Opinion
FILE NO.: CN12-01811 PETITION NO.: 18-15562
04-04-2019
RE: H. L. J. v. S. W.
LETTER DECISION AND FINAL ORDER
PETITION FOR MODIFICATION OF CUSTODY ORDER Dear Ms. J. and Mr. W. :
This Court held a hearing on January 15, 2019, regarding the Petition for Modification of Custody filed by H. L. J. ("Mother") against S. C. W. ("Father") in the interest of the parties' sons, S. W. Jr. ("S. Jr.") (born, , 2010) and E. W. ("E. ") (born, , 2010) (collectively "the Children"). Father was present in Court and was self-represented. Mother was also present in Court and self-represented. The Court heard testimony from the parties and from R. E. ("Paternal Step-Grandfather"). The Court did not conduct any child interview in this case. This is the Court's decision after consideration of all the evidence presented during the hearing.
PROCEDURAL HISTORY
The parties first became involved in this Court through a Petition for a Protection From Abuse ("PFA") Order. An Ex Parte PFA Order was temporarily granted on March 2, 2012. A Consent PFA Order was signed on March 23, 2012. On July 30, 2012, the Consent PFA Order issued on March 23, 2012, was vacated at the request of both parties. On March 12, 2013, Mother filed a Petition for Custody. An interim Order was issued on May 3, 2013. During the pendency of that custody matter, Mother filed another PFA Petition. A Consent PFA Order was signed and issued on August 23, 2013, and was set expire on January 23, 2014. On October 15, 2013, a Stipulation Order regarding custody was issued pending a final hearing. On October 25, 2013, Mother filed another PFA petition. On November 15, 2013, Mother filed an Emergency Ex Parte Motion stating that the Court had incorrectly recorded the parties' custody stipulation. This motion was denied. Additionally, on November 15, 2013, Mother's most recent PFA petition was denied because she failed to appear. On December 2, 2013, the parties entered into a Final Custody Stipulation Order.
On December 26, 2013, Mother filed to extend the Consent PFA Order for six more months and filed a motion for contempt of the Consent PFA Order. Then on January 2, 2014, Mother filed a Rule to Show Cause Petition against Father regarding the December 2, 2013 Stipulation Order and a contempt of a PFA action. Father was found to be in civil contempt of the Consent PFA Order and the PFA was extended until July 23, 2014. However, the PFA was also modified to allow exchange of the Children and communication about the Children through email or a third party.
The Court notes that Father was only technically found in civil contempt as the Consent PFA Order was never modified to be consistent with the custody Orders issued on October 15, 2013, and December 2, 2013.
On February 6, 2014, Mother filed another Emergency Ex Parte Motion even though a Stipulation Order had just been issued, this Petition was dismissed on March 28, 2014 for failure to pay the filing fee. Then on April 17, 2014, Mother filed another motion for contempt of a PFA Order. Mother failed to appear for the hearing and her PFA contempt action was dismissed. On June 11, 2014, Mother filed a Petition to Modify Visitation and an Emergency Ex Parte Motion, which was dismissed for failing to pay. Mother again filed a Petition to Modify Visitation and an Emergency Ex Parte Motion on September 24, 2014. On September 30, 2014, Mother filed another motion for contempt of a PFA Order and filed a new Petition for a PFA Order. The Motion for contempt of a PFA was dismissed as the previous Consent PFA Order expired on July 23, 2014. Mother then refiled a Petition for a PFA Order on October 3, 2014. Additionally, on October 3, 2014, Mother's PFA Petition was dismissed as no abuse was alleged on the face of the complaint.
The Court entered an Interim Order regarding both of Mother's Visitation Petitions on November 25, 2014, pending a hearing in February 2015. This Order stated that the parties shall continue to follow the December 2, 2013 Order. On February 19, 2015, a Stipulation Order was issued regarding all pending Visitation Petitions.
On March 10, 2015, Mother filed a Petition for a PFA Order. On March 20, 2015, her PFA Petition was denied. On July 13, 2015, Mother filed a Petition to Modify Custody and an Emergency Ex Parte Motion. On September 9, 2015, the Court entered a Final Stipulation Order regarding Custody Modification. On January 21, 2016, Mother again filed a Petition to Modify Custody and an Emergency Ex Parte Motion. Father then filed a cross Petition to Modify Custody on February 10, 2016. A Final Stipulation Order regarding custody was entered on May 17, 2016. The May 17, 2016 Order maintained joint custody and shared residency of the Children and specified a pick-up/drop-off schedule. A follow-up teleconference was held on June 14, 2016, regarding tax exemptions.
On May 24, 2018, Mother filed the pending Petition to Modify Custody. Additionally, on May 24, 2018, Mother filled a Motion for In Forma Pauperis and a Motion for Priority Scheduling. On June 1, 2018, the Court denied Mother's motion for In Forma Pauperis. On June 8, 2018, Mother filed an Emergency Ex Parte Motion, which was denied by the Court. On June 18, 2018, Mother filed a new Petition for a PFA Order. On July 6, 2018, the PFA Petition was dismissed for insufficient evidence.
BACKGROUND
Mother stated that she met Father during college in 1991 through mutual friends. After a time, they began to live together, became engaged, and planned a pregnancy. Mother claims that the relationship was already going wrong, but she could not leave because she was financially dependent after moving in with Father. Mother described her relationship with Father as complex because he enjoyed finding strangers on Craig's List to invite into the home for sexual favors. Mother explained that at first she consented to some of these encounters, but later on just "played along." Mother also stated that this is when she noticed that Father drank excessively. Mother explained that she tried to move out, but never had enough funds to stay away from Father for a long period of time. Then in 2014, Mother was finally able to move out on her own permanently.
Father stated that he did not force Mother to stay or to participate in sexual favors. Father stated that at one time he and Mother would mutually invite people over to their home from Craig's List. When those nights occurred, the Children would be home in a separate bedroom. However, Father stated that he and Mother did not often invite people from Craig's List over. Father also stated that this was a past behavior that no longer occurs. Father agrees that Mother did move in and out with the Children many times, but that he did not force Mother to stay. Sometimes Mother would come for dinner and then spend the night, but Father believed that Mother voluntarily stayed each time. After Mother moved out permanently, Father did not have much communication with Mother, mainly because a Consent PFA Order was in place at that time in 2014.
TTITLE 13 DEL C. § 703A
In this case, the Court found it necessary to evaluate whether Father is a perpetrator of domestic violence based on his two criminal convictions for contempt of a Consent PFA Order. Under 13 Del C. § 703A(b), the definition of a perpetrator of domestic violence states in relevant part: ""Perpetrator of domestic violence" means any individual who has been convicted of committing any of the following criminal offenses... Criminal contempt of Family Court protective order based on an assault or other physical abuse...." The Court interprets this to mean that the action that created the contempt must have been an assault or threat of assault. Based on that understanding, the Court finds that Father is not a perpetrator of domestic violence.
Pursuant to 13 Del. C. § 703A(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."
The Court arrived at this conclusion by reviewing the affidavit of probable cause from the two incidents, which the parties consented to. The first incident occurred in 2012. The main allegation in that case was that Father texted Mother directly after being served with the Temporary Ex Parte PFA Order. The second incident occurred in 2014. The main allegation in that case was that Father was emailing Mother in a harassing manner even though there was a general exception to communication via email to discuss custody. Neither contempt incident involved an allegation that Father assaulted Mother or threatened to assault Mother. Based on these facts, Father does not meet the statutory definition of a perpetrator of domestic violence. Therefore, the Court need not discuss the applicability of 13 Del C. § 705A.
LEGAL STANDARD FOR CUSTODY
The Court determines legal custody, residential arrangements, and visitation for children in accordance with the best interest factors set forth in 13 Del. C. § 722. In consideration of 13 Del. C. § 722, the Court balances the best interest factors "in accordance with the factual circumstances presented to the Family Court in each case." In some situations, the weight of one factor will counterbalance the combined weight of the other factors. The Court notes that this is the initial custody determination between the parties after a trial on the merits.
Pursuant to 13 Del. C. § 722:
a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court
1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
2) The wishes of the child as to his or her custodian(s) and residential arrangements;
3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
4) The child's adjustment to his or her home, school and community;
5) The mental and physical health of all individuals involved;
6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
Ross v. Ross, 922 A.2d 1237 (Table) 3 (Del. 2010).
Id at 3 (citing Fisher v. Fisher, 691, 623 (Del. 1997)).
BEST INTEREST FACTORS
In the interest of judicial economy, the Court will not recite all of the testimony and evidence presented at the hearing that can be more fully obtained from the record. Instead, the Court will summarize and analyze the evidence applicable to the 13 Del. C. § 722 best interest factors.
(1) The wishes of the child's parent or parents as to his or her custody and residential
arrangements;
Mother stated that she would like to maintain joint custody of the Children, but for the Children to primarily reside with her. Mother suggested that if given primary residency that Father have visitation every other weekend. He would pick-up the children every other Friday at Mother's home and Mother would pick-up the Children on Sundays at Father's home. Mother believes that it would be best for her to have primary residency because she has found activities and tutors for the Children to use in her community. Mother claims that there is a history of excessive drinking in Father's home, making his home less appropriate than her home. Mother also claims that Father has minimal rules in his home such as no bed times and allowing the Children to jump on the couch. Mother stated that the Children always have to readjust to having rules in her home after their time with Father.
Father would like to continue with joint custody and shared residency of the Children, because he believes that it is important that both parents be heavily involved. Father wants to make sure that Mother notifies him of changes to the Children's medications as she has neglected to do that recently. Father would be "okay" with summer vacation being amended to allow for each party to have a vacation with the Children as well.
The Court finds factor (1) favors Mother and Father's request for joint custody as there is no dispute. However, Mother wants primary residence and Father contests Mother having primary residency. Father would like shared residency to continue. Therefore, Factor (1) is neutral regarding residency as the parties have differing wishes.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
Factor (2) carries no weight in this case as neither parent requested a child interview and the Children are too young to automatically consider their wishes.
(3) The interaction and interrelationship of the child with his or her parents,
grandparents , siblings , persons cohabiting in the relationship of husband and wife with
a parent of the child , any other residents of the household or persons who may
significantly affect the child's best interests;
Mother stated that she likes to take the Children skating and swimming at the YMCA. Mother stated that she enjoys taking the Children to the Park and having family meals together. Mother indicated that these activities are part of her routine with the Children. Mother additionally stated that the Children enjoy spending time with Father and Paternal Step-Grandfather, and that the Children spend a lot of time with Parenteral Step-grandfather. However, Mother does not approve of the Children seeing "R" rated movies or playing violent video games while in Father's care.
Paternal Step-Grandfather stated that he spends a lot of time with the Children as he is retired and has a good relationship with them. He picks the Children up after school and stays with the them until Father comes home. When Father comes home, Father helps the Children with their homework and cooks dinner for them when they are at his home. Father enjoys biking with the Children and playing football outside with the Children. Once a month the Children spend an overnight weekend visit with Paternal Step-Grandfather. During the weekend visit the Children go biking and hiking in Rock Creek Park with Paternal Grandparents. Paternal Step-Grandfather observed that Father uses appropriate discipline by implementing timeouts. Paternal Step-Grandfather also stated that he enjoys spending time with Father and the Children on a regular basis.
Paternal Step-Grandfather testified that he does not always set the best example for the Children of respecting women as he tells his wife to, "shut up" in front of the Children. Paternal Step-Grandfather stated that he only uses that language when his wife is not speaking rationally in his opinion.
Father stated that he enjoys doing many activities with the Children. These activities include biking, skate boarding, going to the park, going to dirt bike tracks, and using a telescope during the summer. As a family, he also enjoys playing Rock Band, and everyone takes turns playing guitar and drums.
The Court finds factor (3) to be neutral. Mother and Father both testified about the time and attention they give the Children during their time. Additionally, each parent presented evidence of a consistent home routine that included homework, activities, and positive extended family experiences. The Court is slightly concerned about Paternal Step-Grandfather's behavior towards Paternal Grandmother, and believes he should censor himself in front of the children as to not set a bad example.
(4) The child's adjustment to his or her home , school and community;
Mother's Home, School and Community
Mother stated that her home has three bedrooms. Four other adults are regularly in the home with the Children. E. W. ("Maternal Aunt"), D. W. ("Maternal Uncle"), K. J. (Sister), and A. J. (Sister). The Children attend H. Elementary School and are in the second grade. E. has a 504 Plan for Attention-deficit/hyperactivity disorder ("ADHD") where he receives extra help after school and has a private tutor. Father was made aware of the potential 504 plan and attended the meeting when the plan was created. Mother stated that the Children were in Cub Scouts and were on a baseball team in 2017. S. Jr. attended a summer day camp where he was selected as his school's representative. The Children are able to play outside with friends and have many friends in Mother's community. Mother also stated that the Children have a consistent routine at her home that they are adjusted to, but some readjustment occurs each time the Children return from Father's home.
Father's Home, School and Community
Mother testified about her concerns regarding Father's home. Mother recalled an incident when a little girl slept over at Father's home and had a sleepover with the Children. Mother claims that the little girl taught the Children about sex and taught the Children the phrase, "Suck my dick." When Mother discussed this concern with Father, Father told her that the Children must have heard the phrase at school. However, Mother believes that the Children either learned the phrase in Father's home or that Father does not properly discipline the Children for using poor language.
Father responded that the Children have friends in his neighborhood that are young girls, and who have slept over. However, Father spoke to the young girl's mother and does not believe anything inappropriate happened at the sleepover. Father added that he does not curse in front of the Children. Father believes that Mother curses in front of the Children, teaching them words such as, "Faggot," and "Fuck." Father stated that he does not make negative remarks about Mother in front of the Children and that the Children do not watch "R" rated movies in his home. Father continued in stating that the most violent game the Children play is Fortnite, and that the Children mainly play racing video games.
Father currently lives alone in his home with the Children. Any time Father is unable to care for the Children during his time, the Children would go to Paternal or Maternal Grandparent's home. In the community this past summer, E. participated in guitar lessons while S. Jr. was at summer camp. Paternal Step-Grandfather financed the guitar lessons and would often take E. to his lessons. Unfortunately, E. could not complete or continue taking his lessons because Mother refused to take him to his lessons during her time with the Children.
The Court finds factor (4) to be neutral. The Children seem to be well-adjusted to both Mother and Father's home and community. Mother and Father seem to be equally committed to making sure the Children have opportunities such as Cub Scouts and guitar lessons. The evidence showed the Court that both parties have good intentions, but that communication needs to be improved to make sure the Children regularly attend their respective events in the community.
(5) The mental and physical health of all individuals involved;
Mother stated that the Children are generally in good physical health. E. had a medical issue when he was born that required physical therapy three times a week, but he only needed that treatment for three years. E. was recently diagnosed with ADHD by his primary care doctor. E. was prescribed 20 mg of Adderall (as needed) to manage his ADHD. Mother emailed Father the date and time of the doctor's appointment, but she did not specifically invite him to the appointment or schedule it around his schedule. Further, Mother never informed Father that E. needed ADHD medication. Father only found out about the ADHD medication through the school. The Children both receive mental health counseling and began counseling in November 2018. The Counseling is conducted at school once a week for forty-five minutes. E. is receiving treatment to process his ADHD diagnosis. Mother believes S. Jr. is receiving treatment to process his brother's diagnosis.
Mother also receives mental health counseling for depression and ADHD through Delaware Behavioral Health. Mother testified about her prior substance abuse history. Mother stated that she hit "rock bottom" in 2009 and feared going to jail. She then voluntarily admitted herself into MeadowWood for outpatient treatment. Mother also attended Brandywine Counseling as ordered by probation. Mother still attends Narcotics Anonymous in order to maintain her sobriety. Mother believes that Father also has mental health issues, but does not know if he currently has an issue with alcohol.
Paternal Step-Grandfather takes medication to prevent heart attacks, high cholesterol, and he takes a blood thinner. Paternal Step-Grandfather smokes in the house with the Children, however, he will not smoke in the same room or in the car with the Children. Paternal Step-Grandfather pointed out that Mother use to smoke around the Children, even when E. went to the hospital for concerns about his lungs.
Father has high blood pressure but no mental health issues. Father stated that he drinks occasionally every other week, and that it is not excessive in any way. Father also stated that he does not have any DUI's on his criminal record. In the past, Father had a substance abuse evaluation and mental health evaluation. Based on the evaluation, Father was only recommended to take a parenting class through Child Inc. and an anger management class through Catholic Charites. Father stated that both classes were successfully completed. The Court notes that Father provided documentation stating that he completed anger management on March 10, 2015. Father also completed his parenting course on February 28, 2013. Father also provided documentation that he completed a substance abuse evaluation and that no treatment was recommended. Father is concerned about Mother's mental health as she is diagnosed with bi-polar disorder but Mother only shows aggression towards Father and not the Children.
Catholic Charities Inc. Certificate dated March 10, 2015.
Child Inc. Certificate of Completion dated February 28, 2013.
Brandywine Counseling Inc. Treatment Report dated October 6, 2014.
The Court finds that factor (5) weighs against Mother's request for primary residency. While Paternal Step-Grandfather may smoke around the Children which is concerning, Mother is making important medical decisions without consulting Father as described in factor (6) below. Mother's conduct concerns the Court because Mother is ignoring Father's rights as a joint custodian to provide input regarding the Children's medical care. The Court worries that if Mother was granted primary residency, she would make even more unilateral decisions about the Children without Father's input. Moreover, Mother's past substance abuse history and mental health weigh against her request for primary residency.
(6) Past and present compliance by both parents with their rights and responsibilities to
their child under §701 of this title;
Mother is unable to work and is on disability due to a herniated disk and pinched nerve. She has been on disability for three years, and receives $881 each month. Mother is also on government assistance for rent and food stamps in addition to receiving child support under the current Child Support Order.
Mother feels as though Father has not been as involved as he should be. She feels as though Father is not attending enough parent-teacher conferences or helping with E. 's tutoring. Mother also feels as though it falls to her to make all of the Children's doctor's appointments and to cancel all of the appointments Father makes. Mother stated that the Children are covered by Aetna and Medicaid and that the Children cannot go to appointments at A.I DuPont Hospital. Mother stated she makes all of the Children's appointments during times she knows Father is working because he has never been available to attend past appointments. Mother also feels as though Father does not contribute to buying school supplies. Father does, however, help pay for E. 's tutor. Mother and Father used to split the cost of Cub Scouts, but Mother paid for all baseball expenses. Mother also went to all of the baseball games and Father was not present.
Paternal Step-Grandfather believed that Mother has not always been following her parental duties. Paternal Step-Grandfather observed an incident in 2018 where he believed that Mother's boyfriend, "L. " was driving recklessly with the Children inside the car. Paternal Step-Grandfather believed that Mother and L. were intoxicated at the time as he saw each person put a "drink" to their face. Mother clarified that her relationship with L. ended in September 2017. Mother also contended that she was simply drinking a soda. Paternal Step-Grandfather further claimed that Mother called Paternal Great-Grandmother a "nigger lover" in front of the Children. Mother later rebutted, stating that she never used a racial slur against Paternal Great-Grandmother. Paternal Step-Grandfather also stated that Mother in encouraging the Children to disrespect Father and that the Children should not listen to Father.
Paternal Step-Grandfather stated that the whole family was involved with baseball, but not as involved with Cub Scouts because the meetings were less frequent. Paternal Step-Grandfather also told the Court that Mother did not inform Father when E. was placed on ADHD medication. Father only learned of the medication when E. was late for school and was therefore late in taking his "as needed" medication. Paternal Step-Grandfather believes that the new medication has stifled E. 's personality and made him "different." Overall, Paternal Step-Grandfather believes that Father is a good parent and that he does not have a drinking problem.
Father now works for Delaware Services ("D S") in the IT department. His current salary is $65,000. Father stated that he refrains from making doctors' appointments because each time he would make an appointment; Mother would cancel it. Therefore, Father believed that Mother was handling the appointments. Father also stated that he is aware of what insurance the Children have, because the Children were insured through him. Father also believes that it is hard to get ahold of the Children's current pediatrician. Father would like to change to a different doctor that has an online portal that Father can reference. Father stated that he is willing to help take the Children to doctors' appointments, he just needs to be given enough notice in order to be available. Father was also concerned that he was unaware that the Children were in counseling at the Center for Child Development. He only became aware when he received a benefits claim. Father commented that he was the one that suggested that E. may have ADHD, but was upset when Mother did not consult him before placing E. on medication. Father believes that he has been involved in the Children's education and has even allowed the tutor to come to his home. Father mentioned that co-parent counseling had been suggested to him, but that Mother did not wish to cooperate. Father also stated that not only has he been paying child support with no arrearage balance, he has been giving extra money to Mother to help the Children. Father is concerned about Mother communicating with him, because Mother has blocked his cell phone number and will only communicate via email. Father stated that he only has a work email account that cannot be used for personal reasons.
The Court finds that factor (6) weighs against Mother's request for primary residence. Both parties want to be involved in the educational and medical needs of the Children. Mother believes that Father could be more involved, but Mother testified that she purposely makes appointments when Father is unavailable and cancels any appointments he makes. It is also clear Mother arranged the Children's counseling without Father's knowledge. Father testified that he would be more involved if given the opportunity, and he would like to have more open communication with Mother in order to co-parent.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Mother stated that she has a long history of domestic violence with Father. Mother also believes that Father is abusive and has anger issues. Mother has filed several PFA Petitions against Father. Overall, there were two times that Mother was granted a PFA Order through consent. The First PFA Order began as an Ex Parte Order issued on March 2, 2012, and then a Final Consent PFA Order was issued on March 23, 2012. The Final Consent PFA Order was vacated on July 30, 2012, at the request of Mother. Then another Final Consent PFA Order was issued on August 23, 2013, and expired on July 23, 2014, after being extended from January 24, 2014. For each respective Consent PFA Order, Father pled guilty to one count of Contempt of a PFA Order. The Court notes that these convictions do not make Father a perpetrator of domestic violence under 13 Del. C. § 703A as his contempt was based solely on harassment.
Mother also claimed further mental, physical, and financial abuse in the past. Mother stated that there was one incident in 2012 when Father put his hands around her neck and then pushed her into a closet. Mother stated that she could not leave the relationship because of the financial abuse that ruined her credit. Also, Father led Mother to believe that she would lose the Children due to her past substance abuse. Mother had poor credit because she was evicted from her apartment in 2012 when Father stopped paying her rent once he could no longer stay in the residence due to the Consent PFA Order. Mother additionally stated that many arguments began with Father becoming excessively drunk. Other times, arguments would begin because Father liked inviting strangers from Craig's list to the home. Mother did not elaborate about any incidents of abuse outside those covered by the two Consent PFA Orders. Mother also did not testify about any present fear of Father outside of Father's anger management issues.
Paternal Step-Grandfather testified that he never observed Father being abusive towards Mother. He did admit that there were times were Mother and Father would argue.
Father stated that he attempted to file a PFA against Mother for harassment in August 2012 and December 2012. Father stated that his PFA Petition was dismissed because he failed to appear due to a heart condition that put him in the hospital during the hearing time. Father also testified about how Mother would belittle him and hit him prior to the birth of the Children. Father did not elaborate on any of these incidents. Father also described a time when Mother was smoking marijuana and drinking when an argument occurred. Mother tried to leave with the Children, but Mother was not in a position to drive. A physical altercation over the car keys occurred and the police were called, leading to Father being arrested in 2014. Father also indicated that when Mother and he have argued in the past, it negatively affected the Children. Father would like to avoid that kind of behavior in the future. Father provided documentation that he completed a Domestic Violence Intervention Program through Catholic Charites on March 12, 2013. Father acknowledged his past mistakes causing the criminal convictions of Contempt of a PFA Order, and stated he understood that those incidents should not be repeated.
Catholic Charities Inc. letter dated March 13, 2013. --------
The Court finds that factor (7) slightly favors Mother's petition for primary residency. Based on the evidence, there is a long history of PFA activity through consent orders. However, the last Consent PFA Order was in 2014. Father provided documentation that he has taken classes to learn to exhibit better behavior through anger management classes and domestic violence classes. Mother also did not testify about a current fear of communicating with Father. Based on the history, communication should be limited and reserved for speaking about the Children.
(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.
Mother has criminal history for drug charges in 2010 and many driving offenses. Mother also has two DUIs from 1995 and 2007. While none of Mother's convictions are prohibitive, the number of driving infractions is concerning to Father and the Court.
Paternal Step-Grandfather does not have any criminal history to Father's knowledge, and no history could be found by the Court. Additionally, the Court notes that, Paternal Grandmother has no criminal history. Most concerning to the Court are Father's two convictions for Contempt of a PFA Order. However, as discussed above, Father is not a perpetrator of domestic violence under 13 Del C. § 703A. Father also has convictions for assault (non-domestic) and conspiracy not related to Mother. Father explained that the assault charge stemmed from a bar fight where a knife was used. The conspiracy charge was from the 1980's where Father made explosives with two other individuals. Father was not excusing his behavior, but stated that he has moved on from young, foolish, and impulsive behavior.
The Court finds factor (8) to be neutral as both parties have concerning, but non-prohibitive charges. Mother has drug convictions, DUIs, and many speeding convictions. Mother hast speeding violations as recent as 2017. Father on the other hand has two convictions for Contempt of a PFA Order, an assault conviction, and a conspiracy conviction. Although, the Court notes that Father's most recent conviction was almost five years ago.
LEGAL ANALYSIS
The Court finds that the best interest factors collectively favor Mother and Father's request for joint custody and against Mother's request for primary residency. Factor (1) favors Mother and Father having joint custody as there was no dispute. However, Factor (1) is neutral regarding residency as each party has a different position. Factor (2) carried no weight in this case as neither of the Children were interviewed.
Factor (3) is neutral as the Children seem to have a good relationship with everyone in Mother and Father's households. Mother stated that the Children enjoy spending time with her, Father, and Paternal Step-Grandfather. Mother and Father spend similar quality time with the Children such as riding bikes and going to the park. At Mother and Father's home the Children also spend time with extended family and have good interrelationships. Mother and Father also testified about how each find it important to help the Children with their homework as part of a routine in the home.
The testimony presented for factor (4) demonstrates that the Children are adjusted to Mother and Father's home, their current school, and communities. Mother and Father stated that they each have appropriate homes and bedding for the Children. The Children attend H. Elementary School and have adapted to each party's home. The education of the Children has been adapted, to include a tutor that visits E. at Mother and Father's home. Mother and Father also have equal interest in getting the Children involved in community activities, even if they cannot agree on the type of activities for each child. While Mother did raise concern that little girls are sleeping over in Father's home, Father stated that no inappropriate behavior occurred at any sleepover. Similarly, Father believes that Mother curses in front of the Children, but Mother stated that she does not curse in front of the Children. If the Children have learned inappropriate language, they should be taught not to use this language by both parents. Based on these facts, factor (4) is neutral.
Factor (5) also weighs against Mother's request for primary residency. While and Father seem to be in relatively good health, the Court is concerned about how medical decisions are being made for the Children. Father stated that he thought E. had ADHD and recommended that he be evaluated. Mother then set up the evaluation with or without Father. Mother then made another doctor's appointment and consented to E. taking ADHD medication, and neglected to tell Father about E. 's new medication. Father only found out about the medication through the school. While this may seem relatively minor, there could have been major consequences if E. had an adverse reaction to the medication or another medical emergency occurred while he was in Father's home.
Factor (6) weighs against Mother's request for primary residency. Mother is unable to work but receives disability and uses government assistance for rent, collects food stamps, and receives child support. Father is employed and up to date with child support. Mother claims that Father is not involved or does not attend doctor appointments, but Mother also stated that any time Father tried to make an appointment she cancelled the appointment. Further, when Mother made the appointments, she would purposely make them at times when Father was unavailable. While the Court agrees that Father should try to go to school and medical appointments, Father needs to be given equal opportunity to be available, and consulted about the time and date so he can make arrangements with his employer. Father is willing to work on communication, and Mother should be open to communication about the Children. It is obvious that Mother has more time throughout the day as she does not work. Father's full-time job should not be held against him and would naturally make him less available to volunteer at the Children's school and take them to appointments. However, Father testified that if Mother communicated with him he could use vacation or sick time to attend to the Children's needs. The Court also cautions that any adult that has contact with the Children should drive responsibly and set a good example for the Children.
The Court finds that factor (7) slightly favors Mother's petition for primary residency. Based on the evidence, there is a long history of PFA activity through consent but no findings of abuse were ever made. Overall, there were two times that Mother was granted a Consent PFA Order, and one was later vacated by the consent of the parties. For each respective Consent PFA Order, Father pled guilty to one count of Contempt of the Consent PFA Order. Even though these convictions do not make Father a perpetrator of domestic violence under 13 Del. C.§ 703A, they are still concerning. Mother and Father both claimed other abusive behavior not included in the PFAs, however neither party elaborated to the point where this Court could make a finding of abuse. Mother and Father also agree that they used to invite strangers to their home for sexual favors. Mother claims many of these encounters were not consensual. Father denies this claim. While there is no doubt that the parties have a long history of domestic violence, there have been no findings of abuse. Since 2014, the parties have held shared residency of the Children without incident. Therefore, while this history is concerning, there was no evidence of current fear or hindrance to communication at this time due to domestic violence.
The Court finds factor (8) to be neutral as both parties have concerning, but non-prohibitive charges. Mother has criminal history for drug charges in 2010 and many driving offenses. Mother also has two DUIs from 1995 and 2007. While none of Mother's convictions are prohibitive, the number of driving infractions is concerning to Father and the Court. Paternal Step-Grandfather does not have any criminal history to Father's knowledge, and no history could be found by the Court. Paternal Grandmother has no criminal history. Most concerning to the Court are Father's two convictions for Contempt of a PFA Order. However, Father is not a perpetrator of domestic violence under 13 Del C. § 703A. Given the Court's concern about Mother and Father's charges, the Court finds this factor to be neutral overall.
CONCLUSION
The Court finds that the best interest factors collectively favor the parties having joint custody and shared residency. Mother and Father did not dispute custody and the Court finds that it is in the best interest of the Children for their residency the be shared between Mother and Father.
ORDER
1. Mother and Father shall have joint custody of the Children.
2. Mother and Father shall have shared residency of the Children. Mother shall have the Children on Mondays and Tuesdays. Father shall have the Children on Wednesdays and Thursdays. Mother and Father shall rotate weekends on an every other weekend basis starting Friday after school. All exchanges shall occur at school. The parent with weekend visitation shall take the Children to school Monday morning. If school is not in session, exchanges shall occur at the Food Lion on Northeast Boulevard at 6 p.m. on the day visitation is set to begin.
3. Summer visitation shall be the same as the academic year with the following exception: Each parent may choose two non-consecutive weeks in the summer as "vacation." In odd year Mother shall make her selection first by May 1st of year. In even years Father shall make his selection by May 1st of each year.
4. Based on Father's request for a primary care physician with an online portal, Mother shall make a list of three (3) primary care doctors for the Children with an online portal within fifteen (15) days of this Order. Father shall then select one primary care doctor from the list within fifteen (15) days of receiving Mother's list. The Children shall be transitioned to the newly selected doctor within thirty (30) days from Father's selection. Both parents shall have equal access to medical information.
5. Other provisions of the Court's Standard Contact Guidelines apply as follows:
a. Holidays: Mother shall have the Children on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Father shall have the Children on holidays in Column 1 in the 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 |
| Christmas Day | Christmas Eve |
With the exception of Christmas and Halloween contact, holiday contact shall be from 9 a.m. until 6 p.m. the day of the holiday. Halloween contact shall begin at 5 p.m. and end at 8 p.m. on Halloween. Christmas Eve contact shall begin at 6 p.m. on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6 p.m. 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 Friday until 6 p.m. Monday, where the parents shall exchange the Children at the Food Lion on Northeast Boulevard.
b. Mother's/Father's Day: On Mother's Day and Father's Day, no matter whose turn for contact, the children shall be with the parent whose holiday is being celebrated from 9 a.m. until 6 p.m.
c. Late pick-up: Both parents shall have the Children ready for pick-up at the start of all contact periods.
d. Drop-off: Neither parent shall return the Children early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to the Children must be present when he is returned from contact.
e. Cancelling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
f. Communication: Both parents shall be entitled to reasonable communication with the Children while he is in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between the Children and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
g. Transportation: Unless otherwise ordered or mutually agreed, parents shall have shared responsibility for transportation of the Children to and from their home for contact periods and may use another adult well-known to the Children for picking up or dropping off the Children when necessary. Any person transporting the Children shall not be under the
influence of alcohol or drugs, and must be a licensed, insured driver. All seat belt laws must be observed by the driver.
h. School work: Parents shall provide time for the Children to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the Children. Both parents are responsible for providing all of the school assignments and books to the other parent. If Summer school is necessary, the Children must attend, regardless of which parent has him during the summer school period.
i. Relocation: Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the Children's school, travel time to school or extracurricular activities or otherwise may adversely affect his best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
j. Notice of change of address: Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.
6. The parties may modify any provision of this Order by mutual written agreement.
IT IS SO ORDERED.
/s/ _________
NATALIE J. HASKINS, JUDGE NJH/jw xc: File, Parties Date Emailed/Mailed: __________