Opinion
File No.: CN05-04079 Petition No.: 18-09537
03-17-2020
Re: D M v. G M
LETTER DECISION AND ORDER
Petition Type: Custody Modification Dear Parties:
The Court held a Hearing for a Petition for Custody Modification on February 28, 2020. The petition was filed by D M ("Mother") against G M ("Father") in the interest of J M ("J ") (born, April 28, 2005). Both parties were present and self-represented. Mother requested primary residency of J and joint legal custody. Father did not oppose Mother retaining primary residency of J , but sought to have visitation and communication reopened with Jenna. A child interview was completed at Mother's request. This is the Court's decision after consideration of all the evidence presented during the hearing.
PROCEDURAL HISTORY
The parties stipulated to a custody agreement on September 29, 2015, in which Father was granted primary placement of J and joint legal custody was shared by Mother and Father. This agreement remained in place until Mother filed for Custody Modification and filed an emergency ex parte petition for custody on April 4, 2018 in Sussex County. The Court held an emergency hearing on April 23, 2018 where Mother was granted temporary primary placement of J . The Court scheduled a final hearing on the matter but it was continued due to Father entering into substance abuse rehabilitation in July, 2018. Father began treatment in a rehabilitation facility in Florida and the Court continued the matter until his successful completion and return to Delaware. The case was then transferred from Sussex County to New Castle County. The Court held a final hearing on the merit on February 28, 2020. The Court conducted a child interview with Jenna on March 11, 2020.
LEGAL STANDARD
The Court determines legal custody, residential arrangements, and visitation for children in accordance with the best interest factors set forth in 13 Del. C. § 722. In consideration of 13 Del. C. § 722, the Court balances the best interest factors "in accordance with the factual circumstances presented to the Family Court in each case." In some situations, the weight of one factor will counterbalance the combined weight of the other factors.
Pursuant to 13 Del. C. § 722:
a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court
1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
2) The wishes of the child as to his or her custodian(s) and residential arrangements;
3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
4) The child's adjustment to his or her home, school and community;
5) The mental and physical health of all individuals involved;
6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
Ross v. Ross, 922 A.2d 1237 (Table) 3 (Del. 2010).
Id at 3 (citing Fisher v. Fisher, 691, 623 (Del. 1997)). --------
DISCUSSION
The statutory factors are discussed below. In the interest of judicial economy, the Court will not recite all the testimony from the hearing that can be more fully obtained from the record.
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother has had primary residency of J since April 23, 2018 and requested that she maintain primary residency. Mother stated that she wanted J to speak with Father but J refused to do so. Mother was agreeable to joint legal custody.
Father did not oppose Mother retaining primary residency of J . Father recognized that J had experienced trauma prior to his substance abuse treatment. Father was requesting from the Court joint legal custody and to have visitation with J . Father specified that he would like to have visitation for all school breaks, every other Christmas, every other birthday, and during the summer for two weeks at a time. Father further requested that Mother be responsible for half of the cost of airfare to and from Florida for Father's visitation.
This factor weighs in favor of Mother retaining primary residency of J and Mother and Father sharing legal custody. The Court finds that Father would like to participate in J 's life and he has been in treatment for some time. Despite that J does not wish to speak with Father, he is entitled to information regarding her physical health, mental health, education, and activities. Father should also still be able to discuss matters with Mother regarding J and to participate in decisions.
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Court conducted a child interview at the request of both parties. The Court noted that J experienced trauma from her time with Father. J conveyed that her preference would be to remain with Mother primarily. Additionally, J expressed that she did not wish to speak to him at this time and that she felt a lot of anger towards him and paternal family for not intervening. J has not spoken to Father since she started living with Mother and has refused to interact with him all together. J does not want Father to know who her teachers are as she is afraid he will contact them and say things. This concern appears to be somewhat based on embarrassment of how Father has behaved in the past, which will be further discussed below in section (5).
This factor weighs in favor of Mother retaining primary residency and Mother and Father sharing legal custody. The Court understands that J is angry with what she went through and will need to process these experiences. The Court encouraged J to work on this conflict and to attempt to resume contact through a therapeutic setting.
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons co-habiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interest;
Mother testified that J has lived with her for the past two years. Mother stated that J feels safe in her home. Mother lives with J , and her adult son, J C ("J "). Mother stated that J and J get along well and have many shared interests. Mother further stated that J has a good relationship with her adult sister, A , who lives in Rehoboth. J expressed that everything is going well living in her Mother's home. According to Jenna, even when Father had primary residence she did not have much of a relationship with him as he would go out a lot to play cards with friends and would disappear. She indicated that she kept more to herself at home than spent time with Father.
Father testified that he has not spoken to J since April of 2018 and J confirmed this fact. J has also not had a relationship with her Paternal Grandmother and Aunt who she feels did not help or protect her by intervening when Father was clearly unable to care for her in the midst of his mental health and substance abuse crisis. She believes that they should have contacted Mother but that they instead chose to hide the situation from Mother.
This factor weighs in favor of primary residency with Mother and Mother and Father sharing legal custody. Father and J are estranged due to his substance abuse and neglect of her needs while he was deep in his addiction. Mother explained that she would like J to speak with Father, but disclosed that she was not sharing information with Father regarding J 's school, physical health, and mental health. The Court finds that despite J 's unwillingness to engage with Father, he remains concerned about J 's general well-being and daily life.
(4) The child's adjustment to his or her home, school and community;
J stated that living with Mother is going well and that the transition went smoothly when she came to live with Mother in April, 2018. J explained to the Court that school is going well and that she has a lot of friends. The transition to the new school was not difficult according to J . Mother testified that J gets along well with J and is able to visit with her sister in Rehoboth. Mother stated that J is happy and feels safe in her home.
J said that when she was staying with Father, there were long time periods where she did not see Father and often relied on the help of her older sister. J further expressed that she did not wish to have contact with N C ("Paternal Grandmother") and her Paternal Aunt E .
This factor weighs in favor of primary residency with Mother and Mother and Father sharing legal custody. The Court finds that J is happy and healthy in Mother's home. The Court encouraged J to work on the anger towards her father and his family with her therapist.
(5) The mental and physical health of all individuals involved;
Mother stated that she collects Social Security Disability Income due to diagnoses of anxiety and depression. Mother stated that she has not been hospitalized in the last seven years and is taking anti-depressants, Klonopin, and Benadryl to regulate her symptoms. Mother said that also has a history of anorexia which affected her physical health. Mother was hospitalized six years ago with kidney failure as a result of her anorexia. J did not express any concern about Mother's mental health.
Mother testified that J experiences situational anxiety from time to time. Mother stated that prior to the hearing, J had a difficult week. Mother stated that J sees a counselor in order to help with her anxiety and to help her address the trauma she was exposed to while Father was struggling with substance abuse. Mother said that J is up to date with her physical health.
J was clearly anxious about the possibility of going to stay with Father as a result of the hearing. The Court assured her that Father himself recognized that this was not possible and that this was not going to happen. J was only about thirteen (13) years old when Father was hospitalized. J described scenarios where Father would disappear for days, would yell nonsensically outside in the street and wander into the neighbor's yards. She was scared for his health and for her own well-being.
Father stated that fourteen years ago, he spent time in a rehabilitation facility for addiction issues. Father stated that in January, 2018, he was being over prescribed benzodiazepines and opiates by his physician which caused a relapse and the alarming behaviors that J was subjected to. Father went to a dual rehabilitation facility for treatment in June of 2018. Father said he was released on October 24, 2018, and has lived in a half-way house in Florida since that time. Father intends to move into his own apartment on March 25, 2020. Father stated that he has made progress and believes he will maintain his sobriety. Father said that he has been diagnosed with depression, anxiety, bipolar disorder, panic attacks, and Ulcerative Colitis. Father receives Humera treatments to treat the symptoms of Ulcerative Colitis. The Court notes that Father has stated that he is the one responsible for his addiction but he also seemed to blame his doctor so it is not clear to the Court if he takes responsibility or not.
This factor weighs in favor of Mother having primary residency and Mother and Father sharing legal custody. The Court is encouraged by the progress that Father has made in remaining sober and working on his mental health.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
Mother and Father both made allegations that the other party withheld information about J 's health and education. Mother testified that she has attempted to reach out to Father on multiple occasions to share information and photographs of J and received no response. Mother said that she subsequently decided to stop sharing information after receiving no response. Father said that he has attempted to reach out to J on multiple occasions and asked Mother for information about J and received no response.
Father did not meet his duties and responsibilities as a parent when J was residing primarily with her and her care was neglected. Father did not reach out to Mother when he was clearly not capable of taking care of J . Father's family also chose to protect Father instead of protecting J .
This factor weighs in favor of Mother retaining primary residency and Mother and Father sharing legal custody. The Court explained to Mother that she is obligated to keep Father informed regarding J 's physical health, mental health, education, and activities. The Court expects that Mother and Father will communicate regarding J and work together to make decisions.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
The parties did not present any evidence regarding this factor. This factor will be given no weight in consideration.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Both parties have criminal histories that consist of minor offenses and traffic violations. The criminal histories of both parties do not present a barrier to primary residency with Mother and Mother and Father sharing legal custody.
CONCLUSION
All of the § 722 factors, except for factor seven, weigh in favor of primary residency remaining with Mother and joint legal custody to be shared between the parties. The parties did not disagree that Mother should retain primary residency of J , the disagreement between the parties regarded Father's request for visitation and shared cost of travel to and from Florida. The Court understands that J has a lot of anger and hesitancy to reengage communication with Father and paternal family. The Court encouraged J to be open to reconsidering her refusal to speak with Father and encouraged that she remain open to reunification counseling, guiding by a mental health professional. As J refuses to speak or engage with Father at all, the cost of travel is currently a non-issue.
The Court finds that communication between J and Father should resume therapeutically initially. As Father and J are estranged from two years without contact and from the circumstances that led to Father's hospitalization, Father and J will require reunification therapy in order to repair their relationship and reopen the lines of communication. Mother and Father shall chose a reunification counselor together, either by referral from J 's current counselor or insurance recommendation, and engage as recommended and as much as they are able with Father located in Florida. The Court will have Mother locate the Counselor. While ordinarily the Court would require the parties to agree on a counselor, it may be difficult to locate somebody who is covered by J 's insurance, who is experienced in reunification counseling and who would proceed with long-distance counseling with Father by phone or otherwise. This counselor shall not be J 's individual counselor. The Court finds that it is very important that J keep her individual counselor as her own confidante. The Court finds that it is in J 's best interest to initially engage in the reunification counseling with the counselor meeting with Father and J separately a first and to then gradually ease into contact between Father and J . Father shall initially write J a letter which will be sent directly to the reunification counselor who can determine after consultation with J 's counselor whether or not to share with J at their discretion. J could decide to respond by letter. The counselor could determine when telephone or skype visitation could take place and if physical visitation would take place and under what conditions. Physical visitation between Father and J at this time would substantially impair her emotional development and is not in her best interest.
IT IS SO ORDERED:
1. Mother will have primary residency of J .
2. Mother and Father will have joint legal custody of J .
3. J shall continue to attend counseling until she no longer needs counseling as determined by the counselor
4. Mother shall locate a reunification counselor, different from J 's individual counselor, who would be able to do the counseling with Father via telephone or video conferencing, for J and Father to engage with.
a. J and Father shall engage with the reunification counselor separately, initially.
b. Father shall write a letter and send it directly to the counselor, who will share it with J at his or her discretion, after consulting with J 's counselor.
SO ORDERED this ___ day of MARCH, 2020.
5. Mother shall keep Father informed regarding J 's physical health, mental health, education, and activities.
6. This Order can be amended at any time by mutual written agreement of the parties.
Very truly yours,
/s/_________
Felice Glennon Kerr, Judge FGK/gg Xc: File, Parties Date emailed:
Date mailed: