Opinion
File No. CN18-03247 Case No. 20-10933
10-20-2020
S T , Petitioner, v. C T , Respondent.
David J. Facciolo, Esquire, 521 North West Street, Wilmington, DE 19801, Attorney for Father Gretchen S. Knight, Esquire, 500 Delaware Avenue, Suite 1500, Wilmington, DE 19801, Attorney for Mother
ORDER ON PETITION FOR CUSTODY David J. Facciolo, Esquire, 521 North West Street, Wilmington, DE 19801, Attorney for Father Gretchen S. Knight, Esquire, 500 Delaware Avenue, Suite 1500, Wilmington, DE 19801, Attorney for Mother ARRINGTON, Judge.
On October 12, 2020, the Court conducted a hearing on the Petition for Custody in the interest of S T (born 07/27/2003), A T (born / /2009), and N T (born / /2011) ("Children"). Petitioner S T ("Father"), represented by David J. Facciolo, Esquire, and Respondent C T ("Mother"), represented by Gretchen S. Knight, Esquire, participated in the hearing.
Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
On May 29, 2018, Mother filed a Petition for Protection from Abuse ("PFA") against Father. On June 15, 2018, Father filed a Petition for PFA against Mother. After Father's Petition for PFA was dismissed, and Mother's PFA was continued, the parties eventually consented on each petition. The PFA Order against Father required that Father not contact Mother or Children. The Order further required Father to pay temporary child support in the amount of $700.00 per month as well as the mortgage payments on the marital residence. The PFA granted Mother temporary custody of the Children. The PFA Consent Orders expired on August 22, 2020.
Dkts. #1.
Dkt. #18.
Dkt. #25.
Dkts. #32, #33.
Dkts. #46, #49.
Id.
On May 22, 2020, Father filed a Petition for Custody seeking joint custody of the Children. On July 21, 2020, Mother filed an Answer to Petition for Custody and Counterclaim. Mother denied that Father's request for joint custody was in the Children's best interest, and argued that Father's visitation should be limited and supervised. Mother's counterclaim stated that she was seeking sole custody and primary placement of the Children. On July 30, 2020, Father filed an Answer to Counterclaim, arguing that joint custody would serve the best interests of the Children.
Dkt. #166.
Dkt. #195.
Dkt. #196.
JURISDICTION
The Petition for Custody was filed on May 22, 2020. The Children lived in Delaware for approximately fifteen years. Father continues to reside in New Castle County, Delaware. Delaware has jurisdiction to make an initial child custody determination as Delaware is the home state.
13 Del.C. §1920(a)(1).
TESTIMONY OF THE PARTIES
Father offered testimony and had four additional witnesses, father's primary care doctor W B , D.O., Father's friend and business partner R D , Father's friend D M , and Father's friend J B . Mother testified and had three additional witnesses, the parties' oldest daughter A T (age 18), Mother's friend T B , and Mother's brother Y Z .
Mother and Father have four children, ages 18, 17, 11, and 9 years old. All of the children have resided solely with Mother for over two years, and aside from this litigation have not seen Father since May 28, 2018.
Father wishes to rebuild his relationship with the Children. Father would like joint custody and substantial visitation with the Children. Mother has serious concerns about the Children being forced to spend time with Father due to an extensive history of domestic violence perpetrated by Father against Mother and the Children. Mother wishes to have sole custody and that the Children have no more than telephonic visitation with Father.
Father provided testimony on his relationship with the Children before he left the marital residence. Father's testimony was contradicted by the evidence, the testimony from Mother and her witnesses, and the child interviews. Of particular impact, the parties' oldest child presented credible testimony based on her personal experience of Father's abuse while living with him for sixteen years.
Conversely, Father was less credible than other witnesses who testified on the same subjects. Mr. M 's testimony was minimally assistive. While he was able to testify that he had seen interactions between Father and the Children numerous times, the only activity he could recall witnessing was Father assisting the Children with their homework on one occasion. Domestic Violence - May 28, 2018
According to Father's recollection of the events that transpired on May 28, 2018, Mother and Children were in the kitchen when Father got a phone call from the mother of his religious friend from Ukraine who wanted to Skype. Father stated that "for no reason" Mother picked up the phone and started talking to the person on Skype and when Father requested his phone back that Mother "basically made a provocation." Father testified that Mother started beating him up and was "losing . . . her mind" and he was afraid that she was going to kill him so he left the house. The police found Father at a gas station and arrested him. The police brought Father to the police station, but soon thereafter transported Father to the hospital.
At the hospital, Father's blood pressure was 249/129. However, Dr. B testified that Father has a history of high blood pressure including in all visits to his office since the date of the alleged abuse. Due to Father's allegations that Mother had physically attacked him, the emergency room completed an Interpersonal Violence Documentation Tool. This document contains Father's description of events and documents all places where Father had abrasions and bruises, but contains no finding of abuse. The emergency department records note "New Castle County police states that the patient's story is not true and he has changed story multiple times."
Respondent's Ex. 1 at 11.
Id.
Father's Exhibit 1 recounts the details in dramatic fashion. The emergency department records state "Patient states that he is a government agent for the State Department in Russia and just returned from Paris where he was on a 'mission.' Patient stated that he was on the phone with his partner from the government" and then a description of how Father stated Mother and Adult Daughter attacked him. Respondent's Ex. 1 at 10-11. When the Court asked Father who the partner was that he was on the phone with, Father stated "it was an FBI agent." The Court questioned Father on his earlier testimony that the person on the phone was a religious leader. Father, in response, stated that the "mother" on the phone was the religious leader and her son is the FBI agent.
Father was charged with false impersonation of a police officer in connection with the incident that occurred on May 28, 2018. Father testified that the police went through his wallet and found an "expired" International Police Association card which resulted in the arrest. The cards that Father provided to the Court do not have an expiration date on them. Father testified that he never showed the police the identification that Mother introduced as Respondent's Exhibit 2, but that Mother provided those documents to the police when they went to the marital residence the following day. Father testified that he has two different passports because his name is very common in Russia and he was originally mailed one that contained the wrong picture and birth date. However, the exhibits have no expiration date, multiple birthdates, and the same picture. Father testified that he has not returned the incorrect passport because he has not been back in Russia to do so. Father's tortured explanations strain credulity.
Respondent's Ex. 2 at 2.
Mother's description of the incident on May 28, 2018 differs substantially from Father's version. According to Mother, Father was talking on the phone and passed it to Mother to talk with a family friend. When asked how things were going with her life and her family, she told the friend on the speaker phone that Father's drinking had become severe; that Father had disconnected both Mother's phone and the adult daughter's phone; that Father had become very violent and aggressive; and that Father had removed her access to credit cards. Father heard the last part of the conversation after returning from the bathroom. Father became very angry, took the phone from her, and threw the phone on the ground, and started pushing and yelling at her. Mother testified that the adult daughter called the police and Father ran to the porch. Mother stated that when the police showed up, her blood pressure was high and she was taken to the hospital. Mother stated that neither she nor the adult daughter put their hands on Father. The adult daughter's description of the incident coincides with Mother's.
Home Life
The parties moved into the marital residence in 2014. Prior to the move, they lived in one of three connected condominiums in Wilmington. Mother and the Children lived in one condominium, Father lived in a second, and the third was used for storage and to host guests.
Father outlined a "typical father-child relationship" when he lived with the children. According to Father, the family belonged to two Orthodox churches in Wilmington that they attended regularly. The family would go on vacation three times per year, visit relatives, go fishing, go hiking, and work together in Father's library. Father introduced photographs of Father with the Children. Mr. D 's and Mr. B 's limited testimony were offered to support Father's version of the story although neither of them were with Father on any of the vacations. In fact, Mr. D was clear that his involvement with Father was limited to business transaction in New York.
Petitioner's Ex. 2.
Mother and the adult daughter described in detail a much different situation. According to Mother, the family did indeed go on vacations and occasionally partake in activities with Father, while simultaneously suffering from daily abuse by Father. Father yelled at Mother and the Children every day. Father called Mother and the Children names and continuously insulted them. Father pushed Mother countless times in front of the Children, as well as pushed the Children many times. The Children were afraid to go in the kitchen and they would hide in their rooms and lock the doors, and Father would knock on the doors and yell at them.
Father would treat the Children "like servants," requiring them to chop wood and make postings for him on E-Bay from the time they got home from school until sometimes 12:00 a.m. or 1:00 a.m. The children would get minimal sleep, which resulted in them having numerous absences and frequent tardiness at school. The Children would not have time to do their homework, which affected their grades significantly.
Mother provided report cards for the children from the years ending in 2018 through 2020. Respondent's Ex. 4, 5, 6. The report cards for the children show improvements in their grades and significant decreases in their absences and tardiness after the PFA was issued against Father. For example, in the 2017 - 2018 academic year, the 17 year old child was absent 20 times and tardy 47 times. Respondent's Ex. 5 at 1. In the 2018 - 2019 academic year, he was absent 6 times and tardy 7 times. Id. Between the two years, his year to date grade point average also increased from a 2.2 to a 4.4. Id.
Father rarely attended church with the family when Mother and Father were together. Father made fun of Mother and the Children for being "religious fanatics" and for praying. Father would refuse to bring Mother and the Children to church and he did not pray with Mother and the Children as a family.
Father would often wear women's lingerie around the home. While Father argued that he wore compression stockings, the detailed testimony from other parties described Father wearing lacy pink or white underwear at any times that Father did not have pants on. The Children and Mother often saw Father in women's lingerie in the early morning or before bed.
Father introduced a prescription for compression stockings dated February 6, 2019. Petitioner's Ex. 3. On cross examination, Father testified that he did not have his older prescriptions and had to have a new one written.
Father was drunk most of the time. Father would drink throughout the night, almost every night, and as a result was never able to drive the family around. Mother and the Children often had to ride the bus in order to get anywhere. Mother believes that Father was receiving treatment for alcohol abuse while he was in the Ukraine for over a month in 2018. Father denied those allegations and testified that he had to go to the Ukraine to have surgery on his shoulder because Mother "damaged the nerve," on May 28, 2018. Father's records of the alleged shoulder surgery were not authenticated and could not be admitted into evidence.
Mother has always been the primary caretaker of the Children, and she has a very close relationship with all of them. Mother supports and nurtures the children.
Mother does everything that she can with the Children, including homework, reading, going to the beach, playing piano, playing Minecraft, and playing with Legos.
The Children's testimony was significant, particularly from the 18 year old daughter and the 17 year old son. Each of them recounted Father's horrific treatment of Mother and the Children. The daughter explained that Father never truly supported her or her siblings. Father would drink all day and would wear women's underwear. She was deeply affected by Father's refusal to attend her concerts, a claim which Father denies, and she had to go to her performances on the bus. She intends on having no contact with Father in the future and is concerned for her siblings' welfare and safety.
As strong as the daughter was, the son's testimony was even more compelling. The son described how he would be told to chop wood instead of doing homework. He testified that he would have to go in the dark to chop the wood and his younger sister would have to carry it. Other times, the children would "have to do E-Bay" for Father by logging in and posting items for sale. The 17 year old son is even more concerned for his Mother and younger siblings. He personally observed the abuse from Father against Mother and is very protective of Mother as a result. Once he reaches age 18, he intends on having no contact with Father.
Health Concerns
Father has been unable to work for the past two years because of physical injuries. Father suffers from anxiety and depression but believes that it is treatable. Father is currently on temporary disability. Dr. B testified that he sees a significant difference in Father from August 2018 to the current time, and feels that Father is doing fine off of his medication. Dr. B stated that Father needs to continue his blood pressure medication as he has chronic hypertension.
Father testified that he attended a probation and parole self-reporting drug assessment where he was not recommended to need substance abuse treatment. Father stated that he cannot drink due to the medication that he is currently taking for his disabling conditions.
LEGAL STANDARD
Since the Court has never entered a final order on custody, residency, and visitation for the children 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 children'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 children with one parent would endanger the children's physical health or significantly impair their 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 joint custody, claiming that he has not seen the Children in over two years and that Mother is trying to excise him from their lives. Father argues that, because Mother cannot talk to Father, if joint custody is not granted he will not have any involvement or knowledge about the Children's lives. In terms of placement, Father wants visitation to occur with him in Delaware. Father acknowledges that face-to-face visitation cannot occur until both he and the Children have had therapy, but that visitation over FaceTime should occur in the meantime.
Mother seeks sole custody and primary placement. Mother's only proposal for visitation is telephonic contact, but she indicated that the Children may not be willing to talk to Father.
Due to a long history of domestic violence between Mother and Father, Mother understandably is unwilling to communicate with Father. Mother has been the primary caretaker of the Children throughout their entire lives. Father's history of controlling behavior is of concern to the Court. Mother's position is reasonable and supported by the credible testimony in this case.
Factor one favors Mother.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements; 17 Year Old Child.
The 17 year old was very clear with the Court that he does not want any contact with Father. He explained that he desires no relationship with Father because Father is "an abusive person." He would have to chop wood and "do E-Bay" right after getting home from school and would not be allowed to do his homework. He described an incident with Father where Father forced him to clean leaves from the roof, and as he was climbing down the ladder, Father pushed him, causing him to fall down. He described another incident where he was carrying Father's equipment and Father pushed him, but that he made sure to fall on his back because he knew Father would become upset if any damage was done to the equipment.
The 17 year old told the Court that Father was "constantly drunk." He knew Father was drunk because Father would slur his words, smell badly, and have an array of bottles next to him. He also saw Father in women's underwear any time that Father did not have pants on, typically in the early morning and before bed. He also described two incidents that his older sister described where Father came into the kitchen and angrily pushed the 9 year old's head, and the incident after his older sister's eighth grade graduation where Father pushed Mother.
The 17 year old is very angry and bitter during any discussion of Father. While his demeanor relaxed when speaking about Mother and Maternal Grandparents, it quickly reverted back to one full of disgust at the mention of Father. He feels that Father hates him and his siblings, and does not think that Father will change. For those reasons, he does not want his younger siblings to have to spend time with Father.
The 17 year old stated that he gets along well with Mother and wouldn't be who he is without her. He also stated that he gets along well with Maternal Grandparents. 11 Year Old Child.
The 11 year old child's interview appeared heavily influenced by her older siblings. She never wants to see Father again because she is scared of him and because he is abusive and "always drunk." When the Court asked her to explain what she meant by "abusive," she explained that Father was constantly yelling at the family and physically abusing Mother and her siblings. She said she had to carry stacks of wood from the backyard during all times of the day, and crop photos for "E-Bay stuff."
Although Mother informed the Court that the 11 year old was scared before she came to talk to the Court, the child was very calm. She did not appear to have the strong negative feelings that her older siblings have for Father.
When the Court asked the 11 year old child if she had anything else she wanted to share, she explained that Father pushed Mother many times and Mother had many bruises. She told the Court about Father coming into the kitchen and pushing the 9 year old brother on the head, causing him to fall off. The Court inquired again whether there was anything else she wanted to share, and she restated her older brother's story of Father pushing him while he was carrying Father's equipment. 9 Year Old Child.
The Court would not ordinarily interview a child at age 9 but did not want the child to feel left out as each of his siblings were given a chance to speak. He appeared nervous and did not share anything with the Court about his Mother or Father. Summary of Factor Two Findings.
While Adult Daughter is not subject to this analysis, her concern for her siblings plays a part in this decision. She is worried that the safety of her siblings will be put at risk if they are required to visit with Father. She knows that her siblings have bad memories of Father and that they are fearful of him.
The 17 year old has similar concerns for his younger siblings. He stated unequivocally that he does not wish to have any contact with Father.
The 11 year old expressed that she does not wish to have any contact with Father, but appeared heavily influenced by her two older siblings. Her memories of Father that she shared with the Court were all memories that the others had already testified to, including one that she did not personally observe.
The 9 year old did not share his feelings about Mother or Father with the Court
Factor two weighs strongly in favor of Mother.
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 was the only one to testify about positive experiences between Father and the Children. Father provided pictures to the Court and testified about happy memories between Father and the Children, the majority of which occurred during family vacations. Father's witnesses did not see anything negative between Father and the Children, but they did not testify to seeing any particularly positive interactions between Father and the Children.
Mother, Mother's witnesses, and two of the Children all described a very negative relationship between Father and the Children. The relationship included anger, yelling, and abuse. The Children are afraid of Father and have negative memories of their time spent with him.
There was no evidence provided about the relationship between Father's family and the Children as Father's family lives in Ukraine. The 17 year old testified that Paternal Aunt visited once and that she was harsh and demanding like Father.
The Children are all very close with Mother and feel that they can tell her anything. Mother has been their primary caretaker throughout their entire lives.
The Children enjoy spending time with Maternal Grandparents and Maternal Uncle. Prior to moving to Florida, they used to see the relatives at least once per month.
Factor three weighs in favor of Mother.
4. The child's adjustment to his or her home , school and community;
The Children were adjusted as well as possible under the circumstances when they lived in Delaware. They regularly attended church, had friends, participated in historical societies, and regularly visited Maternal Grandparents and Maternal Uncle. If the Children were to visit Father, they would be in the same school district that they attended before leaving Delaware.
The Children appear to be very happy in Florida. They are enjoying their schoolwork and teachers, and making friends virtually due to the Covid-19 pandemic. The Children continue to attend church in Florida.
Factor four favors Mother.
5. The mental and physical health of all individuals involved;
Father suffers from anxiety and depression. Father took medication for almost two years but recently stopped. Dr. B testified that he sees a "significant difference" in Father and supports him currently being off of the medication. Father also suffers from chronic hypertension and numerous injuries from car accidents. Father is physically disabled and unable to work at this time.
It is difficult for the Court to ascertain whether Father is drinking at this time. Father is adamant that he does not have a drinking problem but Mother and the Children paint an entirely different picture. However, it has been over two years since Mother and the Children have had contact with Father, and it would be impossible for them to know whether Father is continuing to abuse alcohol. Dr. Bilski has never smelled alcohol on Father nor has he seen Father appear to be intoxicated. Father has not appeared to this Court intoxicated or smelling of alcohol.
Mother and Children testified to Father behaving inappropriately in several ways discussed above. A reasonable Father would not behave in these ways in front of his children. These behaviors raise concern for the Court as to Father's mental health, beyond the issues of anxiety and depression.
Mother has high blood pressure and allergies. Each of the Children suffer from allergies, but Mother reports that they are all doing much better in Florida.
Factor five weighs slightly in favor of Mother.
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."
It is uncontested that Mother has been the primary residential parent for the Children not only after separation but during the marriage. Mother provided caretaking while Father was the bread winner. While Father provided financially for the family, there is little to no evidence of him providing in any other ways. Father's limited involvement is shown by his living in a totally separate condominium from Mother and Children when they lived in Wilmington.
Father may have been the only adult working, but he forced the Children to do his work for him regularly.
Mother provided the Court with the Children's report cards from the school years ending in 2018 until 2020. The Court notes that the Children's grades not only improved after Father left the marital residence, but that the Children had substantially less absences and tardiness. The older son's testimony concerning chopping wood instead of doing homework adds credence to this fact. Father would force the Children to stay up working late, resulting in them not getting enough sleep. Mother and the 17 year old child reported that Father would inappropriately wear women's underwear around the Children. Father stopped paying child support and the mortgage on the marital residence, even though required by the PFA.
The Children trust Mother. The Children know they can go to Mother for anything, and they feel very close to her. It was clear from the testimony of the parties and the interview of the Children that the Children are afraid of Father and now have only bad memories of him.
Factor six weighs strongly in favor of Mother.
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.
Each party filed PFA petitions and each party consented to an order. As Consent Orders do not have a finding of abuse, the existence of the Order is not evidence of domestic violence. Notwithstanding the lack of a finding of abuse in a consent PFA Order, the parties are able to present evidence on this factor during the custody hearing.
Mother and Adult Daughter testified that Father pushed Mother on May 28, 2018. Father testified that it was Mother who attacked Father on that day. Both parties went to the hospital due to high blood pressure. Father's emergency room records from that day indicate that Father had several abrasions and bruises that have not otherwise been explained, but there is no evidence to conclude that Mother caused any of them.
Mother testified that Father would abuse her in front of the Children. Adult Daughter, 17 year old child, and the 11 year old child independently said the same. Mother testified that Father would push the Children and treat them like servants. Multiple stories were given by Adult Daughter and the Children about times when Father physically abused the Children.
Father has taken a domestic violence course and was able to provide the Court with an example of what he "learned in the course." While the Court is pleased that Father may have learned something valuable, the Court must point out that it will take much more than a single course to repair the damage that Father has caused.
Factor seven weighs strongly in favor of Mother.
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.
Neither party has a criminal record that would cause the Court concern in deciding visitation of the Children.
Factor eight is neutral.
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 October 12, 2020, and upon consideration of the enumerated best interest factors, the Court finds that factors 1, 2, 3, 4, 5, 6, and 7 weigh in favor of Mother. Factor 8 is neutral. Of all of the best interest factors, it is factors 2, 6, and 7 that carry the most weight in this case. Factor 2 has a high predictive value as the older the children become, the more strongly their negative feelings become for them. At the same time, each of the older children are fearful of what a renewed relationship with Father would do to the younger children.
Based upon all of the factors and in consideration of the totality of the testimony, the Court awards Mother SOLE LEGAL CUSTODY of the Children. Mother shall have PRIMARY RESIDENTIAL PLACEMENT of the Children. At this time, pursuant to 13 Del. C. § 728(a) , the Court finds, after a hearing, that contact between the Children and Father would both endanger their physical health and significantly impair their emotional development.
13 Del.C. §728(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.")
As discussed in detail in this Order, Father has subjected the Children to physical and emotional abuse throughout their lives. The Children are fearful of Father because of the plethora of times that he has pushed them, screamed at them, and forced them to perform manual labor for no apparent reason. The older children are burdened with severe anger from the harm Father has caused them. Given the many incidents in which Father physically harmed the Children, the Court finds that further contact between Father and the Children would endanger their physical and emotional health. Contact between Father and the Children would also significantly impair the emotional development of the two younger children. The 18 year old adult daughter and the 17 year old son are full of anger and mistrust due to their abuse by Father. There is a significant risk that the 11 year old and the 9 year old could have the same fate if they are forced to have contact with Father as he has requested.
"A non-custodial parent's right to visitation is an important, natural and legal right; however, it is not an absolute right but 'one which must yield to the good of the child.'" At this time, the Court Orders that Father have no contact or visitation with the Children. If Father wants to rebuild his relationship with the Children, he must earn their trust by proving that he is no longer a risk to their safety or well-being. In order to assist Father in preparing for that time, Father is ordered to participate in significant therapy with a provider chosen by Mother. Father must provide a list of providers within his insurance network to Mother so that she is able to make a choice.
Winter v. Charles, 608 A.2d 731 (Del. 1992) (Table).
For other examples of where the Court denied visitation, see: J.P. v. D.B., 2010 WL 5657044, at *7 - *12 (Del. Fam. Ct. Nov. 5, 2010) (where the mother was denied visitation and contact due to a history of abusing and neglecting the children on a regular basis. The children were fearful of the mother due to all of the abuse and the children would have setbacks whenever there was a chance of contact with the mother); W.B.R. v. I.B.R., 2005 WL 4147384, at *1 - *2 (Del. Fam. Ct. Dec. 12, 2005) (where the mother was denied visitation because the children did not wish to see her. During supervised visits, the mother would taunt the children and ignore them when they spoke to her). --------
Mother is encouraged to enroll the Children in therapy for their own well-being. The Children have been through an enormous amount of trauma, and it is important that they properly work through the trauma so that it does not hinder their growth as young adults.
Once Father has completed a certified domestic violence treatment program, and his therapist can testify that Father is actively engaging and making progress, Father may petition this Court for Visitation. At that time, if warranted, the Court will require reunification counseling for Father and the Children. Neither contact nor visitation will start until the Children's therapists believe that it will no longer significantly impair their emotional development. The Court notes that if visitation is ever granted, it will likely be supervised, but reserves the right to make that decision at a later time.
ORDER
IT IS HEREBY ORDERED this 20th day of October 2020:
1. Mother shall have SOLE LEGAL CUSTODY of the Children.
2. Mother shall have PRIMARY RESIDENTIAL PLACEMENT of the Children.
3. Father shall have NO CONTACT or VISITATION at this time.
4. Father shall enroll in personal counseling with a counselor selected by Mother to address the abuse perpetrated by Father against Mother and the Children.
5. THIS IS A FINAL ORDER ENTERED AFTER A FULL HEARING ON THE MERITS. Therefore, any future modifications shall be made pursuant to 13 Del. C. § 729(c).
IT IS SO ORDERED this 20th day of October 2020.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge cc: David J.J. Facciolo, Esquire
Gretchen S. Knight, Esquire
File Date E-Mailed: October 20, 2020