In a bill passed in the 2005 Session, the Connecticut General Assembly made extensive changes to §46b-56 of the Connecticut General Statutes, the primary statute governing orders of custody in the family division of the court.

The Office of Legislative Research report on the bill gives and excellent summary of these changes as follows:

PARENTAL RESPONSIBILITY PLANS

The bill requires parental responsibility plans to be submitted to the court if both parents agree to their terms. The objectives of the plan are to set forth each parent's authority and responsibility over the child and to provide for the child's physical care, emotional stability, and changing needs as he grows older. Parenting plans must include provisions:

1. designating where the child will live during the year;

2. allocating decision-making authority to either or both parents for the child's health, education, and religious upbringing;

3. for resolving future disputes that include seeking assistance from mental health professionals or others in reaching a developmentally appropriate resolution, where appropriate;

4. for dealing with (a) a parent's failure to honor his or her responsibilities under the plan and (b) the child's changing needs over time;

5. for minimizing the child's exposure to harmful parental conflict and encouraging the parents in appropriate circumstances to meet their responsibilities through agreements; and

6. for protecting the child's best interests.

Court Approval of Plans

The court must adopt consensual parenting plans and make their terms its custodial and access orders unless it holds a hearing and determines that the plan is not in the child's best interests. The bill authorizes courts to modify their terms in the same manner it currently follows in other divorce matters involving children.

COURT ORDERS AND MODIFICATIONS

The bill requires court custody and support orders to (1) take into consideration each parent's rights and responsibilities, (2) serve the child's best interests, and (3) provide for the active and consistent involvement of both parents according to their abilities and interests.

The plans may include:

1. approval of a parental responsibility plan the parents have agreed to;

2. joint parental responsibility orders, which must include provisions for (a) the child's living arrangements in accordance with the child's and parents' needs, (b) parental consultations, and (c) making major decisions concerning the child's health, education, and parental upbringing;

3. an award of sole custody to one parent with appropriate parenting time for the other parent when sole custody is in the child's best interests; and

4. any other custody arrangements the court determines are in the child's best interests. [end of excerpt]

The question when any new law passes is always, "how will this affect cases which go to court after the law takes affect?" Many agreements drafted by experienced family lawyers have included most of the components of the new Parental Responsibility Plan for years. Now all agreements will have to address these topics, but in what detail remains to be seen. In addition, the law requires the plans to be filed at a time to be set by court rule. Since the status of the case is required to be reported at the end of the 90-day waiting period, it is likely that will also be the time for filing the Parental Responsibility Plan. This requirement would allow the court to know what parenting issues are in dispute at that point and schedule the case accordingly.

The two topics for plans which have not been addressed in most agreements in the past are provisions dealing with "(a) a parent's failure to honor his or her responsibilities under the plan and (b) the child's changing needs over time." These topics will require discussion and some creativity. We do not believe the intent is to substitute the parents' agreement on how they should be punished for failing to follow the plan for the power of the court. However, provisions for dealing with a parent being late or unavailable to care for a child when expected can be dealt with without the need to return to court.

The presumed benefit of such detailed plans is twofold; that discussing these issues in advance clarifies and parents' expectations and understandings of their responsibilities and that a court is more able to determine if need be when a plan should be changed or enforced.

The law also requires the court to accept the plan agreed to by the parents unless the court finds that it is not in the best interests of the children. Note that the requirement for a hearing in that section was removed in the final bill so that the court can reject a plan at the hearing where no evidence is presented or required a hearing to be held.

Another change in the new law allows the court to order joint custody without the parents' agreement. Although this has been a common practice for years, it was in conflict with statutory provisions.

Factors the Court May Consider

The new law sets forth factor which the court may consider in making or modifying any of custody as provided in the statute. It provides that "the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:

(1) The temperament and developmental needs of the child;

(2) the capacity and the disposition of the parents to understand and meet the needs of the child;

(3) any relevant and material information obtained from the child, including the informed preferences of the child;

(4) the wishes of the child's parents as to custody;

(5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;

(6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;

(7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;

(8) the ability of each parent to be actively involved in the life of the child;

(9) the child's adjustment to his or her home, school and community environments;

(10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;

(11) the stability of the child's existing or proposed residences, or both;

(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;

(13) the child's cultural background;

(14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;

(15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and

(16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b.

The court is not required to assign any weight to any of the factors that it considers."

The court has long had the ability to consider under existing law and has considered any of the factors enumerated in the statute in making custody orders and anything else it deemed relevant to the decision. Since the new law does not assign any particular weight to any of the factors, the new listing of factors in the statute will probably serve more as notice to the parents of evidence which could be persuasive to a court in a custody dispute than as a directive to the court to apply specific criteria. Factors 6 and 7 in particular should serve as a warning to warring parents that their bad behavior may not further their goals.

It will take some time before we know how this new law will affect the negotiations between parents and the decisions made by judges.

To see the full text of the new law go to http://www.cga.ct.gov/2005/amd/s/2005SB-01194-R00SB-AMD.htm