Ireland v. Ireland , 246 Conn. 413 ( 1998 )

PALMER, J.,

concurring. I join the majority opinion for the reasons set forth therein. I write separately, however, to emphasize that the burden allocation scheme the majority adopts today will be dispositive only in those relatively rare cases in which the evidence adduced regarding the best interests of the child with respect to relocation is in equipoise. See, e.g., State v. Webb, 238 Conn. 389, 508, 680 A.2d 147 (1996) (“[T]he only fact-finding efforts that actually turn on the allocation of [the] burden [of proof] are those in which the fact finder, after weighing the evidence, finds its mind in perfect equipoise. ... In such a rare case, the allocation of the burden of persuasion to the party asserting the truth of the proposition at issue means that that party cannot prevail.” [Citation omitted; emphasis in original.]).

I agree with the majority that, in circumstances in which one parent has been awarded sole physical custody of a child, and that parent wishes to relocate, as long as he or she establishes that the move is for a legitimate purpose and is reasonable in light of that purpose, the noncustodial parent properly bears the burden of showing why the move would not be in the child’s best interests. This approach gives appropriate voice to the custodial parent’s bona fide interest in relocating. I discern nothing in the majority opinion, moreover, that may be interpreted as signaling a departure from what remains the proper, and sole, focus of the court’s analysis, namely, the best interests of the child. Therefore, it is true, as the majority states, that there will be situations in which a child’s interests will be best served by permitting the custodial parent to relocate with the child. It is equally true, however, that there also will be circumstances in which, although the custodial parent establishes that a relocation would be in his or her own best interests, the noncustodial parent will be able to demonstrate that, for any number of legitimate reasons, the child’s best interests militate in favor of preserving the nature and frequency of the child’s contact with the noncustodial parent.¹ In such cases, the court will be obliged to maintain the status quo. Because the burden allocation scheme adopted by the majority is fully consistent with the statutory mandate that the sole consideration in custody matters be the child’s best interests, and because that approach will make a difference only in those exceptional circumstances in which the relative benefits, to a child, of remaining or relocating are perfectly in balance, I join the majority opinion.²

1 Of course, there may be other persuasive reasons why relocation would not be in the child’s best interests.

2 Two statements in the concurring opinion of Borden, J., warrant a brief response. First, Justice Borden asserts that “once the custodial parent has met his or her initial burden of establishing the legitimacy of the relocation, it is very unlikely that the evidence will be in equipoise.” It is not clear to me upon what this conclusion is based. More importantly, however, at that stage of the proceedings, the noncustodial parent will not yet have had the opportunity to establish that relocation is not in the child’s best interests. Thus, whether the evidence is or is not in equipoise when the burden shifts to the noncustodial parent is simply beside the point. As I have indicated, the burden allocation scheme the majority adopts today will be dispositive only in those few cases in which the custodial parent has met his or her initial burden and the noncustodial parent has demonstrated only that, in light of all relevant factors, the status quo is no better for the child than relocation.

Second, Justice Borden’s statement that the burden allocation scheme adopted by the majority “establishes what the law considers to be the presumed outcome” of this type of case is potentially misleading. Of course, it is true that, under the majority’s approach, once the custodial parent has established legitimate reasons to move, the noncustodial parent will be required to show, by a preponderance of the evidence, that relocation is not in the child’s best interests. This burden allocation scheme presumes no outcome; rather, it places a very light “thumb on the scale” in favor of the custodial parent who can establish bona fide reasons to relocate. Thus, although the burden the majority places on the noncustodial parent will be decisive in the rare case in which the relative merits of relocation, on the one hand, and the status quo, on the other, are in equipoise, the only truly outcome determinative consideration is the child’s best interests.