Boisvert v. Gavis , 332 Conn. 115 ( 2019 )

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DIANE BOISVERT ET AL. v. JAMES GAVIS
(SC 20049)
(SC 20053)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.*
Syllabus
The plaintiffs, the maternal grandparents of the defendant father’s minor
child, B, filed, in the trial court, a petition for visitation with B pursuant
to statute (§ 46b-59). The defendant had been granted custody of B
following the death of B’s mother, before which the plaintiffs enjoyed
a significant relationship with B and contributed meaningfully to his
care. The defendant unilaterally terminated visitation shortly after the
mother’s death, contending that the plaintiffs did not abide by his wishes
with respect to B’s care during B’s time with them, and also because
he believed that the plaintiffs were seeking to have him incarcerated
so that they could be awarded custody of B. Following an evidentiary
hearing, the trial court granted the plaintiffs’ petition, finding that the
plaintiffs had a parent-like relationship with B and that the denial of
visitation would cause B real and significant harm, and the defendant
appealed. Thereafter, the defendant filed a motion seeking a no contact
order between B and his maternal aunt, R, who was living with B’s
maternal grandmother at the time. The court denied the motion, and
the defendant, upon certification by the Chief Justice pursuant to statute
(§ 52-265a) that a matter of substantial public interest was involved,
filed an appeal from the denial of the motion, which was consolidated
with his direct appeal. While the defendant’s consolidated appeals were
pending, the defendant offered the plaintiffs visitation with B in an
amount that was substantially less than what the trial court had pre-
viously ordered in conjunction with the plaintiffs’ petition. In conjunc-
tion with his offer, the defendant filed a motion to open and to terminate
visitation, contending that the trial court was divested of subject matter
jurisdiction in light of his offer, which the trial court denied. Meanwhile,
the defendant discontinued B’s visitation with the plaintiffs, and the
plaintiffs moved for contempt.. The court found the defendant in wilful
contempt for failure to comply with its visitation order. Subsequently,
the plaintiffs filed a second motion for contempt on the basis of the
defendant’s continued refusal to comply with the trial court’s orders,
which the trial court granted, and the defendant filed an amended appeal.
On appeal, the defendant claimed, inter alia, that the trial court’s order
of visitation violated the implicit requirements of § 46b-59 and the due
process clause of the fourteenth amendment to the United States consti-
tution because it did not include a provision directing the plaintiffs to
abide by the defendant’s decisions regarding B’s care while B was visiting
with the plaintiffs and that the court’s order violated the defendant’s
fundamental parental rights because the amount of visitation ordered
was more than was necessary to further the state’s compelling interest
in sustaining B’s relationship with the plaintiffs. Held:
1. The trial court correctly determined that it was not deprived of subject
matter jurisdiction by virtue of the defendant’s postjudgment offer of
visitation to the plaintiffs and, therefore, properly denied the defendant’s
motion to dismiss the plaintiffs’ action: the defendant’s postjudgment
offer of visitation did not render the action moot because, even if a
controversy involving an existing order of third-party visitation could be
rendered moot due to a custodial parent’s voluntary offer of meaningful
visitation with the third party, the defendant failed to establish that his
particular offer of visitation was made in good faith and with the inten-
tion of allowing visitation rather than of avoiding or undermining the
existing visitation order, particularly given that the defendant had consis-
tently and vehemently opposed the plaintiffs’ visitation and twice had
been held in contempt for his refusal to comply with the court-ordered
visitation; moreover, this court concluded that, in light of its determina-
tion that the trial court was not divested of jurisdiction by virtue of the
defendant’s postjudgment offer of visitation, that court also properly
rejected the defendant’s claim that the trial court’s contempt order was
void for lack of subject matter jurisdiction.
2. There was no merit to the defendant’s claim that the trial court’s visitation
order violated the implicit requirements of § 46b-59 and the due process
clause of the fourteenth amendment insofar as it failed to include a
provision directing the plaintiffs to abide by his decisions, as a fit parent,
regarding fundamental aspects of B’s care during B’s visitation with
the plaintiffs:
a. There was no implicit requirement in § 46b-59 that the trial court
include a provision directing a third party to abide by a fit parent’s
decisions regarding the child’s care during visitation with the third party,
as subsection (e) of that statute simply authorizes the trial court to craft
the terms and conditions of third-party visitation and provides that those
terms and conditions are to be guided by the best interest of the child.
b. The defendant could not prevail on his claim that the due process
clause compels a trial court ordering third-party visitation to include a
provision requiring the third party to abide by all of a fit parent’s deci-
sions regarding the child’s care during visitation and that § 46b-59 was
unconstitutional as applied to the facts of the present case insofar as
the order of visitation allowed the plaintiffs to override the defendant’s
exercise of his fundamental parental right to make decisions regarding
B’s care: constitutional and statutory principles governing third-party
visitation do not confer on a parent the absolute right to dictate the terms
and conditions governing third-party visitation, and the fundamental
purpose of the statute, to sustain the deep, emotional bond between
the child and the third party, would be thwarted if a parent opposing
third-party visitation were given unfettered authority to micromanage
the visitation and to supplant the third party’s caregiving choices during
the period of visitation with his or her own; nevertheless, a court, in
assessing what terms may be in the best interest of the minor child,
must accord special weight to a fit parent’s preferences when those
preferences pertain to the most fundamental aspects of a child’s life,
such as the child’s education, health, religion, and association, but the
court should satisfy itself that the parental request concerning such
preferences is made in good faith before according those preferences
special weight; moreover, a custodial parent seeking to impose terms
and conditions on a court’s visitation order must make a specific and
timely request that includes an explanation as to how the requested
terms and conditions further the best interest of the child, and, if the
parent believes that the requested terms and conditions are necessary
to protect his or her fundamental parental rights, he or she must specify
the alleged constitutional nature of the request and the right asserted;
furthermore, in the present case, the defendant’s request was neither
timely, as it was filed after the close of evidence, after the issuance of
the visitation order, and despite the defendant’s knowledge that R was
living with D at the time of the evidentiary hearing, nor specific, as it
was unaccompanied by any explanation as to why his requested no
contact order between B and R was desired or necessary.
3. This court declined to review, under State v. Golding (213 Conn. 233),
the defendant’s unpreserved constitutional claim that the amount of
visitation ordered by the trial court violated his fundamental parental
rights under the due process clause of the fourteenth amendment, the
record having been inadequate for such review: although the defendant
filed various postjudgment motions in the trial court challenging its
visitation order, he did not ask that court to reconsider the amount of
visitation or to articulate the basis for that amount, or otherwise bring
before the court the due process claim he raised on appeal, and, because
the trial court never had the opportunity to rule on that issue, it was
not preserved for review; moreover, given the inherently fact bound
nature of how the trial court’s visitation order should be implemented,
the defendant’s failure to request that the trial court make particularized
findings as to the amount of visitation necessary to sustain the plaintiffs’
relationship with B would render any decision by this court concerning
the defendant’s claim entirely speculative.
Argued September 10, 2018—officially released July 2, 2019
Procedural History
Petition for visitation with the defendant’s minor
child, brought to the Superior Court in the judicial
district of Windham and tried to the court, Graziani,
J.; judgment granting the petition, from which the
defendant appealed; thereafter, the court, Graziani, J.,
denied the defendant’s motion for an order precluding
contact between the minor child and a third party; sub-
sequently, the defendant, upon certification by the Chief
Justice pursuant to General Statutes § 52-265a that a
matter of substantial public interest was involved, filed
a separate appeal with this court, which consolidated
the appeals; thereafter, the court, Graziani, J., denied
the defendant’s motion to open and to terminate visita-
tion, and the defendant’s motion to dismiss, and the
defendant, upon certification by the Chief Justice pursu-
ant to § 52-265a that a matter of substantial public inter-
est was involved, filed an amended appeal. Affirmed.
Mathew Olkin, for the appellant (defendant).
Douglas T. Stearns, for the appellees (plaintiffs).
Justine Rakich-Kelly and Pamela Magnano filed a
brief for the Children’s Law Center of Connecticut as
amicus curiae.
Leslie I. Jennings-Lax and Louise T. Truax filed
a brief for the Connecticut Chapter of the American
Academy of Matrimonial Lawyers as amicus curiae.
George Jepsen, former attorney general, and Carolyn
A. Signorelli, Benjamin Zivyon and John E. Tucker,
assistant attorneys general, filed a brief for the Depart-
ment of Children and Families as amicus curiae.
Mark S. Randall filed a brief for the Connecticut Bar
Association as amicus curiae.
Opinion
ECKER, J. The principal issue in this appeal is
whether an order granting a third party’s petition for
visitation pursuant to General Statutes § 46b-591 over
the objection of a fit custodial parent must include a
provision requiring the third party to abide by all of the
parent’s decisions regarding the care of the child during
the visitation. We conclude that neither § 46b-59 nor
the due process clause of the fourteenth amendment
to the United States constitution requires the trial court
to impose such a broad term and condition on an order
of third-party visitation. With respect to the more lim-
ited claim of the custodial parent, the defendant James
Gavis, that the denial of his postjudgment motion for
a no contact order between the minor child and the
child’s maternal aunt violated the defendant’s funda-
mental parental right to make decisions regarding his
child’s associations, we conclude that the defendant
failed to meet his burden of demonstrating any such
constitutional violation because he failed, as a threshold
matter, to articulate a reason in support of the requested
term and condition. We reject the defendant’s remaining
claims and affirm the judgment of the trial court.
I
The following facts and procedural history are rele-
vant to this appeal. On November 3, 2016, the plaintiffs,
Diane Boisvert and Thomas Boisvert,2 filed a verified
petition for visitation with their grandson, B,3 pursuant
to § 46b-59. The defendant, who is B’s father, opposed
the petition. The trial court, Graziani, J., conducted
an evidentiary hearing on the plaintiffs’ petition, after
which it issued a written memorandum of decision mak-
ing the following findings of fact.
The defendant and Nicole M. Gavis (Nicole) were
married in October, 2011, and divorced in July, 2013.
They had one child, B, who was born in June, 2012. The
defendant was ‘‘the primary cause of the breakdown
of the marriage’’ because he subjected Nicole ‘‘to a
course of domestic violence, threats and humiliation.’’
(Internal quotation marks omitted.) As a consequence,
‘‘[t]he defendant has been in prison on seven different
occasions with multiple incarcerations based [on]
domestic violence . . . .’’ During his incarcerations,
the defendant failed to provide any financial support
for his family. After their divorce in 2013, Nicole was
awarded sole custody of B, and the defendant had no
visitation until April, 2015, at which time he was given
supervised access to B. Nicole died on March 8, 2016.
The plaintiffs are B’s maternal grandparents and,
although they are divorced, they both have had a signifi-
cant relationship with B since his birth. Prior to Nicole’s
death, her mother, Diane Boisvert, ‘‘provided [B with]
care, including feeding, doctor appointments, taking [B]
to day care, school appointments, taking day trips with
[B] as well as taking [B] on vacation.’’ Thomas Boisvert’s
‘‘role in taking care of [B] was less than that of’’ Diane
Boisvert, but he still had a ‘‘significant relationship’’
with B, which ‘‘involved . . . babysitting, feeding and
changing [B’s] diapers.’’
The defendant was granted custody of B after Nicole’s
death in March, 2016. The plaintiffs continued to be
involved in B’s life until June 26, 2016,4 when the defen-
dant terminated the plaintiffs’ contact with B because
he believed that they were ‘‘seeking custody of [B] and
[were] also seeking to get [the defendant] sent back to
jail.’’ The defendant claimed that the plaintiffs ‘‘did not
follow his directions as to how they were to treat’’ B
during their visits. For example, the defendant did not
want B to use a pacifier, but the plaintiffs did not comply
with his request. On another occasion, the defendant
apparently did not want Diane Boisvert to assist B with
his shoe, but she did so anyway.
At the evidentiary hearing on the plaintiffs’ petition
for visitation, Steven H. Humphrey, a licensed clinical
psychologist, testified as an expert witness. Humphrey
testified that the plaintiffs had been very involved as
B’s primary caretakers for twenty-two months of his
young life while the defendant was incarcerated. In
Humphrey’s expert opinion, the plaintiffs both have a
‘‘ ‘warm and healthy bond’ ’’ with B, who has maintained
a sense of their importance in his life. Humphrey
explained that the sudden death of B’s mother was
‘‘very traumatic . . . and severely disruptive and long
lasting’’ for B and that the unexplained disappearance
of the plaintiffs from B’s life has compounded his sense
of loss. Humphrey opined that the lack of contact
between B and the plaintiffs ‘‘is very detrimental to [B]
and would cause real and significant harm to [B]’’ if
allowed to continue. Humphrey further testified that
depriving B of ‘‘individuals who have been in a caretaker
capacity, who have helped bridge the difficulties caused
by maternal death and paternal incarceration, and who
are capable and eager to provide [B] with such support,
would not be in his best interest, and there are reasons
for concern that there would be significant psychologi-
cal harm to cessation of these relationship[s].’’ The trial
court found Humphrey’s in-court testimony, expert
report, and expert opinions to be credible, ‘‘well thought
out, appropriate, and reasonable.’’
Tracie Molinaro, the guardian ad litem appointed on
behalf of B, also testified at the evidentiary hearing. In
Molinaro’s opinion, B has a ‘‘healthy relationship’’ with
the plaintiffs, whom he ‘‘adores and loves . . . .’’ Moli-
naro testified that the plaintiffs had a regular and consis-
tent relationship with B and that they had been actively
involved in his day-to-day care, especially during the
defendant’s incarceration. Molinaro believed that B had
a parent-like relationship with Diane Boisvert and that
the denial of visitation would cause B real and signifi-
cant harm. As for Thomas Boisvert, Molinaro testified
that the relationship was healthy, loving and positive,
but she did not believe that the relationship rose to the
level of a parent-like relationship. In Molinaro’s opinion,
neither of the plaintiffs would undermine the defen-
dant’s role as a parent if visitation was ordered. The
trial court found Molinaro’s testimony to be ‘‘credible
and consistent with the testimony of . . . Humphrey,
with the exception of the maternal grandfather not hav-
ing a parent-like relationship’’ with B, which the trial
court did not find to be correct.
The trial court issued its written memorandum of
decision on August 11, 2017. On the basis of the evi-
dence adduced at the evidentiary hearing, the trial court
found, by clear and convincing evidence, that the plain-
tiffs had a parent-like relationship with B and that a
denial of visitation would cause B real and significant
harm. The trial court explained: ‘‘This child is five years
old. During his life, he has suffered the loss of his father
as a result of his incarceration for approximately two
years, being 40 percent of the child’s life. [After] [t]he
death of his mother on March 8, 2016, the cessation of
any meaningful contact with his maternal grandparents
for the last year as a result of the unilateral actions of
the father is clearly harmful to the child. As . . . Hum-
phrey articulated in his testimony and report, the death
of the child’s mother, compounded with the unex-
plained disappearance of the maternal grandparents, is
very detrimental to the child and would cause real and
significant harm to the child. . . . Humphrey also
opined that disruptive relationships in the life of a child
can have deleterious effects for the child, including
mood problems, insecurity and problems with socializa-
tion and self-confidence. The death of the mother can-
not be changed. The cessation of the child’s contact
with the maternal grandparents can be changed by the
court. The father, in terminating a support for the child
in the form of . . . consistent and loving figures in the
life of the child, the maternal grandparents, is not acting
in the best interest of the child. Contact with the child’s
mother’s family provides a source of information to the
child as to the mother that he no longer gets to see by
virtue of her death. The emotional development of the
child in dealing with the loss of his mother and the
cessation of contact with the maternal grandparents
clearly is harmful to the child and not in the best interest
of the child. The court thereby, having found the exis-
tence of a parent-like relationship between the child
and the maternal grandparents, also finds that the termi-
nation of that relationship does cause a real and signifi-
cant harm to the child.’’
The trial court granted the plaintiffs’ petition for visi-
tation, awarding Diane Boisvert visitation ‘‘every other
weekend from Friday at 5 p.m. until Sunday at 5 p.m.,’’
and Thomas Boisvert visitation ‘‘every Wednesday from
the end of school each Wednesday, or noon if there is
no school, until 8 p.m.’’ The trial court also imposed
the following terms and conditions on visitation: (1)
‘‘[t]he parties shall not disparage the other parties in the
presence of the minor child’’; (2) ‘‘[a]ll communication
between the parties regarding visitation and/or the
minor child shall be via text message or other written
communication’’; and (3) ‘‘[n]othing herein shall pro-
hibit the parties [from] expanding the visitation for any
specific visit as agreed by [the] parties in writing by
the parties.’’
The defendant filed an appeal from the trial court’s
judgment. Shortly thereafter, the defendant also filed
a postjudgment motion for order, pursuant to Practice
Book § 25-24 (a), asking the trial court to enter an order
requiring the plaintiffs to ‘‘allow no contact between
[the] minor child [B] and a certain third party, Regina
Riddell . . . .’’5 The defendant represented in his
motion that he had ‘‘asked the plaintiffs to allow no
contact between the minor child and . . . Riddell but
that the plaintiffs ha[d] refused to give assurance that
they [would] honor such request.’’ The defendant
argued that the plaintiffs’ refusal to honor his request
constituted a denial of his fundamental parental right
to make decisions regarding B’s care, control and asso-
ciations. The trial court conducted a hearing on the
defendant’s motion at which the plaintiffs’ counsel
explained that the defendant’s motion ‘‘stems from . . .
Diane Boisvert, having her daughter living in her house,
her daughter [Riddell] . . . is an adult, and it stems
from the request that [Riddell] not be present for any
of the visitation.’’ The plaintiffs’ counsel continued:
‘‘[T]here have been no documented concerns of any
harm that would come to the child from [Riddell]. This
was never brought up during the trial about [Riddell’s]
presence being a concern. And so this seems like an
unreasonable request . . . .’’ The defendant did not tes-
tify at the hearing and presented no evidence in support
of his motion. The trial court denied the defendant’s
postjudgment motion on the ground that there was ‘‘not
one scintilla of evidence to show that [B’s contact with
Riddell] is inappropriate, puts the child in any danger,
or reduces the level of care.’’ The trial court noted that
‘‘visitation is always an open issue, it’s never cast in
stone,’’ and, if an order of visitation puts a child at risk
or is not in a child’s best interest, ‘‘then the court can
always modify or terminate the visitation . . . .’’ The
trial court explained, however, that it was not otherwise
‘‘going to micromanage’’ the visitation because ‘‘[there
are] literally millions and millions of circumstances that
may ultimately follow . . . .’’
The defendant subsequently filed a motion to reargue,
contending that ‘‘it was irrelevant that the defendant
failed to produce evidence to show the child could be
harmed if the defendant’s decisions were not complied
with’’ because the defendant is a fit parent whose deci-
sions must be presumed to be in the best interest of his
child. The defendant argued that ‘‘[t]he constitutional
limitations [that] constrain the granting of third-party
visitation orders necessarily apply with equal force to
the terms and conditions of the visitation order itself,’’
and, as such, the trial court is obligated to ‘‘craft orders
[that] preserve, to the extent possible, a parent’s fun-
damental right to make parenting decisions.’’ (Empha-
sis in original.) The trial court denied the defendant’s
motion to reargue.
The defendant then filed an application for an expe-
dited public interest appeal from the trial court’s denial
of his postjudgment motions pursuant to General Stat-
utes § 52-265a and Practice Book § 83-1. He contended
that the trial court’s failure to direct the plaintiffs to
abide by his parental decisions regarding the care, con-
trol and custody of B violates § 46b-59 and the due
process clause of the fourteenth amendment to the
United States constitution. The application was granted
by then Chief Justice Rogers. Thereafter, the defen-
dant’s direct appeal was transferred from the Appellate
Court to this court pursuant to Practice Book § 65-1,
and his direct appeal and his certified public interest
appeal were consolidated for this court’s review.
While these appeals were pending, on January 9, 2018,
the defendant filed in the trial court a postjudgment
motion to open and terminate visitation, claiming that
a change in circumstances had divested the trial court
of subject matter jurisdiction. The defendant informed
the trial court that he had offered each of the plaintiffs
what he considered to be meaningful visitation in the
amount of a four hour visit each month plus a four hour
visit on or near a major holiday, and argued that, in light
of this offer, the trial court was divested of jurisdiction
because there no longer was a denial of visitation that
would cause real and significant harm to B under § 46b-
59 (b). Two months later, on March 22, 2018, the plain-
tiffs filed a motion for contempt in the trial court, alleg-
ing that the defendant had refused to comply with the
third-party visitation order on the basis of his offer of
visitation, which ‘‘is very limited and outside of any court
orders.’’ The defendant moved to dismiss the motion
for contempt for lack of subject matter jurisdiction. The
trial court denied the defendant’s postjudgment motion
to open and terminate visitation, determining that the
defendant’s unilateral offer of visitation did not divest
the trial court of ‘‘subject matter jurisdiction over the
action at the time it rendered the underlying judgment
and issued its memorandum of decision.’’
The trial court held a hearing on the plaintiffs’ motion
for contempt on July 18, 2018. On the morning of the
hearing, the defendant filed a postjudgment motion to
dismiss for lack of subject matter jurisdiction, again
contending that his January 9, 2018 offer of visitation
had divested the trial court of subject matter jurisdic-
tion. At the hearing, the defendant argued that ‘‘nothing
can be adjudicated today because of the motion I filed
this morning seeking dismissal for a lack of subject
matter jurisdiction.’’ The trial court denied the defen-
dant’s motion to dismiss for lack of subject matter juris-
diction and also denied his motion to dismiss the
plaintiffs’ motion for contempt. On the merits of the
contempt motion, the trial court heard testimony that
court-ordered visitation had been refused for four
months, which is ‘‘sixteen days of weekends, plus every
single Wednesday . . . .’’ On the basis of the evidence
adduced at the hearing, the trial court found the defen-
dant to be ‘‘in wilful contempt by clear and convincing
evidence of the August 11, 2017 court orders and
enter[ed] the following remedial orders: (1) The defen-
dant shall pay the plaintiffs’ [attorney’s] fees in the
amount of $1400. This amount shall be paid within thirty
days. (2) The visitation which was previously ordered
on August 11, 2017, shall resume immediately. The
maternal grandmother’s weekend visitation shall com-
mence on July 20, 2018, and the maternal grandfather’s
Wednesday visitation shall commence on July 25, 2018.
(3) In addition to the previously ordered visitation, the
maternal grandmother shall have five days of continu-
ous visitation with the minor child this summer. The
dates shall be selected upon agreement of the parties.
If the parties are unable to come to an agreement, the
maternal grandmother shall have visitation with the
minor child from August 13, 2018, through August 17,
2018.’’
On July 23, 2018, the plaintiffs filed a second motion
for contempt, alleging that the defendant had ‘‘again
refused visitation,’’ even after being ‘‘ordered to resume
visitation after being found in contempt . . . .’’ The
trial court conducted a hearing at which the plaintiffs
testified that the defendant continued to refuse to per-
mit them any visitation with B, despite the trial court’s
prior orders. Following the hearing, the trial court
found, by clear and convincing evidence, that ‘‘the
defendant had notice of the valid court orders both on
August 11, 2017, and the subsequent court order of July
19, 2018,’’ and had ‘‘wilfully failed to comply with the
orders of the court, which are clear and unambiguous,
by not providing the visitation in accordance with the
court orders with the plaintiff Diane Boisvert [from]
July 20 through [July] 22 of 2018, and the plaintiff
Thomas Boisvert on July 25, 2018.’’ The court found
the defendant to be in wilful contempt and committed
him to the custody of the Department of Correction. The
trial court stayed its order of incarceration, however,
pending compliance with the court’s order of visitation.6
The defendant filed an amended appeal in this court
seeking review of the trial court’s July 19, 2018 contempt
order and the denial of his postjudgment motion to
dismiss for lack of subject matter jurisdiction. The
defendant’s amended appeal was treated as an applica-
tion for certification to file a public interest appeal
pursuant to § 52-265a and Practice Book § 83-1, which
was granted by Chief Justice Robinson. Thereafter, the
parties filed supplemental briefs addressing the trial
court’s subject matter jurisdiction and the validity of
the contempt order.
The defendant raises the following claims in these
consolidated appeals: (1) the trial court improperly
denied the defendant’s postjudgment motion to dismiss
for lack of subject matter jurisdiction because it failed
to make the requisite factual findings under Roth v.
Weston, 259 Conn. 202, 789 A.2d 431 (2002); (2) the trial
court’s July 19, 2018 order of contempt is void for lack
of subject matter jurisdiction; (3) the order of visitation
violates the implicit requirements of § 46b-59 and the
due process clause of the fourteenth amendment
because it does not include, as a term and condition
governing the visitation, a provision affirmatively
directing the plaintiffs to abide by the defendant’s deci-
sions regarding B’s care; (4) the order of visitation vio-
lates the defendant’s fundamental parental rights under
the due process clause because the amount of visitation
is more than is necessary to further the state’s compel-
ling interest in sustaining B’s relationship with the plain-
tiffs; and (5) the ‘‘magnitude as well as the duration of
the constitutional deprivations’’ warrant vacatur of the
order of visitation and dismissal of the plaintiffs’ peti-
tion for visitation.7
II
It will be useful at the outset to review the fundamen-
tal constitutional principles and relevant statutory pro-
visions governing third-party visitation. A parent’s right
to control his or her child’s upbringing was first
accorded constitutional protection in two United States
Supreme Court cases decided almost one century ago.
See Pierce v. Society of Sisters, 268 U.S. 510, 534–35,
45 S. Ct. 571, 69 L. Ed. 1070 (1925) (referring to ‘‘the
liberty of parents and guardians to direct the upbringing
and education of children under their control’’); Meyer
v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed.
1042 (1923) (referring to parent’s right to ‘‘bring up
children’’). Seventy-five years later, in Troxel v. Gran-
ville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000),
the United States Supreme Court had occasion to con-
sider whether this parental right was violated by Wash-
ington’s third-party visitation statute, which permitted
‘‘ ‘[a]ny person’ to petition a superior court for visitation
rights ‘at any time,’ and authorize[d] that court to grant
such visitation rights whenever ‘visitation may serve the
best interest of the child.’ ’’ Id., 60 (plurality opinion),
quoting Wash. Rev. Code § 26.10.160 (3) (2000). Pursu-
ant to the Washington statute, Jenifer and Gary Troxel
were granted visitation with their granddaughters over
the objection of their mother, Tommie Granville. Id.,
60–61. The United States Supreme Court held that the
order of visitation infringed on Granville’s fundamental
right under the due process clause of the fourteenth
amendment of the United States constitution to ‘‘make
decisions concerning the care, custody, and control of
her two daughters.’’ Id., 72. The court noted that ‘‘[t]he
Washington nonparental visitation statute [was] breath-
takingly broad’’; id., 67; and ‘‘directly contravened the
traditional presumption that a fit parent will act in the
best interest of his or her child.’’ Id., 69. Because the
due process clause ‘‘does not permit a [s]tate to infringe
on the fundamental right of parents to make child rear-
ing decisions simply because a state judge believes a
‘better’ decision could be made,’’ the court held that
Washington’s third-party visitation statute was uncon-
stitutional. Id., 72–73. In arriving at its conclusion, the
court noted that it did not need to ‘‘define . . . the
precise scope of the parental due process right in the
visitation context’’ because ‘‘the constitutionality of any
standard for awarding visitation turns on the specific
manner in which that standard is applied . . . .’’ Id.,
73. In short, ‘‘the constitutional protections in this area
are best ‘elaborated with care.’ ’’ Id.8
In Roth v. Weston, supra, 259 Conn. 205, this court
considered whether Connecticut’s then existing third-
party visitation statute, General Statutes (Rev. to 2001)
§ 46b-59, was unconstitutional in light of Troxel. We
acknowledged in Roth that parents have a fundamental
constitutional right ‘‘to raise their children as they see
fit,’’ and ‘‘Troxel teaches that courts must presume that
fit parents act in the best interests of their children
. . . .’’ (Internal quotation marks omitted.) Id., 216,
quoting Troxel v. Granville, supra, 530 U.S. 68 (plurality
opinion). ‘‘Troxel confirms that among those interests
lying at the core of a parent’s right to care for his or
her own children is the right to control their associa-
tions. . . . The essence of parenthood is the compan-
ionship of the child and the right to make decisions
regarding his or her care, control, education, health,
religion and association[s].’’ (Citation omitted.) Roth v.
Weston, supra, 216–17.
Roth also recognized, however, that there are ‘‘limita-
tions on these parental rights.’’ Id., 224. One such limita-
tion occurs when an otherwise fit parent denies his or
her child access to an individual who has a parent-like
relationship with the child and ‘‘the parent’s decision
regarding visitation will cause the child to suffer real
and substantial emotional harm . . . .’’9 Id., 226. Under
such circumstances, the state has a compelling interest
in protecting ‘‘the child’s own complementary interest
in preserving [parent-like] relationships that serve [the
child’s] welfare’’ by avoiding the ‘‘serious and immedi-
ate harm to [the] child’’ that would result from the
parent’s decision to terminate or impair the child’s rela-
tionship with the third party. Id., 225; see also id. (‘‘[The]
issue of grandparent visitation is not simply ‘a bipolar
struggle between the parents and the [s]tate over who
has final authority to determine what is in a child’s best
interests. There is at a minimum a third individual,
whose interests are implicated in every case to which
the statute applies—the child.’ ’’), quoting Troxel v.
Granville, supra, 530 U.S. 86 (Stevens, J., dissenting).
Roth holds that a third party seeking visitation over a
fit parent’s objection must surmount a ‘‘high hurdle’’;
Roth v. Weston, supra, 229; and requires the petitioning
party to establish, by clear and convincing evidence,
that (1) a parent-like relationship exists, and (2) denial
of visitation would cause the child to suffer real and
significant harm. Id., 225–29. These two factors, com-
monly referred to as the Roth factors, ‘‘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.’’ Id., 234. Once
this high burden is met, visitation ‘‘is appropriate and
should be ordered.’’ DiGiovanna v. St. George, 300
Conn. 59, 73, 12 A.3d 900 (2011).
In 2012, our legislature amended § 46b-59 in accor-
dance with the constitutional standards set forth in
Roth. See Public Acts 2012, No. 12-137, § 1 (P.A. 12-
137). The amended statute provides that ‘‘[a]ny person
may submit a verified petition to the Superior Court
for the right of visitation with any minor child. Such
petition shall include specific and good-faith allegations
that (1) a parent-like relationship exists between the
person and the minor child, and (2) denial of visitation
would cause real and significant harm. Subject to sub-
section (e) of this section, the court shall grant the right
of visitation with any minor child to any person if the
court finds after hearing and by clear and convincing
evidence that a parent-like relationship exists between
the person and the minor child and denial of visitation
would cause real and significant harm.’’10 General Stat-
utes § 46b-59 (b). ‘‘In determining whether a parent-like
relationship exists . . . the Superior Court may con-
sider, but shall not be limited to, the following factors:
(1) The existence and length of a relationship between
the person and the minor child prior to the submission
of a petition pursuant to this section; (2) The length of
time that the relationship between the person and the
minor child has been disrupted; (3) The specific parent-
like activities of the person seeking visitation toward
the minor child; (4) Any evidence that the person seek-
ing visitation has unreasonably undermined the author-
ity and discretion of the custodial parent; (5) The
significant absence of a parent from the life of a minor
child; (6) The death of one of the minor child’s parents;
(7) The physical separation of the parents of the minor
child; (8) The fitness of the person seeking visitation;
and (9) The fitness of the custodial parent.’’ General
Statutes § 46b-59 (c). Additionally, if the third party
seeking visitation is a grandparent, the trial court may
consider ‘‘the history of regular contact and proof of a
close and substantial relationship between the grand-
parent and the minor child.’’ General Statutes § 46b-
59 (d).
Section 46b-59 (e) provides in relevant part that a
trial court granting visitation ‘‘shall set forth the terms
and conditions of visitation including, but not limited
to, the schedule of visitation, including the dates or
days, time and place or places in which the visitation
can occur, whether overnight visitation will be allowed
and any other terms and conditions that the court deter-
mines are in the best interest of the minor child, pro-
vided such conditions shall not be contingent upon any
order of financial support by the court. In determining
the best interest of the minor child, the court shall
consider the wishes of the minor child if such minor
child is of sufficient age and capable of forming an
intelligent opinion. In determining the terms and condi-
tions of visitation, the court may consider . . . the
effect that such visitation will have on the relationship
between the parents or guardians of the minor child
and the minor child . . . .’’ The statute also makes clear
that a grant of visitation does not create any ‘‘parental
rights in the person or persons to whom such visitation
rights are granted . . . .’’ General Statutes § 46b-59 (f).
In DiGiovanna v. St. George, supra, 300 Conn. 73,
we specifically addressed the trial court’s authority to
fashion terms and conditions governing third-party visi-
tation. In that case, the plaintiff sought visitation with
the child over the mother’s intense objection. Id., 61–62,
65. The mother’s opposition to third-party visitation was
so vehement and unrestrained that, even though the
trial court found by clear and convincing evidence that
both of the Roth factors had been satisfied, the trial
court nonetheless denied the plaintiff’s petition for visi-
tation because it believed that the mother would take
her anger out on the child and, on that basis, concluded
that visitation ultimately was not in the child’s best
interest. Id., 67. This court reversed the judgment of
the trial court, explaining that the best interest of the
child standard cannot ‘‘overcome the Roth standard for
ordering visitation.’’ Id., 69. We clarified that the best
interest of the child standard ‘‘determines how [an]
order of visitation should be implemented’’; (emphasis
in original) id., 73; and the trial court has many ‘‘tools
in its arsenal to effectuate visitation.’’ Id., 75. For exam-
ple, the trial court has authority under General Statutes
§ 46b-56 (i) to order both parents and third parties to
undergo counseling; id., 74–75; and can ‘‘[prescribe]
specific conditions under which visitation would take
place to address legitimate concerns of either party.’’
Id., 75. With specific reference to the mother’s concern
that ‘‘the plaintiff had attempted to buy the [child’s]
affections by excessively spending money on [him] and
buying [him] toys and gifts,’’ we observed that the trial
court ‘‘could have limited the circumstances under
which the plaintiff could buy things for’’ the child. Id.,
75 n.8. We noted, finally, that the trial court can always
use ‘‘its contempt powers to coerce . . . compliance’’
with visitation orders and may even ‘‘consider whether
to order intervention by the [D]epartment [of Children
and Families].’’ Id., 76. DiGiovanna clarifies that the
best interest of the child standard ‘‘guides the court in
determining how best to foster’’ the relationship
between the third party and the child once visitation
is ordered under the Roth factors, as codified in § 46b-
59, and the trial court may, in implementing the visita-
tion order, consider ‘‘counseling, as well as restrictions
on the time, place, manner, and extent of visitation.’’
Id., 78.
III
With this legal framework in mind, we turn to the
defendant’s claims on appeal. A threshold issue involves
the defendant’s challenge to the trial court’s subject
matter jurisdiction. The jurisdictional attack is predi-
cated on the defendant’s postjudgment offer of visita-
tion to the plaintiffs, which was conveyed to the
plaintiffs by letter dated January 9, 2018. The defendant
argued in the trial court that this postjudgment offer
of visitation deprived the court of subject matter juris-
diction over the action because there no longer was a
‘‘denial of visitation’’ that ‘‘would cause real and signifi-
cant harm.’’ General Statutes § 46b-59 (b); see also Roth
v. Weston, supra, 259 Conn. 234 (holding that both Roth
factors ‘‘must be satisfied in order for a court . . . to
have jurisdiction over a petition for visitation contrary
to the wishes of a fit parent’’). The defendant acknowl-
edged that the trial court may have ‘‘previously . . .
possessed subject matter jurisdiction over this action’’
because there was a complete denial of visitation when
the trial court granted the plaintiffs’ petition for visita-
tion, but contended that his subsequent ‘‘offer of mean-
ingful visitation serves to deprive [the] court of
jurisdiction over this action presently.’’ (Emphasis in
original.) He renews this claim on appeal.
The defendant’s argument is predicated on Denardo
v. Bergamo, 272 Conn. 500, 509, 863 A.2d 686 (2005),
which he contends requires application of the Roth
factors to a postjudgment motion to dismiss filed by
a fit parent.11 The defendant’s reliance on Denardo is
misplaced, however, because Denardo involved an
award of third-party visitation that was not supported
by the Roth factors in the first instance. See id., 503.
In Denardo, the trial court’s initial order granting visita-
tion to the paternal grandparents, over the mother’s
objection, was made prior to this court’s decision in
Roth. Id., 505–506. The trial court therefore based its
initial ruling on the ‘‘best interest of the child standard
[which at the time] was in accord with the judicial gloss
that this court had applied to [the pre-Roth version of]
§ 46b-59 . . . .’’ Id., 506. After our decision in Roth was
issued, the defendant in Denardo moved to modify and
terminate the third-party visitation order on the ground
that the standard articulated in Roth applied retrospec-
tively. Id., 507. The trial court agreed, and this court
affirmed, stating: ‘‘The plaintiffs failed to allege or
attempt to prove that their relationship with the child
was similar to a parent-child relationship and that denial
of visitation would cause real and significant harm to
the child. Without those specific, good faith allegations
or such proof, either at the time of the filing of their
petition or at the time of the hearing on the defendant’s
motion, the trial court’s prior order of visitation was
rendered without subject matter jurisdiction.’’ Id., 514.
Although Denardo held that the Roth factors apply ret-
roactively to third-party visitation orders issued under
the pre-Roth best interest of the child standard, that
case says nothing about the jurisdiction of a trial court
to adjudicate a postjudgment motion to dismiss on the
basis of events that occur after an award of third-party
visitation is made by a court duly applying the Roth
factors under § 46b-59, as amended by P.A. 12-137.
Denardo, therefore, lends no support to the defendant’s
jurisdictional claim.
The defendant’s jurisdictional argument is not cast
in terms of mootness, but he appears to argue that his
postjudgment offer of visitation rendered the action
moot because he voluntarily remedied any legally cogni-
zable harm. ‘‘Mootness implicates [the] court’s subject
matter jurisdiction’’ and, therefore, ‘‘presents a question
of law over which our review is plenary.’’ (Internal
quotation marks omitted.) New Hartford v. Connecticut
Resources Recovery Authority, 291 Conn. 502, 506–507,
970 A.2d 578 (2009). ‘‘Mootness presents a circumstance
wherein the issue before the court has been resolved
or had lost its significance because a change in the
condition of affairs between the parties. . . . A case
becomes moot when due to intervening circumstances
a controversy between the parties no longer exists’’ and
‘‘the court can no longer grant any practical relief.’’
(Internal quotation marks omitted.) Taylor v. Zoning
Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641
(2002).
‘‘It is well settled that a defendant’s voluntary cessa-
tion of a challenged practice does not deprive a . . .
court of its power to determine the legality of the prac-
tice,’’ because, ‘‘[i]f it did, the courts would be com-
pelled to leave [t]he defendant . . . free to return to
his old ways.’’ (Internal quotation marks omitted.)
Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693,
145 L. Ed. 2d 610 (2000). The voluntary cessation excep-
tion to the mootness doctrine is founded on ‘‘the princi-
ple that a party should not be able to evade judicial
review, or to defeat a judgment, by temporarily altering
questionable behavior.’’ City News & Novelty, Inc. v.
Waukesha, 531 U.S. 278, 284 n.1, 121 S. Ct. 743, 148 L.
Ed. 2d 757 (2001). Thus, the standard ‘‘for determining
whether a case has been mooted by the defendant’s
voluntary conduct is stringent,’’ and a case becomes
moot only ‘‘if subsequent events [make] it absolutely
clear that the allegedly wrongful behavior could not
reasonably be expected to recur.’’ (Internal quotation
marks omitted.) Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., supra, 189. ‘‘The
heavy burden of persua[ding] the court that the chal-
lenged conduct cannot reasonably be expected to start
up again lies with the party asserting mootness.’’ (Inter-
nal quotation marks omitted.) Id.; see also Windels v.
Environmental Protection Commission, 284 Conn.
268, 281, 933 A.2d 256 (2007) (holding that defendant’s
voluntary cessation of challenged activity did not render
case moot because defendant had ‘‘not alleged, much
less established, that it does not intend to resume’’
challenged activity).
Even if we were to assume, for the sake of argument,
that a controversy involving an existing order of third-
party visitation could be rendered moot under some
circumstances due to the custodial parent’s voluntary
offer to allow meaningful visitation, the defendant has
failed to satisfy his heavy burden of establishing that
his January 9, 2018 offer of visitation was made in good
faith and with the intention to permit the plaintiffs to
visit with B, rather than to avoid or undermine the
purpose of the third-party visitation order. The record
reflects that the defendant consistently and vehemently
has opposed the plaintiffs’ visitation with B. Indeed,
the defendant’s opposition to the plaintiffs’ visitation
is so intense that he has refused to comply with court-
ordered visitation for months at a time and twice has
been found to be in contempt of court, resulting in an
order of commitment to the Department of Correction.
The defendant’s voluntary offer of visitation, on these
facts, plainly did not divest the trial court of subject
matter jurisdiction.
Our conclusion on this point also disposes of the
defendant’s claim that the trial court’s July 19, 2018
order of contempt was void for lack of subject matter
jurisdiction. Having determined that the trial court had
subject matter jurisdiction over this matter, we hold
that the defendant’s challenge to the contempt order
must fail. See Eldridge v. Eldridge, 244 Conn. 523, 530,
710 A.2d 757 (1998) (‘‘[a]n order of the court must be
obeyed until it has been modified or successfully chal-
lenged’’ [internal quotation marks omitted]). Therefore,
the trial court’s July 19, 2018 order of contempt is
affirmed.
IV
The defendant claims that the trial court’s order of
visitation violated the implicit requirements of § 46b-
59 and the due process clause of the fourteenth amend-
ment to the United States constitution because it failed
to include a provision affirmatively directing the plain-
tiffs to abide by his decisions regarding B’s care during
the duration of their visit with B. It is important to
understand at the outset that the defendant does not
challenge the trial court’s Roth findings or the award of
visitation in favor of the plaintiffs. He contends, instead,
that the third-party visitation order is unlawful because
both § 46b-59 and the due process clause require a trial
court granting third-party visitation to ‘‘affirmatively
[direct] the third party not to override the parent’s deci-
sions concerning the minor child’s care, control, educa-
tion, health, religion, and associations.’’ (Emphasis
omitted.) We disagree.
A
We first address defendant’s claim regarding the
implicit requirements of § 46b-59. ‘‘[I]ssues of statutory
construction raise questions of law, over which we exer-
cise plenary review. . . . The process of statutory
interpretation involves the determination of the mean-
ing of the statutory language as applied to the facts of
the case, including the question of whether the language
does so apply. . . . When construing a statute, [o]ur
fundamental objective is to ascertain and give effect to
the apparent intent of the legislature. . . . In other
words, we seek to determine, in a reasoned manner,
the meaning of the statutory language as applied to the
facts of [the] case, including the question of whether
the language actually does apply. . . . In seeking to
determine that meaning, General Statutes § 1-2z directs
us first to consider the text of the statute itself and its
relationship to other statutes. If, after examining such
text and considering such relationship, the meaning of
such text is plain and unambiguous and does not yield
absurd or unworkable results, extratextual evidence of
the meaning of the statute shall not be considered.’’
(Internal quotation marks omitted.) Ugrin v. Cheshire,
307 Conn. 364, 379–80, 54 A.3d 532 (2012).
Section 46b-59 (e) expressly addresses the terms and
conditions governing a third-party visitation order. It
provides: ‘‘If the Superior Court grants the right of visita-
tion pursuant to subsection (b) of this section, the court
shall set forth the terms and conditions of visitation
including, but not limited to, the schedule of visitation,
including the dates or days, time and place or places
in which the visitation can occur, whether overnight
visitation will be allowed and any other terms and condi-
tions that the court determines are in the best interest
of the minor child . . . . In determining the best inter-
est of the minor child, the court shall consider the
wishes of the minor child if such minor child is of
sufficient age and capable of forming an intelligent opin-
ion. In determining the terms and conditions of visita-
tion, the court may consider (1) the effect that such
visitation will have on the relationship between the
parents or guardians of the minor child and the minor
child, and (2) the effect on the minor child of any domes-
tic violence that has occurred between or among par-
ents, grandparents, persons seeking visitation and the
minor child.’’ General Statutes § 46b-59 (e).
Nothing in § 46b-59 requires the trial court to include,
as a term and condition governing the order of third-
party visitation, a provision affirmatively directing the
third party not to override a fit parent’s decisions
regarding the child’s care. To the contrary, the statute
plainly provides the trial court with the authority to
craft ‘‘terms and conditions that the court determines
are in the best interest of the minor child . . . .’’ Gen-
eral Statutes § 46b-59 (e); see also DiGiovanna v. St.
George, supra, 300 Conn. 73 (clarifying ‘‘that the best
interest of the child determines how th[e] order of visita-
tion should be implemented’’ [emphasis in original]).
We therefore reject the defendant’s statutory argument.
B
The defendant next argues that the due process
clause of the fourteenth amendment compels a trial
court ordering third-party visitation to include a provi-
sion requiring the third party to abide by all of a fit
parent’s decisions regarding the child’s care during the
visitation. This claim is based on the ‘‘traditional pre-
sumption that a fit parent will act in the best interest
of his or her child.’’ Troxel v. Granville, supra, 530 U.S.
69 (plurality opinion); see also Roth v. Weston, supra,
259 Conn. 221. In light of this traditional presumption,
the defendant contends that § 46b-59 is unconstitutional
as applied to the facts of this case because the trial
court’s visitation order permits the plaintiffs to override
the defendant’s exercise of his fundamental parental
right to make decisions regarding B’s care.
‘‘Determining the constitutionality of a statute pre-
sents a question of law over which our review is plenary.
. . . It [also] is well established that a validly enacted
statute carries with it a strong presumption of constitu-
tionality, [and that] those who challenge its constitu-
tionality must sustain the heavy burden of proving its
unconstitutionality beyond a reasonable doubt. . . .
The court will indulge in every presumption in favor of
the statute’s constitutionality . . . . Therefore, [w]hen
a question of constitutionality is raised, courts must
approach it with caution, examine it with care, and
sustain the legislation unless its invalidity is clear.’’
(Internal quotation marks omitted.) Doe v. Hartford
Roman Catholic Diocesan Corp., 317 Conn. 357, 405,
119 A.3d 462 (2015). In evaluating the constitutionality
of a statute, moreover, we will construe the statute in
such a manner as ‘‘to save its constitutionality,’’ rather
than ‘‘to destroy it.’’ State v. Indrisano, 228 Conn. 795,
805, 640 A.2d 986 (1994). In doing so, ‘‘we may also add
interpretative gloss to a challenged statute in order to
render it constitutional. In construing a statute, the
court must search for an effective and constitutional
construction that reasonably accords with the legisla-
ture’s underlying intent.’’ (Internal quotation marks
omitted). Id., 805–806.
The due process clause of the fourteenth amendment
requires a court to apply the ‘‘traditional presumption
that a fit parent will act in the best interest of his or her
child’’; Troxel v. Granville, supra, 530 U.S. 69 (plurality
opinion); see also Roth v. Weston, supra, 259 Conn.
221; and to accord ‘‘special weight’’ to a fit parent’s
determination of his or her child’s best interest. Troxel
v. Granville, supra, 69. Indeed, it is because of this
constitutional deference to a fit parent’s decision-mak-
ing authority that § 46b-59 contains an implicit but
‘‘rebuttable presumption that visitation that is opposed
by a fit parent is not in a child’s best interest.’’ Roth v.
Weston, supra, 234. In order to obtain an order of visita-
tion over a fit parent’s objection, a third party must
surmount a ‘‘high hurdle’’ and demonstrate, by clear
and convincing evidence, both that a parent-like rela-
tionship exists and that disruption of the third-party
relationship would cause the child to suffer real and
significant harm. Id., 229. Once this high hurdle has
been surmounted, however, and the trial court orders
third-party visitation over a fit parent’s objection, the
‘‘traditional presumption’’ relied on by the defendant
has been rebutted with respect to whether visitation is
in the child’s best interest. Stated another way, once
there has been a judicial determination that a parent’s
denial of visitation would cause the child to suffer real
and significant harm, then it no longer can be presumed
that a fit parent is acting in his or her child’s best interest
in connection with the third-party visitation. The Roth
standard itself is built on the premise that judicial inter-
vention is warranted precisely because the interactions
between an otherwise fit parent and a third party seek-
ing visitation can be so fraught with hostility, tension,
and resentment—often for reasons unrelated to the
child—that the parent is unable or unwilling to act in
the child’s best interest, resulting in real and significant
harm to the child.12
None of this means that a fit parent who is subject
to a third-party visitation order has forfeited his or
her parental rights or that the third party has obtained
parental rights by virtue of the order of visitation. A fit
parent retains the ‘‘quintessential rights of parenthood,’’
which ‘‘include the right to make medical, educational,
religious and other decisions that affect the most funda-
mental aspects of the child’s life . . . .’’ (Internal quota-
tion marks omitted.) Fish v. Fish, 285 Conn. 24, 58,
939 A.2d 1040 (2008). Likewise, § 46b-59 (f) explicitly
provides that ‘‘[v]isitation rights granted in accordance
with this section shall not be deemed to have created
parental rights in the person or persons to whom such
visitation rights are granted . . . .’’ These precepts
remain fixed and unchanged, but they do not confer
on the parent an absolute right to dictate the terms
and conditions governing the visitation. The animating
purpose of the statute is to sustain and nurture the
deep, emotional bond between the child and the third
party, and the third party’s caregiving choices for the
child while acting in a ‘‘parent-like’’ capacity necessarily
are integral to the formation and sustenance of that
bond—a bond that the trial court has determined must
be preserved to prevent real and significant harm to
the child. The fundamental purpose of the statute would
be thwarted if the parent opposing third-party visitation
were given unfettered authority to micromanage the
visitation and to replace the third party’s caregiving
choices during the period of visitation with his or her
own.
We recognize that, during the course of the child’s
visitation with the third party, the third party may make
decisions for the child that potentially implicate a par-
ent’s fundamental parental rights to direct his or her
child’s upbringing, and the longer the period of visita-
tion, the more decisions that the third party must make.
See Roth v. Weston, supra, 259 Conn. 229 n.13 (recogniz-
ing that ‘‘[v]isitation is a limited form of custody during
the time the visitation rights are being exercised’’ [inter-
nal quotation marks omitted]). Most of the third party’s
decisions during visitation will be of the mundane vari-
ety, and, less frequently, the third party may need to
make weighty, discretionary, and sometimes instanta-
neous decisions pertaining to the child’s health, safety,
and well-being. The question we must resolve in the
present appeal is, when a conflict arises between a
fit parent and a third party regarding the third party’s
caregiving decisions that implicate the parent’s consti-
tutional rights, how should that conflict be resolved so
as to preserve the parent’s rights, while at the same time
sustaining the child’s relationship with the third party?
To answer this question, we turn to § 46b-59 (e),
which provides the trial court with the authority to
devise terms and conditions governing third-party visi-
tation. Section 46b-59 (e) provides in relevant part that
if visitation is granted, ‘‘the court shall set forth the
terms and conditions of visitation including, but not
limited to, the schedule of visitation, including the dates
or days, time and place or places in which the visitation
can occur, whether overnight visitation will be allowed
and any other terms and conditions that the court deter-
mines are in the best interest of the minor child . . . .
In determining the best interest of the minor child, the
court shall consider the wishes of the minor child if
such minor child is of sufficient age and capable of
forming an intelligent opinion. In determining the terms
and conditions of visitation, the court may consider
. . . the effect that such visitation will have on the
relationship between the parents or guardians of the
minor child and the minor child . . . .’’ (Emphasis
added.) General Statutes § 46b-59 (e) (1). Thus, in set-
ting forth terms and conditions governing the order of
third-party visitation, the trial court can and should
consider the effect that the visitation order will have
on the parent-child relationship, which include any
good faith concerns that the parent might have regard-
ing the third party’s caregiving choices and how those
choices may infringe on the parent’s fundamental rights
relating to the child’s upbringing. The statute therefore
provides the trial court with the ability to craft particu-
larized terms and conditions to protect the parental
prerogatives at the heart of the parent-child relationship
while simultaneously preserving the constitutive ele-
ments of a meaningful third-party visitation.
In assessing what terms and conditions may be in
the ‘‘best interest of the minor child’’ under § 46b-59
(e), the trial court must accord ‘‘special weight’’ to a
fit parent’s preferences; Troxel v. Granville, supra, 530
U.S. 69 (plurality opinion); when those preferences per-
tain to the most fundamental aspects of the child’s life,
such as the child’s ‘‘education, health, religion, and asso-
ciation.’’ Roth v. Weston, supra, 259 Conn. 217; see also
Fish v. Fish, supra, 285 Conn. 58 (describing parent’s
‘‘right to make medical, educational, religious and other
decisions that affect the most fundamental aspects of
the child’s life during the custodial period’’). When it
comes to these particular matters, properly tailored
parental requests made in good faith should not be
rejected by the trial court solely on the basis of the
third party’s conflicting views or the ‘‘judge’s [own]
personal or lifestyle preferences.’’ Fish v. Fish, supra,
47. For example, if a parent requests as a term and
condition of visitation an order prohibiting the third
party from taking the child to religious services in the
third party’s faith because the child is being raised in
a different faith (or no faith at all), the trial court should
not deny this parental request because he or she (or
the third party) believes that the child would benefit
from exposure to the other religion. If made in good
faith, these types of parental requests, which affect ‘‘the
most fundamental aspects of the child’s life’’; id., 58;
are not subject to judicial override under color of an
order of third-party visitation. See General Statutes
§ 46b-59 (f).
Two caveats are necessary. First, many decisions do
not fall within the scope of this category of fundamental
parental prerogative, and, with respect to those matters,
the trial court has discretion under the statute to formu-
late terms and conditions that serve the best interest
of the child. In doing so, the trial court always should
take into account the fit parent’s good faith preferences,
but those preferences are not entitled to ‘‘special
weight’’ under the due process clause of the fourteenth
amendment. See Troxel v. Granville, supra, 530 U.S. 69
(plurality opinion); Roth v. Weston, supra, 259 Conn.
217. Second, even in the realm of decisionmaking
involving those matters that affect the most fundamen-
tal aspects of a child’s upbringing, the trial court should
satisfy itself that the parental request is made in good
faith before according it the special weight the constitu-
tion requires. A good faith inquiry is necessary because
the relationship between the parent and the third party
may be so toxic, and the parent’s opposition to the
visitation may be so vehement, that the parent may
try to undermine the third-party visitation by imposing
unreasonable and unfounded terms and conditions. See
DiGiovanna v. St. George, supra, 300 Conn. 78 (declin-
ing to create loophole by which recalcitrant parent may
thwart intent of third-party visitation statute). By way
of example, perhaps the third party and the child always
have shared a special interest in baseball, and the parent
requests an order preventing the third party from taking
the child to baseball games or playing baseball with the
child out of an alleged concern for the child’s health
and safety due to the risk of harm. The third party
objects and questions the good faith nature of the paren-
tal request, in light of the undisputed fact that the parent
allows the child to play baseball at all other times. After
considering the facts and the parties’ explanations, the
trial court may deny the requested term and condition,
even though it allegedly implicates a fundamental
parental right, if the trial court finds that the parental
request represents a bad faith attempt to undermine
the third-party relationship.
We can hypothesize an infinite variety of factual sce-
narios and a limitless number of parental and third-
party motivations that may require judicial resolution,
depending on the facts and circumstances of each indi-
vidual case.13 Given the depth and complexity of the
issues involved, we believe that the trial court is in the
best position to ‘‘[prescribe] specific conditions under
which visitation [should] take place to address legiti-
mate concerns of either party.’’ DiGiovanna v. St.
George, supra, 300 Conn. 75.
The present case illustrates the need for the parties
to follow certain commonsense procedures to provide
an optimal framework for the trial court to determine
what terms and conditions may be necessary under
§ 46b-59 (e). A party seeking to impose terms and condi-
tions on the order of visitation must make a specific
and timely request. A request is specific if it is tailored
to identify and ameliorate the party’s concern and is
accompanied by an explanation of how the requested
terms and conditions further the best interest of the
child. See General Statutes § 46b-59 (e) (‘‘terms and
conditions that the court determines are in the best
interest of the minor child’’). If the requesting party is
a parent who believes that the requested terms and
conditions are necessary to protect his or her funda-
mental parental rights, the parent must alert the trial
court to the alleged constitutional nature of the request
and the right asserted. See General Statutes § 46b-59
(f) (‘‘[t]he grant of such visitation rights shall not pre-
vent any court of competent jurisdiction from thereafter
acting upon . . . the parental rights with respect to
such child’’). The explanation provided to the trial court
need not be exhaustive, but it should be sufficient to
alert the trial court to the content and contours of the
requesting party’s claim.14 The required explana-
tion, and the reasons for any opposition, ordinarily will
be based on the evidence elicited during the hearing
on the contested petition for visitation. If additional
evidence is needed, an evidentiary hearing will be nec-
essary to enable the trial court to make the factual
determinations and credibility assessments required for
a decision. The evidence not only will enable the trial
court to decide whether the requested terms and condi-
tions are made in good faith, but also will allow the
trial court to weigh the competing considerations and
determine whether it is possible to fashion terms and
conditions that may accommodate competing interests,
wishes, and needs.
A request is timely if it is made without unreasonable
delay once the requesting party knows or reasonably
should know of the factual circumstances that prompt
the requested terms and conditions. The requesting
party is not barred from belatedly requesting such terms
and conditions in a postjudgment motion, as was done
in this case, but the belated nature of the request may
support an inference that it is not made in good faith,
if the inference reasonably is justified under the sur-
rounding circumstances. The requirements of specific-
ity and timeliness are not intended to preclude good
faith requests for reasonable terms and conditions that
may arise as circumstances develop over time, but to
provide an optimal and efficient procedure by which
the trial court can evaluate the requested terms and
conditions and fashion appropriate relief responsive to
the parties’ concerns and the child’s needs.
Ultimately it is up to the trial court, as the finder of
fact and the arbiter of credibility, to determine the
issues relating to the terms and conditions of visitation,
including, without limitation, whether the requested
terms and conditions reflect a parent’s sincerely held
belief regarding a fundamental aspect of the child’s
upbringing or whether they are a pretext to undermine
the third-party relationship or the order of visitation.
The trial court has many ‘‘tools in its arsenal’’ to protect
a fit parent’s fundamental rights while simultaneously
fostering the third-party relationship by effectuating the
order of visitation. DiGiovanna v. St. George, supra,
300 Conn. 75, 78; see General Statutes § 46b-56.
Applying these principles to the facts of this case,
we conclude that the trial court properly denied the
defendant’s request for a broad order requiring the
plaintiffs to abide by all of his parental decisions regard-
ing B’s care during the course of the plaintiffs’ visitation.
The defendant’s motion was untimely because it was
filed after the close of evidence and the issuance of the
trial court’s order of third-party visitation. Moreover,
for the reasons previously explained, the due process
clause of the fourteenth amendment does not require
the trial court to issue a broad order requiring a third
party to abide by all of a parent’s decisions regarding
the child’s care, regardless of the nature of the parent’s
decisions, the reasons for the request, whether the deci-
sions further the child’s best interest, and whether they
implicate the parent’s constitutional right to guide his
or her child’s upbringing. As the United States Supreme
Court has cautioned, ‘‘the constitutional protections in
this area are best ‘elaborated with care,’ ’’ because
‘‘[state court] adjudication in this context occurs on a
case-by-case basis . . . .’’ Troxel v. Granville, supra,
530 U.S. 73 (plurality opinion). The assessment of what
terms and conditions are necessary in the third-party
visitation context is highly fact dependent; see DiGio-
vanna v. St. George, supra, 300 Conn. 78; and cannot
be undertaken ‘‘in a factual vacuum.’’ Lehrer v. Davis,
214 Conn. 232, 234, 571 A.2d 691 (1990); see id., 235–36
(holding that record was inadequate to undertake ‘‘a
constitutional review of § 46b-59’’).
Turning to the defendant’s specific request for a no
contact order between B and Riddell, we note that this
request was untimely15 and unaccompanied by an expla-
nation regarding its origin or basis. The request, rather,
was formulated as a naked demand resting on the clas-
sic invocation of absolute parental authority used to
preempt discussion: ‘‘Because I’m the parent and I said
so.’’ This resort to fiat reflects a perfectly adequate
parenting position in many day-to-day parent-child
interactions, but it will not suffice when a judicial
authority has determined that state interference in the
parent-child relationship ‘‘is justified’’ because the third
party has ‘‘demonstrated a compelling need [for third-
party visitation] to protect the child from harm.’’ Roth
v. Weston, supra, 259 Conn. 229. Although the right to
control a child’s associations is a fundamental parental
right; see id., 216–17; in the absence of an explanation,
the trial court cannot evaluate the good faith nature of
the parental request, assess the need for evidence to
resolve disputed questions of fact, or fashion appro-
priate relief. See footnote 14 of this opinion. Because
the defendant failed to give any reason in support of
the requested term and condition regarding B’s contact
with Riddell, we conclude that the trial court properly
denied the defendant’s postjudgment motion.
We emphasize that our holding confers no parental
rights on the plaintiffs; nor does it bestow any visitation
rights on Riddell. As the trial court aptly observed,
the order of visitation simply gave ‘‘visitation to the
plaintiffs’’ and ‘‘[i]n no way, shape, or form did the court
grant any visitation to [Riddell]’’ or create any parental
rights on behalf of the plaintiffs. The trial court simply
found that in the absence of any reason or any evidence
to justify the defendant’s requested restriction on the
order of third-party visitation, there was no basis to
find that the requested restriction was in the child’s best
interest. We agree and, therefore, affirm the judgment
of the trial court.
V
Lastly, the defendant claims that the amount of visita-
tion awarded to the plaintiffs violates his fundamental
parental rights under the fourteenth amendment to the
United States constitution. The defendant points out
that § 46b-59 is subject to strict scrutiny; Roth v. Weston,
supra, 259 Conn. 218; and argues that the amount of
visitation awarded under the statute must be narrowly
tailored to further the state’s compelling interest in
sustaining the child’s relationship with the third party.
Under this theory, the defendant contends that any visi-
tation in excess of the amount minimally necessary
to sustain the child’s relationship with the third party
‘‘constitutes a significant interference’’ with his paren-
tal rights.
Although the defendant filed various postjudgment
motions challenging the order of visitation, he never
asked the trial court to reconsider the amount of visita-
tion or to articulate the basis for the amount of visitation
awarded to the plaintiffs.16 Because the trial court never
had an opportunity to rule on this issue, we conclude
that it is not preserved for our review. See, e.g., Blumb-
erg Associates Worldwide, Inc. v. Brown & Brown of
Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014)
(‘‘[i]t is well settled that [o]ur case law and rules of
practice generally limit [an appellate] court’s review
to issues that are distinctly raised at trial’’ [internal
quotation marks omitted]). Nonetheless, because the
defendant’s claim implicates his fundamental parental
rights under the United States constitution, we consider
whether review is appropriate under State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989).17
Under Golding, ‘‘a defendant can prevail on a claim
of constitutional error not preserved at trial only if all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error, (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis
in original; footnote omitted.) Id.; see also In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying
third prong of Golding). The burden is on the party
seeking review of unpreserved constitutional claims
under Golding to demonstrate both that the record is
adequate for review and that the claim ‘‘is indeed a
violation of a fundamental constitutional right.’’ State
v. Golding, supra, 213 Conn. 240. ‘‘If the facts revealed
by the record are insufficient, unclear or ambiguous as
to whether a constitutional violation has occurred, we
will not attempt to supplement or reconstruct the
record, or to make factual determinations, in order to
decide the defendant’s claim.’’ Id.
The trial court is in the best position to determine
how the order of visitation should be implemented;
DiGiovanna v. St. George, supra, 300 Conn. 73; and
must set forth the ‘‘terms and conditions of visitation
including, but not limited to, the schedule of visitation,
including the dates or days, time and place or places in
which the visitation can occur, [and] whether overnight
visitation will be allowed . . . .’’ General Statutes
§ 46b-59 (e). ‘‘[T]he best interest of the child [standard]
guides the court’’ in crafting these terms and conditions
and ‘‘in determining how best to foster [the third-party]
relationship.’’ DiGiovanna v. St. George, supra, 78. The
trial court must weigh ‘‘all the facts and circumstances
of the family situation. Each case is unique. The task
is sensitive and delicate, and involves the most difficult
and agonizing decision that a trial judge must make.’’
(Internal quotation marks omitted.) Gallo v. Gallo, 184
Conn. 36, 44, 440 A.2d 782 (1981). The trial court’s
factual findings may be reversed on appeal only if they
are clearly erroneous. See DiGiovanna v. St. George,
supra, 69 (‘‘[t]o the extent that the defendant claims
that the trial court should have credited certain evi-
dence over other evidence that the court did credit, it
is well settled that such matters are exclusively within
the province of the trial court’’); see also Misthopoulos
v. Misthopoulos, 297 Conn. 358, 377, 999 A.2d 721 (2010)
(‘‘To the extent that the trial court has made findings
of fact, our review is limited to deciding whether such
findings were clearly erroneous. . . . A finding of fact
is clearly erroneous when there is no evidence in the
record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.’’ [Internal quotation
marks omitted.]).
In light of the inherently fact bound nature of the
trial court’s schedule of visitation, we conclude that
the record is inadequate to review the defendant’s con-
stitutional challenge to the amount of visitation
awarded to the plaintiffs under § 46b-59 (e). See Lehrer
v. Davis, supra, 214 Conn. 234, 236 (recognizing ‘‘[t]he
[fact bound] nature of . . . constitutional challenge[s]
to § 46b-59’’ and counseling ‘‘against the adjudication
of constitutional questions in a factual vacuum’’). The
defendant did not request, and therefore the trial court
did not provide, particularized factual findings regard-
ing the amount of visitation necessary to sustain the
plaintiffs’ relationship with B. ‘‘Without the necessary
factual and legal conclusions furnished by the trial court
. . . any decision by us respecting [the defendant’s
claims] would be entirely speculative.’’ (Internal quota-
tion marks omitted.) State v. Brunetti, 279 Conn. 39,
63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127
S. Ct. 1328, 167 L. Ed. 2d 85 (2007). The record is ‘‘inade-
quate to establish whether the alleged constitutional
violation did, in fact, occur’’; id., 64; and, therefore, we
decline to review the defendant’s unpreserved constitu-
tional claim.18
The judgment is affirmed.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Robinson and Justices Palmer, McDonald,
D’Auria, Mullins, Kahn and Ecker. Although Justice Kahn was not present
when the case was argued before the court, she has read the briefs and
appendices, and has listened to a recording of the oral argument prior to
participating in this decision.
1
General Statutes § 46b-59 provides: ‘‘(a) As used in this section: (1)
‘Grandparent’ means a grandparent or great-grandparent related to a minor
child by (A) blood, (B) marriage, or (C) adoption of the minor child by a
child of the grandparent; and (2) ‘Real and significant harm’ means that the
minor child is neglected, as defined in section 46b-120, or uncared for, as
defined in said section.
‘‘(b) Any person may submit a verified petition to the Superior Court for
the right of visitation with any minor child. Such petition shall include
specific and good-faith allegations that (1) a parent-like relationship exists
between the person and the minor child, and (2) denial of visitation would
cause real and significant harm. Subject to subsection (e) of this section,
the court shall grant the right of visitation with any minor child to any
person if the court finds after hearing and by clear and convincing evidence
that a parent-like relationship exists between the person and the minor child
and denial of visitation would cause real and significant harm.
‘‘(c) In determining whether a parent-like relationship exists between the
person and the minor child, the Superior Court may consider, but shall
not be limited to, the following factors: (1) The existence and length of a
relationship between the person and the minor child prior to the submission
of a petition pursuant to this section; (2) The length of time that the relation-
ship between the person and the minor child has been disrupted; (3) The
specific parent-like activities of the person seeking visitation toward the
minor child; (4) Any evidence that the person seeking visitation has unrea-
sonably undermined the authority and discretion of the custodial parent;
(5) The significant absence of a parent from the life of a minor child; (6)
The death of one of the minor child’s parents; (7) The physical separation
of the parents of the minor child; (8) The fitness of the person seeking
visitation; and (9) The fitness of the custodial parent.
‘‘(d) In determining whether a parent-like relationship exists between a
grandparent seeking visitation pursuant to this section and a minor child,
the Superior Court may consider, in addition to the factors enumerated in
subsection (c) of this section, the history of regular contact and proof of a
close and substantial relationship between the grandparent and the
minor child.
‘‘(e) If the Superior Court grants the right of visitation pursuant to subsec-
tion (b) of this section, the court shall set forth the terms and conditions
of visitation including, but not limited to, the schedule of visitation, including
the dates or days, time and place or places in which the visitation can
occur, whether overnight visitation will be allowed and any other terms and
conditions that the court determines are in the best interest of the minor
child, provided such conditions shall not be contingent upon any order of
financial support by the court. In determining the best interest of the minor
child, the court shall consider the wishes of the minor child if such minor
child is of sufficient age and capable of forming an intelligent opinion. In
determining the terms and conditions of visitation, the court may consider
(1) the effect that such visitation will have on the relationship between the
parents or guardians of the minor child and the minor child, and (2) the
effect on the minor child of any domestic violence that has occurred between
or among parents, grandparents, persons seeking visitation and the minor
child.
‘‘(f) Visitation rights granted in accordance with this section shall not be
deemed to have created parental rights in the person or persons to whom
such visitation rights are granted, nor shall such visitation rights be a ground
for preventing the relocation of the custodial parent. The grant of such
visitation rights shall not prevent any court of competent jurisdiction from
thereafter acting upon the custody of such child, the parental rights with
respect to such child or the adoption of such child and any such court may
include in its decree an order terminating such visitation rights.
‘‘(g) Upon motion, the court may order the payment of fees for another
party, the attorney for the minor child, the guardian ad litem, or any expert
by any party in accordance with such party’s financial ability.’’
2
The plaintiffs will be referred to collectively as ‘‘the plaintiffs,’’ except
when it is necessary to identify them individually by name.
3
In view of this court’s policy of protecting the privacy interests of juve-
niles, we refer to the child involved in this matter as B. See, e.g., Frank v.
Dept. of Children & Families, 312 Conn. 393, 396 n.1, 94 A.3d 588 (2014).
4
The memorandum of decision states that the plaintiffs’ contact with B
was terminated on June 26, 2017, but the 2017 date appears to be a scrivener’s
error. It is undisputed that there had been a complete denial of visitation
at the time the plaintiffs’ petition for visitation was filed on November 3,
2016. Additionally, the trial court stated in its decision, which was issued
on August 11, 2017, that the plaintiffs’ visitation with B had been ‘‘terminated
by the defendant father approximately a year ago . . . .’’ From this we
conclude that the correct date on which the defendant terminated the plain-
tiffs’ contact with B was June 26, 2016, less than four months after
Nicole’s death.
5
Riddell, also known as Regina Boisvert, is B’s maternal aunt, i.e., Nicole’s
sister and the plaintiffs’ daughter.
6
The order provided: ‘‘The defendant is . . . ordered to provide visitation
of the minor child with the plaintiff Diane Boisvert on Friday, August 31,
2018, at 5 p.m. until Sunday, September 2, at 5 p.m., and every other weekend
thereafter, and provide visitation with the plaintiff Thomas Boisvert, on
Wednesday, August 29, [2018] from the end of school, and each Wednesday,
[from] noon if there is no school, until 8 p.m.’’ The court further ordered
the defendant to ‘‘pay the plaintiffs’ attorney’s fees in the amount of $1500
within thirty days of this order.’’
7
After oral argument in these consolidated appeals, this court, sua sponte,
invited the filing of amicus curiae briefs from the Family Law Section of
the Connecticut Bar Association, the Children’s Law Center of Connecticut,
the Office of the Public Defender, the Center for Children’s Advocacy, and
the Child Protection Unit of the Office of the Attorney General. We asked
the proposed amici curiae to address the following questions in their briefs:
(1) ‘‘Once a trial judge has decided to issue an order granting third-party
visitation under . . . § 46b-59, do the custodial parent’s substantive due
process rights require the judge to order the [third party] to abide by all of
the custodial parent’s specific directives regarding care of the minor child
during the visitation?’’ (2) ‘‘More generally, what legal standard must the
trial judge apply when crafting the terms and conditions of visitation relating
to any specific aspect(s) of the environment or care provided by the [third
party] as to which the custodial parent objects? (Is it the ‘best interests of
the child’ standard under . . . § 46b-59 [e], or is a different legal standard
constitutionally required?)’’ And (3) ‘‘Does a different legal standard and
burden of proof apply when a party moves for modification of the terms
and conditions of a third-party visitation order under . . . § 46b-59?’’ The
Connecticut Bar Association, the Children’s Law Center of Connecticut, the
Department of Children and Families, and the Connecticut Chapter of the
American Academy of Matrimonial Lawyers accepted our invitation and
submitted amicus briefs.
8
Troxel produced six different opinions. The plurality decision has been
widely criticized for its failure to provide adequate direction to courts and
legislatures attempting to abide by its holding. See, e.g., D. Lannetti, ‘‘A
Nonparent’s Ability To Infringe on the Fundamental Right of Parenting:
Reconciling Virginia’s Nonparental Child Custody and Visitation Standards,’’
30 Regent U. L. Rev. 203, 210 (2018) (‘‘[t]he Troxel decision is known today
more for what it failed to address than what it actually decided, and its six
opinions—with the noticeable absence of a majority opinion—unsurpris-
ingly caused confusion for both courts and practitioners as they attempted
to discern the [c]ourt’s guidance, or lack thereof’’).
9
In Troxel v. Granville, supra, 530 U.S. 73 (plurality opinion), the United
States Supreme Court did not consider ‘‘whether the [d]ue [p]rocess [c]lause
requires all nonparental visitation statutes to include a showing of harm or
potential harm to the child as a condition precedent to granting visitation.’’
10
‘‘‘Real and significant harm’ means that the minor child is neglected, as
defined in section 46b-120, or uncared for, as defined in said section.’’
General Statutes § 46b-59 (a) (2).
11
The defendant also filed a motion to open and terminate visitation on
the basis of his January 9, 2018 offer of visitation. The motion to open was
denied by the trial court. Because the defendant did not appeal from the
trial court’s denial of this motion, we do not consider or decide the merits
of that ruling.
12
It should be recalled that a fit parent’s decision-making authority also
is protected at the threshold stage by § 46b-59 (c) (4), which directs the
trial court to consider, in determining whether a parent-like relationship
exists in the first instance, ‘‘[a]ny evidence that the person seeking visitation
has unreasonably undermined the authority and discretion of the custodial
parent . . . .’’ This provision does not guarantee that visitation will be
permitted only to a third party whose views on child rearing are entirely
harmonious with the parent’s views, but it does provide a strong incentive
for the third party to make sure that his or her decisionmaking does not
unreasonably undermine the parent’s authority.
13
The situation becomes still more challenging because (1) the third party,
like the parent, may allow animosity toward the opposing party to influence
his or her views about the child’s best interest, and (2) neither party may
be fully aware of their underlying motivations in this context. The difficult
task of sorting out these dynamic uncertainties is left to the discretion of
the trial court based on a careful consideration of all of the evidence.
14
As we previously indicated, if the requesting party is a parent who
claims that the proposed terms and conditions are necessary to protect his
or her fundamental parental rights to make decisions regarding the child’s
education, health, religion, or association, then the parent’s determination
of his or her child’s best interest should be accorded special weight. See
Troxel v. Granville, supra, 530 U.S. 69 (plurality opinion). Nonetheless, an
explanation is necessary in order for the trial court to ascertain whether the
proposed terms and conditions actually implicate the parent’s fundamental
parental rights, reflect sincerely held parental beliefs, and involve disputed
questions of fact necessitating an evidentiary hearing. The requesting party’s
explanation and the opposing party’s responses not only will provide the
trial court with the information necessary to address the parties’ concerns
and fashion appropriate relief, but also will provide an appellate court with
an adequate record to review the trial court’s order, if necessary.
15
It appears from the record that the defendant was aware that Riddell
was living in Diane Boisvert’s home at the time of the evidentiary hearing,
but did not raise the issue as a concern or request any particular terms and
conditions limiting B’s contact with Riddell prior to the issuance of the trial
court’s visitation order. Furthermore, although the defendant filed several
postjudgment motions, he never filed a motion to modify the order of visita-
tion to include a no contact order between B and Riddell.
16
At the hearing on the plaintiffs’ first motion for contempt, the defendant
testified that he believed the order of visitation ‘‘was way too much because
the only time that I have to spend with my son is a couple hours after work
and every weekend.’’ Additionally, as explained in parts I and III of this
opinion, the defendant filed a postjudgment motion to open and terminate
visitation and a postjudgment motion to dismiss for lack of subject matter
jurisdiction on the basis of his January 9, 2018 offer of visitation, which
would have provided substantially less visitation than the amount ordered
by the trial court. At no point, however, did the defendant argue that the
amount of visitation ordered by the court violated his fundamental parental
rights under the United States constitution.
17
The defendant’s failure affirmatively to request and brief his entitlement
to Golding review does not preclude our consideration of his constitutional
claim. See State v. Elson, 311 Conn. 726, 730, 91 A.3d 862 (2014) (holding
that there is no requirement ‘‘that a party must ‘affirmatively request’ Golding
review in its main brief in order to receive appellate review of unpreserved
constitutional claims’’).
18
Because the defendant has failed to establish the violation of his funda-
mental parental rights under the United States constitution, we need not
reach the defendant’s claim that the ‘‘magnitude as well as the duration of
the constitutional deprivations’’ warrant vacatur of the order of visitation
and dismissal of the plaintiffs’ petition for third-party visitation.