Court Denies Due Process Claim for Child Custody Evaluation

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The court found that a father had no due process right under the constitution to have his attorney participate in the child custody evaluation process. The Connecticut Supreme Court reasoned that there was a minimal risk of erroneous custody due to lack of counsel, and that such exclusion of counsel from the evaluation furthered a paramount government interest to conduct an accurate evaluation.

The defendant, whose marriage to the plaintiff had been dissolved, sought a modification of the parenting plan that governed the care and custody of the parties' minor child,which was incorporated into the judgment of dissolution. The parties originally had agreed to share legal custody of the child, who lived primarily with the plaintiff. Thereafter, the defendant sought increased visitation and parenting time, claiming that the child wanted to spend more quality time with him. Each party then filed motions challenging the other party's fitness to maintain custody of the child.

The matter was referred to the Family Relations Office of the Court Support Services Division of the Judicial Branch, which provided negotiation, conflict resolution, and mediation services to help the parties resolve the custody and visitation disputes. The Family Relations Office recommended a comprehensive evaluation in order to set a parenting plan that was focused on the best interest of the child and the parties agreed to the voluntary evaluation, which was made an order of the court. In accordance with the policy of the Family Relations Office, the initial appointment was to consist of a joint conference with both parties and the assigned family relations counselor without the presence of counsel. After the defendant refused to participate in the evaluation process without counsel, the evaluation was canceled and the referral to the Family Relations Office was withdrawn. Subsequently, the defendant filed a motion to order the Family Relations Office to allow the defendant to complete the evaluation with his counsel present, contending that the policy barring counsel violated his right to counsel and that cancelation of the evaluation punished him for refusing to waive his rights. Thereafter, the court explained to the defendant that in order to proceed on his motion for postjudgment modification of custody, he had the burden of demonstrating a substantial change in circumstances since the time of the joint custody agreement, which required a child custody evaluation.

The trial court implicitly denied the defendant's motion to complete the family relations evaluation with counsel present by ordering a full custody evaluation by a private evaluator at the defendant's expense if the parties were unable to reach a resolution by the continued date set by the court. From the trial court's order denying his motion, the defendant appealed.

After due hearing, the Supreme Court ruled that the trial court properly denied the defendant's motion to complete the family relations evaluation with counsel present, this court having determined that the existing child custody evaluation procedures were constitutionally sufficient as those procedures struck the appropriate balance between safeguarding the parties' right to be heard and maintaining the objective nonadversarial setting on which an evaluator's assessment depends in determining the best interest of the child: although the defendant had a legitimate interest in the custody of his child and therefore in a custody adjudication process that granted him custody if it was in the child's best interest, there was no risk of an erroneous custody determination due to the absence of counsel under the existing procedures, as those procedures fully afforded the defendant a meaningful opportunity to be heard and to contest any inaccuracies in the evaluator's findings before the trial court would make its custody determination, and because the court's reliance on the evaluation is discretionary with the court, allowing counsel to be present at the evaluation would not enhance the accuracy of the court's custody determination; moreover, the exclusion of counsel from the child custody evaluation furthered the government's paramount interest in the case of protecting the best interest of the child.

For a free consultation, please do not hesitate to call the experienced family law and divorce attorneys at Maya Murphy, P.C. in Westport, CT at 203-221-3100. We may also be reached for inquiries by email at JMaya@mayalaw.com.

Source: Barros v. Barros, 72 A.3d 367, (Conn. 2013)