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Boisvert v. Gavis

Supreme Court of Connecticut

July 2, 2019

Diane BOISVERT et al.
v.
James GAVIS

         Argued September 10, 2018

         Appeal from the Superior Court, Judicial District of Windham, Graziani, J.

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          Mathew Olkin, Willimantic, for the appellant (defendant).

         Douglas T. Stearns, Windham, for the appellees (plaintiffs).

         Justine Rakich-Kelly, Hartford, and Pamela Magnano filed a brief for the Children’s Law Center of Connecticut as amicus curiae.

         Leslie I. Jennings-Lax, and Louise T. Truax, Southport, filed a brief for the Connecticut Chapter of the American Academy of Matrimonial Lawyers as amicus curiae.

         George Jepsen, former attorney general, and Carolyn A. Signorelli, Benjamin Zivyon and John E. Tucker, Hartford, assistant attorneys general, filed a brief for the Department of Children and Families as amicus curiae.

          Mark S. Randall filed a brief for the Connecticut Bar Association as amicus curiae.

         Robinson, C. J., and Palmer, McDonald, D’Auria, Mullins, Kahn and Ecker, Js.[*]

          OPINION

         ECKER, J.

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          [332 Conn. 119] The principal issue in this appeal is whether an order granting a third party’s petition for visitation pursuant to General Statutes § 46b-59[1] over [332 Conn. 120] the objection of a fit custodial parent must include a provision requiring the third party to abide by

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all of the parent’s decisions regarding the care of the child during the visitation. We conclude that neither § 46b-59 nor the due process clause of the fourteenth amendment to the United States constitution requires the trial court to impose such a broad term and condition on an order of third-party visitation. With respect to the more limited claim of the custodial parent, the defendant James Gavis, that the denial of his postjudgment motion for a no contact order between the minor child and the child’s maternal aunt violated the defendant’s fundamental parental right to make decisions regarding his child’s associations, we conclude that the defendant failed to meet his burden of demonstrating any such constitutional violation because he failed, as a threshold matter, to articulate a reason in support of the requested term and condition. We reject the defendant’s remaining claims and affirm the judgment of the trial court.

          I

         The following facts and procedural history are relevant to this appeal. On November 3, 2016, the plaintiffs, [332 Conn. 121] Diane Boisvert and Thomas Boisvert,[2] filed a verified petition for visitation with their grandson, B,[3] pursuant to § 46b-59. The defendant, who is B’s father, opposed the petition. The trial court, Graziani, J., conducted an evidentiary hearing on the plaintiffs’ petition, after which it issued a written memorandum of decision making the following findings of fact.

          The defendant and Nicole M. Gavis (Nicole) were married in October, 2011, and divorced in July, 2013. They had one child, B, who was born in June, 2012. The defendant was "the primary cause of the breakdown of the marriage" because he subjected Nicole "to a course of domestic violence, threats and humiliation." (Internal quotation marks omitted.) As a consequence, "[t]he defendant has been in prison on seven different occasions with multiple incarcerations based [on] domestic violence ...." During his incarcerations, the defendant failed to provide any financial support for his family. After their divorce in 2013,

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Nicole was awarded sole custody of B, and the defendant had no visitation until April, 2015, at which time he was given supervised access to B. Nicole died on March 8, 2016.

          The plaintiffs are B’s maternal grandparents and, although they are divorced, they both have had a significant relationship with B since his birth. Prior to Nicole’s death, her mother, Diane Boisvert, "provided [B with] care, including feeding, doctor appointments, taking [B] to day care, school appointments, taking day trips with [B] as well as taking [B] on vacation." Thomas Boisvert’s "role in taking care of [B] was less than that of" Diane Boisvert, but he still had a "significant relationship" [332 Conn. 122] with B, which "involved ... babysitting, feeding and changing [B’s] diapers."

         The defendant was granted custody of B after Nicole’s death in March, 2016. The plaintiffs continued to be involved in B’s life until June 26, 2016,[4] when the defendant terminated the plaintiffs’ contact with B because he believed that they were "seeking custody of [B] and [were] also seeking to get [the defendant] sent back to jail." The defendant claimed that the plaintiffs "did not follow his directions as to how they were to treat" B during their visits. For example, the defendant did not want B to use a pacifier, but the plaintiffs did not comply with his request. On another occasion, the defendant apparently did not want Diane Boisvert to assist B with his shoe, but she did so anyway.

          At the evidentiary hearing on the plaintiffs’ petition for visitation, Steven H. Humphrey, a licensed clinical psychologist, testified as an expert witness. Humphrey testified that the plaintiffs had been very involved as B’s primary caretakers for twenty-two months of his young life while the defendant was incarcerated. In Humphrey’s expert opinion, the plaintiffs both have a " ‘warm and healthy bond’ " with B, who has maintained a sense of their importance in his life. Humphrey explained that the sudden death of B’s mother was "very traumatic ... and severely disruptive and long lasting" for B and that the unexplained disappearance of the plaintiffs from B’s life has compounded his sense [332 Conn. 123] of loss. Humphrey opined that the lack of contact between B and the plaintiffs "is very detrimental to [B] and would cause real and significant harm to [B]" if allowed to continue. Humphrey further testified that depriving B of "individuals who have been in a caretaker capacity, who have helped bridge the difficulties caused by maternal death and paternal incarceration, and who are capable and eager to provide [B] with such support, would not be in his best interest, and there are reasons for concern that there would be significant psychological harm to cessation of these relationship[s]." The trial court found Humphrey’s in-court testimony, expert report, and expert opinions to be credible, "well thought out, appropriate, and reasonable."

          Tracie Molinaro, the guardian ad litem appointed on behalf of B, also testified at the evidentiary hearing. In Molinaro’s opinion, B has a "healthy relationship" with the plaintiffs, whom he "adores and loves ...." Molinaro testified that the

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plaintiffs had a regular and consistent relationship with B and that they had been actively involved in his day-today care, especially during the defendant’s incarceration. Molinaro believed that B had a parent-like relationship with Diane Boisvert and that the denial of visitation would cause B real and significant harm. As for Thomas Boisvert, Molinaro testified that the relationship was healthy, loving and positive, but she did not believe that the relationship rose to the level of a parent-like relationship. In Molinaro’s opinion, neither of the plaintiffs would undermine the defendant’s role as a parent if visitation was ordered. The trial court found Molinaro’s testimony to be "credible and consistent with the testimony of ... Humphrey, with the exception of the maternal grandfather not having a parent-like relationship" with B, which the trial court did not find to be correct.

          The trial court issued its written memorandum of decision on August 11, 2017. On the basis of the evidence [332 Conn. 124] adduced at the evidentiary hearing, the trial court found, by clear and convincing evidence, that the plaintiffs had a parent-like relationship with B and that a denial of visitation would cause B real and significant harm. The trial court explained: "This child is five years old. During his life, he has suffered the loss of his father as a result of his incarceration for approximately two years, being 40 percent of the child’s life. [After] [t]he death of his mother on March 8, 2016, the cessation of any meaningful contact with his maternal grandparents for the last year as a result of the unilateral actions of the father is clearly harmful to the child. As ... Humphrey articulated in his testimony and report, the death of the child’s mother, compounded with the unexplained disappearance of the maternal grandparents, is very detrimental to the child and would cause real and significant harm to the child.... Humphrey also opined that disruptive relationships in the life of a child can have deleterious effects for the child, including mood problems, insecurity and problems with socialization and self-confidence. The death of the mother cannot be changed. The cessation of the child’s contact with the maternal grandparents can be changed by the court. The father, in terminating a support for the child in the form of ... consistent and loving figures in the life of the child, the maternal grandparents, is not acting in the best interest of the child. Contact with the child’s mother’s family provides a source of information to the child as to the mother that he no longer gets to see by virtue of her death. The emotional development of the child in dealing with the loss of his mother and the cessation of contact with the maternal grandparents clearly is harmful to the child and not in the best interest of the child. The court thereby, having found the existence of a parent-like relationship between the child and the maternal grandparents, also finds that the termination of that relationship does cause a real and significant harm to the child."

         [332 Conn. 125] The trial court granted the plaintiffs’ petition for visitation, awarding Diane Boisvert visitation "every other weekend from Friday at 5 p.m. until Sunday at 5 p.m.," and Thomas Boisvert visitation "every Wednesday from the end of school each Wednesday, or noon if there is no school, until 8 p.m." The trial court also imposed the following terms and conditions on visitation: (1) "[t]he parties shall not disparage the other parties in the presence of the minor child"; (2) "[a]ll communication between the parties regarding visitation and/or the minor child shall be via text message or other written communication"; and (3) "[n]othing herein shall ...


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