Opinion
File No.: CN07-03831 Petition No: 16-03067
02-09-2017
RE: J----- V------- v. C-------- E-----------
J----- N. V-------
-- D----- R---
--- ------, DE ----- John A. Macconi, Jr., Esq.
1224 King Street
Wilmington, DE 19801 LETTER, DECISION AND ORDER Petition for Custody Modification Dear Mr. V------- and Counsel:
Before the Court is a Petition for Custody Modification (hereinafter "Petition") filed on February 3, 2016 by J----- N. V------- (hereinafter "Father"), who is self-represented, against C-------- E----------- (hereinafter "Mother"), represented by John A. Macconi, Esq., in the interest of their minor child, G----- V------- born May 1, 2007 (hereinafter "Child"). In his Petition, Father requested that he be afforded joint custody with visitation every other weekend and a mid-week visit on Thursdays. On February 23, 2016, Mother filed an Answer to Father's Petition, denying that Father's request was in the Child's best interests. On December 5, 2016 and January 18, 2017, the Court held a bifurcated hearing on the merits in which testimony was presented by C----- H---- ("Father's fiancé"), M--------- V------- ("Paternal Grandmother"), W------- B----- ("Father's Employer"), C----- Moder ("Maternal Grandmother"), C----- C----- ("Father's Stepmother"), T---- M----- ("Counselor"), R----- D---- ("Mother's fiancé"), Mother, and Father. The Court also conducted an interview with the Child on January 27, 2017.
PROCEDURAL BACKGROUND
On December 1, 2009, the Court entered an Order affording Mother and Father joint custody with Mother having primary residential placement and Father having visitation every other weekend, along with a mid-week visit. On August 14, 2014, Mother filed a Petition to Modify the Custody Order, wherein she alleged Father's drug usage had increased and requested sole custody and that Father's visitation be supervised. On December 2, 2014, the parties entered a Consent Order following mediation, affording Mother sole legal custody with Father having supervised visitation.
On February 3, 2016, Father filed the herein Petition, requesting that the Consent Order be modified and that he be afforded joint legal custody and unsupervised visitation every other weekend, along with a mid-week visit. Father alleged that he is sober, drug-free, and active in his sobriety treatment, and has achieved significant stability. Mother filed an Answer on February 23, 2016, denying that Father's request is in the Child's best interests.
On May 13, 2016, the parties entered into an Interim Consent Order, affording Father unsupervised visitation from 2:00 p.m. to 6:00 p.m. on Sundays. At the Call of the Calendar on August 23, 2016, the parties agreed that Father shall also be allowed to transport the Child to and from some of his after school activities on Mondays and Fridays. At the conclusion of the first day of the Court's bifurcated hearing on the herein Petition, Mother agreed to further increase Father's visitation to every other Saturday from 10:00 a.m. to 3:00 p.m.
DISCUSSION
For the sake of judicial economy, the Court will not repeat in detail all of the testimony that can be obtained from the record, but will note the salient testimony as it pertains to the required statutory analysis. On December 2, 2014, the parties executed the aforementioned agreement regarding the custodial, residential, and visitation arrangements for Child. Pursuant to 13 Del. C. § 729(b), a Court order by consent of all parties concerning the legal custody of a child or his or her residence may be modified at any time by the Court in accordance with the standards set forth in 13 Del. C. § 722. Additionally, pursuant to 13 Del. C. § 729(a), an order concerning visitation may be modified at any time if the best interest of the child would be served thereby in accordance with the standards set forth in 13 Del. C. § 728(a). Therefore, in determining whether the Consent Order should be modified with regard to Child's custodial, residential, and visitation schedule, the Court must consider the best interests of Child through an analysis of the factors listed in 13 Del. C. § 722.
Best Interest Factors
(1) The wishes of the child's parents as to his custody and residential arrangements;
At the hearing and in his Petition, Father requested that the Court afford him unsupervised visitation with the Child every other weekend and one evening visit per week. Father noted that the current custody Order afforded him only supervised visitation for a few hours each week. Father stated that he had consented to this Order before finishing his treatment at a drug rehabilitation facility. Father asserts that he has now been sober for two and a half (2½) years and has been diligently seeking to expand his role in his Child's life during that time. Father stated that he is now able to be a strong role model for his son and therefore it is in his son's best interests that Father be afforded increased time in his Child's life.
Father also requested that the Court modify the existing Order from sole legal custody with Mother to joint legal custody. Father stated that he is fully capable of making decisions with regard to his Child's welfare and that the Child would benefit from the input of both Mother and Father.
On the other hand, Mother testified that Father should continue to have reduced visitation on a supervised basis. Mother stated that the Child is uncomfortable in Father's care and that Father is attempting to "push" the Child into doing what he wanted. Mother testified that she would allow the Child to see his Father for longer, more extended visits "when the Child is ready." Mother stated she had always allowed Father to see the Child whenever he wanted, as long as it was at her home. Additionally, Mother indicated she believed that Father's newfound desire to see the Child outside of Mother's home was due to Father's upcoming marriage. Finally, Mother stated that she had always been the primary caregiver with regard to the Child and that Father had consistently failed to provide any input with regard to the Child's welfare throughout his young life.
The Court finds that this factor is neutral with regard to the Court's analysis as to Father's visitation and custody. The parties are each opposed to the other's position on this factor.
(2) The wishes of the child as to his custodians and residential arrangements;
Mother requested that the Court conduct an interview with the Child due to the Child's desire to speak with the Court. Accordingly, the Court conducted an interview with the Child on January 27, 2017. Throughout the interview, the Court was impressed with the Child's articulation, maturity, and intelligence. The Court found the interview a joy to conduct due to the Child's endearing manner and bright personality.
Nonetheless, the interview illustrated the Child's deep anxiety over the herein custody matter. During the interview, the Child noted that sometimes Father "scares" him and that Father "doesn't care about my feelings or what I want." The Child noted that he did not feel comfortable at Father's home and that he preferred to remain solely at Mother's home. However, the Child was unable to explain why he felt this way or give examples of Father's negative behavior towards him. On the other hand, the Child demonstrated his deep affection for Mother, stating that he loved to be with Mother and that he, Mother, and Mother's fiancé, Mr. D----, do "lots of fun things together."
It was clear to the Court that the Child is intensely sensitive and emotional regarding these matters. The Court finds that some of his emotion may be due to his extensive knowledge about the herein case. During the hearing, Father testified that the Child read Father's Petition for Custody Modification at Mother's home. Although Mother disputed that she allowed the Child to read the Petition, it was nonetheless clear that the Child understood far too clearly the nature of these proceedings in a manner exceedingly detrimental to his emotional well-being.
For reasons that remain unclear from the record, the Child stated to the Court that he was uncomfortable being with his Father and prefers to not visit with him in Father's home. Based upon the Child's interview, the Court finds that this factor favors denying Father's request for more frequent, unsupervised visitation. However, because the Child's wishes lack a factual basis and appear to be influenced by Mother's wishes, the Court shall afford this factor little weight. (3) The interaction and interrelationship of the child with his parents , grandparents , siblings , person cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or person who may significantly affect the child's best interests;
The record reflects that the Child is bonded to Mother and those who live in her household. Mother resides in her biological father's home with her father, W------- C------- (hereinafter "Maternal Grandfather"), her younger brother, T----- C------, who is fourteen (14), and her fiancé, R----- "R--" D----. On the other hand, the record is mixed with regard to the Child's bond with Father and those in Father's household. Father resides with his fiancé, C----- "M-----" H----, as well as her two (2) children, Z------, who is ten (10), and E----, who is eight (8).
a. Mother's Household
The record reflects that Mother and Child have an extremely close bond. By all accounts, Mother has been the primary caregiver for the Child for all of his young life. During the Child interview, the Child brightened when talking about his Mother, who he clearly adores. As Mother and Mother's fiancé testified, Mother assists the Child with his homework diligently each evening. Mother and Child also do activities together, such as playing board games, watching movies, and going places in the summer. It is clear that Mother and Child are exceptionally close and that both Mother and Child are sensitive to each other's feelings and emotions.
The Child is also close to Mother's fiancé, R----- "R--" D----. Mr. D---- testified that he and the Child got along very well and that they have a "joking, relaxed" relationship. Mother stated that Mr. D---- and the Child have known each other since the Child was approximately three (3) or four (4) years old and thus was comfortable with him. During the Court's interview with the Child, he affirmed that he got along well with "R--" and that he, Mother, and R-- "do fun things together."
In addition to Mother and R--, the Child also lives with his Maternal Grandfather, as well as Mother's younger brother, T----- C------. Mother testified that the Child is close to his Maternal Grandfather and often "follows him around," hoping to help him outside or play with him.
Accordingly, the Court finds the Child is closely bonded to Mother and the individuals in Mother's household.
b. Father's Household
On the other hand, the Court heard conflicting testimony regarding the Child's bond with his Father and the members of Father's household. Father testified that he and the Child were close and that the Child enjoyed being with him, which was affirmed by Father's fiancé, C----- "M-----" H----, and his mother, M--------- V------- (hereinafter "Paternal Grandmother"). However, during the Court's interview with the Child, the Child stated that he did not enjoy being with his Father and that he preferred to be at his Mother's home.
The Court heard testimony from Father's fiancé. Ms. H---- testified that Father is very nurturing with the Child and that Father does well with taking the Child to his activities during the week. Ms. H---- testified that she has two (2) children from a previous marriage, Z-------, who is ten (10) years old and E---- who is eight (8) years old. Ms. H--- - stated that Father was a good father figure for her children and that their biological father was not an active parent. Ms. H---- also noted that although her children get along with the Child, sometimes the Child has trouble sharing. In the Court's interview with the Child, he stated that Z------ and E---- were nice "sometimes" and they could be "fun."
During the hearing, Mother's attorney read excerpts from the Child's journal stating that the Child does not "like" Ms. H----. In response, Ms. H---- noted that before the Child became aware of the Court's proceedings in this matter, the Child was more open to being close to her, but since he learned of the herein case, he has become more reticent. However, Ms. H---- stated that she "can sense that he does not want to show that he likes me" but she nonetheless believed he was "happy with me" because "of how he interacts—he is playful, he talks to me, and it feels like he trusts me."
The Court also heard testimony from Paternal Grandmother, who noted that the Child was outgoing, energetic, and happy when he is with his Father. Paternal Grandmother stated that she and the Child visited her a "couple weeks ago" and that the Child was active and played with other family members who were present. She also noted that the Child was especially close to his Mother and that he did not "want to disappoint her." She stated that after February 2016, when Father filed the herein Petition, the Child became uncomfortable and less at ease in Father's care; she noted that he seemed to "catch himself having fun and stop," as if he could not relax. C----- C-----, Father's step-mother, echoed Paternal Grandmother's statements that the Child became more standoffish in February 2016, after Father filed the herein Petition.
The Court finds that the Child has a strong bond with Mother and the members of her household. On the other hand, the record is mixed with regard to the Child's bond with Father and the members of Father's household. The Court notes that the Child is exceptionally sensitive and clearly does not wish to disappoint his Mother. The record also reflects that the Child knew about the herein Petition and that it affected his behavior and feelings with regard to his Father. It is clear that the Child is confused about his Father's role in his life and that he is loyal to his Mother and sensitive to her emotions.
While the record reflects that the Child is more bonded to his Mother and the members of her household, this does not negate the fact that Father is demonstrating extensive efforts towards building his relationship with his son. There is nothing in the record that reflects that Father has been anything other than a caring parent seeking to play an active role in his son's life for the past two (2) years. Additionally, it is in the Child's best interests that he be bonded to both parents. Therefore, the Court finds that Father should be afforded an opportunity to strengthen his bond with the Child in the hope that Father and son may build a strong and positive relationship. Accordingly, the Court finds that this factor favors granting Father's request for joint custody and extended visitation time. (4) The child's adjustment to his home , school and community;
The record reflects that the Child is well-adjusted to his Mother's home, school, and community. The Child lives with his Mother, uncle, Mother's fiancé, and Maternal Grandfather in Maternal Grandfather's home. Mother testified that the home has five (5) bedrooms and that the Child has his own room. As previously noted, the Child is closely bonded to everyone in Mother's household.
Mother testified that the Child goes to school at Caravel Academy, which he began in the fall of 2016. Mother testified that the Child had previously attended Oberle Elementary School, but that he had "weird" behaviors there, including walking around the classroom and an inability to focus. Mother testified that since being a Caravel, the Child has been much more focused and happier. The Child is also involved in other activities, such as basketball, ice skating, Jujitsu, and wrestling, each at various times of the year.
Accordingly, the record reflects that the Child is well-adjusted to his home, school, and community, especially since moving to his new school.
On the other hand, the record reflects that the Child is not as adjusted to Father's home. Although Mother noted that Father had moved several times, the record reflects that Father has lived in the same residence since October of 2016 with his fiancé and her two children. Father's current residence, located in New Castle, is a single family home with three (3) bedrooms. Father moved with Ms. H---- to his current home from Ms. H----' parents' home. The Court finds that the record reflects Father's move was a progression towards greater stability, rather than an indication of instability.
As previously noted, the Child stated during the Court's interview with him that he was uncomfortable at Father's home. Paternal Grandmother and Father's fiancé indicated that some of the Child's discomfort may be due to the Child having to "share" his dad with Father's fiancé's two (2) children. In Father's home, the Child shares a room with Father's fiancé's son. Nonetheless, the record reflects that Father's home is appropriate for the Child. Paternal Grandmother stated that Father has a "nice home" with his fiancé. Father's employer also testified that he had been to Father's home and found it appropriate for the Child.
The Court finds that although the Child is more adjusted to his Mother's home, this is largely due to the little amount of time the Child has spent with his Father in his home, rather than any deficiency in Father's residence. Accordingly, the Court finds that this factor favors granting Father's request for more visitation and joint custody.
(5) The mental and physical health of all individuals involved;
The record was void as to any concerns related to the physical health of the parties. However, the record reflects that Mother, Father, and Child each have individual mental health concerns that the Court must consider.
a. Father's Mental Health
During the hearing, extensive testimony was presented with regard to Father's drug usage and addiction history. By all accounts, until July of 2014, Father was drug addict and heavy user of opiates and other drugs. In September of 2014, however, Father entered an addiction rehabilitation facility, and since that time has successfully maintained his sobriety and achieved stability in his life. Father noted that during his time in the treatment center, he was able to "create a foundation" and learn "coping skills." Father stated that it helped him "learn who [he] wanted to become."
The record clearly reflects Father's significant efforts and his determination to maintaining his sobriety. The Court heard testimony from Father, Father's fiancé, Father's employer, Paternal Grandmother, and Father's step-mother, all of whom testified regarding Father's lifestyle change and the maintenance of his sobriety. Father noted that although he continued to have "stressors," his recovery groups and his faith have assisted him in maintaining his sobriety. Father's fiancé testified that he goes to meetings between two (2) and three (3) times per week and leads an addiction recovery group at their church. Paternal Grandmother noted that he was "very active" in his recovery and "helps others" with their own addiction recovery. She also stated that Father was "a much better man" now and that he "made her very proud." She stated that he was close to his fiancé's children and that he was a strong provider for their family.
The Court also heard testimony from Father's employer, W------- B-----. Mr. B----- noted that Father had been working for him in his construction business sporadically since 2005, and consistently for the past two (2) years. Mr. B----- noted that he had been aware of Father's issues with addiction and that he was doing "very well" in his recovery over the past two years. He noted that Father was consistently at work on time and was a "hard worker" in a "tough business." He stated that Father was a strong role model for his Child; he noted that they "work under stressful conditions" and in those situations "you get to see people's character."
Finally, the Court heard testimony from Father's step-mother, C----- C-----. She stated that for the past two and a half (2½) years Father had been a "changed man" and that Father was exceptionally active in his recovery.
The record clearly reflects that Father has successfully maintained his sobriety for over two (2) years and is active in his recovery. Although Father's history of addiction is something the Court must consider, the Court also notes Father's exceptional strength in recovering from his addiction and in achieving stability in his life. The strength to overcome personal adversity demonstrates Father's ability to be a fine role model for his son, despite his past.
b. Mother's Mental Health
During the hearing, Mother testified that she had issues with anxiety relating to a diagnosis of Post-Traumatic Stress Disorder (PTSD). Mother stated that her diagnosis stems from domestic violence she endured from Father when Father was still using drugs. Mother stated that when Father was in active addiction, he was "mean and angry" and would "pull knives on her." Mother testified that the abuse occurred from 2005 to 2008. Mother also testified that she experienced an estranged relationship with her biological father due to domestic violence between her parents and she was ultimately raised by her mother and step-father. She did not have significant contact with her biological father until she returned to Delaware and began residing in his home. Mother stated that she was in counseling to address her PTSD and anxiety and that it did not affect her ability to appropriately parent the Child.
c. Child's Mental Health
The Child is currently in counseling with T---- M-----, an independent licensed professional counselor. The Court heard testimony from Ms. M-----, who noted that she sees the Child weekly to address the Child's adjustment disorder and anxiety and build his independence and coping skills. She stated that the Child has a difficult time being away from Mother and that he needs more time to adjust to being with his Father.
Ms. M----- testified that she had engaged Father and Child in a therapy session one (1) time. She noted that Father was appropriate and demonstrated love and patience with the Child. However, Ms. M----- stated that after the session Mother relayed to her that she had been "conned" by Father; however, Ms. M----- stated that she did not feel "conned."
Ms. M----- stated that Mother "leaves it up" to the Child as to whether he wants to visit his Father and that she "wants whatever will make [the Child] happy." She stated that additional counseling with Father and Child would be helpful to building their relationship. However, she stated that the Child was exceptionally anxious about spending the night at his Father's home and being away from his Mother. Accordingly, Ms. M----- stated she believed it was in the Child's best interests to spend time with his Father during the day but that a transition time of six (6) months to a year was needed before the Child could begin overnight visits with Father.
Upon careful consideration of the record and from the Court's observations, the Court finds that neither Mother's nor Father's mental health concerns preclude their ability to be appropriate and active parents to the Child. Father has rebuilt his life and successfully maintained his sobriety for an extended period of time. The record reflects that he is a hard worker and strong role model for his family. Likewise, the record reflects that despite Mother's anxiety and history of trauma, she has successfully raised the Child on her own. This in itself demonstrates her perseverance and strength in the face of adversity, as well as her own ability to overcome challenges.
Nonetheless, the Court is concerned about the Child's heightened level of anxiety. It is clear that he is struggling with his loyalty to his Mother and his anxiety about being away from her. The transition to overnight visits with Father must be carefully considered in order to ensure that the Child's fragile emotional well-being is maintained. Nonetheless, the Child needs and deserves the opportunity to build a relationship with his Father. Therefore, the Court finds that this factor favors granting Father's request, but with a structured visitation schedule that gently transitions the Child into overnight visits with his Father.
(6) Past and present compliance by both parents with their rights and responsibilities to the child under §701 of this title;
Pursuant to 13 Del. C. § 701, parents are responsible for the support, care, nurture, welfare, and education of their child. The Court finds that Mother has consistently complied with her rights and responsibilities pursuant to this section. Father did not comply with his responsibilities for a large portion of the Child's life. However, the record reflects that Father has been compliant for the past two (2) years.
By all accounts, Mother has always been the primary caregiver for the Child since his birth. Although Father stayed home with the Child when he was young, Mother noted that Father was often "on drugs" and would leave the Child to go next door to a neighbor's home. Mother stated that Father was "in and out" most of the time and that he failed to provide financial or emotional support for the Child during this time. Mother also noted that in 2008, the Division of Family Services ("DFS") had been involved with their family due to Father's drug issues. She stated that DFS had substantiated Father for emotional neglect and had issued a safety plan indicating that Father should only have supervised visitation with the Child. On the other hand, Mother noted that she had always provided for the Child in every way.
The record reflects that Mother works hard to support herself and the Child and to increase her family's stability through education. Mother testified that she was currently in the process of starting her own business as a clothing supplier consultant. Mother is also enrolled in Delaware Technical College and is triple majoring in nursing, human services, and drug and alcohol abuse counseling. Mother stated that she will have her RN certification by May of 2017 and will fully complete her education in 2018. Mother also stated that she does marketing and accounting for her fiancé's automotive shop. Mother stated that she sometimes has early classes and that her fiancé helps the Child catch his bus to school on those mornings. Accordingly, the Court finds that Mother, with some assistance from her fiancé, fully meets her responsibilities as a parent.
The Court also heard testimony from C----- M---- (hereinafter "Maternal Grandmother"). She stated that Mother had always been the primary caretaker for the Child and that Father was often "not around" and did not have a job. She noted that the Child did not have a strong relationship with his Father and that he only "recently" began to see his Father on a regular basis.
The Court finds that Mother has largely raised the Child completely on her own. The record reflects that the Child is bright and active and that Mother is committed to ensuring the Child's well-being. Accordingly, the Court finds that Mother has fully complied with her rights and responsibilities under the statute and that the Child's bright personality and focus is largely due to her role and self-sacrifice throughout the Child's life.
On the other hand, Father has not complied with his duties under this statute for most of the Child's life. By all accounts, he was largely absent and failed to provide financial support for much his son's life. Nonetheless, in the past two (2) years, Father has made substantial efforts to meet his responsibilities as a parent. He has been consistent with his visitation with his son and has advocated for additional time with him to build their relationship. Although Mother's attorney indicated that Father had missed some visits in September of 2016, this assertion was too nebulous for the Court to find significant, and was not addressed by Mother in her testimony. The record reflects that Father has been exercising his visitation with the Child during the time he has been allotted by Mother and the Court. Additionally, Father is now consistently paying his child support. Although he possesses a significant arrearage of $15,000, he has nonetheless been paying his monthly payments in full and testified that he will continue to do so until his arrearage is satisfied.
Finally, Father noted that he had another child, a thirteen (13) year old daughter, who he had not seen for almost a year. Father stated that he was attempting to rebuild his relationship with his daughter, but she has stated that she did not want to see him. However, while the Court does not find this fact insignificant, this nonetheless concerns a child who is not subject to the herein Petition.
Accordingly, the Court finds that Father has been compliant in his rights and responsibilities as a parent with regard to the Child for a significant time. Accordingly, the Court finds that this favors granting Father's request for additional time with his son and joint custody.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Pursuant to 13 Del. C. § 706A(a), any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the Court in determining the visitation arrangements for the child in accordance with the best interests of Children. Domestic violence is defined by 13 Del. C. § 703A(a), as including, but not limited to, physical or sexual abuse or threats of physical or sexual abuse and any other offense against the person.
During the hearing, Mother testified that she had endured abuse from Father during the time that he was abusing drugs. Mother stated that these instances occurred from 2005 to 2008 and involved Father pointing "knives and scissors" at her when the Child was present. During the hearing, Father denied that he had abused Mother in any way. On June 19, 2009, the record reflects that this Court entered an Order for Protection from Abuse by the consent of both Mother and Father, which expired on June 19, 2010. Mother indicated that she suffers PTSD from these occurrences of domestic violence.
Allegations of domestic violence by one parent against another are important factors for the Court to consider. In this case, Mother alleges that she was a victim of domestic violence by Father, and there is an Order for Protection from Abuse entered by the Court. However, this Order is an order entered with the consent of both parties, The Court is persuaded that Mother believes that she was abused by Father. The Court also is persuaded that at this time, Father was a drug addict and probably has little memory of what occurred during the time he was actively using drugs. The Court finds it is likely, thus, that the abuse alleged by Mother did occur. Nonetheless, the Court notes that this would have happened almost eight (8) years ago. There have been no allegations that Father is or was abusive to any other person since that time. Accordingly, while the Court considers these allegations seriously, the Court nonetheless finds that this should not inhibit Father's ability to have increased visitation with the Child. Therefore, the Court finds that this factor neither favors nor disfavors granting Father's request. (8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
The Court finds no criminal record of any import for Mother. However, Father possesses multiple misdemeanor and violation charges, as well as juvenile criminal history which includes an assault charge. However, the only felony Father was convicted of as an adult is forgery, in 2012. Accordingly, the Court finds that neither Father's nor Mother's criminal history are significant for the purposes of determining Father's visitation and custody of the Child.
The Court also reviewed a Delaware Criminal Justice Information System (DELJIS) check on the other adult individuals in Mother's household, Maternal Grandfather and Mother's fiancé. The Court found no criminal record of any import for Maternal Grandfather. However, the DELJIS report for Mother's fiancé, R----- D----, indicates a felony conviction for Manufacturing, Delivering, or Possession with Intent to Distribute a Controlled Substance in June of 2015. During the hearing, Mr. D---- and Mother testified that this occurred as part of a "set-up" by Mr. D----' ex-girlfriend. There were no other charges of any import for Mr. D----.
The court also found no criminal record of any import for Father's fiancé, C----- H----.
The Court finds that Mr. D----' conviction is not a charge that would prohibit the Court from placing the Child in Mother's home. However, the Court finds his charge extremely concerning, especially given that it occurred less than two (2) years ago. Nonetheless, the testimony reflects that Mr. D---- is actively involved in the Child's life in a positive way. However, the Court also finds that the Child would benefit from the greater contact with his Father, whose criminal history is of lesser import. Accordingly, the Court finds that this factor favors granting Father's request for additional visitation time with his son and joint custody.
CONCLUSION
Pursuant to Title 13 Del. C. § 701, Mother and Father are the joint, natural guardians of their minor Children and are equally charged with each Child's support, care, nurture, welfare, and education. After considering all relevant factors, the Court finds that factors three (3), four (4), five (5), six (6), and eight (8) favor granting Father's request, while two (2) favors denying Father's request. Factors one (1) and seven (7) neither favor not disfavor granting Father's request. Accordingly, the Court finds that it is in the best interest of the Child for Mother and Father to have joint legal custody over the Child and for Father to have increased visitation with the Child.
The Court notes the difficult facts in this case, as well as the significant anxiety endured by all parties, especially the Child, about this process. At the Call of the Calendar held in August of 2016, the Court informed Father that his history of drug usage and neglect of his parental duties could not be overcome in a short period of time. Rather, the Court noted that Father must be patient with the process in order to ensure that Father's transition into the Child's life from a sporadically involved Father with a drug addiction to an active, strong role model for the Child would take time. The Court finds that Father has been, should continue to be, patient with this process. The record reflects that Father has been sober for more than two (2) years and is exceptionally active in maintaining his sobriety. He has a healthy attitude about his addiction and understands that his recovery is a life-long pursuit, which he addresses with determination and maturity.
Additionally, the record reflects that Father has been making a substantial effort to be a stronger positive influence in the Child's life. Father has been compliant with child support in a timely manner and has exercised visitation with the Child during his allotted time. The record also reflects that Father has demonstrated exceptional strength in his recovery, is actively employed, and is caring for his fiancé's two (2) children. Thus, the Court finds that Father is a good role model for his son, despite his checkered past.
Likewise, Mother has always been the primary caretaker of the Child, ensuring that the Child's needs are met and that he is cared for appropriately. Mother makes this effort at great sacrifice to herself, such as enrolling her Child in a school more suited to his needs despite the expense, or in pursuing her own education in order to afford her family a more stable life.
Accordingly, the Court finds that both parents shall be afforded the same decision making authority as to the Child's education, medical issues, and fundamental decisions that concern his welfare and well-being. Therefore, Mother and Father shall share joint custody of the Child. Parents will need to work to communicate more effectively with each other to reach joint decision making for the benefit of their Child.
The Court also finds that Father's request for weekend visitation with the Child should be granted. However, the Court also finds that Mother's request and the Child's therapist's recommendation to slowly transition the Child back into Father's life should be given merit. Nonetheless, Mother seeks the Court afford Father only supervised visitation or extremely little time "until the Child is ready." However, the Court finds that this is too nebulous to provide both Father and Child with a concrete structure to build to their relationship. Likewise, the Child's therapist's recommendation of waiting for six (6) months to a year is not soon enough. The Court notes that while is Child is still young, it is vital that he begin growing his relationship with his Father as soon as possible. This growth cannot occur unless Father is afforded meaningful time with the Child, which includes overnight visitation. The Court finds that the Child should have the opportunity to build his relationship with his Father and that his Father would be a strong model for him. Therefore, the Court shall impose the following schedule for Father's visitation, which will include a transition for the Child:
For the next eight (8) weekends after the issuance of this Order, Father shall have visitation every other weekend from 10:00 a.m. to 8:00 p.m. on Saturday and from 10:00 a.m. to 6:00 p.m. on Sunday. After four (4) such visits, Father shall be afforded overnight visits with the Child every other weekend from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. This schedule shall continue for three (3) months. After three (3) months, or no later than July 1, 2017, Father shall be afforded visits with the Child every other weekend from Friday at 5:00 p.m. to Sunday at 6:00 p.m., which shall thereafter be Father's standard visitation schedule.
Beginning immediately, Father shall also be afforded a mid-week dinner visit on a weekday of the parties' choosing from 5:00 p.m. to 8:00 p.m. Father shall be afforded this visit each week.
During the summer of 2017, Father's visitation shall follow the schedule as outlined above. However, in the summer of 2018, Father shall be afforded the typical non-custodial parent's summer schedule of five (5) weeks of visitation, which shall be not less than one (1) week and not more than two (2) consecutive weeks. The parties shall maintain the standard shared holiday schedule, outlined below.
The Court also finds that Mother, Father, and Child shall engage in family counseling together. The Child clearly is uncomfortable with his Father and is struggling significantly with transitioning his Father into his life. The Court also believes that the Child is extremely loyal and sensitive to his Mother's negative feelings about his Father, and imposes some of these feelings upon himself. It is vital that Mother address her own feelings about Father in order to allow the Child to accept his Father's role in his life. Mother and Father must also learn to communicate appropriately in order for the Child and Father's bond to grow. A family counselor would assist Mother, Father, and the Child in working together to allow Father and Child to build a meaningful bond, which is in the Child's best interests and which Mother should strive to support.
This counselor shall be a different counselor from the Child's individual counselor, who is also Mother's individual counselor. To the extent that the parties' insurance does not cover the cost of the counseling, the counseling shall be shared equally between the parties. Within fifteen (15) days of the issuance of this Order, Mother shall give Father a list of three (3) family counselors. Within fifteen (15) days of receiving the list from Mother, Father shall choose one (1) counselor from that list and inform Mother of his choice. Father and Mother shall then immediately contact that counselor and work with each other's schedules to make an appointment for family counseling to begin as soon as possible.
During the hearing, testimony was presented regarding the parties' religious preferences. Although Mother is opposed to the Child attending church with Father, Mother's witness, the Child's therapist Ms. M-----, indicated that a Child may be exposed to two (2) religions without causing harm to the Child. Ms. M----- noted that once the Child is old enough to express his wishes, the Child may then choose his own religious preferences. Accordingly, the Court finds that it is in the Child's best interests for the Child to be exposed to both Mother's and Father's religious preferences so that he might make an independent choice regarding his own religion when he becomes much older. Therefore, the Court shall not impose any restrictions on Father taking the Child to church during his visitation.
The Court finds that the parties have substantial difficulty communicating, which inhibits their ability to appropriately co-parent their Child as is in his best interests. The Court found from the Child Interview that the parties have much to be proud of in the Child, as he is bright, articulate, and confident. He also has strong goals, relaying to the Court that he hopes to be a surgeon one day. Thus, it is vital that both parents work together to help him achieve that lofty but attainable goal. Accordingly, the Court encourages the parties to view the other parent in a positive light in order to seek outcomes that are best for their Child and effectuate the other parent's bond with the Child, all of which is crucial to his continued success and development.
The Court reminds the parties that each parent is entitled by statute to have reasonable access to Child by telephone, mail, and other means of communication and to receive all material information concerning Child, regardless of the custodial or residential arrangement. Additionally, each party shall foster a feeling of affection and respect between Child and the other parent. ACCORDINGLY, IT IS HEREBY ORDERED THAT THE DECEMBER 2, 2014 CONSENT ORDER IS MODIFIED AS FOLLOWS: 1. Mother, C-------- E-----------, and Father, J----- V-------, shall have joint legal custody of the Child, G----- V------- born May 1, 2007. 2. Primary residential placement of the Child shall remain with Mother. 3. Father's Visitation: For the next eight (8) weekends after the issuance of this Order, Father shall have visitation every other weekend from 10:00 a.m. to 8:00 p.m. on Saturday and from 10:00 a.m. to 6:00 p.m. on Sunday. After four (4) such visits, Father shall be afforded overnight visits with the Child every other weekend from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. This schedule shall continue for three (3) months. After three (3) months, or no later than July 1, 2017, Father shall be afforded visits with the Child every other weekend from Friday at 5:00 p.m. to Sunday at 6:00 p.m., which shall thereafter be Father's standard visitation schedule.
Beginning immediately, Father shall also be afforded a mid-week dinner visit on a weekday of the parties' choosing from 5:00 p.m. to 8:00 p.m. Father shall be afforded this visit each week.4. Father shall not bring the Child to his recovery group meetings. However, Father is not prohibited from bringing the Child to his church during his visitation. 5. Summer Visitation: Father's visitation schedule shall remain the same for the summer of 2017. Beginning in the summer of 2018, Father shall be afforded the typical non-custodial parent's summer schedule of five (5) weeks of visitation, which shall be not less than one (1) week and not more than two (2) consecutive weeks. 6. Counseling: Mother, Father, and the Child shall engage in family counseling to address the Child's anxiety around visitation with his Father. This counselor shall be a different counselor from the Child's individual counselor, who is also Mother's individual counselor. To the extent that the parties' insurance does not cover the cost of the counseling, the counseling shall be shared equally between the parties. Within fifteen (15) days of the issuance of this Order, Mother shall give Father a list of three (3) family counselors. Within fifteen (15) days of receiving the list from Mother, Father shall choose one (1) counselor from that list and inform Mother of his choice. Father and Mother shall then immediately contact that counselor and work with each other's schedules to make an appointment for family counseling to begin as soon as possible. 7. Transportation: The party beginning visitation shall be responsible for picking up the Child. For example, if Mother is receiving the Child following Father's weekend visitation, she shall be responsible for picking the Child up from Father's home on Sunday at 6:00 p.m. Likewise, Father shall be responsible for picking up the Child at the beginning of his weekend.
During Father's mid-week visits, however, he shall be responsible for both pick-up and drop-off of the Child.8. Parental Communication: The parties shall communicate directly with one another regarding the well-being of the Child, whether by telephone, text, or email. Furthermore, each parent shall advise the other parent of the Child's health and welfare, including the date, time, and location of any medical appointments, which both parents may attend. 9. Telephone Access: All parties shall have telephone access with the Child. Additionally, each party shall be entitled to frequent telephone and electronic communication with the Child when in the care of the other parent. 10. Holidays : Mother shall have the Child 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 Child on the 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 religiousholidaysFourth of JulyHalloweenChristmas Day | Memorial DayLabor DayThanksgiving DayChristmas Eve |
With the exception of Christmas and Halloween contact, holiday contact shall be from 9:00 a.m. until 6:00 p.m. the day of the holiday. Halloween contact shall begin at 5:00 p.m. and end at 9:00 p.m. on Halloween. Christmas Eve contact shall begin at 6:00 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 6:00 p.m. on December 26th.11. Mother's/Father's Day : On Mother's Day and Father's Day, no matter whose turn for contact, the Child shall be with the parent whose holiday is being celebrated from 10:00 a.m. until 9:00 p.m.. 12. The parties may modify the visitation/holiday schedule by mutual agreement in writing.
IT IS SO ORDERED. February 9, 2017
Date
/s/ _________
ARLENE MINUS COPPADGE, JUDGE Date Mailed to Petitioner(s): __________
Date Mailed to Respondent(s): __________ AMC/cap
See 13 Del. C. § 727(a): Whether the parents have joint legal custody or 1 parent has sole legal custody of a child, each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life, and school activities and conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The Court shall not restrict the rights of a child or a parent under this subsection unless it finds, after a hearing, that the exercise of such rights would endanger a child's physical health or significantly impair his or her emotional development.