Opinion
File No. CN20-01067 Case No. 20-19866 Case No. 20-19919
01-15-2021
L B , Petitioner/Cross-Respondent, v. G L , Respondent/Cross-Petitioner.
Alyssa G. Kelly, Esquire, 2055 Limestone Road, Suite 211, Wilmington, DE 19808, Attorney for Father G L , self-represented, Blvd., New Castle, DE 19720
ORDER ON CROSS-PETITIONS FOR CUSTODY Alyssa G. Kelly, Esquire, 2055 Limestone Road, Suite 211, Wilmington, DE 19808, Attorney for Father G L , self-represented, Blvd., New Castle, DE 19720 ARRINGTON, Judge.
On January 12, 2021, the Court conducted a hearing on the Petition for Custody in the interest of A L M B (born / /2019) ("Child"). Petitioner L B ("Father"), represented by Alyssa G. Kelly, Esquire, and Respondent G L ("Mother"), self-represented, participated in the hearing.
Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
Prior to the Custody Petitions in this action, the parties filed cross petitions for Orders of Protection from Abuse ("PFA"). The Court conducted a full hearing on the PFA petitions on October 16, 2020. Father was granted a PFA Order. Mother failed to meet her burden of proof and her PFA petition was dismissed.
Dkts. #1, 17.
Dkt. #31.
Dkt. #34.
On September 16, 2020, Father filed a Petition for Custody. On September 16, 2020, Mother filed a Petition for Custody.
Dkt. #12.
Dkt. #7.
On September 28, 2020, Mother was served with Father's Petition for Custody. On October 7, 2020, Father was served with Mother's Petition for Custody. On October 21, 2020, Father filed an Answer and Counterclaim to Mother's Petition for Custody.
Dkt. #32.
On November 9, 2020, the parties were sent notice of the Custody Hearing.
Dkt. #38.
On January 12, 2021, the Court convened the Custody Hearing.
JURISDICTION
Mother, Father and Child have resided in Delaware for more than six months prior to filing of the petition and continue to reside in Delaware. Jurisdiction in the Family Court of the State of Delaware is proper.
TESTIMONY OF THE PARTIES
Father's Position:
Father seeks sole custody and primary residential placement. Father feels that Mother's visitation should be supervised due to her lack of transportation. Father stated that his concern is that Mother is not within walking distance of an emergency medical center should the need arise for immediate treatment for Child.
Father testified that he lives in a two bedroom, one and a half bath duplex. Father and Child reside in the home. Child has her own room. Mother had resided in the home with Father and Child until September 2, 2020. The parties were never married. Father testified that Mother had a new boyfriend that increased tension between the parties as Mother was residing with Father at that time.
Father's Ex. 1.
Father works as a nightshift supervisor at Wawa. Father has been working at Wawa since January 2, 2020. Father testified that he works the third shift from 10:00 p.m. until 6:00 a.m. five nights per week. Father's non-working days change from week-t0-week. Father testified that he currently works between thirty-eight and forty-five hours per week.
Father's Ex. 2.
Father stated that Mother was a stay-at-home parent for most of their relationship. Father took the overnight position at Wawa so that Mother could find employment during the day.
Father testified that he and Mother shared the responsibility of taking care of Child. When Father started working overnight, the parents came to an arrangement that ultimately was unsuccessful. Father testified that he wanted to go to sleep when he arrived home from work and take care of Child in the afternoons before work but Mother disagreed. Father stated that he would come home from work and take care of Child until her nap at 12:00 p.m. Father testified that Mother did not come out of her room and did not interact with Child until it was "her turn" to care for Child after her nap. Father testified that during the summer of 2020, Mother frequently woke him up around 6:00 p.m. telling him that he had "slept enough" and "needed to take over."
Father testified that he and Mother separated one month after their romantic relationship ended at the beginning of August 2020. In the interim, Mother and Father began "to fight" frequently. Father testified that he would ask Mother when she would be moving out or paying rent. Mother would "scream and yell." Father testified that these incidents happened at a minimum once per week and in the presence of Child. Father testified that Child would become very quiet, avoid looking at her parents and ignore the situation.
Matters came to a head on September 2, 2020. Father testified that he arrived home from work between 6:00 and 6:30 a.m. Father testified that he knew Mother was awake because he heard her on the phone with her paramour. Father texted Mother and asked her to get up with Child because she was already awake. Father laid down and went to sleep. Father testified that he woke up around 11:00 a.m. to banging on his bedroom door and yelling from Mother. Father initially tried to ignore Mother but then went to get Child. Father testified that Child was still in her crib in a dirty diaper even though she typically wakes up between 7:00 and 9:00 a.m. Father changed Child and then took her downstairs. As he was making her breakfast, Mother came downstairs and made coffee for herself. Father asked Mother when she planned on moving out and an argument ensued.
Father testified that Mother began "hurling insults," telling him that he was a "piece of shit," that he was an "a hole," and "f y ." Father began to record the argument on his cellphone. Father testified that Mother asked Father to come into the kitchen, which he did as he was holding Child. Mother continued to scream at Father. Father went upstairs, packed a bag, and called Paternal Aunt to get Father and Child. Father began recording again until he got into Paternal Aunt's car. Father testified that Child was quiet, frightened, and holding on to him. Father testified that he discussed what happened with Paternal Aunt and played the recording for her. Father then made the decision to call the Newark Police Non- Emergency Line, spoke to a police officer, and filled out a complaint. Father testified that the police pressed charges and picked Mother up that evening. Father testified that arguments, just like the one on September 2, 2020, had occurred two to three times per week leading up to the incident.
Father's Ex 3. Mother repeatedly yelled "I love a big fat d in my a ." She began to scream at him about being a drug addict. She screamed "Every f ing day - When are you moving out? WHEN I FEEL LIKE IT! F ing Fascist." She told Father he was a "scumbag." She yelled "Goddamn f ing blow your goddamn brains out already."
Father's Ex. 4 at 3:30 to 8:53. Mother stated, "I'm gonna kill this motherf er" in reference to Father. Mother started to torment Father, asking where he was going. She began to make fun of him, saying "Oh, you don't feel safe around me?" She continued to scream at Father hysterically calling him names. Mother repeatedly screamed profanities and explicit depictions.
Father testified that he has no physical or mental health issues. Father acknowledged that he has a long history of drug abuse. Father testified that he has been sober since March 2018 when he discovered that he was going to be a father. Father testified that Child is healthy and has grown a lot in the past few months. Father stated that Child used to be much quieter and reserved, but now expresses herself and talks more frequently.
Father testified that Child sleeps at Paternal Aunt's house three to five nights per week due to Father's work schedule. Father testified that his goal is to have a job working the day shift by June 2021. Father testified that Child shares a bedroom with her cousin Nina ("Cousin") who is six months older than Child. Father stated that Paternal Grandfather picks Father up on his way home from work and brings him to Paternal Aunt's house where he spends the evening with Child. Father and Child play together, eat dinner, and perform a nightly routine to get ready for bed. Father testified that in the mornings, Paternal Aunt gets Child ready for daycare. Father testified that when he is off from work Child stays at his house and stays home with him instead of going to daycare.
Father testified that Child and Cousin are extremely close. Father believes that Child's bond with Cousin is a "major part in [Child's] fast development." Child and Cousin attend the same daycare. The two girls are "close like sisters."
Father testified that Child is very important to him. Father stated that Child generally behaves well, and a short time-out is all that is needed for misbehavior. Father testified that he and Child go to the park, take walks, watch Child's favorite shows, and play with Child's toys. Father encourages Child to "be vocal and express herself no matter what." Father stated that he believes communication is very important and has Child repeat herself until he understands what she is trying to say. Father testified that he wants Child to express herself no matter what mood she is in. Father stated that when Child speaks, he "gets to her level."
Father called E B ("Paternal Aunt") as a witness. Paternal Aunt testified that Child spends the night at her home when Father works overnight. Paternal Aunt testified that Father and Child eat dinner with Paternal Aunt and her family. Paternal Aunt testified that Father does the nighttime routine with Child every night. Paternal Aunt testified that Child shares a room with Cousin. Paternal Aunt stated that Child and Cousin share a very close relationship and they miss each other when they are apart. She stated that Child is attached to Cousin.
Father's Ex. 5.
Paternal Aunt testified that Child is "very attached" to Father. Paternal Aunt testified that Father "dotes on [Child] constantly," constantly watches her to make sure she is ok, and is "constantly admiring her." Paternal Aunt testified that during the few times she observed Mother and Father together with Child, she observed Father doing all of the caretaking.
Paternal Aunt testified that Child used to be much more "hesitant" and "subdued" but "has come a long way." Paternal Aunt stated that in the past Child "just kind of stared." Paternal Aunt testified that Child is talking more, is happier, and her personality has "come out" since Father has had more time with Child.
Mother's Position
Mother seeks joint custody and primary residential placement. Mother believes that she should have primary residential placement because Father works overnight. Mother testified that she is "fine" with Father having custodial time with Child whenever he is off. Mother believes that Child would prefer to live with Mother because Child always cries when she leaves. Mother admitted that she cries herself when Child has to leave.
Mother testified that she and Father took care of Child together. Mother testified that she was primarily a stay-at-home parent. Mother stated that she would give Child baths, feed her three meals per day with snacks, brush her hair, do her laundry, and taught Child how to brush her teeth.
Mother currently resides with Maternal Grandparents in a two-bedroom home. Mother testified that she shares a bedroom with Child. Child has a separate crib, pack and play, or bed where she can sleep.
Mother testified that she worked for Home Depot as a seasonal cashier in August. Mother testified that she had a full-time position lined up in September but the job offer was revoked because of her pending criminal charge. Mother testified that she worked a part-time seasonal position at Hot Topic in October but lost the position in November when she became sick with COVID-19. Mother testified that she is currently working part-time at Lowe's as a seasonal cashier and has a second interview lined up with a warehouse in Elkton, Maryland.
Mother testified that the incident on September 2, 2020 occurred because Father "was looking for leverage to get something on her" and she just "gave it to him." Mother stated that she "just acted out of character that one time."
Mother testified that Child loves Maternal Grandparents. Mother stated that they would watch Child every weekend "just to give [Mother] a break."
Mother testified that she is not comfortable with Child and Cousin having the bond they share because it could be detrimental if Child goes to live with Mother. Mother testified that she is unsure how she feels about daycare and it is a "gray area."
Mother called C L ("Maternal Grandfather") as a witness. Maternal Grandfather testified that he had an alcohol abuse problem which he overcame in 2017. Maternal Grandfather has been sober since that time.
Maternal Grandfather testified that relationship between Mother and Father was not hospitable. He stated that it was "very hostile" with "a lot of yelling."
Maternal Grandfather testified that he used to see Child every weekend. He testified that Child was always happy to see Maternal Grandparents. Maternal Grandfather testified that Child has become "a bit needy," looking for him when he leaves to go to the bathroom or the store. He stated that Child is "very attached" to him.
Maternal Grandfather testified that Mother provides adequate care for Child. He testified that Father is needed in Child's life as well.
LEGAL STANDARD
Since the Court has never entered a final order on custody, residency, and visitation for the child after a full hearing on the merits, the Court must analyze the factors under 13 Del. C. §722 to create an Order that is in the child's best interest. Additionally, the Court shall award both parents frequent and meaningful contact unless the Court finds, after a hearing, that contact of the child with one parent would endanger the child's physical health or significantly impair his or her emotional development.
13 Del C. §722(a): The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interest of the child. In determining the best interests of the child, the Court shall consider all relevant factors including: (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 or custodians 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.
ANALYSIS: CUSTODY FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father seeks sole custody and primary residential placement. Father is not opposed to Mother having more frequent visitation with Child but believes that it should occur in "chunks" due to his own experience as a child going back-and-forth between households. Father feels that Mother's visitation with Child should be supervised because Mother does not have transportation and is not within walking distance of emergency medical care.
Mother seeks joint custody and primary residential placement. Mother believes that she should have primary residential placement of Child because Father is currently working overnight, and Child is staying with Paternal Aunt approximately five nights per week as a result.
Father provided sufficient evidence to support the need for sole custody. The testimony and evidence in this case made clear that the parties have documented and serious communications problems instigated by Mother. Mother does not appear to fully understand the effects of her past behavior and finds no reason that the parties cannot co-parent effectively. The recording of Mother's comments to Father on September 2, 2020 document that cooperation in this case is not likely to succeed notwithstanding Mother's statement on co-parenting.
Father's Exs. 3, 4.
Factor one favors Father.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Child is only two years old and is unable to adequately express her wishes.
Factor two is neutral.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabitating 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;
Father and Child have a very close relationship. Father, Mother and Child resided together from Child's birth in 2019 to September 2, 2020. Father and Child take walks together, visit the park, watch Child's favorite shows, and play with Child's toys. Father and Child have a nightly routine. When Father is off from work, Child stays home from daycare and spends the day with Father.
Child spends the night at Paternal Aunt's house three to five nights per week. Child sleeps at Paternal Aunt's home when Father is working overnight. Child shares a room with her Cousin. Child and Cousin are three months apart and very close. Child and Cousin attend the same daycare. Father believes that Cousin has played an instrumental role in Child's development. Child sees Paternal Aunt and Uncle and her cousins almost every day.
Mother testified that she shares a special bond with Child. Mother and Child resided together until Mother left Father's home on September 2, 2020. Prior to the PFA and Interim Custody Order, Mother was primarily a stay at home parent. Mother testified that she gave Child baths, fed her three meals a day with snacks, brushed her hair, did her laundry, and taught her how to brush her teeth. Mother testified that Child cries when she leaves to return to Father's after visitation. At the same time, Mother conceded that she also cries when Child leaves. Mother fails to recognize that her own tears may be causing the Child to react similarly.
Mother currently resides with Maternal Grandparents. Maternal Grandparents used to watch Child on the weekends "to give [Mother] a break." Maternal Grandfather testified that Child is very attached to him but gave no description of what they do together.
Factor three favors Father.
4. The child's adjustment to his or her home , school and community;
Child lived with Mother and Father until September 2, 2020. Child continues to reside in the same home with Father two days per week. Child sleeps at Paternal Aunt's home on the other nights that she does not have visitation with Mother. Child has her own bed, rocking chair, and seat at the dinner table at Paternal Aunt's home. Father eats dinner with Child and performs a nightly routine of getting her ready for bed and putting her to sleep when she sleeps at Paternal Aunt's home.
Child attends daycare with her Cousin. Child shares the room at Paternal Aunt's home with Cousin. Testimony and photos provided made clear that Child and Cousin have a sister-like bond.
Mother currently resides with Maternal Grandparents. Child previously spent many weekends with Maternal Grandparents and is familiar with the home. Mother testified that there is a daycare close to her home. Mother stated that daycare is a "gray area" and that she would need to research the current daycare Child attends before agreeing that it was appropriate. Mother stated that she does not want Child and Cousin to be bonded as separation of the two girls could be "detrimental" if Mother is awarded primary placement.
Both parents are hard-workers. Both parents have committed hours of work and day care is a reality. Contrary to Mother's view, Child will be with other caretakers while they are working. In this instance, Father's working hours are during the night when Child is sleeping. Child staying the night with Cousin and Maternal Aunt is a perfectly acceptable arrangement until Father is able to get daytime hours.
Factor four slightly favors Father.
5. The mental and physical health of all individuals involved;
Father does not have any diagnosed physical conditions that would affect custody. Father has a long history of drug addiction but has been sober since approximately March 2018, when he found out he was going to be a father. Curiously, Mother questioned Maternal Grandfather about his successful abstinence since 2017 but does not acknowledge the same accomplishment for Father in 2018. Both gentlemen have overcome serious problems and both should be congratulated.
Mother does not have any diagnosed mental or physical conditions that would affect custody.
Testimony from Father and Paternal Aunt indicate that prior to September 2, 2020, Child was reserved, hesitant, and subdued. Both Father and Paternal Aunt stated that Child has "come a long way," is talking more, and her personality has come out. Child is in good health irrespective of frequent colds from daycare. Child is meeting her benchmarks and is a happy young girl.
Factor five is neutral.
6. Past and present compliance by both parties with their rights and responsibilities to their child under § 701 of this title;
13 Del. C. § 701(a) states in relevant part: "The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare, and education."
Father and Mother lived together and shared responsibility for Child until September 2, 2020. For the majority of the time, Father worked and Mother was a stay-at-home parent. There was conflicting testimony regarding Mother passing off her responsibilities to Father and other family members, particularly starting in July 2020. Father took an overnight job at Wawa with plans for Mother to start working a day position. Mother started working at Home Depot in mid-August 2020 but left the position just before contact was ceased between the parties.
Factor six is neutral.
7. Evidence of domestic violence as provided for in Chapter 7A of this title;
13 Del. C. § 706A in relevant part states: (a) Any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the court in determining the legal custody and residential arrangements in accordance with the best interests of the child. --------
Domestic violence is a substantial issue in this case. Father has a PFA entered after a full hearing on the merits and a criminal no-contact order against Mother. Mother filed for a PFA against Father but the order was denied. Mother has pending criminal charges which include Endangering the Welfare of a Child stemming from the September 2, 2020 incident.
Independently from the PFA hearing, Father presented two recordings from September 2, 2020 to the Court. Both recordings contained Mother screaming profanities as loud as she was able. Mother made several threats towards Father during her screaming. Father testified that he was holding Child throughout the incident. In light of the PFA, criminal charges, and the findings in this case, sole custody is strongly supported.
Factor seven strongly favors Father.
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.
Father was convicted for Driving Under the Influence (Alcohol) in 2016 and for Driving Under the Influence (Drugs) in 2017. A requirement of Father's probation for the DUI in 2017 was to complete an at-risk DUI Course. Father misunderstood the requirement and thought he only needed to take the course to reinstate his license, so he dropped out of the course when Mother became pregnant so he could get a second job. Father discovered he had a capias due to his lack of compliance and is set to complete the course on January 20, 2021.
Mother currently has charges pending from the incident on September 2, 2020. One of the charges includes Endangering the Welfare of a Child. Mother has not been convicted of any charges.
Factor eight does not favor either party under these circumstances.
CONCLUSION
In determining custody, no single factor is determinative. Rather, the Court must weigh the totality of the circumstances and reach a decision that will best serve the interests of Child primarily, and the parents secondarily. From the evidence presented during the hearing on January 12, 2021, and upon consideration of the enumerated best interest factors, the Court finds that factors 1, 3, 4, and 7 favor Father. Factors 2, 5, 6, and 8 are neutral. The most important factor for this case is factor 7.
Domestic Violence is a serious problem and is not limited to a single gender. In this case, Mother's conduct on September 2, 2020, and the minimization of the conduct during her testimony, are reasons for concern. While Mother says she is able to co-parent, the recordings lead to a different conclusion. There is an imbalance of power in this relationship and sole custody is indicated.
For all of these reasons, and in consideration of all of the facts and circumstances of this case, the Court awards Father SOLE LEGAL CUSTODY. Father shall have PRIMARY RESIDENTIAL PLACEMENT of Child. Mother needs to have frequent and regular contact with Child and will be awarded custodial time every Sunday, Monday and Tuesday from 8:00 a.m. on Monday morning until 8:00 a.m. on Wednesday morning. Mother shall pick up Child for visitation from Father on Sunday mornings. Mother shall bring Child to daycare at the end of her visitation on Wednesday morning. If daycare is not in session, or if Father decides that Child should not attend daycare on a particular day, Mother shall bring the Child to Father's home or the location designated by Father not later than 8:00 a.m. Mother getting Child shall not be a violation of the PFA Order . Father shall have custodial time with Child every Wednesday from 8:00 a.m. through Sunday at 8:00 a.m.
The parties' communication shall be limited to issues concerning Child until the PFA Order expires. Mother may text or email Father a question or comment regarding Child. Mother may NOT follow up if Father does not respond. Father may reach out to Mother with questions or comments regarding Child.
The parents shall discuss their summer plans and agree on two non-consecutive, uninterrupted weeks of summer vacation with Child. Mother shall make her selection by March 1st of each odd-numbered year. Father shall make his selection by March 1st of each even-numbered year.
This will be a final order on the Petition for Custody and has limitations on modification for two years. The parties may agree to modify the decision but only if they are in agreement to do so.
ORDER
IT IS HEREBY ORDERED this 15th day of January 2021, that:
A. The Court awards Father SOLE LEGAL CUSTODY of A L M B , born , 2019.
B. Father shall have PRIMARY RESIDENTIAL PLACEMENT of Child in and all of the rights and responsibilities thereto. Father shall have custodial time every Wednesday, Thursday, Friday, and Saturday with exchanges at 8:00 a.m.
C. Mother shall have custodial time with Child every Sunday, Monday and Tuesday with exchanges at 8:00 a.m.
D. Mother shall provide transportation for Child to and from daycare on her custodial days. If daycare is not open, or if Father decides Child should not be in daycare on a particular transition day, Mother shall bring Child to Father's home by 8:00 a.m. on the appointed day. Mother's compliance with this section shall not be a violation of the PFA Order .
E. Each parent shall have two non-consecutive, uninterrupted weeks of summer visitation with Child. Mother shall select her dates by March 1st in all odd- numbered years. Father shall select his dated by March 1st in all even-numbered years.
F. Mother shall have Child every Mother's Day. Father shall have Child every Father's Day from 8:00 a.m. until 8:00 p.m. irrespective of summer visitation weeks.
G. Father shall have Child on the holidays in Column 1 in even-numbered years and the holidays in Column 2 in odd-numbered years. Mother shall have the Child on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in even-numbered years.
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holiday | Memorial Day |
| Fourth of July | Labor Day |
| Christmas Day | Thanksgiving Weekend |
| Halloween | Christmas Eve |
UNLESS MUTUALLY AGREED TO THE CONTRARY:
a. Easter holiday shall be from 7:00 p.m. on Saturday before Easter until 7:00 p.m. on Easter Sunday.
b. Memorial Day and Labor Day shall be from 8:00 a.m. until 7:00 p.m. on each of the holidays.
c. July 4th shall be from 8:00 a.m. on July 4th until 8:00 a.m. on July 5th.
d. Halloween shall be from 4:00 p.m. until 8:00 p.m. on October 31st.
e. Thanksgiving weekend shall be from 9:00 a.m. on Thanksgiving morning until 7:00 p.m. on the Sunday following Thanksgiving.
f. Christmas Eve shall be from 9:00 a.m. on December 24th until noon on December 25th.
g. Christmas Day shall be from noon on December 25th until 7:00 p.m. on December 26th.
H. This order may be modified by mutual consent of the parties and reduced to writing.
THIS IS A FINAL ORDER.
IT IS SO ORDERED this 15th day of January 2021.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge cc: Alyssa G. Kelly, Esquire
G L
File Date E-Mailed: January 15, 2021