Opinion
File No. CK16-01795 Petition No. 17-10756 File No. CK16-01795 Petition No. 17-35833
01-30-2018
E—R-------- Petitioner, v. P------ S---- and E-------- S---- Respondents. P------ S---- Petitioner, v. E-------- S---- and E—R-------- Respondents.
CUSTODY ORDER
In the Interest of: J--- R-------- (-/--/--)
GUARDIANSHIP ORDER
In the Interest of: J--- R-------- (-/--/--)
Before the HONORABLE LOUANN VARI, JUDGE of the Family Court of the State of Delaware:
Pending before the Court is a Petition for Custody filed by E-- R-------- ("Mother") against P------ S---- ("Father") in the interest of their son J--- R-------- ("J---"), born ----- --, ----. The Petition also names Ms. E-------- S---- ("Aunt"), Father's biological sister and J---'s paternal aunt and legal guardian. A hearing was held on Mother's Custody Petition on January 10, 2018. Mother, Father, and Ms. S---- all appeared without representation and testified. The Court also considered Father's Petition to Rescind Guardianship, as all parties relevant to the matter were present. At the conclusion of the hearing the Court announced decisions on both petitions the record. The legal care and custody of J--- is awarded jointly unto Mother and Father, and Father's Petition to Rescind Guardianship is granted. An Interim Custody Order was issued on January 8, 2017. This final Custody Order memorializes the full Decision of the Court.
BACKGROUND AND PROCEDURAL HISTORY
Aunt was appointed J---'s legal guardian by an Order of this Court on June 6, 2016. Mother filed a Petition for Custody on April 10, 2017. A case management conference was conducted with all the parties on August 4, 2017, and a full hearing on the Petition took place on January 10, 2018. Father filed several Petitions to Rescind Guardianship. He first filed on January 3, 2017, but he voluntarily dismissed his petition on April 25, 2017. He then filed a second petition on July 11, 2017. At the August 4, 2017 case management conference Father's second Petition to Rescind Guardianship was not ready for scheduling. While the parties have litigated these matters, J--- has remained under the guardianship of Aunt under the June 6, 2016 Order.
FINDINGS OF FACT
J--- was born on April 30, 2008, and has lived under the guardianship of his extended family for much of his life. In 2013 Father plead guilty to felony Child Abuse against J---. In 2011 Mother pled guilty to a felony drug offense. While Mother and Father served their sentences, J--- was placed in the care of his paternal great-aunt and great-uncle, Mr. and Mrs. Baker. In June 2016 Aunt was awarded custody of J--- by an Order of this Court. Aunt owns a home at ---- S------- Road., Felton, Delaware, where she and J--- reside with Aunt's two children, J---'s cousins.
J--- attends school in the Lake Forest School District, where he is supported by an individual education plan ("IEP") and 504 plan for Attention Deficit Hyperactive Disorder ("ADHD"). Mother and Father have not previously been involved in organizing J---'s IEP. J--- routinely takes medication for his ADHD on school days, but J--- does not take his medication on weekends or during the summer break. Aunt reports that J--- is generally attentive at school and engaged in learning. J--- attends counseling each week with Ms. Wade at People's Place.
Father completed the terms of his criminal sentence, including recovery and intervention programs, as well as parenting education courses, and he has been discharged from probation. Once his criminal "no contact" order against J--- was lifted, Father filed a Petition to Rescind Guardianship. Father has moved to a home at 2419 Deep Grass Lane, Greenwood, Delaware 19950, and is interested in moving forward on his Petition to Rescind Guardianship.
Mother too has completed the terms of her sentence, but has admitted to having a more difficult time with her recovery. Mother currently lives in a home at --- N. C-------- St., Seaford, Delaware, with her father and her five other children. Mother filed an Emergency Petition for Custody of J--- on April 10, 2017, after criminal charges were brought against Aunt for an unrelated domestic incident involving Aunt's then fiancée. The charges against Aunt were later dismissed and Mother's Emergency Petition was denied. The parties have attended a case management conference on Mother's Petition for Custody on August 4, 2017, and a full hearing was held on Mother's Petition on January 10, 2017.
Mother's Petition for Custody asks for joint custody and primary placement of J---. At a minimum, Mother would like joint custody and shared placement of J---, with primary placement with Father and weekends with Mother. Mother and Father live about fifteen minutes apart from one another, and both live within ten to fifteen minutes of J---'s current residence with Aunt. Father understands his son's need to spend as much time with his Mother as possible, but at this time believes he should have primary placement of J--- with Mother having J--- on the weekends. Father lives in the Milford School District, but believes J--- should continue to attend his current school at least for the remainder of this school year.
DISCUSSION
Child Protection from Domestic Violence Act
Title 13, Chapter 7A, Subchapter I of the Delaware Code is known as the "Child Protection From Domestic Violence Act." The purpose of this statute is "to protect children from domestic violence and the harm caused by experiencing domestic violence in their homes." The statute permits the Court to "give serious consideration to not placing a child in the custody of a parent who has committed certain criminal offenses." It creates a rebuttable presumption against placing a child in custody or residency with a "perpetrator of domestic violence." A "perpetrator of domestic violence" is defined as any individual who has been convicted of committing any of the criminal offenses outlined in 13 Del. C. § 703A(b) against the minor child at issue in the custody proceedings. These offenses include, but are not limited to, any felony level offense. The presumption can be overcome if the perpetrator of domestic violence can demonstrate no further acts of domestic violence have been committed, and the perpetrator of domestic violence has completed the various counseling programs outlined in 13 Del. C. § 705A(c).
13 Del. Code Ann. tit. 13, § 701A (West 2017).
Id., § 702A.
See State ex rel. Dalke, 1999 WL 692078 (Del.Fam.Ct. June 22, 1999) (Walls, J.).
13 Del. Code Ann. tit. 13, § 705A (West 2017).
Title 13, Section 703A of the Delaware Code states, in relevant part:
(b) "Perpetrator of domestic violence" means any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:
(1) Any felony level offense;
(2) Assault in the third degree;
(3) Reckless endangering in the second degree;
(4) Reckless burning or exploding;
(5) Unlawful imprisonment in the second degree;
(6) Unlawful sexual contact in the third degree; or
(7) Criminal contempt of Family Court protective order based on an assault or other physical abuse, threat of assault or other physical abuse or any other actions placing the petitioner in immediate risk or fear of bodily harm. 13 Del. Code Ann. tit. 13, § 703A(b).
Id.
Having been convicted of a felony level offense against J---, Father is considered a perpetrator of domestic violence for the purposes of determining J---'s custody and residency arrangements with Father under the Child Protection From Domestic Violence Act. Based on testimony and the Court's review of Father's criminal record, the Court is satisfied that Father has not committed any further acts of domestic violence toward J---. To overcome the presumption and be awarded custody of J---, Father must also have completed the following counseling requirements outlined in 13 Del. C. § 705A(c):
(1) Successfully completed a program of evaluation and counseling designed specifically for perpetrators of family violence and conducted by a public or private agency or a certified mental health professional.
Father has completed various counseling programs and workshops during his sentence and probation aimed at developing his parenting skills and correcting any violent tendencies. Specifically, Father completed "Workshops for Training in Nonviolence Alternatives to Violence Project" at Camden Monthly Meeting of the Religious Society of Friends (Quakers) in Wilmington, Delaware, and received certificates of completion on July 13, 2012 and on May 18, 2014. Father also completed the twelve-week classroom requirements for Victim Impact: Listen and Learn at the Howard R Young Correctional Institution in Wilmington, Delaware, on August 25, 2014. Finally, Father completed an intervention program at Turning Point at People's Place in Milford, Delaware, on September 30, 2016. Father completed these courses in good standing and received certificates of achievement in all of them. Given Father's success in these programs, the Court is satisfied Father has met this requirement.
(2) Successfully completed a program of alcohol or drug abuse counseling if the Court determines that such counseling is appropriate.
Father completed the Key North Correctional Recovery Program at the Howard R. Young Correctional Institution in Wilmington, Delaware, and received a certificate of completion on May 7, 2015. Father successfully completed the Crest Central Aftercare program through Connections Community Support Programs and received a certificate of completion on June 28, 2016. Father completed these courses in good standing. Given Father's success in these programs, the Court is satisfied Father has successfully completed substance abuse counseling, meeting this requirement.
(3) Demonstrated that giving custodial or residential responsibilities to the perpetrator of domestic violence is in the best interests of the child."
Id.
Father as taken other steps that show his commitment to reuniting with J---. Notably, Father was able to complete the requirements for his General Education Development certificate on November 17, 2014. According to Father, he has a home, transportation, and the financial stability to ensure J---'s needs are met. As a part of the follow-up to Father's Petition to Rescind Guardianship, on September 19, 2017 the Division of Family Services ("DFS") completed a home assessment on Father's home at 2419 Deep Grass Lane, Greenwood, Delaware 19950 and reported the home to be clean and appropriate for his children, observing no safety concerns at the time. Aunt, who has observed Father and J--- spending time together during their developing relationship, has testified that J--- loves his father and is very happy when he spends time with his father. Aunt and Mother both agree that J--- would be in good hands in Father's care, and Aunt agrees that it would be in J---'s best interest to be placed with his Father. The Court agrees.
Given Father's measureable achievements in family violence and substance abuse counseling both during and after his sentence, as well as Father's academic accomplishments, in addition to his continued commitment to fostering a strong and healthy parental relationship with J---, the Court is satisfied Father has overcome the presumption against being granted Custody of J--- as a perpetrator of domestic violence under the Delaware Child Protection from Domestic Abuse Act. Aunt and Mother both agree that since completing his sentence Father "has been great" with J---.
Best Interests of the Child
The Court now considers more broadly whether granting Mother's Petition for Custody is in J---'s best interest. The standard for determining an initial petition for custody is governed by 13 Del. C. § 722. The Court must apply the best interests of the child standard by considering "all relevant factors," including those enumerated in §722. These factors are:
13 Del. Code. Ann. tit. 13, § 722(a).
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements.
The parties agree that joint legal custody is in J---'s best interest, but they have somewhat different wishes regarding J---'s residential placement. Mother wants J--- to live with her so he can attend school in her home district, where she believes he will receive counseling and special attention to his address his academic and developmental needs. Father wants continued placement with J--- so he can continue attending his current school without disruption. Mother is agreeable to this arrangement, and at a minimum, Mother wants J--- to spend the weekends with her. Father recognizes it is important for J--- to spend as much time as possible with Mother, and agrees J--- should spend weekends with Mother. This factor supports joint custody, with Father having primary placement and Mother having weekends with J---.
(2) The wishes of the child as to his or her custody and residential arrangements.
J--- was not interviewed by the Court. All parties testified that J--- has expressed interest in living with Father and having weekend visits with his Mother. J---'s Counselor at People's Place has reported J--- indicates that he wishes to stay with Father. This factor supports Father having primary placement and Mother having weekend visitation.
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband or wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interest.
J--- is not Mother's or Father's only child. Mother has five other children, three of whom are still minor children, and Father has two other minor children. Mother testified that because of his past custody arrangements, J--- is not very close with his siblings on his Mother's side of the family. J--- has developed a relationship with his maternal grandfather J--- R--------, who also lives in Mother's home, however, J--- has not lived full-time with his mother for about four years. J--- has been living with Aunt continuously since June 2016. During that time J--- has seen more of his Father, who for a period of time lived in the home with Aunt. Father and Aunt report J--- has developed strong sibling relationships with Father's children and J---'s half-brothers C---- and S-----, and he is also close with his cousins, Aunt's children, who also live in the home.
(4) The child's adjustment to his or her home, school and community.
J--- has reportedly adjusted well to life at his home with his Aunt. He reportedly plays with his cousins and all the children get along well. At school, J--- is supported by an IEP and 504 plan, but Mother and Father have not been involved in developing them. Mother lives approximately fifteen minutes away from Father. Neither wants to disrupt J---'s academic progress in the middle of the school year. In all, this factor favors neither parent: J--- will have to adjust to one of their homes, and eventually, a new school, no matter where he lives.
(5) The mental and physical health of all individuals involved.
J--- is developing normally and has no chronic health conditions. J--- attends weekly counseling with Ms. Wade at People's Place, but aside from his ADHD, for which he receives treatment, he has no other noteworthy health concerns, physical or mental. Aunt has no noteworthy physical or mental health concerns. Father has undergone treatment for violent behaviors and addiction, but has demonstrated a commitment to recovery. The Court concludes that while the parties' have each required therapeutic support to manage life events, neither has a mental health issue that hinders them caring for J---. However, given Father's extensive participation in various treatment programs to address his potentially concerning past behaviors, without further evidence establishing Mother's status in similar treatment programs, this factor tends to support Father having primary placement of J---.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under section 701 of this title.
Neither Father nor Mother has been under an Order of this Court to provide Aunt or any other parties child support payments. This factor is neutral in determining J---'s placement and care.
(7) Evidence of domestic violence as provided for in chapter 7A of this title.
As noted above, while Father is a perpetrator of domestic violence as defined in 13 Del. C. § 703A, Father has overcome the presumption against having J--- places in his custody.
(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.
A review of Delaware's criminal justice records reveals that Mother and Father both have had several felony level charges against them related to the incidents described above. In March of 2017 Father was charged with criminal contempt for violating a protective order, but these charges were later dismissed with prejudice. In November 2012 Father was charged with several misdemeanor offenses and sentenced to probation. Father was on probation at the time of his April 2013 arrest for the abovementioned incident involving J---. Before that, Father had been charged with several motor-vehicle related incidents, from minor traffic offenses to driving under the influence of alcohol. Notably, besides the March 2017 incident resulting in all charges dropped, Father has no other incidents on his criminal record since the time of his April 2013 arrest.
In addition to several traffic related offenses, Mother has been charged with Endangering the Welfare of a Child and Third Degree Assault during a physical altercation with her ex-boyfriend in her home on August 8, 2017. J--- was present in the home at the time but did not witness the incident. Those charges have since been dropped. In December 2016 Mother was charged with Unauthorized Use of a Credit Card, but those charges were dismissed. In June 2011 Mother was charged with Endangering the Welfare of a Child and other drug charges, including possession of a narcotics. Taken together, these considerations tend to support Father having primary placement of J---. While Mother and Father both have had significant charges criminal charges against them, Father has not been convicted of any level offense since April 2013, and has since completed numerous behavioral treatment programs.
Guardianship Rescission
The Court now considers Father's Petition to Rescind Guardianship. The standards for rescinding a guardianship order are found at 13 Del. C. § 2332, which states "[a]n order of guardianship may be rescinded upon a judicial determination that petitioner has made a preliminary showing the guardianship is no longer necessary for the reason(s) it was established." Father's Petition for Rescission of guardianship claims Aunt's guardianship is no longer necessary because Father in now in a position to be awarded custody and primary placement of J---. Aunt agrees that her guardianship of J--- is no longer necessary, as Father has demonstrated his ability to meet J---'s needs and to provide a safe stable home for the family. Mother and Father both agree Aunt's guardianship should be rescinded, and The Court agrees each is now able to care for their son. The Court is satisfied Aunt's guardianship of J--- is no longer necessary and grants Father's petition.
13 Del. C. Ann. tit. 13, § 2332(c) (West 2017). --------
CONCLUSION
The Court applauds both Mother and Father for their personal achievements during their recovery, and for their commitment to reuniting with their son. The Court also applauds Aunt for her continued commitment to providing a stable home for J---. For the foregoing reasons, the Court finds Father has overcome the presumption against his being awarded custody and placement of J---. Further, as five of the eight best interest factors in 13 Del. C. § 722 favor Father having primary placement of J---, while the remaining three are neutral, the Court finds it is in J---'s best interest to be placed with his Father. Consistent with J---'s best interests and in order to promote frequent and meaningful contact between J--- and Mother as permitted by 13 Del C. § 728, J--- will spend three weekends per month with Mother. The Court finds it equitable that Father enjoy one weekend per month with J---, as well as a shared holiday schedule.
IT IS HEREBY ORDERED that Father's Petition to Rescind Guardianship of J--- R--------, born April 30, 2008, is granted with the agreement of the parties. The Order placing J--- in the guardianship of E-------- A. S---- is RESCINDED.
IT IS FURTHER ORDERED that the legal care and custody of J--- R--------, born ----- --, ----, is awarded jointly unto P------ S---- and E—R--------.
IT IS FURTHER ORDERED that J--- will live primarily with Father, P------ S----.
IT IS FURTHER ORDERED that to the extent permitted by the school district, Father shall ensure J--- completes the 2017 school year at his current school within the Lake Forest School District.
IT IS FURTHER ORDERED that Mother shall enjoy this contact and visitation with J---:
1. Regular Weekends : Except during the time periods identified as Winter and Spring breaks, and summer visitation, Mother shall have visitation the first three weekends of each month from Friday at the end of the school day (or at 5:00 p.m. on any Friday that school is not in session) until Sunday at 6:00 p.m. Mother's weekend visitation schedule shall be extended to Monday at 6:00 p.m. on any visitation weekend that J--- does not have school on Monday. Mother shall also have weekend visitation with J--- on the fifth weekend of any month that has such a fifth weekend.
2. Holidays : Mother shall have J--- on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Father shall have J--- 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 holiday | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
Except for Christmas and Halloween visitation, holiday visitation shall be from 9:00 a.m. the day of the holiday until 6:00 p.m. Halloween visitation shall begin at 5:00 p.m. on the day of the holiday until 8:00 p.m. Christmas Eve visitation shall begin at 6:00 p.m. on December 24th and end at noon on December 25th. Christmas Day visitation shall begin at noon on December 25th and end at 6:00 p.m. on December 26th. When the holiday falls on a Monday immediately following a visitation weekend, the visiting parent may keep J--- continuously from 6:00 p.m. Friday to 6:00 p.m. Monday.
3. Mother's/Father's Day : On Mother's Day and Father's Day, no matter whose turn for visitation, J--- shall be with the appropriate parent on those days from 9:00 a.m. to 6:00 p.m.
4. Birthdays : In odd-numbered years Father shall have J--- on his birthday from 5:00 p.m. until 8:00 p.m. In even-numbered years Mother shall J--- on his birthday.
5. Winter and Spring Breaks (School Breaks): In odd-numbered years, Mother shall have J--- for all breaks from school starting at 9:00 a.m. the day after school recesses to 6:00 p.m. the day before school resumes. Father shall have J--- for school breaks in the even-numbered years.
6. Summer Visitation : Mother and Father shall share J---'s placement on a week-on, week-off schedule each summer. Exchanges shall occur on Sundays at 6 p.m.
7. Late Pick-Up : Father shall have J--- ready for pick-up at the start of all visitation periods. J--- and Father have no duty to wait for Mother to arrive for visitation more than thirty (30) minutes, unless notified. If Mother arrives more than thirty (30) minutes late without prior notification for a particular visitation she forfeits that visitation, unless Father agrees otherwise.
8. Drop-Off : Mother will not return J--- early from visitation unless the parents agree to a different drop-off time in advance. Father, or another adult well known to Child must be present when he is returned from visitation.
9. Canceling Visitation : Except in emergency situations, Mother must give at least twenty-four (24) hours advance notice when canceling a visitation period.
10. Medical Treatment and Emergencies : If J--- becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If J--- becomes ill or injured during visitation, Mother shall contact Father to secure treatment unless the situation is a medical emergency.
11. Telephone/Mail : Neither parent shall interfere with telephone or mail contact between J--- and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
12. Transportation : Either parent may use another adult well-known to J--- for picking up or dropping her off when necessary. Any person transporting J--- may not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All child restraint and seat belt laws must be observed by the driver. Car seats should be exchanged when required.
13. School Work : Mother and Father shall notify each other of child care and schooling placement and/or arrangements for the J---. Mother and Father shall provide time for J--- to study and complete homework assignments, even if completing work interferes with that parent's plans for J---. Father is responsible for providing Mother with all school assignments and books. If J--- must attend summer school, Mother and Father are both responsible for his attendance, regardless of which parent has Child during the summer school period.
14. Extracurricular Activities : Regardless of where J--- is living, his participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom J--- is visiting shall provide transportation to activities scheduled during visitation with that parent. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address and telephone number of the activity leader, if available.
15. Out-of-State Relocation : Prior to relocation of J--- from the State of Delaware, Father and Mother should attempt to agree to a modified visitation schedule. If the parents cannot agree, the parent moving shall file a petition asking the Court to modify the visitation schedule. The Court may consider the allocation of transportation expenses.
16. Notice of Change of Address : Both parents shall give written notice to the other parent immediately upon any change of address and/or phone number, unless a restrictive Order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court.
IT IS SO ORDERED, this 30th day of January, 2018.
//s// Judge Louann Vari LV:mg:cg cc: Parties Date mailed: __________