Opinion
File No.: CN16-06954 Petition No.: 17-27581
09-24-2018
RE: S. T. v. C. J.
S. T. LETTER, DECISION AND ORDER Shauna Hagan, Esq.
1907 Delaware Avenue
Wilmington, DE 19806 Petition for Custody: N. J.-T. (D.O.B. 01/11/17) Dear Mr. T. and Ms. Hagan:
This is the Court's decision regarding the Petition for Custody filed by S. T. (hereinafter "Father") on September 5, 2017 against C. J. (hereinafter "Mother") in the interest of their minor child, N. J.-T., born January 11, 2017 (hereinafter "Child"). Father is self-represented, and Mother is represented by Shauna Hagan, Esquire.
Procedural History
On February 21, 2017, Father filed a Petition for Paternity Adjudication as to Child. Due to issues with service of process and payment of Court fees, it was not until August 17, 2017, in a Parentage Decree issued by the Court, that Father's paternity as to Child was established. Shortly thereafter, on September 5, 2017, Father filed his Petition for Custody. In his Petition, Father requested joint custody and shared residential placement of Child. On December 4, 2017, Father also filed a Motion for Temporary Visitation with Child. On December 18, 2017, Mother filed a Response to Father's Motion and a Counterclaim to Father's Petition wherein Mother opposed Father's request for shared residential placement and Mother requested sole legal custody and primary residency for herself and supervised visitation only for Father. On December 20, 2017, pursuant to a Temporary Contact Order issued by the Court, Father received four hours of weekly supervised visitation with Child at the Visitation Center. On January 5, 2018, Father filed another Motion for Temporary Visitation with Child which the Court denied on January 18, 2018.
At the final hearing in this matter on August 2, 2018, the parties were present along with Ms. Hagan. During the hearing, Father provided the Court with proof of his completion of a Court-approved parenting education course in July 2018. However, Mother had enrolled in but had not started her parenting education course as of the date of the final hearing. Testimony was taken from Father, paternal aunt S. T. (hereinafter "Paternal Aunt"), Father's current girlfriend T. G., paternal grandmother Z. H. (hereinafter "Paternal Grandmother"), maternal grandmother M. A. (hereinafter "Maternal Grandmother"), and Mother.
Mother filed proof of her completion of a Court-approved parenting education course on August 23, 2018, three weeks after this hearing.
Background Facts
Father, 28 years old, has lived with Ms. G. (DOB 08/03/95) in a two-bedroom apartment in Bear, DE for the last six months. His current residence is about twenty miles from Mother's residence. Father admitted that he was recently served with an eviction notice for his current residence for falling behind on rent but that the eviction petition was withdrawn when he paid off the outstanding $100 balance. Prior to that, it is unclear to the Court where Father has lived, with whom and during what periods of time since he separated from Mother. Father is employed as a truck driver for Echodata in New Castle, DE. The Court heard no testimony as to his current work schedule.
Mother, 28 years old, has lived with Maternal Grandmother and Child in an apartment in Wilmington, DE for about the last two years. There was no evidence presented that Mother is currently employed or that she is receiving any financial assistance from the State. However, on her contact sheet that she signed on the date of the final hearing, Mother made no changes to her listed employer of "Discover Card."
There was no testimony as to the size of the apartment or Child's sleeping arrangement, or whether Mother moved in with Maternal Grandmother immediately after she left her shared residence with Father.
Mother and Father were never married and have no other children in common. Furthermore, neither Mother nor Father has any children by other people. They lived together from about late 2015 until November 2016, at times in Paternal Grandmother's home and at times in their own apartment, with two brief periods of separation in July and September 2016. The parties separated for good on or about November 27, 2016, prior to Child's birth, when Mother left the relationship. Sometime after Mother vacated the residence, and when neither party was paying the rent, Father was evicted from the apartment. Father and Mother have had no substantive contact with each other since the relationship ended.
Father also reported that Ms. G. does not have any children of her own.
Although Child was born on January 11, 2017, Father had no contact with Child until the Court granted Father supervised visitation with Child at the Visitation Center pursuant to the aforementioned December 20, 2017 Temporary Contact Order. Following the issuance of that Order, Father began exercising visitation with Child on February 10, 2018. According to Father, he has been getting visits on Saturdays and Sundays for two hours each, and he has been "regular" with these visits. There was no evidence presented as to how many, if any, visits Father has missed in the last six months.
Custody
The Court has not previously entered a final custody order for Child. Therefore, in making its determination the Court must consider the best interests of Child guided by an analysis of the factors under 13 Del. C. § 722. The Court has held that some factors may be given more weight than others in the Court's analysis. The factors are as follows:
13 Del. C. § 722(a) provides: 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 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(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.
See Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997) (noting that "[t]he amount of weight given to one factor or combination of factors will be different in any given proceeding. It is quite possible that the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations.")
(1) The wishes of the child's parent or parents as to his custody and residential arrangements;
Father is seeking joint legal custody and shared residential placement. He stated that he should have shared residential time with Child, despite never having seen Child outside of the Visitation Center, because he believes that it takes two people to raise a child and since he had a role in conceiving Child that he should have a role in raising Child. Additionally, Father stated he wants more time with Child so that Child can get to know Child's paternal cousins and extended family that he has never met. Father characterized his relationship with Mother as that they are no longer in a dating relationship, but they are still "in a business relationship and the business is N.."
Mother is seeking sole legal custody and primary residence, with Father's contact with Child restricted to supervised visitation at the Visitation Center. As to residential placement, she believes there is too much "anger" and "loud sounds" in Father's residence for her to support Father having any time with Child in his home, especially since Child is too young to tell Mother if anything is wrong. Due to her concerns about Father's family's inability to protect Child from any "incident[s]" involving Father, Mother also opposes allowing Father's family to supervise Father's visits. However, Mother did not testify as to her position on increasing how many hours of contact Father has with Child every week. Additionally, Mother did not clearly articulate to the Court why she is seeking sole authority to make the important legal decisions in Child's life going forward, as opposed to sharing that parental responsibility with Father.
Therefore, the Court finds this factor to be neutral, because the parties have taken opposing positions as to both their custodial and residential arrangement regarding Child.
(2) The wishes of the child as to his custodian(s) and residential arrangements;
Due to Child's very young age, there is no way for the Court to ascertain his wishes in this matter. As a result, the Court finds this factor to be inapplicable. (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 person who may significantly affect the child's best interests; Child's Relationship with Father
Due to the very limited contact that Father has been permitted to have with Child, the Court finds it relevant under this factor that Paternal Aunt testified that she trusts her four children in Father's care and that they are bonded with him and all adore him.
Father testified that his visits with Child since February 2018 have been "great." During their times together, Father said that they read books and color together, and that Child "lights up" when he sees Father at the start of visits. Ms. G. added that Father's love for Child has been evident by how much Father has tried to get more contact with Child since Child's birth, by how Father has been "much happier" since he began having visitation with Child, and that Father often talks about trying to get more time with Child. Paternal Grandmother also testified that she knows that Father loves Child because after Father's visits with Child Father smiles a lot, and always talks about Child. Mother presented no evidence that there have been any reports out of the Visitation Center that any of Father's visits with Child have been inappropriate.
Child's Relationship with Paternal Relatives and Ms. G.
Father testified that Paternal Grandmother lives in Newark, DE but that most of his family lives in and around Elkton, MD. Father added that Child's paternal relatives are trying to establish a relationship with Child as evidenced by Paternal Grandmother coming to three of Father's visits at the Visitation Center, and Paternal Aunt and another of Father's sisters coming to one of Father's visits. Paternal Grandmother testified that Child is adorable and that she is excited about having him in the family.
There was no evidence presented that Child has spent any time with Ms. G. despite Ms. G. testifying that she has been dating Father for about the last two years. However, Father offered Ms. G., Paternal Grandmother and Paternal Aunt as possible caregiving supports for Father if there was ever a time that Father could not care for Child while Child was in his home. Child's Relationship with Mother
There was no evidence presented as Mother and Child's relationship or how they interact.
Child's Relationship with Maternal Relatives
Maternal Grandmother described Child as "my baby," without saying more, when asked about her relationship with Child. She also testified to a long list of extended family on both her side and her husband's side with whom Child has a relationship, without saying more about the nature of their relationship with Child.
As a result, due to the absence of any evidence that Father's contact with Child since February 2018 has been anything but appropriate or any evidence of Mother's interactions with Child, the Court finds this factor favors granting Father's request for joint legal custody and increasing his contact time with Child beyond four hours per week and outside of the supervised setting of the Visitation Center. However, due to Father having only limited contact with Child since February 2018 and none before that, this factor does not support giving Father shared residential placement at this time. (4) The child's adjustment to his home, school and community;
Mother testified that Child attends daycare and that he is doing "very well" there. Although the parties reside about twenty miles apart, there was no evidence presented that Child could not continue to attend the same daycare if Father began receiving residential time with Child. Additionally, there is no evidence that Child would adjust poorly to having increased time in Father's home or community other than that Child does not like loud noises. However, Child has always lived with Mother and has never had contact with Father outside of the Visitation Center. Therefore, the Court can only speculate that increasing Father's visitation beyond his current twice weekly supervised contact might pose a significant adjustment for Child even at his young age, at least initially. As a result, the Court finds that this factor slightly favors maintaining primary residency with Mother, at least temporarily, based on her history as Child's sole caregiver. However, because there was limited testimony of how adjusting to more residential time with Father would have a detrimental impact on Child, this factor also affords maintaining joint legal custody while granting Father more visitation time than the four supervised hours per week that he is currently receiving.
(5) The mental and physical health of all individuals involved;
There was no evidence presented that the parties, Ms. G., Maternal Grandmother or Child have any significant physical or mental health issues. On the contrary, Father testified he has never received nor been recommended for mental health treatment. On April 3, 2018, as a term of his current probation in Delaware, Father received a mental health and substance abuse evaluation from Brandywine Counseling Services which resulted in no recommendations for treatment. Pet. Ex. #1. Additionally, Maternal Grandmother testified that neither she nor Mother have medical issues, and that Child is happy, healthy and smart. However, although Maternal Grandmother testified that neither she nor Mother presently use drugs and that Maternal Grandmother has never abused substances, Maternal Grandmother did admit that she has had a glass of wine "every single night for twenty years." Although the Court questions whether Maternal Grandmother is able to drink wine "every single night for twenty years" and never once drink to excess, there is no evidence that Maternal Grandmother's consumption has had a negative impact on Child or any other children with whom she has a relationship. Therefore, the Court finds that this factor favors joint legal custody, Mother remaining as the primary caregiver, with the provision that Maternal Grandmother will only consume alcohol in moderation while Child is in her primary care, and Father receiving significantly more visitation time than he is currently receiving.
(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, even without a Court Order, parents are responsible for the support, care, nurture, welfare, and education of their children. As to financially caring for Child, Father admitted that he has not been paying child support to Mother, arguing that the Delaware Protection from Abuse Order (hereinafter "PFA") in place between them from December 29, 2016 until December 29, 2017 and Maryland no contact order in place from August 28, 2017 have prevented him from doing so because Mother "would call the cops" if he sent support. The Court takes judicial notice of the Petition for Support filed by Mother against Father in the interest of Child on February 22, 2018. As to his involvement in Child's medical care, Father admitted having no knowledge of Child's current medical needs due to Mother's failure to provide him with any such information to date. As to Mother's care for Child, Mother provided no details about her compliance with 13 Del. C. § 701, aside from the fact that Child is enrolled in daycare. However, Maternal Grandmother testified generally that she has no concerns about Mother's ability to parent Child and that Mother provides day-to-day care for Child without going into any detail. Therefore, the Court finds that this factor favors granting Mother a continuance of her primary residence because of Father's lack of knowledge about Child's present needs but Father's failure to actively provide for Child's care while a PFA and no contact order has been in place between the parties is not enough to favor Mother's request for sole legal custody or continue to restrict Father to only having supervised contact with Child for four hours per week.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Pursuant to 13 Del. C. § 706A, "(a)ny 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."
Both Mother and Maternal Grandmother testified that there is no domestic violence in their home at present. Although Maternal Grandmother admitted pushing Mother when Mother was 20 years old during an argument about the use of Maternal Grandmother's car, Maternal Grandmother and Mother both refused to label that one incident as evidence of domestic violence. Additionally, Mother testified that she and Maternal Grandmother have only had "yelling matches" back and forth since then. Mother further testified that she is not currently in any intimate relationship wherein domestic violence is ongoing. Although for a period in 2016, while Mother was still dating Father, Maternal Grandmother prevented Mother from accessing Maternal Grandmother's home, there is no evidence that any such tension remains between them now that Mother is no longer in a relationship with Father.
As to Father, Mother admitted to cursing at him in the past but denied ever physically abusing him. The Court takes judicial notice that although Father filed a PFA Petition in Delaware in January 2017 against Mother, the Court denied his Petition because Father did not meet his burden of proof sufficient to make a finding of abuse.
File No. CN16-06954, Petition No. 17-00978.
In contrast to the limited testimony related to this factor as to Mother, the parties devoted extensive time to allegations of violence in both Father's past relationship with Mother and present relationship with Ms. G.. During the course of her relationship with Father, Mother reported that the level of violence and abuse escalated to the climactic moment in November 2016 when Mother's call to the police precipitated the parties' separation. At first, Mother testified that Father only verbally abused her by calling her names. Then she said that Father began to both verbally and mentally abuse her. Toward the end of their relationship, Father began to physically abuse her by shoving her. Finally, Mother testified that on November 27, 2016, that Father yelled at her, shoved her, and put one hand on her neck for "five or six seconds." When she tried to use her phone, Mother alleged that Father grabbed her phone, put her on the bed, put one hand on her neck and the other in her mouth for "a number of seconds" before letting go.
Shortly thereafter, Mother filed a PFA Petition against Father. The Court takes judicial notice that on December 29, 2016 that Father was found to have committed domestic violence by default and a PFA against him was issued that was set to expire on December 29, 2017. As a term of that PFA, Father was ordered to complete a domestic violence evaluation and comply with any recommended treatment. In response to the testimony about this PFA, Father testified that he never knew about the Petition which is why he failed to contest it at the December 29, 2016 hearing. Although Father did not take a new domestic violence course after the issuance of this PFA, Father did complete the Domestic Violence Intervention Program offered through Catholic Charities on December 7, 2015 pursuant to the conditions of his criminal conviction on an earlier charge from 2014. The Court takes judicial notice that Father was found in civil contempt of the PFA by default on April 11, 2017 after he allegedly visited Mother at the hospital around the time of Child's birth.
File No. CN16-06954, Petition No. 16-38538.
Service of process over Father was secured by publication in the Cecil Whig newspaper in Maryland, a newspaper of general circulation in Cecil County, Maryland.
In addition to this finding of Father's abuse of Mother, Father also has had a PFA issued against him with regard to his relationship with Ms. G.. First, she filed a PFA Petition against Father in Delaware in October 2017. Resp. Ex. #2. In her Petition, she alleged, among others, that "[h]e's been stalking me at work and harrssing [sic] me, when Ive [sic] asked him to leave me alone." Following a full hearing on the merits with Father present, the Court issued a PFA Order against Father and in favor of Ms. G., that was set to expire on November 8, 2018. Resp. Ex. #3. However, Ms. G. filed to rescind the PFA on December 29, 2017, one week before Father was arrested on criminal charges involving a domestic dispute with Ms. G. described in the factor below. On April 11, 2018, Ms. G. filed a second PFA Petition against Father wherein she alleged, among others, that Father "[h]as choked me multiple times ... has dragged me across the bedroom floor by my hair ... [and] [h]as pushed me and smacked me multiple times." Resp. Ex. #4. Despite the gravity of these allegations, Ms. G. requested that her Petition be vacated on April 19, 2018. Additionally, at this final hearing, she testified that her allegations in the Petition were an exaggeration. Ms. G. contends that while she was lying under oath in the Petition, she was now telling the truth in Court that Father has never hit her. She added that she filed these two Petitions in Delaware, and two petitions for temporary restraining orders in Maryland in 2017 that she later dropped, because her parents were "giving her stress" and advising her to do so, and that she did not actually want to separate from Father. Furthermore, Ms. G. testified that she and Father are not fighting any longer, but instead talking like "regular human beings" when they have a disagreement. Despite Ms. G.'s stated assurance to the Court that she was telling the truth in Court and that her past filings against Father were exaggerations, the Court is extremely concerned not only by the language used in the written filings but also by the low bar that Ms. G. set for the relationship when she testified that things with Father are okay now because she is "still alive."
Ms. G. also filed a petition for a temporary restraining order in Maryland against Father in July 2017 and another petition in August 2017, both petitions of which she later dropped.
She was clear to say that she never said the events did not happen, only that she exaggerated the facts.
Finally, although Father admitted that it would not be appropriate for Child to be in a home where domestic violence is ongoing, he appears to sincerely believe that having Child in the home will improve his relationship with Ms. G. such that they will not get in any spirited arguments around him. The Court is concerned that Father views the presence of Child as a solution to address any conflict he may have with Ms. G., rather than the need to avoid such conflict for the benefit of the child.
Therefore, because the reports against Father are more recent and far more severe than the reports against Mother, and because Father has a long history of reports of violence in his home with past and present girlfriends, the Court heavily weights this factor in favor of Mother. Although the Court admits it is possible that Father and Ms. G. would magically have a harmonious, conflict-free relationship if Child were in the home, the Court is not convinced with sufficient certainty that this will in fact occur when viewed in the context of Father's long history of allegations and/or findings of domestic violence with intimate partners. As a result, Father's extensive domestic violence history, including but not limited to his relations with Mother, support Mother having sole legal custody of Child and Father not getting any visitation with Child in his home at this time until he has established a longer period of stability in his intimate partner relationships.
(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.
The Court has independently reviewed the Delaware criminal histories of the parties and all the adults who reside in the homes of the parties. Mother and Ms. G. have no criminal records apart from Mother's convictions for vehicular violations, and Maternal Grandmother only has two criminal misdemeanor convictions from 1986 for Shoplifting and Issuing a Bad Check which are not relevant to her ability to appropriately care for Child. However, Father was arrested on January 9, 2018 following an altercation with Ms. G. which resulted in Father pleading guilty to Malicious Interference with Emergency Communications in February 2018. Father was also found guilty in July 2014 of Offensive Touching following an altercation with a former girlfriend K. L. in March 2014, and of Breach of Release. Furthermore, Father pled guilty to Criminal Mischief under $1000 in September 2014 related to an incident in June 2013 of alleged domestic violence with another former girlfriend. Finally, Father is currently on level III probation in Delaware, and was in compliance with the terms of his probation as of at least July 18, 2018. Pet. Ex. #1.
Ms. G. testified that she exaggerated her sworn testimony to the police following this incident and that the words she quoted Father as saying were not his precise words. For example, instead of Father choking her as she told the police, she testified at this hearing that Father was only pushing her away. She also said that there were "not really" any bruises on her neck when she reported the incident to the police. Furthermore, at this hearing, Ms. G. characterized the incident simply as a disagreement with yelling and screaming and her "acting a [sic] fool" and injuring herself because she was "slinging."
Father also has a criminal record in Maryland. On August 28, 2017, Father was placed on 18 months of probation before judgment for a harassment charge where Mother is the victim and Father is to have "no contact" with Mother. Resp. Ex. #1. Maryland's Supervision Summary notes that Father's probation is thus to continue until February 28, 2019. However, Maryland's Probation/Supervision Order notes that "[p]robation [sic] to transfer to Delaware." Without presenting documentation in support, Father alleged that his Maryland probation ended early after he went to court in Maryland in June 2018. The Court independently reviewed Father's Maryland criminal history available for public consumption online and finds that as to this harassment charge Father had a Violation of Probation hearing with the listed outcome of "Closed Unsatisfactorily."
Although the Maryland Probation/Supervision Order does not expressly name Mother as the Victim in the case, Father admitted to this fact.
Mother testified having no knowledge that Father's probation had ended early.
MD C-07-CR-17-000100.
In addition to the above convictions, the Court is also concerned about the vast number of domestic violence-related criminal charges that Father has had with various girlfriends since 2013 that did not lead to convictions. Most recently, Father was charged with Offensive Touching on April 2, 2018 where Ms. G. was the reported victim. This charge was later nolle prossed on July 9, 2018 due to the attitude of the victim or witness. The Court is also concerned about Ms. G.'s tendency, also demonstrated in the above factor, to retract prior allegations of abuse at the hands of Father. As to the January 2018 incident that led to the Malicious Interference conviction, Ms. G. repeatedly blamed herself for "acting a [sic] fool ... slinging myself yelling and screaming at [Father] ...add[ing] fuel to the fire ... [and not] really control[ling] myself."
In addition to the civil findings described in factor seven, Father also has an extensive and recent history of criminal charges and convictions related to incidents of domestic violence. Therefore, as with factor eight, the Court heavily weights this factor in favor of Mother. As a result, Father's troubling criminal history, including but not limited to his charges where Mother has been the reported victim, support Mother having sole legal custody of Child and Father not getting any visitation with Child in his home at this time until he has established a longer period of stability in his intimate partner relationships.
In addition to the above express factors listed under 13 Del. C. § 722, the Court may consider other relevant factors in determining the legal custody and residential arrangements for Child. As a result, the Court also notes that Mother and Father, and Maternal Grandmother and Ms. G. who reside with Mother and Father respectively, have a demonstrated inability to civilly communicate with each other about Child or to cooperatively provide him with care. For example, on June 15, 2018, following a scheduled visit with Father and Child at the Visitation Center, which would have been the parties only public interaction in 2018, Ms. G. alleged that Mother drove quickly when she spotted Father's car and called out "b----" to Ms. G., who was sitting in Father's car before driving away, which Mother denied all while admitting that she was "alarmed" because she thought Father was in the car too. Additionally, on November 24, 2016, Maternal Grandmother sent a message to Father that read in part "[y]ou are a sick and abusive mother f----- ...jyst [sic] n case u think u will have a relationship with this child when he is born - that wont happen unless and until the court sends u for intensive mental health treatment ...U exhibit ALL the signs of a CLASSIC AND PROGRAMED ABUSER AND LOSER AND STOP using as a defense u were kidnapped by ur father 100 damn years ago as an excuse bc it's lame, old n tired." Furthermore, following Child's name change hearing on October 24, 2017, Mother admitted that her parents were very upset and that it is possible that either Maternal Grandmother or maternal grandfather yelled "f--- you" to Father. Finally, although Father testified that he would like to try to move on from the past, bury any lingering "bitterness," and co-parent with Mother, Mother testified that she is still not interested in co-parenting with Father because she remains concerned for Child's safety if Child were ever placed in Father's care in an unsupervised environment.
Conclusion
Based on the evidence presented, the Court finds that factor one (1) is neutral as to the Court's analysis; that factor two (2) is inapplicable; that factors three (3), four (4), five (5) and six (6) favor maintaining joint custody and primary residence with Mother but giving Father unsupervised and significantly increased contact with Child outside of the Visitation Center, possibly in the home; and that factors seven (7) and eight (8) heavily favor giving Mother sole legal custody and maintaining the arrangement that Father's contact with Child be supervised, not in the home. Upon consideration and weighing of the above factors and the evidence presented, the Court finds that maintaining joint custody, primary residence with Mother and regular visitation with Father at a frequency greater than the present four hours per week but less than shared placement to be in Child's interest. Although Mother focused much of her testimony on Father's past and present domestic violence and criminal history connected to his dating history and the Court is deeply troubled by Father's nonchalant attitude toward the allegations, Mother presented insufficient evidence by which the Court could conclude that Father's is a physical risk to Child and that therefore his interactions with Child should be restricted indefinitely to four hours weekly, supervised in the Visitation Center. Instead, what little evidence there was about Father's interactions with Child and other children, or his commitment to parenting Child supports increasing Father's involvement with Child, residentially, educationally and medically. However, this all comes with the strong caveat that factors seven and eight demand that Father not have any visitation with Child in his home until after Father demonstrates a prolonged conflict-free period in his intimate relationships with women and not before. The Court is not willing to test out Father's theory that Child will be a panacea for all that ails his volatile and toxic home. ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:
1. Mother and Father shall have joint legal custody of Child with Mother having primary residence.
2. Father shall have supervised visitation with Child at the Newark Visitation Center twice weekly for one hour each visit. After three months pass without any reported issues arising out of his contact with Child at the Visitation Center, Father's visitation with Child shall become unsupervised every week on Saturday from 10 AM to 3 PM. If and when Father begins daytime unsupervised visitation with Child, Father shall be responsible for all pick-up and drop-off of Child that shall occur at the Visitation Center After three months of unsupervised visitation, and conditioned upon the approval of his domestic violence counselor (see paragraph 6 below), Father shall have unsupervised visitation every other weekend from 5 PM Friday to 6 PM Sunday, plus every Wednesday from 5 PM to 7 PM. If and when Father begins this phase of visitation with Child, Father shall be responsible for pick-up at the outset of his visitation at a public place jointly agreed upon by the parties and Mother shall be responsible for pick-up at the conclusion of Child's visitation with Father at the same location. If the parties are unable to agree upon a location for the exchange, the exchange shall remain at the visitation center.
3. The parties may split the holidays, on a mutually agreed upon schedule.
4. Holidays : If the parties cannot reach agreement, regardless of whose day it is supposed to be, Father shall have Child on holidays in Column 1 in odd-numbered years and holidays in Column 2 in even-numbered years. Mother shall have Child on the holidays in Column 1 in even-numbered years and the holidays in Column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holidays | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
With the exception of Christmas and Halloween, Holiday contact shall be from 9AM until 6PM the day of the holiday (unless the holiday falls on your normal residential custody, then there is no change). Halloween contact shall begin at 5 PM until 9PM. Christmas Eve contact shall begin at 6PM on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6PM on December 26th.
5. Mother's Day/Father's Day : On Mother's Day and Father's Day, regardless of whose day it is supposed to be, the parent whose holiday is being celebrated shall be entitled to spend the day with Child from 9AM until 6PM.
6. Father shall engage in domestic violence counseling at his own expense.
7. At which time that Father provides proof to Mother that he is no longer on probation in Maryland or that Father's probationary period ends, the Court encourages the parties to engage in co-parent counseling. As a mechanism for engaging in such counseling, Mother and Father should jointly select a counselor and engage in co-parent counseling to assist them in communicating with each other regarding joint decision-making in the interest of Child. To the extent not covered by insurance, the cost of the co-parent counseling should be shared equally by Mother and Father.
8. The parties may modify Child's residential visitation schedule by mutual agreement in writing.
The Court reminds the parties that each parent is entitled by statute to have reasonable access to his or her child by telephone, mail, and other means of communication and to receive all material information concerning the child. Each party shall foster a feeling of affection and respect between the child and the other parent. Moreover, neither party shall do anything that may estrange the child from the other party, injure his or her opinion of the other party, or hamper the free and natural development of his or her love and respect for each party.
See 13 Del. C. § 727(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.--------
IT IS SO ORDERED.
/s/ _________
Robert Burton Coonin, Judge RBC/plr
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