Connecticut's New Family Rules
Copyright © 1998 Hilary B. Miller, Esq.
Effective October 1997, Connecticut has overhauled its family law procedures.
The new rules call for automatic pendente lite (temporary) orders in every family matter,
case management procedures, automatic compulsory disclosure and exchange of
documents, and procedures for determination of custody without a pending
divorce action (including habeas corpus). A person who may have valuable
rights affected by these rules should consult with an attorney who specializes
in such matters. This should not be construed as legal advice, which can only
be given by an attorney who is admitted to practice in your state, to whom you
pay a fee, and who in return undertakes to protect your rights and to explain
your responsibilities.
About Hilary B. Miller, Esq.
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CONNECTICUT LAW JOURNAL
RULES COMMITTEE OF THE SUPERIOR COURT
58 Conn. L.J. 46
NOTICE: [A> UPPERCASE TEXT
WITHIN THESE SYMBOLS IS ADDED <A] [D> Text within these symbols is deleted
<D]
[*91PB] (New) [A> PROCEDURE IN FAMILY MATTERS <A]
(The Rules Committee proposes
that the rules concerning dissolution of marriage, legal separation, and
certain other family matters be moved from Chapter 17 to a separate tab in the
Practice Book and be revised as set forth below.)
(New) CHAPTER 41B
(New) GENERAL PROVISIONS
(New) Sec. 1200. Definitions Applicable to Proceedings on Family
Matters
The following shall be
"family matters" within the scope of these rules: any actions brought
pursuant to Gen. Stat. § 46b-1, including but not limited to dissolution of
marriage, legal separation, dissolution of marriage after legal separation,
annulment of marriage, alimony, support, custody, and change of name incident
to dissolution of marriage, habeas corpus and other proceedings to determine
the custody and visitation of children except those which are properly filed in
the superior court as juvenile matters, the establishing of paternity,
enforcement of foreign matrimonial judgments, actions related to prenuptial and
separation agreements and to matrimonial decrees of a foreign jurisdiction,
actions brought pursuant to Gen. Stat. § 46b-15 custody proceedings brought
under the provisions of the Uniform Child Custody Jurisdiction Act and
proceedings for enforcement of support brought under the provisions of the
Uniform Reciprocal Enforcement of Support Act.
Sec. 1201. Complaints for Dissolution of
Marriage, Legal Separation, or Annulment
Every complaint in a dissolution
of marriage [A> , LEGAL SEPARATION OR ANNULMENT <A] action shall state
the date and place, including the city or town, of the marriage and the facts
necessary to give the court jurisdiction, substantially in accordance with Form
504.1 [D> ; and all judgments of dissolution of marriage shall state such
date and place and the jurisdictional facts as found by the court upon the
hearing <D] .
Every such complaint shall also
state whether there are minor children issue of the marriage and whether there
are any other minor children born to the wife since the date of marriage of the
parties, the name and date of birth of each, and the name of any individual or
agency presently responsible by virtue of judicial award for the custody or
support of any child. These requirements shall be met whether a child is issue
of the marriage or not and whether custody of children is sought in the action.
In every case in which the state of Connecticut or any town thereof is
contributing or has contributed to the support or maintenance of a party or
child of said party, such fact shall be stated in the complaint and a copy
thereof served on the attorney general or town clerk in accordance with the
provisions of Sec. 120. Although the attorney general or town clerk shall be a
party to such cases, he [A> OR SHE <A] need not be named in the writ of
summons or summoned to appear.
[A> THE COMPLAINT SHALL ALSO
SET FORTH THE PLAINTIFF’S DEMAND FOR RELIEF AND THE AUTOMATIC ORDERS AS
REQUIRED BY SEC. 1204. <A]
COMMENTARY: This section has been transferred, with
revisions, from Sec. 453.
(New) Sec. 1202. Action for Custody of Minor Child
Every complaint in an action for
custody of a minor child, other than actions for dissolution of marriage, legal
separation or annulment, shall state the name and date of birth of such minor
child or children, the names of the parents and legal guardian [*92PB] of such
minor child or children, and the facts necessary to give the court
jurisdiction. The complaint shall comply with Sec. 1204. Such complaint shall
be commenced by an order to show cause.
COMMENTARY: The Rules Committee recognizes the
increase in out-of wedlock births, and recommends a rule designed to
acknowledge the action for custody, and to provide services for unmarried families
and the children of those unions. It is generally recognized that Gen. Stat. §
46b-56 allows for actions for custody, but the statute’s placement within
chapter 815j, "Dissolution of Marriage, Legal Separation and
Annulment", has caused some question whether such an action may be
maintained independent of a complaint for dissolution, legal separation, or
annulment.
It is contemplated that actions
under Secs. 1202 and 1203 can be combined into one
action.
(New) Sec. 1203. Action for Visitation of Minor Child
Every complaint in an action for
visitation of a minor child, other than actions for dissolution of marriage,
legal separation or annulment, shall state the name and date of birth of such
minor child or children, the names of the parents and legal guardian of such
minor child or children, and the facts necessary to give the court
jurisdiction. The complaint shall comply with Sec. 1204. Such complaint shall
be commenced by an order to show cause.
COMMENTARY: The Rules Committee recognizes the increase
in out-of wedlock births, and recommends a rule designed to acknowledge the
action for visitation and to provide services for unmarried families and the
children of those unions.
It is contemplated that actions
under Secs. 1202 and 1203 can be combined into one
action.
(New) Sec. 1204. Automatic Orders Upon Service of Complaint
(a) The following automatic
orders shall apply to both parties, with service of the automatic orders to be
made with service of process of a complaint for dissolution of marriage, legal
separation, annulment, custody or visitation. An automatic order shall not
apply if there is a prior, contradictory court order. The automatic orders
shall be effective with regard to the plaintiff upon the signing of the
complaint and with regard to the defendant upon service and shall remain in
place during the pendency of the action, unless terminated, modified, or
amended by further order of the court upon motion of either of the parties:
(1) Neither party shall sell,
transfer, encumber, conceal, assign, remove, or in any way dispose of, without
the consent of the other party in writing, or an order of the court, any
property, individually or jointly held by the parties, except in the usual
course of business or for customary and usual household expenses.
(2) Neither party shall incur
unreasonable debts hereafter, including, but not limited to, further borrowing
against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit
cards or cash advances against credit cards.
(3) The parties shall each
complete and exchange sworn financial statements substantially in accordance
with Form 501.1 within thirty days of the return day. The parties may
thereafter enter and submit to the court a stipulated interim order allocating
income and expenses, in accordance with the uniform child support guidelines.
(4) The case management date for
this case is . The parties shall comply with Sec. 1252 to determine if their
actual presence at the court is required on that date.
(5) Neither party shall
permanently remove the minor child or children from the state of Connecticut,
without written consent of the other or order of the court.
(6) The parties, if they share a
minor child or children, shall participate in the parenting education program
within sixty days of the return day.
[*93PB]
(7) Neither party shall cause the
other party or the children of the marriage to be removed from any medical,
hospital and dental insurance coverage, and each party shall maintain the
existing medical, hospital and dental insurance coverage in full force and
effect.
(8) Neither party shall change
the beneficiaries of any existing life insurance policies, and each party shall
maintain the existing life insurance, automobile insurance, homeowners or
renters insurance policies in full force and effect.
(9) If the parties are living
together on the date of service of these orders, neither party may deny the
other party use of the current primary residence of the parties, whether it be
owned or rented property, without court order. This provision shall not apply
if there is a prior, contradictory court order.
(10) If the parties share a child
or children, a party vacating the family residence shall notify the other party
or the other party’s attorney, in writing, within forty-eight hours of such
move, of an address where the relocated party can receive communication. This
provision shall not apply if there is a prior, contradictory court order.
(11) If the parents of minor children
live apart during this dissolution proceeding, they shall assist their children
in having contact with both parties, which is consistent with the habits of the
family, personally, by telephone, and in writing unless there is a prior court
order.
(b) The
automatic orders of the court as enumerated in paragraph (a) shall be set forth
immediately following the plaintiff’s prayer for relief in any complaint for
dissolution of marriage, legal separation, annulment, custody or visitation and
shall set forth the following language in bold type: Failure to obey these
orders may be punishable by contempt of court. If you object to or seek
modification of these orders during the pendency of the action, you have the
right to a hearing before a judge within a reasonable time.
(c) The automatic orders of the
court as enumerated in paragraphs (a) (1), (2) and (3) shall not apply in
custody and visitation cases.
COMMENTARY: This rule, which is based on the
automatic orders presently used in a number of states, is proposed to assist
families in transition in maintaining, to the greatest extent possible, the
status quo at the commencement of an action for dissolution of marriage. It
allows for normal business and home expenditures and for the maintenance of
insurances without further court order. It also orders parenting education and
sets an early case management date. It is contemplated that a stipulation for
case management, concerning among other things discovery and experts, will be
reported to the court in many cases by a form to be developed by the Office of
the Chief Court Administrator.
Nothing in this section precludes
a party from seeking criminal or civil relief in addition to the dissolution
action. The rule provides for a hearing to address due process issues and
requires counsel to include the automatic orders within the complaint.
(New) Sec. 1205. Parties and Appearances
The provisions of Practice Book
Sections 49, 50, 80, 82 through 85, inclusive, 99, 100, 103, 105 and 120
through 126 shall apply to family matters as defined in Sec. 1200.
(New) Sec. 1206. Pleadings
(New) Sec. 1207.—Amendments to Complaint
If [D> the rule in the
previous section concerning complaints <D] [A> SEC. 1201, 1202 OR 1203
<A] [D> is <D] [A> ARE <A] not complied with, the court,
whenever its attention is called to the matter, shall order that the complaint
be amended upon such terms and conditions as it may direct. Where an amendment
is filed concerning support or maintenance contributed by the state of
Connecticut, no further action shall be taken by the court [*94PB] until such
amendment shall be served upon the attorney general and opportunity given him
[A> OR HER <A] to be heard upon the matter. [A> NOTHING IN THIS
SECTION SHALL BE CONSTRUED TO AFFECT THE AUTOMATIC ORDERS IN SEC. 1204 ABOVE.
<A]
COMMENTARY: This section has been transferred, with
revisions, from Sec. 454.
The last sentence is added to
make it clear that the automatic orders would remain in full force and effect
if there became a need to notice the attorney general if public assistance was
applied for. The Rules Committee believes that the requirement of filing
financial statements would alert the court to the possibility of public
assistance.
Sec. 1208.—Amendment; New Ground for
Dissolution of Marriage
In any action for a dissolution
of marriage an amendment to the complaint which states a ground for dissolution
of marriage alleged to have arisen since the commencement of the action may be
filed with permission of the court.
[A> THE PROVISIONS OF SECS.
175, 176 AND 177 SHALL APPLY TO FAMILY MATTERS AS DEFINED IN SEC. 1200. <A]
COMMENTARY: This section has been transferred with
revisions from Sec. 455.
Sec. 1209.—Answer, Cross Complaint, Claims for
Relief by Defendant
The defendant in a dissolution of
marriage, legal separation [A> , <A] [D> or <D] annulment [A> ,
CUSTODY, OR VISITATION <A] matter may file [A> , IN ADDITION TO THE ABOVE
MENTIONED PLEADINGS, <A] one of the following pleadings [A> WHICH SHALL
COMPLY WITH SECS. 108, 109A, 111, 113, 114 AND 120 THROUGH 126, 128 AND 129
INCLUSIVE: <A]
(1) An answer may be filed which
denies or admits the allegations of the complaint [A> , OR WHICH STATES THAT
THE DEFENDANT HAS INSUFFICIENT INFORMATION TO FORM A BELIEF AND LEAVES THE
PLEADER TO HIS OR HER PROOF, <A] and which may set forth the defendant’s
claims for relief.
(2) An answer and cross complaint
may be filed which denies or admits the allegations of the complaint [A> ,
OR WHICH STATES THAT THE DEFENDANT HAS INSUFFICIENT INFORMATION TO FORM A
BELIEF AND LEAVES THE PLEADER TO HIS OR HER PROOF, <A] and which alleges the
grounds upon which a dissolution, legal separation or annulment is sought by
the defendant and specifies therein the claims for relief.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 456.
Sec. 1210.—Answer to Cross Complaint
A plaintiff in a dissolution of
marriage, legal separation, [D> or <D] annulment [A> , CUSTODY OR
VISITATION <A] matter seeking to contest the grounds of a cross complaint
shall file an answer admitting or denying the allegations of such cross
complaint [A> OR LEAVING THE PLEADER TO HIS OR HER PROOF <A] . If a
decree is rendered on the cross complaint, the court may award to the plaintiff
such relief as is claimed in the complaint.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 457.
(New) Sec. 1211.—Order of Pleadings
The order of pleadings shall be:
(1) the plaintiff’s complaint;
(2) the defendant’s motion to dismiss the complaint; (3) the defendant’s motion
to strike the complaint or claims for relief; (4) the defendant’s answer, cross
complaint and claims for relief; (5) the plaintiff’s motion to strike the
defendant’s answer, cross complaint, or claims for relief; (6) the plaintiff’s
answer.
COMMENTARY: This is taken in part from Sec. 112.
[*95PB]
(New) Sec. 1212.—Motion to Dismiss
Any defendant, wishing to assert
grounds to dismiss the action under Sec. 1213(2), (3), (4) or (5) must do so by
filing a motion to dismiss within thirty days of the filing of an appearance.
Any claim based on Sec. 1213 (2),
(3), (4) or (5) is waived if not raised by a motion to dismiss filed in the
sequence provided in Sec. 1211, within the time provided in this section.
COMMENTARY: This is taken in part from Secs. 142 and 144.
(New) Sec. 1213.—Grounds on Motion to Dismiss
The motion to dismiss shall be
used to assert (1) lack of jurisdiction over the subject matter, (2) lack of
jurisdiction over the person, (3) improper venue, (4) insufficiency of process
and (5) insufficiency of service of process. This motion shall always be filed
with a supporting memorandum of law and, where appropriate, with supporting
affidavits as to facts not apparent on the record.
If an adverse party objects to
this motion he or she shall, at least five days before the motion is to be
considered on the short calendar, file and serve in accordance with Sec. 120 a
memorandum of law and, where appropriate, supporting affidavits as to facts not
apparent on the record.
COMMENTARY: This is taken in part from Sec. 143.
(New) Sec. 1214.—Waiver and Subject Matter Jurisdiction
Any claim of lack of jurisdiction
over the subject matter cannot be waived; and whenever it is found after
suggestion of the parties or otherwise that the court lacks jurisdiction of the
subject matter, the court shall dismiss the action.
COMMENTARY: This is taken verbatim from Sec. 145.
(New) Sec. 1215.—Further Pleading by Defendant
If any motion to dismiss is
denied with respect to any jurisdictional issue, the defendant may plead
further without waiving his or her right to contest jurisdiction further.
COMMENTARY: This is taken verbatim from Sec. 146.
(New) Sec. 1216. Motion To Strike
(New) Sec. 1217.—In General
Whenever any party wishes to
contest (1) the legal sufficiency of the allegations of any complaint or cross
complaint, or of any one or more counts thereof, to state a claim upon which
relief can be granted, or (2) the legal sufficiency of any claim for relief in
any such complaint or cross complaint, or (3) the legal sufficiency of any such
complaint or cross complaint, or any count thereof, because of the absence of
any necessary party, or (4) the joining of two or more causes of action which
cannot properly be united in one complaint or cross complaint, whether the same
be stated in one or more counts, or (5) the legal sufficiency of any answer to
any complaint or cross complaint, or any part of that answer contained therein,
that party may do so by filing a motion to strike the contested pleading or
part thereof.
A motion to strike on the ground
of the nonjoinder of a necessary party must give the
name and residence of the missing party or such information as the moving party
has as to his or her identity and residence and must state his or her interest
in the cause of action.
[*96PB]
(New) Sec. 1218.—Date for Hearing
The motion shall be placed on the
short calendar to be held not less than fifteen days following the filing of
the motion, unless the court otherwise directs.
(New) Sec. 1219.—Reasons
Each motion to strike raising any
of the claims of legal insufficiency enumerated in the preceding sections shall
separately set forth each such claim of insufficiency and shall distinctly
specify the reason or reasons for each such claimed insufficiency.
(New) Sec. 1220.—Memorandum of Law
Each motion to strike must be
accompanied by an appropriate memorandum of law citing the legal authorities
upon which the motion relies.
If an adverse party objects to
this motion such party shall, at least five days before the date the motion is
to be considered on the short calendar, file and serve in accordance with Sec.
120 a memorandum of law.
(New) Sec. 1221.—When Memorandum of Decision Required
Whenever a motion to strike is
filed and more than one ground of decision is set up therein, the judge, in
rendering the decision thereon, shall specify in writing the grounds upon which
that decision is based.
(New) Sec. 1222.—Substitute Pleading; Judgment
Within fifteen days after the
granting of any motion to strike, the party whose pleading has been stricken
may file a new pleading; provided that in those instances where an entire
complaint or cross complaint has been stricken, and the party whose pleading
has been so stricken fails to file a new pleading within that fifteen-day
period, the court may upon motion enter judgment against said party on said
stricken complaint or cross complaint.
(New) Sec. 1223.—Stricken Pleading Part of Another Cause or
Defense
Whenever the court grants a
motion to strike the whole or any portion of any pleading or count which
purports to state an entire cause of action, and such pleading or portion
thereof states or constitutes a part of another cause of action, the granting
of that motion shall remove from the case only the cause of action which was
the subject of the granting of that motion, and it shall not remove such
pleading or count or any portion thereof so far as the same is applicable to
any other cause of action.
(New) Sec. 1224. Motions, Requests, Orders of Notice, and Short
Calendar
The provisions of Secs. 196, 197, 199, 200, 201, 202A, 204, 204A, 204B, 211A,
211B, 212, 213, and 215 shall apply to family matters as defined in Sec. 1200.
(New) Sec. 1225. Motions
Any party may move for alimony,
child support, custody, visitation, appointment of counsel for the minor child,
counsel fees, or for an order with respect to the maintenance of the family or
for any other equitable relief.
Each such motion shall state
clearly, in the caption of the motion, whether it is a pendente
lite or a post judgment motion.
(New) Sec. 1226. Motion for Exclusive Possession
Each motion for exclusive
possession shall state the nature of the property, whether it is rental
property or owned by the parties or one of them, the length of tenancy or
ownership of each party, the current family members residing therein and the
grounds upon which the moving party seeks exclusive possession.
[*97PB]
COMMENTARY: The Committee recommends that the claim
of the moving party to exclusive possession be specifically stated.
Sec. 1227. Modification of [A> CUSTODY
<A] , Alimony or Support
(a) Upon an application for a
modification of an award of alimony pendente lite, alimony or support of minor children, filed by a
person who is then in arrears under the terms of such award, the court shall,
upon hearing, ascertain whether such arrearage has accrued without sufficient
excuse so as to constitute a contempt of court, and, in its discretion, may
determine whether any modification of current alimony and support shall be
ordered prior to the payment, in whole or in part as the court may order, of
any arrearage found to exist.
(b)
Either parent or both parents of minor children may be cited or summoned by any
party to the action to appear and show cause, if any they have, why orders of
[A> CUSTODY, VISITATION, <A] support or alimony should not be entered or
modified.
(c) If any applicant is
proceeding without the assistance of counsel and citation of any other party is
necessary, the applicant shall sign the application and present the
application, proposed order and summons to the clerk; the clerk shall review
the proposed order and summons and, unless it is defective as to form, shall
sign the proposed order and summons and shall assign a date for a hearing on
the application.
[A> (d) EACH MOTION FOR
MODIFICATION OF CUSTODY, VISITATION, ALIMONY OR CHILD SUPPORT SHALL STATE
CLEARLY IN THE CAPTION OF THE MOTION WHETHER IT IS A PENDENTE LITE OR A
POST-JUDGMENT MOTION. <A]
[A> (e) EACH MOTION FOR
MODIFICATION SHALL STATE THE SPECIFIC FACTUAL AND LEGAL BASIS FOR THE CLAIMED
MODIFICATION AND SHALL INCLUDE THE OUTSTANDING ORDER AND DATE THEREOF TO WHICH
THE MOTION FOR MODIFICATION IS ADDRESSED. <A]
[A> (f) ON MOTIONS ADDRESSED
TO FINANCIAL ISSUES THE PROVISIONS OF SEC. 1231 SHALL BE FOLLOWED. <A]
COMMENTARY: This section has been transferred, with
revisions, from Sec. 464.
The Rules Committee recommends
that motions for modification specify whether they are pendente
lite or post-judgment so that they may be separately
coded for statistical purposes.
(New) Sec. 1228. Motion for Contempt
(a) All motions for contempt must
state (1) the date and specific language of the order of the court on which the
motion is based; (2) the specific acts alleged to constitute the contempt of
that order, including the amount of any arrears claimed due as of the date of
the motion or a date specifically identified in the motion; (3) the movant’s claims for relief for the contempt.
(b) All
motions for contempt must state clearly in the caption of the motion whether it
is a pendente lite or a
post-judgment motion.
Sec. 1229. Order of Notice [D> of Complaint
<D]
(a) On a complaint for
dissolution of marriage [A> , LEGAL SEPARATION, ANNULMENT, CUSTODY OR
VISITATION, <A] when the adverse party resides out of or is absent from the
state or the whereabouts of the adverse party is unknown to the plaintiff, any
judge or clerk of the court may make such order of notice as he [A> OR SHE
<A] deems reasonable. [A> IF SUCH NOTICE IS BY PUBLICATION, IT SHALL NOT
INCLUDE THE AUTOMATIC ORDERS SET FORTH IN SECTION 1204, BUT SHALL INSTEAD
INCLUDE A STATEMENT THAT AUTOMATIC ORDERS HAVE ISSUED IN THE CASE PURSUANT TO
PRACTICE BOOK SEC. 1204 AND THAT SUCH ORDERS ARE SET FORTH IN THE COMPLAINT ON
FILE WITH THE COURT. <A] Such notice having been given and proved, the court
may hear the complaint if it finds that the defendant has actually received
notice that the complaint is pending. If actual notice is not proved, the court
in its discretion may hear the case or continue it for compliance with such
further order of notice as it may direct.
[*98PB]
[A> (b)
WITH REGARD TO ANY POST-JUDGMENT MOTION FOR MODIFICATION OR FOR CONTEMPT OR ANY
OTHER MOTION REQUIRING AN ORDER OF NOTICE, WHERE THE ADVERSE PARTY RESIDES OUT
OF OR IS ABSENT FROM THE STATE ANY JUDGE OR CLERK OF THE COURT MAY MAKE SUCH
ORDER OF NOTICE AS HE OR SHE DEEMS REASONABLE. SUCH NOTICE HAVING BEEN GIVEN
AND PROVED, THE COURT MAY HEAR THE MOTION IF IT FINDS THAT THE ADVERSE PARTY
HAS ACTUALLY RECEIVED NOTICE THAT THE MOTION IS PENDING. <A]
COMMENTARY: This section has been transferred, with
revisions, from Sec. 461.
The Rules Committee recommends
that complaints served pursuant to this section not include automatic orders
because it would make notice by publication too costly.
Sec. 1230. Notice of Orders for Support or
Alimony
In all dissolution of marriage,
[A> LEGAL SEPARATION, ANNULMENT, CUSTODY OR VISITATION <A] actions, such
notice as the court shall direct shall be given to nonappearing
parties of any orders for support or alimony. No such order shall be effective
until the order of notice shall have been complied with or the nonappearing party has actually received notice of such
orders.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 462.
Sec. 1231. [D> Sworn <D] Statements To Be
Filed
[A> (a) <A] At [D> the
time <D] [A> LEAST FIVE DAYS BEFORE THE HEARING DATE OF <A] a motion
[A> OR ORDER TO SHOW CAUSE <A] concerning alimony, support, or [D>
custody is filed <D] [A> COUNSEL FEES <A] , or at the time a
dissolution of marriage, legal separation or annulment action [A> OR ACTION
FOR CUSTODY OR VISITATION <A] is [D> claimed <D] [A> SCHEDULED
<A] for a hearing, [A> EACH PARTY <A] [D> the moving party <D]
shall file [A> , WHERE APPLICABLE, <A] a sworn statement substantially in
accordance with a form prescribed by the chief court administrator, of current
income, expenses, assets and liabilities [D> , and pertinent records of
employment, gross earnings, gross wages and all other income. The opposing
party shall file such sworn statements at least three days before the date of
the hearing on any of the above matters <D] . When the attorney general has
appeared as a party in interest, a copy of the sworn statements shall be served
upon him [A> OR HER <A] in accordance with Sec. 120. Unless otherwise
ordered by the court, all appearing parties shall file sworn statements within
thirty days prior to the date of the decree. Notwithstanding the above, the
court may render pendente lite
and permanent orders, including judgment, in the absence of the opposing
party’s sworn statement.
[A> (b)
AT LEAST TEN DAYS BEFORE THE SCHEDULED FAMILY SPECIAL MASTERS SESSION,
ALTERNATIVE DISPUTE RESOLUTION SESSION, OR JUDICIAL PRETRIAL, AND, IF THERE IS
A CHANGE IN THE CLAIMS FOR RELIEF, AT LEAST TEN DAYS PRIOR TO THE DATE OF THE
FINAL LIMITED CONTESTED OR CONTESTED HEARING, THE PARTIES SHALL FILE AND SERVE
ON EACH APPEARING PARTY WRITTEN PROPOSED ORDERS. <A]
[A> (1) THE WRITTEN PROPOSED
ORDERS SHALL BE COMPREHENSIVE AND SHALL SET FORTH THE PARTY’S REQUESTED RELIEF
INCLUDING, WHERE APPLICABLE, THE FOLLOWING: <A]
[A> (i) A PARENTING PLAN;
<A]
[A> (ii) ALIMONY; <A]
[A> (iii) CHILD SUPPORT;
<A]
[A> (iv) PROPERTY DIVISION;
<A]
[A> (v) COUNSEL FEES; <A]
[A> (vi) LIFE INSURANCE;
<A]
[A> (vii) MEDICAL INSURANCE;
AND <A]
[A> (viii) DIVISION OF
LIABILITIES. <A]
[A> (2) THE PROPOSED ORDERS
SHALL BE NEITHER FACTUAL NOR ARGUMENTATIVE BUT SHALL, INSTEAD, ONLY SET FORTH
THE PARTY’S CLAIMS. <A]
[*99PB]
[A> (c) WHERE THERE IS A MINOR
CHILD WHO REQUIRES SUPPORT, THE PARTIES SHALL FILE A COMPLETED CHILD SUPPORT
AND ARREARAGE GUIDELINES WORKSHEET AT THE TIME OF ANY COURT HEARING CONCERNING
CHILD SUPPORT; OR AT THE TIME OF A FINAL HEARING IN AN ACTION FOR DISSOLUTION
OF MARRIAGE, LEGAL SEPARATION, ANNULMENT, CUSTODY OR VISITATION. <A]
[A> (d) AT THE TIME OF ANY
HEARING, INCLUDING PENDENTE LITE AND POST JUDGMENT PROCEEDINGS, IN WHICH A
MOVING PARTY SEEKS A DETERMINATION, MODIFICATION, OR ENFORCEMENT OF ANY ALIMONY
OR CHILD SUPPORT ORDER, A PARTY SHALL SUBMIT AN ADVISEMENT OF RIGHTS RE: WAGE
WITHHOLDING FORM (JD-FM-71). <A]
COMMENTARY: Paragraph (a) of this section has been
transferred, with revisions, from Sec. 463.
This rule also mandates
compliance with Gen. Stat. § 46b-215, the submission by the parties of the
required form for advisement of rights regarding wage withholding, and where
there is a minor child who requires support, the filing of a completed child
support and arrearage guidelines worksheet.
(New) Sec. 1232. Discovery and Depositions
The provisions of Secs. 216 through 229 inclusive, 230A through 233
inclusive, and 237 through 249 inclusive, shall apply to family matters as
defined in Sec. 1200.
(New) Sec. 1233. Mandatory Disclosure and Production
(a) Unless otherwise ordered by
the court for good cause shown, upon request by a party involved in an action
for dissolution of marriage, legal separation, annulment or support, or a post
judgment motion for modification of alimony or support, opposing parties shall
exchange the following documents:
(1) all federal and state income
tax returns filed within the last three years, including personal returns and
returns filed on behalf of any partnership or closely held corporation of which
a party is a partner or shareholder;
(2) IRS forms W-2, 1099 and K-1
within the last three years including those for the past year if the income tax
returns for that year have not been prepared;
(3) copies of all pay stubs or
other evidence of income for the current year and the last pay stub from the
past year;
(4) statements for all accounts
maintained with any financial institution, including banks, brokers and
financial managers, for the past 24 months;
(5) the most recent statement
showing any interest in any Keogh, IRA, profit sharing plan, deferred
compensation plan, pension plan, or retirement account;
(6) the most recent statement
regarding any insurance on the life of any party;
(7) a summary furnished by the
employer of the party’s medical insurance policy, coverage, spousal benefits,
and COBRA costs following dissolution;
(8) any written appraisal concerning
any asset owned by either party.
(b)
Such duty to disclose shall continue during the pendency of the action should a
party appear. This rule shall not preclude discovery under any other provisions
of these rules.
(New) Sec. 1234. Judicial Appointment of Expert Witnesses
Whenever the judicial authority
deems it necessary, on its own motion it may appoint any expert witnesses of
its own selection. The judicial authority shall give notice of its intention to
appoint such expert, and give the parties an opportunity to be heard concerning
such appointment. An expert witness shall not be appointed by the judicial
authority unless the expert consents to act. An expert witness so appointed
shall be informed of his or her duties by the judicial authority in writing, a
copy of which shall be filed with the clerk, or the witness shall be informed
of his or her duties at a conference in which the parties shall have an
opportunity to participate. Such expert witness shall advise the parties of his
or her findings, if any, and may thereafter be called to testify by the
judicial authority or by any party and shall be subject to cross-examination by
each party. The judicial authority may [*100PB] determine the reasonable
compensation for such witness and direct payment out of such funds as may be
provided by law or by the parties or any of them as the court may direct.
Nothing in this rule shall prohibit the parties from retaining their own expert
witnesses.
COMMENTARY: The purpose of this proposed new
section, which tracks Sec. 881 of the criminal rules, is to insure that the
court and the parties understand that the judge in family cases may also
appoint his or her own experts as the case may require. This rule permits the
court to make the appointment on its own or on the suggestion of either party
or the counsel for the minor child.
(New) Sec. 1235. Procedure for Short Calendar
(a) Oral argument on any motion
or the presentation of testimony thereon shall be allowed if the appearing
parties have followed administrative policies for marking the motion ready and
for screening with Family Services.
(b) If
the matter will require more than one hour of court time, it may be
specifically assigned for a date certain.
(c) Failure to appear and present
argument on the date set by the court shall constitute a waiver of the right to
argue unless the court orders otherwise. Unless for good cause shown, no motion
may be reclaimed after a period of three months from the date of filing. This
paragraph shall not apply to those motions where counsel appeared on the date
set by the court and entered into a scheduling order for discovery, depositions
and a date certain for hearing.
COMMENTARY: The Rules Committee recommends that the
rule be consistent with current administrative policy and also that it require
the parties to argue a motion within a reasonable time after the motion has
been filed.
Sec. 1236. Disclosure of Conference
Recommendation
In the event the parties or their
counsel confer with a family relations counselor [D> officer <D] on
finances concerning alimony and child support in connection with either a pendente lite [D> hearing
<D] [A> , POSTJUDGMENT <A] or [D> the <D] dissolution hearing,
the recommendations of the family relations [A> COUNSELOR <A] [D>
officer <D] concerning alimony and child support shall not be reported to
the court by the parties or their counsel or the family relations [A>
COUNSELOR <A] [D> officer <D] unless, before such conference, the
parties or their counsel have stipulated that the recommendation of the family
relations [A> COUNSELOR <A] [D> officer <D] may be made known to
the court.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 464A.
The changes reflect the change in
title from family relations officer to family relations counselor and add
post-judgment hearings to the scope of the rule.
Sec. 1237. [D> Petition <D] [A> MOTION
<A] for Decree Finally Dissolving Marriage [A> AFTER DECREE OF LEGAL
SEPARATION <A]
Every [D> petition <D]
[A> MOTION <A] for a decree finally dissolving and terminating the
marriage, after a decree of legal separation, shall state the number of the
case in which the separation was granted, the date of the decree of legal
separation and whether the parties have resumed marital relations since the
entry of the decree, and it shall be accompanied by an application for an order
of notice to the adverse party.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 472.
Sec. 1238.—Notice and Hearing
Upon presentation of such [D>
petition <D] [A> MOTION <A] to the court it shall fix a time for
hearing the same and make an order of notice, by personal service if the
adverse party is within the state and his place of residence is known,
otherwise in such manner as it shall deem reasonable.
[*101PB]
COMMENTARY: This section has been transferred, with
revisions, from Sec. 473.
(New) Sec. 1239. Judgment Files
The provisions of Secs. 326, 334 and 377 shall apply to family matters as
defined in Sec. 1200. The provisions of Sec. 7X concerning withdrawal of
appearance of an attorney 180 days after the entry of judgment shall not apply
to family matters actions until the provisions of this section concerning the
filing of judgment files have been satisfied.
(New) Sec. 1240. Miscellaneous Rules
Except as otherwise provided in
Sec. 1253, the provisions of Secs. 352 through 354,
395A, 412, 416, 446, 448, and 546T shall apply to family matters as defined in
Sec. 1200.
(New) Sec. 1241. Habeas Corpus in Family Matters
COMMENTARY: Secs. 1242
through 1249 were taken in part from Secs. 529A,
529C, 529H, 529I, 529J, 529N, 529P and 529Q.
(New) Sec. 1242.—The Petition
(a) A petition for a writ of
habeas corpus shall be under oath and shall state:
(1) the specific facts upon which
each claim of custody or visitation is based such that the court would
immediately order the child or children to be brought before the court;
(2) any previous petitions for
the writ of habeas corpus, and any existing custody or visitation orders,
involving the same child or children and the dispositions taken thereon; and
(3) the specific facts upon which
the court has jurisdiction.
COMMENTARY: This rule contemplates that a habeas
petition is not a substitute for a motion regarding custody, but should be
reserved for serious and unusual situations where the court is going to order
that the child be brought before it. As set forth in Sec. 1243, the court shall
not issue the writ if it appears that another proceeding is more appropriate.
(New) Sec. 1243.—Preliminary Consideration
(a) The court shall promptly
review any petition for a writ of habeas corpus to determine whether the writ
should issue. The court shall issue the writ if it appears that: (1) the court
has jurisdiction; (2) the petition is meritorious; and (3) another proceeding
is not more appropriate.
(b) The
court shall notify the petitioner if it declines to issue the writ pursuant to
this rule.
(New) Sec. 1244.—Dismissal
The court may, at any time, upon
its own motion or upon motion of the respondent, dismiss the petition, or any
count thereof, if it determines that: (1) the court lacks jurisdiction; (2) the
petition, or a count thereof, fails to state a claim upon which habeas corpus
relief can be granted; (3) the petition presents the same ground as a prior
petition previously denied and fails to state new facts or proffer new evidence
not reasonably available at the time of the prior petition; (4) the claims
asserted in the petition are moot or premature; (5) any other legally
sufficient ground for dismissal of the petition exists.
[*102PB]
(New) Sec. 1245.—The Return
The return shall respond to the
allegations of the petition and shall allege any facts in support of any claim
of procedural default, abuse of the writ, or any other claim that the
petitioner is not entitled to relief.
(New) Sec. 1246.—Reply to the Return
(a) If the return alleges any
defense or claim that the petitioner is not entitled to relief, and such
allegations are put in dispute by the petition, the petitioner shall file a
reply.
(b) The
reply shall admit or deny any allegations that the petitioner is not entitled
to relief.
(New) Sec. 1247.—Schedule for Filing Pleadings
The return or responsive pleading
and any reply to the return shall be filed as the court may order.
COMMENTARY: It is contemplated by this rule that
when the court signs the order, it shall state when the return and reply shall
be filed.
(New) Sec. 1248.—Summary Judgment as to Writ of Habeas Corpus
At any time after the pleadings
are closed, any party may move for summary judgment, which shall be rendered if
the pleadings, affidavits and any other evidence submitted, show that there is
no genuine issue of material fact between the parties requiring a trial and the
moving party is entitled to judgment as a matter of law.
(New) Sec. 1249.—Discovery
Discovery shall be as in all
other family matters.
COMMENTARY: Once a writ has been issued and the
proceeding has commenced, habeas matters should, except for the pleadings to be
filed, follow the procedure for other family matters.
(New) Sec. 1250. Dockets, Pretrials and
Assignment for Disposition
The provisions of Secs. 250B, 251, 279, and 281 shall apply to family matters
as defined in Sec. 1200.
(New) Sec. 1251. Definitions
For purposes of these rules the
following definitions shall apply:
(a) "Uncontested
matter" means a case in which no aspect of the matter is in dispute.
(b)
"Limited contested matter" means a case in which the matters in
dispute are limited to monetary awards, real property or personal property.
(c) "Contested matter"
means a case in which child custody, visitation rights, paternity or the
grounds for the action are in dispute, and matters of monetary awards or the
disposition of real or personal property may be in dispute.
COMMENTARY: This is taken in part from Sec. 474. The
use of trial lists is abolished under these proposals.
(New) Sec. 1252. Case management
The presiding judge or a designee
shall determine by the case management date which track each case shall take
and assign each case for disposition. That date shall be set on a schedule
approved by the presiding judge.
(1) If the matter is uncontested,
the matter shall be assigned a date certain for disposition by the clerk upon
filing of a form prescribed by the office of the chief court administrator.
[*103PB]
(2) With the approval of the
presiding judge, a case management conference may be conducted by the filing of
a stipulated scheduling order when only financial issues are outstanding. If
there is a dispute with respect to financial issues, the matter may be directed
to any alternative dispute resolution mechanism, private or court-annexed, or
thereafter have assigned a date certain for family special masters and further
judicial pretrial. Thereafter, the matter may be assigned for trial for a date
certain if not resolved.
(3) In cases where custody or
visitation issues are outstanding, the parties and counsel must appear for a case
management conference on the case management date. If custody or visitation
issues require judicial intervention, the appointment of counsel or a guardian
ad litem for the minor child, or case study or
evaluation by family services or by a private provider of services, a target
date shall be assigned for completion of such study and the final conjoint
thereon and thereafter a date certain shall be assigned for disposition.
(4) With respect to paragraphs
(2) and (3) of this section, if a trial is required, such order may include a
date certain for a trial management conference between counsel or pro se
parties for the purpose of premarking exhibits and
complying with other orders of the court to expedite the trial process.
COMMENTARY: The section is broad enough to allow
administrative policy to be flexible but uniform. The rule provides for a case
management system in which a date certain is assigned in all cases, including
uncontested cases. The concept of trial lists is abolished.
(New) Sec. 1253. When Motion for Default for Failure to Appear
does not Apply
Any case claiming a dissolution
of marriage, legal separation, or annulment in which the defendant has failed
to file an appearance may be assigned a date certain for disposition as an
uncontested matter pursuant to Sec. 1252(1). If the defendant has not filed an
appearance by the date assigned for disposition, the case may proceed to
judgment without further notice to such defendant. Sec. 352 concerning motions
for default shall not apply to such cases.
If the defendant files an
appearance by the date assigned for disposition, the presiding judge or a
designee shall determine which track the case shall take pursuant to Sec. 1252.
COMMENTARY: The first paragraph of this rule
reflects the current procedure in which defaults for failure to appear are not
filed in actions for dissolution of marriage, legal separation or annulment.
Pursuant to Sec. 1240, Sec. 352
applies to the other family matters defined in Sec. 1200.
(New) Sec. 1254. Failure to Appear for Scheduled Disposition
If a party fails to appear in
person or by counsel for a scheduled disposition, the opposing party may
introduce evidence and the case may proceed to judgment without further notice
to such party who failed to appear.
COMMENTARY: This rule is aimed at the situation
where a party does not appear for the scheduled disposition. It allows the
court to proceed to judgment without further notice to said party. The civil
rules on this topic do not appropriately address the issue of defaults in
family matters.
Sec. 1255. Reference of [D> Contested <D]
[A> FAMILY <A] Matters
In any [D> action for
dissolution of marriage, legal separation or annulment <D] [A> FAMILY
MATTER <A] the court may, upon its own motion or upon motion of a party,
refer any contested [A> , LIMITED CONTESTED, OR UNCONTESTED <A] matter
for hearing and decision to a [D> state <D] [A> JUDGE TRIAL <A]
referee who shall have been a judge of the referring court [D> or of the
court of common pleas <D] . Such matters shall be deemed to have been
referred [*104PB] for all further proceedings and judgment, including matters
pertaining to any appeal therefrom, except that the
referring court [D> shall <D] [A> MAY <A] retain jurisdiction to
hear and decide any pendente lite
or contempt matters.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 458.
(New) Sec. 1256. Order of Trial; Argument by Counsel
The provisions of Secs. 295, 296 and 297, shall apply to family matters as
defined in Sec. 1200.
(New) Sec. 1257. Medical Evidence
A party who plans to offer a
hospital record in evidence shall have the record in the clerk’s office
twenty-four hours prior to trial. The judge shall order that all such records
be available for inspection in the clerk’s office to any counsel of record
under the supervision of the clerk. Counsel must recognize their responsibility
to have medical testimony available when needed and shall, when necessary,
subpoena medical witnesses to that end.
COMMENTARY: The language in this section was taken
in part from Sec. 290.
(New) Sec. 1258. Production of Documents at Hearing or Trial
At the trial management
conference prior to the commencement of an evidentiary hearing or trial, but in
no event later than five days before the scheduled hearing date, either party
may serve on the other a request for production of documents and tangible
things, in a manner consistent with Sec. 226. Service may be made in the same
manner as a subpoena or consistent with Secs. 121 through
123.
(1) If a party fails to produce
the requested documents and items, the party filing the request shall be
permitted to introduce into evidence such copies as that party might have,
without having to authenticate the copies offered.
(2) If a party fails to produce
the requested documents and items and the requesting party does not have copies
to offer into evidence, the court may impose such sanctions on the nonproducing party as the court deems appropriate pursuant
to Section 231 and as are available to the court for the enforcement of
subpoenas.
Sec. 1259. Affidavit concerning [D> Custody
<D] [A> CHILDREN <A] Before the court renders any [D> decree <D] [A> ORDER
<A] in any matter pending before it involving the custody [A> ,
VISITATION OR SUPPORT <A] of a minor child or children, an affidavit shall
be filed with the court averring [D> that <D] [A> (1) WHETHER THE WIFE
IS BELIEVED TO BE PREGNANT, (2) THE NAME AND DATE OF BIRTH OF ANY MINOR CHILD
BORN SINCE THE DATE OF THE FILING OF THE COMPLAINT; (3) INFORMATION WHICH MEETS
THE REQUIREMENTS OF THE UNIFORM CHILD CUSTODY JURISDICTION ACT, GEN. STAT. §
46b-99, ET. SEQ.; <A] (4) that there is no other proceeding [D> pending
affecting the custody of such children or any of them or, if there is such a proceeding,
a statement in detail of the nature of the proceeding and averring that the
decree of the court would not conflict with or interfere with such other
proceeding. <D] in which either party has participated as a party, witness,
or otherwise concerning custody of the child in any state; and (5) that no
person not a party has physical custody or claims custody or visitation rights
with respect to the child. [D> For the purposes of this affidavit,
visitation rights granted by any court shall not be considered as affecting the
custody of the child or children. <D]
COMMENTARY: This section has been transferred, with
revisions, from Sec. 476. The custody affidavit form should be uniform for all
proceedings filed in family matters and be consistent with the policy of the
family presiding judges that all custody affidavits conform to the requirements
of the Uniform Child Custody Jurisdiction Act.
[*105PB]
Sec. 1260. Reports of Dissolution of Marriage
and Annulment
Before a hearing is commenced for
a dissolution or annulment of marriage, the parties concerned, or their
attorneys, shall provide, on forms furnished by the clerk, such information as
is [D> necessary for the completion of the report which the clerk must file
with the state department of health <D] [A> REQUIRED BY THE JUDGES OF THE
SUPERIOR COURT <A] .
COMMENTARY: This section has been transferred, with
revisions, from Sec. 477.
The department of health has
expressed a disinclination to continue to collect the information required by
this rule. The amendment to this section broadens the language of the rule so
that the information may be collected by administrative policy of the Judicial
Branch.
Sec. 1261. Closed Hearings and Records
Subject to the provision of Sec.
211B, any family [D> relations <D] matter may be heard in chambers or in
a courtroom from which the public and press have been excluded, and the records
and other papers in any family [D> relations <D] matter may be ordered by
the court to be kept confidential and not to be open to inspection except under
order of the court or a judge thereof.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 478. The word "relations" is deleted to make the
rule consistent with the other sections in this chapter.
Sec. 1262. Family Division Evaluations and
Studies
Whenever, in any family matter,
[D> a case <D] [A> AN EVALUATION OR STUDY <A] has been ordered, the
case shall not be disposed of until the report has been filed as hereinafter
provided, and counsel and the parties have had a reasonable opportunity to
examine it prior to the time the case is to be heard, unless the court shall
order that the case be heard before the report is filed, subject to
modification on the filing of the report.
Any report of [D> a case <D]
[A> AN EVALUATION OR STUDY <A] shall be made in quadruplicate, shall be
filed with the clerk, who will impound such reports, and shall be mailed to
counsel of record. Said report shall be available for inspection only to
counsel of record and to the parties to the action, unless otherwise ordered by
the court.
Said report shall be admissible
in evidence provided the author of the report is available for
cross-examination.
COMMENTARY: This section has been transferred with
revisions from Sec. 479. The amendments reflect the different vehicles now
utilized by family services to inform the court concerning the best interest of
the child.
(New) Sec. 1263. Family Division
The Family Services Unit shall,
at the request of the court, provide assistance with regard to issues
concerning custody, visitation, finances, mediation, case management and such
other matters as the court may direct.
Sec. 1264. Appointment of Guardian Ad Litem
[D> In any family relations
matter involving an abused or neglected child, a guardian ad litem shall be appointed. <D] The court may [D> also
<D] appoint a guardian ad litem for a minor
involved in any [D> other judicial proceeding <D] [A> FAMILY MATTER
<A]. Unless the court orders that another person be appointed guardian ad litem, a family relations counselor [D> or family
relations caseworker <D] shall be designated as guardian ad litem. [A> THE GUARDIAN AD LITEM IS NOT REQUIRED TO BE
AN ATTORNEY. <A] If the guardian ad litem is not a
family relations counselor [D> or family relations caseworker <D] , the
court may order compensation for services rendered in accordance with the
established judicial branch fee schedule.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 484.
[*106PB]
The revisions are proposed in
light of amendments made to Gen. Stat. § 17a-101 by P.A. 95-103. This rule is
not meant to circumscribe any inherent or statutory power the court has to
appoint an attorney for the child in a family matter.
Sec. 1265. Right to Counsel in Family Civil
Contempt Proceedings
A person who is before the court
in a civil contempt proceeding involving the failure to comply with a court
order in a family [D> relations case <D] [A> MATTER <A] and who
faces potential incarceration shall be advised of his [A> OR HER <A]
right to be represented by counsel and his [A> OR HER <A] right to court
appointed counsel if he [A> OR SHE <A] is indigent. If [D> he <D]
[A> THE PERSON <A] is unable to obtain counsel by reason of his [A> OR
HER <A] indigency he [A> OR SHE <A] shall
have counsel appointed to represent him [A> OR HER <A] unless: (1) He
[A> OR SHE <A] waives such appointment pursuant to Sec. [D> 484B
<D] [A> 1266 <A] ; or (2) At the time of the application for the
appointment of counsel, the judicial authority eliminates incarceration as a
possible result of the proceeding and makes a statement to that effect on the
record.
[A> THE PERSON SHALL BE
FURTHER ADVISED THAT NO PERSON SHALL CONTINUE TO BE DETAINED IN A CORRECTIONAL
FACILITY PURSUANT TO AN ORDER OF CIVIL CONTEMPT FOR LONGER THAN THIRTY DAYS,
UNLESS AT THE EXPIRATION OF SUCH THIRTY DAYS HE OR SHE IS PRESENTED TO THE
JUDICIAL AUTHORITY. ON EACH SUCH PRESENTMENT, THE CONTEMNOR SHALL BE GIVEN AN
OPPORTUNITY TO PURGE HIMSELF OR HERSELF OF THE CONTEMPT BY COMPLIANCE WITH THE
COURT ORDER. IF THE CONTEMNOR DOES NOT SO ACT, THE JUDICIAL AUTHORITY MAY
DIRECT THAT THE CONTEMNOR REMAIN IN CUSTODY UNDER THE TERMS OF THE COURT ORDER
THEN IN EFFECT, OR MAY MODIFY THE ORDER IF THE INTERESTS OF JUSTICE SO DICTATE.
<A]
[A> ANY ATTORNEY APPOINTED TO
REPRESENT THE CONTEMNOR SHALL REPRESENT SUCH CONTEMNOR ONLY ON THE CONTEMPT,
AND SHALL NOT BE APPOINTED FOR ANY OTHER PURPOSE. <A]
COMMENTARY: This section has been transferred, with
revisions, from Sec. 484A.
It is believed that the threat of
incarceration would be perceived as a more effective sanction if the court
advised the contemnor of the provisions of Sec. 528A. Furthermore, the Judicial
Branch is only obligated to pay for services on a contempt, and counsel should
be compensated for representation on the contempt. Currently, motions for
modification and visitation are being handled by appointed counsel which is
outside the parameters of the appointment.
Sec. 1266.—Waiver
A person shall be permitted to waive
his [A> OR HER <A] right to counsel and shall be permitted to represent
himself [A> OR HERSELF <A] at any stage of the proceedings, either prior
to or following the appointment of counsel. A waiver will be accepted only
after the judicial authority makes a thorough inquiry and is satisfied that the
person:
(1) Has been clearly advised of
his [A> OR HER <A] right to the assistance of counsel, including his
[A> OR HER <A] right to the assignment of counsel when he [A> OR SHE
<A] is so entitled;
(2) Possesses the intelligence
and capacity to appreciate the consequences of the decision to represent
himself [A> OR HERSELF <A] ;
(3) Comprehends the nature of the
proceedings, the range of permissible [D> punishments, <D] [A>
SANCTIONS <A] and any additional facts essential to a broad understanding of
the case; and
(4) Has been made aware of the
risks and disadvantages of self representation.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 484B.
Sec. 1267. Family Support Magistrates;
Procedure
(a) The procedure in any matter
which is to be heard and determined by a family support magistrate shall
conform, where applicable, to the procedure in and for the superior court
except as otherwise provided herein.
(b) (1)
Any pleading or motion filed in a family support magistrate matter shall
indicate, in the lower right hand corner of the first page of the document,
that it is a family support magistrate matter.
[*107PB]
(2) Matters to be heard and
determined by a family support magistrate shall be placed on the family support
magistrate list.
(3) Matters on the family support
magistrate list shall be assigned automatically by the family support
magistrate clerk without the necessity of a written claim. No such matters
shall be so assigned unless filed at least five days before the opening of
court on the day the list is to be called.
(4) Matters upon the family
support magistrate list shall not be continued except by order of a family
support magistrate.
COMMENTARY: This section has been transferred from
Sec. 479A.
Sec. 1268. Appeal from Decision of Family
Support Magistrate
Any person who is aggrieved by a
final decision of a family support magistrate may appeal such decision in
accordance with the provisions of Public Act 86-359 of the General Statutes.
The appeal shall be instituted by the filing of a petition which shall include
the reasons for the appeal.
COMMENTARY: This section has been transferred from
Sec. 479B.
Sec. 1269. Support Enforcement Services
In cases where the payment of
alimony and support has been ordered, a support enforcement officer, where
provided by statute, shall:
(a) Whenever there is a default
in any payment of alimony or support of children under judgments of dissolution
of marriage or separation, or of support under judgments of support, where
necessary, (1) bring an application to a family support magistrate for a rule
requiring said party to appear before a family support magistrate to show cause
why he should not be held in contempt, or (2) take such other action as is
provided by rule or statute.
(b) In
connection with (a), or at any other time upon direction of a family support
magistrate, investigate the financial situation of the parties and report his
or her findings thereon to a family support magistrate which may authorize the
officer to bring an application for a rule requiring any party to appear before
a family support magistrate to show cause why there should not be a
modification of the judgment.
(c) In non-AFDC IV-D cases,
review child support orders at the request of either parent subject to a
support order or at the request of the bureau of child support enforcement and
initiate and facilitate, but not advocate on behalf of either party, an action
before a family support magistrate to modify such support order if it is
determined upon such review that the order substantially deviates from the
child support guidelines established pursuant to Gen. Stat. §§ 46b-215a or
46b-215b.
(d) In AFDC IV-D cases, review
child support orders and may initiate, but not advocate on behalf of either
party, an action before a family support magistrate to modify such support
order if it is determined upon such review that (a) there is a substantial
change in the circumstances of either party, or (b)
the order substantially deviates from the child support guidelines established
pursuant to Gen. Stat. §§ 46b-215a or 46b-215b.
COMMENTARY: This section has been transferred from
Sec. 481.
Sec. 1270. Right to Counsel in State Initiated
Paternity Actions
A putative father named in a
state initiated paternity action shall be advised by the court of his right to
be represented by counsel and his right to court appointed counsel if he is
indigent. If he is unable to obtain counsel by reason of his indigency he shall have counsel appointed to represent him
unless he waives such appointment pursuant to Sec. [D> 484B <D] [A>
1266 <A] .
[*108PB]
In cases under this section a
copy of the paternity petition shall be served on the attorney general in
accordance with the provisions of Sec. 120. [D> Although t <D] [A> T
<A] he attorney general shall be a party to such cases, but he or she need
not be named in the petition or summoned to appear.
COMMENTARY: This section has been transferred, with
revision, from Sec. 484C.
Sec. 1271.—Social Services; Additional Duties
(a) Under the supervision and
direction of the court, a family relations counselor shall, where there is a
motion for change of custody of a child, or where his [A> OR HER <A]
knowledge of the family situation causes him [A> OR HER <A] to believe
that the welfare of the child requires a hearing on a change of custody, upon
direction of the court, be permitted to investigate the domestic and financial
situation of the parties and report his [A> OR HER <A] findings. The
court may thereafter, on its own motion if necessary, hold a hearing thereon
after such notice to the parties as it deems proper.
(b)
Under the supervision and direction of the court, the [D> family relations
caseworker or <D] family relations counselor shall conduct such
investigations or mediation conferences in domestic relations matters as may be
directed by the court.
(c) Under the supervision and
direction of the court, the [D> family relations caseworker or <D] family
relations counselor may, where necessary, bring an application to the court for
a rule requiring a party to appear before the court to show cause why such
party should not be held in contempt for failure to comply with a court order
for visitation.
(d) Family relations caseworkers,
family relations counselors and support enforcement officers shall investigate
all criminal matters involving family relations cases referred to them by the
prosecuting attorney or by the court.
COMMENTARY: This section has been transferred, with
revisions, from Sec. 481A.
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