Connecticut Seal

General Assembly

 

Raised Bill No. 1120

January Session, 2005

 

LCO No. 3675

 

*03675_______JUD*

Referred to Committee on Judiciary

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING JOINT LEGAL AND PHYSICAL CUSTODY AND EQUAL PARENTAL RIGHTS IN CUSTODY DETERMINATIONS.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 46b-56 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2005):

(a) In any controversy before the Superior Court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation if it has jurisdiction under the provisions of chapter 815p. Subject to the provisions of subsection (b) of this section and section 46b-56a, as amended by this act, the court may assign the custody of any child to the parents jointly, to either parent or to a third party, according to its best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable. The court may also make any order granting the right of visitation of any child to a third party, including, but not limited to, grandparents.

(b) In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the constitutionally protected parental rights of both parents and the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference, provided, in making the initial order, the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child, and (2) consider whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. Upon the issuance of any order assigning custody of the child to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the child with his or her parents prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the [child's] best interests of the child, including the child's health and safety, and the constitutionally protected parental rights of both parents.

(c) In determining whether a child is in need of support and, if in need, the respective abilities of the parents to provide support, the court shall take into consideration all the factors enumerated in section 46b-84.

(d) When the court is not sitting, any judge of the court may make any order in the cause which the court might make under subsection (a) of this section, including orders of injunction, prior to any action in the cause by the court.

(e) A parent not granted custody of a minor child shall not be denied the right of access to the academic, medical, hospital or other health records of such minor child unless otherwise ordered by the court for good cause shown.

(f) Notwithstanding the provisions of subsection (b) of this section, when a motion for modification of custody or visitation is pending before the court or has been decided by the court and the investigation ordered by the court pursuant to section 46b-6 recommends psychiatric or psychological therapy for a child, and such therapy would, in the court's opinion, be in the best interests of the child and aid the child's response to a modification, the court may order such therapy and reserve judgment on the motion for modification.

(g) As part of a decision concerning custody or visitation, the court may order either parent or both of the parents and any child of such parents to participate in counseling and drug or alcohol screening, provided such participation is in the best [interest] interests of the child and consistent with the constitutionally protected parental rights of both parents.

Sec. 2. Section 46b-56a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2005):

(a) For the purposes of this section, "joint custody" means an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and [providing that] awarding equal physical custody [shall be shared by] and companionship time to the parents [in such a way] so as to assure the child of continuing contact with both parents. [The court may award joint legal custody without awarding joint physical custody where the parents have agreed to merely joint legal custody.]

(b) There shall be a presumption, affecting the burden of proof, that joint custody in accordance with subsection (d) of this section is in the best interests of a minor child [where the parents have agreed to an award of joint custody or so agree in open court at a hearing] for the purpose of determining the custody of the minor child or children of the marriage. Such presumption may be overcome only upon proof by a preponderance of the evidence that joint custody is harmful to such minor child or children. If, based on such evidence, the court declines to enter an order awarding joint custody pursuant to this subsection, the court shall state in its decision the reasons for denial of an award of joint custody.

(c) If only one parent seeks an order of joint custody upon a motion duly made, the court may order both parties to submit to conciliation at their own expense with the costs of such conciliation to be borne by the parties as the court directs according to each party's ability to pay.

(d) In any proceeding for annulment, dissolution of marriage or legal separation, each parent of a minor child shall retain his or her legal right to custody of the child unless the court finds by clear and convincing evidence that the parent is unsuitable because he or she is unfit, unwilling or unable to care for the child or the parent has forfeited his or her legal right to custody under subsection (e) of this section. Absent any such finding of parental unsuitability or any such forfeiture, each parent shall retain equal physical custody of and companionship time with the child, except that the court may award joint legal custody without awarding such equal physical custody and companionship time only if (1) the parents have agreed in writing to such arrangement, or (2) the court finds by a preponderance of the evidence that awarding equal physical custody and companionship time is harmful to the child. Subject to the provisions of this subsection: (A) If both parents agree to equally share in the physical custody of and companionship time with the child, such agreement shall be reduced to writing and shall be accepted by the court; or (B) if one or both parents do not agree to equally share in the physical custody of and companionship time with the child, the court shall order an equal alternating physical custody and companionship time schedule.

(e) Notwithstanding any provision of law, if, after notice and hearing, the court finds by clear and convincing evidence that a parent has knowingly made a false allegation of parental unsuitability against the other parent for the purposes of subsection (d) of this section, the parent who has knowingly made such false allegation shall forfeit his or her legal right to custody of the minor child and the court shall award legal and physical custody of the child to the other parent. The court shall provide the parent who has knowingly made such false allegation with an opportunity to participate in mediation for the purpose of reaching an agreement concerning a schedule for companionship time with the child. Such parent may petition the court for the restoration of his or her legal right to custody of the minor child not earlier than two years from the date of the order awarding legal and physical custody of the child to the other parent. The court may grant such petition and modify such order if the court determines that such action is in the best interests of the child.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2005

46b-56

Sec. 2

October 1, 2005

46b-56a

Statement of Purpose:

To ensure equal rights for both parents in the making of custody determinations in proceedings for annulment, dissolution of marriage or legal separation.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]