CHILD CUSTODY

Legal Custody vs. Physical Custody

    In cases involving children, determinations regarding custody and visitation must be made by the parties, or if they cannot agree, by the court. When faced with issues related to custody, it is helpful to first understand the difference between legal custody and physical custody. Generally speaking, legal custody refers to the respective rights of parents to make major decisions regarding a child, whereas physical custody refers to the rights of parents to have in-person access to the child. 

Joint Legal Custody

    Determinations regarding legal custody often include an award of joint custody or sole custody. Where parents have joint legal custody, both will typically have the right to participate in making major decisions regarding their child. Notably, where the term “joint custody” is used absent a distinction between legal custody and physical custody, it is presumed that the phrase is referring to both. Indeed, as set forth in C.G.S. 46b-56a(a), joint custody is defined as “an order awarding legal custody of the minor child to both parents, providing for joint decision making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.” 
    Generally speaking, under a joint legal custody arrangement, parents are obligated to consult with one another regarding major decisions affecting the child. Major decisions often involve those related to the child’s health, growth and development, choice of schools, religion, course of study, travel, employment, sports and activities and significant changes in the child’s social environment. On the other hand, the parent with physical custody of the child usually has the right to make less significant, day-to-day decisions while the child is in his or her care. This allows a parent to determine, for example, what the child will wear to school, or what the child will have for dinner, without the necessity of repeatedly consulting the other parent throughout the day.
    Even in the context of a joint legal custody arrangement, the degree to which each parent has a right to participate in the decision-making process may be considerably different from one case to the next. In one case the parents may be on completely equal footing, whereas in another case certain decisions may be allocated to one parent or the other. For example, one parent may have the right to make decisions regarding the child’s education, while the other parent may have the right to make decisions regarding the child’s medical treatment. In other cases, the parents may be required to consult with one another on major issues concerning the children, but one parent may have final say with respect to certain issues. It should also be noted that in joint custody arrangements both parents typically have the right to make emergency decisions on the child’s behalf without consulting with the other parent. For example, if the child is injured while in one parent’s care, that parent generally has the right to make decisions related to emergent treatment. 

Joint Physical Custody

    Most often, parents that share joint legal custody also share joint physical custody, with one parent designated as the primary custodial figure. Typically, “joint physically custody” does not mean “shared custody” or “50/50” parenting time. Rather joint custody refers to arrangements whereby the child lives with one parent on a primary basis, subject to flexible and liberal visitation with the other parent. A classic example of a joint custody arrangement involves the child living with his or her mother, subject to visitation with his or her father every other weekend (often overnight, beginning after school on Friday afternoon through Sunday evening), as well as one or two evening visits per week for dinner. This is by no means a rule, however, and this model is becoming antiquated as parties are increasingly turning to more innovative and creative models. In fact, today it is not at all uncommon to see parents using a truly shared parenting model where each parent has equal time with the child each week, or each month. By way of example, parties may agree to a week on/week off arrangement, or even a three or four day split, balanced to minimize disruptive transitions. The appropriateness of a particular schedule varies as parenting plans are often influenced by the child’s age, the child’s school and/or activity schedule, the parents’ respective work schedules and/or the distance between the parent’s homes. As discussed in more detail below, these, and many other, factors will ultimately be considered in formulating a parenting plan that promotes the best interests of the child.  

Sole Custody

    During an initial consultation, clients very often ask whether it is likely that one parent or the other will be awarded sole custody. Such a result is statistically rare. Sole custody is typically reserved for extraordinary cases in which a parent has demonstrated a clear inability to make sound decisions on the child’s behalf. For example, the noncustodial parent may have a disability impacting their judgment or decision-making ability, a drug or alcohol addiction, or may have engaged in conduct (often criminal in nature) detrimental to the child’s welfare.
    As with joint custody, there are varying degrees- so to speak- of sole custody. Although the custodial parent in such situations typically has the ability and obligation to make all major decisions regarding the child, in most cases, the non-custodial parent is not completely excluded from the child’s life. To the contrary, except in extreme circumstances, the non-custodial parent will usually have some visitation. Because there usually exist reasons to limit the non-custodial parent’s contact with the child, however, visitation may be limited to one or two short visits per week, and depending on the circumstances, there may be a requirement that the visits be supervised, either by a trusted family member or neutral third party. 

Best Interests Standard

    From a procedural standpoint, a court has jurisdiction to enter orders regarding custody of a minor child during the pendency of a divorce, as a final order at the conclusion of the proceedings, or when a modification is required after the dissolution has been finalized. Pursuant to C.G.S. § 46b-56(c), when making or modifying custody orders, the court must consider the best interests of the child. In fact, a court typically will not enter custody orders unless it first finds that they are in the child’s best interest. In determining whether a particular custody arrangement is in the child’s best interest a court may consider, among other things, the following statutory factors: 
    (1) the temperament and developmental needs of the child;
    (2) the capacity and the disposition of the parents to understand and meet the needs of the child;
    (3) any relevant and material information obtained from the child, including the informed preferences of the child;
    (4) the wishes of the child's parents as to custody;
    (5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other     person who may significantly affect the best interests of the child;
    (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship     between the child and the other parent as is appropriate, including compliance with any court orders;
    (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
    (8) the ability of each parent to be actively involved in the life of the child;
    (9) the child's adjustment to his or her home, school and community environments;
    (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of     maintaining continuity in such environment;
    (11) the stability of the child's existing or proposed residences, or both;
    (12) the mental and physical health of all individuals involved;
    (13) the child's cultural background;
    (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents     or between a parent and another individual or the child;
    (15) whether the child or a sibling of the child has been abused or neglected. 
Which factors the court takes into consideration will vary significantly depending on the circumstances of the case, the presentation by counsel, the veracity of the witnesses, and the individual leanings of the particular judge. Significantly, a court is not required to assign any weight to the factors it considers.

Modifications

    Because circumstances relating to children often change over time, courts are empowered to modify prior orders - and even make entirely new orders - after a divorce is finalized. Such orders might affect child support, custody, visitation, or as is often the case, a combination of the three. In any post-judgment proceeding to modify orders related to custody and visitation of minor children, the Superior Court is guided by General Statutes § 46b-56 (a), which provides the court with broad authority to make or modify any proper order regarding the custody, care, education, visitation and support of minor children in dissolution actions.13 
    Unlike motions to modify alimony or child support awards, where a party is required to demonstrate a “substantial change in circumstances,” a parent seeking a custody modification must prove that there has been a “material change” of circumstances since the court’s previous finding as to the best interests of the child, or that the existing custody order was not based upon the best interests of the child in the first place.14 The end result is a quick shift back to examine the effectiveness of the previous order, together with a snapshot of the present circumstances, to examine whether the “best interests” analysis, as presently applied, would make new custody orders more appropriate for the child.
    Motions to modify visitation, on the other hand, require a somewhat lighter judicial touch. In ruling on a motion to modify visitation, the court is not at all required to find as a threshold matter that a change in circumstances has occurred.15 Instead, the trial court is guided solely by the best interests of the child.16 Accordingly, no showing of a “substantial change” or “material change” in circumstances is required to change a visitation plan, if indeed it can effectively be shown that the best interests of the minor child would be better served by the proposed plan.
    Before any judicial effort is undertaken to modify a parenting plan, parties are well served to meet with counsel experienced in such matters and to assemble evidence demonstrating the change the party intends to demonstrate to a court.

Third Party Rights to Custody and Visitation

    Prospective clients often call with inquiries regarding the custody and visitation rights of third parties, or non-parents (such as grandparents, aunts, uncles, or close family friends). Although there are many similarities between the burden placed on third parties seeking custody and third parties seeking visitation, there are also some slight differences worth noting.  
    In Roth v. Weston, 17 the Supreme Court held that a third party seeking visitation with a minor child must plead a relationship with that child akin to that of a parent, and that denial of visitation with the third party would result in emotional harm to the child analogous to the type of harm required to prove that a child is neglected, uncared-for or dependent under the temporary custody and neglect statutes. Once alleged, the third party must then prove the allegations by clear and convincing evidence, a significantly more burdensome standard than “by a preponderance of the evidence.” As its rationale for imposing such a strict standard, the Court pointed to, at least in part, the landmark United States Supreme Court decision in Troxel v. Granville, 18 in which the Court observed that “the liberty interest… of parents in the care, custody and control of their children… is perhaps the oldest of the fundamental liberty interests recognized by this court.” In other words, the law imposes a heavy presumption that, except in very limited circumstances, a parent should be permitted to raise his or her child free from the interference of third parties.
    The Connecticut Supreme Court in Fish v. Fish, 19 distinguished the interests at stake in third party visitation proceedings from those at stake in third party custody proceedings. As the Court explained, in a visitation petition, the third party is essentially challenging the decision of a fit parent, who is presumed to be acting in the child's best interest, to deny or limit the petitioner's request for visitation. The harm alleged in a visitation petition results from the child's lack of access to the third party, rather than from the parent-child relationship, which is presumed to be beneficial. The harm alleged in a third party custody petition, however, arises from the fundamental nature of the parent-child relationship, which may be emotionally, psychologically or physically damaging to the child. Because a third party custody petition specifically challenges the overall competence of the parent to care for the child, the standard employed to protect the liberty interest of the parent must be more flexible and responsive to the child's welfare than the standard applied in visitation cases, in which the underlying parent-child relationship is not contested. In other words, in a visitation petition, the focus is centered around the justification for intruding upon a fit parent’s parental rights; in a custody petition, the focus is the parent-child relationship and the welfare of the child. Thus, in addition to adopting the requirement that a child prove a parent-like relationship with the child, the Court in Fish held that “… the statutory presumption in favor of parental custody may be rebutted only in exceptional circumstances and only upon a showing that it would be clearly damaging, injurious or harmful for the child to remain in the parent’s custody.” The Court added, “…this does not mean temporary harm of the kind resulting from the stress of the dissolution proceeding itself, but significant harm arising from a pattern of dysfunctional behavior that has developed between the parent and the child over a period of time.”20 In Connecticut, a third party seeking custody or visitation of a child will often face an uphill battle, so to speak, as the standard of harm that must be demonstrated in both contexts is quite burdensome.

Relocation

    In the years following a divorce, many custodial parents are faced with the challenge– and the associated legal hurdles– of determining whether they are permitted to relocate out of state or across the country with the minor children of the marriage. The non-custodial parent may object to the move, and if the parties cannot agree, ultimately a judge will be empowered to determine whether the relocation will be allowed. The law governing this decision is set forth in both our state statutes and governing case law. 
    Prior to a change in the law in 2006, a parent seeking to relocate with minor children against the objection of the other parent had to prove by a preponderance of the evidence that the proposed relocation was for a legitimate purpose, and, further, that the proposed relocation was reasonable in light of that purpose. If the moving party was successful, the burden then shifted to the non-custodial parent (the parent opposed to the relocation) to demonstrate to a court that the move would not be in the best interests of the minor child or children.21
    This “burden-shifting” analysis adopted by the Supreme Court in 1998 was replaced by the Connecticut legislature in 2006 with Public Acts 2006, No. 06-168, now codified in General Statutes § 46b-56d. Section 46b-56d(a) now reads: “In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocating parent would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.”
    The effect of General Statutes § 46b-56d(a) is essentially to codify the three-part provisions of the 1998 “Ireland Rule,” while at the same time placing squarely on the shoulders of the party advocating relocation the entire burden of demonstrating, by a preponderance of the evidence, not only that the relocation is for a legitimate purpose and that the location is reasonable in light of that purpose, but also that the relocation is in the best interests of the child.
    C.G.S. § 46b-56d(b) further enumerates five specific factors that our courts are now statutorily obligated to consider in determining whether to approve a parent’s request to relocate with a child. Section 46b-56d(b) reads:
    “In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall     consider, but such consideration shall not be limited to: (1) Each parent’s reasons for seeking or opposing the     relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on     the quantity and the quality of the child’s future contact with the nonrelocating parent; (4) the degree to which the     relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the     relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child     through suitable visitation arrangements.”   
Although each of the foregoing factors must be considered, they are not exclusive. In other words a court is permitted to consider other relevant circumstances it feels may aid it in making its decision. The ultimate goal in considering these and other factors deemed appropriate by the court is to facilitate an accurate case-by-case determination of whether the relocation proposed by the moving party indeed lies in the best interests of the child.
    Importantly the analysis set forth in General Statutes § 46b-56d applies only in the context of a proposed post judgment relocation. When a proposed relocation is contested during a dissolution proceeding, the court’s decision is considered an initial determination of custody, and it is therefore governed by General Statutes § 46b-56.22 Under that statute, the court must simply determine whether the move is in the “best interests” of the child or children in accordance with the rubric set forth above.  

Family Relations

    Ordinarily, when matters related to custody and/or visitation are in dispute, the court will require parents to confer with the Family Relations Office. As an arm of the judiciary, the primary function of this office is to assist the court in resolving custody related matters, and in certain cases, aid the court in determining what type of arrangement serves the best interests of the children at issue. The Family Relations office itself is located within the courthouse, and is staffed by a team of professionals trained specifically to deal with family related issues. The degree to which Family Relations becomes involved in a matter varies from one case to the next. For example, a judge may refer a limited issue to the Family Relations Office for a mediation session (which may only last an hour, or less), or might refer the matter for a more complex or comprehensive study (typically involving both custody and visitation), which could take several weeks or months to complete. 
    When a matter is referred for a full evaluation, Family Relations is essentially tasked to make a determination as to how to resolve the issue at hand in a manner that will serve the best interests of the child. This may involve an initial dispute as to legal and/or physical custody (e.g., which parent will have primary residence of the child), a post judgment dispute as to a parenting plan modification (e.g., one parent may be seeking a shared parenting plan), or a proposed relocation. During the evaluation process, the court proceedings will effectively be placed on hold in that the parties typically will not proceed with a trial until Family Relations has concluded its investigation, and has issued its final report. As part of its investigation, which can take anywhere from several weeks to several months, the Family Relations Officer assigned to the case will interview the key participants in the matter, including the parents, the child or children involved, physicians, mental health professionals and teachers. The officer’s goal is to obtain as much information as possible about the circumstances so he or she can formulate a sound recommendation for the court. This recommendation will be given to the parties, but only delivered to the court if the parties cannot reach an agreement and therefore need a trial.

GAL vs. AMC

    In addition to a Family Relations referral, highly contested custody disputes also warrant the involvement of a Guardian Ad Litem or Attorney for the Minor Child. Like the Family Relations Office, Guardians Ad Litem and Attorneys for the Minor Child are often involved in initial custody/visitation determinations, post judgment custody modifications, and relocation petitions. Generally, speaking, a Gurdian Ad Litem is a an individual with specialized training in family related matters (and often an attorneyalthough this is not a requirement), who is either appointed by the court, or hired privately by the parties, to evaluate the case as a neutral third party and ultimately determine what type of parenting plan would be in the child’s best interests. Importantly, a Guardian Ad Litem does not represent the child. Rather his or her role is to advocate to the court what he or she believes is in the children’s best interest, regardless of the child’s stated feelings, wishes or beliefs.  
    In contrast, an Attorney for the Minor Child, although theoretically neutral as between the parents, is hired specifically to represent the child. Unlike a Guardian Ad Litem who serves as a witness in the proceedings (e.g., at trial a Guardian Ad Litem may be called to testify), the Attorney for the Minor Child participates in the capacity of a lawyer. Generally, an Attorney for the Minor Child will advocate the child’s wishes on his or her behalf. Only in certain situations will the Attorney for the Minor Child be required to advocate what he or she believes is in the children’s best interest despite the children’s stated wishes. Although there is no bright line rule, Attorneys for the Minor Child are typically more appropriate where children are of an age where they have developed the ability to formulate and express legitimate wishes of their own, whereas a Guardian Ad Litem is more appropriate for a younger child who is incapable of determining what is in his or her best interest. 

Psychological Evaluations

    At the outset of any family law representation, experienced attorneys inquire as to any documented psychiatric history of the participants. Even in the absence of historical psychiatric treatment of any kind, undiagnosed conditions – when properly explored through discovery and presented at trial – may indeed play a role in a court’s determination of an appropriate parenting plan for a minor child of divorce. 
    Pursuant to General Statutes §§ 46b-3 and 46b-6, the Superior Court may require the parties and the child to undergo a psychiatric or psychological evaluation for the purpose of properly disposing of a family matter, in a modification of custody case, and to assist in determining the best interest of the child.23 C.G.S. § 46b-6 provides in relevant part that the court, “may cause an investigation to be made with respect to any circumstance of the matter which may be helpful or material or relevant to a proper disposition of the case.” The statute further provides, that “Such investigation may include an examination of the parentage and surroundings of any child, his age, habits and history, inquiry into the home conditions, habits and character of his parents or guardians and evaluation of his mental or physical condition.” Furthermore, in any action for dissolution of marriage, legal separation or annulment of marriage, such investigation may include an examination into the age, habits and history of the parties, the causes of marital discord and the financial ability of the parties to furnish support to either spouse or any dependent child.”24 General Statutes § 46b-3 provides that the judge in any family relations matter may employ the use of a psychologist, psychiatrist or family counselor in carrying out such an evaluation.
    However, a parent should not assume that a mere dispute over custody is in and of itself equivalent to putting one’s mental health at issue in the case, in a manner which would necessarily result in the ordering of psychological evaluations. While there is no specific Supreme Court ruling on this issue25 courts have nevertheless held that so many issues must be assessed in a custody determination, that one discrete issue – such as a parent’s mental health – must not overtake the determination.26 Instead, courts have determined that the conduct of the parties – rather than their mental status – must be the primary focus of the court in assessing the extent and quality of involvement of each parent in the life of the child.

CHILD SUPPORT

The Obligation to Maintain

    The primary statute dealing with child support in the context of dissolution proceedings requires that both parents financially maintain the child or children of the marriage according to their respective abilities.27 In determining the “respective ability” of parents under Connecticut General Statutes § 46b-84, the court must consider a variety of factors, including the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, as well as the age, health station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child.28 To determine the amount of child support a parent must pay, one must also take into consideration the provisions set forth in the Connecticut Child Support Guidelines.29 Although in theory one must consider the Connecticut Child Support Guidelines in addition to the factors enumerated in C.G.S. § 46b-84, from a practical standpoint, a court will typically rely solely on the Guidelines. In fact, there is a rebuttable presumption that the amount of child support calculated under the Guidelines is correct, and a specific factual finding is required to rebut the presumptive amount.30 
    It is important to note that, generally, parents must support a child of the marriage until he or she reaches the age of majority. That being said, if a child has attained the age of eighteen, but is still a full-time high school student and is in need of continuing maintenance, the parents must provide support until the child completes the ninth grade or attains the age of nineteen, whichever occurs first.31

Calculating Child Support- The Connecticut Child Support Guidelines

    In Connecticut, child support is generally calculated using the parties’ respective net income. To arrive at net income under the Connecticut Child Support Guidelines, however, one must first determine the parties’ respective gross income, defined as one’s “average weekly earned and unearned income from all sources before deductions.” This approach ensures that each and every applicable resource is taken into consideration. In determining gross income under the Connecticut Child Support Guidelines, one must include salary, hourly wages, commissions, bonuses and tips; deferred compensation and severance pay; employment perquisites; workers’ compensation benefits; social security benefits, including dependency benefits; pension and retirement income; rental income; estate of trust income; royalties; interest, dividends and annuities; lottery and gambling winnings; and education grants, among other resources. To calculate net income, one must then subtract the allowable deductions, including federal, state and local income taxes, social security taxes, medical, dental or health insurance premiums, mandatory union dues or fees; court-ordered alimony and child support awards for individuals not involved in the support determination.
    Once the parties’ respective net incomes are calculated, one may consult the Schedule of Basic Child Support Obligations to determine the parties’ “basic child support obligation.”32 Based on the parties’ combined net weekly income and the number of children for whom support is being calculated, the “basic child support obligation” represents the total, combined child support obligation for both parents. Each parent’s share of the basic child support obligation is then determined by calculating each parent’s percentage share of the combined net weekly income, and multiplying the result for each parent by the “basic child support obligation.”
    Based on the Income Shares Model, the Connecticut Child Support Guidelines “allow for the calculation of current support based on each parent’s share of the amount estimated to be spent on a child if the parents and child lived in an intact household.”33 The amount calculated for the noncustodial parent represents the level of support to be ordered by the court, while the amount calculated for the custodial parent is retained by the custodial parent and is presumed to be spent on the child.34 Both the custodial parent’s share and the noncustodial parent’s share together constitute the total support obligation of both parents.35

Deviation Criteria

    Although an amount calculated under the Connecticut Child Support Guidelines is presumed to be correct, the presumption may be rebutted by specific facts demonstrating that such amount would be inappropriate in a particular case. It is important to note, however, that only certain “deviation criteria” may be used. As set forth in Connecticut Regulations §46b-215a-3(b), those criteria include, but are not limited to, a) other financial resources available to a parent, including substantial assets (e.g., both income producing and non-income producing property), a parent’s earning capacity, hourly wages for overtime in excess of forty-five hours per week (but not to exceed 52 total paid hours per week), and/or regular recurring contributions or gifts of a spouse or domestic partner; b) extraordinary expenses for the care and maintenance of the child; c) extraordinary parental expenses; and d) coordination of total family support (i.e., child support is considered in conjunction with a determination of total family support, property settlement, and tax implications provided such considerations do not result in a lesser economic benefit to the child).36 Importantly, the Guidelines also provide a limited catchall provision allowing for a deviation in “special circumstances” not otherwise specifically enumerated, but in which deviation from presumptive support amounts is warranted for reasons of equity.37 For example, a deviation may be warranted where a shared physical custody arrangement exists and that arrangement substantially reduces the custodial parent’s expenses for the child, or substantially increases the noncustodial parent’s expenses for the child.38

The Maturo Holding  

    Notably, the Connecticut Child Support Guidelines do not provide presumptive amounts for situations in which parents’ combined net weekly income exceeds Four Thousand Dollars. Rather, they provide simply that in such cases support must be determined on a case-by-case basis. Though the Guidelines provide that the support prescribed at the $4,000 net weekly income level shall be the minimum presumptive amount, the Guidelines do not expressly provide a cap.39 Nevertheless, courts and/or litigants may not exercise unfettered discretion in fashioning child support awards under such circumstances.40
    Indeed, in Maturo v. Maturo, 41 the Connecticut Supreme Court held that the principles underlying the Guidelines must be applied in cases where the parties’ combined net weekly income exceeds the upper limit of the Schedule. One such principle is the notion that, although parents may spend more on their children as their income grows, spending on children as a percentage of household income actually declines as family income rises. It is thought that this spending pattern exists because families at higher income levels do not have to devote most or all of their incomes to perceived necessities. Rather they can allocate some proportion of income to savings and other non-consumption expenditures, as well as discretionary adult goods. This is reflected in the Child Support Guidelines in that, as parents’ combined net weekly income increases, the percentage that must be paid in child support actually decreases. For example, the required support payment for two children declines from 35.00% when the parties’ combined net weekly income is $300, to 15.89% when the parties’ combined net weekly income is $4,000.00. Thus, when a family’s combined net weekly income exceeds $4,000.00, the court should treat the percentage set forth in the schedule at the highest income level as the presumptive ceiling on the child support obligation. For one child, the presumptive ceiling would thus be 11.83% of the parties’ combined net weekly income, and for two children the ceiling would be 15.89%. Although this framework is subject to rebuttal by application of the deviation criteria enumerated in the Child Support Guidelines, according to Maturo, any such deviation by a court must be accompanied by an explanation as to why the presumptive amount is inequitable or inappropriate, as well as an explanation as to why the deviation is necessary to meet the needs of the child.42

Medical Coverage / Medical Expenses In addition to child support itself, under Connecticut law, courts may also require parents to provide support for medical and dental expenses incurred on behalf of their minor children. Indeed, as set forth in C.G.S. § 46b-84(f)(2)(A), a court may order that either parent “name any child as a beneficiary of any medical or dental insurance or benefit plan carried by such parent or available to such parent at a reasonable cost.” In the event such coverage is not available at a reasonable cost, the court may require a parent to apply for and maintain coverage on behalf of the child under the HUSKY Plan, Part B.43 Where an order providing for medical coverage has been entered, the court is required to enter an additional order that the parents pay in accordance with the Connecticut Child Support Guidelines all unreimbursed and/or uninsured medical expenses incurred on behalf of the child(ren).44 Under the Guidelines, this additional support is set forth as each parent’s percentage share of the total expense.
    When considering the terms of a potential separation agreement, there are many additional details related to medical expenses that parents should address. For example, parties are well advised to include language requiring them to exchange documentation evidencing expenses incurred within a certain period of time. Parties might also include language requiring them to reimburse one another with a certain period of time (e.g., two weeks or thirty days). Additionally, parents should address how controversial or elective treatment (e.g., plastic surgery, orthodontia, psychological counseling) will be handled. Perhaps the parties would benefit from a provision requiring advanced notice before the treatment is undertaken, or a provision providing that elective treatment must be mutually agreed upon. If either party has particular concerns, they may even define specific types of treatment that will be considered “elective” to avoid ambiguity and confusion in the future.

College Expenses

    When considering the terms of a potential divorce settlement involving minor children, it is very important to consider whether your child(ren) will be attending college at some point in the future. If this detail is not properly addressed during the dissolution proceedings, it may be very difficult- even impossible- to obtain contribution from a former spouse for books, tuition and/or living expenses if and when your child enrolls in college.  
    In Connecticut, educational support orders are governed by Connecticut General Statutes §46b-56c, which authorizes the courts to enter orders defining how parents will handle “necessary educational expenses.” By statute, “necessary educational expenses” include application costs, registration costs, room, board, dues, tuition, and fees up to the amount charged by the University of Connecticut for a full-time, in-state student at the time the child registers. The order may account for the cost of books and medical insurance for the child as well, and parents are permitted upon agreement to increase the limit beyond the amount charged by the University of Connecticut.
    It is important to note that C.G.S. §46b-56c does contain some restrictions. For example, educational support orders may only be entered for children under the age of twenty-three, and must terminate upon the child reaching the age of twenty-three. Additionally, a parent may only be required to provide support for a child or children to attend up to four full academic years at an institution of higher education or a private occupational school for the purpose of obtaining a bachelors or other type of undergraduate degree, or vocational instruction. Notably, parents are not required to provide support for graduate or postgraduate education beyond a bachelor’s degree. Additionally, a child is not permitted to bring a separate cause of action against his or her parents for parental support for higher education.
    Where parties are able to resolve their case amicably (i.e., without the necessity of a trial), college expenses may be addressed in one of two ways. First, the parties may simply include in their separation agreement a provision outlining in detail how they will divide such expenses. If the children are very young during the proceedings, and the parties’ circumstances at the time the child will be ready to attend college are unforeseeable, this issue may not be ripe for consideration. In such cases, the parties may wish to defer the issue until the child is older. It is very important to note that if the parties choose this course of action, they must include in their separation agreement a provision expressly requesting that the court retain jurisdiction over issues related to post secondary educational expenses. Indeed, if they fail to do so, the court will not retain jurisdiction, and the parties will be precluded from seeking its involvement in the future. However, if the parties do request that the court retain jurisdiction, either may request a post judgment educational support order at a later, appropriate time. Once the post judgment action is commenced- as with the divorce itself- the parties may either resolve the issue by agreement or request a hearing for this limited purpose.
    It is important to note that whether a post secondary educational support order is entered at the time of the divorce or post judgment, the court must find that it is more likely than not that the parents would have provided support to the child for higher education if the family remained intact. The parties may stipulate to this fact in an agreement, or leave it up to the court to decide. In either event, assuming that threshold requirement is satisfied, the court will then determine whether an educational support order is appropriate. In doing so, the court will consider all relevant circumstances, including the parents’ income, assets and other obligations; the child’s need for support based on his or her assets and ability to earn income; the availability of financial aid, including grants and loans; the reasonableness of the higher education considering the child’s academic record and financial resources available; and the child’s preparation for, aptitude for and commitment to higher education.

Modification of Child Support

    Unless an order specifically (and atypically) precludes modification, child support may be modified by a court upon a showing of a “substantial change” in the financial circumstances of either party.45 Additionally, unless there was a specific finding that application of the Connecticut Child Support Guidelines would have been inequitable or inappropriate, child support may be modified upon a showing that the existing order substantially deviates from the Guidelines.46 For this reason, it is particularly important to ensure that the court record is complete with facts supporting the deviation criteria utilized. Indeed, if the criteria are unsupported, or a finding has not been entered on the record, the deviation may later be challenged. It is also important to note that there is a rebuttable presumption that any deviation of less than fifteen percent from the Guidelines is not “substantial,” and any deviation of fifteen percent or more is “substantial.”47  
    Although there are a variety of circumstances which may constitute a “substantial change of circumstances,” there is no bright line rule, and thus, it is important that the merits of each case are evaluated independently. That said, there are some circumstances that often justify a child support modification. For example, a modification may be warranted where one party has experienced either a significant increase or reduction in income. As discussed above, however, a court is permitted to consider a party’s earning capacity, and may in fact deny a motion to modify child support where a party’s earning capacity has remained unchanged despite a substantial decrease in that party’s actual earnings.
    Assuming a party is able to demonstrate a substantial change in circumstances or a substantial deviation from the child support guidelines, the parties or the court must determine the amount of the new award. In doing so, the court must take into consideration the statutory criteria outlined in C.G.S. §46b-84, as well as the Connecticut Child Support Guidelines.48


Footnotes
13 Tomlinson v. Tomlinson, 119 Conn. App. 194 (2010).
14 Malave v. Ortiz, 114 Conn. App. 414 (2009).
15 Szczerkowski v. Karmelowicz, 60 Conn. App. 429 (2000); McGinty v. McGinty, 66 Conn. App. 35 (2001).
16 C.G.S. § 46b-56(b); Kelly v. Kelly, 54 Conn. App. 50 (1999).
17 259 Conn. 202 (2002).
18 530 U.S. 57 (2000).
19 285 Conn. 24 (2008).
20 Id
21 Ireland v. Ireland, 246 Conn. 413 (1998).
22 Noonan v. Noonan, 122 Conn. App. 184 (2010).
23 Pascal v. Pascal, 2 Conn. App. 472 (1984).
24 C.G.S. § 46b-6.
25 Bieluch v. Bieluch, 190 Conn. 813 (1983).
26 Granbery v. Carleton, 1993 Conn. Super. LEXIS 3444. 
27 C.G.S. §46b-84.
28 C.G.S. § 46b-84(d).
29 See C.G.S. §46b-215a.
30 C.G.S. § 46b-215b(a).
31 §46b-84(b).
32 §46b-215a-2b.
33 Child Support and Arrearage Guidelines (2005), preamble, § (d), p. ii.
34 Id. 
35 Id
36 §46b-215a-3.
37 46b-215a-3b(6).
38 Id. 39 § 46b-215a-2b(a)(2). 
40 Maturo v. Maturo, 296 Conn. 80 (2010).
41 296 Conn. 80 (2010).
42 Maturo v. Maturo, supra.
43 C.G.S. § 46b-84(f)(2)(B).
44 C.G.S. § 46b-84(f)(2)(C). 
45 C.G.S. §46b-86(a).
46 Id.
47 Id.
48 Hardisty v. Hardisty, 183 Conn. 253 (1981).