Connecticut Divorce
A discussion of the rights of visitation and custody by persons other than biological parents, including grandparents, and unmarried partners.
Rev. 02/08/08

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         Susan K. Smith, Atty.          
Hartford and Avon, Connecticut

Third-party Visitation. The Connecticut Supreme Court has settled Connecticut third-party visitation law in light of the U.S. Supreme Court's decision in Troxel v. Granville, 120 S. Ct. 2054, 147 L. Ed. 2d 49; 68 U.S.L.W. 4458S, 2000 U.S. LEXIS 3767. The Troxel Court struck down Washington's visitation statute as being overbroad and an infringement on the fundamental right of fit parents to make child-rearing decisions. The Supreme Court reasoned that Washington's statute was too broad in that it permitted any person to petition at any time with the only requirement being that the visitation serve the best interest of the child.

In its latest decision, the Connecticut Supreme Court, guided by Troxel, decided that the visitation statute (C.G.S. §46b-59) was unconstitutional because it permitted third party visitation contrary to the desires of a "fit parent" and in the absence of proof by clear and convincing evidence that the children would suffer actual, significant harm if deprived of the visitation. Roth v. Weston, 259 Conn. 25 (2002) (Katz, J.). "Clear and convincing evidence" is a higher standard of proof than that usually required in non-criminal cases. Clear and convincing evidence can be required when significant fundamental interests are at stake. The higher burden of proof is required, for instance, in order to terminate parental rights. The Court placed the burden of proving significant harm on the person seeking visitation. As a preliminary requirement, any person seeking visitation, including grandparents, must first establish that a “parent-like relationship” exists with the child, and and that the child would suffer real and significant harm if deprived of visitation with the petitioner. In Crockett v. Pastore, 259 Conn. 24 (2002) (Katz, J.) decided the same day, court emphasized the parenting relationship and stated that the person seeking visitation "was required to plead and prove that her relationship with the child was such that she acted in a parental type of capacity for an extended period of time."

Once the threshold requirement is met, the person seeking visitation must prove (by clear and convincing evidence) that the fit parent's denial of visitation will cause "actual, significant harm." The Court acknowledged that actual harm could occur if the petitioning party had a significant, long-term, parenting relationship with the child. Proof of actual, significant harm constitutes a higher standard than the "best interests of the child." The Court concluded that proof of more than "best interests" was necessary in order for the state to infringe upon a parent's right to "family integrity, including the right to the care, custody, companionship and management of one’s children and the freedom of personal choice in matters of family life." Fit parents presumably will make the right decisions for the children, but the court acknowledged that all decisions may not be perfect. Quoting Troxel, Court stated ‘‘the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better’ decision could be made.’’

The Court expressly over-ruled its previously previous decision petitions could be entertained under the visitation statute if the family in which the child resides was not "intact." Castagno v. Wholean, 239 Conn. 336, 684 A.2d 1181 (Conn. 1996). The Court concluded that the Castagno's threshold requirement was inadequate to protect fit parents from violation of fundamental parental rights.

Connecticut's visitation statute contains broad language that allows the trial courts to award visitation rights to "any person."  Connecticut courts have granted visitation petitions to grandparents, other blood relatives, a former boyfriend of the child's parent, former foster parents, the biological mother of a child after adoption and to the gay partner of the child's parent. The Court in Roth v. Weston acknowledged that not all parent-like relationships are necessarily blood relations and that other persons can develop a significant parenting relationship with a child. The Court stated "it is not necessarily the biological aspect of the relationship that provides the basis for a legally cognizable interest. Rather, it is the nature of the relationship that determines standing." 

As an example, Judge Dranginis, for a time Connecticut's Chief Family Judge, recognized the interest of a mother's former boyfriend. The non-married couple separated and the former boyfriend sought visitation of the child with whom a close relationship had developed during the the relationship. Judge Dranginis recognized that the parties constituted a "nontraditional family" and their breakup constituted a de facto separation. The child's mother had sought the intervention of the courts by filing for and receiving a restraining order against her former boyfriend. Judge Dranginis recognized that the boyfriend had standing to bring the action and the court had jurisdiction to hear it. She reasoned that when a non-traditional relationship dissolves, the child is just as likely to be subject to turmoil as with a traditional family. After determining the importance of his relationship to the child --including his continual emotional and financial support and the fact that the child called him "daddy"-- Judge Dranginis granted him visitation rights. Paraskevas v. Tunick, 1997 WL 219831 (Conn. Super., Apr. 24, 1997) (NO. FA 950072398).

In Antonucci v. Frances-Cameron, a Connecticut Judge recognized the non-traditional family unit that existed between a lesbian couple and an adopted child of one of the partners. The parties had lived together in partnership for a long time. One of the partners attempted insemination, but it failed. They decided that one of the partners would adopt and the other would become primary caretaker. They lived together as a family unit for more than 3 years. After the care taking partner left the household, she continued to maintain financial support and close contact with the child. Judge Axelrod recognized that the couple and the child constituted a non-traditional family unit. Despite the fact that there had been no other intervention by the courts --such as the restraining order sought in Paraskevas -- Judge Axelrod recognized the jurisdiction of the court to entertain the petition and to review the merits of the petition as the case progressed. Antonucci v. Frances-Cameron, 1999 WL 130356 (Conn. Super., Mar 03, 1999) (NO. FA 98042047S). Other examples of visitation permitted are Michaud v. Warwick, 209 Conn. 407, 551 A.2d 738 (1988) (biological mother permitted visitation with child following child's adoption); Temple v. Meyer, 208 Conn. 404, 544 A.2d 629 (1988) (former boyfriend who originally brought action seeking custody of former girlfriend's child, mistakenly believed to be his, permitted to amend his claim to one seeking visitation); In re Jennifer P., 17 Conn. App. 427, 553 A.2d 196, cert. denied, 211 Conn. 801, 559 A.2d 1136 (1989) (former foster parent permitted to seek visitation).

Custody in Non-traditional Situations. In Doe v. Doe, 244 Conn. 403 (1998), the custody of a child born to the father (Mr. Doe) and a surrogate was at issue. Although Mrs. Doe had not adopted the child, the child had been raised like a child of the marriage for 14 years. The Supreme Court ruled that the family court had the authority to determine the custody of a child that was technically not a "child of the marriage" and for which one of the parties was not a parent in the biological sense. Justice Katz, dissented, arguing that Mrs. Doe should have be treated as a parent --rather than as a third party with an interest in custody-- and that the child should have been treated as a true "child of the marriage."

Procedural Issues. Visitation rights may be raised by separate petition or by motion to intervene in a pending divorce case. The Judicial Department has created plain language fill-in-the blanks forms. The assistance of a lawyer, however, is advisable if there are issues of jurisdiction or with the merits of the petition.

Child Support. Although payment of financial support is something that courts have cited as evidence of the relationship between a person seeking visitation rights and the child, visitation rights are not contingent upon the provision of financial support.