Opinion
File No.: CN18-02900 Petition No.: 19-22746
03-04-2020
Re: B. R. v. T. C.
B. R. T. C.
Confidential Address
LETTER DECISION AND ORDER
Petition Type: Custody Dear Parties:
The Court held a hearing on March 2, 2020, regarding the above-referenced Petition. The hearing was regarding P. R. ("P. "), born , 2014. B. R. ("Father") was present and self-represented. T. C. ("Mother") was also present and self-represented. The Court notes that Mother was fifty (50) minutes late for the hearing and almost missed it completely. The Court notes that throughout the hearing the parties had difficulty following instructions and continued to interrupt one another and the Court. Both parties and Paternal Grandmother testified. Neither party requested that a child interview be conducted in this matter and P. is far too young to be interviewed.
PROCEDURAL HISTORY
Mother filed a Petition for Child Support on April 23, 2018, and a Permanent Medical Support Order was put in place on July 2, 2018. Father filed the pending Petition for Custody on August 13, 2019. On September 11, 2019, Mother filed for a Petition for a Protection from Abuse ("PFA") Order. In her Petition, Mother listed many historical concerns but she does not state a specific event in September 2019 that gave rise to her Petition. The parties entered into a Consent PFA Order that will expire on October 23, 2020, and the Consent PFA Order did not contain a custody provision.
LEGAL STANDARD
Pursuant to 13 Del. C. § 728, the Court shall determine legal custody, residency, and visitation consistent with the child's best interests under 13 Del. C. § 722. The Court balances the 13 Del. C. § 722 best interest factors "in accordance with the factual circumstances presented to the Family Court in each case." In some situations, the weight of one factor will counterbalance the combined weight of the other factors.
Pursuant to 13 Del. C. § 722:
a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court
1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
2) The wishes of the child as to his or her custodian(s) and residential arrangements;
3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
4) The child's adjustment to his or her home, school and community;
5) The mental and physical health of all individuals involved;
6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
Ross v. Ross, 922 A.2d 1237 (Table) 3 (Del. 2010).
Id at 3 (citing Fisher v. Fisher, 691, 623 (Del. 1997)).
DISCUSSION
The statutory factors are discussed below. In the interest of judicial economy, the Court will not recite all the testimony from the hearing that can be more fully obtained from the record.
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father requested that he be awarded joint legal custody and shared residency of P. . Father stated that he was seeking a "50/50" arrangement. Mother requested that she be awarded sole legal custody and primary residency of P. . Mother did not have any suggestions about Father's visitation schedule, but Mother seemed to believe that it would be in P. 's best interest for Father to have very limited or no visitation with P. .
The Court finds this factor to be neutral as the parties have differing wishes as to P. 's legal custody and residency arrangement.
(2) The wishes of the children as to his or her custodian(s) and residential arrangements;
P. is too young to be interviewed or to even understand this type of decision and therefore this factor shall carry no weight.
(3) The interaction and interrelationship of the children with their parents , grandparents , siblings , persons cohabiting in the relationship of husband and wife with a parent of the child , and any other residents of the household or persons who may significantly affect the child's best interests.
Father testified that he has not seen P. since June of 2019, and that his visit was for only about ten minutes after Paternal Grandparents returned from a trip to the Outer Banks with P. Father stated that at his last visit, P. seemed very excited to see him and that she seemed to miss him. Father added that P. has a great relationship with Paternal Grandparents. Father currently resides with Paternal Grandparents and he wants them to be able to see P. . Father believes that P. had a great time on the trip to the Outer Banks. Father also stated, that prior to Mother having primary residency, he had a close relationship to P. and took care of all her needs. He stated that Mother was not around much during that time and that P. resided primarily with him at his parents' home. Father could not describe with any specificity to the Court when he believed primary residency changed between himself and Mother but said that it was when she could walk. Paternal Grandmother testified that P. loves Father and that Father is very active when he was able to visit with P. . Paternal Grandmother stated that Father would let P. lead playtime and that he would get down to her level while playing and that their relationship was wonderful. Father testified that Mother hates him and keeps P. from him due to this hatred of him.
Mother testified that Father has not seen P. since February of 2019. Mother stated that she was unaware that Father saw P. in June of 2019 after Paternal Grandparents returned from the Outer Banks with P. . Mother explained that Paternal Grandparents have been seeing P. and that P. does not see Father because she is scared of him. Mother stated that she has been the primary caregiver of P. since her birth and that she is very close to P. . Mother testified that she lived in Florida with P. for two years. Paternal Grandmother agreed that P. and Mother moved to Florida but she thought that it was for about 5 months. Father made no mention of this move to Florida in his timeline.
The Court finds that this factor slightly favors Mother's request for primary residency since Father agrees that he has not seen P. since June of 2019. Mother provided further concerns about Father's visitation with P. and those concerns are addressed under factor (7). Based on this factor, consistent visitation would be appropriate as Mother and Father each gave their perspectives on their respective relationship with P. . Neither party was more credible than the other.
(4) The child's adjustment to his or her home , school and community.
Father testified that after P. was born, Mother and P. resided with Father and Paternal Grandparents until P. was three (3) months old. Father explained that Mother left P. at his home with Paternal Grandparents until P. was approximately twelve (12) months old. Father was then unable to state what events occurred that gave rise to Mother having primary residency by default without a Court Order. Father's explanation of the timeline was confusing and had gaps. The court notes that P. is currently five (5) years old.
Mother testified that when she was pregnant with P. , she lived with Father and Paternal Grandparents as she was on probation at that address. Mother stated that after P. was born, she moved in with Maternal Grandmother and remained there until P. was a year or two old. Mother explained that she was the primary caregiver of P. and that Father did not aide in P. 's care. Mother then stated that she moved to Florida for two years and returned to Delaware when P. was about four years old. Mother said that Father has had little visitation since P. returned to Delaware. Mother also said that P. has attended two pre-school programs since returning to Delaware. P. was first enrolled at K. for pre-k and she is currently enrolled at L. for pre-k. Mother lives very close to the school and she testified that P. is doing very well in school. Father was not aware of where P. went to school and has not been to the school.
Paternal Grandmother stated that Mother resided in her home until P. was born, once P. was born Mother moved into Maternal Grandmother's home. However, she later stated in response to Father's questioning that she was with Father's family more than Mother for a period of time. Paternal Grandmother indicated that P. primarily resided with Mother, but that herself and Paternal Grandfather often babysat over the first twelve (12) months of P. 's life. Paternal Grandmother then believes that Mother moved to Florida for an unspecified amount of time. Paternal Grandmother stated that Mother's move was the main reason Father and paternal relatives did not see P. for a significant amount of time. Paternal Grandmother is upset that she has been unable to see P. as often as she would like. Paternal Grandmother believes that Mother currently denies Father visitation as they do not like each other. Paternal Grandmother confirmed that there was an argument between Father and Paternal Uncle over a football game that occurred in February 2019 while P. was in Father's care which became quite heated. Paternal Grandmother's recollection was that it was verbal and P. was in another room and was not impacted.
The Court finds that this factor slightly favors Mother's request for primary residency since Paternal Grandmother and Mother stated that P. has not spent much time in Father's home since she was an infant. P. is more adjusted to Mother's home and would need time to readjust to Father's home. Mother and Father gave completely different testimony regarding P. 's first year of birth. Paternal Grandmother was a more credible witness, which helped explain why the parents had such different recollections. Also, Mother lives very close to her school.
(5) The mental and physical health of all individuals involved.
Mother testified that Father has significant anger problems and drinks to excess. According to Mother he just recently got thrown out of a bar for starting a fight with an off-duty police officer. Father stated that he does not have any mental health diagnosis. However, Father stated that he feels as though he has anxiety and he does not see a mental health professional. Father explained that he has taken at least one anger management class, although the Court was not entirely clear if he took more than one as when asked he said "The last time? He also stated that he did it voluntarily, yet Father has numerous convictions for crimes which involve anger and Father agreed that he can have a temper. Father denied any substance abuse issues or treatment. However, Father added that he was arrested for Driving Under the Influence and he was required to take the first offenders program. Father also stated that P. is in good health to his knowledge. Father requested that Mother have a mental health evaluation as she had an inpatient stay at Rockford when she was teenager, which Father claims was for a suicide attempt.
Mother testified that she has no mental health diagnosis and that her two-night stay at Rockford was when she was fifteen years old, about fourteen years ago. Mother explained that she believed she went to Rockford for throwing an apple at a neighbor and that the police did not want to take her to Baylor. Father stated that he thought Mother went to Rockford for overdosing on various pills in an attempt to kill herself. Neither party's testimony on this issue is very credible. However, this incident occurred many years ago, before P. was born, and there was no testimony to prove by a preponderance that there are ongoing mental health issues.
The Court finds that this factor favors Mother. Father's record and the testimony of all three witnesses reinforces her concerns about Father's temper. According to Father he has been to anger management about seven years ago and this has not seemed to resolve the problems. Therefore, the Court shall not require either party to complete a mental health evaluation as it would not further the outcome of the case.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this section .
Pursuant to Del. Code Ann. tit. 13, § 701: The Father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education.
Father testified that he is currently employed at J. , Monday through Friday from 7 a.m. until 3:30 p.m. and G. five or six nights a week. Father stated that he is unaware of a Child Support Order, however the Court notes that a Medical Child Support Order was issued on July 2, 2018.
Mother testified that she is employed and that she is a student. Mother stated that she was too fearful to seek child support payments from Father. Mother added that Father has never voluntarily provided financial support, but Paternal Grandfather gave her $1000 to help pay for P. 's pre-school. Mother also stated that her driver's license is currently suspended due to pending traffic violations. Mother pays for school and everything else. Mother also has done the majority of the day to day care. Father testified that he did all the day to day care for the first year of P. 's life, before Mother stopped him from seeing her. The Court made findings above that P. spent significant time in both parents' homes during the first year.
The Court finds this factor somewhat favors Mother as she has provided for the majority of P. 's needs since birth. Father does not contribute to her support. However, Mother does not seem to promote a relationship between Father and P. .
(7) Evidence of Domestic Violence as provided for in Chapter 7A of this title .
Mother testified that Father has a history of violent outbursts that are alcohol induced. Mother generally stated that Father was aggressive and that domestic violence was of great concern prior to P. 's birth. Mother explained that when P. was three weeks old, Father head-butted her so hard that her nose was broken. Mother indicated that she did not call the police or seek a PFA at that time, but that she had limited contact with Father after that incident. Mother added that she later moved to Florida to get away from her past. Mother explained that Father and Paternal Grandparents visited with P. since her return from Florida until February 2019. Mother believes that in February 2019, Father had an altercation with Paternal Uncle over a football game while P. was in his care. Paternal Grandmother acknowledged that this event occurred, but stated that the altercation was only verbal and that P. was in another room. Mother's other specific incident of concern was when Father left P. home alone in order to physically fight his neighbor. Paternal Grandmother also acknowledged that this incident occurred. Paternal Grandmother explained that the neighbor drove by Father and P. in a dangerous manner and Father wanted to ensure that the neighbor would not be reckless again in the future.
Father stated that Mother's description of events were either not true or blown out of proportion. Father was adamant that he did not break Mother's nose and that there were not concerning moments of domestic violence. The Court notes that there has never been a finding of abuse against Father with Mother as the victim as the current PFA Order is by Consent. Also, Mother did not press charges regarding any of the prior incidents.
Paternal Grandmother stated that she was aware of domestic violence between the parties. Paternal Grandmother stated that she once saw the parties arguing and that Mother hit Father in the head, Father then defended himself by hitting Mother. Paternal Grandmother described another incident where Mother was chasing Father at a Wawa as if she intended to hit him. On a different occasion, Paternal Grandmother saw Father pull Mother's hair. Paternal Grandmother additionally stated that she was aware of Father's past alcohol problem, but that it was no longer a concern. Paternal Grandmother also believes that Father has never sent threatening text messages to Mother or any of her friends. Paternal Grandmother also stated that Father loves P. and would never harm her. Paternal Grandmother has never seen Father act in a harmful way toward P. .
A review of Father's Delaware Criminal Justice Information System (DELJIS) records shows that there is a PFA against Father where his former girlfriend, N. M. A. , is the victim. According to the Order, which the Court takes judicial notice of, the order was entered by default against Father with a finding that he committed an act or acts of abuse against Ms. A.
The Court finds that this factor weighs in favor of Father having supervised contact with P. and Mother having temporary sole legal custody. The Court finds that Father's omissions, his criminal record and the testimony regarding the fights with Mother, his brother and neighbor support these concerns. The Court is concerned that Father does not believe it is an issue to have verbal altercations in front of P. . Additionally, the Consent PFA prohibits the parties from communicating with one another and making joint parenting decisions until October of 2020.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Father has several pending charges for offensive touching, assault, and resisting arrest. The pending charges involve Father's former girlfriend the timing of these charges matches the time that Father resumed living in his parents' home. There is currently a no contact order against Father regarding his former girlfriend. Father stated that he was the victim but there are charges pending against him. Father has nine (9) prior convictions for disorderly conduct and has one charge for disorderly conduct pending. He has a pending charge for Assault in the Second Degree, involving an officer, presumably due to the fight with the off-duty officer referenced by Mother. Father has one violent felony conviction from 2012 and one non-violent felony conviction from 2011. Father also has fifteen misdemeanor convictions within the last ten years, including Assault Third Degree, resisting arrest and offensive touching.
Mother has several pending charges for traffic related offenses. Mother has one violent felony conviction from 2011 and two non-violent felony convictions from 2011. Mother also has eleven misdemeanor convictions within the last ten years. Mother's most recent and concerning misdemeanor conviction is from 2018 for Reckless Endangerment in the Second Degree. Mother stated that the incident giving rise to the charge was based on a stranger attacking her and the need for self-defense. Mother also has no driver's license. Both parties had outstanding capiases at the time of the hearing.
This factor favors Father having supervised visitation with P. as his record indicates an uncontrolled anger issue and possibly an alcohol abuse problem. However, both parties have significant criminal histories and Mother's explanation for the Reckless Endangerment in the Second Degree is not credible and the Court cannot in this proceeding overturn the conviction.
CONCLUSION
After considering all the factors listed above, the Court finds that it is in the best interest of P. for Mother to have primary residency. The Court also finds that Mother shall be awarded sole legal custody. Currently, the parties cannot have contact and therefore they would not be able to make decisions together. However, Mother is able to send information to Father as there is no restraining order against her. Furthermore, the evidence demonstrates that Father has a significant anger issue and need some form of treatment. All the testimony presented showed that Father has not visited with P. since at least June of 2019 but he did not file anything until 2019. While Mother may also be at fault for denying visitation, it does not change the fact that P. is young and will need to rebuild his attachment to Father and paternal relatives. Additionally, P. has had little opportunity recently to interact with paternal family in Father's home and could not be adjusted. Further, the Court has major concerns about the alleged mutual domestic violence that occurred between Mother and Father and their hostility toward one another which was displayed during the hearing. While there has been no recent domestic incident between Mother and Father, Father's anger management issues still appear to be unabated based on his criminal history. The Court advises both parties that P. is only five (5) years old and that there will be many more years of parenting left. Therefore, the Court finds that co-parenting counseling should be attempted once the Consent PFA expires. In consideration of the above factors, the Court finds that it is appropriate to enter the following Order:
ORDER
1. Mother shall have sole legal custody of P. . Mother shall keep Father apprised of P. 's education, activities, health and any other significant events that impact her life.
2. Mother shall have primary residency of P. .
3. Father shall have visitation as follows:
a. Beginning as soon as possible following completion of orientation at the Family Visitation Center, Father shall have visitation every Sunday from 12 p.m. until 3 p.m.
b. After four (4) successful visits as stated in subpart (a), Father shall have visitation every Sunday from 10 a.m. until 3 p.m.
c. After four (4) successful visits as stated in subpart (b), Father shall have overnight visitation every Saturday from 10 a.m. until Sunday at 3 p.m.
d. After four (4) successful visits as stated in subpart (c), Father shall have overnight visitation every other weekend from Friday at 6 p.m. through Sunday at 3 p.m.
e. Paternal Grandmother and/or Grandfather shall supervise Father's visitation with P. . This means that the supervisor should be in the home with Father and P. . Additionally the supervisor should be present during any outing from the home.
f. If Father is unavailable, Paternal Grandmother and/or Grandfather may pick-up P. for visitation provided they take the orientation and provided this arrangement is agreeable to the Visitation Center.
g. All exchanges shall occur at any location of the Family Visitation Center. The Newark location is the closest but if the Newark location is unable to accommodate due to volume, the parties can use the North Wilmington or Middletown location.
4. Holidays are as follows:
a. Father shall have P. on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Mother shall have P. on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter/religious holiday | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
With the exception of Christmas and Halloween contact, holiday contact shall be from 10 a.m. until 3 p.m. the day of the holiday. Halloween contact shall begin after school with pick up from school and end at 8 p.m. on Halloween. Christmas Eve contact shall begin at 6 p.m. on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6 p.m. on December 26th. When a holiday falls on a Monday immediately following a contact weekend, the parent that had contact for the weekend shall be entitled to keep the children continuously from 6 p.m. Friday until 6 p.m. Monday. As the Visitation Center may not be open for holidays, Paternal Grandparents, or other mutually agreed upon third party, shall do the pick-up and drop-off for holiday visitation at Delaware State Police Troop 2.
Mother's/Father's Day : On Mother's Day and Father's Day, no matter whose turn for contact, the children shall be with the parent whose holiday is being celebrated from 9 a.m. until 6 p.m.
5. Neither parent shall transport P. without a valid driver's license.
6. Father shall not drink alcoholic beverages while P. is in his care.
7. Relocation : Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the P. 's school, travel time to school or extracurricular activities or otherwise may adversely affect the P. 's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
Information on the Visitation Centers is enclosed. --------
Very truly yours,
FELICE GLENNON KERR, Judge FGK:JW Date emailed: __________
Date mailed:__________