Submitted on briefs October 12, 2017
J. Oneto IV filed a brief for the appellant (named
Christopher M. Hansen filed a brief for the appellee
Alvord, Prescott and Beach, Js.
defendant, Donna Stubbs, appeals from the judgment of the
trial court awarding her and the plaintiff, Pascal Baronio,
joint legal custody of their minor child. On appeal, the
defendant claims that the court: (1) ‘‘erred in
presuming that shared physical custody was in the child's
best interest where there was not an agreement by the
defendant to an award of joint legal custody within the
meaning of General Statutes § 46b-56a (b)''; and
(2) ‘‘committed plain error by stating during
pendente lite proceedings that it wanted to see an increase
in the plaintiff's parenting time, and by indicating
before it heard all the evidence at trial that it was
inclined to award joint legal custody to the
plaintiff.'' We affirm the judgment of the trial
following facts and procedural history are relevant to our
decision. The parties were involved in a relationship for
approximately thirteen years and have one child together. The
parties lived together until October, 2014, when the
plaintiff moved out. The plaintiff filed an application for
joint custody on December 1, 2014. The defendant filed an
objection to the plaintiff's application on December 11,
and an application for emergency ex parte order of custody on
December 16. The court scheduled a hearing on January 8,
2015. On that date, the parties agreed upon a temporary
parenting plan, which was made an order of the court. The
parents' agreement permitted the plaintiff to see their
child every Sunday from 9 a.m. to 6 p.m., to have telephone
contact daily, and to see their child at school. On January
14, 2015, the plaintiff filed a motion for appointment of a
guardian ad litem, which the court granted.
February 11, 2015, the parties appeared before the court,
Goodrow, J. The court heard testimony from both
parties regarding, inter alia, the plaintiff's request
for additional parenting time. The court found that it was in
the best interest of their child to have overnights with the
plaintiff, and ordered that the plaintiff have parenting time
on alternating weekends from 10 a.m. on Saturday until 4 p.m.
on Sunday. The parties were ordered to report back to the
court on March 3, 2015, to address any concerns. On that
date, the parents entered into a further agreement, and were
again ordered to report back on March 31, 2015. On March 31,
the plaintiff made a request for additional parenting time.
Specifically, he requested parenting time with their child
through Monday morning to bring their child to school on
those weekends that he had overnight parenting time. Counsel
for the defendant objected to the request as did the guardian
ad litem, Attorney David Crow, citing the child's
adjustment to a new environment in the plaintiff's home.
The court denied the plaintiff's request without
prejudice, ordered the parties to return in two weeks, and
ordered the guardian ad litem to provide a report on that
date. On April 14, 2015, the guardian ad litem recommended
that the plaintiff's parenting time be increased to
include Sunday night through Monday morning. The parents
entered into an agreement, which the court adopted, that
included this additional parenting time.
parties next appeared before the court on September 11, 2015,
for a contested hearing on the plaintiff's application
for joint custody. The plaintiff filed with the court
proposed orders in which he requested joint legal and shared
physical custody. The defendant did not file proposed orders
with the court. In addition to the testimony of the plaintiff
and the defendant, the court also heard testimony from Susan
Falato, an art therapist with Shoreline Wellness in West
Haven, Cheryl Iannucci, a care coordinator for Beacon Health
Options in Rocky Hill, Allyson Popel, the child's
kindergarten teacher, and Attorney Crow. The court issued an
oral decision on February 1, 2016, in which it ordered joint
legal custody and shared physical custody, and further
ordered the plaintiff's proposed parenting time. The
parties subsequently agreed upon a parenting plan, which the
court approved. This appeal followed.
first address the defendant's claim that the court
‘‘misapplied the law governing awards of joint
legal custody under General Statutes §
46b-56a.'' Specifically, she claims that the statute
permits a presumption that joint custody is in the best
interests of the child only if the parties have agreed to an
award of joint custody. She claims that ‘‘the
record was insufficient to support a finding that the
defendant agreed to share joint legal custody'' with
the plaintiff, and thus, ‘‘there was no legal
basis upon which the family court could presume, as it did,
that shared physical custody was in the child's best
interests.'' We disagree.
following additional facts are relevant to this claim. On
September 11, 2015, at the start of the contested hearing on
custody, the plaintiff provided the court with proposed
orders in which he requested joint legal and shared physical
custody. Specifically, the plaintiff sought a biweekly
custodial plan, pursuant to which he would have parenting
time with their child from 10 a.m. Saturday through Wednesday
morning on week one, and from 6 p.m. Sunday through Wednesday
morning on week two. The defendant did not submit proposed
orders to the court. When the court therefore inquired as to
what the defendant was requesting, her counsel stated that
‘‘the status quo should be maintained. The
present orders should be maintained.'' The court then
inquired as to whether the defendant was objecting to joint
legal custody, and her counsel replied that she was not.
the testimony of Attorney Crow on the final day of the
hearing, the court inquired as to whether he had
‘‘a recommendation as to custody, whether it
should be joint or sole.'' Attorney Crow responded
that he wanted to see joint legal custody, to which the court
responded: ‘‘I do, too. Here's my concern,
they don't seem to be able to communicate.''
Attorney Crow then expressed his opinion that the parties,
despite a number of minor issues on both sides, had been
working together. At the conclusion of evidence, the court
heard argument from both parties. The court specifically
requested that the parties address what they were asking the
court to order and the statutory factors the court has to
consider. The following colloquy occurred between the court,
Attorney Christopher Hansen for the plaintiff, and Attorney
Joseph DePaola for the defendant:
‘‘The Court: [A]s I understand it, Attorney
Hansen, you're asking for joint legal custody with a
split fifty/ fifty time split. Is that correct?
‘‘[The Plaintiff's Counsel]: Not in-Judge, we
are asking for shared physical, but it's actually about
fifty-five/ forty-five, the fifty-five being with the mother.
‘‘The Court: All right. That's based on your
last- what you put on the record when we began.
‘‘[The Plaintiff's Counsel]: Yes. And
it's . . . in the proposed orders, Your Honor.
‘‘The Court: And, Attorney DePaola, what is it,
specifically, that you're asking for?
‘‘[The Defendant's Counsel]: I'm asking
for the current order to remain in effect, taking into
account the [guardian ad litem's (GAL)] suggestion that
an additional evening be inserted.
‘‘The Court: And joint legal custody?
‘‘[The Defendant's Counsel]: Joint legal
custody, primary physical residence with my client, final
decision making authority with my client, and the current
order is to remain in effect except for that extra day during
the week that was suggested by Mr. Crow.
‘‘The Court: How does the court entertain a join-
your-you're-I infer you're also requesting joint