Opinion
File CS18-01721 Petition 23-2776224-01479 24-11316 24-12924
10-01-2024
C.G. v. I.G.
LETTER DECISION AND ORDER
MICHAEL K. NEWELL, Chief Judge
Dear Ms. G---- and Mr. G----:
This Court conducted a hearing on July 17, 2024, on the cross Petitions - Rule to Show Cause filed by C -------- G---- ("Mother") (23-27762) and I---- G---- ("Father) (24-01479) and cross Petitions for Visitation Modification filed by Father (24-11316) and Mother (24-12924). The petitions pertain to the parties' children: J ------ G ----- ("J ----- "), born------------ ---, 2010; and C ----- G ----- ("C----"), born ----- --, 2014. Both parties participated in the hearing, representing themselves.
The parties' oldest child, I ------- G ----- ("I ------- "), born ---------- --, 2006, is 18 years of age and is no longer subject to this Court's jurisdiction.
The Court received testimony from Mother and her paramour, S---- D ------ ("Mr. D --------- "), and Father and his paramour, V ------- A ------- ("Ms. A -------- "). The Court reserved its ruling on the matter.
Procedural History
Pursuant to a default custody order issued by this Court on July 13, 2018 ("2018 Custody Order"), Father was granted sole legal custody and primary residency of the children. Mother was awarded supervised visitation on Tuesdays and Thursdays from 5:00pm to 8:00pm and every other Saturday from 10:00am to 2:00pm
In August 2018, Father filed a Protection from Abuse ("PFA") petition against Mother after she appeared intoxicated at his home at 4:00am. The Court denied the PFA due to Father's failure to prove that Mother committed abuse.
On April 24, 2019, Father filed a petition for divorce against Mother. Father's petition was granted on September 10, 2019.
On December 23, 2019, Father filed a petition for child support against Mother. On October 12, 2020, Mother was ordered to pay $258.00 per month in child support and owed $3,096.00 for one year of retroactive arrears.
Mother filed her first Petition - Rule to Show Cause against Father on August 24, 2023. She alleged that she had not seen the children for two months because Father did not permit contact.
On September 29, 2023, Father responded to Mother's contempt petition. In his answer, he alleged that since the issuance of the 2018 Custody Order, Mother had seen the children an average of three or four times a year. Father also alleged that Mother sent him threatening messages after he had neglected to answer his phone during I ----- 's basketball tournament. He claimed that he has been the sole caregiver to the children for years and that I ----- has been in therapy because of Mother's actions. On December 1, 2023, the Court dismissed Mother's contempt petition because she failed to appear for the November 21, 2023, case management conference.
Mother filed her second Petition - Rule to Show Cause (23-27762) against Father on December 22, 2023, and renewed her request for enforcement of the 2018 Custody Order. Mother claimed that she had not had contact with any of the children since December 16, 2023, due to Father's argument with her over her "intentions." She also stated that she was undergoing counseling. On January 22, 2024, Father responded to Mother's petition and denied all allegations.
On the same day, Father filed his Petition - Rule to Show Cause (24-01479) against Mother. He renewed his allegations from his previous answer to Mother's contempt petition. He included that since the last filing, Mother had not seen the children. Father was concerned about Mother's alcohol use and her involvement with her significant others. He alleged that Mother's romantic relationships are so tumultuous that they affect her daily and prevent her from being available for the children. He confirmed that Mother had been consistent in paying child support for the preceding nine months.
Father alleged that on December 17, 2023, Mother came to his home uninvited and scared J ------- . Father filed a report with the Bridgeville Police Department. At some point following this incident, C---- told Father that she wanted to speak to Mother about the event. Father encouraged her to write down her feelings so that she could fully express herself to Mother. While C ----- was on the phone with Mother, Mother accused Father of having coached C ----- and that C ----- 's feelings were "scripted." Father requested that the Court order Mother to attend a six-month rehabilitation program.
By Order dated April 10, 2024, the Court scheduled a virtual case management conference for May 7, 2024. On that date, both parties participated in the conference. Mother stated that she calls the children every day, but Father has refused to let them answer the phone. She also alleged that Father required her to give two weeks' notice before visiting the children, which she believed was impractical due to her irregular work schedule.
Father stated that the last time Mother was scheduled to see the children was March 30, 2024. However, she failed to appear and did not contact Father to cancel. Father asserted that Mother has consistently failed to appear for visitation.
During the case management conference, the parties agreed that effective May 14, 2024, Mother would resume the visitation schedule set forth in the 2018 Custody Order. Father was to give Mother advance notice of the children's extracurricular activities if they were going to overlap with her scheduled visitation. Mother could elect to attend the extracurricular activity as her visit. The Court scheduled the instant hearing on the cross-contempt petitions.
On May 15, 2024, Father filed an emergency ex parte motion and visitation modification petition (24-11316), in addition to a Motion for a Child Interview. Father requested that Mother's visitation be changed to Tuesdays, Thursdays, and one day during the weekend from 5:30pm to 8:30pm. Father requested that all visits remain supervised until Mother can prove consistency. By Order dated May 16, 2024, the Court denied Father's request for emergency ex parte relief. If Father was not available during the times of Mother's designated visitation as set forth in the 2018 Custody Order, the Order provided that Father could designate another individual to supervise the visitation. The Court consolidated Father's visitation modification petition with the July 17, 2024 hearing.
Mother filed her visitation modification petition (24-12924) on June 4, 2024. Her petition requested unsupervised visitation every Tuesday and Thursday and every other Saturday from 5:30pm to 8:30pm. Mother requested that if unsupervised visits were not possible, she would like "mediated visits." She alleged that she was uncomfortable having visits at Father's home, as she and Father did not get along and she felt bullied by Ms. A----.
Father filed an answer to Mother's visitation modification petition on July 1, 2024. He asserted that he and Ms. A ----- have not acted in ways to make Mother uncomfortable. Father also denied that he and Mother have conflicts during visits. He noted that visitation was generally going well, except that Mother continued to miss visits without prior notice, or she would contact him on the day of the visit. Father did not believe unsupervised visitation was appropriate at this time. The Court scheduled Mother's visitation modification petition with the July 17, 2024, hearing.
The Court heard all four pending petitions on July 17, 2024. At the conclusion of the hearing, Father revoked his request for child interviews.
Following the hearing, this Judge's office received an email communication from Father indicating that he had "changed [his] mind" about the child interviews and requested that the Court speak with the children. A case management conference was scheduled with the parties for August 20, 2024.
During the case management conference held on August 20, 2024, the Court inquired whether Father maintained his request for child interviews. Father confirmed, and mother did not oppose. The Court scheduled an interview with I -------, J -------, and C ----- to be held on August 28, 2024.
Factual Background
The parties were married in 2008, separated in 2017, and divorced in 2019.
Father is 43 years old and lives at ------ ------- ------- in --------------, Delaware. He resides in the home with I ------, J ------, and C ----- . Father rents his home from Mother's mother ("Maternal Grandmother") for $640.00 per month. Father has been employed at ---- ---------- as an auto technician for five years. He works on Saturdays and Sundays. Additionally, Father has a lawn care service that he performs on Mondays and Tuesdays.
Father has been in a relationship with Ms. A -------- for approximately four years. Although she does not live in the home, she stays there approximately four days per week, as she also has children. She works for -------- and bakes on occasion to supplement her income.
Mother is 43 years old and resides at --- ---------- ------- in ---------------, Delaware. For approximately two years, she has rented a room in the home and lives with her paramour, Mr. D ------- . Mother and Mr. D ------- have been in a relationship for a year and a half. Mother is employed full-time at ------ ------ in -----------, Delaware, where she has worked for approximately one year. Her shift days and hours vary by week. She has requested to have off during her scheduled visitation times.
RULE TO SHOW CAUSE
Legal Standard
As part of the Court's general jurisdiction, Family Court possesses contempt power under 10 Del. C. § 925(3). In a civil contempt proceeding arising from an asserted violation of a court order, the Court must find the party to be sanctioned was "bound by the order, ha[d] clear notice of it, and nevertheless violate[d] it in a meaningful way" such that the party's "conduct constituted more than a mere technical violation."
TransPerfect Global, Inc. v. Pincus, No. 154, No. 167, No. 175, 2022 WL 1763204 at *8 (Del. 2022) (citations omitted); inTEAM Assoc., LLC v. Heartland Payment Sys., LLC, C. A. No. 11523-VCF, 2021 WL 5028364 at *11 (Del. Ch. 2021) (citations omitted).
The burden of proof rests with the movant to establish the non-moving party's contempt by a preponderance of the evidence. "Proof by a preponderance of the evidence means proof that something is more likely than not." If the movant establishes a prima facie case, "the burden shifts to the non-moving party to show why they were unable to comply with the order."
TransPerfect Global, Inc., 2022 WL 1763204 at *8 (citations omitted).
inTEAM Assoc., LLC, 2021 WL 5028364 at *11 (citations omitted).
TransPerfect Global, Inc., 2022 WL 1763204 at *8 (citations omitted).
Mother's Contempt Petition
Mother initially testified that Father should be held in contempt of the 2018 Custody Order because he interfered with her visits and would not allow her to have telephone contact with the children for two months. Later, Mother retracted that she did not want Father to be held in contempt.
Mother recalled that she could not get in contact with the children during the later months of 2023. She purchased the children a cell phone after Father blocked her telephone number from his phone. When Mother tried to contact the children directly, the calls went to voicemail. Mother also testified that during a recent visit, she called the police after Father did not allow her back into his home after she went outside to smoke a cigarette.
Father clarified that Mother was not permitted to re-enter his home after smoking a cigarette because the parties had previously agreed not to smoke around the children due to their allergies. He stated that this was the only instance of Mother smoking during a visit. Father warned Mother before she smoked that she would not be able to return for at least twenty to thirty minutes. Both parties then placed separate phone calls to the police. When the police arrived, they instructed Father to call again or begin recording if a similar incident transpired in the future.
During cross-examination, Father asked Mother why she did not contact her mother or Ms. A ----- if she could not get in contact with him or the children. Mother stated that she does not get along with Ms. A -------, and she could not recall why she had not tried to contact her mother.
The Court cannot find that Father violated the 2018 Custody Order in a meaningful way. The parties' communication is problematic, as evidenced by Mother providing a cell phone to the children for direct communication with her. Due to Mother's strained relationship with the children, which resulted from her failure to exercise visitation, the Court cannot conclude that Father intentionally obstructed Mother's relationship with the children during the two months she had no contact with them.
Mother's Petition - Rule to Show Cause is DENIED.
Father's Contempt Petition
Pursuant to the 2018 Custody Order, Mother was to have visitation with the children on Tuesdays and Thursdays from 5:00pm to 8:00pm and on alternate Saturdays from 10:00am to 2:00pm. Father requested that Mother be held in contempt of the 2018 Custody Order because she has "never consistently exercised visitation." She frequently missed visits with the children without any prior notice. Father believed that there was at least one year when Mother did not visit with the children. Father inquired whether the Court could order Mother to complete an alcohol rehabilitation program. The Court explained that it could not.
Father testified that he initially tracked Mother's visits following the entry of the 2018 Custody Order. He stated that after the Order was issued on July 13, 2018, Mother was scheduled for a visit on Tuesday, July 17, 2018, but neither showed up nor called to notify him of her absence. On Thursday, July 19, 2018, Mother informed Father by phone that she had been in a car accident and arrested for driving under the influence, so she did not visit that day. By Saturday, July 27, 2018, Father had not heard from Mother. He was unsure when Mother resumed exercising visitation but noted that any subsequent visit occurred sporadically. Although Father occasionally offered to transport Mother to the visits, this arrangement was unsuccessful. He did not believe there was a period when Mother's visits were stable or continuous.
Father acknowledged that in the two weeks before this hearing, Mother was consistent with communication and visitation. He explained that Mother informed him she was caring for Maternal Grandmother and would miss visits during that time. When she was not caregiving, Mother arrived for visits with food for the children.
According to Father, when Mother appeared for her visit on Tuesday, July 16, 2024, she seemed "strange" or under the influence and overly energetic. He did not speak with Mother about his observations because the visit was going well. Father received a note from C ----- during the visit that Mother was "treating [her] like a baby" and "giving [her] a headache."
Mother disagreed with Father and while she acknowledged that the visits were sporadic at times, she stated that there were also times when she visited consistently. She explained that her previous move to ----- -----, Maryland, made attending visits more difficult and that she had issues securing transportation to the visits. Mother denied Father's assertion that she missed visits with the children consistently for a year. Mother argued that her failure to exercise visitation with the children was due to her varied work schedule and lack of consistent transportation to the visits.
The Court cannot find that Mother meaningfully violated the 2018 Custody Order.
As such, Father's Petition - Rule to Show Cause is DENIED.
VISITATION MODIFICATION
Legal Standard
Pursuant to 13 Del. C. § 729(a), "[a]n 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 13 Del. C. § 728(a)." To make a best interests finding, the Court analyzes the factors set forth in 13 Del. C. § 722(a).
Under § 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."
Further, pursuant to 13 Del. C. § 728(a), the Court shall determine a schedule of visitation with the non-residential 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 one parent would endanger the child's physical health or significantly impair his or her emotional development. The Court shall specifically state in any order denying or restricting a parent's access to a child the facts and conclusions in support of such a denial or restriction.
§ 722 Factors
(1)The wishes of the child's parent or parents as to his or her custody and residential arrangements;
The parties agreed that Mother would continue with visits on Tuesdays, Thursdays, and alternating Saturdays. Father requested that the visits remain supervised by himself or his designee. Mother asked for at least one unsupervised visit with the children, but if that were not possible, then she would prefer that the visits be "mediated" because of her discomfort in Father's home. Mother clarified that a mediated visit would be supervised by an unrelated third party, such as visits conducted at the Delaware Family Visitation Center ("Visitation Center").
Father acknowledged that when the children have events or activities that conflict with Mother's scheduled visits, he lets her know in advance.
Mother testified that she has not had an unsupervised visit with the children since the entry of the 2018 Custody Order. She felt as though the children could not be themselves during supervised visits in Father's home. She would rather have the visits occur in a public place, such as McDonald's or Dairy Queen. Mother would like to have overnight visits with the children eventually, but that is not an option for her right now.
(2)The wishes of the child as to his or her custodian or custodians and residential arrangements;
During a conversation one month before the hearing, I ------- told Father that he did not want a relationship with Mother at that time. Father noted that C ----- has expressed similar sentiments. C ----- informed Father that during a recent visit with Mother, she asked Mother to move away from her, but Mother refused. When Father tried to discuss the issue with Mother, she became upset and left the visit. J ------ has remained neutral about seeing Mother. Father clarified that J ------- and C ----- enjoy visits with Mother but are unhappy when she is under the influence or fails to show up as planned.
According to Mother, the children aim to impress Father and Ms. A ------ because they are their primary caregivers. She does not believe that they have an opportunity to express their feelings to Father and Ms. A ------- because of how controlling and strict Father can be.
During the children's interview on August 28, 2024, C ----- expressed that she would like to continue having supervised visits with Mother. However, she would prefer that the visits be supervised by someone that she knows, and J ----- agreed. The Court explained to the children what a Visitation Center is. Initially, C ----- was apprehensive about visits at the Visitation Center because she believed that she would be alone with Mother, and that was not her preference at this time. The Court confirmed that if the visits were held at the visitation Center, someone would supervise her time with Mother. After learning this, C ----- stated that she was more comfortable with visits at the Visitation Center.
I ------ believed that his siblings would be more comfortable continuing with supervised visits, though the visits would not necessarily need to be monitored by Father. C-------- mentioned that Mother had expressed her aversion to Ms. A ------- supervising the visits, noting that Mother had warned that she would not come over if Ms. A ----- were at home. However, C ----- stated that she enjoys it when Ms. A ------- supervises the visits or is also in the house while Mother is there.
The Court asked the children whether there were family members who could serve as supervisors. C ----- responded that Maternal Grandmother would be an option but that she was not doing well. According to C -----, there were likely no other familial alternatives as their extended family lived in Maine.
The children were receptive to community visits, and I ------ recalled that Mother had visits with C ----- and J -------- at the park adjacent to where he plays basketball on Thursdays. C ----- recounted that during one of the park visits, Mother and Father were engaged in an argument over health insurance. The Court explained to C ----- that her visits with Mother were not the time for the parties to argue over "adult" matters.
(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;
Father testified that he has a strong relationship with the children and disciplines them appropriately. During the COVID-19 pandemic, he used the time at home to teach the children to be more independent and responsible. He stated that the children felt uncomfortable around Mother and were disappointed when she missed visits. I ------ has essentially ceased contact with Mother. Apart from I ------, Father believed that the children enjoy visiting with Mother when she is not under the influence.
Mother testified that she has a "great" relationship with J ------ and that he will confide in her about matters that he cannot discuss with Father. Mother described her relationship with C ----- as "rocky," attributing C ----- 's fluctuating feelings to a stage in her life and suggesting that Father has influenced C ----- 's opinion of her. Mother stated I ------ was "brainwashed" by Father and acknowledged that her relationship with I ------ is strained. She respects I ------ 's need for space and hopes that their relationship will improve over time.
Mother argued that she has not had the opportunity to be involved in the children's lives and education because Father does not share information with her. She clarified that since their divorce, Father has not provided her with details about the children's schooling or medical appointments and has explicitly stated that she is not privy to this information.
Regarding I ------ 's basketball games, Mother stated that she wanted to see him play, but that Father has informed her that I ------- does not want to see her and that she should not show up at the games.
During Ms. A ----- 's testimony, Father asked her to describe from her perspective how the children felt about Mother. Ms. A ------ testified that in the four-and-a-half years she had known the children, C---- frequently approached her, upset and crying about Mother missing visits. According to Ms. ------, C---- feels uncomfortable and scared around Mother. Ms. A ------- observed that J ------- also becomes distressed when he expects to see Mother, but she does not show up. She noted that J ------ 's feelings fluctuate significantly due to his autism, affecting his reactions to Mother's visits. When Mother visits, I ------ often locks himself in his room, expressing a desire to avoid seeing her and not to be involved.
Ms. A ------ testified about her relationship with Mother. She recalled meeting Mother at C----'s birthday party when she was younger, and that Mother seemed "fine." However, as time went on, Ms. A ----- observed frequent arguments between Mother and Father, which led her to intervene and support the children. After knowing Mother for about a year, their relationship deteriorated, partly because Mother's family began to praise Ms. A- --------- for stepping in and substituting for Mother. Throughout their interactions, Mother has sent Ms. A ------ disrespectful text messages, and Ms. A ------ admitted to using profane language in response.
Mother testified that she felt that she was competing with Ms. A ------ during her visits. She stated that Ms. A ------- would feed C---- before her visits, despite knowing that Mother planned to bring food for the children.
Mr. D -------- testified about Mother's mixed feelings after her visits. He observed that while Mother appears excited to have seen the children, she also feels saddened by not spending more time with them. Mr. D ------ described Mother as a hard worker who has made considerable efforts to improve herself for the children. Since he has not witnessed Mother's interactions with the children directly, his opinion is based on the stories Mother has shared about the past and her current behavior. Mr. D ------- stated that he would meet the children and integrate into their lives if he and Mother were to get married.
During the children's interview, C ----- stated that she used to have a relationship with Mother, but she had since pulled away from her. However, C ----- expressed that when she does have visits with Mother, she enjoys the time they spend together. As to J -------, he stated that he has a good relationship with Mother. C ----- and J ------- each expressed that they had a good relationship with Father.
Regarding the parties' relationship, C ----- stated that Mother and Father do not speak to each other, but that Father will ask Mother to refrain from engaging in certain activities during her visits. C ----- did not believe that Father's reminders to Mother interfered with her visits. I ----- stated that although he does not engage with Mother when she comes to Father's home, he believes that the visits generally go well. He noted that on occasion, Mother will argue with Father or Ms. A ------ over "petty things" and that these arguments sometimes escalate.
(4) The child's adjustment to his or her home, school and community;
J ------- is in his first year at ------------ as a 9th grader. J -------- has autism and does well in school. He has an Individualized Education Program ("IEP") plan and has many services in place and "helpers" to support him. C ----- attends ----- ------------- Elementary School and is in the 5th grade. C ----- also does very well in school. She enjoys practicing club-team gymnastics and dance. Generally, the children have maintained their status as honor roll students. Father testified that he has always been involved in the children's schooling, but that Mother is not involved.
Father noted that on Saturdays, he and the children go to church, which Mother has always been invited to attend. Aside from church, Father and the children's weekend is packed with the children's extracurricular activities.
During their interview, C ----- relayed that last year, she was enrolled in gymnastics, but this year, she would participate in jazz and hip-hop dance classes. J -------stated that he enjoyed playing on his Xbox and riding his bike around the neighborhood. He was undecided about which clubs he would like to participate in at school.
(5) The mental and physical health of all individuals involved;
Father testified that he suffered from high blood pressure and that his health had declined a bit. Father recently visited his cardiologist, who told him that he was "fine." Father attributed his heightened blood pressure to situational stress. Father regarded I -----, J --------, and C ----- 's physical health as good.
In terms of mental health, Father stated that he is trying to get the children into counseling. Father recently began seeing a therapist two months before this hearing at -------- Mental Wellness Services in ------------- . Before then, he tried attending therapy with I --------, but their schedules conflicted with the appointments. Father noted that scheduling sessions for the children according to their extracurricular schedule is difficult.
Mother described her current physical health as "fine." As to her mental health, she testified that she was diagnosed with depersonalization disorder, anxiety, and severe depression toward the end of her marriage with Father. Mother's psychiatrist prescribed her Prozac, Topamax, and an additional unidentified medication.
Regarding her alcohol use, Mother stated that she was enrolled in an outpatient program through Brandywine Counseling and prescribed Antabuse by her primary care physician, Dr. K ----- S -------, DO. Antabuse, when consumed, causes unpleasant physical reactions to users who drink alcohol while on the medication. Mother has taken Antabuse for roughly one month.
On cross-examination, Father asked Mother whether she recalled taking Antabuse during their marriage and its effectiveness in reducing her alcohol consumption. Mother testified that she was taking the Antabuse as prescribed for a while during the marriage but stopped due to mental health reasons. She stated that the Antabuse was ineffective at that time.
Mother testified that she would have started the outpatient program again at Brandywine Counseling on the morning of this hearing, but Brandywine Counseling had not received her documentation.
The Court asked Mother why she decided to reenroll in an alcohol treatment program. She testified that she was working toward having her driver's license reinstated following her driving under the influence conviction in 2021. Although enrollment in a program was necessary for reinstatement, Mother stated that she was also motivated to work on her alcohol use for herself. Before beginning the program again, Mother testified that she was seeing a counselor in Dover before she lost Medicaid coverage.
Mother initially testified that she has not continued to use alcohol but later clarified that she drinks once in a while or for a special occasion. If Mother anticipates drinking at an upcoming event, she stops taking the Antabuse in advance. However, she testified that she does take Antabuse every day in case she has an "urge" or a "craving."
On cross-examination, Father asked Mr. D -------- how frequently Mother drinks. He responded, "[m]aybe once a week," and stated that Mother uses a marijuana pen. When asked how he helps Mother keep her alcohol use under control, Mr. D ----- stated that Mother does not ask him to go to the liquor store and that they typically stay home when she is off of work. He noted that Mother enjoys a glass of wine on occasion.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
On October 12, 2020, a child support order was issued against Mother for $258.00 per month and $3,096.00 for one year of retroactive arrears. Father testified that Mother initially did not make payments because she was "job hopping," but noted that she was consistent in her payments for the past year.
Father testified that Mother frequently missed visits and failed to notify him in advance. He stated that when J ------ and C ----- anticipate a visit from Mother, they are excited because she has assured them that she is visiting and bringing pizza. Then, when it is time for the visit, Mother will not answer her phone and miss the visit without warning.
Mother explained that she was inconsistent in attending visits after she moved to ------ ----- to care for Maternal Grandmother. Once she moved back to Delaware, Mother believed that she could attend visits more reliably.
Father recalled that on May 14, 2024, he called Maternal Grandmother to inquire about Mother's whereabouts, and Maternal Grandmother told Father that she also was unable to get in touch with Mother. Eventually, Maternal Grandmother contacted her, and Father received a disrespectful phone call from Mother. Father played an audio recording of the phone conversation with Mother from that evening.
During the phone call, Mother made disparaging and insulting comments toward Father and Ms. A ----- . Father repeatedly asked Mother to stop. Father then asked Mother if she was aware of how the children were affected when she did not show up for visits. Mother acknowledged that the children were hurt by her absence but that it was Ms. A ----- 's fault. Mother then threatened to "slice" Father and Ms. A ------ . Father believed that the call was made during one of Mother's fights with her paramour. Mother acknowledged the phone call and stated that she was under the influence at the time. She apologized and stated that she would never do anything to harm Father or Ms. A ------- but noted that she does harbor anger toward them.
Father expressed his concern about Mother's relationships. According to Father, Mother's former paramours have committed violence against her or have used drugs. He recounted that on June 29, 2024, he spoke with Mother on the phone after she texted him that she would be missing a visit due to Maternal Grandmother's health. During the phone call, Father learned that Mother was upset with her paramour because he had been unfaithful and had lost his disability payments. Father believed that this was another instance of Mother failing to exercise her visitation because of her unpredictable romantic relationships.
On cross-examination, Father asked Mr. D ------ if he was present during the phone call on June 29, 2024, in which Mother accused Mr. D ------ of being unfaithful and worthless after losing his disability income. Mr. D -------- confirmed his presence and explained that when he and Mother argue, he leaves the room to allow them both to calm down.
Father testified that Mother's social media was concerning. He did not like that Mother's Facebook posts cycled between pictures of the children, which he did not give her consent to post, and derogatory or inappropriate content unrelated to the children. Father described one of Mother's posts from ----- --, 2023, where she uploaded a picture of herself with the caption, "[s]imply bat shit and not afraid to admit it." A user responded that Mother was crazy but that they enjoyed sleeping with her.
Father expressed concern about Mother's alcohol use. He stated that it was challenging to have a conversation with Mother about alcohol because she is unwilling to compromise with him. Father testified that the children do not want to be around Mother when she is under the influence. Father believed that once Mother could get her alcohol issues "under control," then things would improve.
Mother admitted that she had a problem with alcohol during the parties' marriage and separation. She testified that she had been to rehabilitation and had seen a psychiatrist for medication. Mother later testified that she had also been to a detox center.
Father testified that in 2018, Mother was involved in a car accident wherein the family car was totaled, and Mother was arrested for driving under the influence. Mother testified that the only driving under the influence charge she has received was for a drunk- driving accident in 2021. In 2018, Mother was the passenger in the car when her friend crashed their vehicle. Mother was not charged in 2018.
Under the first offender's program, Mother was required to attend a thirty-day inpatient treatment through Psychotherapeutic Services, Inc. ("PSI"). In order to reinstate her driver's license, Mother was required to participate in an outpatient counseling program. The Court inquired why Mother's inpatient treatment could not satisfy the requirements for reinstatement. She explained that the outpatient program required her to be active for ninety days and that she was inpatient for only thirty days. The Brandywine Counseling program would be approximately two months long.
Mother indicated that if she were awarded unsupervised visitation before her driver's license was reinstated, she would continue to rely on Mr. D ------ for transportation to visits. Mr. D ------- testified that he was actively assisting Mother towards reinstating her driver's license and that he would continue providing transportation for Mother until reinstated.
(7)Evidence of domestic violence as provided for in Chapter 7A of this title; and
Father testified that there was no domestic violence in his relationship with Mother. Father believed that Mother's former paramours had perpetrated domestic violence against her.
Mother testified that Father was mentally abusive and controlling toward her, which caused her to have a mental breakdown around the time of their separation.
The Court's independent review of the parties' file reflects that the only PFA petition filed by Father against Mother in 2018 was denied by Order dated September 6, 2018.
(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 testified that he has a criminal history from when he was eighteen years old but has not had any arrests or charges since that time. An independent review of Father's criminal history by the Court confirmed Father's testimony. To Father's knowledge, Ms. A----- does not have a criminal history.
An independent review of Ms. A ------ 's criminal history reveals that she only has traffic violations. This does not concern the Court.
Mother testified that she was arrested and convicted of driving under the influence following a car accident in 2021. She explained that the incident occurred when she lived in ------ ----- and that she had been drinking prior to the accident.
Mr. D ------ testified that he was incarcerated for over twenty years related to his burglary convictions, but that Governor Carney had recently commuted his sentence. Upon an independent review by the Court, Mr. D ----- has an extensive criminal history involving violent crimes and sex offenses. Mr. D ----- is registered as a Tier 2 sex offender related to a conviction for unlawful sexual intercourse in the third degree from August 7, 1987. As long as Mother continues to reside with Mr. D ------ and he remains on the registry as a Tier 2 sex offender, this may affect a future request for residence and unsupervised visitation by Mother.
Conclusion
Based on the testimony and evidence presented, the Court finds that it is in J-- ------ and C ----- 's best interests to continue supervised visitation with Mother. Factors (1), (2), (3), (4), (5), (6), and (8) support this determination and factor (7) is neutral.
The parties agreed to modify the time of the visits; however, they disagreed as to whether they should be supervised. Father argued that the visits should continue to be supervised because Mother has not been consistent in attending visits in the past. Mother requested that her visits be unsupervised or supervised by an unrelated third party. Mother was amenable to altering the supervised visitation location to a Family Visitation Center. Based on Mother's history of missed visits and her willingness to have supervised visits at a Family Visitation Center, factor (1) favors continuing supervised visits.
Under factor (2), Father testified that C ----- is uncomfortable around Mother. According to Father, J ------- enjoys his visits with Mother. Mother alleged that Father had manipulated the children against her, but the Court does not find this accusation credible. Mother has not provided consistent visitation or contact with the children since the issuance of the 2018 Custody Order, although the Court accepts Mother's testimony as to the difficulties with visitation after her move to Maryland. The Court will not discount the children's feelings and wishes merely because Father has been their sole caregiver since 2018.
During their interview, the children expressed that they would like to continue with supervised visits. Although C---- stated her preference for the supervising adult to be an adult she was familiar with, she was ultimately amenable to visits at the Visitation Center. As such, this factor weighs in favor of supervised visitation.
Regarding factor (3), since the issuance of the 2018 Custody Order, Father has been the children's sole caregiver. He is heavily involved in their academic and extracurricular activities. It was clear that Father has a strong relationship with all three children.
As to Mother, her relationship with the children is strained. Father and Ms. A----- testified that they have been on the receiving end of C ----- 's disappointment when Mother misses visits, and she has indicated to them that she is uncomfortable around Mother at this time. As such, the Court assigns particular weight to this factor in favor of supervised visitation.
The evidence in factor (4) suggests that the children are well-adjusted to their schools and community. They excel academically and are engaged in age-appropriate activities. Given the nature of the visitation schedule, they have not visited Mother's home and have only experienced supervised visits since the issuance of the 2018 Custody Order. Thus, this factor weighs in favor of maintaining supervised visitation.
The testimony under factor (5) concerned the Court regarding Mother's alcohol use. When the Court asked if Mother had stopped drinking, she initially stated that she had but then retracted to say that she drinks on occasion. Mother has been prescribed medication aimed at reducing her alcohol intake, but she admitted that she stops taking the medication in advance when she anticipates drinking. Further, Father presented an audio recording of a phone call from June 29, 2024, between him and Mother, where Mother threatened to "slice" him and Ms. A ------- and hurled numerous profanities and insults.
Mother admitted that she was intoxicated during this incident. The Court does not believe that Mother is taking all necessary steps towards managing her alcohol use. As such, this factor weighs against unsupervised visitation.
Since the issuance of the 2018 Custody Order, Mother has been noncompliant with her obligations under factor (6). Specifically, she has failed to exercise visitation consistently. The parties disagreed on whether Mother had missed visits for a year at a time; nonetheless, repeated skipped visits without prior notification to Father is concerning. As to Father, Mother testified that he had not kept her abreast of the children's schooling and other information related to their well-being. Further, Father admitted to having blocked Mother's telephone number from his cellphone.
While the Court acknowledges that the parties' relationship is strained and that their communication is tumultuous, this does not excuse Father from keeping Mother informed about the children's welfare pursuant to 13 Del. C. § 727(a). Thus, this factor weighs in favor of supervised visitation.
13 Del. C. § 727(a) states, "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 such child's emotional development."
As to factor (7), Mother alleged that Father had mentally abused her during their marriage. Father alleged that there was no domestic violence during his relationship with Mother. While the Court acknowledges Mother's accusation of abuse, this factor remains neutral without more evidence presented.
Under factor (8), the Court is concerned about Mother's driving under the influence conviction from 2021, primarily because Mother has yet to complete the requirements to have her license reinstated and because of her continued alcohol use. The Court is also concerned that Mother resides primarily with a Tier 2 registered sex offender, which would prohibit any unsupervised visitation taking place at Mother's home in the presence of Mr. D ------ . As such, this factor weighs in favor of supervised visits.
The Court will continue to restrict Mother's time with the J ------- and C ----- to supervised contact since it finds, based on the evidence, that unsupervised contact between the children and Mother would endanger their physical health or significantly impair their emotional development. Mother's alcohol addiction is a problem, and the children are aware when she is intoxicated. The children are not safe, physically and emotionally, when Mother is intoxicated. Until Mother can demonstrate to this Court that she is consistently and successfully treating her alcohol addiction, her contact, while frequent, shall be supervised.
Based upon the above analysis, the Court finds that it is in J ------ and C ----- 's best interests for Mother's visitation to continue to be supervised; however, the visits shall occur at the Family Visitation Center in Milford or Georgetown through People's Place. Mother shall be entitled to three supervised visits per week, not to exceed 120 minutes per visit. Supervised visits at either location shall begin following the parties' participation in the Family Visitation Center orientation. The parties will abide by the rules and regulations of the Family Visitation Center, including payment for any missed visits. If the Visitation Center does not require advance notice of a missed visit, Mother shall provide Father with a minimum of 24 hours' notice before the scheduled visit if she is unable to attend. Father or his designee shall be responsible for transporting the children to and from the Family Visitation Center. Mother and Father shall share the costs associated with visits held at the Visitation Center. Finally, the parties may, by mutual agreement, arrange for supervised visits outside of the Visitation Center.
Mother shall refrain from alcohol consumption 24 hours prior to her scheduled supervised visit with the children.
Lastly, the Court recognizes that I ------ has turned eighteen since the date of the hearing. Given his age, I ------, is not subject to this order.
ORDER
IT IS HEREBY ORDERED this 1st day of October, 2024 that:
1. Mother's Petition - Rule to Show Cause is DENIED.
2. Father's Petition - Rule to Show Cause is DENIED.
3. The parties are ordered to immediately contact People's Place to start the supervised visitation process, including any orientation that the parties must attend. Mother shall have three (3) supervised visits with J -------- and C -----each week, not to exceed 120 minutes per visit. The visits shall occur at the Family Visitation Center in Milford or Georgetown. The visits may begin following the parties' completion of the Family Visitation Center orientation. The supervised visits may occur outside of the Family Visitation Center, but only upon mutual agreement by the parties.
4. The parties shall be equally responsible for the costs associated with visits at People's place.
5. Mother shall refrain from alcohol consumption for a minimum of 24 hours prior to a scheduled supervised visit.
6. Given I ------ 's age, he is not subject to this Order.
7. The parties shall abide by the Family Visitation Center's rules, including timely confirmations of visits and payments for costs assessed for unnoticed absences. The party that fails to notice their absence in a timely manner shall be responsible for the payment. All remaining Family Visitation Center costs should be shared equally.
8. The parties shall provide each other a minimum of 24 hours' notice before missing a visit for any reason, or as much notice is required by the Family Visitation Center's guidelines.
9. Father or his designee shall transport the children to and from their supervised visits.
10.This is a FINAL ORDER.
IT IS SO ORDERED.
Very truly yours,