Opinion
File No.: CN06-03860 Petition No.: 16-36418 Petition No.: 17-03224
02-25-2019
RE: D------- F------- v. A------ D----- A------ D----- v. D------- F-------
Staci Pesin, Esq.
3801 Kennett Pike, Building D Suite 300
Wilmington, DE 19807 Patrick Boyer, Esq.
5721 Kennett Pike
Centreville, DE 19807 LETTER, DECISION AND ORDER Petition - Rule to Show Cause: D------- F------- Jr. (D.O.B. 06/--/06) and V----- F------- (D.O.B. 7/--/07) Petition for Modification of Custody Order: D------- F------- Jr. (D.O.B. 06/--/06) and V----- F------- (D.O.B. 7/--/07) Dear Ms. Pesin and Mr. Boyer:
This is the Court's decision regarding the Petition - Rule to Show Cause filed by D------- F------- (hereinafter "Father") on November 22, 2016 against A------ D----- (hereinafter "Mother") only as to the issue of if any sanctions are warranted, and the Petition for Modification of Custody Order filed by Mother on February 8, 2017 against Father, both in the interest of their minor children, D------- F------- Jr born June --, 2006 (hereinafter "DJ") and V----- F------- born July --, 2007 (collectively hereinafter "Children"). Father is represented by Staci Pesin, Esquire. Mother is represented by Patrick Boyer, Esquire.
Procedural History
On March 16, 2015, the Court issued a final Decision and Order on Custody concerning Children granting the parties joint legal custody, primary residence with Mother, and visitation with Father every other weekend from Friday after school until Monday before school, and one weeknight of visitation from 5:00 PM to 8:00 PM on Father's off weeks. As part of the Order the Court made the following findings: Mother had "consistent problems dropping children off on time at school in the mornings;" Mother left Children in the car while she made returns to a Walmart or Target in October 2014; and, Mother and her then boyfriend, J--- F------, got into "fights" sometimes witnessed by Children. The Court also expressed "concerns about Mother's anger" and "concerns about physical discipline at Mother's house," including, but not limited to, an incident wherein she slapped V----- across the face. Despite this evidence, the Court granted Mother primary residence because it gave significant weight to Children's wishes and concerns regarding homework completion when in the care of Paternal Grandfather.
On August 25, 2015, Father filed a Petition to Modify Custody Order, well within two years since the Court's last order on custody thereby invoking the heightened 13 Del. C. § 729(c)(1) standard described below, based on allegations that Mother left Children home alone. On October 22, 2015, Father also filed a Motion and Affidavit for Emergency Ex Parte Order wherein he presented evidence of a New Castle County Police report documenting that on October 20th Mother left DJ (then 9), V----- (then 8) and her two younger children, ages 19 months and 9 months, by Mr. F------ at home alone for about ninety minutes while she went shopping and then joined Mr. F------ at Applebee's for karaoke. Pursuant to that Motion, the Court granted Father temporary custody of Children on October 22, 2015 until a hearing could be scheduled on the Motion. However, the Court ultimately denied Father's request for Emergency Custody on November 12th after conducting a hearing where it found that Children were in no immediate physical danger in Mother's custody, all the while noting that Mother admitted to leaving Children home alone on October 20th and that the Division of Family Services (hereinafter "DFS") "found Mother to be manipulative and that she inappropriately uses her children as pawns" while investigating the matter. In issuing its Order, the Court also expressly put Mother on notice that:
"Mother's custody of the children is conditioned upon Mother not placing the Children at risk again; specifically Mother is not to leave children alone without direct adult supervision. If Mother violates this order the Court will not hesitate to
remove the Children from her care."
On April 25, 2016, the Court issued a final Letter, Decision and Order on Father's Petition to Modify Custody, continuing joint legal custody but switching primary residential placement of Children to Father. Mother's visitation was set at "every other weekend from Friday after school until Sunday at 7:00 pm," and every week "from after school on Wednesday until Thursday morning." The Court also expressly directed Mother to "not leave Children alone in the home for any period of time for any reason." As bases for finding that continuing Mother's primary residency would endanger Children's physical health and significantly impair their emotional development, the Court made the following findings: Mother regularly left her four children home alone; Mother "fails to grasp the seriousness of leaving Children alone to care for infants;" and, "the Court's original concerns regarding Mother's physical punishment of Children, violent temper and Mother's consistent inability to bring the Children to school in a timely manner have continued" since the issuance of the March 2015 initial custody order. The Court also directed that Children "continue in counseling until recommended otherwise by their current therapist," and "continue to attend St. Cornelius Catholic School."
On November 22, 2016, Father filed a Petition - Rule to Show Cause ("RTSC") against Mother. On January 20, 2017, Father filed a Motion and Affidavit for Emergency Ex Parte Order with regard to his herein Petition RTSC, wherein he alleged that Mother "refuse[d] to release" DJ to Father and that she had kept DJ out of school since December 22, 2016, both in violation of the Court's April 2016 Order. Following a January 27, 2017 teleconference on the Motion, Chief Judge Newell issued a Letter, Decision, and Order on January 31, 2017, wherein he found that, because both DJ and V----- expressed to DFS on December 19, 2016 no fears or concerns with residing with Father, Mother was currently under investigation with DFS regarding allegations concerning Children while in Mother's care, and Mother had no petition pending to modify the Court's April 2016 Order, Mother was required to "immediately return [DJ] to St. Cornelius and to Father's care" (bold-face used by the Chief Judge). Chief Judge Newell also expressly called on law enforcement agencies to assist in the enforcement of his order if necessary.
Shortly after the issuance of the Chief Judge's January 2017 Order, Mother filed a Petition to Modify Custody Order on February 8, 2017, again well within two years since the Court's last order on custody thereby invoking the heightened 13 Del. C. § 729(c)(1) standard described below. That same day, she also filed a Motion and Affidavit for Emergency Ex Parte Order. In her Petition and companion Motion, Mother alleged, inter alia, that Father has failed to regularly administer DJ's ADHD medication, Father has caused the boys to miss various physical and mental health appointments, and "Father and his family have threatened the boys with physical harm if they do not lie about [Mother], and have continued to engage in emotionally manipulative behavior to the great detriment of both boys." Chief Judge Newell denied Mother's Motion on February 9, 2017.
On February 14, 2017, Father filed another Motion and Affidavit for Emergency Ex Parte Order with regard to his herein Petition RTSC, wherein he alleged that Mother still had not returned DJ to Father's care or sent DJ to school despite the Court's January 31st Order. Chief Judge Newell denied Father's Motion on February 15, 2017 but directed the parties to "strictly comply" with the Court's April 2016 Order.
On March 30, 2017, following a full hearing, the Court issued a Letter, Decision, and Order with regard to Father's herein Petition - RTSC filed on November 22, 2016. Despite Mother's protestation that she was incapable of following the Court's April 25, 2016 Custody Modification Order because of DJ's refusal to return to Father's care, the Court found Mother in contempt because there was "sufficient evidence that Mother has not appropriately encouraged [DJ] to reside with his Father and that her attitude undermines DJ's relationship with his Father." The Court deferred judgment on how Mother could purge herself of this contempt and what, if any, sanctions were warranted until the Court concluded a full hearing on Mother's Petition to Modify Custody Order. However, the Court did, at that time, instruct the parties to complete a custody evaluation, at Mother's expense, in order to assist the Court in determining DJ's best interests going forward and what would be necessary to repair DJ's relationship with Father. The Court also temporarily paused Father's right to pick-up DJ from school or initiate contact, but not DJ's right to initiate contact with Father, and encouraged the parties to set up therapeutic reintroduction contact between Father and DJ facilitated by DJ's therapist. Finally, the Court directed Mother to immediately return DJ to school.
In advance of a final hearing on both Petitions, the Court held a case management conference with the parties and counsel on October 26, 2017 during which the parties reported that the therapy between Father and DJ, started following the Court's March 2017 Order, had been discontinued. In an Order issued following the conference, the Court instructed Mother that it was "incumbent that she see that the therapy sessions between Father and [DJ] resume."
The Court held days one and two of the consolidated hearing regarding Father's RTSC and Mother's Petition to Modify Custody on February 8 and February 9, 2018. Testimony was taken from: DJ's therapist (at the time), Kelsey Smith; DFS investigation worker, Yvette Pittman; Children's paternal grandfather, J----- F------- (hereinafter "Paternal Grandfather"); Children's maternal grandmother, M---- D----- (hereinafter "Maternal Grandmother"); V-----'s therapist, Robert Blaine Morris; DJ's former therapist, Donald Napolin; Children's paternal grandmother, M------ F------- (hereinafter "Paternal Grandmother"); Father; and DJ's psychiatrist, Dr. Josephine Elia. The Court was not able to hold day three of the hearing until October 26, 2018. At that time, it heard testimony from Mother and rebuttal testimony from Father. The parties were present along with their counsel Ms. Pesin and Mr. Boyer for all three days. Counsel for the parties submitted simultaneous written closing arguments to the Court on December 3, 2018.
After hearing all the evidence, the Court concluded that it did not wish to interview Children, despite the request of both Mother and Father, because, according to the testimony of several witnesses including Mr. Morris and Mr. Napolin, Children have made a regular practice of lying in order to achieve their or their parents' desired goals. As such, the Court has concluded it will place very little weight on the reported statements of Children offered by others, unless those statements are corroborated by other witnesses with first-hand knowledge of the events in question.
Background Facts
Mother and Father were married in July 2006, separated in January 2013, and divorced in February 2014. They have no other children in common. However, Mother has two other minor children Nicholas (DOB 1/--/14) and J--- (DOB 1/--/15) by her live-in domestic partner J--- F------ (DOB 10/26/84).
Mother resides in Newark, DE with DJ, Mr. F------, Nicholas and J---. Mr. F------'s ten-year-old daughter, R----, is also occasionally in the home. As of October 2018, Mother was employed at Flex Global with varying work hours and the ability to work remotely. Mr. F------ has an active Protection from Abuse Order issued against him, prohibiting him from having any contact with R----'s mother except with regard to R----'s visitation exchanges, set to expire on September 6, 2019. Additionally, he and Mother were both arrested on January 6, 2018 on two counts of Endangering the Welfare of a Child and one count of Offensive Touching following a reported physical domestic incident between them with Children present. All three charges were rendered nolle prosequi by the prosecution in March 2018 based on the "attitude of a victim/witness." Mr. F------ also has drug possession, assault and disorderly conduct charges from 2006 that were terminated in his favor. Furthermore, Mother has an active capias for her arrest in Delaware issued on November 7, 2018 for her failure to appear at a jury trial with regard to a pending Shoplifting Under $1500 charge. She also picked up four counts of Endangering the Welfare of a Child in October 2015, during the above-mentioned incident when she left her four children home and joined Mr. F------ at Applebee's for karaoke night, the charges being terminated in her favor.
Her present work location is not known to the Court.
The Order notes that it was "entered after a finding that [Mr. F------] failed to comply with Court Order regarding custody and the immediate return of the child to [her mother]."
Father resides in Wilmington, DE with V-----, and Father's fiancée A------- M---- (DOB 8/2/87). As of October 2018, Father was employed at Capano Residential in Wilmington, DE. Neither Father nor Ms. M---- has a criminal record in Delaware of any concern to the Court.
His present work hours are not known to the Court.
Children previously attended St. Cornelius Catholic School in Chadds Ford, PA until the conclusion of the 2017-2018 school year. They are presently attending Nativity Preparatory School in Wilmington, DE where DJ is in the seventh grade and V----- is in the sixth grade. Additionally, DJ sees Dr. Josephine Elia to manage his ADHD medications, at the current frequency of two or three appointments per year. DJ had four sessions with psychology resident Kristen Smith between October 2017 and January 2018, primarily to address educational and relational issues he was dealing with related to his ADHD. V----- has seen Blaine Morris for therapy sessions since May 2015, and he continues to do so at the rate of one session every one or two weeks. DJ saw Donald Napolin for individual therapy sessions from June 2015 until March 2017, and for family therapy sessions with Father from April 2017 until July 2017.
Although Ms. Smith testified in February 2018 that thereafter DJ might begin seeing Dr. Colleen Cullinan, the Court heard no testimony at the October 2018 hearing that DJ had, in actuality, started seeing Dr. Cullinan.
Modification of Prior Custody Order
In making a determination on a petition to modify custody filed less than two years after the issuance of the Court's most recent custody order, pursuant to 13 Del. C. § 729(c)(1), 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." This heightened standard for petitions to modify custody filed less than two years after the Court's most recent custody order, rather than the standard best interests of the child analysis, is used to limit disruptions to a child's home life.
Pursuant to the Court's April 25, 2016 Custody Modification Order, the parties retained joint legal custody of Children, Father received primary residency, and Mother's visitation was set at every other weekend from Friday to Sunday and every Wednesday overnight. Despite the mandate of that Order, Father has had only two overnights with DJ since January 2017. At present, Mother is requesting that the Court modify the April 2016 Order to joint legal custody with final decision making on medical treatment to Mother, primary residency back to Mother consistent with the initial custody order of March 2015 which this Court subsequently rejected, Father's visitation with V----- shifting to every Wednesday overnight and every other weekend from Friday evening to Monday morning, and Father's visitation with DJ being curtailed except at the recommendation of a therapist. In contrast, Father is requesting sole legal custody, primary residence and that the Court cut off all of Mother's contact with Children until she completes a psychological evaluation and complies with any recommendations therefrom. Following that evaluation, Father is requesting that Mother's reintroduction with Children begin in a therapeutic setting, followed by a gradual increase to regular weekday dinners and weekends at the recommendation of the therapist.
Ms. Pittman testified that, during her investigation into the family, DFS had no concerns with either DJ or V----- being in Father's care, but that she feels that DJ's actions are coming from his feeling of being obligated to please Mother. Mr. Morris testified that he does not believe that cutting off V-----'s contact with Mother would be in V-----'s best interest but that V----- needs his parents to be able to work together with regard to his care. Finally, Mr. Napolin testified that, when he was DJ's therapist, he supported DJ staying with Mother because that was DJ's clear wish but that Mr. Napolin had hoped that "DJ could have visitation with his father and resume the relationship." In contrast to his perception of Father as a "good guy," who was not "as bad or dangerous or scary as DJ" shared about him, Mr. Napolin testified that he had "issues with mom" based on certain unspecified "pretty upsetting" things that she had done.
A. Whether continuing joint legal custody and primary residency with Father may endanger Children's physical health
a. There is insufficient evidence for the Court to conclude that either Father or Paternal Grandfather has inappropriately threatened or disciplined either DJ or V
Mr. Napolin testified that, at some point in November or December 2016, DJ disclosed to him that Paternal Grandparents did not like Mother and that he advised Father of this disclosure. Paternal Grandmother also confirmed that Mr. Napolin informed her that DJ had disclosed to Mr. Napolin that Paternal Grandfather said bad things about Mother to the boys and that Mr. Napolin instructed her to tell Paternal Grandfather to cease doing so, which she says she did. Mother alleged in her Petition/Motion that, subsequent to those disclosures, Paternal Grandfather "got in [DJ's] face" during a December 17, 2016 Christmas concert and told DJ that he "better never tell [his] therapist about anything about [Paternal Grandfather] ever again, or you're going to regret it." However, no testimony to this incident was presented by Mother at trial. Maternal Grandmother testified that she attended the December 2016 Christmas concert and while there noticed that Children were "as cold as ice." She added that some days after the concert the boys disclosed to her that they were acting that way at the concert because of an interaction they had had with Father and Paternal Grandfather. However, Paternal Grandfather and Father both denied that they were present at the concert, and Paternal Grandmother added that while she was present neither Father nor Paternal Grandfather were present as claimed by the boys. Maternal Grandmother also admitted that she did not actually recall seeing Paternal Grandfather at the concert. Additionally, Paternal Grandmother and Paternal Grandfather denied that Paternal Grandfather ever so threatened DJ as Mother has alleged. Therefore, because no persons with direct knowledge of the alleged incident at the concert confirmed under oath that it happened or that Paternal Grandfather was even present at the concert, the Court gives little weight to this allegation in Mother's Petition.
Mother testified that, at some point before Christmas 2016, DJ told her that Father (after finding out about DJ's aforementioned disclosure to Mr. Napolin) grabbed him and dragged him into Father's house and threw him on a couch and threatened him that he was never to say anything negative about Father or Father's family to his therapist. However, Father denied that such an incident ever happened and testified that he has never touched DJ inappropriately. Mr. Napolin confirmed that DJ had told him that Father had pushed him and also that Father had denied that such an incident had ever happened. Ms. Pittman confirmed that she received the same general report from DJ in February 2017 as Mother testified to, but that the investigation was closed with no findings of abuse because of a lack of evidence. Finally, Paternal Grandmother and Paternal Grandfather both reported having no knowledge of Father ever physically disciplining either DJ or V-----, but rather that he used such forms of discipline as timeouts, a loud voice, and/or taking away electronics. Therefore, because no persons with direct knowledge of the alleged incident in Father's home confirmed under oath that it happened, the Court gives little weight to this allegation. Furthermore, even if this singular incident from over two years ago occurred exactly as DJ reportedly described it to Mother, the Court would not likely find it to be a sufficient basis to find that DJ's physical health would be in danger in Father's care going forward, at least in part because there are no other reported incidents of Father's use of excessive discipline as to V----- since then.
b. There is insufficient evidence for the Court to conclude that either Mother or Father has not been meeting Children's medical needs so as to pose a danger to their physical health
Mother also alleged in her Petition/Motion that when DJ was in Father's primary care following the Court's April 2016 Order that Father did not administer DJ's ADHD medications on a regular basis and that Father refused to allow the school nurse to administer DJ's medications. Father denied ever being inconsistent with DJ's medications if he had them available to him. Instead, Father testified that, prior to April 2016, Mother sometimes would not provide Father with DJ's prescription such that Father would not always have medication to provide DJ when he was in Father's care.
Mother also testified that Father missed several of Children's medical and dental appointments after the Court granted him primary residency in April 2016, because he cancelled the appointments that Mother had made prior to the issuance of that order. Without more, the Court can conclude that it is possible Father did so in order to schedule appointments that better fit his availability to transport and/or attend the appointments with Children. On this issue, Mr. Morris further testified that Father consistently took V----- to his therapy sessions until the summer of 2017 when Father stopped bringing V----- and V----- did not resume with sessions until Mother started taking him. Mr. Morris also noted that there have been times when V----- was scheduled for sessions during Mother's weekends, and Mother simply did not show. Father explained the gap in V-----'s attendance overlapped with when DJ started refusing to see Mr. Napolin for family sessions with Father such that Father began allowing Mother to take V----- to his appointments with Mr. Morris because the two counselors work in the same building and Father did not want to make DJ uncomfortable should he see Father in the building.
The parties also choose to litigate other relatively minor issues related to Children's health. First, Father and Paternal Grandmother, contrary to Mother's allegations, both confirmed that V----- is brushing his teeth twice a day when in their care. Second, Mother and Father and Maternal Grandmother disputed whether Father erred in making DJ go to the last day of school at St. Cornelius in 2016 though he was feeling sick the day after he went to a carnival and ate lots of junk food. Third, the parties disputed whether it was Father's fault that DJ suffered a bad sunburn at a 2016 all-day summer camp when Father put a single bottle of sunscreen in V-----'s backpack, and instructed the boys to share the bottle. Fourth, that same summer, the parties disputed whether Father responded sufficiently when he put anti-inflammation cream on DJ's hand after DJ got a bee sting that caused his hand to swell. The Court accepts Father's reported handling of the later three incidents and moreover would not find such singular incidents, even if it found a particular parent at fault, to be so egregious as to form the basis for modifying a custody order.
Finally, the parties litigated whether Mother was providing adequate supervision for Children while they were in her care. Although Father testified that V----- once burned himself at Mother's home when his leg brushed up against a hot crock pot that was sitting on Mother's counter, the Court does not find fault with Mother for such an incident even if it did occur. The parties also disputed the severity of a head injury that V----- suffered during a youth football game in 2017 and whether Mother was delinquent in not taking V----- to the hospital to seek immediate medical attention. With conflicting testimony and without medical evidence, there is no basis for the Court to find that Mother's care of V----- following the incident presented any danger to V-----'s health.
c. There is insufficient evidence for the Court to conclude that Children are at risk of physical harm due to Paternal Grandfather's smoking habits
Mother and Maternal Grandmother both testified that the boys have complained to them about Paternal Grandfather smoking in his truck while Children are present. Paternal Grandfather denied that he has ever smoked in the car while transporting Children from school, but admitted smoking around them sometimes such as when they have been outside riding their bikes. Father and Paternal Grandmother both admitted that Paternal Grandfather smokes in his truck (and that he was primarily responsible for picking the boys up for school in 2016) but denied that he has ever smoked in the car with Children present. As such, because no persons with direct knowledge of Paternal Grandfather's alleged habit of smoking in his car while transporting Children confirmed under oath that it happened, the Court will give little to no weight to this allegation all while noting that the Court disapproves of exposing any children to second-hand smoke in confined spaces likes vehicles.
Mother also testified that she believes Paternal Grandfather may be smoking marijuana around the boys because she said that DJ told her that a smell she identified as marijuana to DJ was the same smell that DJ said he had once smelled in Paternal Grandfather's house. Paternal Grandfather denied ever smoking marijuana around the boys. Therefore, the Court gives little to no weight to this allegation not only because no person with direct knowledge of this incident confirmed under oath that it is occurring but also because, even if DJ did in fact make a statement about the smell in Paternal Grandfather's house, the Court is hesitant to trust that DJ's olfactory senses are so refined as to conclusively determine that what he smelled at Paternal Grandfather's house was in fact the smell identified by Mother to DJ as marijuana.
Although Paternal Grandfather admitted to once leaving a lit cigarette outside on his front step while he went inside momentarily, the Court while finding fault with Paternal Grandfather for the fact that V----- accidentally put his hand down on the lit cigarette, as it should not have been there, the Court has little basis for concluding that Paternal Grandfather inappropriately handled the situation after discovering that V-----'s had suffered a cigarette burn.
d. There is insufficient evidence for the Court to conclude that Mother continues to pose a danger to Children's physical health by leaving them unattended, exposing them to domestic violence or by inappropriately disciplining them
As previously mentioned, Mother and Mr. F------ were both arrested on January 6, 2018 on two counts of Endangering the Welfare of a Child and one count of Offensive Touching following a reported physical domestic incident between them with Children present. All three charges were rendered nolle prosequi by the Department of Justice in March 2018 based on the "attitude of a victim/witness." Following a January 6th bail hearing in that matter, Mother was "ordered to have no contact, direct or indirect" with DJ, V----- and Mr. F------. The no contact order remained in place until February 1, 2018 when it was changed to no unlawful contact with DJ, V----- or Mr. F------. There are no current prohibitions on their contact. Because there were no convictions stemming from this reported incident, the Court will not consider this alone as evidence that Children's physical health is in danger. However, the Court is concerned that, according to the police report, neither Mr. F------ nor Mother denied that any domestic incident occurred. Furthermore, the creation of a situation resulting in a police response and arrest of parents can nevertheless be a traumatic event to children exposed to the occurrence, even in the absence of any resulting criminal conviction.
In addition to the above reported incident involving Mr. F------ and Mother, Ms. Pittman testified that DFS received a November 23, 2016 hotline report that Mother had dragged V----- by his hair or ear and also choked him, which V----- confirmed on December 19, 2016 during Ms. Pittman's visit with V-----. Father's Ex. #1. Father also testified that V----- told him on November 20, 2016 that Mother had choked and berated him over the past weekend. On January 11, 2017, Ms. Pittman received another report, this time from St. Cornelius School, that V----- was afraid to go home to Mother. Father's Ex. #1. Father added that he believes that V----- was afraid due to Mother's general physical abuse of the boys as well as her use of sleep deprivation, yelling and emotional abuse. Father also testified that, when Mother heard about the January 11th call to DFS, he believes she berated Children for several hours. However, because no persons with direct knowledge of the alleged incidents other than Children confirmed under oath that they happened, the Court will give little weight to these allegations.
As part of that same November 23, 2016 hotline report, DFS also received an allegation that Mother had left Children and their two younger brothers unattended in the car for about two hours while she was at church and that she had left them unattended at home on another occasion. Father's Ex. #1. Ms. Pittman testified that, during her December 19, 2016 interview with them, Children confirmed to her that these incidents had occurred. However, Ms. Pittman testified that DJ later informed her in February 2017 that Mother had not left them unattended at home (because she had been outside with Mr. F------ the whole time) or at church (because he claimed she could see them from a window of the church while they were left in the car), and that Mother had also told her that she could see them in the car through a church window. Although DFS closed its investigation in these reports of Mother leaving Children unattended because it did not have enough evidence to substantiate Mother, Ms. Pittman testified that she believes that Mother's risk level, from a DFS perspective, as to her care of Children was "moderate to high" at that time.
Mother and Maternal Grandmother both alleged, without direct knowledge of the incident, that Children confirmed these alleged incidents to Ms. Pittman in December 2016 of Mother leaving Children unattended because they felt threatened by Father that they had to confirm the incidents. However, Ms. Pittman did not report any concerns about Father's presence in the other room while she was speaking to Children. Mother also testified that Children and their two younger brothers were not out of her eye sight during the alleged incident at the church from November 2016. Instead, she said she parked near a side entrance to the church and thereafter held the door open to inform the organist that she was prepared to sing mass all the while waiting for Maternal Grandmother to arrive about five minutes later. Maternal Grandmother also testified that she was only five minutes away from the church in November 2016 when Mother informed her that she had parked in order to enter the church, that Mother had the church door open when Maternal Grandmother arrived, and that Mother was only 100 feet away from the four boys in the car.
Based on Mother's and Ms. Pittman's testimony it is unclear to the Court if there was an alleged five-minute episode when Mother held the door and a separate episode when Mother reportedly monitored Children through a window in a door, or if there was only one church incident with muddled facts. In response to the alleged window-viewing episode, Paternal Grandfather testified that V----- later showed him where the car was parked and Paternal Grandfather observed that there was no window on the alleged door. Paternal Grandmother also testified that the choir entrance to the church does not have any windows on the door and that it would have been impossible for Mother to see the car through any windows on that side of the church. Paternal Grandmother also reported that in response to DJ telling her he had lied to DFS that V----- was adamant to her that the two-hour incident had in fact happened. The Court is mindful that even when intending to be truthful, children's perceptions of time may differ greatly from the reality of the situation.
In addition to the above reported incidents of Mother leaving Children unattended, Mr. Morris also generally reported, without offering specifics, that V----- has told him multiple times about being left unattended by Mother and that these incidents upset V-----. However, Mother denied ever leaving Children out of her eyesight at church and no one with direct knowledge of the incident(s) presented conflicting testimony aside from the reported statements of Children that DJ has since retracted but V----- has maintained. Furthermore, the Court takes judicial notice that the PFA that Father filed against Mother on behalf of Children in part due to the aforementioned allegations of abuse and being left unattended was denied by a Commissioner of the Court because Father "failed to prove abuse by a preponderance of the evidence" at a hearing on January 20, 2017. Finally, because Children are now twelve and eleven years old, and there were no specific reported incidents of Mother leaving Children unattended in 2017 or 2018, the Court finds that there is insufficient evidence, even with Mother's past admissions, that Mother's habit of leaving the Children unattended is continuing into the present in a way that poses a current danger to their physical health.
Therefore, the Court finds that there are insufficient grounds by which the Court could conclude that continuing the custody and visitation arrangement as laid out in the Court's April 2016 Order may endanger Children's physical health. As a result, this factor supports the continuation of joint custody and primary residence of both boys with Father.
A. Whether continuing joint legal custody and primary residency with Father may significantly endanger Children's emotional development
By way of background, Father testified that DJ has always been emotionally closer to Mother since the parties separated in 2013, and the parties agreed that DJ was upset when Father got primary residency of Children following the Court's April 2016 Order. Mother added that the change to primary custody with Father was very stressful for both boys. However, Father also testified that DJ never refused to return to Father's residence after DJ's weekends with Mother or exhibited any fear of Father until December 2016. Paternal Grandmother added that DJ was initially apprehensive about the change of primary residency because he missed Mother but that after two months DJ was back to his "normal self."
a. There is insufficient evidence for the Court to conclude that Father and Paternal Grandparents have engaged in manipulative behavior that may significantly endanger Children's emotional development
Mother testified that, in the day or two following Children's interview with DFS in December 2016, Children disclosed to her that Father and Paternal Grandparents had been pressuring them to tell lies about Mother and her family to DFS and their therapists, and/or generally saying bad things about Mother and family. Mother and other witnesses cited various incidents about which the Children reportedly told them. First, Mother testified that Paternal Grandfather has told Children that Mother and her family are all sociopaths, and that Mother steals things and belongs in jail. Both Paternal Grandfather and Paternal Grandmother denied ever saying such things to Children. Rather, Paternal Grandmother testified that it was Children who told them that Mother steals things. However, Paternal Grandmother and Paternal Grandfather did both admit that Paternal Grandfather once told Children that he would tell them about all the bad things that Mother had done when they were older Although the Court notes that since that reported incident Mother picked up a Shoplifting Under $1500 charge on January 6, 2018 for allegedly taking clothing from a Kohl's department store without payment, for which she has an active capias for her arrest for failing to appear at a jury trial in that matter, the Court does not believe that Children benefit emotionally from being told about criminal charges facing their parents. The Court also does not believe there is enough evidence that anything Paternal Grandfather has disclosed to Children in the past poses significant harm to their emotional health from henceforth.
Second, Mother and Maternal Grandmother testified that Children have told them that Paternal Grandfather has been tempting Children with milkshakes from Arby's if they "dig up dirt" on Mother and tell people about the bad things done by Mother. Paternal Grandfather admitted his history of using milkshakes on a weekly basis as a reward for when Children do well in school, but denied ever offering such a reward if they "dug up dirt" on Mother. Similarly, Mother and Maternal Grandmother testified that Children told them that Paternal Grandmother and/or Paternal Grandfather have offered them the reward of an Xbox if Children did something that pleased the grandparents. Both Paternal Grandmother and Paternal Grandfather denied offering an Xbox if Children said bad things about Mother. Therefore, because no persons with direct knowledge of these two alleged practices of rewarding Children for improper behavior confirmed under oath that they happened, the Court will give little weight to these allegations.
b. The familial chaos of late December 2016 through late March 2017 had a significant strain on both DJ's and V-----'s emotional development
It is uncontroverted that the events of late December 2016 to late March 2017 caused considerable emotional strain on both V----- and DJ. For whatever reason, DJ's fear of returning to Father's home was so strong that he refused to return to school on the first day back from Christmas break in January 2017 or any day thereafter for three months (except for two days in February), and he had a panic attack at times when he was faced with the prospective of returning to Father's care.
Furthermore, the five or more times that Father unsuccessfully utilized police assistance to try to return DJ to his care during the first three months of 2017 only added to the distress both boys felt rather than brought any resolution or stability to the custodial arrangement. Just because the Court invited police assistance in the return of DJ to Father's home in its January 31, 2017 Order, that does not somehow absolve either Father or Mother of the strain that these attempts caused both boys when the attempts became contentious, and sometimes even played out in DJ's own bedroom. Of those interventions, the parties and their witnesses devoted lengthy testimony to the events surrounding the only successful police intervention of February 13, 2017 that occurred during a scheduled appointment DJ had with Dr. Elia. Mother, Maternal Grandmother and Dr. Elia all described their and DJ's interactions with the police as very traumatic, with Maternal Grandmother going as far as to claim that DJ was treated like a "criminal." In contrast to Maternal Grandmother's belief that DJ repeatedly stated he did not want to return to Father's home, Ms. Pittman testified that DJ was ultimately willing to return with Father. Therefore, after all the heightened tension, DJ ultimately left the appointment with Father. Based on the recurring nature of these police interventions alone, it is not at all surprising that both Mother and Maternal Grandmother testified that DJ was in a much better emotional state in 2018 than he was between December 2016 and March 2017.
As will be discussed in more detailed below, V----- also suffered through this unstable period both through witnessing his brother's decision to cling to Mother and refuse to return to Father, and through V-----'s own experience of having to go back and forth between two households very much at odds with each other.
c. The rare contact that DJ has had with Father since January 2017, outside of a therapeutic setting, has not been inappropriate
Father's first substantial contact with DJ, after DJ began refusing to return to Father's residence in January 2017, came on February 13, 2017. With the assistance of DFS and the New Castle County Police, DJ returned to Father's home after an appointment with Dr. Elia. Father admitted that DJ seemed nervous leaving with Father but Father did not report any other concerns while DJ was in his care the next two overnights.
According to Father, this was the only time out of five attempts that Father's utilization of police assistance led to a return of DJ to his care since January 2017.
The next day, a Tuesday, Father sent DJ and V----- together to school. This was the first day DJ had been to St. Cornelius since December 21, 2016, a period of almost two months while exclusively in Mother's care. After school, Ms. Pittman visited with DJ and V----- at Paternal Grandparents' home on February 14, 2017 and found both boys to be happy and interacting well, with no stated concerns from DJ about being back in Father's care. Thereafter, Father picked both boys up and took them to his home. While they were home together, Father testified that he tried to make DJ feel welcome and relaxed in the home. In contrast, Mother testified that DJ called her from the bathroom, whispering and crying, that he wanted to go home because Father was acting weird. Aside from that generalized statement, Mother presented no evidence as to any interaction between Father and DJ in Father's home.
The day after that, a Wednesday, Father sent DJ and V----- together to school again. After school, the boys returned to Mother's home because that was her scheduled overnight with both boys. The next day, Mother and Maternal Grandmother testified that Mother tried to transport DJ back to school but that he had a panic attack so she relented and did not require that DJ go to school. DJ would not return again until Mother sent him back on April 4, 2017, almost two months later.
Other than those two nights in February 2017, and failed attempts at police-assisted returns to Father's care, Father did not have any other contact with DJ from January through March 2017. Furthermore, after the Court's March 2017 Order paused Father's right to initiate contact with DJ, Father has only had passing contact with DJ either in person or over the phone aside from a few months of therapy sessions with Mr. Napolin, at least in part, because Father was under the impression that DJ did not want him to attend any of DJ's sporting events. Of those rare interactions, Father has seen DJ a few times at V-----'s baseball games wherein they had brief exchanges related to buying cupcakes, being safe in a batting cage, and providing camping gear for DJ's use. Furthermore, there was a brief interaction at one of V-----'s football games when Father offered DJ some crabs that Father had caught. Finally, in October or November 2017, DJ surprised Father by coming in to Father's residence with V----- on one of V-----'s exchange days, showing Father the snake DJ had caught and asking Father questions about caring for the snake. Father added that during this brief interaction with DJ that DJ did not seem upset to be around Father or in Father's home, and that DJ seemed like he was acting naturally. In contrast, Mother testified that it took all her and V-----'s efforts during the drive over to Father's house to encourage DJ to try to engage Father. As such, there are no reports that Father's contact with DJ since January 2017 has been inappropriate or that it has negatively impacted DJ's emotional health in any way.
d. Mother has failed to ensure that DJ engage in counseling with Father despite the Court's instruction to do so in its March 2017 Order
As directed in the Court's March 2017 Order, DJ and Father began therapeutic reunification sessions in April 2017 with DJ's then therapist, Mr. Napolin. Initially, it was just Father and DJ together. Then Mr. Napolin permitted Mother to participate as well. However, these sessions were halted in July 2017 at DJ's election because DJ refused to participate in sessions without Mother being present in the room, Mr. Napolin realized that he wanted Mother to stop participating in the sessions, and as such DJ no longer trusted Mr. Napolin. In his testimony, Mr. Napolin praised Father's efforts in the sessions and placed no blame on Father for the cessation of the reunification efforts.
Thereafter, in an Order issued following an October 26, 2017 case management conference, the Court instructed Mother that it was incumbent that she see that the therapy sessions between Father and DJ resume. However, despite this directive, no such reunification sessions have occurred. At the time of the hearings, the only therapy DJ was receiving was from Kelsey Smith, a psychology resident at AI duPont Hospital. By February 2018, Ms. Smith had had four sessions with DJ, all attended by Mother but never by Father. According to Ms. Smith, the primary focus of the sessions was to provide support to DJ for his ADHD and how it was impacting his school work and friendships, and was not designed to address reunification with Father. As such, there was very limited discussion of DJ's relationship with Father or DJ's prior participation in therapy sessions with Father. Ms. Smith was not even aware of the specific focus of DJ's previous sessions with Mr. Napolin. Furthermore, Ms. Smith, not feeling it was important for Father to be present at the sessions due to the focus of the sessions on DJ's ADHD, never followed up with Father either before or after sessions. Following the testimony of Ms. Smith, the parties placed blame on each other for both the failure to involve Father in DJ's sessions with Ms. Smith and the failure to restart reunifications sessions between DJ and Father with Mr. Napolin or any other therapist. See also Father's Ex. #6. Mother also admitted that her purpose for finding Ms. Smith was because DJ had told Mother that he wanted to resume sessions to address his ADHD and socialization issues which he had done with Mr. Napolin prior to initiation of the family sessions with Father. However, the Court was clear in its October 2017 Order that the onus was on Mother to resume reunification sessions between Father and DJ, regardless of what communication did or did not occur between the parties thereafter. Therefore, the Court finds that Mother was solely responsible for the failure of these sessions to resume. It is clear that at no time has Mother expended any effort to have DJ engage in therapy designed to foster reunification with Father, has not encouraged DJ to do so nor provided any therapist with information that would be helpful for that purpose.
e. Mother has a long and troubling history of failing to transport Children to school on time
During their 2016-2017 school year at St. Cornelius, V----- was absent four times and tardy eight times, and DJ was absent sixty-three times and tardy eighteen times. In the first full week of school immediately following the Court's March 30, 2017 Order directing DJ to return to school, DJ was absent twice and tardy once. In the thirty-seven remaining days of the 2016-2017 school year, when Mother had sole responsibility for getting DJ to school, he was absent three times, and tardy thirteen times. During the 2017-2018 school year at St. Cornelius, V----- was only absent seven times and tardy sixteen times, whereas DJ was absent thirty-three times and tardy sixty-four times. Father's Ex. #10. During the first quarter of the 2018-2019 school year at Nativity Prep, V----- had no unexcused absences and no unexcused tardies, whereas DJ had one unexcused absence and two unexcused tardies. Mother's Exs. #4 and 5. Father testified that V----- has perfect attendance in 2017-2018 in Father's care and that his tardies all occurred on Mother's Thursday mornings. Father added he believes that Mother's lateness is not beneficial for either boy's school day success because neither boy likes entering class late and attention being focused on them by their peers and teacher. The attendance record that is most troubling to the Court is from DJ's 2017-2018 school year when Mother was responsible for all transportation. Regardless of the child, it is clearly harmful to a child's development to be so inconsistent in attending school on time if at all. While the Court agrees with Mother that DJ's attendance during the 2018-2019 school year at Nativity Prep was much improved from the prior year, the Court is not convinced that Mother has cured her failings on this issue that has been an ongoing theme in this case from 2015 through the 2017-2018 school year.
f. There is insufficient evidence for the Court to conclude that Children's school performance in either household or DJ's extended period of being home schooled in early 2017 is causing or has caused significant harm to their emotional development
Each parent devoted extensive testimony to the failings of the other or the other's parent to sufficiently supervise and encourage the academic progress of the boys while the boys are in their respective care. While such discussions enlightened the Court's best interests of the children analysis in 2015, the Court does not find that any of the allegations demonstrate that Children's emotional development is in danger because of how much support and supervision Children have to complete their homework and perform to the best of their ability in the classroom. That is, in part, because the testimony of each parent focused on such things as how smart the boys are, whether there was a nefarious reason for why their grades dropped for a short period in the fall of 2016, and if the boys are capable of achieving higher marks on their homework and exams, rather than on what impact Children's performance has had on such things as their sense of self-worth. Furthermore, although Father expressed concern that V----- was on the receiving end of what he characterized as "reverse racism" at his current school, Father placed no blame on Mother for enrolling Children at Nativity Prep nor did he testify that under a different custodial arrangement that he would send Children to a different school. Finally, the Court finds the issue of DJ's homeschooling from January 2017 to March 2017 to be moot under this analysis because there is no allegation that DJ would return to that arrangement again in order to avoid a possible return to Father's primary care.
g. V-----'s and DJ's relationship with each other has suffered during the period that they have not been maintaining the same residential schedule
Mr. Morris testified that a clear tension exists and has heightened between V----- and DJ during the last two years, and that V----- would significantly benefit from any progress made toward family reunification. Whereas Mr. Morris characterized V----- as on a "battlefield" between warring parents, Mother later described V----- and DJ being on opposite sides of the battlefield, one on Mother's side and the other with Father. Although Mother recognizes that V----- wants to be reunited with DJ, she added that she believes the boys are in conflict over V-----'s attempts to get DJ to return to Father's care. Mother further stated that this period of separation has never been normalized for V----- despite the brothers continuing to share in extracurricular activities like acting and Boy Scouts. Father also expressed concern about the long-term implications on V----- and DJ's formerly good relationship if they do not mend the obvious strain in their relationship now by returning to the same residential placement schedule.
h. V-----'s overall emotional well-being has suffered since December 2016
Mr. Morris testified that V----- does not have a true mental health issue but simply that his moments of anger and aggression are a reaction to the "craziness" he has experienced in the two households. Paternal Grandfather stated that he feels that part of V-----'s anger is due to his failure to understand why he has to continue to return to Mother's and Mr. F------'s care. Whereas the parties agree with Mr. Morris that significant harm has been done to V-----'s emotional and behavioral development in the last two years, the parents disagree on the cause of that harm; that is, they blame each other. Father testified that V----- is treated like a "pariah" in Mother's home because he continues to go back and forth between households consistent with the Court's April 2016 schedule whereas DJ resides exclusively with Mother. Father also generally described V-----'s behavioral problems of late as more severe but less frequent. In contrast, Mother characterized V----- as a boy who has had behavioral issues since he was 2 that will continue down a "very negative path" if he continues to reside primarily with Father toward the possibility of jail or juvenile delinquency. The parties and their witnesses focused on a few specific instances that have occurred as evidence of V-----'s emotional state. First, V----- hit a girl during an afterschool program at St. Cornelius that resulted his suspension from participating in that program. Second, Father and Maternal Grandmother both testified that V----- has threatened self-harm. Third, Mother testified that V----- gets in fights with kids at camp and even now at Nativity Prep leading to suspensions or detention. In contrast to the generally negative testimony about how V-----'s emotional state and behavior, Paternal Grandmother testified that she believes his behavior has improved in the last year and that he is happier now than in the past.
i. Mother and Father's contentious relationship is causing significant harm to Children's emotional development
The parties devoted considerable testimony to the many ways that they have argued over issues ranging from the extracurricular activities the boys will participate in to when each parent will take their vacation to how to get reunification therapy restarted with Father. For example, in August 2017, they argued over whether V----- should do football or hip hop dance. Father's Ex. #8. They also argued in July 2017 over how long Father could take both boys to Ocracoke, NC. Father's Ex. #4. They argued in December 2017 about who was responsible for paying the $300 balance before therapy sessions could resume with Mr. Napolin. Additionally, the time and location of V-----'s Sunday exchanges continue to be an ongoing source of tension between the parties. It is clear to the Court that Children are suffering as their parents' demonstrate an ability to create an argument out of virtually anything, as well as subject children to nearly continuous litigation in Family Court since March 2015. Furthermore, Children have had to see Mother be arrested once for a physical incident with Father at the Hockessin Athletic Club in May 2016, and once after Father called the police when Mother left them home alone to go to Applebee's in October 2015. Mr. Napolin testified to the specific toll this October 2015 incident has had on Father's relationship with DJ. After the Court gave Father primary custody of Children in April 2016, at least in part due to the October 2015 incident, Mr. Napolin said that DJ turned against Father and minimized the fact that Mother had left them alone. If Mother and Father cannot find a way to coexist in a civil manner soon without invoking the assistance of the Court or police, this ongoing strife will no doubt have an untold strain on both DJ and V-----, with potentially dire consequences.
Therefore, the Court finds that there are insufficient grounds by which the Court could conclude that continuing the custody and visitation arrangement as laid out in the Court's April 2016 Order may significantly impair Children's emotional development. As a result, this factor supports the continuation of joint custody and primary residence of both boys with Father. However, the demonstrable negative attitude each parent harbors toward the other leads the Court to doubt if they are capable of the type of rational communication necessary to make joint decisions as to the welfare of their children.
Rule to Show Cause
Previously, on March 30, 2017, the Court found Mother in contempt of the Court's April 25, 2016 Custody Modification Order. Therefore, the Court restricts its discussion herein to how Mother may purge herself of this contempt as well as what, if any, sanctions are appropriate in light of the above discussion regarding Mother's request for custody modification. In considering what sanctions may be appropriate, Court receives guidance from, but is not limited to, the non- exhaustive list of five possible remedies or sanctions set out in 13 Del. C. § 728(b):
Following the list of five possible remedies or sanctions, 13 Del. C. § 728(b) indicates, in relevant part, that: "the Court may impose such other sanctions or remedies as the Court deems just and proper to ensure the maintenance in the future of frequent and meaningful contact between parent and child and participation by both parents in the child's upbringing if the parents have joint legal custody." --------
(1) Extra visitation with the child to enable the child to make up any wrongfully denied visitation with a parent;
(2) A temporary transfer of custody or primary residence or both of the child to a parent applying for relief under this section for up to 30 days without regard to the factors set forth in § 729 of this title;
(3) A surcharge to be assessed against the parent with rights of visitation with the child or children for his or her unilateral failure, without just cause and/or without sufficient notice, to comply with the visitation schedule. Failure to comply consists of more than minimal violations, such as, but not limited to, slight alterations in the times for visitation. The amount of the surcharge shall be up to 10 percent of the visiting parent's monthly child support obligation for each violation and shall be payable to the parent with whom the child resides or children reside;
(4) A fine in the discretion of the Court; or
(5) A term of imprisonment if a person is found to be in contempt of prior orders of the Court.
Father has only had two overnights with DJ since January 2017 despite the Court giving him primary residency of both DJ and V----- in April 2016. Simply giving Father "extra visitation" under 13 Del. C. § 728(b)(1) would be an insufficient remedy to address Mother's long-running and continuing violations in this case. Finding a solution requires more than just making up for lost time but primarily to impose a remedy or sanction that will adequately encourage Father's reunification efforts with DJ without Mother's continuing undue interference. For the last two years, Mother has done nothing of substance to promote Father's relationship with DJ. While she may have said she wants to have DJ in a relationship with Father, this is little more than lip service as Mother has repeatedly demonstrated the opposite with her actions. At this stage, therapeutic reunification between Father and DJ remains appropriate. Although it was previously ordered in March 30, 2017, it has been unsuccessful. Mother both thwarted Mr. Napolin's efforts in 2017, by allowing DJ to dictate the terms of the reunification process rather than encouraging DJ to engage with Mr. Napolin on Mr. Napolin's terms, and all efforts since then to resume sessions with either Mr. Napolin or a new reunification therapist. The Court finds that Mother's failure to support therapeutic reunification has been a significant factor in preventing Father's relationship with DJ from moving forward and developing. The Court also finds Mother's present assertion that she will follow a therapist's recommendation to be little more than an empty promise. As such, the Court believes that the removal of DJ from Mother's influence and control is essential in order for there to be any chance to repair the damage done to Father's and DJ's relationship. Therefore, it is in DJ's best interest that he be allowed to enjoy a safe and productive relationship with Father in the absence of an environment in which Mother impedes the development of that relationship. To do this, the Court reluctantly finds it necessary to totally remove DJ from Mother's influence at this time by granting temporary sole custody of DJ to Father, temporarily isolating DJ from Mother's influence, requiring DJ and Father to immediately resume the process of therapeutic reunification to both explore the causes of the parent-child conflict and to work toward its elimination, and reintroducing Mother back into the relationship with DJ in a manner consistent with his emotional well-being.
Furthermore, based on the uncontroverted testimony of how DJ's and V-----'s relationship with each other has suffered over the past two years, the Court believes that V----- must be able to participate along with Father and DJ in this reunification process. Therefore, not only must Mother be prevented from interfering with DJ while he reunifies with Father, but she must also be isolated from interfering with V----- while DJ reunifies with V-----. Although V----- has not exhibited the same hostility toward Father and is viewed as either neutral between the parents or more aligned with Father, he has suffered emotionally in Mother's care as a result and his relationship with DJ is important to this process such that initially the placement should be made to keep both boys together. This does not mean that the therapeutic reunification process between Mother and the children must result in the same recommendation for contact by both boys with Mother but may progress on each child's appropriate timeline and conditions as the chosen therapist deems best for each individual boy as well as for fostering their sibling relationship.
After two years of Mother's interference with reunification efforts, the Court also reluctantly finds that the only way to prevent Mother from interfering with Father's reunification efforts is to sentence Mother to a period of imprisonment under 13 Del. C. § 728(b)(5). While this conclusion may result in a brief period during which Mother is physically separated from Children, the Court does not intend to keep Mother from her children and remains optimistic that Mother will someday soon participate in a meaningful reunification program with Children once she has first identified and addressed her own mental health needs by completing a psychological evaluation, complying with any recommendations therefrom, and beginning sessions with the reunification therapist. With this optimistic hope, the Court will suspend this imprisonment upon Mother meeting certain conditions.
Finally, pursuant to the Court's April 25, 2016 Custody Modification Order, Father has been solely responsible for paying for Children's education, and Mother did not adequately encourage DJ to attend St. Cornelius School, especially from the beginning of January 2017 until the end of March 2017. During that period, he missed fifty-six days of school. Despite the issuance of Chief Judge Newell's Order of January 31, 2017 directing Mother to "immediately return [DJ] to St. Cornelius," Mother did not return DJ to school until after the issuance of the Court's March 30, 2017 Order. During the remainder of DJ's 2016-2017 school year from April to early June, when Mother had sole responsibility for getting DJ to school, DJ missed an additional five days of school for a total of sixty-one days absent from January 4, 2017 to the end of the school year. Therefore, Mother shall be financially responsible for reimbursing Father on a pro-rated basis for the tuition he paid to St. Cornelius when DJ was not attending school during that school year. According to Father's attorney, during the 2016-2017 school year, tuition was approximately $35 per day for a total of $2,135 for the missed days. ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:
1. Mother's Petition for Modification of Custody Order filed on February 8, 2017 is DENIED.
2. Mother, A------ D-----, and Father, D------- F-------, shall continue to have joint legal custody of their minor children, D------- F------- Jr and V----- F-------, and Father shall continue to have primary residency.
3. Effective immediately, D------- Jr shall return to Father's care pursuant to this Court's April 25, 2016 Order. If necessary, any law enforcement agency is authorized, empowered and directed to assist in the enforcement of this provision and Order.
4. Mother is hereby sentenced to a period of imprisonment with the Department of Corrections, due to her ongoing contempt of the Court's Orders of April 25, 2016 and January 31, 2017. The Court hereby suspends Mother's imprisonment unless Mother fails to comply with the other express provisions of this Order. If Mother fails to comply with this Order, the Court will terminate the suspension of Mother's sentence and order ex parte Mother to immediately begin her period of imprisonment upon Father's sworn application that Mother is again in contempt of an order of the Court.
5. The Court hereby suspends Mother's visitation with both D------- Jr and V----- until she engages in reunification counseling with a licensed Delaware counselor per paragraph 17 below. This suspension shall encompass all forms of contact including, but not limited to, written, electronic, video, voice and in-person. During this time, both children shall reside exclusively with Father, Father shall have temporary sole legal custody of both children, and Mother's decision-making authority as a joint custodian shall be suspended until her unsupervised visits with Children resume. Father may notify the boys' school that Mother is prohibited contact, although she shall continue to be entitled to receive all reports issued by the school.
6. Mother shall also complete a psychological evaluation with a licensed psychologist of her choosing and comply with any recommendations issued therefrom. Mother shall be solely responsible for the cost of her evaluation and any recommendations issuing therefrom.
7. Once Mother has been to three (3) visits with the reunification counselor and Mother has completed all recommendations issuing from the psychological evaluation, the counselor shall speak with her psychologist to determine an appropriate schedule for supervised visitation with Mother and Children in the counselor's office. Once Mother's psychologist and the reunification counselor feel that it is appropriate, a phase in of Mother's visitation shall be based upon their collective recommendations, not to exceed the visitation granted to Mother in provision 8 below.
8. Once Mother has completed all phases of her therapeutic reunification with Children as recommended by the reunification counselor and her psychologist, the parties shall return to joint legal custody and Mother shall return to having unsupervised overnight visitation with Children every other weekend from Friday after school until Sunday at 7:00 PM and every week from Wednesday after school until Thursday morning. All Sunday exchanges shall timely occur at Father's residence, with transportation provided by Mother. Mother may not return the children late without Father's express permission. On Mother's Thursday mornings, she must ensure that the children attend and are on time to school.
9. If Mother has completed all phases of her therapeutic reunification with Children as recommended by the reunification counselor and psychologist prior to the start of Children's 2019 summer vacation and any subsequent summer vacation, Mother shall have three (3) full non-consecutive weeks for summer vacation. Mother is to designate her weeks no later than May 1st. Weeks shall run from Friday night at 7:00 PM to Friday night at 7:00 PM. If Mother does not designate her three full weeks before May 1st of any given year, Father shall be permitted to schedule his vacation at any time he chooses that does not otherwise interfere with Mother's regular visitation schedule of every other weekend and every Wednesday. Mother may nevertheless have three full non-consecutive weeks of summer vacation with the boys so long as her weeks do not conflict with Father's. Father shall be entitled to phone and/or video communication with each child at reasonable times during their extended summer stays with Mother.
10. Holidays : If Mother has completed all phases of her therapeutic reunification with Children as recommended by the reunification counselor and psychologist and the parties
cannot reach a mutual agreement, Father shall have Children on the holidays in column 1 in odd-numbered years and the holidays in column 2 in even-numbered years. Mother shall have Children on the holidays in column 1 in even-numbered years and the holidays in column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holidays | 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 9:00 AM until 6:00 PM the day of the holiday. Halloween contact shall begin at 5:00 PM and end at 9:00 PM on Halloween. Christmas Eve contact shall begin at 6:00 PM on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6:00 PM 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 after school on Friday until 6:00 PM Monday.
11. Mother's/Father's Day : On Mother's Day and Father's Day, no matter whose turn for contact, Child shall be with the parent whose holiday is being celebrated from 9:00 AM until 6:00 PM. This provision, as to Mother's Day, does not come into effect until Mother has completed all phases of her therapeutic reunification with Children as recommended by the reunification counselor and her psychologist.
12. The parties may by mutual agreement in writing modify the terms of Mother's visitation with Children.
13. A $5 per day surcharge shall be assessed against Mother for all future unilateral failures, without just cause and/or without sufficient notice, to comply with the visitation schedule, including, but not limited to, late return of the children to Father's residence following her weekend visitation, or late arrival at school on the mornings following her overnights with the children.
14. Mother shall repay Father $2135, the value of sixty-one days of tuition at St. Cornelius at the 2016-2017 tuition rate, for the time DJ did not attend school when he was in Mother's exclusive care. If the parties cannot agree on a repayment schedule, Mother shall pay Father at least $300 per month, on the first of each month beginning April 2019, until the amount is repaid in full.
15. Father and DJ, and as determined appropriate by the reunification counselor, V-----, shall resume family therapy sessions immediately.
16. Father and Mother shall utilize the same reunification counselor with regard to their therapy sessions with Children going forward, unless the counselor determines that to do so would present a professional conflict of interest. However, Mother and Father are both prohibited from participating in the other parent's sessions with that counselor, unless at the request of the counselor.
17. Within 30 days, Father shall provide Mother with a list of three counselors for Mother's eventual reunification with Children and Father's family therapy with DJ (and perhaps, V-----). Within 15 days of her receipt of Father's list, Mother shall select a single counselor from that list. If Father fails to timely provide Mother with any names, then Mother may select the counselor. If Mother fails to timely select a counselor from Father's list, then Father may select the counselor. The cost of both Mother's and Father's counseling sessions not covered by insurance shall be shared by the parties.
18. Mother's psychologist and the parties' reunification counselor shall both be provided with a copy of this Order to consider as the professionals may deem appropriate as background for the purpose of addressing the history of parent-parent and/or parent-child conflict.
19. Father's request for attorney's fees is granted. The Court shall consider Father's request for attorney's fees, pursuant to 13 Del. C. § 728(b), upon his attorney's submission of an affidavit attesting to her fees. Mother shall have 10 days thereafter to respond to the request for fees.
IT IS SO ORDERED.
__________
/s/ Robert Burton Coonin, Judge RBC/plr
Cc: File, parties
Mail Date: