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Grandparents Rights in Child Custody Cases in Connecticut

SUMMARY

Grandparents in Connecticut can become the custodian of a grandchild in four ways. They can:

1. adopt the child after a court terminates both parents’ rights to him,

2. ask the probate court to appoint them as the child’s guardian,

3. be awarded custody by the Superior Court when the child’s parents divorce, or

4. informally assume custody.

The first three methods provide the grandparents with legal rights in relation to the child and some protection against a parent’s attempt to regain custody. The latter method provides no rights or protection.

ADOPTION

Adoption creates a legal relationship of parent and child between people who are not parent and child by birth. Through court action, the adoptive parents gain the same legal duties toward the adopted child as they would toward a birth child. These are the obligation to care for and control the child and make major decisions affecting his or her education and welfare (CGS § 45a-604). Adoption usually involves the complete and final termination of the birth parents’ rights.

Any legally competent person age 18 or over may become an adoptive parent by filing an application with the probate court. The court asks the Department of Children and Families (DCF) or a DCF-licensed agency to investigate to find out if he or she will be a fit parent. At a hearing, the court must consider the investigative findings and determine that the adoption is in the child’s best interest.

GUARDIANSHIP

Removal of Parent as Guardian

Parents are the legal guardians of their children, which gives them the duty to care for and manage the children’s’ affairs. But the probate court can remove a parent as guardian and give guardianship to a grandparent or other party.

The process begins when the party seeking guardianship files a motion in the probate court (or the court can initiate the change on its own). The court orders an investigation, unless it determines one is not needed. DCF or a DCF-licensed agency conducts the investigation.

After the investigation the court holds a hearing to determine whether to (1) remove the parent as guardian and (2) appoint the applicant as guardian. In determining the first, it must find by clear and convincing evidence (the highest level of proof in a civil matter) that the parent:

1. consents to removal as guardian;

2. has abandoned the child, that is shows no reasonable degree of interest in, or concern or responsibility for, the child;

3. has failed to provide care, guidance, or necessary control over the child’s physical, educational, emotional, or moral well-being; or

4. has physically abused the child or given access to the child to another person who abused him.

When deciding whether to appoint the applicant as guardian, the court considers the:

1. applicant’s ability to meet on a daily basis the child’s physical, educational, emotional, and moral needs;

2. child’s wishes concerning a guardian, if he is sufficiently mature and able to form a preference;

3. existence of any established relationship between the child and the applicant; and

4. child’s best interest.

A parent still has some rights even if he is removed as a child’s guardian. The court may permit the parent to visit the child. And a parent who has been removed may apply to the court that removed him for reinstatement as guardian if he believes the factors that resulted in his removal have been resolved satisfactorily. The court must first hold a hearing to determine whether to reinstate him (CGS §§ 45a-609 to –621).

Other Forms of Guardianship

A sole parent or DCF can ask the probate court to appoint another adult as a child’s coguardian. In considering this request, the court applies the same criteria as it does for a contested guardianship case (see above). If it agrees to the coguardianship, the court can make it effective immediately or when a specific event, such as the parent’s mental incapacity, physical debilitation, or death, occurs. If the coguardianship is contingent on an event, the coguardian must submit a written affidavit that it has occurred before the guardianship becomes effective (CGS § 45a-616).

Instead of going through the probate court, a child’s parents can also designate someone to assume guardianship if a specific event like those mentioned above occurs. The designation must be made in writing and witnessed by two people. In order for the guardianship to become effective, the “standby” guardian must produce a written, witnessed document signed under penalty for false statement that the contingent event has occurred (CGS §§ 45a-624 to –624g).

A parent can ask the probate court to appoint someone as temporary guardian for up to one year. The parent can do this if he or she is unable to care for a child for any reason, including illness and absence from home. The guardianship ends when the parent notifies the court and the temporary guardian (CGS § 45a-622).

CUSTODY

A grandparent or a related or unrelated third party can ask the Superior Court to give them legal custody over a child. This is most often sought when a child’s parents are divorcing. Legal custody is like guardianship in that it is a court order giving the grandparent the right to care for and make decisions regarding the child’s welfare. And, like guardianship it is not permanent; the court can modify its order at anytime, transferring custody back to a parent or to another adult.

To obtain legal custody, a person must file suit in Superior Court. If both parents consent to the custody change, the court is likely to grant it; if they do not, the applicant must prove (1) that being with his or her parents will harm the child’s growth or development or (2) that the parents are unfit to care for their child. The court’s decision is guided by the child’s best interest.

Parents do not lose their rights when custody is transferred to a third party. The court may require them to pay child support and may give them visitation rights. And a parent can subsequently ask the court to modify its custody order and return the child to him or her (CGS § 46b-57).

Informal Custody

Connecticut has no laws governing informal custody arrangements between parents and grandparents. Written informal agreements are not legally enforceable and do not give grandparents any legal right to custody. They might give grandparents who are caring for their grandchildren the documentation they need to make decisions for the child, for example enrolling him in a school or obtaining medical records. They can also show that a parent has not abandoned the child, which may help if the parent wants to reclaim custody.

VISITATION

The U. S. and Connecticut Supreme courts have ruled that grandparents have no absolute right to visit with their grandchildren if their fit parents do not want them to (see OLR reports 97-R-0020 and 2000-R-0644). A Connecticut grandparent (or any other third party) can ask the Superior Court to grant a visitation order. The court can do so if it determines that the requestor (1) has had a parent-like relationship with the child for an extended period of time and (2) the parent’s denial of visitation will cause the child actual, significant harm. The latter finding must be supported by clear and convincing evidence (Crockett v. Pastore, 259 Conn. 24 (2002)). If the child is old enough, the court will consider his or her wishes.

A visitation order does not give a grandparent any parental or guardianship rights to the child, nor does it create any financial obligation (CGS § 46b-59).

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Idaho recognizes grandparents rights in custody cases

Idaho legislature passed the The De Facto Custodian Act that enables caregivers to obtain custody rights.  The Act went into effect July 1 after passing the House and Senate unanimously during the 2010 legislative session. Before the law, it was difficult for grandparents to gain legal guardianship.  The new law doesn’t cut the natural parent off forever; it just makes the grandparents or caregivers guardians.   If the parents straighten out their lives and can serve the child’s best interest as well, they can regain custody.  First caregivers must prove they are the de facto custodians of a child, meaning they are the primary financial providers and guardians.  Then they must prove that a child would be in harm’s way if the child lived with the natural parents, or that the parents have not consistently participated in the child’s life.

 
 

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Unhappy about being served with divorce papers by your spouse?

Jun 8, 2010

Former Bush Attorney Used Flashlight to Highlight His Frustration Over the Impending Divorce

John Michael Farren, a onetime top attorney to former President George W. Bush, tried to kill his wife by choking her and beating her with a flashlight in their Connecticut home, according to police.

The 57-year-old is charged with strangulation and attempted murder. He was ordered held Thursday on $2 million bail.

His lawyer Eugene Riccio calls it “a tragic situation.”

Farren was deputy White House counsel to Bush. He also worked on the campaign and transition for former President George H.W. Bush.

An arrest affidavit says the attack occurred after Mary Farren delivered divorce papers Monday.

Police say she passed out during the attack Wednesday night at their New Canaan home and later fled with her children.

She is stable at a hospital with a broken nose, broken jaw and other injuries.

Mary Farren is a Washington D.C. lawyer for Skadden, Arps. She works on energy regulation, according to the company’s Web site.

 
 

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Feeling Like Hiring a Hitman to Kill Your Spouse in CA – Hurry Up!

Hurry up if you are considering a hit man to solve your marital problems in sunny California.  Presently, if a spouse who was found guilty for soliciting murder but never getting the job done may still be entitled to a half of the marital assets  upon release from prison.  California Assembly Member Block introduced a bill that will stop an end to that loophole. Or maybe just consider getting divorced. It might sound too boring but it beats years in jail and forever resentment towards your ex who managed to survive and kept all the money.

BILL NUMBER: AB 2674 INTRODUCED
BILL TEXT

INTRODUCED BY Assembly Member Block
(Coauthor: Assembly Member Portantino)

FEBRUARY 19, 2010

An act to amend Sections 782.5 and 4324 of the Family Code,
relating to family law.

LEGISLATIVE COUNSEL’S DIGEST

AB 2674, as introduced, Block. Family law: exemplary damages.
Existing law provides that, in addition to any other remedy
authorized by law, when a spouse is convicted of attempting to murder
the other spouse, as specified, the injured spouse shall be entitled
to 100% of the community property interest in his or her retirement
and pension benefits, and a prohibition of specified support or
insurance benefits from the injured spouse to the other spouse, as
specified. Existing law defines injured spouse for these purposes.
Existing law also authorizes a court to award attorney’s fees and
costs in the form of a sanction in these cases, as specified.
This bill would expand these provisions to also apply when a
spouse is convicted of soliciting the murder of the other spouse, as
specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 782.5 of the Family Code is amended to read:
782.5. In addition to any other remedy authorized by law, when a
spouse is convicted of attempting to murder the other spouse, as
punishable pursuant to subdivision (a) of Section 664 of the Penal
Code, or of soliciting the murder of the other spouse, as
punishable pursuant to subdivision (b) of Section 653f of the Penal
Code,
the injured spouse shall be entitled to an award to the
injured spouse of 100 percent of the community property interest in
the retirement and pension benefits of the injured spouse.
As used in this section, “injured spouse” has the same meaning as
defined in Section 4324.

SEC. 2. Section 4324 of the Family Code is amended to read:
4324. In addition to any other remedy authorized by law, when a
spouse is convicted of attempting to murder the other spouse, as
punishable pursuant to subdivision (a) of Section 664 of the Penal
Code, or of soliciting the murder of the other spouse, as
punishable pursuant to subdivision (b) of Section 653f of the Penal
Code,
the injured spouse shall be entitled to a prohibition of
any temporary or permanent award for spousal support or medical,
life, or other insurance benefits or payments from the injured spouse
to the other spouse.
As used in this section, “injured spouse” means the spouse who has
been the subject of the attempted murder or the
solicitation of murder
for which the other spouse was
convicted, whether or not actual physical injury occurred.

 
 

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Divorce Gone Bad – Connecticut Man Accused of Fatally Shooting Ex-Wife

Man Accused of Fatally Shooting Ex-Wife, Mother-In-Law

By STEPHANIE BARISH wpix.com

4:28 PM EDT, June 14, 2010

NORWALK, CT (WPIX) – A man is in police custody in connection with the fatal shooting of his ex-wife and mother-in-law at a Norwalk duplex Monday morning.

Gilbert Orlando, 56, apparently ran from the residence located at 31 Couch St at about 8 a.m., where Enid Dickens, 57, and Rona Knight, her 73-year-old mother, were found fatally shot to death, police said.

Both of the victims were rushed to Norwalk Hospital where they were later pronounced dead.

According to reports, Orlando and Dickens split in May. Dickens apparently sought full custody of their adopted child and did not seek child support, according to court documents.

Norwalk Police Chief Harry Riling said Dickens changed the locks on the home after Orlando missing the Saturday deadline to remove his belongings.

Investigators say they believe Orlando shot the women because he was angry about the locks being changed.

Following an intense manhunt, Orlando was captured between the Route 7 connector and I-95 at about noon. Police reportedly recovered a .357 Magnum they believe to be the murder weapon.

It wasn’t immediately clear what charges Orlando faces.

 
 

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Save Money by Filing Your Tax Return Jointly with Your Foreign Spouse!

June 09, 2010 – If you legally live and work in the U.S. and you have a foreign spouse who lives abroad, it is possible for you to file a joint income tax return and save large amounts of money every year.

For example, if you made $16,000 in 2008, and you filed as a single person with no dependents, you would have paid $2,000 in income tax. But if you had filed a joint income tax return with your foreign spouse, you would have only paid $1,600, saving $400.

All you have to do is get a Taxpayer Identification Number (ITIN) for your foreign spouse who is living abroad and attach the necessary documents to your income tax return.

In order to file this joint income tax return, your spouse must either have a Social Security Number (“SSN”) or an Individual Taxpayer Identification Number (“ITIN”). If your spouse does not fulfill the requirement to get a SSN, he or she can file Form W-7 with the Internal Revenue Service (IRS) to apply for an ITIN.

When you decide that you want to file a joint income tax return, attach a statement signed by both you and your spouse to the return for the first tax year for which your decision applies. In this statement, you must include a declaration that your foreign spouse lived abroad and you were legally living and working in the U.S. on the last day of your tax year. You must write that both of you choose to be treated as U.S. residents for that entire tax year. You must also include the name, address, and SSN or ITIN of both you and your spouse.

This law applies even if your spouse died in the tax year for which you are filing your tax return!

You can even demand a prior tax return and re-file it jointly with your foreign spouse and get a refund of past taxes paid. If you and your spouse choose to do this, you and your spouse will also have to amend any tax returns that you filed after the year for which you made the choice. You usually have to file the amended joint return within 3 year from when you filed the original tax return you want to amend or within 2 years from when you paid your income tax for that year, whichever is later.

After you make the decision to file jointly, your spouse will be treated as a U.S. resident, for tax purposes, for all future years. However, your spouse will no longer be treated as a U.S. resident if either you or your spouse decides that you do not want to file a joint income tax return any longer, if you or your spouse dies, if you and your spouse divorce or separate, or if you do not provide all of the necessary documents. If your spouse is no longer considered a U.S. resident for any of these reasons, neither you nor your spouse will be able to file a joint income tax return again for future years.

Alex Meyerovich – M.C. Law Group, LLP is an immigration lawyer in Bridgeport, Connecticut. Elina Stelman co-authored this press release.

To learn more, visit http://www.uslegalvisa.com

The information presented is a general information only and should not be construed to be a formal legal advice nor the formation of a lawyer/client relationship. Contact an experienced licensed attorney to discuss circumstances of your case.

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About M.C. Law Group – Full service immigration law firm handling cases in all areas of immigration law. Our attorneys also provide representation in the areas of family, criminal & tax law with particular attention to the consequences on our clients’ immigration status.

 
 

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