***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
CAROLYN COLEMAN v. MARTIN BEMBRIDGE
(AC 42669)
Alvord, Moll and Cradle, Js.
Syllabus
The plaintiff appealed to this court from the judgment of the trial court
dissolving her marriage to the defendant. The trial court ordered that
the parties’ minor child would maintain a primary residence with the
plaintiff in Connecticut until the child’s second birthday. At that time,
the child’s residence would begin to alternate, so that he would spend
one half of each year with the plaintiff and one half with the defendant,
who lived in Saskatchewan, Canada. In the event that the parties were
unable to agree on a custody schedule, the trial court ordered that the
child would spend two months at a time with each party. The trial court
further ordered that, following the child’s fifth or sixth birthday, he
would be enrolled in a full-time academic program in Connecticut and
would again maintain a primary residence with the plaintiff. Held:
1. The trial court’s physical custody orders did not modify the physical
custody of the child prospectively and were not improper: the substance
of the trial court’s orders reflected that it intended the parties to maintain
joint physical custody of the child at all times; moreover, the trial court’s
order requiring changes to the child’s residence did not alter the nature
of the joint physical custody award and, accordingly, did not require
future modifications to the child’s physical custody.
2. The plaintiff could not prevail on her claim that, to the extent the trial
court awarded the parties joint physical custody, it lacked the statutory
authority to do so and deprived the plaintiff of her due process rights:
the trial court had the authority to award the parties joint physical
custody notwithstanding that both parties sought only sole physical
custody, as the applicable statute (§ 46b-56a) restricted the court’s
authority to award joint legal custody, not joint physical custody; more-
over, the plaintiff failed to demonstrate that she lacked fair notice and
a reasonable opportunity to be heard with respect to the trial court’s
award of joint physical custody, as she had requested broad relief and
had the opportunity at trial to testify, to elicit testimony from a family
relations counselor, to cross-examine the defendant, and to offer exhibits
into evidence; accordingly, the trial court did not infringe on her due
process rights.
3. The trial court did not abuse its discretion in entering the physical custody
orders: the findings on which the orders were predicated, including the
trial court’s determination that the plaintiff was unlikely to foster a
relationship between the defendant and the child without court orders,
were based on substantial evidence; moreover, the physical custody
orders did not hinder the plaintiff’s ability to exercise the decision-
making authority granted to her with respect to the legal custody orders;
furthermore, the trial court determined that the physical custody orders
it constructed were in the child’s best interest in light of the child’s
young age and the large geographical distance between the parties’
residences.
Argued May 20—officially released August 31, 2021
Procedural History
Action for the dissolution of a marriage, and for other
relief, brought to the Superior Court in the judicial dis-
trict of New Haven and tried to the court, K. Murphy, J.;
judgment dissolving the marriage and granting certain
other relief, from which the plaintiff appealed to this
court. Affirmed.
Sarah E. Murray, for the appellant (plaintiff).
Campbell D. Barrett, with whom was Johanna S.
Katz, for the appellee (defendant).
Opinion
MOLL, J. In this dissolution matter, the plaintiff, Car-
olyn Coleman, appeals from the judgment of dissolution
rendered by the trial court insofar as the court entered
orders regarding the physical custody of the parties’
minor child. On appeal, the plaintiff claims that (1) the
court improperly modified the child’s physical custody
prospectively, (2) to the extent that it awarded the par-
ties joint physical custody, the court (a) acted beyond
its statutory authority and (b) violated the plaintiff’s
due process rights when neither she nor the defendant,
Martin Bembridge, requested joint physical custody,
and (3) the court abused its discretion in entering physi-
cal custody orders that were (a) predicated on inconsis-
tent factual findings, (b) incompatible with the court’s
legal custody orders, and (c) not in the child’s best
interests. We disagree and, accordingly, affirm the judg-
ment of the trial court.
The following facts, as found by the trial court, and
procedural history are relevant to our resolution of
this appeal. ‘‘The parties met through the social media
website Twitter in April, 2015. After speaking on the
phone, the couple eventually physically met in May,
2015. The plaintiff was living in Meriden . . . and the
defendant lived in Saskatchewan, Canada. Shortly
thereafter, in July, 2015, the defendant proposed mar-
riage and the plaintiff accepted.
‘‘The parties were married in Portland . . . on Octo-
ber 8, 2016. Following the date of their marriage, the
two lived apart with the plaintiff continuing to live in
Connecticut and the defendant continuing to live in
Saskatchewan. They physically met on a few occasions
before the plaintiff relocated on July 28, 2017, to Sas-
katchewan to live with the defendant. The parties’ child
was conceived approximately the first or second day
after [the plaintiff] arrived in Canada. By the end of
August, 2017, the plaintiff discovered that she was preg-
nant. In the middle of September, [2017], the plaintiff
informed the defendant that she did not find him attrac-
tive, did not love him, and wanted to end the marriage.
By October 18, 2017, the plaintiff moved back to Con-
necticut and has resided in Meriden . . . in her father’s
house since that time. The parties’ son . . . was born
[in April, 2018].’’
In February, 2018, the plaintiff commenced the pres-
ent dissolution action. On May 8, 2018, following the
birth of the parties’ son, the plaintiff filed an amended
complaint in which she requested sole legal custody
and that the child’s primary residence remain with her.
Additionally, in the amended complaint, the plaintiff
requested as relief ‘‘anything else the court deems fair.’’
The matter was tried to the trial court, K. Murphy,
J., over the course of three days in January, 2019. Prior
to trial, each party submitted proposed orders. In her
proposed orders, the plaintiff requested in relevant part
(1) sole custody and (2) ‘‘[a]ll such other and further
relief both in law and in equity to which the court deems
appropriate.’’ In his proposed orders, the defendant
requested in relevant part joint legal custody and that
the child’s primary residence be with him, with the
plaintiff enjoying ‘‘reasonable and liberal parenting
time . . . .’’
On February 15, 2019, the court issued a memoran-
dum of decision dissolving the parties’ marriage. As to
custody, the court stated that ‘‘[w]eighing all of the
evidence and balancing the interests of the parties has
been difficult in this situation. The court’s primary
objective is the best interest of the parties’ son . . . .’’
The court continued in relevant part: ‘‘The court is
awarding joint custody to both parties. Primary resi-
dence of the child initially shall be with the [plaintiff].
Throughout the child’s life the parties are directed to
discuss and work together in order to obtain agreement
in regard to all major decisions, which includes deci-
sions relating to health care and education. If after
discussion and providing full information regarding the
decision at issue the parties have not reached agree-
ment, [the plaintiff] will have final decision-making
authority. All other decisions of a ‘nonmajor’ nature
shall be made by the parent with whom the child is
residing at the time. If that decision involves an emer-
gency health decision involving the child, the deciding
parent should inform the other parent immediately but
in the very most within twenty-four hours of being
aware of the emergency.’’
With respect to the child’s physical residence, the
court ordered as follows. Prior to the child’s second
birthday, his primary physical residence will be with
the plaintiff, subject to the defendant having one week
of unsupervised visitation each month in Connecticut.
On the child’s second birthday, the child’s physical resi-
dence will begin to alternate between the parties. This
arrangement will continue either until the start of the
academic school year following the child’s fifth birthday
or, if he is not ready to enroll in a full-time academic
program at that time, until the start of the academic
school year following the child’s sixth birthday. The
parties are to agree in writing on a schedule that ‘‘will
approximately allow the equal custody of the child by
both parties for the three to four plus years’’ leading
up to the child’s enrollment in school, but, if the parties
cannot reach an agreement, then the parties are to abide
by a default schedule created by the court pursuant to
which, beginning on May 1, 2020, the child’s physical
residence alternates between the parties approximately
every two months. On the child’s enrollment in school
following either his fifth or sixth birthday, his primary
physical residence will revert back to the plaintiff, with
the defendant having one week of unsupervised visita-
tion each month; during such visitation the defendant
will be responsible for ensuring that the child attends
school. Additionally, ‘‘[f]ollowing the commencement
of full-time school when the child has a week or more
off during the school year, [the defendant] will be enti-
tled to one week of uninterrupted parenting time during
the school year and one week of uninterrupted parent-
ing time during the Christmas break with the child at
whatever location is convenient for [the defendant] and
the child. During the summer break, the [defendant] is
entitled to approximately two-thirds of that time when
the child will physically reside with the [defendant].
[The plaintiff] will be entitled to approximately one-
third of that summer break time.’’ The court further
ordered that each party will be allowed two thirty
minute virtual visits per week when physically away
from the child.1 This appeal followed.2 Additional facts
and procedural history will be set forth as necessary.
Before turning to the plaintiff’s claims, ‘‘we set forth
our standard of review. [T]he standard of review in
family matters is well settled. An appellate court will
not disturb a trial court’s orders in domestic relations
cases unless the court has abused its discretion or it
is found that it could not reasonably conclude as it did,
based on the facts presented. . . . In determining
whether a trial court has abused its broad discretion in
domestic relations matters, we allow every reasonable
presumption in favor of the correctness of its action.
. . . Appellate review of a trial court’s findings of fact
is governed by the clearly erroneous standard of review.
. . . 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.
. . . Our deferential standard of review, however, does
not extend to the court’s interpretation of and applica-
tion of the law to the facts. It is axiomatic that a matter
of law is entitled to plenary review on appeal.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) Princess Q. H. v. Robert H., 150 Conn. App.
105, 111–12, 89 A.3d 896 (2014).
I
The plaintiff first claims that the trial court’s physical
custody orders3 are improper because they modify the
physical custody of the child prospectively. Specifically,
the plaintiff contends that the physical custody orders
‘‘provide for automatic wholesale changes based solely
upon the child’s age’’ without real time determinations
of the child’s best interests. The defendant argues that
the physical custody orders do not result in prospective
modifications of custody but, rather, create a permissi-
ble ‘‘tiered custodial plan’’ based on the present best
interests of the child. We agree with the defendant.
As we previously set forth in this opinion, ‘‘[o]ur defer-
ential standard of review [in domestic relations cases]
. . . does not extend to the court’s interpretation of
and application of the law to the facts. It is axiomatic
that a matter of law is entitled to plenary review on
appeal. . . . Moreover, [t]he construction of [an order
or] judgment is a question of law for the court . . .
[and] our review . . . is plenary. As a general rule,
[orders and] judgments are to be construed in the same
fashion as other written instruments. . . . The deter-
minative factor is the intention of the court as gathered
from all parts of the [order or] judgment.’’ (Citation
omitted; internal quotation marks omitted.) Marshall v.
Marshall, 200 Conn. App. 688, 717, 241 A.3d 189 (2020).
Our precedent instructs that a trial court may not
prospectively modify a custody order because, when
contemplating whether to modify custody, a court must
consider the real time best interests of the child. In
Guss v. Guss, 1 Conn. App. 356, 472 A.2d 790 (1984), in
dissolving the parties’ marriage, the trial court awarded
sole custody of the parties’ two minor children to the
defendant, subject to the plaintiff’s rights to visitation.
Id., 357–58. Thereafter, the parties executed a postjudg-
ment stipulation agreeing to modify the terms of the
dissolution judgment, inter alia, to provide that it was
in the best interests of the children for the plaintiff to
be automatically awarded sole custody in the event that
the defendant removed the children from Connecticut.
Id., 358. The court approved the stipulation and modi-
fied the dissolution judgment in accordance therewith.
Id. Subsequently, the defendant moved to California
with the children. Id. After being notified by the plaintiff
of the defendant’s relocation, the court, without holding
a hearing to determine the children’s best interests,
issued an order transferring sole custody to the plaintiff.
Id., 358–59.
On appeal, this court set aside the custody modifica-
tion order. Id., 360–61, 363. This court observed that
‘‘[u]nder [General Statutes § 46b-56 (b)], it is clear that
the [trial] court must resolve the issue of custody in
the best interests of the child. . . . When, as in this
case, the court is called upon to apply an agreement
deciding custody, the dispositive consideration still
remains the child’s best interests.’’ (Citation omitted;
footnote omitted.) Id., 360. This court concluded that
‘‘[t]here was no determination, other than at the time
the judgment of dissolution was modified in accordance
with the stipulation, that enforcement of the agreement
would serve the best interests of the children. A child’s
best interests, however, cannot be prospectively deter-
mined. Before transferring custody to the plaintiff, the
[trial] court was bound to consider the child[ren’s] pres-
ent best interests and not what would have been in
[their] best interests at some previous time.’’ (Emphasis
in original; internal quotation marks omitted.) Id., 360–
61.
In Emerick v. Emerick, 5 Conn. App. 649, 502 A.2d
933 (1985), cert. dismissed, 200 Conn. 804, 510 A.2d
192 (1986), the trial court, in rendering a dissolution
judgment, ordered that the plaintiff would have ‘‘interim
custody’’ of the parties’ minor child and that, on the
satisfaction of certain conditions, the parties would be
awarded joint custody approximately one and one-half
years after the dissolution judgment. Id., 652. In addi-
tion, the court ordered that ‘‘ ‘[i]n the event of . . . a
[permanent] removal [of the child from Connecticut by
either party], custody, without further order . . . shall
vest immediately and solely in the remaining parent.’ ’’
Id., 652–53, 653 n.3. On appeal from the dissolution
judgment, this court, citing Guss, concluded that the
trial court’s order providing for the automatic shifting of
custody was improper, reasoning that ‘‘[t]he paramount
concern in awarding custody is the best interest of the
child. . . . A child’s best interests, however, cannot be
prospectively determined. . . . The judicial hands of
a future court cannot be bound by an earlier court’s
determination that the best interests of a child as to
custody remain constant. A transfer of custody cannot
be automatically accomplished upon the happening of
a future event, in this case, removal of the child from
Connecticut.’’ (Citations omitted; internal quotation
marks omitted.) Id., 659.
The plaintiff contends that the court violated the prin-
ciples enunciated in Guss and Emerick4 by ordering
that physical custody of the parties’ child automatically
changes, without real time determinations of the child’s
best interests, (1) following the child’s second birthday,
when primary residence with the plaintiff changes to
an alternating residences arrangement, and (2) follow-
ing the child’s fifth or sixth birthday, depending on his
capability to enter a full-time academic program, when
the alternating residences arrangement returns to pri-
mary residence with the plaintiff. The plaintiff’s reliance
on these cases is misplaced, however, because we reject
the plaintiff’s foundational premise that the court’s
physical custody orders result in future modifications of
the child’s physical custody. Instead, under the court’s
orders, no parent has sole physical custody of the child;
rather, the child benefits from parenting by each of
his parents, under the circumstances of this case, by
alternating between his parents’ residences.
In its decision, the court awarded the parties ‘‘joint
custody.’’ General Statutes § 46b-56a (a) defines ‘‘ ‘joint
custody’ ’’ as ‘‘an order awarding legal custody of the
minor child to both parents, providing for joint decision-
making by the parents and providing that physical cus-
tody shall be shared by the parents in such a way as
to assure the child of continuing contact with both
parents. . . .’’ This court has interpreted the statutory
definition of ‘‘joint custody’’ to encompass ‘‘joint legal
custody, meaning joint decision making, and joint physi-
cal custody, meaning a sharing of continued contact
with both parents.’’ Emerick v. Emerick, supra, 5 Conn.
App. 656. Thus, on its face, the court’s award of ‘‘joint
custody’’ indicates an award of both joint legal custody
and joint physical custody.
We recognize that, alone, the court’s use of the phrase
‘‘joint custody’’ does not demonstrate per se that the
parties were awarded joint physical custody. See Blake
v. Blake, 207 Conn. 217, 221, 223, 541 A.2d 1201 (1988)
(in light of other provisions ordered by trial court
regarding custody, including that children would
‘‘ ‘reside primarily’ ’’ with plaintiff and that plaintiff was
permitted to move children to California to live, court’s
use of phrase ‘‘joint custody’’ in its decision implied
that court awarded parties joint legal custody but not
joint physical custody). The substance of the court’s
physical custody orders, however, reflects that the
court intended the parties to maintain joint physical
custody of their child at all relevant times. That the
court ordered the child’s residential custody to change
from primary residence with the plaintiff to an alternat-
ing residences arrangement and then back to primary
residence with the plaintiff does not alter the nature of
the joint physical custody award. ‘‘It is common for a
joint-custody order to provide that the child will reside
‘primarily’ with one of the parents. It is also common
to devise a schedule alternating the days, weeks,
months or other blocks of time which the child will
spend with each parent.’’ A. Rutkin et al., 8 Connecticut
Practice Series: Family Law and Practice with Forms
(3d Ed. 2010) § 42:9, pp. 519–20. Put simply, we interpret
the physical custody orders as assigning the parties
joint physical custody—that is, ‘‘a sharing of continued
contact with both parents’’; Emerick v. Emerick, supra,
5 Conn. App. 656;—throughout the course of the child’s
minority, with a unique, fluid residential arrangement
devised to promote the child’s best interests and
intended, as the court explained, ‘‘to deal with a difficult
situation [in which] the parents of a young child live
in two very different and geographically diverse places
. . . .’’5 Under the physical custody orders, at no point is
the court’s order of joint physical custody ever changed
into sole physical custody by one parent. Cf. Emerick
v. Emerick, supra, 5 Conn. App. 652, 659 (improper
prospective modification changing custody); Guss v.
Guss, supra, 1 Conn. App. 358, 360–61 (same). Rather,
the court determined that it was in the best interests
of the child for his residential custody to alternate
between his parents.
In sum, we conclude that the court’s physical custody
orders, taken together, carry out an award of joint physi-
cal custody. The orders do not bring about future modi-
fications of the child’s physical custody, and, therefore,
we reject the plaintiff’s claim that the court improperly
modified the child’s physical custody prospectively.
II
The plaintiff next claims that, insofar as the court
awarded the parties joint physical custody, the court
did so (1) without statutory authority and (2) without
providing the plaintiff with fair notice and an opportu-
nity to be heard, thereby depriving her of due process.
We address each claim in turn.
A
The plaintiff asserts that the court lacked statutory
authority to award the parties joint physical custody.
Specifically, the plaintiff contends that, pursuant to
§ 46b-56a, the court had the authority to award the par-
ties joint physical custody only if they had agreed to
joint physical custody or if one of the parties had
requested it. The plaintiff asserts that she and the defen-
dant both requested sole physical custody, and, thus,
the court acted beyond its statutory authority in award-
ing them joint physical custody. The defendant argues
that the plaintiff conflates joint physical custody with
joint legal custody and that there is no legal authority
mandating an agreement by the parties or a request by
one of the parties as a prerequisite to a joint physical
custody award. We agree with the defendant.
Resolution of the plaintiff’s claim requires us to emp-
loy the relevant principles of statutory construction.
‘‘Issues of statutory construction raise questions of law,
over which we exercise plenary review. . . . The pro-
cess of statutory interpretation involves the determina-
tion of the meaning of the statutory language as applied
to the facts of the case, including the question of
whether the language does so apply. . . . When con-
struing 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 . . . . 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, extratex-
tual evidence of the meaning of the statute shall not
be considered. . . . The test to determine ambiguity is
whether the statute, when read in context, is susceptible
to more than one reasonable interpretation.’’ (Internal
quotation marks omitted.) O’Toole v. Hernandez, 163
Conn. App. 565, 571–72, 137 A.3d 52, cert. denied, 320
Conn. 934, 134 A.3d 623 (2016).
Section 46b-56 (a) provides in relevant part: ‘‘In any
controversy before the Superior Court as to the custody
or care of minor children, and at any time after the
return day of any complaint under section 46b-45, the
court may make or modify any proper order regarding
the custody, care, education, visitation and support of
the children if it has jurisdiction under the provisions
of chapter 815p. Subject to the provisions of section
46b-56a, the court may assign parental responsibility
for raising the child to the parents jointly, or may award
custody to either parent or to a third party, according
to its best judgment upon the facts of the case and
subject to such conditions and limitations as it deems
equitable. . . .’’
Section 46b-56a provides in relevant part: ‘‘(a) For
the purposes of this section, ‘joint custody’ means an
order awarding legal custody of the minor child to both
parents, providing for joint decision-making by the par-
ents and providing that physical custody shall be shared
by the parents in such a way as to assure the child of
continuing contact with both parents. The court may
award joint legal custody without awarding joint physi-
cal custody where the parents have agreed to merely
joint legal custody.
‘‘(b) There shall be a presumption, affecting the bur-
den of proof, that joint custody is in the best interests
of a minor child where the parents have agreed to an
award of joint custody or so agree in open court at a
hearing for the purpose of determining the custody of
the minor child or children of the marriage. . . .
‘‘(c) If only one parent seeks an order of joint custody
upon a motion duly made, the court may order both
parties to submit to conciliation at their own expense
with the costs of such conciliation to be borne by the
parties as the court directs according to each party’s
ability to pay. . . .’’
This court previously has addressed the question of
whether a trial court has the statutory authority to
award joint custody without the parties agreeing to joint
custody or one of the parties requesting the same. In
Emerick v. Emerick, supra, 5 Conn. App. 649, on appeal
from a dissolution judgment, the plaintiff challenged
the trial court’s prospective joint custody award, inter
alia, on the basis that neither party had agreed to or
sought joint custody. Id., 653. This court interpreted
‘‘joint custody,’’ as set forth in § 46b-56a (a), ‘‘as includ-
ing joint legal custody, meaning joint decision making,
and joint physical custody, meaning a sharing of contin-
ued contact with both parents. Further, joint physical
custody is severable from joint legal custody.’’ Id., 656–
57. This court then construed § 46b-56a to provide that
‘‘[a] court may award joint legal custody, with or with-
out joint physical custody, if the parties agree to joint
custody or if one party seeks joint custody.’’ Id., 657.
This court observed that (1) § 46b-56a (b) establishes
a presumption that joint custody is in the child’s best
interests if the parties have agreed to joint custody, and
the statute does not provide that joint custody may be
awarded in the absence of an agreement, and (2) § 46b-
56a (c) permits a trial court to order parties to submit
to conciliation when one party moves for joint custody,
and § 46b-56a (b) authorizes the court to award joint
custody once the recalcitrant party, following concilia-
tion, agrees to joint custody. Id., 657–58. This court
reasoned that § 46b-56a, ‘‘read as a whole, reflects a
legislative belief that joint custody cannot work unless
both parties are united in its purposes. Therefore, joint
custody cannot be an alternative to a sole custody
award where neither seeks it and where no opportunity
is given to the recalcitrant parent to embrace the con-
cept. Further, it is significant that the statute contains
no additional subsection providing for a procedure in
the event neither parent seeks joint custody.’’ Id., 658.
As neither party had agreed to joint custody or moved
for conciliation after a motion had been made seeking
joint custody, this court determined that the trial court’s
prospective joint custody award constituted error. Id.;
see also Cabrera v. Cabrera, 23 Conn. App. 330, 346–47,
580 A.2d 1227 (citing Emerick in concluding that trial
court properly determined that it could not grant joint
custody without agreement of parties to joint custody
or motion for conciliation following motion for joint
custody by one party), cert. denied, 216 Conn. 828, 582
A.2d 205 (1990).
In a subsequent decision, this court construed Emer-
ick as providing that a trial court is authorized to award
joint custody when one of the parties has requested joint
custody in the pleadings, provided that joint custody
is in the best interests of the child. See Giordano v.
Giordano, 9 Conn. App. 641, 645, 520 A.2d 1290 (1987)
(citing Emerick in determining that ‘‘[w]hen one of the
parties has sought joint custody in the pleadings, it is
not error for the court, in the exercise of its discretion,
to award joint custody’’); see also Keenan v. Casillo,
149 Conn. App. 642, 647–48, 89 A.3d 912 (concluding
that trial court had statutory authority to grant joint
custody when plaintiff’s complaint requested joint cus-
tody), cert. denied, 312 Conn. 910, 93 A.3d 594 (2014);
Tabackman v. Tabackman, 25 Conn. App. 366, 368–69,
593 A.2d 526 (1991) (concluding that trial court improp-
erly awarded joint custody without pleading requesting
joint custody, agreement of parties to joint custody,
or motion for conciliation following motion for joint
custody by one party).
Relying chiefly on Emerick, the plaintiff maintains
that the court did not have the statutory authority to
award the parties joint physical custody when both
parties sought only sole physical custody. This con-
tention is unavailing. In Emerick, this court addressed
a trial court’s statutory authority under § 46b-56a to
award joint legal custody, whether accompanied by
joint or sole physical custody. Emerick v. Emerick,
supra, 5 Conn. App. 656–57. Neither Emerick nor any
other appellate authority of which we are aware inter-
prets § 46b-56a to impose restrictions on a court’s
authority to award joint physical custody.
Indeed, a plain reading of § 46b-56a (a) reveals that
the legislature sought to define a court’s authority to
award joint legal custody, not joint physical custody.
The final sentence of § 46b-56a (a) provides that ‘‘[t]he
court may award joint legal custody without awarding
joint physical custody where the parents have agreed to
merely joint legal custody.’’ There is no similar language
circumscribing a court’s ability to award joint physical
custody. As this court observed in Emerick, ‘‘joint physi-
cal custody is severable from joint legal custody.’’
Emerick v. Emerick, supra, 5 Conn. App. 656–57.
In sum, we conclude that, under § 46b-56a, the court
had the authority to award the parties joint physical
custody notwithstanding that both parties sought only
sole physical custody. Thus, the plaintiff’s claim fails.
B
The plaintiff also asserts that the court, in awarding
the parties joint physical custody, violated her rights
to due process.6 More particularly, the plaintiff asserts
that, because neither party sought joint physical cus-
tody, she did not have fair notice that the court was
contemplating a joint physical custody award or a rea-
sonable opportunity to be heard regarding the propriety
of a joint physical custody award. We are not persuaded.
This court previously has stated that, ‘‘although a
court has broad discretionary authority when determin-
ing custody orders, it must exercise that authority in a
manner consistent with the due process requirements
of fair notice and reasonable opportunity to be heard.’’
(Internal quotation marks omitted.) Kidwell v. Calde-
ron, 98 Conn. App. 754, 758, 911 A.2d 342 (2006).
‘‘Whether a party was deprived of his [or her] due pro-
cess rights is a question of law to which appellate courts
grant plenary review.’’ (Internal quotation marks omit-
ted.) Petrucelli v. Meriden, 197 Conn. App. 1, 14, 231
A.3d 231, cert. denied, 335 Conn. 923, 233 A.3d 1091
(2020).
Our resolution of the plaintiff’s due process claim is
guided by this court’s decision in Kidwell v. Calderon,
supra, 98 Conn. App. 754. In Kidwell, the plaintiff filed
a custody complaint seeking joint legal custody of the
parties’ minor child, liberal and flexible visitation rights,
and ‘‘ ‘[a]ny further orders that the [c]ourt and law or
equity deems necessary.’ ’’ Id., 755. Following a custody
hearing, which the trial court continued twice at the
defendant’s request, the court awarded the plaintiff sole
custody. Id., 756–57.
On appeal from the custody judgment in Kidwell, the
defendant asserted that the court improperly awarded
the plaintiff sole custody when the plaintiff did not
expressly request sole custody in his custody complaint
or file a motion seeking sole custody, thereby depriving
the defendant of due process. Id., 758. This court
rejected that claim. Id., 758–59. First, this court noted
that the trial court held a custody hearing, for which
the court gave the defendant adequate time to prepare,
during which the defendant testified and had the oppor-
tunity to cross-examine witnesses, including a family
relations counselor who recommended that sole cus-
tody be awarded to the plaintiff. Id. In a footnote, this
court observed that the defendant became aware of the
family relation counselor’s custody recommendation
prior to the custody hearing and, thus, was on notice
that the trial court ‘‘would consider the possibility of
following the . . . recommendation to award sole cus-
tody of the child to the plaintiff.’’ Id., 758–59 n.2. Addi-
tionally, observing that the plaintiff’s custody complaint
requested ‘‘joint legal custody and any further orders
that the court deemed necessary,’’ this court stated
that ‘‘[w]hen looking at the relief sought in the custody
complaint alone, it is difficult to understand the defen-
dant’s contention that the court was limited, if at all,
to making an award of joint legal custody. It is here
that we must reiterate the principle that when making
or modifying custody orders, the court’s ultimate con-
cern is determining the best interest of the child.’’ Id.,
759. This court proceeded to conclude that, in light of
the evidence before it, the trial court properly consid-
ered the child’s best interest in awarding sole custody
to the plaintiff. Id.
Applying the rationale of Kidwell to the present case,
we conclude that the court did not infringe on the plain-
tiff’s due process rights in awarding the parties joint
physical custody. Similar to the custody complaint at
issue in Kidwell, the plaintiff’s amended complaint
requested not only that the primary residence of the
parties’ child be with the plaintiff but also ‘‘anything
else the court deems fair.’’ (Emphasis added.) In her
pretrial proposed orders, the plaintiff requested not
only sole custody but also ‘‘[a]ll such other and further
relief both in law and in equity to which the court
deems appropriate.’’ (Emphasis added.) At trial, where
custody was the primary contested issue,7 the plaintiff
testified, elicited testimony from a family relations
counselor, cross-examined the defendant, and offered
exhibits into evidence. On the basis of the evidence
before it, the court concluded that it was in the best
interests of the parties’ child to award the parties joint
physical custody.8 Under these circumstances, particu-
larly where the plaintiff herself requested broad relief
from the court, we are not convinced that the plaintiff
lacked fair notice and a reasonable opportunity to be
heard as to the court’s award of joint physical custody.9
Thus, we reject the plaintiff’s due process claim.
III
The plaintiff’s final claim is that the trial court abused
its discretion in entering the physical custody orders
because the orders were (1) based on inconsistent fac-
tual findings, (2) in conflict with the court’s legal cus-
tody orders, and (3) not in the child’s best interests.
We disagree.
‘‘[Section] 46b-56 provides the legal standard for
determining child custody issues. The statute requires
that the court’s decision serve the child’s best interests.’’
Altraide v. Altraide, 153 Conn. App. 327, 338, 101 A.3d
317, cert. denied, 315 Conn. 905, 104 A.3d 759 (2014).
‘‘The controlling principle in a determination respecting
custody is that the court shall be guided by the best
interests of the child.’’ (Internal quotation marks omit-
ted.) D’Amato v. Hart-D’Amato, 169 Conn. App. 669,
683, 152 A.3d 546 (2016). Our Supreme Court ‘‘has con-
sistently held in matters involving child custody . . .
that while the rights, wishes and desires of the parents
must be considered it is nevertheless the ultimate wel-
fare of the child [that] must control the decision of the
court. . . . In making this determination, the trial court
is vested with broad discretion which can . . . be inter-
fered with [only] upon a clear showing that that discre-
tion was abused. . . . Thus, a trial court’s decision
regarding child custody must be allowed to stand if it
is reasonably supported by the relevant subordinate
facts found and does not violate law, logic or reason.
. . . Under § 46b-56 (c),10 the court, in determining cus-
tody, must consider the best interests of the child and,
in doing so, may consider, among other factors, one or
more of the sixteen factors enumerated in the provision.
‘‘[T]he authority to exercise the judicial discretion
[authorized by § 46b-56] . . . is not conferred [on] this
court, but [on] the trial court, and . . . we are not
privileged to usurp that authority or to substitute our-
selves for the trial court. . . . A mere difference of
opinion or judgment cannot justify our intervention.
Nothing short of a conviction that the action of the trial
court is one [that] discloses a clear abuse of discretion
can warrant our interference.’’ (Citations omitted; foot-
note added; internal quotation marks omitted.) Zhou v.
Zhang, 334 Conn. 601, 632–33, 223 A.3d 775 (2020).
In entering its custody orders, the court made the
following relevant factual findings. ‘‘The plaintiff has
done a good job of caring for [the child] since his birth
. . . . Doctors’ information reflects the good health of
the child. With limited information, Family Relations
found that both parties were good and capable parents.
The Family Relations’ representative indicated that the
role of the main custodial parent as gatekeeper to foster
the relationship between noncustodial parent and child
was critically important. In regard to this issue, Family
Relations was not aware that the plaintiff referred to
the defendant as ‘pure evil,’ ‘not good for [the child’s]
soul,’ and a ‘horrible human being.’
‘‘Family Relations recommended that the child physi-
cally reside with the plaintiff. In doing so, Family Rela-
tions did not have access to some of the evidence, which
reflects the court’s greater substance abuse concerns11
although the Family Relations’ representative did speak
to the plaintiff’s brother’s wife who said that she had
observed the plaintiff drinking and had concerns about
the plaintiff’s substance abuse. The Family Relations’
representative discounted this information because of
her concerns that the plaintiff’s brother’s wife was
biased against the plaintiff.
‘‘The plaintiff’s concerns with the defendant as a
father were that the defendant had unaddressed mental
health concerns, [had] a history of abusing alcohol,
worked frequently, and had a busy social life. [The
plaintiff] also complains that the defendant did not
show any interest in the child during the gestational
period. The court finds [that] the defendant’s explana-
tion for his lack of contact with the plaintiff during this
period [is] reasonable, namely, that the plaintiff refused
to allow him to contact her during this period and he
was concerned that he not upset the plaintiff. It is clear
from the evidence that in January, 2018, the plaintiff
insisted that the defendant not contact her at all. In
regard to the plaintiff’s other concerns, there was no
evidence that the defendant had unaddressed mental
health issues. He admits to a distant history of abusing
alcohol but indicates that he has not consumed alcohol
for over twenty years. There is no evidence to the con-
trary. The court concludes that the defendant does not
have any significant substance abuse issues. It appears
that he does have work responsibilities, which fre-
quently interrupted communications with the plaintiff.
Finally, the court makes no findings in regard to his
social life, there is no evidence regarding a ‘busy social
life.’ Ultimately, there was no evidence to support any
of the plaintiff’s stated concerns. The information
obtained by Family Relations and the credible evidence
in this case presents the defendant as an able father.
‘‘On the other hand, the court did have concerns about
the plaintiff’s substance abuse issues based upon the
credible evidence in this case. The court has tried to
examine all of the evidence to determine what would
be in the child’s best interest.
‘‘One of the factors that the court considers in decid-
ing the appropriate custodial arrangement for the child
is how likely the residential parent is to foster the rela-
tionship between the child and the nonresidential par-
ent. The court finds that, short of specific court orders,
it is unlikely that [the plaintiff] will foster the relation-
ship between the child and [the defendant]. . . . This
conclusion is based upon substantial evidence in the
proceeding. For example, [the plaintiff] viewed [the
defendant] as ‘pure evil’ and ‘a horrible human being’
and as someone that she did not want to have contact
with her son. She ended communication between her-
self and [the defendant] approximate[ly] three months
prior to the birth of their child. She did not consult
with [the defendant] in naming the child and did not
give the child [the defendant’s] last name. Her attitude
toward the [defendant] in her testimony and in her text
communications [that were admitted into evidence]
relays a clear hostility toward the [defendant]. To her
credit, she has communicated with [the defendant]
since the birth of the child through the Internet and
phone regarding the child and there has been regular
video contact. On the other hand, [the defendant] has
visited with the child multiple days on three separate
periods of time from the child’s birth in April, 2018,
through the end of December, 2018, and [the plaintiff]
has never allowed [the defendant] to have more than
one hour [of] visitation during any daily visits. During
the initial visit, [the plaintiff] denied [the defendant]
visitation until the court was involved.’’ (Footnote
added.)
Additionally, the court found that the defendant ‘‘has
an adequate housing and ‘day care’ system in place for
his son when his son lives with him in Saskatchewan.
He is capable of caring for his child. He participated
significantly and substantially in the raising of other
children in the past.12 He indicated that his sixty-eight
year old mother, who is currently watching a three year
old and a seven year old, is also available when [the
defendant] has work responsibilities [that] would pre-
vent him from watching his son.’’ (Footnote added.)
We first address the plaintiff’s contention that the
physical custody orders were predicated on inconsis-
tent findings. In particular, the plaintiff contends that
the court’s finding that, without court orders, she was
unlikely to foster a relationship between the defendant
and the child is inconsistent with its finding that the
plaintiff facilitated contact between the defendant and
the child following the child’s birth. We are not per-
suaded. The court’s finding regarding the plaintiff’s
inability to be an adequate gatekeeper promoting a rela-
tionship between the defendant and the child was
grounded in ‘‘substantial evidence’’ demonstrating that
(1) the plaintiff harbored ‘‘clear hostility’’ toward the
defendant, whom she described as ‘‘ ‘pure evil’ ’’ and
‘‘ ‘a horrible human being,’ ’’ (2) the plaintiff terminated
communication with the defendant shortly before the
child’s birth and limited the defendant’s in person inter-
actions with the child, and (3) the plaintiff did not con-
sult with the defendant when naming the child. We
perceive no inconsistency in the court making the rea-
sonable determination that, although the plaintiff had
communicated with the defendant about the child fol-
lowing his birth and maintained regular video contact,
the totality of the evidence established that, without
court intervention, the plaintiff was unlikely to foster
a relationship between the defendant and the child.13
We next turn to the plaintiff’s contention that, by
ordering that the child will reside with the defendant
regularly during the time when the child’s residence
alternates between the parties, the court made it
impractical for the plaintiff to exercise the final deci-
sion-making authority granted to her vis-à-vis the
court’s legal custody orders. We are not persuaded.
The court’s legal custody orders require the parties ‘‘to
discuss and work together’’ in making all major deci-
sions concerning the child, with the plaintiff having
final decision-making authority if no agreement can be
reached. We are unconvinced that the physical custody
orders hinder the plaintiff’s ability to communicate with
the defendant in relation to those major decisions and,
if necessary, to assert her final decision-making author-
ity.14
Further, we address the plaintiff’s contention that the
physical custody orders were not in the child’s best
interests. The plaintiff posits that the orders create an
unstable environment for the child, inhibit the develop-
ment of consistency with respect to, inter alia, the
child’s medical care and social activities, and, during
the years when the child’s residence alternates between
the parties, wholly deprive the child of physical interac-
tion with the nonresidential parent for months at a time.
The plaintiff further maintains that she has a greater
ability to care for the child than the defendant.
We iterate here that the trial court is conferred with
the authority to exercise judicial discretion under § 46b-
56, and ‘‘[n]othing short of a conviction that the action
of the trial court is one [that] discloses a clear abuse
of discretion can warrant our interference.’’ (Internal
quotation marks omitted.) Zhou v. Zhang, supra, 334
Conn. 633. We have no such conviction in this case. As
the court stated, its custody orders were fashioned with
the best interests of the child in mind and to address
a ‘‘difficult situation [in which] the parents of a young
child live in two very different and geographically
diverse places . . . .’’ The court found that the defen-
dant was an ‘‘able father,’’ that the plaintiff’s concerns
with the defendant’s ability to parent were not sup-
ported by the evidence, and that the defendant had ‘‘an
adequate housing and ‘day care’ system in place’’ for
the child. The court also found that the plaintiff had
‘‘done a good job of caring’’ for the child, although it
expressed concern regarding the plaintiff’s substance
abuse issues and did not believe that she would function
as an adequate gatekeeper fostering a relationship
between the defendant and the child. Weighing all of
the evidence before it, the court determined that the
physical custody orders it constructed were in the
child’s best interests.15 In light of the record before it
and the unique circumstances presented by this case,
we cannot conclude that the physical custody orders
entered by the court constituted an abuse of discretion.
Finally, we note that ‘‘§ 46b-56 provides trial courts
with the statutory authority to modify an order of cus-
tody or visitation. When making that determination,
however, a court must satisfy two requirements. First,
modification of a custody award [must] be based upon
either a material change of circumstances which alters
the court’s finding of the best interests of the child . . .
or a finding that the custody order sought to be modified
was not based upon the best interests of the child. . . .
Second, the court shall consider the best interests of
the child, and in doing so may consider several factors.
General Statutes § 46b-56 (c).’’ (Internal quotation
marks omitted.) Peters v. Senman, 193 Conn. App. 766,
778, 220 A.3d 114 (2019), cert. denied, 334 Conn. 924,
223 A.3d 380 (2020). ‘‘Section 46b-56 permits a court to
modify child custody and visitation orders at any time.’’
Perry v. Perry, 130 Conn. App. 720, 724, 24 A.3d 1269
(2011). Thus, in the event that either party maintains
that a material change of circumstances has occurred,
such that a modification of the court’s custody orders
would serve the best interests of the child, either party
has the ability to move to modify the court’s custody
orders.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The court entered other orders in dissolving the parties’ marriage, none
of which is at issue on appeal.
2
On April 15, 2019, pursuant to Practice Book § 61-12, the plaintiff filed
with the trial court a motion for a discretionary stay of the custody orders
during the pendency of this appeal, which the court denied on June 19,
2019. On July 1, 2019, pursuant to Practice Book §§ 61-14 and 66-6, the
plaintiff filed with this court a motion for review of the denial of her motion
for a discretionary stay. On July 24, 2019, this court granted the motion for
review but denied the relief requested therein.
3
The plaintiff limits her claims on appeal to the court’s physical custody
orders. She does not challenge the court’s award of joint legal custody.
4
The plaintiff also cites Stahl v. Bayliss, 98 Conn. App. 63, 907 A.2d 139,
cert. denied, 280 Conn. 945, 912 A.2d 477 (2006), to support her claim. In
Stahl, this court concluded that the trial court had erred in incorporating
a stipulation, executed by the parties in 2003, regarding custody and visita-
tion, into its dissolution judgment, rendered in 2005, without considering
the present best interests of the parties’ minor children. Id., 69–70. In the
present case, the trial court considered the child’s present best interests in
entering its custody orders. Thus, we do not consider Stahl to be ger-
mane here.
5
In discussing the time period during which the child’s residence alter-
nates between the parties, the court referred to this time frame as a ‘‘period
of shared custody . . . .’’ We do not construe the court’s use of the phrase
‘‘shared custody’’ as demonstrating that the court intended for the parties
to have joint physical custody only during that specific time frame; rather,
it is reasonable to infer that the court was referencing the approximate
equal split in time that the child was residing with each party during that
time period.
6
‘‘We analyze the [appellant’s] due process claim under the federal consti-
tution only because [the appellant] has not provided an independent analysis
of an alleged due process violation under the state constitution. See Chief
Disciplinary Counsel v. Rozbicki, 326 Conn. 686, 694 n.8, 167 A.3d 351
(2017), cert. denied, U.S. , 138 S. Ct. 2583, 201 L. Ed. 2d 295 (2018).’’
Petrucelli v. Meriden, 197 Conn. App. 1, 13 n.8, 231 A.3d 231, cert. denied,
335 Conn. 923, 233 A.3d 1091 (2020).
7
In its decision, the court stated that ‘‘[t]he main issue at dispute in this
action is the custody of the minor child.’’
8
In part III of this opinion, we address and reject the plaintiff’s claim that
the court’s physical custody orders were not in the best interests of the child.
9
We recognize that this court in Kidwell stated in a footnote that, prior
to the custody hearing, the defendant was sufficiently put on notice that
the trial court would consider awarding the plaintiff sole custody on the
basis that the defendant had learned of the family relations counselor’s
recommendation that sole custody be given to the plaintiff. Kidwell v. Calde-
ron, supra, 98 Conn. App. 758–59 n.2. We do not construe this court’s
disposition of the defendant’s due process claim in Kidwell as hinging
on the defendant’s discovery of the family relations counselor’s custody
recommendation.
10
General Statutes § 46b-56 (c) provides: ‘‘In making or modifying any
order as provided in subsections (a) and (b) of this section, 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 satis-
factorily completed participation in a parenting education program estab-
lished pursuant to section 46b-69b. The court is not required to assign any
weight to any of the factors that it considers, but shall articulate the basis
for its decision.’’
11
Earlier in its decision, the court stated that ‘‘upon the credible evidence
in this trial the court is concerned about the plaintiff’s dependence on
[intoxicating] substances.’’ The court found that the plaintiff (1) used cocaine
recreationally between October, 2012, and February, 2017, (2) took prescrip-
tion medications ‘‘ ‘off and on’ ’’ while pregnant with the parties’ child in
contravention of the direction of a health professional, (3) smoked cigarettes
during the first sixth months of the pregnancy, and (4) consumed alcohol
frequently and to excess. In making its findings concerning the plaintiff’s
substance use, the court credited the defendant’s testimony on the subject
while discrediting the plaintiff’s testimony. The court further found that
‘‘[the plaintiff’s] disregarding the health of her unborn child concerns the
court. It also supports the defendant’s position that the plaintiff has a sub-
stance-dependency issue.’’ The court credited the plaintiff, however, for
agreeing to a ‘‘cursory testing for illegal substances of which she tested
negative for all illegal substances.’’
12
Earlier in its decision, the court found that the defendant helped raise
two children of a prior spouse and has an adult daughter who lives with him.
13
The plaintiff also asserts that the court’s finding that, without court
orders, she was unlikely to foster a relationship between the defendant and
the child is inconsistent with the court’s orders granting her final decision-
making authority over major decisions involving the child and designating
her residence as the child’s primary physical residence for the bulk of the
child’s minority. As the court observed in its decision, however, the likeli-
hood of the plaintiff fostering a relationship between the defendant and the
child was but one factor it considered in constructing the custody orders.
The court weighed all of the evidence before it and considered the best
interests of the child in entering the custody orders. Thus, we do not agree
with the plaintiff that an inconsistency exists.
14
We note that, to assist the parties in carrying out the custody orders,
the court ordered them to engage in co-parenting counseling with a licensed
counselor for one hour every month for the first six months following the
dissolution and for one hour every two months for the following year.
15
General Statutes § 46b-56 (b) provides in relevant part that ‘‘[i]n making
or modifying any order as provided in subsection (a) of this section, the
rights and responsibilities of both parents shall be considered and the court
shall enter orders accordingly that serve the best interests of the child and
provide the child with the active and consistent involvement of both parents
commensurate with their abilities and interests. . . .’’ (Emphasis added.)
We also note that, on the final day of trial, following closing argument,
the court discussed with the parties its intent to enter interim orders pending
the issuance of its dissolution judgment. During that discussion, the court
stated that it was ‘‘important to the court . . . that the [defendant] start a
normal—I mean, it’s very difficult to have a normal relationship with some-
one when you’re living so far away. But it’s important . . . that [the defen-
dant] gets started in having a relatively normal relationship with the child.
The child is still very young [and] probably won’t remember anything that’s
going on right now.’’