Opinion
File No.: CN14-03787 Petition No: 17-07638 Petition No: 17-11544
10-31-2017
RE: C------ M----- v. J----- M-----
John A. Clark, III, Esq.
Brandywine Building
1000 West Street, 14 Floor
Wilmington, DE 19801 Judy M. Jones, Esq.
1105 North Market Street, 19 Floor
Wilmington, DE 19801 LETTER, DECISION AND ORDER Petition to Modify Visitation; Petition Rule to Show Cause; Counterclaim for Modify Custody Dear Counsel:
Before the Court is a Petition to Modify Visitation filed on March 15, 2017 by J----- M----- (hereinafter "Father"), by and through his attorney Judy Jones, Esquire, against C------ M----- (hereinafter "Mother") in the interest of their minor child, A-------- M----- born May 11, 2011 (hereinafter "Child"). In his Petition, Father requested that visitation with Child commence immediately unsupervised or that visitation at the Hudson Center immediately be re-activated. In addition, before the Court is a Counterclaim to Modify Custody filed on April 5, 2017 by Mother, by and through her attorney John Clark III, Esquire, against Father in the interest of Child. In her Counterclaim, Mother requested that she be granted sole physical and legal custody of Child. Furthermore, before the Court is a Petition Rule to Show Cause filed on April 17, 2017 by Mother, by and through her attorney, against Father in which Mother alleged that Father had not paid his Court ordered attorney fees monthly installment for April. On October 24, 2017, the Court held a consolidated hearing on the two Petitions and the Counterclaim, addressing each matter separately.
I. Visitation Modification
The parties informed the Court that Father's supervised visitations at the Hudson Center had commenced in August 2017 and that Father had begun getting monitored exchanges through the Hudson Center on or about October 15, 2017, thereby rendering Father's Petition to Modify Visitation moot. As a result, the parties stipulated that the Court's prior July 11, 2016 Order will remain in effect except for an addition that will permit Father to patronize the Any Lab Test Now! Newark, DE facility for the second hair follicle alcohol test.
II. Rule to Show Cause
Prior to presenting testimony, the parties also declared their agreement to withdraw Mother's Petition Rule to Show Cause because Father had made all the Court ordered monthly attorney fees installments.
III. Custody Modification
After the first two matters were quickly resolved, the Court heard testimony from both Mother and Father with regard to Mother's Counterclaim to Modify Custody. For the sake of judicial economy, the Court will not repeat in detail all of the testimony that can be obtained from the record as to custody modification, but will note the salient testimony as it pertains to the required statutory analysis. On July 11, 2016, the Court last issued a custody Order with regard to this matter. In order to modify a custody order previously set forth by the Court, evidence is reviewed pursuant to the standards set forth in Del. Code Ann. Tit. 13 §729. Since Mother's Counterclaim was filed less than two years after the issuance of an Order concerning Custody of Child, the Court is bound by Del. Code Ann. Tit. 13 §729(c)(1), wherein "the Court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair his or her emotional development." Therefore, in determining whether the prior July 2016 Order should be modified per Mother's request with regard to Child's custodial, residential, and visitation schedule, the Court must consider the evidence of any danger posed to Child by Father under the current order.
On August 22, 2016, Father pled guilty to a February 22, 2016 charge of Driving a Vehicle Under the Influence of Alcohol resulting in the revocation of his driving privileges. However, Father continued to pick up Child from the Hudson Center on his scheduled visitation days from that date until September 20, 2016, when, on September 20, Father was approached by Newark police and notified that his driving privileges had been revoked. Father however was not charged with having violated the terms of his probation. Father testified that between August 22 and September 20 he was not aware that his driving privileges had been revoked already and that he was expecting receipt of confirmation from the Court of the effective date of revocation. Father further testified that he immediately ceased driving after that interaction with the police on September 20, 2016. Although Mother presented no evidence to support that Father knowingly drove while his license was revoked or that Child suffered harm because of Father's conduct, the Court expressed concern that Father chose to continue driving after pleading guilty to a DUI.
Sometime within the month following the August 2016 disposition of his DUI charge, Father had required ignition interlock devices installed in his two vehicles in Delaware to remain until on or about August 2018. Father has only one violation of the device since its installation when the car was at a repair shop and the device lost battery power.
On October 20, 2016, Father received a positive result on a three-month hair follicle alcohol test. Father testified that he did not promptly inform Mother of this result because he believed it was a false positive reading as he reportedly had not consumed any alcohol since February 2016 other than absorption through trace amounts of such products as sunscreen and medication. The Court admonished Father that it was not his luxury to decide when to and when not to promptly inform Mother of the results of these tests as either a failed test or a failure to timely produce a result under the Court's current Order can result in the reversion back to supervised visits with Child.
On or about November 1, 2016, Father stopped visitations with Child at the Hudson Center. As a result, the Hudson Center deactivated his account on November 15, 2016. Father did not petition the Court to reactivate his account until about four months later in March 2017. The Court ordered reactivation of Father's supervised visits at the Hudson Center in June 2017, but these visits did not resume until August 2, 2017 after Mother completed her re-orientation and Child returned from vacation. Therefore, Father did not have face-to-face contact with Child from November 2016 until August 2017. Although a break in contact with a parent can have a serious impact on a child, there was no evidence presented at the hearing that Child was harmed by this extended period of no visits with her Father.
Since his October 2016 positive result, Father has had no other such results. Three-month hair follicle alcohol tests from November 2016 and January, April, August, September, and October 2017 have all been negative. Although Mother provided no evidence to refute Father's extended period of sobriety dating from at least October 2016, she repeatedly testified that, in her opinion, he has continued to act like an alcoholic throughout this period by making horrible decisions.
Among those decisions, Mother alleged that Father was allowing adult day laborers he employs to enter his home despite knowing that they have criminal records. However, Father denied that he had ever or would ever permit them entry into his home unsupervised while Child was present and reportedly did not know if they had criminal records. Therefore, no evidence was presented at the hearing from which the Court can conclude that Father has let or plans to let his day laborers interact with Child in or out of the home or that the day laborers pose any danger to Child.
CONCLUSION
Counterclaim to Modify Custody
After considering the testimony of Mother and Father, the Court finds that while Mother has legitimate concerns that Father may at some time in the future endanger Child's physical or emotional well-being that Mother has not presented evidence sufficient to meet the burden of proof required by Del. Code Ann. Tit. 13 §729(c)(1) in order for the Court to modify the previous custody Order issued in July 2016. Therefore, the parties are to abide by the custody and visitation provisions provided in the July 2016 Order that allow for the possibility of joint legal custody and shared residential placement upon the receipt of a second clean hair follicle alcohol test. For the present, Father will retain his unsupervised visits on Wednesdays from 4:00 to 7:00 PM and on Sundays from 9:00 AM to 6:00 PM and the parties are encouraged to not let their history of significant animosity toward each other interfere with Child's right to have meaningful interactions with each parent. ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:
1. Father's Petition to Modify Visitation filed on March 15, 2017 is dismissed.
2. Mother's Petition Rule to Show Cause for non-payment of attorney fees filed on April 17, 2017 is dismissed.
3. Father may patronize "Any Lab Test Now!" in Newark, DE facility for the Court ordered second hair follicle alcohol test.
4. Mother's Counterclaim to Modify Custody filed on April 5, 2017 is denied.
5. Both Father and Mother's requests for attorney fees are denied The Court finds that Mother's concerns which prompted her to file to modify custody were legitimately fact-based notwithstanding the Court denying her modification. Similarly, while Father is not being held in contempt, his failure to promptly notify Mother of his positive alcohol hair follicle test, although he may have believed it to be a false positive, was not justified.
IT IS SO ORDERED.
/s/ _________
ROBERT BURTON COONIN, JUDGE RBC/plr cc: Counsel
File