No Change in Child Custody

There would be no change in child custody where the facts did not show a material change in circumstances. In Clougherty v. Clougherty, the Connecticut Appellate Court declined to modify the trial court’s custody order because certain of the claimed changes in circumstances were not changes at all, others were not material changes, and still others were not material changes that impacted the best interests of the child.

Mother was born and raised in Texas. Father was from Massachusetts. The couple moved to Connecticut because father got a job here. Throughout the marriage, mother traveled back and forth to Texas to continue working in her family’s business located there. The marriage disintegrated and mother filed for divorce.

The trial court found that mother’s life was in Texas and she never really had acclimated to Connecticut. The court concluded that it was in the child’s best interest for his primary residence to be in Texas with his mother, surrounded by her extended family. It granted joint legal custody and shared physical custody with the child’s primary residence in Texas and a secondary residence in Connecticut with father.

After his appeal of the original physical custody order failed, father moved to modify it claiming a material change in mother’s circumstances. In particular, he claimed that mother lost her job in the family business when it went bankrupt; was no longer living with her brother who had been identified as a positive influence on the child; had encountered financial difficulties including losing her home in foreclosure; and had been inattentive to the child’s educational needs, which had changed since the original order.

The trial court denied father’s motion to modify. It observed that the original custody order was not based in particular on mother’s job, her family’s business, her family or her financial prospects in Texas. Rather, it was based on the court’s finding that mother derived her identity from Texas. It was in the child’s best interest to have his primary residence in Texas because it was in his mother’s best interest to be in Texas. There had been no material change in that dynamic so there would be no change in child custody.

Father appealed. Mother cross-appealed. She had asked the trial court to award her additional attorney’s fees for defending against father’s motion to modify. The trial court denied her request.

The Appellate Court affirmed.

Arguments on Appeal

Father argued that there had been the following material changes: (i) mother had economic misfortunes; (ii) child’s academic needs changed when he entered school; and (iii) child is struggling in school because of mother’s inattentiveness.

On her cross-appeal, mother argued that in denying her request for additional attorney’s fees, the trial court improperly concluded that such an award would be inequitable in light of the father’s child support and visitation expenses. There was no statutory authorization to deny a request for attorney’s fees based on these expenses.

Appellate Court’s Conclusions

Father failed to demonstrate how mother’s financial problems were a material change that affected the child’s best interests. Original trial court was aware that the family business was in jeopardy and ordered child’s primary residence to be in Texas. The evidence on the motion to modify showed that mother started her own business after the family business was liquidated in bankruptcy and, despite her setbacks, she was meeting the child’s physical needs and he was doing well in school.

As for the child’s changing academic needs, the original trial court understood that the child eventually would attend school and, by setting Texas as his primary residence, effectively ordered that he go to school there. The trial court adjusted father’s visitation schedule to account for the fact that the child now was in school.

The Appellate Court found that, contrary to father’s argument, the child was not struggling in school, but in fact doing well. Mother had some parenting shortcomings but so did father. The original trial court found that mother was a marginally better parent. To the extent that father had since improved on his parenting skills, such an improvement did not constitute a change in circumstances.

Turning to the cross-appeal, the Appellate Court noted that it is well-established that a trial court ruling on an attorney’s fee request in a family matter may consider factors other than those enumerated in the statutes. Mother did not address why the trial court could not have considered these expenses.

Impact

It’s hard to prevail on a motion to modify a child custody order based on a material change in circumstances if the record shows that the child’s needs are being met and he is doing well.

About the Photo

I think it’s self-explanatory.