Opinion
File No: CN17-05778 Pet. No.: 18-18190
01-24-2019
RE: E---- A. N---------- v. K---- R. T----, Jr.
Nicole M. Mozee, Esquire
Delaware Volunteer Legal Services
4601 Concord Pike
P. O. Box 7306
Wilmington, DE 19803 K---- R. T----, Jr.
40 Utah Rd.
Wilmington, DE 19808 LETTER, DECISION AND ORDER Petition for Custody Dear Counsel and Party:
Before the Court is a Petition for Custody filed on June 26, 2018 by Nicole M. Mozee, Esquire, on behalf of E---- A. N---------- (hereinafter "Mother"), against K---- R. T----, Jr. (hereinafter "Father"), who is self-represented, regarding the parties' minor child, A-------- T---- (hereinafter "Child"), born ------ -, 2017. The parties bypassed mediation because the court issued a Protection from Abuse ("PFA") Order on December 27, 2017. By correspondence dated July 27, 2018, the Court scheduled the parties for a Case Management Conference on August 22, 2018. On December 21, 2018, the Court held a full hearing on the merits.
Mother appeared for the December 21st hearing; Father failed to appear. The Court heard testimony from Mother. For the sake of judicial economy, the Court will not restate in its entirety the testimony at the December 21st hearing. Rather, the Court will note any relevant testimony throughout the discussion.
DISCUSSION
In deciding the legal custody and residential placement of a child, the Court will consider all relevant factors, including the best interest factors set forth in 13 Del.C. § 722(a). They are as follows:
BEST INTEREST FACTORS PURSUANT TO STATUTE
(1) The wishes of the child's parent or parents as to his custody and residential arrangements;
Mother seeks sole legal custody and primary residential placement of Child, without visitation rights for Father until as such time Father completes mental health and substance abuse treatments. Mother testified Father does not have a relationship with Child although Child knows Father. Mother testified Father saw Child for about ten (10) minutes, once a month, from October 2017 through August, 2018. Father failed to appear for trial and the record is void of his wishes. The Court finds this factor favors Mother's request for sole legal custody and primary residential placement.
(2) The wishes of the child as to his custodian(s) and residential arrangements;
Neither party requested the Court interview the Child and, due to her tender age, the Court did not do so sua sponte. Therefore, this factor is inapplicable to the Court's analysis. (3) The interaction and interrelationship of the child with his 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;
Mother testified Child resides with her in a two-bedroom apartment in Newark, DE. Mother testifies W------ N----------, (hereinafter "Maternal Grandfather"), also shares the home. Mother testified she occupies the master bedroom in the home and Child occupies an alcove off of the master bedroom.
Mother testified Child interacts well with Maternal Grandfather and he is a good male presence in Child's life. Mother testified Maternal Grandfather plays with Child, and Child loves to brush Maternal Grandfather's hair and paint his nails. Mother testified Child has dinner every night with Maternal Grandfather and herself, depending on Mother's work schedule. Mother testified Child loves Maternal Grandmother and sees her once or twice a month. Mother testified Maternal Grandmother interacts well with Child, does arts and crafts with her and plays with her. Mother testified Child also interacts well with four (4) Maternal Aunts and a host of cousins.
Mother testified Paternal Grandparents are deceased, however, Paternal Great Grandmother is alive but does not have a relationship with Child. Mother testified Child does not have any relationship with paternal relatives. Mother testified Child video chats once every other month with Paternal Aunt who lives in Ohio, however, Child is unware that Paternal Aunt is a relative. Mother testified Child occasionally interacts via social media with Father's first biological child, L------- R--- T---- (hereinafter "L-------"), however, Child and L------- do not know that they are siblings.
Mother testified Father has not had Child in his care longer than fifteen (15) minutes on any occasion and Father has never offered to care for Child.
Apart from Mother's representations about Father's very limited interaction with Child, the record is void of Child's interaction with Father or his family. The Court finds this factor favors Mother's request for sole legal custody and primary residential placement. (4) The child's adjustment to her home , school and community;
Mother testified Child is well-adjusted to the home and Child has a teacup Chihuahua. Mother testified Child's typical day begins around 9:00 a.m. when Child wakes up. Mother testified Child normally eats breakfast, gets dressed, and then engages in some type of learning activity. Mother testified she lets Child play and wander around the home. Mother testified she sometimes takes Child to Chuck E. Cheese's, or to Maternal Grandmother's home and on other occasions, Child spends the day at home. Mother testified in the evening Child takes a bath, takes nighttime medication, watches television until 9:00 p.m. and then goes to bed. Mother testified on the days that she works, her sister cares for Child in her home and follows Child's daily routine. Mother testified Child's motor skills are well developed and Child is smart and learns quickly.
Mother testified she has not introduced Child to any religious activities yet but plans to take Child to church soon. Mother testified she celebrates holidays with Child, however, Father missed all holiday celebrations. Mother testified Father attended only one of Child's birthday celebrations, albeit rather briefly.
The record is uncontroverted and void of any testimony regarding Child's adjustment to Father's home, school or community. The Court finds this factor favors Mother's request for sole legal custody and primary residential placement.
(5) The mental and physical health of all individuals involved;
Mother testified she is in good mental and physical health. Mother testified Maternal Grandfather is disabled and does not interact much with Child when he is not feeling well. Mother testified Maternal Grandfather is in good mental health.
Mother testified Child suffers from Acid Reflux Disease and takes 1.5 ml of Zantac nightly. Mother testified Child previously exhibited "mean" behaviors, however, Child's behavior has improved since Child stopped seeing Father. Mother testified because Father normally screamed at her, Child would mimic his behavior and also scream while in Father's presence.
Mother testified Father does not have any physical health concerns, however, Father was diagnosed with Attention-Deficit Disorder, Attention-Deficit/Hyperactivity Disorder, and Bipolar Disorder when he was a child. Mother testified during their relationship, Father smoked marijuana and did not manage his mental health disorders. Mother testified Father has recently began taking hallucinogens, specifically mushrooms, and Father has taken illegal substances in her presence and also posted photos of drug and drug paraphernalia on social media. Two social media photos depicting Father smoking were admitted into evidence as Petitioner's Exhibit # 1 and is incorporated herein. Admitted into evidence as Petitioner's Exhibit # 2 and incorporated herein are two photos depicting drug and drug paraphernalia in Father's home.
Mother testified she has known Father since he was a child.
The Court finds this factor favors Mother's request for sole legal custody and primary residential placement.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
Pursuant to 13 Del. C. § 701, parents are responsible for the support, care, nurture, welfare, and education of their child.
Mother testified she is employed as an A-------- M------ at S---- S--- and works five (5) days a week, from 3:00 a.m. - 2:00 p.m., or from 2:00 p.m. - 10:00 p.m. Mother testified her work days varies from week to week.
Mother testified she has been Child's primary provider and caregiver since Child was born. The record reflects Mother provides care for Child with assistance from Maternal Aunt and Maternal Grandfather. Mother testified Child has lived with her continually except for a brief period from Child's birth to October, 2017, when Mother resided with Father. Mother testified she tends to Child's needs, nurtures and disciplines Child. The Court finds Mother has fully complied with her rights and responsibilities to Child.
Mother testified Father's financial support of Child has been minimal. Mother testified Father was ordered to pay $820.00 in Child Support payments, however, Father refused to pay and Mother did not receive any Child Support payments until the court attached Father's paycheck through his employer, M-----. Mother testified Father lost his job in October, 2018 and the Child Support payment was adjusted to $270.00. The Child Support Order was admitted into evidence as Petitioner's Exhibit # 3 and is incorporated herein.
Father failed to appear and the record is void of any evidence that Father has been compliant with his rights and responsibilities to Child. The Court finds this factor favors Mother's request for sole legal custody and primary residential placement.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Mother's relationship with Father was fraught with physical and verbal abuse and violence. Mother testified she began a relationship with Father in October, 2016 and the parties lived together on and off for about a year. Mother testified the relationship began great, however, within a month, Father became both verbally and physically abusive. Mother testified in November, 2016, while Mother resided with Father, he lifted a bed that Mother was lying on and dropped it. Mother testified following the incident, she moved out of Father's home, however, Mother later discovered that she was pregnant and then decided to give the relationship a second try.
Mother testified Father was initially excited about the pregnancy and attended major milestone doctor visits. Mother testified her pregnancy was high-risk and she had monthly doctor's visits which Father did not attend. Mother testified Father was present for the delivery of Child, however, Father was smoking weed.
Mother testified she and Child resided with Father for a while after being discharged from the hospital, however, Father rarely spent any time with Child. Mother testified she, along with Child, moved out of Father's home in October, 2017, after she discovered that Father had cheated on her.
Mother testified to numerous incidences of violence, many of which resulted in Father threatening to harm or kill her. Mother testified Father would call her numerous times in a single day and threaten on the telephone and via text messages, in very vivid terms, to kill her and also kill Child. On one occasion, Father threatened to put Mother in concrete and lime. Father's threatening text messages to Mother were admitted into evidence as Petitioner's Exhibit # 4 and is incorporated herein.
Mother testified around November, 2017, Father went to her home and kicked her door down. Mother testified Child was in the room with her and Father's behavior caused her great anxiety and fear. Mother testified she bore the costs of replacing the door and lock.
Mother testified in December, 2017, during a visit to Father's home, Father refused to return Child to Mother. Mother testified Father manhandled her, grabbed Child and locked Child in his home. Mother testified Father did not have food, medication, or diaper in his home for child. Mother testified she called 911 and police officers retrieved Child from Father. Mother testified the police officers advised her to file for a PFA Order, which she did on either December 7 or December 8, 2017. Mother testified the court granted a one (1) year consent PFA Order which provided that Father was to have visitation with Child and no contact with Mother except through text messages and only to arrange visitation with Child.
Mother testified around June or July, 2018, she planned a beach trip for Child and herself. Mother testified Father called the same day of the beach trip and requested to see Child and grew angry when Mother would not accommodate his request. Mother testified Father shouted expletives at her over the telephone and threatened to kill her, kidnap Child, and kill himself. Mother testified Father telephoned her approximately forty to fifty times that night. Mother's telephone call log was admitted into evidence as Petitioner's Exhibit # 5 and is incorporated herein.
Mother further testified around October 15, 2018, the parties both appeared in the New Castle County Family Court for a Child Support hearing. Mother testified Father was visibly upset during the hearing when he learned of his financial obligations. Mother testified Father violated the PFA later that evening, approximately 7:00 p.m., when he telephoned Mother and told her that he was sitting in his vehicle in the parking lot outside of her home and that he would teach her a lesson. Mother testified Father screamed expletives at her over the telephone and threatened to kill her. Mother testified she looked through the window and verified that Father was indeed sitting in his vehicle that was parked in the parking lot outside of her home. Mother testified she telephoned 911 because she feared for her safety as well as Child's. Mother testified Father continued to barrage her cell phone with calls while she awaited the arrival of the police. Mother testified soon after, the New Castle County Police Department ("NCCPD") arrived at her home, however, Father had left. Mother testified Father continued to telephone her and at the direction of the NCCPD, Mother answered Father's call at which time Father threatened, "I am going to f---ing kill you." Mother testified after NCCPD left, Father continued to telephone her until the following morning. A photo of Father's vehicle in the parking lot outside of Mother's home and Mother's telephone call log were admitted into evidence as Petitioner's Exhibit # 6 and is incorporated herein. Mother testified Father was found in Contempt of PFA Order. The Civil Contempt of PFA Order was admitted into evidence as Petitioner's Exhibit # 7 and is incorporated herein.
Mother also testified in March, 2018, Father telephoned her and threatened to "blow up" her house. Mother testified she reported the threats to the police and Father was charged with Criminal Contempt and Terroristic Threatening.
Mother testified she filed a Petition to Extend the PFA and by order dated November 29, 2018, the court granted a two-year extension.
The Court finds that Father is a perpetrator of domestic violence. Father meets the definition of a perpetrator of domestic violence as laid out in 13 Del. C. § 703A because Father has perpetrated physical and verbal abuse against Mother.
13 Del. C. § 703A (b) "Perpetrator of domestic violence" means any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home: (1) Any felony level offense; (2) Assault in the third degree; (3) Reckless endangering in the second degree; (4) Reckless burning or exploding; (5) Unlawful imprisonment in the second degree; (6) Unlawful sexual contact in the third degree; or (7) Criminal contempt of Family Court protective order based on an assault or other physical abuse, threat of assault or other physical abuse or any other actions placing the petitioner in immediate risk or fear of bodily harm.
The Court finds that this factor favors Mother because pursuant to 13 Del. C. 705A, there shall be a rebuttable presumption that no perpetrator of domestic violence shall be awarded sole or joint custody of any child and that no child shall primarily reside with a perpetrator of domestic violence. The burden is on Father to rebut this presumption. (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.
Title 13 Del. C. § 705A.
Id. --------
Mother testified Father has active warrants for Criminal Contempt and Terroristic Threatening in addition to two other charges unrelated to Mother. Father's criminal records were admitted into evidence as Petitioner's Exhibit # 8 and is incorporated herein.
The Court independently reviewed the DELJIS reports of Father, Mother, and Maternal Grandfather. No criminal record was found for either Mother or Maternal Grandfather, however, Father has an extensive criminal history with several active warrants. The Court finds that this factor favors Mother.
CONCLUSION
According to the best interest factors analyzed in the preceding paragraphs, the Court finds that factors one (1), three (3), four (4), five (5), and six (6), seven (7), and eight (8) weigh in favor of granting Mother sole legal custody and primary residential placement of Child. Factor two (2) was not applicable to the Court's analysis. Accordingly, the Court finds that it is in the best interest of Child for Mother to have sole legal custody and primary residential placement of Child. The uncontroverted record reflects Father has had minimal contact with Child since Child's birth and has not participated in Child's welfare, educational, or medical needs. Mother has been Child's primary financial provider and caregiver since Child's birth. The record also reflects Father has perpetrated violence against Mother on many occasions which resulted in the issuance of a PFA Order. Moreover, the record reflects that Father has mental health issues which are currently unaddressed, and Father may also have substance abuse issues. Father has failed to honor his rights and responsibilities of parenting Child. Father has minimally provided financial support for Child. If Father requests contact with Child, Father's contact shall occur as mutually agreed by the parties, or Father may file a Petition with the Court.
IT IS SO ORDERED.
/s/_________
Arlene Minus Coppadge, Judge AMC/cd Cc: File
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