Both sides agreed that the other parent was a fit parent. They were battling only over where the children would sleep most nights. They both had clean, adequate homes to house the children. Still, the battle raged. Experts were hired for trial. Reunification therapists were hired. Individual counselors were retained. By the time of trial, both parties were broke. The mortgage on their home was in default. The couple’s retirement funds were raided. The children were on food stamps. At trial, the parents spent almost the entire time trading barbs about who yelled at the other the most and which one shoved the other the most and generally sought to convince the court that they were good and the other parent bad. The trial took twelve days despite the judge trying to shorten it. Three hundred and fifty thousand dollars in fees later, the court entered orders that the parties should get equal access to the children but defer to the children’s informed preferences. Because she earned less, the wife received alimony without opposition. The court ordered child support by applying a court-created formula. Meanwhile, the children voted with their feet. Two of them stayed with their father and one with their mother. In too many cases, this scenario is destroying families in the name of saving them. For what?”

Then the Judge presents a hypothetical case:

“A couple with three children came to court for an initial conference and interim orders. Both parents said they had an adequate home for the children but that they didn’t trust the other parent. The judge ordered family-court staff to examine the two homes, meet the children, check court and child-protection records, and report back orally on the facts in three weeks.

Three weeks later the court held a trial. The court staff reported that the mother’s home was suitable, but so was the father’s home. Both parties had difficulties with issues, but no agency had found them unfit. The mother testified that her mother lives with her and helps with the children every day. The father testified that he had a gainfully employed uncle who lived with him and that he didn’t work because of a disability that didn’t prevent him from caring for the children.

The court ordered joint legal and physical custody and rotated the children week by week between the parents. They squabbled about pickup and drop-off, but neither side appealed.”

These passages clearly support the fit parent rule proposed by the SPC in its Amicus brief.

 The August 14 Supreme Court decision focused on judicial discretion

The decision strongly affirms absolute, unconstrained judicial discretion:

“We reaffirm ”that decision-making in family disputes requires flexible, individualized adjudication of the particular facts of each case without the constraint of objective guidelines.’‘ [emphasis added]

The following quote makes it clear that despite the abuse of judicial discretion by delegating authority to a party in SC 20882, that family court judges have broad discretion:

“It is critically important that our trial judges be afforded broad discretion when crafting visitation orders in order to best account for the interests of the parties and the children in often highly contentious and ever evolving situations.”

This is the reality in Connecticut. Reforms intended to refocus family courts on the best interests of children must work within the new framework provided by R.H. v. M.H.

Summary

In too many cases Connecticut courts fail to focus laser like on the best interests of children. In R.H. v. M.H., SC 20882, the interests of children have been sidelined by excessive, lengthy, expensive litigation. This outcome is all too common. SPC has detailed records of four similar recent cases.

Many custody decisions contain an internal contradiction: a parent is deemed fit to spend every other weekend with his or her children, but workable proposals for up to 50% co-parenting time are hotly contested and often denied. This encourages litigation and shifts focus away from parenting children from split households.

This newsletter outlines specific methods to refocus courts on children by establishing a fit parent standard together with speedy DCF-like methods for addressing claims that one parent is unfit. Implementation of a fit parent standard would demand focus on children by empowering parents to act in the best interests of their children, just as DCF devotes considerable resources to helping troubled families better cope with their problems.

The full text of the Supreme Court’s decision in R.H. v. M.H., SC 20882 is available here: https://sharedparentinginc.org/wp-content/uploads/2024/09/R.-H.-v.-M.-H_Courts-Improperly-Delegated-Authority_8.14.24.pdf