Opinion
File No. CK09-01333 Petition No. 18-36949
08-08-2019
C------ M------, Petitioner, v. M------ M-------, Respondent.
ORDER
Petition for Modification of Custody In The Interests Of:
M----- M------- (DOB X/XX/XX)
M---- M------- (DOB X/XX/XX)
Before the HONORABLE JAMES G. MCGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
On July 22, 2019 the Court convened on the Petition for Modification of Custody filed by C------ M------ (Mother) against M------ M------- (Father) in the interests of M----, born ------ XX, XXXX, and M-----, born --- XX, XXXX. Both parties appeared self-represented.
At the outset, Mother advised the Court she does not seek a change in the custody order as it pertains to M----.
BACKGROUND
The initial custody order entered August 31, 2015 by the consent of the parties. M----- resided with Mother and M---- resided with Father. The children were together with one parent or the other for holidays and school breaks. Mother lived in S---------, Pennsylvania and Father lived in D----, Delaware.
On October 8, 2015, 38 days after the parties agreed to the consent order, Father filed a Petition for Modification of Custody, alleging Mother was arrested for possessing drug paraphernalia on October 2, 2015. That matter resolved by trial with the order of May 17, 2016, vesting Father with placement of both children.
Mother filed this action on December 11, 2018, two and one-half years later.
TESTIMONY
Mother
Mother testified that she has completed a drug treatment program and is committed to a clean and sober lifestyle. She lives in a three-bedroom manufactured housing unit in O-------, Pennsylvania with her daughter M------, age 13 and half-sister to M-----. The home is in a manufactured home community that includes a swimming pool and a playground. Mother works a full time schedule in food and beveridge service. Maternal Grandmother lives nearby, and she will provide help with childcare. Mother has also identified another childcare provider, the mother of a friend, who can help.
I take judicial notice of the orders entered by Commissioner Vari on October 22, 2015 and Judge Walls on May 17, 2016. In both of those decisions, the Court expressed concern about Mother's candor. Mother's testimony at this hearing makes apparent that she was less than candid at the prior hearings. It is significant that, where she denied substance use in the past, now she admits that problem.
Mother has been visiting with M----- and M---- for a weekend each month and for much of this summer. She complained that M----- arrives at Mother's home with hygiene problems, particularly associated with her eliminatory functions. Mother also complained that Father has routinely failed to inform her about school and sports happenings and does not attempt to co-parent with her. She stated that Father activates the speaker phone function when speaking with Mother on a telephone, allowing the children to witness the difficulty the parents experience in communication.
Mother insists that M------ expresses a desire to live with her.
Father
Father argues that M----- is loved, safe and stable in his home. He testified that M----- is an excellent student. Both he and his wife work from home and are always available to her. The child is involved in religious education, girl scouts, softball, dance and is enrolled in cheerleading.
His complaint about Mother is that she "lies constantly." As an example, Father cited an averment in Mother's petition, "I have completed all probation. Counseling." She swore to that statement on December 11, 2018. He testified that he learned Mother was on probation until February of 2019. Mother explained that she had done all of the work required for probation by the time she filed her petition, although a bureaucratic paperwork lag delayed her discharge from probation. Mother believes her December 11, 2018 statement was true.
Father's parents live in D----.
M----
I spoke with both children, individually, on the record and outside the presence of the parties.
M---- is almost 11 years old. He is well mannered, intelligent and poised. He is well aware that his sister wants to live with Mother. M---- volunteered that information, without prompting, as we began our conversation. He expressed no such desire for himself. He is generally satisfied with the current arrangement. He likes the time he spends in both homes and gets along with the occupants of both homes. He mentioned that Father formerly employed physical means of discipline with him ("a pop on the chest") but now Father will ground him or take things from him.
M-----
M----- is 8 years old. She was wearing a T-shirt with this message:
She's Got that Whole Purpose Driven Warrior Princess Save the World Type of Vibe This T-shirt seems to suit M-----, who was remarkably confident and comfortable in this interview. She has a genuine and infectious smile and lots of personality. After we spoke about her interests for a few minutes, she blurted out, without prompting, "I live with my dad but I want to live with my mom," and, "I don't get why he doesn't want me to be happy." She allowed that her present circumstances "breaks [her] heart" and "tears [her] heart out." Some of this language does not sound natural to an 8 year old, despite her precociousness. I do not doubt she is sincere in her desire to live with Mother, but it is clear to me that she has been influenced, directly or indirectly, by the adults in this conflict.
DISCUSSION
Mother filed this petition on December 11, 2018 to modify the May 17, 2016 custody order, over two years after the order entered. In this circumstance, and when the order to be modified was entered after a full hearing on the merits, the applicable statute is 13 Del. C. §729(c)(2), which requires:
[i]f 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.
Harm to the Child
There is no evidence that the modification would cause harm to the child. While Father established that the child has done well while residing in his home, no evidence suggests that the child would not do well in Mother's home. Despite Father's protestations that Mother cannot be trusted, I find Mother's expression of commitment to a clean and sober lifestyle to be credible. Sobriety is addressed a day at a time, which Mother now understands. Mother has worked hard to rebuild the wreck of her life. M----- can learn much from her Mother's experience.
Parental Compliance
Neither party presented evidence of noncompliance with the prior final and emergency orders. Mother complained that Father failed to provide to her information about the children's school and activities, but she did not prove that she had requested that information.
Best Interest Standard
The Court determines 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 considers 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.
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. 13 Del. C §701 (a).
Mother seeks residential placement of M-----. Father opposes this change. Factor 1 is neutral.
M----- desires the change. Factor 2 favors the petition.
The evidence suggests that M----- has good relationships with the people in both households, with Maternal Grandmother and with Paternal Grandparents. Factor 3 is neutral.
The child has adjusted to Father's home, but she quickly adjusted to Mother's home during this summer visit. Factor 4 is neutral.
Mother's health was at issue at the time of the May 17, 2016 Order. She was engaged in substance use and in full denial. Her judgment was impaired and she put her children at risk of harm. She now tells the Court she is committed to treatment and recognizes the many ways her life must, and has, changed. I find Mother's testimony to be credible. Father and the child have no health issues. Factor 5 is neutral.
Father testified that he chose against pursuing a child support order against Mother to encourage her to travel the 2 ½ hours from her home to D---- to engage in additional visits. But Mother works as a server in a restaurant and works weekend shifts. Mother has rebuilt her life. Father's expectation that Mother is free to commit weekends to a D---- trip is unreasonable and illogical. Still, her obligation to provide support to the children exists independent of any child support order. Factor 6 favors Father's position.
Father's Answer to Motion to Establish an Arrears Payment, Pet. No. 16-30806, Oct. 13, 2016.
Father's argument is that Mother should be able to travel to D---- for visits with the children because she pays no child support and has more money at her disposal. The evidence adduced at this hearing indicates that Mother works a full-time schedule, and it is her schedule that limits her ability to travel to D---- for a weekend. --------
The parties presented no evidence relevant to domestic violence, so Factor 7 in neutral. Regarding Factor 8, Father has not been convicted of any criminal charge in over 20 years. Mother's significant criminal activity was a manifestation of her substance use problem, which is addressed elsewhere in this opinion. Factor 8 is neutral.
The other relevant factor is the likelihood that this child will benefit from learning the important life lessons of failure and recovering from failure and she will learn those lessons from Mother. Father does not recognize this opportunity. He remains angry and unforgiving. This factor favor's Mother's petition.
CONCLUSION
These parents embraced separating the children when they entered the consent order on August 31, 2015. Mother's poor choices interrupted that plan. But Mother is a stronger person now then she was 38 days before she was arrested, a day that changed her life. I find this re-set to be in the best interests of M-----.
M----- shall reside with Mother.
The visitation plan to which the parties agreed in the August 31, 2015 Order shall control. If either parent objects to the visitation plan, that parent may advise the Court of that objection within 10 days of mailing of this Order. Any objection shall specifically state the nature of the objection and a proposal to change the visitation plan.
These parents have done a poor job in protecting their children from the matters that are the exclusive province of adults. Father admitted to discussing with the children Mother's failure to visit as frequently and that he thought she could visit them with greater frequency if she wanted to do so. That puts the children squarely in the middle of parenting problems. And Mother has discussed with M----- relocating to Mother's home. Children need to be free from this pressure. Both Mother and Father shall seek assistance from a mental health professional with resolving conflict and communicating within the family. They shall do so as soon as possible. Both Mother and Father shall authorize their service providers to share information with each other to facilitate this assistance.
IT IS HEREBY ORDERED this day of August, 2019.
/s/ _________
JAMES G. MCGIFFIN JR., JUDGE JGM/ksw
cc: Parties
Date Mailed: