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MICHAEL DIGIOVANNA v. DONNA ST. GEORGE (SC 17624)
Rogers, C. J., and Norcott, Katz, Palmer, McLachlan and Eveleigh, Js. Argued October 18, 2010--officially released January 5, 2011*

Lori Welch-Rubin, for the appellant (plaintiff). Susan King Shaw, for the appellee (defendant).

Opinion

KATZ, J. In Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002), this court held that the legislature could, consistent with due process, authorize a nonparent to obtain visitation with a minor child over a fit parent's objection if the nonparent alleges and proves by clear and convincing evidence that he or she has a parentlike relationship with the child and that the child would suffer harm akin to abuse and neglect if that relationship is not permitted to continue. The present case calls on this court to consider whether a trial court may deny a nonparent's application for visitation when the applicant has met this stringent burden of proof if that court concludes that visitation nonetheless is not in the best interest of the child. Specifically, the plaintiff, Michael DiGiovanna, appeals from the trial court's judgment denying his application for visitation with the minor child of the defendant, Donna St. George, on the ground that, although the plaintiff had met his burden of proof under Roth, visitation ultimately would not be in the child's best interest because the defendant would react to that situation by inflicting greater psychological harm on the child than that which would result from the denial of visitation.1 We conclude that such a conclusion was improper. Accordingly, we reverse the judgment. The record reveals the following undisputed facts and procedural history. The plaintiff and the defendant began to date in 1987, at which time the defendant had a sixteen month old daughter, Alexandria. Although the parties had planned to marry in October, 1993, shortly before that date, their wedding was called off and the relationship was terminated. In 1994, the defendant met Thomas Kreis, and the two were married in 1995. Following the marriage, Kreis, who was employed at the University of Geneva, resided in Switzerland, while the defendant remained in Connecticut. In 1995, the plaintiff and the defendant resumed their relationship, at which time the defendant was pregnant by Kreis. In 1996, when the defendant gave birth to her son, Eric, the plaintiff was at her side. The plaintiff and the defendant did not reside together, but they maintained their relationship and the relationship between the plaintiff and the defendant's children for the next two years. Kreis periodically came to Connecticut to see the defendant and the children. In 1998, when Eric was two years old, Kreis died in a plane crash. The defendant, who subsequently was treated for post-traumatic stress disorder and depression, ended her relationship with the plaintiff around this time. She nonetheless permitted Eric and Alexandria to maintain their relationship with the plaintiff over the next four years. In 2001, the defendant began a relationship with another man, who later moved into the defendant's house and with whom the defendant had her third child. In September, 2002, the plaintiff

wrote to the defendant's psychiatrist expressing concerns that the defendant had been abusive to Eric. Shortly thereafter, the defendant cut off contact between the plaintiff and Eric, but permitted the plaintiff to maintain his relationship with Alexandria. The defendant terminated that contact in 2003, after she learned that the plaintiff intended to seek court-ordered visitation with Eric and obtained legal advice that she should not treat the children differently. In August, 2003, the plaintiff filed an application, pursuant to General Statutes

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Connecticut Law