Opinion
File CS13-01485 Petition 21-22592
03-01-2023
A.M. v. S.J. L.
LETTER DECISION AND ORDER
Dear Mr. Gay and Mr. Bever: On December 1st and 2nd, 2022, the Court conducted a virtual hearing regarding the petition to modify custody filed by A----- M------- ("Father") in the interest of the parties' child, A-- M------- ("A--"), born ----------, 2012. Appearing before the Court were S---- J. L------- ("Mother"), represented by David J. Bever, Esquire ("Mr. Bever"), and Father, represented by Thomas E. Gay, Esquire ("Mr. Gay"). Both parties provided testimony to the Court. The Court also heard testimony from L---- M------- ("Ms. M-------"), Father's wife; S------ M------, LCMPH ("Ms. M------"), Father's selected therapist who has been monitoring TelePsych visitation between Father and A--; and J---- S--------S----, MS, MLLP ("Ms. S--------S----"), who was chosen by Mother to facilitate Tele-Psych visitation between Father and A--.Based on the evidence presented during this hearing, the Court's decision is as follows.
Mr. Gay and Mr. Bever both submitted flash drives to the Court at the outset of the hearing. They were admitted as Petitioner's Exhibit 1 and Respondent's Exhibit 1, respectively.
Chris Verduin ("Ms. Verduin") served as a Portuguese interpreter for Ms. M-------.
Tele-Psych is a form of remote therapeutic contact where therapists are present on both ends to guide the interaction.
Procedural History
The parties entered a Consent Agreement and Order on Custody, Placement, and Visitation of A-- ("Custody Stipulation") on January 22, 2015. Pursuant to that agreement, Mother had sole legal custody and primary residency of A--, and Father's visitation was at the discretion of Mother. On January 12, 2017, Father filed a Petition to Modify Custody, seeking an award of joint legal custody and a visitation schedule. Mr. Bever filed a response on behalf of Mother on March 1, 2017.
The Court conducted a case management teleconference on June 7, 2017. At that time, the Court scheduled an Interim Visitation Hearing on July 26, 2017, to address Father's request for interim therapeutic contact with A--pending the custody modification hearing. The Court memorialized the teleconference in an Order dated June 12, 2017. It indicated that the custody modification hearing would be scheduled according to a case management conference following the Interim Visitation Hearing.
On July 10, 2017, the Court conducted a teleconference on several discovery motions that were filed. However, at the teleconference, Mr. Bever and Mr. Gay represented that they had resolved the discovery issues for purposes of the Interim Visitation Hearing. Counsel submitted an Interim Confidentiality Stipulation and Protective Order to the Court on July 24, 2017.
The Court conducted the Interim Visitation Hearing on Father's Petition to Modify Custody on July 26, 2017, and it issued an Interim Visitation Hearing Order on August 23, 2017 ("2017 Interim Visitation Order"). Under the 2017 Interim Visitation Order, the Court granted Father's request for interim contact with A-- via Tele-Psych. The parties were ordered to select their own therapists to facilitate Tele-Psych, and they were to share equally in the costs of A--'s therapist, who was to be chosen by Mother. The Court instructed the parties and A-- to meet individually with their selected therapists to discuss Tele-Psych protocols. Tele-Psych was to begin once deemed appropriate by the therapists. Further, Father was to continue participating in cognitive-behavioral therapy ("CBT") with Dr. G----- - V-------- ("Dr. V--------") and submit to a psychological evaluation pursuant to Family Court Rule of Civil Procedure 35. A two-day Custody Modification Hearing was scheduled for January 25 and 26, 2018.
On September 13, 2017, the Court conducted a teleconference to discuss the parameters of the Rule 35 psychological evaluation it ordered Father to submit before the Custody Modification Hearing. The Court ordered Father to submit to the assessment if Mother wished to proceed with the request, choose a psychologist to conduct the evaluation, and advance all costs associated with the evaluation.
On December 4, 2017, the Court conducted a teleconference concerning three pending issues that were cited in various motions filed by both parties: (1) Father's discovery requests, including the name and contact information of Mother's selected therapist for A--; (2) the lack of Tele-Psych visitation between Father and A--; and (3) communications between Father and Mr. Bever. On November 17, 2017, Mr. Bever submitted a letter written by M------ G----- ("Ms. G-----"), Mother's selected therapist, to the Court. Ms. G----- indicated that after speaking with Ms. M------ and Dr. V--------, she was not confident that Father thoroughly understood his obligations in the Tele-Psych process. Additionally, Ms. G----- questioned if contact between Father and A-- would be detrimental to A--'s well-being based on the case history and conversations with Mother and Father's exwife, K---- T----- ("Ms. T-----").
These motions included: Motion - Rule to Show Cause ("RTSC") filed by Father on October 3, 2017 and the response thereto filed by Mr. Bever on October 5, 2017; Motion for a Protective Order filed by Mr. Bever on October 3, 2017; Motion to Strike filed by Father on October 4, 2017 and the response thereto filed by Mr. Bever on October 5, 2017; Motion to Compel and for Sanctions filed by Father on October 4, 2017 and the response thereto filed by Mr. Bever on October 9, 2017; Motion for Communications Limitations filed by Mr. Bever on October 5, 2017 and the response thereto filed by Father on October 10, 2017; Motion - RTSC and Sanctions filed by Father on November 17, 2017 and the response thereto filed by Mr. Bever on November 22, 2017; and a letter submitted to the Court from Mr. Bever on November 17, 2017.
At the teleconference, the Court postponed the two-day Custody Modification Hearing and scheduled a hearing on January 25, 2018, a day previously set aside for the custody modification hearing, for the Court to consider testimony from the parties' selected therapists and render a decision regarding contact between Father and A--. Additionally, Mr. Bever was to submit the name and credentials of Mother's chosen therapist to Father and Father's requested discovery documents, redacting any information that would reveal Mother's location. Finally, the Court granted Mr. Bever's Motion for Limited Communications, and Father and Mr. Bever were ordered to communicate only in writing for the case duration.
Father filed a Motion for Temporary Custody and RTSC and for Sanctions on December 29, 2017 claiming that Ms. G----- wanted payment prior to any therapeutic sessions between Father and A-- and was unwilling to move forward with the process until payment was satisfied. However, Father stated that Ms. G----- would not provide him with the necessary billing information after he requested it numerous times. In his Answer, Mr. Bever stated that Father has been requested to pay for the services and has repeatedly refused to do so. In an Order dated January 11, 2018, the Court stated that it would address all relevant issues regarding TelePsych, including the issues raised in Father's motion, at the hearing scheduled for January 28, 2018.
The Court held the hearing on January 25, 2018 to consider testimony from the parties' selected therapists and render a decision regarding Tele-Psych visitation between Father and A--. The Court subsequently issued an Order on March 27, 2018; it affirmed its decision in the 2017 Interim Visitation Order that granted Father's request for therapeutic contact with A-- via Tele-Psych and ordered the Tele-Psych process to resume immediately. It noted that the Court intended that the selected therapists prepare Father and A-- for the contact separately and then move to Tele-Psych visitation. Further, the Court indicated that Father is considered a perpetrator of domestic violence under 13 Del. C. § 703A(b) due to his third-degree assault no contest plea against Ms. T-----. Therefore, Father was ordered to participate in and complete an approved domestic violence program within six (6) months of the issuance of the Order. The completion of the program was not required for Tele-Psych to resume. If Ms. G----- was unwilling to continue with Tele-Psych, Mother was ordered to choose another therapist to facilitate the process within 15 days of the issuance of the Order. Once selected, Mr. Bever would immediately exchange the contact information and credentials for the newly designated therapist with Father and Ms. M------. The Custody Modification Hearing was rescheduled for September 27 and 28, 2018.
Pursuant to 13 Del. C. § 703A(b): "'[p]erpetrator of domestic violence' means any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:
(1) Any felony level offense;
(2) Assault in the third degree;
(3) Reckless endangering in the second degree;
(4) Reckless burning or exploding;
(5) Unlawful imprisonment in the second degree;
(6) Unlawful sexual contact in the third degree; or
(7) Criminal contempt of Family Court protective order based on an assault or other physical abuse, threat of assault or other physical abuse or any other actions placing the petitioner in immediate risk or fear of bodily harm."
See State ex rel. Dalke, 1999 WL 692078 (Del. Fam. 1999), where this Court held that a father was a "perpetrator of domestic violence" due to three convictions of third degree assault against women with whom he cohabitated, despite the fact that none of the women were the mother of the child at issue or resided in the child's home.
Mother filed a Motion to Reargue on April 3, 2018. She submitted a copy of an order issued by the Delaware Board of Medical Licensure and Discipline dated March 19, 2018, in which Dr. V-------- was temporarily suspended from the practice of medicine for various reasons, including violations of controlled substance prescriptions and giving a patient a handgun and switchblade to hold after several law enforcement officers arrived at his office. In her motion, Mother argued that the Court's conclusions regarding interim contact between Father and A-- were "at least partially made" due to testimony from Dr. V-------. Therefore, Mother requested that the Court strike all testimony and recommendations given by Dr. V-------- as an expert pending the ability to cross-examine him at a future hearing. Nonetheless, Mother did not request that the Court stay contact between Father and A-- but instead asked the Court to "take whatever steps deemed appropriate... to [e]nsure that the best interests of the minor child are protected."
The Court denied the motion as it found that the exclusion of Dr. V--------'s testimony, recommendations made at the January 25th hearing, and evidence regarding Dr. V--------'s suspension would not alter the Court's decision. The purpose of the hearing was to consider testimony from the parties' selected therapists relating to the Tele-Psych process and render a decision regarding contact between Father and A--. In making its determination, the Court instead weighed the testimony of Ms. M------ and Ms. G-----.
The Court also indicated that the Order was without prejudice to the introduction of evidence regarding Dr. V--------'s suspension at the two-day Custody Modification Hearing scheduled for September 27th and 28th, 2018. Further, the Order was without prejudice to Dr. V--------'s appearance at the hearing to be subjected to cross examination relating to his suspension, treatment of Father, and testimony throughout this case.
The Court conducted a teleconference on July 20, 2018 concerning a Motion and Request for a Teleconference filed by Father on May 2, 2018, asking the Court for clarification on four issues: (1) Father's participation in a court-ordered domestic violence program; (2) Father's continued involvement in CBT after Dr. V-------- was suspended from the practice of medicine; (3) the parties' pending discovery requests; and (4) the prior Confidentiality Stipulation and Protective Order. Following the teleconference, the Custody Modification Hearing was continued and rescheduled for December 18th and 19th, 2018 because Father would not have been able to complete his domestic violence program in time for the hearing. Father was also no longer required to participate in CBT. Each party was ordered to submit to the opposing party and the Court all discovery requests that remained outstanding by July 30, 2018 and any objections to the requested documents by August 10, 2018.
The parties submitted their respective discovery requests on July 30, 2018, and both submitted responses on August 10, 2018. The Court comprehensively addressed each request that the opposing party contested. All discovery requests granted by the Court were ordered to be completed and exchanged by November 19, 2018.
The Court conducted a teleconference after receiving two letters from Mr. Bever on December 12, 2018. Mr. Bever requested that two witnesses from the Delaware State Police be permitted to testify first on December 19th as they had other obligations later in the day. Additionally, Mr. Bever indicated that he intended to call Ms. T----- as a witness. He requested that Megan McGovern, Esq. ("Ms. McGovern"), who was representing Ms. T---- - in another custody matter involving Father, be permitted to appear by phone during her client's testimony to ensure her interests are protected. Father submitted letters to the Court on December 13, 2018 opposing both requests. The Court granted Mr. Bever's request for the police officers to testify on the morning of December 19th. However, the Court denied Mr. Bever's request for Ms. McGovern to appear by telephone because Father and Ms. T----- 's matter was still ongoing, Ms. McGovern did not have standing to participate, and custody hearings that occur in Family Court are private.
See 13 Del. C. § 726; Family Court Rules of Civil Procedure 90.1(c) and 42.2.
Father informed the Court that he had been unable to obtain A--'s counseling record from Mother's selected therapist, B------- B------ ("Mr. B------"), as granted by the Court's order, but he admitted that he had not asked for it. The Court responded that Father was permitted to request the records, and if he feels that he is prejudiced by not having the records after the hearing, he may ask that the Court keep the record open. Mr. Bever indicated that he only intends to call Mr. B------ as a witness if it is necessary to show Mother's compliance with the Court's order. Father made no such request at the conclusion of the hearing, and Mr. B------ was not called to testify.
Following the two-day Custody Modification Hearing held on December 18thand 19th, 2018, the Court issued its Custody Order on March 11, 2019 ("2019 Custody Order"). Mother was granted sole legal custody and primary residency of A--. The Court found that it was in A--'s best interest for Father's visitation to continue in a therapeutic setting via Tele-Psych under the direction of Ms. M------ and Mr. B------. If either therapist discontinued their services, Mother was responsible for selecting A--'s therapist, and Father was responsible for choosing his own. Additionally, Father was granted one supervised visitation with A-- in Mr. B------' office for three hours on alternating months. Father was responsible for any necessary travel accommodations and costs associated with his participation in the visits. The date and time of each visit were to be mutually agreed upon by the parties and therapists. Moreover, the Court ordered that if Mother and A-- traveled to Delaware, Father would have a three-hour supervised visitation with A-- in Ms. M------'s office. Mother was to provide reasonable notice of the trip to Father and both therapists for the visit to be scheduled appropriately and coordinated. The Court ordered the therapists to coordinate A--'s arrival to and departure from the visits to ensure that no contact occurs between the parties. Finally, the parties were to continue to share the costs of A--'s therapist equally, and Father was responsible for his own therapist's costs.
On September 24, 2021, Father filed a Petition for Modification of Custody and Visitation. Mother submitted her answer, through Mr. Bever, on October 19, 2021. On February 4, 2022, the Court conducted a virtual case management conference regarding Father's petition. The Court stated that it had reviewed both the custody modification petition and the answer to the petition. It found that both pleadings clearly articulated each party's position. Father confirmed that since the entry of the Court's 2019 Custody Order, he had A--iled himself of the visitation and contact with A--, with the exception of some circumstances created by COVID-19. Father and Mr. Bever agreed that two days of trial time would be best. Mr. Bever requested that the trial be scheduled in mid-to-late July to allow sufficient time to complete the necessary discovery and depositions. The Court scheduled a two-day in-person trial for July 27th and 28th, 2022 and set a discovery cutoff deadline of June 1, 2022. Father requested the Court to enter an Order requiring the parties to participate in Alternative Dispute Resolution (ADR) pursuant to Family Court Civil Rule 16.3. He believed that the parties might be able to successfully mediate matters and avoid the need for trial. Mr. Bever confirmed that one of the therapists also recently discussed this approach with Mother, and she was open to mediation. The parties agreed to use a neutral third-party ADR practitioner. The Court provided them until February 21, 2022 to notify the Court of the selection of an ADR practitioner. If they could not agree on the appointment, each was to provide their list of suggestions by February 21, 2022. Both agreed that mediation would be completed on or before May 2, 2022 and that the practitioner's costs be shared equally between the parties.
On February 21, 2022, Father provided his letter suggesting A--- J. S-----, Esquire, C--- W. H------, Esquire or P--- D. S, Esquire as potential mediators. Father noted that his proposed practitioners provide service in all counties but are "not generally practicing in Kent or Sussex Counties in order to avoid potential conflicts." On February 22, 2022, Mr. Bever provided his letter suggesting W------ J. W----, Jr., Esquire, G----- G-----, Esquire, or L---- Y------, Esquire as proposed mediators. Because neither side proposed an ADR practitioner that appeared on the other's list, the Court opted to designate an ADR practitioner according to Family Court Civil Rule 16.3. On March 8, 2022, it issued an Order appointing Dennis L. Schrader, Esquire ("Mr. Schrader") as the ADR practitioner, and it reaffirmed that mediation with Mr. Schrader was to be completed on or before May 2, 2022.
On April 14, 2022, the Court received correspondence from Mr. Schrader indicating that the parties participated in mediation the same day, but it was unsuccessful.
On May 18, 2022, Mr. Bever filed a Motion for Protective Order, and on May 25, 2022, he filed a Motion to Compel and for Sanctions. On May 26, 2022, Mr. Gay entered his appearance on Father's 2021 custody modification petition. Mr. Gay submitted Father's answer to the Motion for Protective Order on May 27, 2022 and Father's answer to the Motion to Compel and for Sanctions on June 7, 2022. Mr. Gay then filed a Motion to Compel and for Sanctions on behalf of Father on July 1, 2022, and Mr. Bever filed Mother's answer on July 6, 2022.
On July 12, 2022, the Court conducted a virtual case management conference to discuss Motions to Compel and for Sanctions and Motion for Protective Order. Mr. Gay and Mr. Bever felt confident that they could work together to narrow the discovery that each was seeking. However, even with an expeditious exchange of discovery, they agreed there would be insufficient time to review and prepare before the two-day custody hearing scheduled for July 27th and July 28th, 2022. For these reasons, counsel requested a continuance of the July hearing dates. Mr. Bever also requested that the Court interview A--. Mr. Gay asked that A--'s interview occur in her therapist's office and not in Mother's home and that it be only the Chief Judge and A-- present. It was agreed that A--'s interview would follow the conclusion of the hearing. The Court granted the continuance request and rescheduled the two-day trial to December 1st and 2nd, 2022. If counsel could not stipulate to discovery, it was agreed that the Court would convert the July 28, 2022 trial date to a virtual discovery hearing. Mr. Gay and Mr. Bever believed neither parent had to be present for this discovery hearing. Mr. Gay subsequently requested that the discovery hearing be moved, and the Court rescheduled it to September 13, 2022.
When the virtual discovery conference was held on September 13th, Mr. Gay and Mr. Bever represented that the parties, by and through counsel, had a discovery settlement conference resulting in a letter from Mr. Gay to Mr. Bever dated July 26, 2022, which memorialized that settlement. Counsel were unable to finalize a written agreement before the September 13th conference. However, they noted that a stipulation was nearly complete. The Court ordered that they submit the stipulation by September 23, 2022. Mr. Gay and Mr. Bever believed they could complete the exchange of all discovery before the two-day trial in December 2022. The parties submitted a stipulation regarding discovery to the Court on September 14, 2022. The Court signed the stipulation as an Order on September 26, 2022 ("Discovery Order"), which required that the parties comply with their discovery obligations within 30 days of September 13, 2022.
On November 14, 2022, Mr. Gay filed a Motion for Contempt and to Exclude. Mr. Bever filed his Answer to the Motion on November 22, 2022. Accordingly, on November 28, 2022, the Court conducted a Case Management Conference to address outstanding discovery issues before the hearing scheduled for December 1st and 2nd, 2022. The Court addressed the primary discovery issue raised by Mr. Gay's Motion for Contempt and to Exclude: that A--'s therapist had not provided her entire file for A--, as was required by the Discovery Order. During the Conference, Mr. Gay stated that his primary concern was that A--'s therapist, Ms. S--------S, provided an untimely summary of A--'s file, which might not be the same as her entire file and, therefore, that the documents provided were not compliant with the Court's Discovery Order. Mr. Bever stated that he made it clear that A--'s entire file should be provided, and he sent all the documents he had to Mr. Gay. Mr. Bever said he was unaware of whether there were additional documents or what they might contain. The Court acknowledged that the stipulation stated the entire file should be provided. The Court noted that if it is clear at trial that Ms. S--------S---- only summarized the file and other information was not provided, the Court would consider excluding her as a witness.
After the Court finished addressing the discovery issues for which the case management conference was scheduled, Mr. Bever raised a concern regarding the Court's jurisdiction. Mr. Bever stated that Father no longer resided in Delaware, having moved to Florida in April 2022. Therefore, Mr. Bever explained that he was unsure whether this Court had jurisdiction. Mr. Bever stated that he was "not advocating for specific action" but wanted to raise the question of jurisdiction in the event the Court wanted to act. Given that Mr. Bever did not submit a motion to the Court and that the one-and-a-half-day hearing was scheduled to begin three days from the conference, the Court ordered that Mr. Bever and Mr. Gay brief the question of jurisdiction and submit their respective briefs to the Court by November 30, 2022, at noon. Counsel complied. The Court will address the issue of jurisdiction briefly below.
The Court notes that at the end of the first day of the present hearing, Mr. Gay raised his pending Motion for Contempt and to Exclude. Mr. Gay stated that outside of only receiving a summary from Ms. S--------S----, instead of her entire file, he had not received the entirety of Ms. S--------S----'s progress notes from Mr. Bever. Mr. Gay explained that he initially received Ms. S--------S----'s progress notes through March 2022, but when he opened the trial pack Mr. Bever sent one day before the present hearing, he realized that Ms. S------- -S----'s notes went through October 2022. Accordingly, he had not received the notes from April 2022 through October 2022. Ms. Bever stated that his copy of what was sent included all the documents. He did not doubt that Mr. Gay did not receive a complete copy, but he did not know what had occurred. Mr. Bever stated that he did not know there was an issue until Mr. Gay alerted him a day before the present hearing.
At the conclusion of the first day, Mr. Gay argued that Ms. S--------S---- should be excluded because the summary was not the same as her entire file, the original copy of her progress notes was sent after discovery deadlines, and the second copy of the notes, which included the entirety of the additional months, was received only one day before the present hearing, and thus also past the Court ordered discovery deadlines. Mr. Bever argued that two witnesses testified to information relating to Ms. S--------S----'s notes during the first day of the present matter and failing to allow her to testify to address their statements would be prejudicial. Further, Mr. Bever stated that her testimony would be critical to the contentious issues in the present matter. He acknowledged that the Court would do what it thought was appropriate but argued that it should not exclude her as a witness outright, given that the child's best interest prevails in custody cases. The Court took the matter under advisement overnight.
At the outset of the second day of the present hearing, this Court stated that it takes orders on discovery very seriously and does not treat violations lightly. The Court noted that there was substantial testimony on the first day of the trial regarding Ms. S-------- S----'s role in this matter. The Court explained that it has an obligation to do what is in the best interest of A--, and procedural issues can, at times, "take a back seat" to the best interests of a child. Nonetheless, the Court emphasized that it was sensitive to the potential prejudice to Mr. Gay and his client. The Court noted that it would allow testimony to proceed, and at the conclusion of the trial, it would decide if there had been any prejudice, relying on Mr. Gay's arguments. Then, the Court would balance that prejudice against the Court's duty to A--'s best interest. The Court stated that if there was substantial prejudice or if the Court found that there was intentional withholding of information in violation of the Discovery Order, it could strike all or a portion of her testimony. The Court stated the other option was to keep the record open to allow Mr. Gay additional time to prepare. If it held the record open, the Court would consider an award of attorney's fees to Mr. Gay and fees to Ms. M------ for their time spent reviewing and preparing for another hearing. Mr. Gay asked if he would be permitted to voir dire Ms. S--------S----. The Court confirmed that he would.
R.C. v. E.C., 2004 WL 1147056, at *4 (Del. Fam. 2004) ("However, if the Court is to look at what is in the best interests of the children, procedural technicalities should not stand in its way."); see also Fraternal Ord. of Police Lodge No. 1 v. City of Wilmington, 1978 WL 4940, at *3 (Del. Ch. 1978) ("In view of the demands being made on the Courts, we must brush aside nonprejudicial technical arguments and resolve procedural questions on the basis of what is practical and is in the best interest of the parties and justice.").
Testimony from the Voir Dire of Ms. S--------S
Ms. S--------S---- testified that she created a record comprised of her supervised visitation session notes, text messages, and emails ("summary"). Ms. S--------S---- confirmed that she took her session notes in a running Word document. She typed and dated her notes after the session. Ms. S--------S---- testified that she typed her recollection of the visits between A-- and Father. She stated that if nothing significant occurred, her notes were simple. Ms. S--------S---- confirmed that she sent Mr. Bever the summary, comprised of her running Word document with texts and emails added. She testified that she gave "a copy of her entire file." Concerning photos, Ms. S--------S---- clarified that she did not send pictures, but she had made notes of when she sent Father photos. She stated that Father provided the Court with the images she had sent him. Ms. S--------S---- confirmed that she had seen Father's trial packet but testified that she did not show it to A--. Ms. S--------S---- stated that she speaks to Mother via text and email. She testified that the first email she exchanged with Mother was in September 2021, and the first session was on October 12, 2021. Ms. S--------S---- stated that she only emailed Mother near the beginning of her work with A-- because Mother reached out to her about the case. She estimated that she and Mother exchanged seven emails. Ms. S--------S---- did not know how many texts she had exchanged with Mother since October 12, 2021. She noted that there had been approximately 50 reunification visitation sessions and 23 therapy sessions, and Ms. S--------S texted Mother a reminder before them. Therefore, she estimated that she had sent around 100 to 150 texts to Mother. She testified that she did not send Mr. Bever copies of all the texts she sent Mother but referenced some in the summary, namely those related to supervision and Father. Ms. S--------S---- explained that the summary did not contain many texts because when she sends reminders about sessions, she sends them to both Father and Mother but must do so separately because they cannot be in a group text. Thus, she stated that when she texted Father to remind him about a session, she texted Mother right after. Nonetheless, Ms. S--------S---- confirmed that she had sent around 150 texts to Mother.
Ms. S--------S---- testified that she did not take any handwritten notes during therapeutic visitation sessions. She stated that Mother completed an electronic intake form on Therapy Notes Software. Ms. S--------S---- did not provide a copy of the intake form to Mr. Bever. She testified that it does not typically get printed when a therapist puts in a request for notes, but she noted that she was happy to provide it if needed.
Mr. Gay argued that Ms. S--------S---- testified to exchanging approximately 150 texts with Mother. He stated that those texts fall within the description of the Discovery Order, and they were not all provided. Accordingly, he objected to her testimony.
Mr. Bever argued that Ms. S--------S----'s testimony made it clear that most of those communications were regarding upcoming appointments and scheduling. Therefore, Mr. Bever stated they were not material and did not prejudice Mr. Gay. Mr. Bever noted that Ms. S--------S---- testified that the information provided to Mr. Gay includes the entirety of her counseling notes. Mr. Gay responded that he could not determine if there was relevant information in missing texts or emails because he had never received them. He stated that Ms. S--------S---- did not testify that none of the texts between her and Mother addressed topics outside of scheduling, and there could be something substantial in a text or two that he could use in his case in chief. Mr. Bever argued that Ms. S--------S----'s summary included her entire file of notes. He did not see how any texts related to scheduling were more prejudicial to Mr. Gay than not hearing from Ms. S--------S---- would be for the Court to determine what is in A--'s best interest.
The Court stated that it would allow testimony to proceed subject to Mr. Gay's objection and in accordance with its ruling at the start of the second day of the present hearing. After the hearing, the Court acknowledged that Mr. Gay did not receive every document to which he was entitled under discovery. However, it commended his presentation and stated that he did not seem prejudiced. Mr. Gay indicated that he felt the record was developed clearly.
Factual Background
Father is 47 years old. When he filed the Petition for Modification of Custody and Visitation, he resided at --- I---- A------ in M--------, Delaware. He was also registered to vote in Delaware and maintained his Delaware license. Father later moved to Port St. Lucie, Florida to care for family members. He then relocated to Jacksonville, Florida. Father continues to reside in Jacksonville and lives at ----- O-S- A-------- R--- with his wife, Ms. M------. Father testified that he still has property in Delaware. However, because he met and married Ms. M-------, Father does not plan to return to Delaware.
Father held a Delaware license as of the present hearing.
An exact date of Father's original move was not provided during the present hearing. Ms. M------- testified that since she met Father in person, at approximately the end of September 2021, he primarily lived in Florida. She testified that Father was residing in Port San Lucie when she first met him. Father testified that he has resided at ----- O-S- A-------- R--- in Jacksonville since April 2022.
Father and Ms. M------- met on Facebook in September 2021, married in February 2022, and lived together for one year. Ms. M------- is 45 years old. She has a high school diploma and is in the process of becoming a United States Citizen. She has a 26-year-old daughter, F-------, who is in college but frequently visits Father and Ms. M-------'s residence on weekends. Ms. M------- testified that F------- is "like a real daughter" to Father. Ms. M------- is employed and works in aesthetics. Father is currently employed. He works in the HVAC industry. Father was previously employed as a Delaware State police officer. The Delaware State Police terminated him after he wrongfully used DELJIS to access information on Mother and two of her acquaintances.
Ms. M------- testified that she had applied for her Green Card with the help of Father and was waiting for it to arrive. She confirmed that marrying Father made it easier to obtain her Green Card.
Delaware Criminal Justice Information System (DELJIS).
Mother is 43 years old. Mother has resided in Michigan since January 2015, when she was awarded sole legal custody of A--. Mother is a Registered Nurse and works as a case field manager. Her hours are approximately 8:00am to 5:00pm. She occasionally works on the weekend. Mother works out of her home office and travels to attend patient appointments, within a two-hour radius of her residence. She testified that she has flexibility in her job.
In accordance with the Discovery Order, Mother's residential address and employer information shall remain confidential from Father.
Pursuant to the Custody Order dated March 11, 2019, Mother serves as A--'s sole legal custodian, and A-- has been residing primarily with Mother. Under that order, Father is permitted visitation with A-- in a therapeutic setting via Tele-Psych under the direction of Ms. M------ and Mother's selected therapist for A--. Additionally, Father is granted one supervised visitation with A-- in her therapist's office in Michigan for three hours on alternating months. Moreover, if Mother and A-- travel to Delaware, Father is to have a three-hour supervised visitation with A-- in Ms. M------'s office. As of the present hearing, Father has exercised contact with A-- since the 2019 Custody Order was entered.
Jurisdiction Analysis
This Court has exclusive continuing jurisdiction over this matter. Custody jurisdiction in Delaware is governed by the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). The UCCJEA is codified in Delaware at 13 Del. C. §§ 1901-1941. Section 1921 addresses the Court's exclusive, continuing jurisdiction. It states:
(a) Except as otherwise provided in § 1923 of this title, a court of this State which has made a child custody determination consistent with §1920 or § 1922 of this title has exclusive, continuing jurisdiction over the determination until:
(1) A court of this State determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer A--ilable in this state concerning the child's care, protection, training, and personal relationships; or
(2) A court of this State or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this State.
Accordingly, "[o]nce a state has initial jurisdiction under the UCCJEA, that state will continue to have continuing exclusive subject matter jurisdiction until jurisdiction is properly relinquished." Here, the Court has not relinquished jurisdiction under either of the two contingencies which can interrupt a Court's "exclusive, continuing jurisdiction." Therefore, it has not been divested of its jurisdiction.
T-C v. A-C, 2013 WL 8290632, at *3 (Del. Fam. 2013); see also M. D. v. J. D., 2017 WL 1291772, at *2 (Del. Fam. 2017) ("[13 Del. C. § 1921(a)] clearly reflects that once this Court has made a child custody determination, this Court retains exclusive continuing jurisdiction over the matter until deemed otherwise by either this Court or the court of another state.").
The Court acknowledges that Mother and the minor child, A--, have been living in Michigan, and Father moved to Florida after filing the Petition for Modification of Custody and Visitation in Delaware. Nonetheless, §1921(a)(2)-which delineates that when a court determines that the child and their parents do not reside in the state, jurisdiction may cease-is not implicated. Comment 2 to § 202 of the UCCJEA addresses the timing of when parents and a child or children leave the state and the potential effect on continuing exclusive jurisdiction. Many other jurisdictions have applied the Comment as instructive. Comment 2 to § 202 states, in part:
UCCJEA, § 202(a) corresponds with 13 Del. C. § 1921(a).
See e.g. Griffith v. Tressel, 925 A.2d 702, 709 (App. Div. 2007) (citing UCCJEA, § 202 comment 2 to state that it notes "that all members of the family have left the state to reside elsewhere, a parent cannot reestablish 'exclusive, continuing jurisdiction' in the first state by resuming residence in that state."); see also In re Adoption of H.C.H., 304 P.3d 1271, 1283 (2013) (citing UCCJEA § 202, comment 2 to note that a "state loses exclusive, continuing jurisdiction if the child, the parents, and all persons acting as parents leave the state, and jurisdiction will not be reestablished if the noncustodial parent returns to the state."); Mouritsen v. Mouritsen, 459 P.3d 476, 482 (Alaska 2020) ("But Comment 2 also directs that 'presently resides' in the UCCJEA should be interpreted as the equivalent of 'continues to reside' in the Uniform Interstate Family Support Act (UIFSA)").
"If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding."
Here, Father was the last party residing in Delaware. He did not move to Florida until after he filed the Petition for Modification of Custody and Visitation in Delaware, and the proceeding had commenced. Therefore, jurisdiction is not lost despite all parties moving out of Delaware before the conclusion of this proceeding. This Court has exclusive continuing jurisdiction.
Legal Standard
The Court may modify previous orders concerning visitation at any time when the best interests of the child would be served by such modification and in accordance with 13 Del. C. §728(a). With regard to residency and visitation, the Court shall determine, "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." 13 Del. C. §728(a).
Pursuant to 13 Del. C. 729(a) and (b):
(a) An order concerning visitation may be modified at any time if the best interests of the child would be served thereby in accordance with the standards set forth in § 728(a) of this title.
(b) An order entered by the Court by consent of all parties, an interim order or a written agreement between the parties concerning the legal custody of a child or his or her residence may be modified at any time by the Court in accordance with the standards set forth in § 722 of this title.
Pursuant to 13 Del. C. § 729(c), "[a]n order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:
(2) If the application for modification is filed more than 2 years after the Court's most recent order concerning these matters, the Court may modify its prior order after considering: a. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification; b. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including
whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and c. The factors set forth in § 722 of this title."
§ 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.
§ 728(b): The Court shall encourage all parents and other persons to foster the exercise of a parent's joint or sole custodial authority and the maintenance of frequent and meaningful contact, in person, by mail and by telephone, between parents and children unless an order has been entered pursuant to subsection (a) of this section denying or restricting such contact. If the Court finds, after a hearing, that a parent has violated, interfered with, impaired or impeded the rights of a parent or a child with respect to the exercise of joint or sole custodial authority, residence, visitation or other contact with the child, the Court shall order such person to pay the costs and reasonable counsel fees of the parent applying for relief under this section. The Court shall also impose 1 or more [] remedies or sanctions [ . . .]
See § 722(a), "[t]he 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 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."
Discussion
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father seeks joint legal custody of A--. He testified that he was not requesting a change in residential placement. However, Father requests more visitation with A--.
Father testified that he desired A-- to spend most of the summer with him in Florida. He emphasized that he wanted A-- to have the other half of her family present in her life. Father acknowledged that she might need some time after school ends for extracurriculars or to "wind down." Therefore, he would like A-- to come to Florida a week 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. or two after her school year ends and return to Michigan a week or two before the next school year begins. Concerning spring break, Father would like A-- to spend the entire week with him in Florida because if it were divided, there would not be much contact. Father stated that if winter break were approximately two weeks, he would like it to be split evenly between him and Mother.
Further, Father stated that if A-- wants to see him in Michigan, and he has the time and financial resources to make the trip, he would like to be able to visit with her at any time. For example, Father testified that he would like to be able to attend a school concert if A-- wanted him there.
Father would like all visitation to be unsupervised. Father said he would provide A-- with a cell phone or set her up with an email account so they could stay in frequent contact virtually should the therapeutic virtual visitation cease. Father believed A- would want to communicate with him via cell phone or email.
Concerning exchanges, Father wanted to pick A-- up from school before a break. Father testified that he had seen members of Mother's family who live in Michigan pick up or drop off A-- from the visitation sessions. Therefore, Father noted that if Mother does not want to see him for exchanges, she can coordinate with family to ask them to help facilitate. Alternatively, Father stated that he was open to completing exchanges at a police station, the airport, or another mutually agreed upon location.
Father testified that he would also like to send A-- gifts and cards. Father confirmed that someone he knew found Mother's address on the internet. Therefore, he did not think her address should remain confidential. Father said he would use a post office box in Michigan but would prefer to send things directly to her home address.
Father was adamant that if he does not receive what he petitioned for and is required to engage in more supervised visits, he "will not pay" any more therapists or engage in any further visitation with A--. He expressed frustration at having to engage in reunification services for four years with multiple practitioners. Father repeatedly said, "I am done." Father reiterated that if what he requested is "too great," then he "is done." Father testified that he did not mean his remarks "as a threat to the Court" but stated that he "is over it" and wants the opportunity to move forward.
Mother did not want custodial arrangements to change. She has had sole legal custody of A-- since 2015, per Father's voluntary agreement. Mother testified that she did not think having Father involved in daily decision-making would help A--. Mother desired to retain her primary placement of A--.
Mother testified that she was comfortable with increasing visitation between Father and A--. However, she did not want contact to be unsupervised. Mother expressed that she had previously agreed to a gradual transition plan suggested by Ms. S--------S----, whereby Father and A-- could exercise more contact over time in a safe, positive, and therapeutic environment. While that plan never began, despite Mother agreeing to it, Mother testified that she remains supportive of a gradual transition plan to increase contact between A-- and Father. Mother stated that she believes it is in A--'s best interest to have a relationship with Father. Mother indicated that she thought Ms. S--------S---- would be willing to work with Father to create a plan where A-- is comfortable and willing to participate. Mother testified that she would defer to Ms. S--------S----'s proposed timeline.
Mother testified that she would prefer Father send any gifts to a post office box, which she could set up notifications for, as opposed to her home.
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
Before A--'s interview, Father testified that he understood it was permissible under the statute for A-- to be interviewed by the Court. However, he stated that he did not believe a child should be brought into the situation. Father testified that he was concerned about what A-- would say due to potential outside influence from Ms. S--------S---- and
Mother. Ms. S--------S---- testified that A-- knew she would speak to Chief Judge Newell, and they went over the importance of being a "truth teller." Ms. S--------S---- noted that they also looked at a photo of the Chief Judge and read about his background. She told A-- that the Chief Judge's job is to "help kids," and that "he is in charge." A-- understood that the Court will make a decision about her, and Ms. S--------S---- told A-- to tell Chief Judge Newell what she needs. Ms. S--------S---- stated that A-- was "excited and nervous" about her interview.
She noted that as A-- gets older, she recognizes that it is important to be heard and understood. Ms. S--------S---- testified that it would be helpful for A-- to speak about her concerns and major fears with the Court. Mr. Gay requested that Ms. S--------S---- not be in the room for A--'s interview with the Court. The Court confirmed that it would interview A-- independently so long as she was comfortable and willing to speak. The Court asked A-- if she was okay with talking without anyone else present, and she confirmed that she was. Accordingly, A-- completed her interview with the Court alone.
Just Court employees in the Courtroom were present.
At the outset of the interview, A-- confirmed that other than being instructed to be a "truth-teller," nobody had spoken to her about what to say during her interview.
A-- stated that her visits with Father are "going okay." She expressed that she found out Father had been taking photos of her, and she does not like it. A-- said she found out Father was taking photos of her because Mother was sent pictures in preparation for Court, and she showed them to A--. The Court notes that this contradicts Mother's testimony, stated infra, that A-- looked over her shoulder and saw the photos. A-- indicated that Mother was not concerned about Father taking the pictures; she only wondered if A-- was okay. A--said she was not okay and explained that she was uncomfortable with Father having photos of her because she "[doesn't] really know him."
A-- confirmed that she has fears about Father. She stated that she was worried he would show up unannounced because he knew where Ms. S--------S----'s office was located. The Court asked A-- what she worried Father would do if he came to the office, and she replied, "take me." A-- stated that no one had ever warned her about Father taking her, but she "felt that way for some reason." When asked if anything could be done to help her work to eliminate that fear, A-- replied that she did not want to see Father anymore. A--explained that she does not want to see Father because "sometimes he lies to [her], and [she] just does not really feel comfortable with him."
A-- confirmed that she had signed "I love you" to Father using sign language. She stated that she did not say it to him. A-- verified that Father had come to Michigan to spend time with her in person. The Court asked her whether she had a good time, and A--replied that Father was "always trying to make [her] give him a kiss." She stated that she did not like that. A-- confirmed that they do fun activities when Father is in Michigan, like crafts and watching movies.
A-- indicated that on virtual visits, "sometimes [Father] lies, and sometimes [he is] really playful." A-- explained that Father never told her that he was in a relationship, and she said that when she asks Father specific questions, he does not always answer them directly. A-- stated that it was important to her to ask if Father was in a relationship, and he told her that he was not in one. However, A-- stated that she figured out that he was in a relationship on her own because Father appeared wearing a ring during one of their visits. She confirmed that she knew what a wedding band was. A-- stated that when she saw the ring, she asked him about it, and Father told her that he was married. A-- explained that Father told her he did not want to tell A-- he was getting married because he thought she would be sad she could not come to the wedding. A-- stated that she told him she did not want to go to the wedding.
The Court asked A-- how she referred to Father. A-- said she does not call him anything. She does not like to call him "dad," but it "feels weird" to call him "Andrel." A--indicated that she would not like it if Father came to Michigan to see her more often. The Court asked A-- if anyone ever spoke to her about the importance of having two parents. A--explained that she typically tells people she "doesn't really have a dad" because she "[does] not see him often" and "he is not really in [her] life."
A-- said she met Ms. M------- one time. She stated that she was "nice" but felt "different" to have a "new mom."
A-- stated that she texts her sister C----- on Messenger Kids. They talk about games and send each other pictures. A-- indicated that she speaks to Ms. T----- if she calls Mother.
A-- said she never asked Mother whether she wanted her to have visits with Father. She guessed that Mother might not want her to "because he is not really in [her] life." A-- stated that her Mother tells her to do what she feels when it comes to seeing Father, and Ms. Schaefer-Smith tells A-- to let her know if she wants to see Father or talk to him.
(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;
Concerning Father's relationship with A--, Father was not involved with A--'s life for approximately four years, from ages two to six, because he voluntarily entered into a custody agreement that granted Mother sole legal custody and primary residency of A--. Father testified that before that absence, he had a very close bond with A-- in her first years. Father and A-- have been engaging in visitation via Tele-Psych since May 30, 2018. Ms. M---- -- and Ms. S--------S---- provided extensive testimony regarding that visitation and their recommendations for moving forward.
Ms. M------, in conjunction with another therapist, has worked to facilitate the Tele-Psych process since May 30, 2018. The first therapist Mother hired to help facilitate therapeutic reunification via Tele-Psych was Ms. G-----. The second was Mr. B------, the third was J--- Q----------- ("Mr. Q-----------"), and the current practitioner is Ms. S--------S . Father did not help select any of those therapists. Ms. M------ is a licensed professional counselor of mental health in Delaware and Florida. She has a master's degree in Psychology from Nova Southeastern University. Ms. M------ has conducted therapy and worked with children and families since 2002. Ms. M------ has testified in Florida and Family Court in Delaware approximately forty times, where she provided her expert opinion. Ms. S--------S---- is the
Mother testified that Mr. B------ removed himself from this matter, and Mr. Q----------- moved to California, and Mother was unable to contact him. Ms. M------ confirmed that there was a gap in care between Mr. B------ and Mr. Q----------- from March 10, 2020 to July 28, 2020. She testified that Mother did not facilitate virtual contact with Father during that time.
Father testified that he had suspicions that Mother was firing each therapist, and he referred to them as Mother's "hired guns."
Lead Psychologist at Life Journey in Michigan. She received her master's degree in Clinical Psychology from Eastern Michigan University. She has provided counseling to children for 33 years. Ms. S--------S---- has testified in court over 500 times, primarily in Michigan. Ms. S--------S---- was qualified as an expert in every jurisdiction in which she has testified. Ms. S--------S---- was admitted as an expert for the purposes of child psychology.
Ms. S--------S----'s Supervision document and progress notes for A--'s individual therapy were admitted as Respondent's Exhibit 2 and Respondent's Exhibit 3, respectively, subject to Mr. Gay's outstanding Motion.
Ms. M------ testified that she observed approximately 117 visits between A--and Father. Father noted that he also had additional visits that Ms. M------ could not attend. He approximated that the number of visits was close to 200. Ms. M------ stated that A-- began telling Father that she loved him during their second session on June 6, 2018. Over the last four years, Ms. M------ indicated that A-- said, "I love you," or signed it using sign language "frequently but not consistently." She noted that A-- had said it less in recent visits. Ms. S---- ----S---- confirmed that she had seen A-- sign "I love you" to Father. She indicated that she had heard A-- speak it to Father once since she began with A--. Ms. M------ confirmed that A- and Father's relationship had suffered in the three to four months before the present hearing. Ms. M------ testified that A-- had become aware of "adult information," such as knowing the present hearing was scheduled, information from Court papers, and negative information about Father. She explained that since being exposed to adult information, A--had become more withdrawn in visits. Ms. M------ then listed session dates where A-- made remarks that indicated she had heard inappropriate statements from a parent. The content of those sessions is noted below.
September 9, 2018:
Ms. M------ testified that A-- stated: "My mommy told you I can't tell you my teacher's name" and "My mom told me I don't have to talk to you if I don't want to."
October 3, 2018:
Ms. M------ stated that A-- responded, "I don't know" to Father's questions seven times and remarked, "My mom said I don't have to talk to you if I don't want to."
Ms. M------ explained that A-- repeatedly saying "I don't know" was concerning because it indicated that she did not want to talk about her life. Ms. M------ noted that Father had asked basic questions about school and her favorite things.
October 5, 2018:
Ms. M------ noted she had a phone conversation with Mr. B------, the other therapist facilitating reunification at the time, to discuss her apprehensions about the comments A-- had made related to what Mother had told A--. She testified that Mr. B------ shared the concerns and said he would talk to Mother.
November 28, 2018: Ms. M------ testified that Father showed A-- a picture of his other daughter, C- ---, and A-- said, "My mom said C----- is scared of you, so I'm scared."
January 16, 2019:
Ms. M------ testified that A-- was quiet during the session and stated: "My mom said I can't tell you about my dance recital" and "I'm not allowed to tell you; my mommy said not to talk to you."
January 23, 2019: Ms. M------ stated that A-- explained, "My mom gets really upset when I talk to my daddy."
January 28, 2019:
Ms. M------ stated that Mr. B------ told her he was planning to speak to Mother and A-- again, letting A-- know that she could talk to Father. Mr. B------ also reported that he referred A-- to her own therapist.
Ms. M------ stated that Mr. B------ confirmed A-- had another therapist after he made his referral.
March 20, 2019:
During Father and A--'s session, she asked Father, "Why did you lie about me and C----- not knowing each other? Karen said you lie." A-- also stated: "My mom has your ex's phone number," and "I was with C----- today."
May 1, 2019:
Ms. M------ stated that A-- asked Father, "Do you have a new girlfriend?" A--also said, "My mom doesn't have your number."
May 29, 2019:
Ms. M------ testified that Father brought up visiting A-- in Michigan, and A--said, "My mom said I'm not allowed to see you. My mom said I can't see you."
June 19, 2019:
Ms. M------ stated that she had emailed Mr. B------ a "feeling face" handout to go over with A-- because she had been "shut down" in recent sessions. During the session, A- told Father, "I am mad at you because you lied to me about not knowing C-----, and she is my sister."
March 10, 2020:
Ms. M------ testified that Father asked A-- about the porcelain doll and pillow his mother gave A--. A-- replied, "My mom threw my pillow out, and she thought the doll was creepy, so my mom put it in storage."
When questioned about this statement, Mother testified that she did not get rid of the pillow or the doll. She offered to get the doll to show the Court.
November 10, 2020:
Ms. M------ stated that the session occurred in Mother's home, and she heard Mother say, "Why are you looking at me instead of doing your work?"
Ms. M------ testified that the remark was relevant because Mother was a distraction, and A-- did not have privacy. Ms. M------ acknowledged that the sessions, such as this one, that were problematic due to a lack of privacy occurred in Mother's home due to COVID-19. Ms. M------ stated that she did not believe A-- ever mentioned being uncomfortable about not having privacy during therapeutic reunification sessions. Nonetheless, Ms. M------ testified that she thought Mother was a distracting influence. Ms. M----- stated that Mother was present for 14 of the 117 sessions she observed.
December 1, 2020: Ms. M------ said Mother was present for the session and spoke to A--. There was no privacy.
December 15, 2021:
A-- was in Mother's home and distracted by Mother at times. However, Ms. M----- stated that A-- was "mostly engaged with [Father]."
January 5, 2021:
Ms. M------ responded, "I don't know," to basic questions Father asked seven times. Ms. M------ noted that A-- also looked back at Mother.
January 12, 2021:
Ms. M------ saw Mother in the room. She stated that she heard Mother tell A--that she was supposed to be doing her spelling homework. Ms. M------ testified that A-- asked Father if he wanted to play a game on the television, and Ms. M------ heard Mother say "no."
Ms. M------ said she then reached out to Mr. Q-----------, the other therapist facilitating reunification at the time, about A-- not having privacy. He said that he would talk to Mother.
January 6, 2021: Ms. M------ testified that she saw Mother in the background during A--'s visit with Father.
February 9, 2021: Ms. M------ heard Mother tell A--, "no TV unless you do your homework now." Ms. M------ stated this was significant because Mother was present, and it was a distraction.
February 17, 2021: Ms. M------ stated that Mother was present for the entire session.
March 2, 2021: Ms. M------ testified that Mother was present for the session.
March 23, 2021:
The session took place in Mother's house. Ms. M------ noted that A-- asked Father to play a game, and Mother told her, "put that away."
Ms. M------ testified that Mother's presence interfered with virtual visitation between Father and A--.
July 20, 2021:
There was a room divider placed in the room where A-- conducted visits with Father from Mother's home. Ms. M------ stated that A-- turned around in the direction of the partition a few times during the session.
Ms. M------ stated that when a child repeatedly looks to their parent, it indicates that they are distracted or looking to them for information.
July 27, 2021: Ms. M------ indicated that the divider was up again, but she heard Mother say, "I heard you."
November 16, 2021:
Father asked A-- what she wanted to do on his next visit, and A-- replied, "I am not allowed to." Ms. M------ testified that Ms. S--------S----, the therapist facilitating reunification at the time and serving as A--'s therapist, prompted A--, stating, "tell dad what you told me." Ms. M------ said A-- told Father she felt uncomfortable when he called her "sweetheart" or "honey."
Ms. M------ stated that when Ms. S--------S---- began working with A-- in the fall of 2021, Ms. S--------S---- asked Ms. M------ to turn her video camera off during visits. Ms. M
---- had been visible to A-- on screen for the years prior and was unaware of any issues. Ms. M------ turned her video camera off, but she could still see and hear the entirety of the visitation between Father and A--.
April 12, 2022:
Ms. M------ testified that A-- asked Father a question about getting married. A- cried and said, "You never told me you were in a relationship. You lied." Father responded that he did not lie; he did not tell her. Father testified that he had not told A-- about the wedding before it occurred because he did not want her upset that she could not attend.
Ms. M------ stated that A-- also said, "My mom told me that you hurt her and other people. My mom and I talk about it every week. I had a nightmare that you hurt your new wife. I am going to be mad for a whole month because it's very serious." A-- asked several questions about Father's new wife. Father apologized for hurting A--'s feelings. Ms. M------ stated that A-- replied, "I am going to hold in my anger for a long time because this is a big thing. Even though you apologized, you lied three times. My mom got the Court papers that say you don't have a job, and three weeks ago, you said you have a job." Ms. M------ stated that Ms. S--------S---- was talking, and Father told her, "You are interrupting me and putting words in A--'s mouth." Ms. M------ noted that it was the first time she had ever heard Father raise his voice or be "stern."
Ms. M------ confirmed that A-- found out about Father's marriage on April 5, 2022, and she did not have a problem with it then. Later, in response to Ms. M------'s testimony about this visit, Father stated that when he first told A-- he was married, she was "inquisitive but not angry." He noted that he asked A-- if it was okay that he was happy, and she said, "yes," and smiled. Mother also later responded that after the first time A-- found out Father was married, A-- was "shell shocked" and took a bit of time to process what happened. Father believed that the shift in A--'s response to his marriage was due to Mother "assaulting" A-- with "verbal derogatory remarks" about him.
Ms. M------ stated that the session improved, and A-- later asked Father to go to Great Wolf Lodge.
May 10, 2022:
Ms. M------ stated that A-- appeared uncomfortable talking during the session but was sending messages. Therefore, Ms. M------ assumed Mother was in the room.
May 17, 2022:
A-- again typed her replies to Father during the session. Ms. M------ testified that Father asked why she was not talking, and A-- did not answer.
May 31, 2022: Ms. M------ testified that A-- was not speaking to Father and only typed her replies.
June 28, 2022: Ms. M------ stated that A-- was in Ms. S--------S----'s car for the session. A--'s friends were playing at a birthday party. A-- had been attending the party before appearing for the session. Ms. M------ testified that A-- seemed to be angry. A-- told Father, "You wanted to talk to me unsupervised. You always want to be with me unsupervised, and I'm not comfortable because you're not safe. You are taking me and my mom to Court, and all you care about is taking me and my mom to Court, and you don't want me to know what you did wrong." Father replied by asking A-- what she saw "with [her] own eyes." Ms. M------ testified that A-- replied, "I heard a lot of things, but I only saw you hurt my mom. I remember you yelling at her, and Karen kept trying to protect me, and the police had to come." Ms. M------ stated that Father then asked A--, "How old were you?" She answered, "I was a couple months old. I heard it from my mother almost every day."
Ms. M------ testified that A-- told Father, "I was uncomfortable with you getting married without telling me." Father asked A-- if it would be good for her to see what he does daily. He asked, "Do you remember forgiving me." Ms. M------ said A-- replied, "I didn't mean that, and you yelled at me and J----." Ms. M------ noted that Ms. S--------S---- then prompted A - to share her feelings. A-- said, "You didn't include me about getting married. You were married for two months before I found out."
Ms. M------ stated that A-- told Father, "I didn't get the chance to be at my best friend's party, and you have free time." Father replied, "A--, do you have a job? You're a kid and shouldn't know about adult stuff, especially Court stuff." A-- expressed that she was upset that she could not stay at her friend's birthday party for longer than one hour because she had to speak to Father. Father asked, "Can't you stay after our visit at the party?" A-- told Father, "I have to do chores, clean the living room, unpacking the dishwasher, organizing the pantry, homework, and different other stuff." Ms. M------ stated that Father replied by asking A-- if she had homework over the summer. A-- said, "I have summer school homework. I don't need to tell you everything about my life." Father asked A-- if she thought it was better that he did not know about summer school, and A-- responded, "My mom has to pay all this money for Court, money for people to stick up for her. Lawyers go into Court." Father said, "I have no control over what your mother does." A-- replied, "You told the Judge you want to spend more time with me, so my mom has to pay millions of dollars because you have her going to Court."
Ms. M------ stated that A-- then told Father, "I'm really frustrated because you made me talk to you today, and I couldn't spend time with my friend. You canceled a million times over the years. You're really selfish. You're making it harder and harder on me because I have to talk to you." Ms. M------ testified that Father replied, "I am just trying to have a normal father-daughter relationship. We only have one hour a week." A-- said, "I would like it to be less." Father asked A--, "How am I selfish when I only get one hour a week?" A-- then asked Father, "Do you work or not? Part-time or full-time?" Father told her that he was a technician and that he worked full-time. A-- said, "If I have any chance in Court to ask you a question, you will have to answer in front of the whole Court, and you can't lie. I think you're lying." Ms. M------ testified that Ms. S--------S---- then said, "Explain to Dad why you were upset; because you thought he could have changed the time today because you thought he wasn't working." A-- then said, "Why are you doing this? I'm very suspicious. I feel like you are lying to me. You have more free time than me. I will never come see you. I could have been doing kid stuff, and you could have changed the time today. I can't do this anymore." Ms. M------ stated that Ms. S--------S---- then told A-- it was "up to [her]," and the session ended.
When asked how many times Father had canceled visitation sessions over the years, Ms. M------ testified that he had only done so a "handful" of times. Ms. M------ confirmed that much of the conversation during the session related to information coming from adults. Ms. M------ testified that she had reached out to Ms. S--------S---- after the session to confirm that she was talking to Mother about what was appropriate to say to A--, but she never heard back. Ms. S--------S---- testified that A-- was upset because she believed Father was not flexible in rescheduling their session. She explained that A-- believed Father was working part-time and had flexibility in his schedule. Ms. S--------S---- stated that she had offered an alternative meeting time, but Father was unA--ilable. Therefore, Ms. S--------S---- thought having A-- leave the party to complete the visit in the car would be less disruptive or upsetting than making her miss the party altogether. Ms. S--------S---- noted that she tried to explain to A-- that Father had compromised, but A-- believed he was lying about not being able to accommodate A--'s schedule.
July 5, 2022:
Ms. M------ noted that the session took place in Mother's home with the room divider up. She stated that Ms. S--------S---- asked A-- if she could speak for her. She then asked A-- and Father, "What are your goals for the session?" Ms. S--------S asked A--, "How did you believe Dad was not working? Do you think sometimes Dad answers your questions and sometimes you don't get a direct answer?" She told Father, "A-- perceived that you were a liar because she didn't believe you were working." Ms. M------ stated that Ms. S--------S---- said to A--, "I think you're frustrated because you don't think Dad is answering your questions."
Father told A--, "I know that you're a kid in the middle of all this, and it must suck. I don't want you to feel bad. You should be having more fun instead of learning things that aren't true. I try to make the best of our time and make it fun." Ms. S--------S---- then told
A--, "What Dad is trying to say is: what is your viewpoint, A--? Does mom tell you things about your dad every day?" A-- replied, "We don't talk about Court or Dad every day."
Ms. M------ noted that Ms. S--------S---- then walked away, and A-- and Father made jokes together for the remainder of the session.
November 28, 2022:
Ms. M------ noted that this session occurred the week of the present hearing. Before A-- entered the session, A-- typed that she was not feeling well. Ms. M------ testified that when A-- appeared on the screen, she looked "depressed." Father said, "What's wrong? You can talk to me. I don't want you to be sad, angry, or upset." A-- told him she had a headache and was "sick in the stomach." Father asked when she started to feel sick and whether she had eaten anything. A-- noted that she had not eaten yet but wanted Chipotle. Father asked A-- if she attended school, and A-- confirmed that she had.
Ms. M------ noted that she heard Ms. S--------S---- speak and saw A-- look back toward her, but she could not hear what Ms. S--------S---- said. Father asked A-- about pictures on the wall that she drew. A-- responded, "I did the pictures after you left." Ms. M------ stated that A-- was referring to when Father had an in-person session.
Ms. M------ indicated that A-- then left the computer screen, and Father asked her what she did at school and told her, "it's good to get things off your chest." A-- replied, "No thanks." She typed, "I don't feel well, and I don't want to talk." Father asked her if she got a "good night's sleep last night." A-- said, "I just want to go home and chill." Father told A--, "We can chill here." He asked if she needed to see a doctor. A-- said, "I feel bad. I don't want to talk, and I don't need to go to the doctor."
Ms. M------ noted that about twenty minutes into the session, A--'s mood improved, and she and Father were typing to one another, making casual conversation. Ms. M------ stated that she saw A-- look back toward Ms. S--------S---- multiple times. Then A-- said, "You take pictures of me, and I don't like that. I want you to delete them, please." Father asked, "Where did you hear that from?" A-- replied, "My mom, who can tell me things." Father said, "You can see them sometime. I understand. I love you." A-- told him, "I don't like that you have pictures of me." Ms. M------ then heard Ms. S--------S---- say, "Without my permission," and A-- repeated, to Father, "Without my permission." Father told A-- they looked happy in the photos together and named the activities they participated in. Ms. M---- -- stated that A-- commented, "I was younger then, and I didn't know much things about you."
When Ms. S--------S---- testified, she clarified that when Ms. M------ could not hear A--, A-- had muted herself and told her, "He is always taking picture of me," and "I don't like it." Ms. S--------S---- encouraged A-- to talk to Father.
Ms. M------ stated that A-- then said, "I can barely think, and I feel sick." Father told her, "I love you with all my heart. I'm here for you." A-- replied, "You're not here." Father stated, "That is why kids get to be with both parents. I know you're upset, but it's best when parents don't say bad things about each other. It's not fair. I just want a good relationship with you." He asked, "Do I ever say anything bad about anyone?" A-- said, "no." Father asked A--, "How do you think I should feel about being lied to about your concert?" A-- replied, "You should feel sorry. You have been lying to me about everything my whole childhood." Father asked A-- what he had lied to her about, and she replied, "You got married and a lot of other things I can't remember." A-- then said, "You live in Delaware." Father told her that "we used to live in Delaware," and A-- told him, "It's all your fault you broke up with my mom. I'm never coming to your home because I don't feel safe." Father asked what he had ever done to make her feel unsafe. A-- said, "Take pictures of me and lie to the Judge." Father asked A--, "Who told you I lied to the Judge?" A-- answered, "My mom and Miss J---- [Ms. S--------S----]." Ms. M- ----- testified that Father then asked, "What have I ever done to you?" She noted that she heard Ms. S--------S---- say, "You are afraid for him to come here." Ms. M------ stated that A-- repeated Ms. S--------S----.
Father told A--, "You should have the opportunity to have a relationship with both loving parents. I don't bring you into the adult stuff and stress you out. You have a right for both parents to love you. It's not fair to you. I have been trying to make you smile no matter what. I love you, and your entire family loves you. That is what Dad is trying to change. If there is any arguing or going back and forth, I am sorry you had to hear a lot of things that aren't true, that aren't fair to you. This is adult stuff and should stay between adults. I understand where you are coming from."
Ms. M------ testified that Father ended the session by saying, "You're a good girl, smart girl, and you will figure it out." He said, "You have friends' parents that aren't together. You told me that, and they spent time with their mom and dad. I love you." Ms. M----- stated that A-- then got off the video.
Ms. M------ stated that A-- "came off as rude and cold" in the session, which was concerning because she does not usually behave that way. She noted that this was the only session Father had discussed Court with A--.
Mr. Bever asked Ms. M------ if she recalled Father repeatedly speaking about Court to A-- on April 12, 2022. She did not. Mr. Bever than asked if Ms. M------ was aware Father recorded all the reunification sessions, and she said no. She testified that she had no recollection of Father discussing Court outside of the November 28, 2022 session because it was not recorded in her notes. Father testified that anytime he spoke about Court, he was responding to A-- based on things she brings up. He stated that A-- already knew about Court, and "it wasn't from [him]."
Father testified that this session was distressing because A-- explicitly indicated that she could only answer specific questions. Mother denied Father additional time with Father the weekend before this session due to the present trial approaching the same week.
Mother indicated that she spoke to Mr. Bever about expanding contact prior to trial.
Ms. M------ testified that the sessions, other than those she highlighted as problematic, had been successful. She stated that Father had been prepared, playful, and refrained from having non-age-appropriate conversations. Ms. M------ emphasized that Father never did anything inappropriate since the Tele-Psych visits had begun, and she did not believe anyone could have performed any better. Father shares information about his life, discussing the weekend, whether he is sick, and other topics. They watch YouTube together, play games, do art, and Father performs magic tricks. Ms. M------ confirmed that over the past four years, Father wanted to expand his time with A-- and exercise unsupervised visitation or have it in different locations. However, Ms. M------ stated that they were all in the office. Father testified that he has videos and pictures of the sessions that show "a father and daughter having a very good time." Father testified that A-- had "always been very inquisitive with [him]." He stated that he could tell by her body language that she enjoys their time together.
Father stated that the pictures and videos span from the time A-- was born through their last in person visit on November 13, 2022. They show A-- and Father spending time together and in person and in their virtual visits. Father entered comments on the photos stating the date, time, and who took the picture. The photos were admitted as Petitioner's Exhibit 3.
Ms. M------ stated that there had only been one session where Father was unable to engage A-- in an activity, which was the July 28, 2022 session where A-- had to leave a birthday party to attend. Ms. M------ stated that she did not believe Father had ever lied during a session, but he withheld adult information, which she thought was appropriate. Ms. M------ testified that A-- had no reason to feel apprehensive about Father based on their interactions in reunification sessions over the last four years. Mother confirmed that A-- only expressed fear of Father after the April 12, 2022 session. Mother explained that it was the first time A-- had ever heard Father raise his voice, and A-- believed he had lied to her. Ms. M------ testified that based on her professional relationship with Father and observing four years of visits, she does not have concerns for A-- if visits were expanded and not supervised. Father thought A-- would adjust to unsupervised contact with him.
Ms. S--------S---- testified that Father has been appropriate during almost all the Zoom sessions. She stated for the majority of the supervised visits with Father, A-- wants to get on the computer and play with Father. Ms. S--------S---- noted that A-- does not ask many questions about what Father is doing. However, she testified that A-- is typically engaged and playful during visits. She stated that most visits go very well, and A-- indicated that she had a "great time" after one session. Ms. S--------S---- remarked that Father and A-- share a sense of humor and both love magic. She testified that whenever there were issues during visits, A-- could speak to Father and move on to have a good visit. A-- does not maintain a sense of anger or betrayal.
Ms. S--------S---- noted that she lets A-- and Father drive their sessions unless A-- has something she wants to address with Father. Ms. S--------S---- indicated that she steps in to help A-- express her feelings, if necessary. However, she testified that she had not had to do so often, and A-- only needed to address an issue with Father approximately three or four times. Ms. S--------S---- noted two examples of times she stepped in. First, A-- got in trouble at school, and Ms. S--------S---- helped her share that information with Father. Second, during the session where A-- noticed Father's wedding ring, A-- muted the microphone on the computer and leaned back to ask Ms. S--------S---- if Father was wearing a wedding band.
Ms. S--------S---- testified that she did not know but that if it was concerning, she could ask him. Ms. S--------S---- stated that her role is to facilitate conversation between A-- and Father.
She noted that Father often told A-- she could talk to him about anything, so she tried to encourage A-- to be open with him.
Father confirmed that he had seen A-- in person in Michigan nine times since the Court's 2019 Custody Order, even though he was permitted to visit her there once every other month. He stated that there was a one-year period, from November 2020 to November 2021, when he could not see A-- in person. Father testified that it was difficult financially to make the trip during that time. Therefore, he had not been able to exercise all of the visitation opportunities afforded to him.
Ms. S--------S---- testified that Father came to Michigan four times since she became involved, in November 2021, January 2022, April 2022, and November 2022. She noted that Father planned to visit in December 2021 and A-- asked her why he could not come in November. Ms. S--------S---- told Father, and he arrived early and saw A-- in November instead. Ms. S--------S---- noted that the gap in visits bothered A--, but she worked with her to understand Father's perspective by explaining the cost of flights and that he must stay in a hotel. Concerning the quality of visits, Ms. S--------S---- stated that the in-person visits went well. A-- enjoys the time with Father. Ms. S--------S---- testified that she supervises their contact, but she noted that they have unrestricted access to her office building, and when the weather is nice, they walk to the park. Ms. S--------S---- testified that she tries to provide some sense of privacy so A-- can have a normal opportunity to be with Father. She stated that Father brings gifts and activities for them to engage in. They have watched movies, painted, played in the snow, and ordered food. Ms. S--------S---- indicated that Father and A-- laugh a lot during their in-person visits. She stated that she tries to help their visits feel "as normal as possible" within the guidelines. Ms. M------ testified that she was never permitted to observe any of Father's nine in-person visits. She saw videos and photos of the sessions, as provided by Father. Ms. M------ stated that he and A-- appeared to be "bonded," "close," and "having a blast."
Father testified that two of his most memorable visits with A-- were the second virtual visit when she said, "I love you" for the first time and called him "Daddy" and an inperson visit when A-- kissed him on the cheek.
Father stated that he and A-- have a strong emotional bond. He testified that A-- warms up quickly during visits, and they can connect. Father said that they smile and joke together. She talks about their in-person visits and places she wants to go with Father. Father testified that A-- is also able to discuss sad things with him. For example, Father noted that A-- told him about the death of pets, Mother getting sick, and when she got in trouble at school. Father emphasized that A-- loves him.
With respect to moving forward with contact, Ms. M------ confirmed that she completed a report, including all the observations she testified to at the present hearing on October 18, 2022. It did not include the information from the November 28, 2022 session.
Ms. M------ stated that the report included her professional opinion at the conclusion. She summarized her conclusion for the Court. Ms. M------ began by noting that the therapeutic reunification sessions should have been completed in one year. She stated that Ms. G----- refused to participate in reunification therapy, and Mr. B------ and Mr. Q----------- both referred back to the Court's Order and were unwilling to progress in the bonding process of reunification without Mother's permission, and, in the past, Mother has only agreed to what the Court Order stated. Father testified that he asked Mr. B------, Mr. Q-----------, and Ms. S--------S---- to exercise unsupervised visitation with A--, but they all deferred to Mother, and his requests were ignored.
Ms. M------ testified that neither Mr. B------ nor Mr. Q----------- acted as A--'s individual therapist in addition to providing therapeutic reunification services with Ms. M-----. Ms. M------ indicated that she realized Ms. S--------S---- had become A--'s individual therapist, in addition to providing therapeutic reunification services on November 2, 2021, when Ms. S--------S---- had remarked that she only agreed to do supervision if she was able to see A-- as her therapist. Ms. M------ testified that she thought it was inappropriate that Ms. S--------S---- was offering direct counseling to A-- and acting as the person to facilitate therapeutic reunification and visitation. She testified that it was a conflict of interest for Ms. S--------S----, and she couldn't be impartial. However, Ms. M------ remarked that Ms. S--------S---- had not performed therapeutic reunification because they did not ever collaborate. Father agreed that Ms. S--------S---- had not performed therapeutic reunification. Ms. M------ stated that since Ms. S--------S---- became involved, she has not seen progress in reunification between A-- and Father.
Ms. M------ stated that for reunification between Father and A--, there needs to be an updated Court order with a plan that includes unsupervised visits and a direction for the therapists to follow. Ms. M------ recommended that the therapists communicate weekly with one another to discuss progress and any challenges. She did not believe that the therapist who provided individual counseling should also facilitate any possible future reunification services.
Ms. S--------S---- testified that it is not a conflict of interest in Michigan to serve as A--'s individual therapist and facilitate reunification. She stated that it is advantageous to talk with the child about things they are experiencing, work through them, and help them prepare for the next visit. Ms. S--------S---- added that it provides a sense of safety to a child by simplifying how many people they are involved with while being pulled between two parents. She noted that she had provided individual therapy for children who were also participating in therapeutic reunification for close to 150 families. Moreover, Ms. S--------S---- testified that she has not been heavily involved in visits from a therapeutic role and instead provided primarily supervision because Father had asked her not to interrupt or engage. Thus, she noted that she only interjected a few times when there were disruptions or to help A-- express her feelings to Father.
Ms. S--------S---- noted that A-- fears Father taking her away from Mother, and she felt it should be considered when expanding contact with Father. The Court notes that A--'s fear is discussed infra. Ms. S--------S---- testified that the best way to move forward with additional visits with Father, in a way that would make A-- feel comfortable and be positive for their relationship, would be to invoke a gradual plan which adds more contact and opportunities to do everyday things. She emphasized that it will be important for A-- that the transition is slow and safe with consistency in her time with Mother so that the increase does not backfire and her relationship with Father continues to grow. Father repeatedly stated that he was disappointed that he was never given the opportunity for his visits to advance in the past. However, Ms. S--------S---- testified that in March 2022, she offered Mother and Father the option to engage in a gradual transition plan that she had used successfully with 75 other families, as a way for Father to work toward seeing A-- more frequently and in natural settings, such as going out to dinner, going bowling, watching a movie at the theater, working toward a trip to a lake and flying for a visit. Ms. S--------S---- noted that Father, Mother, and A-- all understood that she would be there with A-- for any potential expanded visits. Mother agreed to the plan and believed it was in A--'s best interest. She supports Father having a relationship with A-- so long as he is doing what is necessary so that he does not place Mother's experience onto A--. Father declined to engage in the gradual plan because he thought it would be too expensive. When asked why Father would need to engage in a gradual process to exercise unsupervised visitation with A--, given that he has participated in reunification therapy or supervised visits for four years, Ms. S--------S---- testified that the time is necessary because A-- "does not feel safe yet." Ms. S--------S---- confirmed that supervised visitation in a transitional period would make A-- more comfortable. When asked whether she believed A-- would currently feel comfortable getting on a plane to visit Father for a week in Florida, Ms. S--------S---- testified that A-- had directly told her that she was not comfortable being with Father alone. Ms. S--------S---- testified that the goal is that the more time Father and A-- successfully spend together in person and engaging in typical activities, A-- will feel okay alone with Father. Concerning the first step to more time together, Ms. S--------S---- acknowledged that it is expensive for Father to come to Michigan, but she thought Father utilizing more visits there for long weekends would be helpful. He and A-- could have contact each day and for gradually more prolonged periods. She also noted that it would be beneficial to be permitted to go into the community to engage in different activities. Ms. S--------S---- recommended that visits be supervised for six months to one year, given that A-- has directly expressed that she would not want to go out with Father without Ms. S--------S---- present. Mother testified that A-- feels comfortable with Ms. S--------S---- and would be "devastated" if Ms. Schafer-Space was abruptly removed. Mother indicated that she was willing to do whatever Ms. S--------S---- thought was appropriate concerning increasing time with Father.
Ms. S--------S---- confirmed that during one visit, Father asked A-- if she wanted to go swim at Great Wolf Lodge and when A-- responded affirmatively, Ms. S--------S---- stated that it was "up to the Court."
Ms. S--------S---- stated that Father generally does a good job listening to A--, and there were only about three sessions with conflict where Father got defensive. A-- reacts to that by telling Father she does not want to be with him without Ms. S--------S---- present.
A-- also has a relationship with Father's wife. Ms. M------- met A-- once. Ms. M------ indicated that A-- seemed pleased to meet her, and A-- told Ms. M------- that she looked like a "princess." Ms. M------- testified that she would like to spend more time with A-- and have A-- "receive all the love our family can give her." Ms. M------- confirmed that she used to be employed as a nanny for three young children. Ms. M------- noted that she did not need one-on-one time with A-- but emphasized that she wants A-- to be with Father and the rest of the family.
Father testified that A-- has not been able to interact with his friends and family in person. However, he noted that A-- had virtually spoken to his father, his father's wife, his mother, his grandmother before she passed away, and his aunt and uncle. Father explained that they could interact with A-- when he had his visits, and they were present, or when they reached out to Mr. Q-----------. Father stated that Mother never reached out to his family members to initiate contact between them and A--.
Concerning Mother's relationship with A--, she had been her primary caregiver since A-- was born. Mother has had sole legal custody and primary placement since 2015. Mother takes care of A--'s essential needs. She takes her to school, activities, and medical appointments.
Ms. M------ noted that during one session A-- had mentioned that she sleeps with Mother "almost every night". Ms. M------ testified that co-sleeping is not emotionally healthy for the child. She confirmed that co-sleeping could be indicative of enmeshment. Ms. M------ explained that enmeshment is an "unhealthy attachment with a parental figure." Mother testified that she does not presently co-sleep with A--. She noted that if A-- is sick or worried, she might come to Mother's bed, but, in general, A-- stays in her bed in her room.
Further, Ms. M------ testified that she had observed A--'s mood change over time and believed it was directly related to what Mother told A--. Ms. M------ stated that based on her observations and the comments from A-- in the sessions noted above, it appears Mother is engaging in disparaging remarks about Father. Ms. M------ testified that assuming A--'s statements during the sessions she mentioned earlier were accurate, they were indicative of alienating behavior by Mother. Ms. M------ emphasized that concerns about Mother's interaction with A-- were a repeated theme throughout the four years of therapeutic reunification. Ms. M------ stated that the negative talk about Father was the reason therapeutic reunification could not progress. Father agreed Mother was feeding A--inappropriate statements. He testified that A-- brings things up that he has never discussed with her. Ms. M------ acknowledged that A-- may embellish, but she stated that what A-- says is "accurate for her." When asked if it was possible for something to "be accurate for A--without it being accurate," generally, Ms. M------ said it was. Ms. M------ testified that she never heard Mother say anything negative about Father to A--. Father confirmed that he had never heard A-- explicitly say that Mother made derogatory remarks about him.
Ms. M------ testified that when a parent alienates a child, they exhibit certain behaviors. Specifically, she stated that they might be afraid of the alienated parent, make false accusations about the alienated parent, have a lack of guilt about negative feelings toward the alienated parent, and unwaveringly support the other parent. She confirmed that these factors were present in this case.
Ms. M------ recommended that Mother engage in a parenting class and engage in individual counseling to assist her in learning appropriate parent-child engagement and adjusting to Father being in A--'s life.
Ms. S--------S---- testified that she believes Mother did not intentionally try to alienate Father from A--. She stated that statements Mother has made to A-- are not the reason that A-- feels unsafe around Father. Ms. S--------S---- testified that she checks in with A-- often, and it is clear Mother is making her best effort to keep the adult information away from her. However, Ms. S--------S---- testified that it is possible A-- heard Mother say inappropriate things about Father. Ms. S--------S---- noted A-- is very vigilant and listens to everything, which is common for children with separated parents. Ms. S--------S---- stated that the way Mother managed her emotions before Ms. S--------S---- began working with A-- could have been more evident to A-- than she realized. Namely, if Mother appeared to be worried for A--'s safety due to her own trauma with Father, A-- might have picked up on it because she is very empathetic. Ms. S--------S---- confirmed that she worked with Mother on managing her emotions, not having adult conversations with A--, being aware of how things affect A--, and avoiding putting her own trauma onto her. She stated that they spoke about this primarily when she first began her work with A--, around October or November of 2021, and "touched based" with Mother periodically. Ms. S--------S---- confirmed that Mother's relationship with A-- concerning communication about Father is "definitely" improving. Ms. S--------S---- noted that A-- deserves to understand certain information, such as why Mother and Father aren't together. She emphasized that such conversations must be undertaken age-appropriately. Ms. S--------S---- noted that when A-- made certain statements to Father and told him that Mother gave her the information, it was not necessarily the case. Ms. S--------S---- explained that "in [A--'s] world," she and Mother are A- -'s "feeling of safety," and it is "very normal" for A-- to say that her Mother or Ms. S--------S---- told her something. She explained that A-- was really trying to say, "Dad, hear what I'm saying and believe me." A--'s goal was to have Father understand that she was aware he might have made bad choices in the past and have him indirectly validate her emotion about not feeling safe alone with him. Ms. S--------S---- emphasized that A-- has been "living a life of conflict" and involved with the Court since she was born, and she has her own experiences and interpretations of events. She explained that A-- might have general memories of tumultuousness. Ms. S--------S---- noted that children have fluid memories by the time they are three and can have "muscle memory" and "snapshot memory" of trauma from even as young as inside the womb.
Mother testified that she only spoke to A-- about Father to explain that the visits with him are a way for A-- to get to know Father better. Mother noted that A--infrequently initiated conversations about Father, but A-- asked straightforward questions when she did. Mother stated that it could be challenging to know how to answer questions about the timeline or other information without overburdening A--. Mother said that when she answers, she is conscious of giving enough information so that A-- does not "fill in the blanks wrongly or negatively." Mother stated that she never told A-- that C----- is afraid of Father or that Father abused Ms. T-----. When asked if she ever told A-- that Father hurt her, Mother stated that she had spoken to A-- about it "a little bit" because A-- asks direct questions about why Father is not in the same place as them, what happened, and when it happened. Mother testified that she tries to speak generally and says Father made a choice, and they are no longer together. Mother noted that as A-- has grown up, she has pushed for more information, and Mother tells her that they can talk about it more when she is older, but it is not for her to hear right now. Mother acknowledged that she is emotional and understands that children can perceive things and read body language. Mother stated that she has worked on managing her emotions and not letting A-- see any fear. Mother emphasized that she never purposely told A-- negative information about Father.
Mother testified that she told A-- not to tell Father something one time in 2016. Mother explained that she asked A-- not to tell Father that they were going to see her aunt in New York. Mother stated that at the time, she was afraid Father would show up if he knew Mother was visiting because he had been to the residence before and was within driving distance. Mother noted that Mr. B------ told her that her comment to A-- was inappropriate. Mother stated that she had not told A-- not to tell Father anything else. She testified that she was okay with A-- talking to Father about anything she wanted. Mother stated that she wants A-- to express herself as she is ready and to tell the truth. She emphasized that she does not control their discussions.
Further, Mother testified that she had never intentionally shown A-- a Court document. She did not believe A-- had seen them inadvertently because she did not leave papers out. Mother could only think of one time when A-- saw a scheduling document and asked her about it. Mother explained that it meant Father was petitioning her, and she told A-- that she was dealing with it. Concerning discovery for the present matter, Mother stated that she was looking at the photos from Father that Mr. Bever provided in preparation for the current hearing, and A-- appeared over her shoulder, asking what they were. Mother told her that Father took pictures, and she allowed A-- to scroll through the images.
Mother confirmed that she has photos of A-- and Father in the home. She stated that there are pictures of Father in A--'s "baby book," Father gave A-- a mug with his and A-- 's picture on it, and A-- has a framed photo of her and Father in her room. She does not prohibit A-- from having pictures of Father.
Ms. S--------S---- stated that she believes Mother is doing a "remarkable job" parenting A--. She testified that she does not believe Mother is negatively influencing A--. Ms. S--------S---- testified that through A--'s therapy, Mother and A--'s relationship has strengthened. A-- has become less oppositional and willing to listen to Mother's reasoning.
(4) The child's adjustment to his or her home, school and community;
A-- has not resided with or visited Father in Florida. Father testified that he thought A-- would adjust well to his home and the community.
A-- is in fourth grade. Mother stated that A-- had improved in school this year. Mother had not received any calls or emails about A--'s behavior. Mother noted that A--enjoys her teacher. Ms. S--------S---- testified that when she first began seeing A--, A-- struggled with making friends and being "bossy," "controlling," and "judgmental." However, Ms. S--------S---- stated that A-- was "blossoming" this year. She testified that A-- was "happy." Mother indicated that A-- had made more friendships and been engaged. Mother stated that A-- was making good academic progress and had no issues with attendance. She confirmed that A--'s student progress reports fairly and accurately represent how A-- had been doing in school.
A--'s progress reports were admitted as Respondent's Exhibits 4 and 5.
(5) The mental and physical health of all individuals involved;
Father testified that he is "strong as an ox." Father does not have any medical issues. Father stated that his mental health was "as strong as it can be." He noted that he had seen a therapist, Dr. V--------, for approximately four to five years until the Court excused him.
Father last saw Dr. V-------- in the summer of 2018. Father noted that Dr. V-------- was not A--ilable to testify because he had passed away. Father does not take any medication for his mental health.
Father stated that Ms. M------- is physically and mentally healthy. She is not on any mental health medications and does not see a therapist.
Mother testified that she is in good physical health. She stated that her primary care provider prescribed her Atarax, a sleeping medication she takes as needed.
Mother stated that A-- is in good physical health. Concerning A--'s mental health, Mother confirmed that A-- only sees Ms. S--------S---- for counseling services. Ms. S--------S---- explained that when Mother contacted her in September 2021 to work with A--, she told Mother she wanted to do individual therapy with A-- once every other week to help her process visits with Father and teach her how to manage her emotions while navigating being pulled between two parents.
Ms. S--------S---- stated that she did not believe A-- engaged in independent therapy with another provider before beginning with her. Mother clarified that when A--worked with Mr. B------ for therapeutic reunification, she saw Lesley Menhart ("Ms. Menhart") for a few sessions at the Fountain Hill Center, but Ms. Menhart could not fit A--into her schedule as a client. Similarly, when A-- worked with Mr. Q-----------, A-- saw a counselor for approximately one year, but she made it clear to Mother that she would not be involved with Court in any way. As of the present hearing, Ms. S--------S---- had 23 sessions with A--; Mother was present to work on a "joint issue" approximately four times. Mother testified that Ms. S--------S---- had been an encouraging figure for A-- and served as a neutral place for her to work on her relationship with Father. Ms. M------ testified that it would be advantageous for A-- to continue engaging in individual therapy.
Ms. S--------S----'s file noted that when A-- began therapy, her goals were to work on telling the truth, building trust with Father, and realizing her own feelings without considering the feelings or experiences of Mother. Ms. S--------S---- testified that A-- is doing very well in therapy. A-- can name her feelings and take responsibility for her behavior. A--has improved with telling the truth. Ms. S--------S---- testified that A-- could recognize other people's thoughts and feelings. A-- has learned to be more "obedient in controlling her emotions," and she is happier. Ms. S--------S---- confirmed that A-- is at an age developmentally where personal agency is essential. She noted that around the age of ten, children learn they have their own voice and need to learn to use it as is appropriate.
Ms. S--------S---- highlighted one major fear she is working on with A--. She explained that A-- has a chronic fear of being kidnapped by Father. Ms. S--------S---- noted that fear of kidnapping is a common theme in children with separated parents because they are uneasy about being taken from a consistently safe environment. Ms. S--------S---- testified that A-- has not felt ready to talk to Father about her fear, but she asked if A-- would be okay with her telling Father, and A-- gave her permission. Ms. S--------S---- stated that she asked A-- why she had the fear, and from A--'s perspective, A-- voiced that she worried he would take her because Father "sometimes does what he wants," and A-- worried that if Father wanted to take her, he would. Ms. S--------S---- noted that the four years Father was absent in A--'s life was a significant period where Father missed opportunities to bond. She stated that the lack of bonding from ages two to six created underlying issues, namely her fear that Father will keep her from Mother. Ms. S--------S---- noted that after A-- had a conflict with Father about engaging in a session during her friend's birthday party, she was upset and had a nightmare that Father came into Ms. S--------S----'s office and shot and killed Ms. S--------S----. She explained that her fear of Father taking her from a safe space is how her conflicts with Father are acted out in her own psyche. Ms. S--------S---- stated that talking to Father about the fear and having him validate A--'s emotions and talk to her about it would be helpful. Ms. S--------S---- noted that she speaks with A-- about the fact that Father knows the rules and he has always followed them. She confirmed that Father never threatened to take A-- and reiterated that A--'s fear stems from his absence and her concern about being taken from a place she considers safe.
A-- takes Lexapro to treat anxiety. Mother confirmed that A--'s pediatrician prescribed the medication. Ms. M------ testified that she is not aware of children being prescribed Lexapro. However, Ms. S--------S---- testified that it is common for children to take Lexapro.
Father testified that A-- does not have any psychological issues, and he expressed concern that a psychiatrist did not prescribe A-- Lexapro. Based on his independent research, he testified that A-- was too young to take the medication. Father stated that there is "no doubt in [his] mind" that A-- has "been drugged and molded into what mom's agenda is." He testified that Mother's "agenda" is to "erase myself [sic] and A--'s entire family from her life." Father stated that Lexapro is used to "groom her" and "get her to relax" for one-on-one therapy where she is being manipulated.
Father confirmed that he thought Mother convinced the doctor to prescribe A- Lexapro, which she does not need, to try to control her. Father indicated that he did not believe it was possible that any prescription or treatment was the result of Mother trying to do what was best for A-- and help her with mental health issues. When asked if he believed Mother would give a prescription to A-- solely to alienate her, Father stated, "I think [Mother] hates me more than she loves her own daughter." He reiterated that he believed Mother's conduct negatively affected A--'s affection for him.
Father emphasized that he would not engage in any more therapeutic visitation with A--. Father testified that A-- "always managed to break through" when she was with him without help. However, he stated that he would broach the subject with a qualified professional in Florida if he saw any issue when A-- was with him.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
Concerning finances expended to care for A--, Father testified that each of the nine trips to Michigan to visit A-- cost him approximately $1,500.00, including $450.00 payable to Ms. S--------S----. Moreover, Father noted that the virtual visits cost $75.00 each for his share. Accordingly, he stated that his nine trips to Michigan and approximately 200 virtual visits are estimated at around $20,000. He testified that it was not financially feasible to continue paying for supervised therapeutic visitation.
Mother has provided financially for the daily care of A-- and contributed her portion of the virtual visits.
With respect to the caretaking of A--, Father noted that although he has not had much opportunity to provide care for A--, he has tried to be nurturing during their virtual visits. Mother indicated that Father has been consistent with making virtual contact with A-. Father has been able to provide for her care when he saw A-- in person. Ms. S--------S---- testified that during his visits with A--, Father was "a good dad that has compassion and sensitivity." Moreover, Father stated that during A--'s early years, he took her to the doctor, fed her, and put her to bed.
Father stated that A-- has "no reason not to trust [him]." He emphasized that he never did anything to harm A-- since her birth. Father testified that he believed Mother was the sole reason for any issues between himself and A--. When asked whether he thought his voluntarily signing a stipulation and not having contact with A-- for four years affected their relationship, Father stated he signed the stipulation at the advice of his attorney and because he had "looming litigation." Father testified that she would not recollect the period in which he was not present. Father stated that he did not believe his choices, such as engaging in criminal acts, could impact his relationship with A--.
When asked whether he thought Mother did a good job raising A--, Father testified that he "despised" when one parent hurts the child by speaking negatively about the other parent. He stated that he believed A-- was being manipulated at home.
Mother has had sole custody of A-- since 2015 pursuant to the consent order with Father. She has been her primary care provider throughout her entire life. Mother has taken A-- to school and all her medical appointments.
Ms. S--------S---- stated that Mother was flexible in scheduling Father and A--'s Tele-Psych visits. Mother made A-- A--ilable for all scheduled visits, allowed A-- to interact with Father, and did not try to prevent the contact. Mother testified that she encourages A--to participate in sessions with Father and ask him questions that she has. She acknowledged that she had told A-- she did not have to talk about certain things if she did not want to, but Mother emphasized that she never told A-- she did not have to attend visits at all and always encouraged her to be respectful and truthful.
Concerning communication, Father stated that Mother has not been keeping him informed about A--'s schooling, education, extracurricular activities, or religious events. Specifically, Father testified that he never received A--'s school calendar and did not communicate with her teachers. Mother confirmed that she never sent Father a copy of A--'s medical records. Mr. Gay proffered that the 2019 Custody Order required that Mother's address, employment, and other identifying information remain confidential, but it did not preclude Mother from providing redacted information to Father.
He found out A-- got in trouble at school through Ms. S--------S----. Ms. S--------S---- also sent Father photos of A-- at school.
When asked whether he wanted to take a step toward co-parenting with Mother, Father stated that he did not believe it would be in his best interest because he did not think Mother could do so based on her previous statements in Court. However, Father testified that he was willing to try to communicate with Mother through a protective parenting application like Talking Parents or Our Family Wizard ("OFW").
Mother testified that she does not want to have contact with Father. Mother stated that she wants to do what is best for A-- in any way, but she thought it would be difficult for them to communicate constructively, given Father's testimony from the first day of the present hearing. Mother indicated that she did not think the way Father communicates has changed, and she emphasized that while she wants to do what is best for A--, she believed that directly speaking to Father would be detrimental to her. Mother expressed that she would prefer scheduling concerns go through a third party. Nonetheless, Mother stated that despite her reservations, she would be willing to communicate with Father on OFW solely about A--. She indicated that she would feel better if someone, like her attorney, monitored the communications.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
The Court received some testimony related to Father under factor (7). This Court has previously documented Father's acts of domestic violence.
The Court notes that, although Mother previously filed several PFA petitions with this Court, they were ultimately dismissed through stipulations between the parties that also involved custody and visitation provisions related to A--. Father previously pled no contest to assault in the third degree, which is one of the specifically enumerated offenses in § 703A(b) for qualification as a perpetrator of domestic violence. The victim of Father's third-degree assault was his ex-wife, Ms. T-----, with whom he resided at the time. Accordingly, the Court found that Father is a perpetrator of domestic violence under Delaware law. It ordered him to participate in a domestic violence program.
Pursuant to 13 Del. C. § 703A(b): "'[p]erpetrator of domestic violence' means any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:
(1) Any felony level offense;
(2) Assault in the third degree;
(3) Reckless endangering in the second degree;
(4) Reckless burning or exploding;
(5) Unlawful imprisonment in the second degree;
(6) Unlawful sexual contact in the third degree; or
(7) Criminal contempt of Family Court protective order based on an assault or other physical abuse, threat of assault or other physical abuse or any other actions placing the petitioner in immediate risk or fear of bodily harm."
See State ex rel. Dalke, 1999 WL 692078 (Del. Fam. June 22, 1999), where this Court held that a father was a "perpetrator of domestic violence" due to three convictions of third degree assault against women with whom he cohabitated, despite the fact that none of the women were the mother of the child at issue or resided in the child's home.
Ms. M------- testified that there has never been an incident of domestic violence in her relationship with Father. She stated that she "can't even imagine it." Father confirmed the same. Ms. M------- said Father told her about his relationships with Mother and Ms. T -. She stated that those relationships ended "just like most people" when "you stop getting along" and "it is not working anymore."
Father testified that he successfully completed the Court-ordered domestic violence program due to his status as a perpetrator of domestic violence. The Class was through People's Place in Milford, Delaware; it was 25 weeks long, and met once a week. Father acknowledged that he was involved in litigation regarding criminal charges for assaulting Mr. T-----.
(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.
Mother stated that she does not have a criminal history. Ms. M------- testified that Father does not have a criminal history. She later acknowledged that Father told her he was arrested due to "a problem with his ex." Still, Ms. M------- maintained that she did "not think [Father] did anything." Father stated that he told Ms. M------- that the Delaware State Police arrested him based on domestic violence allegations.
Father stated that he had been convicted twice for unlawful access of DELJIS, entered a nolo contendere plea to assault in the third degree misdemeanor, and has a conviction for reckless driving. Father confirmed that he was arrested for driving under the influence; however, he testified that he was not intoxicated. Father noted that he has a "pretty crappy history" with the Delaware State Police and the Delaware Attorney General's Office. Father emphasized that he ultimately pled guilty to reckless driving due to that arrest. He stated that he was fined $200.00 and received six points on his license. Ms. M------- testified that her daughter, F-------, does not have a criminal record. Ms. M------- stated that she does not have a criminal history.
The Court conducted an independent review of the parties' criminal histories. The Court notes that Mother has no Delaware criminal history other than a conviction for motor vehicle violation in 2014.
This Court has previously documented Father's criminal record. Father has two old motor vehicle violations from 1993. Father was convicted of two counts of "providing criminal history record information to another person or agency not authorized" ("unauthorized use of DELJIS") on September 16, 2014. As noted above, Father pled no contest to assault in the third degree against Ms. T----- on June 19, 2015. Father testified that regardless of what anyone thinks, he "stand[s] back to the fact that [he] defended himself at the very time that his wife, then, was assaulting [him]." Father stated, "Take it however you want. I acted instantly at that time. I pushed her away from me." Father emphasized that he has taken responsibility for what happened but stated that he should have called the police himself. Father confirmed that he was the only one criminally charged from that event. Father stated that he did not care "what people say about [] the assault" because he has "moved on."
On February 10, 2022, Father was convicted of reckless driving. Father testified that this conviction should not affect his ability to transport A-- unsupervised.
Analysis
Based upon the above evidence, the Court finds that it is in A--'s best interest for Mother to continue to exercise SOLE LEGAL CUSTODY. The Court emphasizes that even when one 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 will not require Father to request this information. Mother shall be obligated to provide it to Father on a reasonable and regular basis.
A-- will make her primary residence with Mother and shall exercise unsupervised contact with Father on a graduating schedule. Father's contact with A-- will begin with one weekend visit in Michigan facilitated by Ms. S--------S----. Father shall be permitted to exercise contact with A-- out in the community and see A-- on each day of his visit from 10:00am to 7:00pm. Ms. S--------S---- need not be present the entire time. There shall be no overnight contact during this first visit. Thereafter, Father shall be permitted to exercise unsupervised overnight weekend visitation in Michigan once a month. All weekend visitations may begin Friday after A-- is done with school and will end by Sunday at 6:00pm. When A-- is off from school for spring break, Father may exercise his monthly visitation at that time. However, the contact time shall be extended and is permitted to take place for half of the days A-- has off from school. Such contact will end at 6:00pm on the final day. The parties shall use A--'s therapist's office as the exchange point, but they may mutually agree to modify the location. Parties may use another adult well-known to A-- for picking up or dropping off.
In the summer, Father may exercise his monthly unsupervised contact with A- in Florida from Wednesday afternoon to Monday afternoon. Father shall be responsible for A--'s transportation. Unless Father or another mutually agreed upon adult wishes to bare the expense of flying with A--, an unaccompanied minor ticket may be purchased at Father's expense. Father shall have one visit in June and one in July before the next hearing in this matter is conducted. Counsel shall provide a stipulation to the Court noting the dates of those visits and specifying the particulars of travel arrangements. Additionally, with notice to Mother, Father may attend A--'s school or extracurricular events in Michigan.
Factors (2), (3), (4), (5), (6), (7), and (8) of the best interest analysis under 13 Del. C. § 722 support this determination. Factor (1) is neutral in the best interest analysis.
Under factor (8), Mother has no criminal record in Delaware that impacts the best interest analysis. Father's criminal history includes convictions of third degree assault, unauthorized use of DELJIS to access information about Mother, and reckless driving. Outside of the reckless driving conviction in 2022, which Father believed would not affect his ability to transport A-- unsupervised, he had no new criminal convictions since 2015. Father testified that he took responsibility for his actions and had moved on. Given that Father has not accrued new criminal convictions and appears to have taken accountability for his past convictions, factor (8) is neutral in the Court's analysis.
With respect to factor (1), which addresses the wishes of the child's parents as to her custody and residential arrangements, the parties were seemingly in agreement regarding Mother having primary residency of A--. However, Mother and Father were opposed concerning legal custody, the contact schedule, and whether contact should be unsupervised. Accordingly, in its forthcoming analysis, the Court will discuss its determination regarding each of those arrangements in turn and apply the best interest factors.
Legal Custody
First, the Court's granting Mother sole legal custody of A-- is supported by the evidence presented under factors (3), (4), (6), and (8) of the best interest analysis.
Father requested joint legal custody of A--. He emphasized that he wanted A--to have the other half of her family present in her life and be a part of deciding what was best for her. Mother did not want custodial arrangements to change. She has had sole legal custody of A-- since 2015, per Father's voluntary agreement. Mother did not believe that Father being involved in daily decision-making would be beneficial for A--. Mother shall maintain sole legal custody of A--.
The Court preliminarily notes that it was not impressed with Father's repeated statements that he was "done" with future involvement in this matter, and thus presumably with his contact with A--, unless this Court granted his requests. His assertions do not support an award of joint legal custody.
The evidence under factor (3) established that A-- had strong relationships with Father and Mother. Concerning Father's relationship with A--, Father was not involved with A--'s life for approximately four years, from ages two to six, because he voluntarily entered into a custody agreement that granted Mother sole legal custody and primary residency of A--. Father testified that before that absence, he had a very close bond with A--in her first years. Father and A-- have been engaging in visitation via Tele-Psych since May 30, 2018.
Ms. M------ testified that the Tele-Psych visits had generally gone very well. A- told Father she loved him early on into their contact resuming. Ms. M------ stated that Father was playful with A-- and refrained from having non-age-appropriate conversations. Ms. S--------S testified that A-- is typically engaged and playful during visits. Whenever there were issues during visits, A-- could speak to Father and move on to have a good visit. Father shared information about his life during their visits, and they played together. Petitioner's Exhibit 3 shows photos of Father and A-- during visits, where they appear to be having a good time. Ms. M------ emphasized that she did not believe anyone could have performed better than Father in his visits with A--.
Father also spent time with A-- in person in Michigan. He had seen her a total of nine times since the Court's 2019 Custody Order. Father did not see A-- as often as permitted due to financial constraints. Ms. S--------S---- stated that the in-person visits went well, and A-- enjoyed her time with Father. Father brought gifts and activities with him. During their in-person visits, Father and A-- laughed a lot. Ms. M------ saw videos and photos of the in-person contact and thought Father and A-- appeared to be "bonded," "close," and "having a blast." Father testified that he could tell by A--'s body language that she enjoyed their time together. He noted that two of his most memorable visits with A-- were the second virtual visit when she said, "I love you" for the first time and an in-person visit when A--kissed him on the cheek. Father noted that A-- talks about things she wants to do with him and can open up emotionally. Father described his emotional bond with A-- as "strong." Father emphasized that A-- loves him.
Despite Father's contact with A-- being generally positive, there was significant testimony regarding conflict at three of their virtual visits on April 12, 2022, June 28, 2022, and November 28, 2022. During the first two visits, A-- accused Father of lying. On April 12, 2022, A-- confronted Father about him getting married and not telling her. Father stated that he did not tell A-- about his marriage to Ms. M------- because he thought it would upset her that she could not attend the wedding. A-- perceived Father withholding the information about his marriage as lying to her. A-- repeatedly expressed that she was upset Father "lied" about his relationship. On June 28, 2022, A-- had to leave a birthday party early to attend her session with Father. A-- was upset because she believed Father was not flexible in rescheduling their session. A-- mistakenly believed Father was working part-time and had flexibility in his schedule. A-- thought he was lying about not being able to accommodate her schedule and was not cooperative during their conversation. She again told Father she was upset that he lied. During the November 28, 2022 visit, A-- confronted Father about feeling uncomfortable that he took photos of her during their sessions without her permission. A--saw the photos as part of the pre-trial documentation Mr. Bever sent to Mother. Ms. M------ stated that A-- came across as uncharacteristically "rude and cold" in the session. Father emphasized that A-- should have the ability to be with both parents and not worry about adult information.
Despite these conflicts, since Father's contact with A-- resumed, the vast majority of Father's approximately 200 visits were described as positive. They exhibited the ability to move past some conflicts during sessions. The Court commends Father for taking advantage of his virtual visitation time and his progress in his relationship with A--.
Concerning Mother's relationship with A--, Ms. M------ testified at length about concerns that Mother was exhibiting signs of parental alienation. Ms. M------ testified that she had observed A--'s mood change over time and believed it was directly related to things Mother told A--. She highlighted 32 sessions where A-- made comments that she thought were indicative that Mother was engaging in disparaging remarks about Father. Ms. M------ indicated that concerns about Mother's interaction with A-- were a repeated theme throughout the four years of therapeutic reunification. Father also believed that Mother was feeding A-- inappropriate statements and making negative remarks about him. Ms. M------ acknowledged that she had never heard Mother say anything negative about Father to A--, and Father confirmed that he had never heard A-- explicitly say that Mother made derogatory remarks about him. Ms. S--------S---- testified that she did not believe Mother intentionally tried to alienate Father from A--. She stated that any discomfort A-- feels around Father is not likely due to statements Mother has made to A--. Ms. S--------S---- testified that she checks in with
A-- often, and it is clear Mother is making her best effort to keep adult information away from her. Mother testified that she only spoke to A-- about Father to explain that the visits with him are a way for A-- to get to know Father better. Mother stated that when A-- asked her directly about her and Father's relationship, she tried to speak generally and say that Father made a choice, and they are no longer together. Mother noted that as A-- has grown up, she has pushed for more information, but Mother told her that she is too young to hear about everything.
However, Mother testified that she told A-- not to tell Father something once in 2016. She stated that she was concerned that if A-- told Father about a trip she and A--were taking, Father would show up because he knew the location. Mother emphasized that she never purposely told A-- negative information about Father. She acknowledged that the comment was inappropriate and testified that she had not told A-- not to tell Father anything else. Mother said she was okay with A-- talking to Father about anything she wanted and emphasized that she does not control their discussions.
Mother further testified that she had never intentionally shown A-- a Court document. Concerning discovery for the present matter, Mother stated that she was looking at the photos Mr. Bever provided, and A-- appeared over her shoulder, asking what they were. Mother indicated that she allowed A-- to scroll through the images. The Court notes that this directly conflicts with what A-- told the Court during her child interview. A-- stated that Mother openly showed her the pictures and told her about them.
Ms. S--------S---- stated that the way Mother used to emotionally regulate could have been more evident to A-- than Mother realized. Specifically, because A-- is very empathetic, if Mother appeared worried for A--'s safety due to her own trauma with Father, A-- might have noticed that. Ms. S--------S---- confirmed that she worked with Mother on managing her emotions, not having adult conversations with A--, being aware of how things affect A--, and avoiding putting her own trauma onto her. Mother acknowledged that she is emotional and understands that children can perceive things and read body language. Mother stated that she has worked on managing her emotions and not letting A-- see any fear. Ms. S--------S---- testified that Mother's relationship with A--, specifically concerning communication about Father, has improved. Further, Ms. S--------S---- explained that when A-- told Father that Mother gave her certain information, that was not necessarily true. Ms. S--------S---- testified that she and Mother are A--'s "feeling of safety," and when A-- says that Mother told her something, A--'s goal is to have Father understand that she is aware he might have made bad choices in the past and have him indirectly validate her emotion about not feeling safe alone with him. Ms. S--------S---- emphasized that A-- has been "living a life of conflict" since birth and has her own interpretations of events. She explained that even children inside the womb could have traumatic memories.
Ms. S--------S---- stated that Mother is doing a "remarkable job" parenting A--. She believed that Mother and A--'s relationship was strong. Moreover, Mother has done almost all the caretaking since A-- was born. Father helped Mother in A--'s early years, but per his voluntary agreement, left A--'s life in 2015. Father was absent for four years, and Mother was the sole provider for A--. Even when Father resumed virtual contact with A-- in 2018, he has only been able to see her in person nine times, and Mother remained as A--'s caretaker throughout this period. Accordingly, A-- has resided with Mother throughout all of the changes in Mother and Father's relationship, and Mother has consistently served as A--'s primary caretaker throughout her life. They developed a strong relationship during that time.
The Court acknowledges Mother's consistently constructive and stable relationship with A--, and that testimony established that she is a good parent with the ability to care for A--. However, the Court does not take testimony that Mother has spoken negatively about Father to A-- lightly. It admonishes Mother's conduct in openly showing A- photos sent to her as part of Father's trial packet and raises issues of Mother's credibility with this Court. The Court encourages Mother to continue working on her emotional regulation and to be mindful about speaking age-appropriately to A--. It heeds Ms. M------'s recommendation that Mother engages in a parenting class and individual counseling to assist her in learning appropriate parent-child engagement and coping skills to adjust to Father being in A--'s life. The Court will order that Mother enroll in and complete a parenting class and engage in individual counseling.
Further, the Court also credits Ms. M------'s uncontradicted and thorough testimony concerning statements A-- made during visitation with Father that Ms. M------ believed were indicative of parental alienation. Understanding that Ms. S--------S---- testified that she did not believe Mother was intentionally alienating A--, Ms. M------'s unequivocal testimony as to what she heard during Father and A--'s visits leads the Court to share Ms. M-----'s aforementioned concerns about Ms. S--------S----'s role and her neutrality in facilitating visitation between A-- and Father. Moreover, Ms. S--------S---- and Ms. M------ offered conflicting testimony regarding whether it was a conflict of interest for a therapist to offer individual therapy to a child while simultaneously facilitating therapeutic reunification. The Court will not determine whether that is a conflict in Michigan. However, the disagreement further raises questions about Ms. S--------S----'s impartiality and whether she adopted an advocate role for A-- and Mother's position as opposed to providing objective and detached reunification services.
The Court is glad that A-- has fostered strong relationships with both parents. It nonetheless finds that Mother ought to retain sole legal custody for the time being because, under factors (4) and (6), the evidence established that A-- is well adjusted to her community in Michigan, and Mother has been the primary caretaker meeting A--'s essential physical and emotional needs in compliance with her responsibilities to A-- under 13 Del. C. § 701.
A-- has not resided with Father since she was under two years old. She never visited him in Delaware and has not been to Florida. A-- has never been exposed to Father's home or community. In contrast, A-- has resided in Michigan with Mother since January 2015, when Mother was awarded sole legal custody of A--. Mother also has numerous family members who live in the area.
Ms. S--------S---- stated that A-- was "blossoming" in school this year, and A-- was "happy." Mother emphasized that A-- had made more friendships and been engaged in classes. A-- has progressed in her individual therapy and feels comfortable with Ms. S-------- S----. Accordingly, A-- has adjusted well to her home, school, and community in Michigan. Michigan has been a consistent and positive educational, developmental, and social environment for her. The Court cannot ignore that Father stipulated that Mother would have sole legal custody and that he would have no visitation contact unless Mother agreed. Whatever his motivation, it was his action that led to a four year hiatus in A--'s life.
Turning to the parties' past and present compliance with their rights and responsibilities to A--, Father has not voluntarily offered any financial support to Mother for A--'s care. However, he had spent approximately $20,000 on his nine trips to Michigan and all the virtual visits. Mother has provided financially for the daily care of A-- since 2015 and contributed her financial portion to the virtual visits.
With respect to the caretaking of A--, Father stated that during A--'s early years, he took her to the doctor, fed her, and put her to bed. He acknowledged that he had not spent much time providing care for A-- but stated that he tried to be nurturing during their visits. Father has been consistent with making virtual contact with A--. As stated, Mother has had sole custody of A-- since 2015 and has been her primary care provider throughout her entire life. Mother takes A-- to school and all of her medical appointments. Accordingly, Mother has been the primary provider for A--'s support, care, nurture, welfare, and education throughout her life.
Concerning communication, Father stated that Mother has not been keeping him informed about A--'s schooling, extracurricular activities, or religious events. Father did not receive A--'s school calendar or communicate with her teachers. Mother confirmed that she never sent Father a copy of A--'s medical records. The Court notes that the 2019 Custody Order required that Mother's address, employment, and other identifying information remain confidential, but it did not prevent Mother from providing redacted information to Father. Moreover, the Court again emphasizes that under 13 Del. C. § 727(a), "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."
Both Father and Mother expressed apprehension about communicating directly with one another. The Court will order Mother and Father to utilize OFW and discuss school, medical treatment, special religious events, and other significant developments in A--'s life. Professional accounts can be added to OFW. Accordingly, the parties' attorneys may be given access to Father and Mother's communications on OFW. Father and Mother will share costs of OFW equally. The Court acknowledges that Mother may have residual trauma from her own relationship with Father, and it credits Mother for being willing to do what is best for A--. While a conversation about their communication plan moving forward could benefit Mother and Father's co-parenting relationship, the Court will not order such a discussion. In an effort to fulfill each parent's statutory right and promote the best interests of A--, Mother and Father shall endeavor to communicate about A-- constructively.
Therefore, while Father has developed a meaningful relationship with A--within the constraints of his current contact, because A-- is acclimated only to Mother's community, and Mother has been A--'s most stable relationship and primary provider for her support, nurture, welfare, and education, the Court finds that the evidence under factors (4) and (6) supports its finding that it is in A--'s best interest for Mother to retain sole legal custody for now. This is a very high conflict case and the parents need to understand that their treatment of each other directly affects A--. In short, both need to "do better."
Father's Contact
Second, the Court's graduating contact schedule, whereby Father will exercise one weekend visit in Michigan facilitated by Ms. S--------S---- before moving to monthly unsupervised weekend contact, permitted to occur in Florida during the summer, is supported by the evidence presented under factors (2), (3), and (5) of the best interest analysis.
Mother and Father are opposed in their positions on a contact schedule. Father wanted A-- to spend most of the summer with him in Florida, starting a week or two after school ended and ending a week or two before it began again. Father also wanted A-- to spend spring break in Florida and one-half of winter break there. Father desired the ability to visit A-- in Michigan at any time. Father was flexible regarding an exchange location but preferred to pick up A-- from school. Father wanted to send A-- gifts and cards directly to Mother's home address. He was unequivocal that he would not engage in any more supervised visits or pay for any more therapeutic services. Father testified that if the Court did not grant his request, he was "done." Father's stated intransigence that he was done unless he got his way did not impress the Court that he had A--'s best interests at heart. While the Court credits him for following the order and persisting in regular but limited visits, his willingness to give it all up unless he got his way was not impressive and not in A--'a best interests.
Mother testified that she was comfortable with increasing visitation between Father and A--. However, she did not want contact to be unsupervised. Mother previously agreed to a gradual transition plan suggested by Ms. S--------S----, whereby Father and A-- could exercise more contact over time in a safe, positive, and therapeutic environment. Father did not agree to the plan due to the cost, and it never began. However, Mother testified that she still supports a gradual transition plan to increase contact between A-- and Father. Mother wanted Ms. S--------S to work with Father to create a plan A-- is comfortable with. Mother testified that she would prefer Father send any gifts to a post office box for which she could set up notifications.
As is delineated above, A-- will spend one weekend with Father in Michigan, facilitated by Ms. S--------S----. Thereafter, Father shall have monthly unsupervised weekend visits with A-- in Michigan. In the summer, Father may exercise that contact with A-- in Florida.
Factor (2) of the best interest analysis supports the Court's contact schedule. The Court conducted a child interview with A--. During the interview, A-- expressed that her visits with Father were "okay." She noted that she "[does] not see [Father] often" and "he is not really in [her] life." Therefore, A-- stated that she tells people that she does not have a dad.
A-- expressed that she did not want to see Father anymore. She reported that Father lied to her during their visits and cited him not telling her about his marriage. Moreover, A-- revealed concerns about Father coming and taking her away from Mother and Ms. S--------S----. A-- indicated that she would not like it if Father came to Michigan to see her more often. A-- stated that her Mother tells her to do what she feels when it comes to seeing Father but guessed that Mother might not want her to have visits with Father.
The Court is hesitant to place significant weight on A--'s interview, given the testimony regarding concerns about Mother's communication with A--. Nonetheless, while it does not rely solely on her opinion in creating the contact schedule, the Court acknowledges the importance of ensuring A-- feels safe moving forward in her contact with Father. She expressed fear of Father taking her away and was focused on his omission of information about his personal life. Nonetheless, both Ms. M------ and Ms. S--------S---- testified that A-- and Father's visits were generally very positive. Therefore, the Court is not worried about his continued contact with A-- posing a safety risk. Still, the gradual increase in a familiar location is in A--'s best interest to help her foster trust and bolster her relationship with Father in a constructive fashion. Accordingly, factor (2) supports contact with Father according to the Court's schedule.
The evidence under factor (3) regarding A--'s relationships also supports contact with Father according to the Court's schedule because both Mother and Father have positive parenting relationships with A--, and A--'s most consistent interaction has been with Mother. Testimony supported that Mother and Father are good parents, although Father has had more limited contact with A-- due to his decision to relinquish custody in 2015. Mother has a strong bond with A--. Similarly, since Father's contact with A-- resumed virtually, and they have had some in-person contact, their relationship is generally developing well. A--had expressed distrust of Father during a few of their visits. She accused Father of lying and not accommodating or understanding her needs. Other than these conflicts and Father's lack of in-person parenting time due to the Court's order, which the Court does not minimize, the evidence presented demonstrated that he has the potential to provide the necessary care for A--.
A-- told Ms. S--------S that she was not comfortable being with Father alone, and Ms. S--------S---- testified that the goal is that the more time Father and A-- successfully spend together in person, the more comfortable A-- will feel. Ms. S--------S---- testified that the best way to move forward with additional visits with Father, in a way that would make A-- feel comfortable and be positive for their relationship, would be to invoke a gradual plan. She emphasized that it will be important for A-- that the transition is slow and A--'s time with Mother remains consistent so that the increase does not backfire. Ms. S--------S---- acknowledged that it is expensive for Father to come to Michigan, but she thought Father utilizing more visits there would be helpful. Ms. S--------S---- recommended that visits be supervised for at least six months. Mother testified that A-- feels comfortable with Ms. S----- ---S and would be "devastated" if Ms. Schafer-Space was abruptly removed. Mother indicated that she was willing to do whatever Ms. S--------S---- thought was appropriate concerning increasing time with Father. The Court credits Ms. S--------S----'s testimony that graduating contact will help foster a positive relationship between Father and A--. However, the Court must acknowledge that Father has already engaged in supervised virtual contact for four years, and it also credits Ms. M------'s testimony that therapeutic reunification sessions should have been completed in one year. There have been no incidents that compromised A--'s well-being or safety when she was in Father's care during in-person or virtual visits. Father emphasized that he never did anything to harm A-- since her birth. Therefore, the Court's schedule for increasing contact between A-- and Father will progress faster than Ms. S--------S----'s recommendation. The Court's schedule will allow Father to build on his relationship with A- and demonstrate caretaking ability.
Father's one facilitated weekend contact, monthly unsupervised weekend visits, and summer contact in Florida allows him and A-- to foster their relationship without instantaneously disrupting A--'s routine and residency with Mother, who has been the parent with whom she has had the most stable relationship. The arrangement also avoids immediately introducing a foreign schedule in new places, like Florida, with more transitions for A--, which the Court believes will assist any potential future transitions. Therefore, because Father and Mother both have positive relationships with A--, A--'s stability in her relationship with Mother is important, and Father should take time to foster a relationship slowly and positively with A--, factor (3) supports the Court's schedule.
The evidence under factor (5) regarding the mental and physical health of all individuals involved supports contact with Father according to the Court's schedule because, while all parties are in good physical health, A--'s mental health will be best supported by graduating contact. Father and Mother are both in good mental health. Father no longer sees a therapist, since excused by this Court, and does not take any mental health medications. Mother is not currently in counseling. She takes prescription sleeping medication as needed.
A-- sees Ms. S--------S---- for individual therapy to help her process visits with Father, build trust with Father, realize her own feelings without considering the experiences of Mother, and learn how to manage her emotions while navigating being pulled between two parents. A-- had seen her for 23 sessions as of the second day of the present hearing. Father testified that A-- does not need counseling because she "breaks through" on her own. Mother thought it was best to defer to Ms. S--------S----'s recommendation. Ms. M------ and Ms. S--------S---- both testified that it would be advantageous for A-- to continue engaging in individual therapy. Ms. S--------S---- testified that A-- is doing very well in therapy. However, she highlighted that A-- has a chronic and significant fear of being kidnapped by Father. Ms. S--------S---- explained that fear of kidnapping is a common theme in children with separated parents due to anxiety about being taken from a consistently safe environment. A-- voiced that she was nervous Father would take her because Father "sometimes does what he wants," and A-- worried that if Father wanted to take her, he would. Ms. S--------S---- highlighted that the lack of bonding between A-- and Father from ages two to six helped create A--'s fear that Father will keep her from Mother. Ms. S--------S---- explained that her fear of Father taking her from a safe space, such as her home or the therapy office, is how A--'s conflicts with Father are acted out in her psyche. Ms. S--------S---- confirmed that Father never threatened to take A-- and reiterated that A--'s fear stems from his absence and her concern about being taken from a place she considers safe. Ms. S--------S---- stated that talking to Father about the fear and Father validating A--'s emotions would be helpful.
Further, A-- takes Lexapro to treat anxiety. A--'s pediatrician prescribed the medication. Ms. M------ and Ms. S--------S---- offered conflicting testimony regarding whether it was common for children to take Lexapro. Father expressed that he believed Mother was "drugging" A-- to "groom her" and remove him from her life. Father did not believe there was any legitimate medical reason why Mother might have approved A-- taking Lexapro. Given the disparity in testimony from Ms. M------ and Ms. S--------S----, the Court will order an independent medical examination of A-- to determine whether she should be prescribed Lexapro.
The Court places weight on the recommendation of both therapists that A--continues with individual counseling and orders that she do so. The Court also acknowledges the evidence that one of the main focuses of A--'s treatment is her fear that Father will kidnap her. A--'s continued therapy during graduating contact will help her process the increased contact schedule. Increasing contact in Michigan, where she feels safe, will help A-- establish trust with Father and build the foundation necessary for them to progress contact away from A--'s home without harming A-- psychologically. Consequently, factor (5) supports the Court's contact schedule.
Therefore, the Court's graduating contact schedule is supported by the evidence discussed under factors (2), (3), and (5) of the best interest analysis.
Unsupervised Contact
Finally, the Court's determination that Father's contact with A-- shall become unsupervised is supported by factors (3), (4), and (5) under the best interest analysis.
Father would like all his future contact with A-- to be unsupervised. Father emphasized that he would not pay to participate in any more supervised visitation. In contrast, Mother wants Father's contact to remain supervised, at least for now. Mother indicated that her priority was ensuring increased contact between A-- and Father was done in a way A-- was comfortable with and that she wanted to participate.
The evidence regarding A--'s relationships under factor (3) supports the transition to unsupervised contact with Father because he and A-- have a growing relationship, and since contact resumed, the majority of visits have gone well. As noted, Father has not had much opportunity to serve as A--'s primary caretaker during their visits due to them being primarily virtual. However, they have formed a bond through their consistent contact over the past four years, and Father has expressed a desire to be able to take A-- to do fun things and other typical day-to-day parent-child activities on his own. Ms. M------ testified that for reunification between Father and A--, there needs to be an updated Court order with a plan that includes unsupervised visits. Ms. S--------S---- noted that the more time Father and A-- successfully spend together in person and engaging in typical activities, A-- will feel more comfortable alone with Father. Aside from the conflicts Father and A-- have had regarding A--'s belief that Father was lying or being inflexible, there was no testimony that anything had ever happened during a supervised visit that made Ms. M------, Ms. S--------S----, or Mother worry for A--'s safety. A gradual shift permitting Ms. S--------S---- to facilitate Father and A--'s first in-person visit in the community will help A-- adjust to being with Father alone. Therefore, given that A-- has a growing relationship with Father and there have been no incidents causing concern regarding his ability to care for her safely, factor (3) supports Father's unsupervised contact with A-- following the initial transitional weekend.
Factors (4) and (5) also support unsupervised time between Father and A--. Testimony indicated that Father was in good mental health. A-- has been doing well in individual therapy with Ms. S--------S----, and both therapists testified that it would be beneficial for A-- to continue engaging in one-on-one counseling sessions. As noted, A-- is working through a fear of Father kidnapping her. Moreover, A-- is well-adjusted and feels safe in her community and home in Michigan. Accordingly, the Court places weight on the importance of consistency and stability for A-- as she and Father increase their contact and spend visits alone. A facilitated transitional visit before moving to unsupervised contact, visits taking place in Michigan near A--'s home, and A--'s continued therapy to process her time spent with Father will help prevent any abrupt disturbance in A--'s life and avoid contact with Father that would ultimately backfire and harm the progress of their relationship or A--'s mental health. Therefore, factor (5) supports the transition to unsupervised contact.
Thus, the testimony and evidence provided under factors (3), (4), and (5) support the Court's decision that Father's contact with A-- shall be unsupervised after the first weekend visit.
Therefore, the Court's determinations regarding legal custody, the contact schedule, and supervision are supported by the testimony and evidence presented under the best interest factors for the reasons set forth in this decision.
Impact of Domestic Violence on this Order
The Court now turns to the evidence of domestic violence presented under factor (7) and provides an analysis under chapter 7A of Title 13 to the Delaware Code. Under Chapter 7A of Title 13 to the Delaware Code, the Court must fashion an order that sets forth a schedule, location, and conditions for contact that "best protects the child and the victim of domestic violence." Factor (7) is a significant issue in the Court's analysis.
This Court previously found that Father is a perpetrator of domestic violence as defined in 13 Del. C. § 703A due to his conviction for Assault in the Third Degree against Ms. T-----. That determination triggers the presumption outlined in 13 Del. C. § 705A(a) and (b) against Father having joint legal custody or primary residency of A-- unless he rebuts the presumption. In its 2019 Custody Order, the Court acknowledged that no further acts of domestic violence had occurred after Father's conviction, and Father successfully completed a domestic violence program, thus satisfying the statutory requirements to rebut the presumption. However, the Court found that granting Father joint legal custody or primary residency of A-- was not in A--'s best interest, especially because Father had only recently begun having contact with her via Tele-Psych at that time.
At the present hearing, Ms. M------- and Father both testified that there was no domestic violence in their relationship. Given that there have still been no further acts of domestic violence that have occurred since Father's conviction, and Father successfully completed the referenced domestic violence program, the statutory requirements to rebut the presumption are satisfied.
Still, § 706A (a) states that "[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."
Throughout the case history, Mother has continued to express concern that Father may become aware of her address due to worry about his past behavior and his level of accountability. Concerning his Assault in the Third Degree conviction, Father stated that regardless of what anyone thinks, he "stand[s] back to the fact that [he] defended himself." Father stated that he did not care "what people say about [] the assault" because he has "moved on." Thus, the Court notes some concern that while Father says he takes responsibility for his action and acknowledges that he was the only individual charged due to the altercation, he continues to assert that he was defending himself. While the Court has some reservation about Father's comments, it finds that he has rebutted the presumption.
Conclusion
For the reasons set forth above, the Court finds it is in A--'s best interest for Mother to exercise SOLE LEGAL CUSTODY with primary placement with Mother. A--'s contact with Father has been set forth above and later in this order. Factors (2), (3), (4), (5), (6), (7), and (8) support this determination related to custody and residency, and factor (1) is neutral.
Beyond the best interest factors under 13 Del. C. § 722, § 729(c)(2), which governs modifications filed more than two years after the Court's most recent order, also requires the Court to consider: (a)whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification; and (b) the compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered.
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.
13 Del. C. § 728(b): The Court shall encourage all parents and other persons to foster the exercise of a parent's joint or sole custodial authority and the maintenance of frequent and meaningful contact, in person, by mail and by telephone, between parents and children unless an order has been entered pursuant to subsection (a) of this section denying or restricting such contact. If the Court finds, after a hearing, that a parent has violated, interfered with, impaired or impeded the rights of a parent or a child with respect to the exercise of joint or sole custodial authority, residence, visitation or other contact with the child, the Court shall order such person to pay the costs and reasonable counsel fees of the parent applying for relief under this section. The Court shall also impose 1 or more [] remedies or sanctions [ . . .]
Turning first to whether any harm is likely to be caused to A-- by modification of the 2019 Custody Order, the Court finds that contact between Father and A-- beginning with a weekend visit in Michigan facilitated by Ms. S--------S---- followed by unsupervised monthly weekend contact in Michigan until the summer when the monthly contact may occur in Florida would not endanger A--'s physical health or emotional development. Ms. S--------S---- and Ms. M------ both testified to Father and A--'s visits being generally positive, and Mother has not provided any evidence that the visits have been harmful to A--. The Court's schedule takes A--'s mental health into consideration and acknowledges her fear of being kidnapped by Father and removed from her feelings of safety with Mother. Moreover, while Father has now had four years of visitation with A--, all but nine visits were virtual contact. The gradual increase in contact, which provides for one facilitated visit and all visits in Michigan for a few months, is meant to help A-- and Father foster a positive relationship in a safe way.
Turning next to the compliance of Father and Mother with prior orders of the Court and their duties and responsibilities under § 727, as noted, Mother has not kept Father informed about A--'s schooling. Father did not receive A--'s school calendar or communicate with her teachers. Mother also never sent Father a copy of A--'s medical records. The 2019 Custody Order required that Mother's address, employment, and other identifying information remain confidential, but it did not prevent Mother from providing redacted information to Father. Still, the Court acknowledges that Mother and Father's ability to communicate has been strained, and both testified that they preferred not to speak with one another. Such behavior does not support an award of joint legal custody. Moreover, per the Court's 2019 Custody Oder, the therapists involved in this matter have been coordinating A--'s arrival to visits and departure from the visits to ensure that no contact occurred between the parties. The Court has repeatedly reiterated Father's right to certain information in this decision, and it now restates that Mother shall provide Father with information regarding A--'s school, medical care, and extracurricular activities on a reasonable and regular basis.
The Court has added concerns, as stated within this disposition, that Mother has not supported a relationship between A-- and Father. Testifying that she wants A-- to have a relationship with Father, is belied by her statements to A-- and showing her documents not intended for A--.
Therefore, both factors (a) and (b) under § 729(c)(2) support this Court's determination regarding legal custody, the contact schedule, and supervision. A-- will not likely be harmed by this modification of the 2019 Custody Order, and the Court has explicitly delineated that pursuant to § 727(a), Father is entitled to receive all material information concerning A--'s progress in school, medical treatment, significant developments in her life, and school activities and conferences, special religious events and other activities in which parents may wish to participate.
Finally, in order to accommodate the best interests of the child, in lieu of a final custody order, the Court will enter a temporary order under 13 Del. C. § 727(b). The Court finds a temporary order to be in A--'s best interest for a few principal reasons. Namely, a temporary order will give Mother and Father the opportunity to demonstrate to the Court their ability and willingness to cooperate with the custodial arrangement ordered. As stated, Mother shall enroll in a parenting class and counseling to address the testimony regarding her behavior toward A-- being indicative of parental alienation. Moreover, Father was adamant that he would not cooperate with supervised or therapeutic visits moving forward and expressed that he did not want to spend any more financial resources on visits to Michigan. While the Court's schedule provided Father with unsupervised contact after one facilitated visit, they are to take place primarily in Michigan until the summer for the reasons stated above. The temporary order will allow Father to demonstrate a willingness to cooperate with the order and exercise more unsupervised contact with A--.
The Court wants to review the parties' parental relationships and how A--adjusts to this unsupervised schedule before issuing its final custody order. The Court will schedule a Review Hearing in July 2023 to determine how the visitation schedule will be modified and assess the parties' compliance with this Order. Following a timely review of this temporary order by the Court either at the end of this temporary period or sooner upon the application of any party to the proceeding, the Court shall have the authority to continue or modify the temporary order.
ORDER
IT IS HEREBY ORDERED this 1st day of March, 2023 that:
1. Mother shall have SOLE LEGAL CUSTODY of A--.
2. Mother is granted PRIMARY RESIDENCY of A--.
3. A-- shall have contact with Father on the following basis. Effective upon issuance of this order, Father shall exercise one weekend of visitation in Michigan facilitated by Ms. S--------S----. Mother and Father shall share the costs for that contact. Father shall be permitted to exercise contact with A-- out in the community. Father may see A-- on each day of his visit from 10:00am to 7:00pm. There shall be no overnight contact during this first visit. Ms. S--------S---- need not be present for the entire visit. Her role is to ensure A-- is prepared for the contact and comfortable as it begins.
Thereafter, Father shall be permitted to exercise unsupervised overnight weekend visitation in Michigan once a month. All weekend contact may begin Friday after A-- is done with school and will end by Sunday at 6:00pm.
When A-- is off from school for spring break, Father shall exercise his monthly visitation at that time. However, the contact time shall be extended and is permitted to take place for half of the days A-- has off from school. Such contact will end at 6:00pm on the final day.
4. The parties shall use A--'s therapist's office as the exchange point, but they may mutually agree to modify the location. Parties may use another adult well-known to A-- for picking up or dropping off when necessary. Any person transporting A-- shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. The driver must observe all child restraint and seat belt laws.
5. In the summer, Father may exercise his monthly unsupervised contact with A-- in Florida from Wednesday afternoon to Monday afternoon. Father shall be responsible for A--'s transportation. Unless Father or another mutually agreed upon adult wishes to bare the expense of flying with the child, an unaccompanied minor ticket may be purchased at Father's expense. Father shall have one visit in June and one in July before the next hearing in this matter is conducted. Counsel shall provide a stipulation to the Court noting the dates of those visits and specifying the particulars of travel arrangements within ten (10) days of this Order. 6. With at least forty-eight (48) hours advance notice to Mother, Father may attend A--'s school or extracurricular events in Michigan. The Court expects that Mother shall provide Father with A--'s school schedule and make him aware of all extracurricular activities via OFW.
7. Mother shall establish a post office box where Father can send A-- gifts and letters within thirty (30) days of this order. Father shall not send anything directly to Mother's residence. Mother shall retrieve items in a timely manner and deliver them to A--.
8. Mother shall enroll in and complete a parenting class and engage in individual counseling to assist her in learning appropriate parent-child engagement and adjusting to Father being in A--'s life. Counseling shall continue until Mother is discharged by her therapist. The Court expects an update at the next hearing.
9. The Court will order that Father and Mother communicate through OFW about A--. Both parents shall be entitled to reasonable communication with A-- while she is in the other parent's care. Neither parent shall interfere with the communication between the children and the other parent. Long-distance calls from an out-of-town parent shall be at that parent's expense. Father is entitled to regular electronic communication with A--, by a means to be determined by the parties.
10. A-- shall continue to engage in individual therapy to help her process being torn between two parents and her increased contact with Father. 11. A-- shall undergo a psychological evaluation from an independent medical practitioner to determine whether she should be prescribed Lexapro. 12. If A-- becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the child becomes ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.
13. A three (3) hour Second Review Hearing shall be held in person on July 21, 2023 beginning at 9:30am. Parties and counsel shall report to Courtroom 2, 3rd Floor, in the Sussex County Family Court location. THIS WILL BE YOUR ONLY NOTICE OF THE HEARING.
14. This is a Temporary Order pursuant to 13 Del. C. § 727(b). The Court expects strict compliance by the parties and counsel with this Order. IT IS SO ORDERED.
Very truly yours,
MICHAEL K. NEWELL, CHIEF JUDGE