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Roth v. Weston - 259 Conn. 202, 789 A.2d 431 (2002)

Rule:

Implicit in Conn. Gen. Stat. § 46b-59 is a rebuttable presumption that visitation that is opposed by a fit parent is not in a child's best interest. There are two requirements that must be satisfied in order for a court: (1) to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent, and (2) to grant such a petition. First, the petition must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship. The petition must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child. That degree of harm requires more than a determination that visitation would be in the child's best interest. It must be a degree of harm analogous to the kind of harm contemplated by Conn. Gen. Stat. §§ 46b-12046b-129, namely, that the child is neglected, uncared-for or dependent. The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition. 

Facts:

The plaintiffs, Mindy Roth and Donna Campbell, respectively the children's maternal grandmother and maternal aunt, filed a complaint in the trial court seeking visitation with defendant Stan Weston's children in March 2000, three months after Weston’s wife committed suicide. Weston had refused to permit any contact between the plaintiffs and his children during the months following his wife's death. Roth and Campbell’s complaint alleged that the family unit had been disrupted by the death of the children's mother and therefore was no longer intact. Roth and Campbell further alleged that visitation was in the best interest of the children. They did not, however contend that Weston was in any way an unfit parent. At the time Roth and Campbell filed the complaint, they also filed a motion for visitation pendente lite and a motion for a referral to the family relations division of the Superior Court. The trial court granted Roth and Campbell’s motions, and appointed a guardian ad litem for the children. Pursuant to the trial court's order, the guardian ad litem scheduled and supervised visits between Weston’s children and Roth and Campbell at her office. Weston objected to visitation with Roth and Campbell because he believed their morals, values, and ethics were inconsistent with his own and those that he wished to instill in his children, ages two and four. 

Issue:

Did the trial court err in permitting a third-party visitation contrary to the desires of a fit parent and in the absence of any allegation and proof by clear and convincing evidence that the children would suffer actual and significant harm if deprived of the visitation?

Answer:

Yes

Conclusion:

The supreme court addressed the issue of first impression, namely, whether § 46b-59 was constitutional under the Due Process Clauses of U.S. Const. XIV and Conn. Const. art. I, § 8. The supreme court determined that § 46b-59 was unconstitutional as applied to the extent that the trial court, pursuant to § 46b-59, permitted third-party visitation contrary to the desires of a fit parent and in the absence of any allegation and proof by clear and convincing evidence that the children would suffer actual and significant harm if deprived of the visitation. Roth and Campbell also failed to establish that their ongoing relationship with the children rose to a requisite parental type level required under § 46b-59. The cited Troxel case expressed a parent's fundamental liberty interest in the care, custody, and control of his children.

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