Opinion
File No. CS13-02054 Petition No. 15-22421
04-27-2017
In the interest of: Samantha A. James, Born August 22, 2012
MOTION TO AMEND
ORDER
Abigail D. James ("Mother") and Dennis Martin ("Father") are the parents of four and one-half year old Samantha A. James ("Samantha") who was born on August 22, 2012. The parties have filed cross petitions for an Order of Custody and Visitation, but Father's petition was dismissed on August 29, 2016 for failure to file proof that he had completed a parent education course as required by the Rules of this Court.
Rule16.2(a)(1) of the Delaware Family Court Rules of Civil procedure states:
(a) Parent education program. -- There shall be a Court approved parent education program required for parents in custody and visitation proceedings.
(1) Parents. -- Both parties to a custody or visitation proceeding shall participate in a Court approved education program. Each party shall pay the provider of the parent education program, according to a Court approved schedule of fees, for their individual participation. The Court approved fees shall have a "sliding scale" provision.
At the conclusion of a hearing on March 20, 2017, this Court, in a bench ruling, granted Mother sole legal custody and physical placement of Samantha. Mother was directed to provide Father a letter, on a semi-annual basis, an update as to Samantha's health, significant developments in her life, and a current photograph. Visitation was to be as agreed upon by the parties.
MOTION TO AMEND JUDGMENT OR REARGUMENT
Subsequent to the Court's Order of March 20, 2017, Father filed a Motion to Amend the Court's Order or to Reargue the March 20, 2017 Order. Father has not clearly stated in his motion which section of Rule 59 he is proceeding under - subsection (d) or subsection (e). It makes little difference, however, since our Supreme Court has held that a Motion to Amend a Judgment may be treated as a Motion to Reargue. Family Court has also previously held that, "a Motion for Reargument 'is appropriate where it is shown that the Court overlooked a precedent or legal principle that would have controlling effect, or that it misapprehended the law or the facts such as would affect the outcome of the decision.'" Furthermore, "'[t]he Court will not grant reargument where one party is simply unhappy with its rulings, makes the same arguments that he or she made at trial, or attempts to [submit] evidence which could have been but was not [introduced] at trial.'" Father does not seek an Order of Visitation in his motion, he does, however, make the same arguments regarding contact by telephone and letter that he made at trial - namely, that he should be entitled to frequent telephone and letter contact and require Mother to read his letters to Samantha. Since Father's motion does not meet the requirements of Rule 59, the Motion is DENIED.
Del. Fam. Ct. R. Civ. P. 59(d) states that "[a] motion to alter or amend the judgment shall be served and filed not later than 10 days after entry of the judgment."
Del. Fam. Ct. R. Civ. P. 59(e) states:
A motion for reargument shall be served and filed within 10 days after the filing of the Court's opinion or decision. The motion shall briefly and distinctly state the grounds therefor. Within 10 days after service of such motion, the opposing party may serve and file a brief answer to each ground asserted in the motion. The Court will determine from the motion and answer whether reargument will be granted. A copy of the motion and answer shall be furnished forthwith by the respective parties serving them to the judge or master involved.
Hunsberger v. Rooney, No. 242, 1986, 1987 WL 36717, at *1 (Del. 1987).
A.S. v. R.S., No. CN09-01160, 2010 WL 2708539, at *1 (Del. Fam. Ct. May 12, 2010) (citing In re the Marriage of Silversteen, Nos. CN94-11631, 95-08343, 97-2253, 1997 WL 905948, at *2 (Del. Fam. Ct. Oct. 23, 1997)).
Id. (citing In Re Marriage of Gray, CN94-09658, Tumas, J. (Del.Fam.Ct. Jan. 10, 1997)).
FACTS
While Father's Motion to Amend or Reargue the Court's Order of March 20, 2017 is denied, I believe it would be helpful, in the event of any further review of the Court's March 20, 2017 bench decision, to expound upon its basis for that decision.
Father and Mother met in the summer of 2010 and lived together for approximately one and one-half years before separating in February 2013. Samantha was born on August 22, 2012. Almost immediately after Samantha's birth, Mother was hospitalized for 48 hours for mental health issues. During Mother's two day hospitalization, Samantha's paternal grandmother, who lived approximately five to ten minutes from the parents' home, provided care for Samantha. Father testified that after Samantha was born, he continued to work full-time while Mother worked part-time and cared for Samantha. When Mother's work schedule required someone else to care for Samantha, the paternal grandmother or a friend of Mother's would care for Samantha. Although the paternal grandmother testified that she provided full-time care for Samantha from the time Mother was hospitalized shortly after Samantha's birth in August of 2012 until December 2012, both Mother's and Father's testimony contradicted this.
Father testified that in February 2013, Mother moved from the parties' apartment in Pennsylvania to Bear, Delaware. Father further testified that Moher and Samantha left Pennsylvania because of the "just the stress of trying to find more appropriate housing and she said she found some kind of charity thing that would offer housing . . . ." Father testified that there had become and estrangement between the parties which was caused by "she was mostly frustrated with me . . . ." Father did not relocate with Mother and Samantha. From February 2013, when Samantha was only about six months old and the parties separated, until August 19, 2013, Father saw Samantha only approximately three times - at Easter in 2013, on Father's Day 2013, and early July 2013. Each time Mother and Samantha would meet Father at some location other than Mother's and Samantha's Bear, Delaware residence. Father testified that his contact with Samantha was "just when time permitted and also if she needed anything, then I would meet up with her in Delaware and provide it to her . . . ."
Trial Tr. 1:34:07, Mar. 20, 2017.
Trial Tr. 1:36:55, Mar. 20, 2017.
Trial Tr. 1:34:50, Mar. 20, 2017.
On Saturday, August 17, 2013, at approximately 10 p.m., Father met a female high school friend, another woman, and her boyfriend for an evening of socializing and drinking. They visited a couple of bars. Father became separated from the three others in his party at some point in time. At approximately 1:45 a.m. to 2 a.m., Father received a text message that the two women were being harassed by two men in a nearby bar. Father located the two women and other man and they proceeded to leave to return home. Father and the other man needed to use the restroom so they ducked in an alleyway while the women proceeded down the street. When Father and the other man returned to the sidewalk, they saw that the two men that had previously been harassing the two women were talking to them at the street corner. Father testified that the discussion between the women and the two other men became elevated as Father and the other man approached. Father and the other man became involved in the discussion with the two other men and two women. As the discussion deteriorated, a fight broke out between the men. Father struck one of the men with a pistol he was carrying and shot the other man three times. Father was arrested shortly thereafter.
Father later pled guilty to two counts of Aggravated Assault, one count of Recklessly Endangering the Welfare of Another, and one count of Possession of an Instrument of a Crime. Father received a nine year to eighteen year sentence on the two felony assault charges and two consecutive five year periods of probation on the Reckless Endangering misdemeanor and Possession of an Instrument of a Crime misdemeanor. Father's early release date is 2022 and his maximum release date is 2031. In his request for ongoing contact with Samantha, Father relies on portions of two statutes, Title 13, Sections 727 and 728 of the Delaware Code. These statutes, as enacted by our General Assembly, read in the abstract, give some support to Father's argument. However, these statutes cannot be read in the abstract but must be considered in the factual context in which they must be applied. To do otherwise, would be to do violence to our General Assembly's purpose for enacting these statutes. Prior to these statutes, our Supreme Court 70 years ago in a custody case restated the principles set forth in State v. Bratton that, "[i]t is elementary that, in all cases dealing with the custody of children, the good of the child is the primary or leading consideration."
13 Del. C. § 727 states:
(a) Whether the parents have joint legal custody or 1 parent has sole legal custody of a child, each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life, and school activities and conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The Court shall not restrict the rights of a child or a parent under this subsection unless it finds, after a hearing, that the exercise of such rights would endanger a child's physical health or significantly impair his or her emotional development. (Emphasis is Father's.)§ 728 provides:
(b) Any custody order entered by the Court may include the following provisions:
(1) Granting temporary joint or sole custody for a period of time not to exceed 6 months in duration to give the parents the opportunity of demonstrating to the satisfaction of the Court their ability and willingness to cooperate with the custodial arrangement ordered. Following a timely review of this temporary order by the Court either at the end of this temporary period or sooner upon the application of any party to the proceeding, the Court shall have the authority to continue or modify the temporary order on a permanent basis.
(2) Counseling of the parents, and their child if appropriate, by a public or private agency approved by the Court to help the parents develop the necessary skills to deal effectively with the major as well as daily decisions involving their child under the custodial arrangement ordered, to continue until such time as the Court is advised in writing by the agency that such counseling is no longer required. Counseling expenses may be assessed by the Court as a cost of the proceeding.
(c) Any custody order entered by the Court shall include a contact schedule by the child with both parents which shall control absent parental modification by written agreement. (Emphasis is Father's.)
(d) Any custody order entered when 1 or both parents is a member of the armed forces, including the National Guard, and is being deployed, shall be an interim order, modifiable upon the return of the Armed Forces member to the United States or termination of service.
(a) The Court shall determine, whether the parents have joint legal custody of the child or 1 of them has sole legal custody of the child, with which parent the child shall primarily reside and a schedule of visitation with the other parent, consistent with the child's best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child's physical health or significantly impair his or her emotional development. The Court shall specifically state in any order denying or restricting a parent's access to a child the facts and conclusions in support of such a denial or restriction.
(b) The Court shall encourage all parents and other persons to foster the exercise of a parent's joint or sole custodial authority and the maintenance of frequent and meaningful contact, in person, by mail and by telephone, between parents and children unless an order has been entered pursuant to subsection (a) of this section denying or restricting such contact. If the Court finds, after a hearing, that a parent has violated, interfered with, impaired or impeded the rights of a parent or a child with respect to the exercise of joint or sole custodial authority, residence, visitation or other contact with the child, the Court shall order such person to pay the costs and reasonable counsel fees of the parent applying for relief under this section. The Court shall also impose 1 or more of the following remedies or sanctions: (Emphasis is Father's.)
(1) Extra visitation with the child to enable the child to make up any wrongfully denied visitation with a parent;
(2) A temporary transfer of custody or primary residence or both of the child to a parent applying for relief under this section for up to 30 days without regard to the factors set forth in § 729 of this title;
(3) A surcharge to be assessed against the parent with rights of visitation with the child or children for his or her unilateral failure, without just cause and/or without sufficient notice, to comply with the visitation schedule. Failure to comply consists of more than minimal violations, such as, but not limited to, slight alterations in the times for visitation. The amount of the surcharge shall be up to 10 percent of the visiting parent's monthly child support obligation for each violation and shall be payable to the parent with whom the child resides or children reside;
(4) A fine in the discretion of the Court; or
(5) A term of imprisonment if a person is found to be in contempt of prior orders of the Court. In addition, the Court may impose such other sanctions or remedies as the Court deems just and proper to ensure the maintenance in the future of frequent and meaningful contact between parent and child and participation by both parents in the child's upbringing if the parents have joint legal custody.
(c) A parent of a child who believes it to be in the best interests of a child for the custodial authority, visitation or communication between a parent and a child as established by a prior Court order or written agreement of the parties to be modified may apply to the Court for such modification, and the Court may grant such an application if it finds after application of the standards set forth in subsection (a) of this section that the best interests of the child would be served by ordering such a modification. The filing of an application under this subsection by any person shall not be a defense in an action brought against any person under subsection (b) of this section unless the Court has entered an appropriate order allowing such conduct prior to the occurrence of the conduct complained of in the action brought under subsection (b) of this section.
(d) Before entering an order for visitation to be conducted in a correctional facility the Court shall in addition to other relevant factors consider the following:
(1) The parent seeking visitation in a correctional facility had a substantial and positive relationship with the child prior to incarceration;
(2) The nature of the offense for which the parent seeking visitation is incarcerated;
(3) Whether the victim of the offense is the child, a sibling of the child, stepsibling, half sibling, parent, stepparent, grandparent, guardian or custodian of the child; and,
(4) Whether the child seeks a relationship with the incarcerated parent.
(e) The Court shall not enter an order requiring visitation in a correctional facility if the person incarcerated is a sex offender unless the requirements of subchapter II of Chapter 7A of this title are met.
(f) The Court shall not enter an order requiring visitation in a correctional facility if the person incarcerated has been adjudicated of committing murder in the first or second degrees.
State v. Bratton, 15 Am. Law Register 35.
Smith v. Smith, 45 A.2d 879, 880-881 (Del. Super. Ct. Feb. 14, 1946) (citing State v. Bratton,15 Am. Law Register 35). --------
While Father in his motion highlighted certain portions of Sections 727 and 728, the Court cannot ignore that portion of the statutes that Father did not highlight. Both statutes track the teaching of State v. Bratton and Smith v. Smith by requiring the Court to consider what effects telephone contact, letters to Samantha, and any other contact Father seeks may have on Samantha's physical health or emotional development. It is clear that Father's last contact with Samantha was over three and one-half years ago when she was less than a year old. Father is a stranger to this four and one-half year old child. Any visitation with Samantha would take place, for at least the next six years, in a maximum security prison four and one-half hours from her home. Mother does not wish to have any contact with Father. While it has been suggested that the paternal grandmother could transport Samantha to visit Father in prison, this would place Samantha in the care of another stranger to her. The last time the paternal grandmother saw Samantha was in December 2012.
The introduction of Father to a four and one-half year old child, who does not know he even exists, in this particular case is fraught with emotional dangers. Mother does not want any contact with Father and has in fact notified the prison that she wishes to have no contact with him. To require telephone contact would be problematic for this four and one-half year old child. Mother testified that Samantha does not talk with anyone on the telephone. I am satisfied that to introduce Father to Samantha under this set of circumstances and in this manner could significantly impair her emotional development. Likewise, to require Mother to read letters from Father for Samantha to Samantha is not an appropriate way to introduce a daughter to her father. Under the facts of this case, for Father to be introduced to his daughter with telephone contact and letters requiring Mother to read letters to Samantha, I am satisfied would significantly impair Samantha's emotional development.
The Court in this case must also consider the dictates of Title 13, Section 728(d) of the Delaware Code (visitation in a correctional facility). Section 728(d) states:
Before entering an order for visitation to be conducted in a correctional facility the Court shall in addition to other relevant factors consider the following:
(1) The parent seeking visitation in a correctional facility had a substantial and positive relationship with the child prior to incarceration;
(2) The nature of the offense for which the parent seeking visitation is incarcerated;
(3) Whether the victim of the offense is the child, a sibling of the child, stepsibling, half sibling, parent, stepparent, grandparent, guardian or custodian of the child; and,
(4) Whether the child seeks a relationship with the incarcerated parent.
With respect to subsection one, it cannot be said that Father has a substantial and positive relationship with Samantha prior to his incarceration on August 19, 2013. Indeed, Samantha was only six months old at the time the parties' separated in February 2013 and Father saw her only on three other occasions from February 2013 and the time of his incarceration in August 2013. This factor does not support visitation at a correctional facility.
Subsection two requires us to consider the nature of the offense that placed Father in prison. Father pled guilty to committing two Aggravated Assaults, one of which involved shooting a man three times. These are violent felonies. Father also pled guilty to two violent misdemeanors, Recklessly Endangering the Welfare of Another and Possession of an Instrument of a Crime. Father's propensity toward violence does not support visitation in this case.
Subsection three concerns the victims of the crimes for which Father is incarcerated. This factor lends some support to Father since the victims were not family members.
Subsection four concerns whether the child seeks a relationship with her father. Samantha is four and one-half years old, does not remember her father, and does not know him. Because of Father's incarceration, Mother is the sole caretaker of Samantha. Mother alone has the day to day duties and responsibilities of supporting, caring for, nurturing, and providing for Samantha's general welfare and education. Mother does not support Father having visitation with Samantha at this time. Given the circumstances of this case, I am satisfied that Mother's wishes should be considered in determining whether this young child seeks to have visitation with her Father. I find that it does not. Mother's reasons for objecting to visitation with Father in the correctional facility I do not find to be unreasonable.
CONCLUSION
Father has been incarcerated since August 19, 2013. He is serving a nine year to eighteen year sentence on two violent felonies. Samantha was six months old when the parties' separated in February 2013. From that time until August 2013 when Father was incarcerated, Samantha saw her Father only three times. In his motion, Father seeks telephone contact and to require Mother to read letters written by him to Samantha to her.
Samantha does not know her father. While our laws promote and encourage the parent/child relationship, I do not find that they do so when the relationship of the parent and child does not exist or where the child's physical health would be endangered or the child's emotional development significantly impaired. The facts of this case do not support the kind of contact Father seeks. Indeed, the parent/child relationship in this case does not exist and I find that to require Samantha to have monthly telephone contact and Mother be required to read letters written to Samantha by Father would significantly impair this child's emotional development.
Accordingly, The Motion to Amend the Judgment of March 20, 2017 or to Reargue that judgment is DENIED.
/s/_________
Kenneth M. Millman, Judge KMM/dew cc: James J. Haley, Jr., Esquire
R. Eric Hacker, Esquire
File