I concur in the majority opinion.
I also concur in that part of the rescript to the opinion which provides that the physical custody of the children remain with the plaintiff until the trial court has had an opportunity to address the issue of their custody at the new hearing. Lest, however, litigants think we are now in the business of issuing custody orders, I believe that a further explication is in order of what I understand to be the theoretical underpinnings of that part of the rescript.
Ordinarily a finding of error in the trial court's order of change of custody would, without more, require custody to revert to the status quo ante, which in this case would be custody in the defendant, until a new hearing was held. We are aware, however, that the children have been living with the plaintiff since he took them from California on October 5, 1980. The order of the court, Geen, J., terminating the stay was filed on December 31, 1980. The defendant had agreed to permit the children to remain with the plaintiff pending the hearing on the motion to stay. In that proceeding, which involved a full hearing and a detailed factual memorandum of decision reviewing the tangled history of the case, the court found that it was in the best interests of the children to remain with the plaintiff pending the appeal.1
Under these extreme circumstances I do not believe that justice, which includes the best interests of the children, *Page 365 would be served by requiring them now to return to the defendant pending a new hearing, simply because we have concluded that there was a procedural error preceding the decision on change of custody nearly three and one half years ago. Nor do I think we are powerless to remedy this situation.
Like the Supreme Court, we have general supervisory power over appeals. Practice Book 2000, 3096. This includes the power to make appropriate post-appeal orders. See In re Juvenile Appeal (83-BC), 189 Conn. 66 81, 454 A.2d 1262 (1983). Furthermore, the Supreme Court has held that the trial court has broad discretion to issue, sua sponte, interim postjudgment orders on custody where an appeal appears likely. Yontef v. Yontef 185 Conn. 275, 276, 440 A.2d 899 (1981). The basis of this is to "[protect] the primary interests of the children in a continuous, stable custodial placement." Id., 292. I conclude, therefore, that under the unique circumstances of this case the trial court has equally broad discretion to issue, either sua sponte or in response to an appropriate motion, interim post-appeal orders, on remand from this court, regarding the custody of the children pending a new hearing, so as "to serve the best interests of the children for the near as well as for the more distant future." Id., 294. In order to permit the exercise of this discretion, I join in the order that the present custodial status quo of the children be maintained until the trial court has had the opportunity to address the issue of their custody at the new hearing.