MICHAEL DIGIOVANNA v. DONNA ST. GEORGE, SC 17624
Judicial District of New Haven
Third Party Visitation; General Statutes § 46b-59; Whether Court Improperly Denied Visitation, Finding that Even Though Plaintiff Satisfied Roth Test, Visitation was Not in Child's Best Interests. The plaintiff dated the defendant on and off for several years and was present for the birth of the defendant's son in 1996. Until September, 2003, the plaintiff saw the child on a regular basis and had him visit overnight at his house one or more times a week. At that time, however, the defendant cut off the plaintiff's contact with her son. Subsequently, the plaintiff filed a petition for visitation, which the court denied. In reaching its decision, the court found that the plaintiff satisfied the test set forth in Roth v. Weston, 259 Conn. 202 (2002). In Roth, this court held that in order for a trial court to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent under General Statutes § 46b-59, "the petition must contain specific, good faith allegations that the petitioner has a relationship with the child similar to a parent-child relationship" and that "the denial of visitation will cause real and significant harm to the child." Further, in order for the court to grant such a petition, the petitioner must prove the allegations by clear and convincing evidence. The trial court, finding that the plaintiff had acted as a father figure to the child with the defendant's encouragement, determined that the plaintiff proved a parent-child relationship by clear and convincing evidence. The court also found that, based on the stability that the plaintiff had provided to the child, the defendant's denial of visitation had and would cause the child actual and significant damage, putting him in a position akin to being neglected, uncared-for or dependent. Despite determining that all prongs of the Roth test were met, however, the court concluded that it was not in the child's best interests to continue a relationship with the plaintiff. Relying in part on psychological evaluations of the defendant, the court found that she would take her angry feelings toward the plaintiff out on the child if visitation were ordered. The court determined that the defendant lacked the "emotional control or the capacity not to psychologically harm the child" if it permitted the continuation of the relationship. The plaintiff appeals, claiming that the court improperly denied visitation upon finding the Roth test was satisfied. He contends that the defendant's lack of emotional control and capacity to psychologically harm her child must be constrained by the courts, as it is in a custody action. He further maintains that § 46b-59 is unconstitutional as applied here, because the minor child has an independent right to association with the plaintiff under the state and federal constitutions and, under the circumstances here, this court should recognize the primacy of a child's liberty interest in the freedom of association over the legal parent's liberty interest in raising her child without state interference.