February 23, 2001
MODIFYING VISITATION ORDERS AFTER DIVORCE
By: Saul Spigel, Chief Analyst
You wanted to know what existing state laws could prevent a father who had sexually abused another child from having unsupervised visits with his daughter following a divorce.
Three laws apply in the situation your constituent relates: (1) a judge's visitation decision must be guided by the child's best interest; (2) a parent can ask the court to appoint an attorney to represent the child and the court on its own can appoint an attorney for this purpose or a guardian ad litem to represent the child's best interest; and (3) the court can order an investigation of any circumstance that may be relevant to the proper disposition of the case.
Connecticut case law suggests that a parent does not have an absolute right to visitation. Visitation arrangements depend on the child's best interests and can be restricted. The plaintiff (in this case the father seeking to modify the visitation order) has the burden of proving that visitation is in the child's best interests.
CHILD'S BEST INTERESTS
Superior Court judges can make and modify visitation orders in a divorce. The law sets two criteria for their decisions: the best interests of the child and the child's preference, if the judge believes he or she is old enough and capable of making an intelligent choice (CGS § 46b-56(b)).
The Connecticut Practice Book on Family Law and Practice lists several criteria courts have used in determining visitation. They include: (1) past behavior as it relates to parenting ability (Seymour v. Seymour, id.), (2) the effect of the parent's behavior on the child (Yontef v. Yontef, 185 Conn. 275), (3) a parent's psychological instability posing a threat to the child's well being (Ridgeway v. Ridgeway, 180 Conn. 533), and (4) a parent's sexual activity (Trunik v. Trunik, 179 Conn. 287).
Unless a parent is completely unfit, case law says he or she should have visitation rights under such restrictions as the circumstances warrant. But, a parent does not have an absolute right to visitation; it depends on the best interests of the child. Visitation can be restricted or terminated under the proper circumstances (Raymond v. Raymond, 165 Conn. at 741). Courts impose restrictions where there is evidence that visitation would have harmful effects on the child. For example, the Connecticut Supreme Court upheld a restriction that barred a child from staying overnight in his father's home as long as the father continued to live out of wedlock with a particular woman (Gallo v. Gallo, 184 Conn. 36). The plaintiff has the burden of proving that visitation is in the child's best interests (Temple v. Meyer, 208 Conn. 404).
REPRESENTATION FOR THE CHILD
If he believes it is in a child's best interests, a judge can appoint an attorney to represent the child at any time during the divorce proceedings, including when one party asks for modification of a visitation order. Either of the parents can ask for this appointment, or the court can make the appointment on its own (CGS § 46b-54). A judge may also appoint a guardian ad litem to represent the child's best interests (CGS § 45a-132). (In some cases, these can differ from the child's wishes, which the attorney represents).
The legal handbook, Family Law Practice in Connecticut (§10.24), states that where allegations of child abuse exist, it is preferable to appoint counsel for the child early in the process. This serves to protect the child, but it also serves to insulate the accused parent from further allegations.
A court can order an investigation of any circumstances of a case if it believes this will be helpful or material to its proper disposition. An investigation can include an inquiry into the parents' habits and character. Once an investigation is ordered, the case cannot be disposed of until the report is filed and attorneys for all parties have the opportunity to review it (CGS §§ 46b-6, 7). A court family relations officer conducts the investigation.