Opinion
File No. CN07-03783 CPI No(s) 17-06091
06-28-2019
J----- B------ -- -------- -- ----, -- ----- Petitioner v. D--- R------- P.O. BOX ---- ------, -- ----- Respondent
Petitioner Attorney Amanda Brinton, Esquire Respondent Attorney Patrick Boyer, Esquire
Nature of Proceeding
Petition to Modify Custody Date of Decision:
Date Mailed: Petitioner Attorney
Amanda Brinton, Esquire Respondent Attorney
Patrick Boyer, Esquire AMENDED ORDER - PETITION TO MODIFY CUSTODY
Michelle Skoranski, Esquire was appointed to represent Mother in the Dependency/Neglect Petition after Mother was found to be indigent based on her testimony. Mother later privately retained Ms. Skoranski to represent her in the custody matter. Ms. Skoranski filed a Motion to Withdraw on August 1, 2018, and the Motion was granted without objection on August 27, 2018. Thereafter, Mother represented herself until Mr. Boyer entered his appearance on March 13, 2019. Mr. Boyer represented Mother during the hearing but then filed a Motion to Withdraw on April 18, 2019. With Mother's consent, the Motion was granted prior to the instant Order being issued. Mr. Boyer is receiving a courtesy copy of this decision as he represented Mother during the hearing.
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition to Modify Custody filed on February 28, 2017, by J----- B------, (herein "Father"), represented by Amanda Brinton, Esquire, against D--- R------- (herein "Mother"), represented by Patrick Boyer, Esquire, in the interest of N------- B------, born July --, 20--, (herein "minor child"), represented by Derek Abbott, Esquire. The Court held a trial on March 25 and 26, 2019, and heard testimony from both parties, as well as Dr. Joseph Zingaro (psychologist), Caetlyn Carroll (Reunification Counselor), Jasmine Wynn (Child's Therapist), and S------- B------ (Father's daughter). The Court interviewed the child on April 9, 2019.
PROCEDURAL HISTORY
Litigation between these parents involving Custody, Petitions for Protection from Abuse (herein "PFA"), and Petitions - Rule to Show Cause (herein "RTSC") began in the middle of 2007. Father filed a Petition for Custody on June 18, 2007. Mother was served with that Petition on June 28, 2007, and filed a PFA against Father the next day. She was granted an Ex Parte Order on the same day. She later voluntarily dismissed that Petition on July 6, 2007. Mother filed a Cross Petition for Custody the same day she dismissed her PFA. An Interim Consent Order was entered on the Cross Petitions for Custody on August 21, 2007, and provided the parties with joint custody, Mother with primary residence, and Father with visitation two days per week to be scheduled around his work schedule. Three months later, on November 27, 2007, Father filed a PFA against Mother. Mother filed a cross PFA against Father on December 26, 2007. The Petitions were resolved by Cross Consent Orders on December 28, 2007. One week later, after a hearing on January 4, 2008, Judge Wasserstein issued a final Order resolving the Cross Custody Petitions and gave the parties joint custody and Mother primary residence. Father was given a contact schedule that gradually increased his overnights with the intent of Father having primary residence in the summer. It does not appear that Father's contact with the child ever increased to the point where he had primary residence in the summer.
Father filed his first RTSC on January 15, 2009, alleging that Mother was refusing to give N------- to him on the weekends. Mother was served with this Petition on January 26, 2009, and filed her first RTSC against Father the next day. Mother also filed a second PFA against Father on February 7, 2009. Mother later dismissed her PFA on the record after conceding there was "insufficient basis for petition" even after the Commissioner offered her the opportunity to amend her Petition. Judge Waserstein held a hearing on the Cross RTSC Petitions on June 8, 2009. The Court did not find either party in contempt but the prior Custody Order was altered to establish additional deadlines for the parties to set a contact schedule on their own. Both parties were represented at this time and they filed a Stipulation and Order through their attorneys establishing a contact schedule on July 1, 2009. They filed a second Stipulation on August 5, 2009, and Judge Waserstein signed it indicating it was a "final order without a hearing."
About one year later, Mother filed an emergency Petition to Modify Custody on February 19, 2010, alleging that Father's friend, D-----, pokes and hurts the child in his rectum and that a criminal investigation was pending. An emergency Order was entered but was vacated March 2, 2010, after the emergency hearing when the Court learned that the child failed to disclose any abuse during a Child Advocacy Center interview. The parties were ordered to share the cost of a custody evaluation.
Nine months later, on November 23, 2010, Father filed a Cross Petition to Modify Custody. The Petitions were consolidated and the parties reached an agreement for an interim Order on January 4, 2011. There was a hearing on June 17, 2011, and on August 8, 2011, after which the Court entered an Order continuing joint custody and primary residence with Mother but restricted Father's contact to supervised visitation at the Visitation Center. It appears Judge Waserstein believed that Father made delusional statements that he was fourth in line to Obama and had not completed a psychological evaluation. Judge Waserstein indicated that if Father obtained an evaluation that addressed his delusional statements, he could file a new custody petition. During the instant hearing, Father denied making any statement regarding being fourth in line to Obama and alleges that it was Mother who made the statement to the Court and not Father. This Court attempted to listen to the record of Judge Waserstein's hearing but it was no longer available because so much time had passed.
Eighteen months later, Father filed a second RTSC on June 22, 2012, alleging that Mother was refusing to bring the child to the Visitation Center for his supervised visits. The hearing on the RTSC was held 11 months later on May 22, 2013. After Mother alleged during the hearing that the child had several medical conditions, Judge Wasserstein did not find Mother in contempt and ruled that "The parties shall continue to hold joint custody but Mother's decision shall prevail, especially in the areas of medical care, therapy and counseling." This Court could not find any documentary evidence of the medical conditions that Mother claimed the child had. The Court continued Father's supervised visits at the Visitation Center but eliminated his phone contact. N------- was almost 7 years old at the time this Order was entered.
13 Del. C. § 728 (b)(2) allows "A temporary transfer of custody or primary residence or both of the child to a parent applying for relief under this section for up to 30 days without regard to the factors set forth in § 729 of this title;" However, there is no reference in the Order indicating that Mother's final decision making authority was temporary.
After Judge Waserstein's decision on Father's RTSC which reduced his custodial rights and eliminated his telephone contact, there were no further Petitions filed until February 21, 2017, when the Department of Services for Children, Youth and their Families (herein "DSCYF") filed a Dependency/Neglect Petition for Custody of N-------. Ex Parte Custody had been given to DSCYF via the on-call Judge the evening before. N------- was removed from Mother's primary care. DSCYF's Petition alleged that since receiving the initial hotline call on November 2, 2016, DSCYF had received nine (9) other hotline calls regarding Mother's treatment of N-------. When Father learned of DSCYF involvement, he retained private counsel and filed an Answer to DSCYF's Petition on February 28, 2017, denying that the child was dependent in his care and indicating he was ready, willing, and able to provide a stable home for the child. Father simultaneously filed a Petition to Modify Custody. At the Preliminary Protective Hearing (herein "PPH") on March 1, 2017, "Mother stipulated to probable cause for dependency as the child has mental health needs that Mother cannot manage and Mother is afraid of child." Derek Abbott, Esq., was appointed to represent N------- through the Office of Child Advocate. An Adjudicatory Hearing was scheduled for March 30, 2017. The hearing did not conclude in the time allotted and had to be continued until May 26, 2017. Mother filed an Answer to Father's Petition for Custody on April 3, 2017, requesting sole custody and primary residence despite indicating at the PPH that she was unable to care for the child's mental health needs. On May 26, 2017, the parties agreed that the Petition filed by DSCYF would be dismissed and the Court would accept an Interim Stipulation in the Custody proceeding.
See PPH Order signed by this Court on March 2, 2017.
Mr. Abbott agreed to continue to represent N------- in the private custody matter.
The Interim Stipulation was extensive and detailed. The parties had joint legal custody but Father had final decision-making authority in the event of a disagreement. Father had primary residence and was to follow the recommendations in the report of Allison Randall, LCSW. Mother was to have supervised visitation at either the Elkton or Hudson Visitation Centers. Mother was not to bring gifts, medicine, or food; discuss court proceedings; make promises; denigrate Father; or discuss any other inappropriate topic. Mother and child were to participate in individual counseling and in family counseling but only after Mother's counselor, child's counselor, and the family counselor agreed it was appropriate. Mother was to continue in her individual counseling at the frequency directed by the counselor and to follow all the recommendations in Allison Randall's report as well as any recommendations from Dr. Zingaro who was scheduled to perform a psychological evaluation of Mother on June 1, 2017, pursuant to this Court's Order in the DSCYF matter. Mother was not to have contact with Father's residence or employment. Mother was not to have contact with the child outside of visitation and was not to go to the child's school. Father was to schedule the child's medical appointments and inform Mother of his appointments.
A Pretrial Conference was scheduled regarding Father's Petition to Modify Custody for August 28, 2017, (but was later changed to August 21, 2017) and an all day trial was scheduled for September 18, 2017. At the Pretrial Conference, Father and Mr. Abbott were served with a RTSC filed by Mother on August 2, 2017, (which was later amended on September 7, 2017). The parties agreed Mother's RTSC could be consolidated with the hearing on Father's Modification of Custody. It was also brought to the Court's attention that Mother's criminal charges for Endangering the Welfare of a Child and Child Abuse 3rd were still pending and were scheduled for a Case Review on October 10, 2017, and that a Petition for Substantiation against Mother had been stayed pending the outcome of the criminal case. The parties agreed that it would be appropriate to continue the Custody trial until at least the criminal charges were resolved.
A second Case Management Conference was held on October 10, 2017. During the conference, the parties agreed that they would pick a family counselor so that one was in place when the child's counselor and Mother's counselor indicated Mother and child were both ready to begin family therapy. The parties agreed the Custody Petition would continue to be stayed as Mother's criminal charges and substantiation proceeding were still pending and the child was just starting to make progress in counseling.
On January 12, 2018, Father filed a RTSC. That Petition was also consolidated with the instant hearing.
A third Case Management Conference was held on March 23, 2018. At this point, the counselors still had not recommended that reunification counseling begin. Apparently, the therapist was indicating that N------- was uncomfortable with the concept of reunification counseling but nobody was indicating that he would be harmed by beginning counseling. As no harm was alleged, the Court ordered that at least one joint session take place before the two-day trial that was scheduled for August 8 and 9, 2018.
A fourth Case Management Conference was held on May 21, 2018. The Court ordered that Mother and child continue in their individual counseling sessions and again ordered that at least one joint counseling session take place prior to the start of the trial.
Mother filed another RTSC on June 18, 2018. All RTSC Petitions were consolidated with the hearing scheduled on the Petition for Modification of Custody.
On July 2, 2018, Mother filed a "Motion to Convert Hearing" in essence asking the Court to continue the two-day hearing scheduled for August 8 and 9, 2018, and convert it to a shorter hearing where Mother could testify regarding the issues of family counseling and co-parenting. The Court scheduled a teleconference to discuss Mother's request and ultimately agreed to continue the hearing. The hearing was rescheduled for November 13 and 14, 2018, and a pretrial conference was scheduled for October 4, 2018.
On October 4, 2018, Mother filed a "Motion for Custody Trial date change after 12/13" and, in essence, asked the Court to continue the Custody trial that was scheduled for November 13 and 14, 2018, until after her criminal trial which was scheduled for December 13, 2018. Neither Father nor the child's attorney opposed the request. Therefore, without objection, the Court honored Mother's request and continued the trial. Another Case Management Conference was scheduled for December 20, 2018. During that Case Management Conference, the trial was rescheduled for March 25 and 26, 2019. The trial was completed on said dates.
Criminal Charges
On February 15, 2011, Father was charged with harassment. Mother was the alleged victim. Father was accused of stating that "he was going to 'slam' D--- [Mother]". Father was found guilty after a trial.
State of Delaware v. J----- S. B------, Case No.: 1102021650.
On June 21, 2017, following DSCYF's Petition for Custody, Mother was charged with Endangering the Welfare of a Child and Child Abuse 3rd degree. Mother entered a Probation Before Judgment Plea on April 30, 2018. Mother later filed a Motion to Reopen her plea alleging that she did not know that a plea to said charges would result in an automatic placement on the Child Protection Registry. The Commissioner vacated the plea and reopened the matter. Mother was represented by the Public Defender's office and went to trial on the charges on December 13, 2018. Mother was found guilty on both counts by a Commissioner. On January 11, 2019, Mother filed a Request for Review of a Commissioner's Order (herein "ROCO"). On May 15, 2019, Judge Ranji affirmed the Commissioner's decision finding Mother guilty on both counts. On May 23, 2019, Mother requested a jury trial. Upon information and belief, as of the entry of this Order, the jury trial has not been completed.
State of Delaware v. D--- M. R-------, Case No.: 170615040.
On July 9, 2018, Mother was charged with five counts of criminal contempt. She was accused of contacting N------- when there was a No Contact Order in place. Mother pled guilty to two of the five counts on December 18, 2018.
State of Delaware v. D--- M. R-------, Case No.: 1806015697.
FACTUAL FINDINGS
The parties were in a relationship for two (2) years but were never married. N------- was born on July --, 20--. Mother and Father lived together with N------- in Delaware until N------- was about 11 months old. After their relationship ended, Mother had primary residence of N------- and Father had visitation coordinated with his irregular work schedule. Father attempted to exercise his visitation with N-------. He filed two RTSC Petitions against Mother attempting to enforce his visitation rights. Mother was not found in contempt either time and, after Father's visitation rights were reduced to supervised visitation at the Visitation Center, his telephone contact was eliminated, and the custodial arrangement was changed to joint custody with Mother having final decision making authority especially in the areas of medical care, therapy and counseling, Father stopped filing Petitions. N------- was almost 7 years old at the time.
Judge Waserstein's Order dated June 6, 2013.
Mother retained primary residential custody of N------- until February 20, 2017, when DSCYF was granted emergency custody of N-------. DSCYF's Petition alleged that they had received numerous hotline reports alleging that Mother was physically, emotionally, and mentally abusing N------- and that there were concerns regarding the number of hospital and mental health facilities that Mother had insisted treat N------- for behaviors she could not control.
Judge Coonin's February 20, 2017, Ex Parte Custody Order in Division of Family Services v. D--- R------- and J----- B------.
Prior to February 20, 2017, Father tried to maintain frequent and meaningful contact with the child. The parties agree Father was visiting with N------- until 2012. N------- was six (6) years old and recalled visiting with his Father at the Visitation Center. Eventually, Father's visits stopped. Father claims Mother stopped bringing N------- to the Center. Mother disagreed with Father's reasons for his lack of contact with N------- from 2012 through 2017 but did not provide any explanation as to why Father was not visiting with N-------. In her testimony, Mother referenced Judge Waserstein's Custody Orders from August 11, 2011, and June 6, 2013, as a reason why Father was not visiting. This Court has reviewed those Orders. The 2011 Order terminated Father's visits but the 2013 Order indicated that Father was to have supervised visits at the Visitation Center.
N------- reported his Mother had many excuses as to why he could not continue visiting with Father. N------- remembered his Mother telling him his Father had a contagious neurological disorder and she was trying to protect him from it. N------- also remembered his Mother telling him his Father was a drunk and that Father sexually abused him. He told the Court he has no memory of his Father sexually abusing him.
During the five (5) years when Father did not see N-------, there is no dispute that Father continued to provide child support and health insurance benefits for the child. Father explained that, over time, he lost hope and was worried about losing his parental rights if he returned to Court.
On February 20, 2017, N------- entered foster care after Mother indicated she was not able to care for N-------. DSCYF contacted Father. Once Father was made aware that N------- was in DSCYF custody, Father immediately retained counsel and filed a response to DSCYF's petition indicating that he was ready, willing, and able to take N------- home and requested N------- be placed with him. Unfortunately, because of the length of time that had passed since N------- had seen his Father, DSCYF did not feel comfortable placing N------- with Father. However, after the PPH, N------- immediately began visiting with Father on weekends in an attempt to re-establish their relationship. After a few weekend visits and prior to the Adjudicatory hearing, at the end of one of his weekend visits with Father, N------- had a melt down and refused to go back to his foster home. He insisted on remaining with his Father. Father contacted DSCYF and they approved N------- remaining in Father's home. By the time of the Adjudicatory hearing, DSCYF felt comfortable rescinding custody with primary residence to Father.
To help with the child's transition from the foster home to Father's home, DSCYF referred N------- to Jasmine Wynn, MSW, LMSW for counseling. After assisting with the transition, Ms. Wynn continued as N-------' individual therapist. Ms. Wynn worked with N------- on a biweekly basis beginning in May, 2017. She helped N------- address the physical and medical abuse that he claimed to have suffered in his Mother's care.
Simultaneously with the dismissal of DSCYF's Petition, the parties signed an Interim Stipulation on May 26, 2017. The terms of the agreement were extensive and are referenced in the Legal Procedure herein. Mother was to visit with N------- at a Visitation Center or in a therapeutic setting. Father agreed that Mother visited with N------- two times at a Visitation Center. Father testified that, after two visits, he would drive N------- to the Center, but N------- would refuse to get out of the car. Father asserted that N------- did not want to see his Mother. Mother asserts that Father was interfering with her visits by not forcing the child to visit with her. N------- supported Father's version of the events and told the Court that he refused to get out of the car at the Visitation Center because he did not want to visit Mother.
Interim Stipulation Order signed by this Court on May 26, 2017.
The terms of the Interim Stipulation also prohibited Mother from contacting N------- and Father outside of visits or therapy sessions. Mother was charged with violation of the No Contact Order in place due to the pending criminal matters. Mother plead guilty to two of the five counts filed against her. Father submitted video surveillance of a woman similar in appearance to Mother, driving the same type of car Mother drives, pulling into his driveway and dropping boxes of items for N------- in Father's yard. Mother reviewed the video during the hearing, but testified that she did not recall going to Father's house.
The Interim Stipulation required Mother to continue in individual counseling until successfully discharged by the therapist. Family counseling was to begin once N-------' therapists indicated he was ready for it. As of the date of the hearing, Mother had used three different individual counselors. Mother testified that she first saw Patrice Brown for individual counseling. Mother believes she began counseling with Ms. Brown in March, 2017, and stopped seeing Ms. Brown in June, 2017, when Ms. Brown indicated she was not qualified to properly treat Mother. This time frame coincided with the time period when Dr. Zingaro issued his report with Mother's diagnosis. Next, Mother saw Lisa Hollingsworth from June, 2018, through December, 2018. Mother said she stopped treating with Ms. Hollingsworth when Ms. Hollingsworth told Mother that she needed a fresh start with a new therapist. Mother then began seeing Kim Bursler in January, 2019. At the time of the instant hearing, Mother was seeing Ms. Bursler one to two times per week. Mother was not sure if Ms. Bursler has experience treating parents who have abused their children.
In addition to individual counseling, Mother and N------- participated in family counseling. Mother selected Caetlyn Carroll for family counseling. Ms. Carroll recently informed Mother that there was nothing more she could to do to help Mother with her relationship with N-------. Mother hopes to transition to the Bellefonte Center and start family therapy with N------- there.
Mother is 50 years old. She is a registered nurse and is currently employed by a staffing agency known as G------ H----- C--- R-------- which coordinates temporary placements for nurses in schools and nursing homes. For the past six (6) years, Mother has worked in various Delaware public schools. Mother does not have any other children. Mother was living in Newark, Delaware when this case began. In December, 2018, she sold her home and moved to Dover, Delaware. Initially, she refused to provide the Court with her address but later admitted she has a weekly rental at a M--- S---- S----- in Dover and uses a post office box for mail. She indicated that she plans to move to West Chester, Pennsylvania when this matter is over. She was not able to tell the Court where N------- would attend school in Pennsylvania and where he would be living.
Father is 52 years old and lives alone with N------- in a single family home in Bear, Delaware. He is currently on long-term disability due to anxiety. He intends to return to his previous employment at P----- S------ E------- G-- and C------. He worked as an Electronics' Technician for 16 years. He has two adult daughters. S------- B------ is the younger of the two daughters and lived with Father and N------- for a short time after N------- was placed with Father. C------ is -- years old and visits occasionally.
N------- is now 12 years old and is in the seventh grade at G------ B------ Middle School. N------- started attending G------ B------ in fifth grade. When N------- lived primarily with his Mother, he attended four different schools between Kindergarten and fourth grade; the W----- School, the H------- School, H---- A-----, and the O------ C------ School. N------- said his Mother would change his schools because she believed he was being bullied. N------- did not report that he was in fact bullied at any time. Dr. Zingaro indicated in his report that he saw no evidence from the records he reviewed that N------- was in fact ever bullied. N------- enjoys living with his Father and has no interest in visiting with his Mother at this time. Further description of his position is set forth in factor 2 below. N------- was apparently on approximately 10 medications when he was in Mother's care. He is currently on no medication and reports that he is happy and healthy.
Dr. Zingaro's report
As part of the DSCYF case, the Court ordered Mother to undergo a psychologic evaluation. Dr. Zingaro, a psychologist employed by Peoples Place in Milford, completed his evaluation and issued his report on June 13, 2017. As part of his evaluation, he reviewed the following: a psychological evaluation of Mother performed by Amber Warrell, PSY.D., from Mid-Atlantic Behavioral Health; the Caregiver Child Assessment performed by Allison Randall, LCSW, 5/23/17; a video of Mother and child visiting; an Adult Self-Report; the Minnesota Multiphasic Personality Inventory (MMPI); documents supplied by Mother from the Department of Justice, several from Nemours, and several from the Children's Hospital of Philadelphia Division of Gastroenterology, Hepatology, and Nutrition; Medication Orders (1/8/17) from Dr. Bautista; a Discharge Summary from the Horsham Clinic (1/8/17-1/18/17); documents from Belmont Behavioral Hospital which showed the child was discharged on 2/16/17 with a diagnoses of Disruptive Mood Dysregulation Disorder, Anxiety Disorder Unspecified, Eosinophilic Esophagitis, Mild Intermittent Asthma, and Benign Congenital Hypotonia which indicated that the child was on 10 medications at the time; a document from O------ C------ School Bullying Investigation (11/16); and his own clinical interview of Mother.
See Interim Stipulation Order signed by this Court on May 26, 2017.
Dr. Zingaro is a licensed psychologist and, as such, has the authority to diagnose Mother. Mother questions his expertise to diagnose her and presented no expert to counter his opinion. Dr. Zingaro diagnosed Mother with Fictitious Disorder Imposed on Another. Said diagnosis
...requires that there be a falsification of physical or psychological signs or symptoms or induction of injury or disease in another associated with identified deception. The individual presents another individual (the victim) to others as being ill, impaired, or injured. The deceptive behavior is evidence even in the absence of obvious external rewards....
The diagnostic features include, according to DSM-V, "Methods of illness falsification can include exaggeration, fabrication, simulation, and induction. While a pre-existing medical condition may be present, the deceptive behavior or induction of injury associated with the deception causes others to view such individuals (or another) as more ill or impaired and this can lead to excessive clinical intervention.
Child's Exhibit 3, pg. 10.
Dr. Zingaro noted that Mother "seems so unaware and uninsightful about her behaviors and how her behaviors are impacting on others that she truly believes that nothing is wrong with her and that she is not in need of treatment and does not need to change any of her behaviors." He further noted that "In addition to what appears to be pathological high levels of denial and distortion about her child, there is the possibility that Mrs. R------- is using the same coping mechanism with the child's father." For example, he found no evidence that Father had a "Delusional Disorder" as Mother had alleged or that the child was being bullied in school as Mother had reported. Dr. Zingaro reported that "Individuals who have similar issues as Ms. R------- often need a specialized treatment to help them examine and then hopefully correct cognitive distortions in the high level of defensiveness that they have." He testified that this disorder is a form of child abuse and the treatment is the same as any other form of child abuse. Treatment for this disorder requires an individual to own her behavior, apologize to the child, and convince the child that it won't happen again. As of the hearing, Dr. Zingaro had no information that Mother had successfully completed a treatment program. His recommendation at the time he wrote his report remained as of the date he was testifying. He recommended
Child's Exhibit 3, pg. 9.
Child's Exhibit 3, pg. 9.
that under no circumstances should Ms. R------- have unsupervised visits with her son. There are numerous reports that she has difficulty
controlling her anger and has been physically abusive to him. These reports come not just from the child, but from other individuals in the child's life, such as school officials, etc., making it highly unlikely that all the other individuals that have commented about this aggression are wrong and Ms. R------- is correct in saying that they are either making things up or they have misperceived behaviors that she has done.
Child's Exhibit 3, pg. 10.
Dr. Zingaro also met with Father on May 10, 2017. He indicated that a previous psychological report of Father raised some concerns regarding anger management issues. Dr. Zingaro disagreed. He testified that Father had no psychological makeup in 2017 that would lead one to believe that Father had issues controlling his anger. He further opined that the harassment charge Father incurred in 2011 was most likely a result of his frustration from dealing with Mother.
Further description of the relevant facts in this case are discussed in the analysis of the best interest factors below.
LEGAL STANDARD
The parties' current Order was entered by Judge Waserstein on August 8, 2011, and was modified thereafter by RTSC Petitions through 2013. The instant Petition was filed on February 27, 2017, more than two (2) years after the current Order. As such, the Court will follow the criteria set forth in 13 Del. C. § 729(c)(2), which provides that an Order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:
(2) If the application for modification is filed more than 2 years after the Court's most recent order concerning these matters, the Court may modify its prior order after considering:
a. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification;
b. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and
c. The factors set forth in § 722 of this title.
13 Del. C. § 722 provides:
(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 shall consider all of the relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabitating 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.
A. Whether any harm is likely to be caused to the child by a modification of its prior order , and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification;
Mother asserts that the child would be harmed if the Order was modified to give Father legal custody or primary residence arguing that Father is unable to meet the child's needs. Mother's argument is without merit and contrary to the evidence. From all reports, the child is happy and healthy in Father's care and Father is meeting all of the child's needs. In fact, the Court finds that it is likely that the child will be harmed if the Order is not modified for all of the reasons set forth herein.
B. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and
Mother filed two RTSC Petitions against Father while this matter was pending. Orders denying those Petitions are being issued simultaneously herewith.
Father filed a RTSC against Mother while this matter was pending. An Order is being issued simultaneously herewith finding Mother in contempt for violating the Interim Stipulation. Mother also plead guilty to two of the five counts of Criminal Contempt of the No Contact Order that was in place after Mother was charged with Child Abuse 3rd degree and Endangering the Welfare of a Child.
C. The factors set forth in § 722 of this title.
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father is requesting that the Court give the parties joint custody, but he wants final decision making authority regarding matters related to N-------' health, education, and welfare if the parties cannot agree. In essence, Father is seeking sole custody. Father is also seeking primary residence of N-------. Father proposes that Mother have supervised visitation in either a therapeutic setting or at a visitation center.
Mother is also seeking joint custody, but she wants full decision making authority about N-------' health and education because Mother does not believe the child is doing well in Father's care. In essence, Mother is also seeking sole custody. However, Mother submitted no evidence to support her position that the child is not doing well in Father's care. Mother wants primary residence of N------- and proposes that Father have supervised visitation at a visitation center. However, Mother also presented no evidence whatsoever that Father's contact with the child would need to be supervised.
The Court finds this factor is neutral as to custody, residence, and visitation.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Court interviewed N-------. N------- is twelve (12) years old and did not appear nervous when speaking with the Court. N------- started the interview talking about how Mother withheld information from him about his Father. When asked to explain, N------- said that his Mother had been telling him lies about his Father for the majority of his life. N------- explained that Mother told him Father had a contagious neurological disorder and that she did not want N------- to see his Father because she did not want N------- getting sick. Additionally, N------- indicated that Mother told him that his Father was a drunk and that Father sexually abused N-------. N------- did not recall ever being sexually abused by Father.
When N------- was asked about what he remembered about his Mother's home he mentioned the medication, constant doctor appointments, and Mother throwing stuff at him. N------- recalls being given about 10 different medications on a daily basis. N------- explained that since living with his Father he does not take any of the medication. N------- explained what would happen when he would see a doctor with his Mother. N------- would tell the doctor his symptoms and then Mother would excuse N------- from the room while she talked with the doctor one-on-one and then the doctors would prescribe medication for him. N------- described his Mother as a "bit of a persuader". He chuckled and jokingly admitted that her techniques do work because he learned from her how to manipulate people.
N------- also told the Court that his Mother would trick his teachers into thinking he suffered from different conditions. N------- provided the Court with an example as to how he discovered that his Mother was telling his school information in order to "trick them". N------- said he likes to use a pencil more than a pen because a "pencil is more forgiving." One day during class, he asked a teacher to borrow a pencil but the teacher said she could not let him write with a pencil because his 504 plan prohibited it. N------- claims he had no idea that he had a 504 plan and does not think he ever needed a 504 plan. He believes he was no different than any other kid in his school. N------- still has a 504 plan.
See Father's Exhibit 6.
N------- said he was always changing schools because his Mother did not like him getting bullied. When N------- lived with his Mother, he went to four different schools from Kindergarten through fourth grade. Since living with his Father, N------- has attended the same school for two years, G------ B------ Middle School. He is currently in the seventh grade.
N------- recalled an incident that occurred at school when he was living with his Mother. He said he had done something wrong at school and Mother was called to pick him up. Mother dragged N------- out of the school as he dug his heals into the ground and latched his arms around a pole. He even recalled pushing the button prompting a camera feed that was linked to the school secretary's desk and screamed for help. Finally, Mother threw N------- into the back of her car, and forced him to sit in the middle seat. N------- explained that when he drove in the car with his Mother he was required to sit in the middle of the back seat so that Mother would be able to slap his legs while she was driving. Shortly after this incident, he learned that DFS was conducting an investigation because they left notes on Mother's door indicating that they were trying to reach Mother. N------- recalls his Mother threatening him saying "N------- if these notes keep coming I will have to do something about this. Either by grounding you or beating you."
N------- indicated that his Mother would discipline him by throwing things at him. He told the Court he loves to read and had a shelf full of books in his bedroom. His Mother threw hard covered books at him. Mother would also smack his hand. He recalled his Mother pulling down his pants and smacking his bottom with a book or her hand. After he asked his friends how they were punished and learned that other parents grounded their children, N------- claimed he told a teacher about how his Mother disciplined him by throwing books at him and hitting him. N------- said he first told his teacher in third grade but it was not until fifth grade that N------- told his friends and some teachers that his mom was abusing him and he "needed help".
N------- explained that after DFS took custody, he had weekend visits with his Father. One Sunday afternoon, N------- said he told his Father that he did not want to return to the foster home and DFS allowed him to remain with his Father. Prior to the weekend visits with his Father, N------- had not had any contact with his Father during the previous five (5) years. N------- recalled visits with Father when he was six (6) years old at the Visitation Center. N------- said he would ask his Mother to visit with Father but his Mother would say Father had a contagious brain disease. N------- said that when he began visiting Father, he looked up neurological disorders and learned that none of them are contagious.
N------- said he likes living with his Father and has the best of times with his Father. They laugh and joke around together and they play games together. N------- reported that he has friends in his neighborhood who live across the street from his Father's home.
N------- said he does not want to have any contact with his Mother. N------- explained that when his counselor did allow Mother to contact him, Mother would fill up his inbox with emails. He talked about how he has these weekly reports that he needs to read. When Mother emailed him, she would overload his inbox. The emails would reference items Mother wanted to buy him. N------- told the Court that he would not go back with his Mother regardless of what gifts she would give him.
It is clear to the Court that N------- wants to continue living with Father, continue attending his current school, and decrease his contact with Mother. His decision in this regard appears to be well thought out and not the product of a passing whim. The Court found N------- to be mature for his age. He was fully capable of expressing his own opinions and did not appear to have been influenced by anyone. Therefore, the Court finds this factor supports Father having primary residence and Mother's contact being appropriately restricted. This factor has little bearing on the Court's decision regarding legal custody.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabitating 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;
While Father and N------- had no contact for approximately five (5) years, they have had an opportunity to re-establish their relationship and have been getting along very well. N------- reports that he has the best of times with his Father. They laugh and joke around together and they play games together.
Father agrees with N------- that they have a very good relationship. When N------- first began living primarily with Father in March, 2017, N------- had a hard time managing adversity. Father explained that he would try to talk with N------- when he had done something wrong, but N------- would run to his room and "shut down". However, after about six (6) months, Father's discussions with N------- improved and N------- did not have a melt down every time he was disciplined or corrected.
Father's daughter, S------- B------, testified that she lived with Father and N------- at the end of the school year in 2018. When asked about Father's relationship with N-------, Ms. B------ said their relationship is like they were never separated. They enjoy spending time together watching movies and playing games.
S------- lives in Pennsylvania and visits Father and N------- frequently. Ms. B------ said she gets along well with N------- considering she had no relationship with him before he moved in with Father in 2017. She testified that she and N------- play video games and board games together. When she was first reunited with N-------, she described N------- as shy and testy but that he is much better now and follows the rules in Father's home.
To the contrary, N------- does not have a good relationship with Mother and does not want to see his Mother. He described her as annoying. The Court asked N------- about possible visitation in the future with Mother. N------- said "she doesn't deserve it". He went on to say that she has "done messed up things and people who do messed up things don't deserve nice things".
Mother testified that, in her opinion, N------- is opening up and is more relaxed during their family therapy sessions. She indicated that he wants to go to Ireland and take photography classes and that she wants him to return to his karate classes in order to work toward his black belt. While Mother clearly loves N------- and wants him back in her life, she is oblivious to how damaged their relationship is and fails to recognize that their relationship needs a lot of work. Even after hearing Dr. Zingaro's testimony and reviewing his report, Mother refuses to accept that she needs to address her own issues before it would be appropriate for her to have unsupervised visitation with N-------. N------- has repeatedly told Mother to leave him alone. He previously refused to speak with her outside a therapeutic setting and now does not want to even attend counseling with her.
See Father's Exhibit 3.
N------- has a good relationship with Father and his half-sister despite not having any contact with them since 2012. To the contrary, his relationship with his Mother has deteriorated to the point that he no longer wants any contact with her. Therefore, the Court must find this factor strongly supports Father having primary residence and Mother's contact being appropriately restricted. This factor has little bearing on the Court's decision regarding legal custody.
4. The child's adjustment to his or her home , school and community;
N------- has been primarily residing with Father since March, 2017, and has his own bedroom in Father's home which is in a neighborhood with children N-------' age. He enjoys playing on the trampoline with his friends who live across the street. N------- said he likes living with his Father.
According to Father, N-------' transition to Father's home was challenging in the beginning because N------- had a hard time managing adversity. Father explained that he would try to talk with N------- if N------- had done something wrong, but N------- would run to his room and "shut down". Father testified that it took about six (6) months before discussions with N-------' about his behavior did not end with melt downs. However, since the initial adjustment period, Father said that N------- is doing well in his home. They have a weekday routine. Father drives N------- to school and he takes the bus home. N------- has some time after school to relax but completes his homework before dinner. After dinner, Father said he and N------- will spend time together playing board games or video games.
N------- attends G------ B------ Middle School and is in the 7th grade. Father testified that N------- has a 504 plan. In the beginning of the 2018 school year, N------- was struggling with Math. Father enrolled N------- in tutoring with an outside agency and informed Mother. In N-------' current semester, Father explained that he very recently learned that N------- is in danger of failing English. Father testified that when he learned about N-------' poor English grade, he emailed N-------' teacher. As of the date of the hearing, Father had not heard back from N-------' teacher. N------- was suspended one-time last year and one-time this year. Last year, N------- was accused of stabbing another student with a pencil. Father said he contacted the school counselor and did not agree with how the school handled the matter. This year, N------- was suspended after a teacher asked him to throw out a water bottle and he refused because there was still water in the bottle and he had a meltdown. The school suspended him for the rest of the school day and Father had to pick him up from school. Father notified N-------' counselor about the incident so they could address it in therapy.
Father's Exhibit 6.
Father's Exhibit 7.
N------- does not participate in sports or other community activities. However, he is beginning to express interest in hanging out with friends outside of school. Father recently allowed N------- to go to the mall with three other friends from school (one boy and two girls). Father accompanied N------- to the mall and followed them as they walked the mall.
N------- lived with Mother for the first ten (10) years of his life in Newark, Delaware. However, in the past two years, the only time N------- has spent with his Mother was in a supervised or therapeutic setting. Furthermore, Mother has moved from Newark and is now living in a M---S--- S----- in Dover with plans to relocate to Pennsylvania. Mother had no idea where she would be living or what school N------- would attend if she were given primary residence of N-------.
It seems that N------- had little opportunity to adjust to the schools he attended while in Mother's care as he attended four different schools between Kindergarten and fourth grade. N------- said his Mother would change his schools because she did not like that he was bullied. Dr. Zingaro reported that he found no evidence that N------- was in fact bullied and N------- did not report that he was bullied.
Mother expressed her concern with N-------' current progress in school. She was upset that he had a D in English and Math. Mother testified that when N------- lived with her, his grades were much better. Mother said N------- had a B+ in Math. Mother also expressed discontent with N------- attending G------ B------ School and indicated that she wants him to attend a Catholic School. But, N------- attended public school for the majority of the time that he was with Mother. Since Father had not been involved in decisions regarding N------- from the time he was about 6 years old until he was 10, the Court must assume that Mother made the decision to send him to public or C------ schools on her own.
N------- has adjusted to Father's home and his school near Father's home. As Mother has moved and indicated that she intends to move again, the Court cannot find that N------- is adjusted to Mother's home and the Court has no information as to what school N------- might attend if Mother were given primary residence. Therefore, the Court finds this factor supports Father having primary but has little impact on the Courts decision regarding legal custody and Mother's visitation.
5. The mental and physical health of all individuals involved;
Father testified that N-------' physical health is very good although he is at the upper limit for BMI (Body Mass Index). Father explained that he has made changes to N-------' diet and adjustments to their lifestyle to work on N-------' weight. He bought N------- a stationary bike and changed the snacks he buys. He removed the chips and added more fruit and tree nuts.
The child's therapist is Jasmine Wynn. She works with N------- in individual therapy. Initially, Ms. Wynn helped with N-------' transition from foster care to living in Father's home. During this time, Father would contact Ms. Wynn with behavioral concerns N------- presented in his home. In the beginning, N------- set parameters with Ms. Wynn and indicated that he did not want to speak about Mother or her care. Eventually, he agreed to writing about Mother in his journal. Finally, N------- was able to talk about what happened in Mother's home. She testified that her current goals for him include helping him manage the trauma he suffered living in Mother's home, helping him cope with his anxiety, and improving his social skills.
Ms. Wynn testified that N------- showed improvement within eight (8) months of seeing her. Ms. Wynn testified regarding her therapy sessions with N------- from May 30, 2017, through October 2, 2018. On May 30, 2017, Ms. Wynn discussed with N------- about the time Mother was mean and smacked him in the face. On June 13, 2017, Ms. Wynn testified that she had a phone call with Mother where Mother informed her of N-------' multiple diagnosis including social pragmatic communication disorder, sensory disorder, ODD, ADHD, and anxiety. Ms. Wynn testified that Mother provided notes from doctors, but Ms. Wynn questioned the validity of the records. On July 5, 2017, Ms. Wynn said N------- was okay with visitations stopping between him and Mother. Also, she noticed that N------- would interchangeably talk with a baby voice. Ms. Wynn said that she helped N------- correct that behavior and resolved that issue. Ms. Wynn testified about N-------' journaling from August 16, 2017, where N------- stated he "did not love his Mother because of the physical and emotional abuse that he experienced". Ms. Wynn testified about a therapy session on August 29, 2017, where N------- wants his Mother to explain why she hurt him.
Father's Exhibit 2, pg. 19.
Father's Exhibit 2, pg. 27.
Father testified that his physical health is good. Father has had multiple evaluations of his mental health for his employment and related to the DSCYF matter regarding N-------. Father explained that he is not currently working because in July, 2018, he was placed on short-term disability due to anxiety. The disability was converted to long-term in February, 2019. His next follow up appointment is August, 2019. As part of the DSCYF case, DSCYF asked Dr. Zingaro to conduct a mental health evaluation of Father. The evaluation was completed on May 10, 2017. Dr. Zingaro's clinical diagnostic impression of Father was that he did not meet any criterion for a mental health diagnosis. Dr. Zingaro noted that Father's previous psychological evaluation from 2010 suggested Father had anger issues. Dr. Zingaro believes Father's anger stemmed from his situation with Mother who thwarted his attempts to have a relationship with N-------. Furthermore, Dr. Zingaro wrote that in his opinion, within a reasonable, medical, and psychological certainty, Father does not have anger problems that would compromise his ability to provide for his son.
Father could not recall his physician's name.
Child's Exhibit 1.
Child's Exhibit 1, pg. 5
Child's Exhibit 1, pg. 5
Child's Exhibit 1, pg. 5
Dr. Zingaro conducted a psychological evaluation of Mother on June 1, 2017, and issued a report. The purpose of the evaluation was to determine the status of Mother's mental health and the possibility that she was being inappropriate with N------- or tried to recruit medical providers for N-------. The collateral information Dr. Zingaro reviewed to help him with his evaluation is set forth above. The documentation Dr. Zingaro reviewed outlined Mother's persistent efforts to have her son evaluated for mental health issues, gastrointestinal issues, and a sensory processing disorder. Dr. Zingaro noted that "[Mother] seems to believe that, in part, she is innocent of doing anything to harm her child because doctors, in fact, are the ones that prescribe the medications for the child." After reviewing a video of a visit between Mother and N-------, Dr. Zingaro commented on the developmentally inappropriate close contact between Mother and child. Dr. Zingaro wrote that:
See Generally, Child's Exhibit 1.
Child's Exhibit 3, pg. 1.
Child's Exhibit 3, pg. 9.
Child's Exhibit 3, pg. 8.
The physical contact between Mother and child continues throughout the 60-minute visit to the point that it became uncomfortable for this observer to continually watch such behaviors, since there was not effort, in my opinion, on the Mother's part to engage the child in age appropriate interactions during a visit.
Child's Exhibit 3, pg. 8.
Dr. Zingaro determined that in his opinion there is "enough evidence (historically and recent) for a diagnosis of Factitious Disorder Imposed on Another." In addition, Dr. Zingaro commented in his report how it would be interesting and probably very clinically useful to find out if the child's need for all of the medical supplements continued when living with Father. Dr. Zingaro recommended in his report that Mother may need specialized treatment to help her correct her cognitive distortion and high level of defensiveness. Specifically, Dr. Zingaro wrote that Mother needs to have interactions between her and N------- "videotaped and then have someone watch the video with [her] and point out areas where the parent's behavior is inappropriate".
Child's Exhibit 3, pg. 10.
Father testified that N------- is not currently prescribed any medication.
Child's Exhibit 3, pg. 9.
Child's Exhibit 3, pg. 10.
Mother testified that her physical health is very good. Mother vehemently denies Dr. Zingaro's diagnosis of Factitious Disorder Imposed of Another but failed to present an expert opinion to the contrary. When asked if there were any factual inaccuracies in Dr. Zingaro's report, Mother responded "most of it". Mother testified that she disagreed with Dr. Zingaro's testimony that he spent two to three hours with Mother. Instead, Mother said she spent 15 to 20 minutes with Dr. Zingaro and she spent the rest of the time filling out multiple choice questions. Mother disagreed with Dr. Zingaro's testimony that she was giving N------- shots of Benadryl. Mother testified that a vast majority of Dr. Zingaro's factual information was wrong. Mother testified that all of the medical information about N------- contained in Dr. Zingaro's report was factually inaccurate. Mother disagreed that she was seen by school administrator's beating N-------. Mother disagreed that she engaged in unusually close and inappropriate contact during a supervised visit.
Mother's testimony March 26, 2019, 12:55:53.
Mother's testimony March 26, 2019, 12:48:27.
Mother's testimony March 26, 2019, 12:40:30.
Mother's testimony March 26, 2019, 12:45:45.
Mother's testimony March 26, 2019, 12:51:26,
Mother's testimony March 26, 2019, 12:48:38.
Mother's testimony March 26, 2019, 12:56:27.
Mother's testimony March 26, 2019, 12:56:39.
It is significant to the Court that Mother denies that she has this disorder and that Mother has not fully grasped the seriousness of the disorder. For the first ten years of the N-------' life, Mother successfully convinced the Court, N-------' school, and his doctors that N------- was suffering from numerous conditions. But it appears that N------- may not have had any of the disorders Mother reported. According to Dr. Zingaro, people who abuse their child must complete three steps in recovery. First, the parent has to own their behavior. Second, the parent has to apologize to their child. Finally, the parent has to convince the child that it will not happen again. It appears from Mother's testimony that she has yet to accomplish the first step. Mother has worked with two individual counselors and started with a third. The first two terminated the sessions because they could not help Mother. And, it is not clear to the Court that the third has the experience to help a parent who has been found to abuse her child. Therefore, given Mother's very serious psychological diagnosis and her failure to make any progress in her therapy, the Court must find that this factor supports sole custody and primary residence with Father and appropriately restricted contact with Mother.
6. Past and present compliance by both parties with their rights and responsibilities to their child under § 701 of this title;
13 Del. C. § 701(a) states in relevant part: "The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare, and education."
Father had minimal contact with N------- from 2012 until early 2017 when DSCYF obtained custody of N-------. In the years immediately following the parties' separation, Father tried to maintain contact with N-------. He claims Mother was thwarting his efforts in trying to maintain a relationship with his child. He filed Petitions with the Court but did not obtain any relief. Instead, his rights were restricted. Nonetheless, Father paid child support as ordered and covered the child's medical insurance while N------- was residing primarily with Mother.
Since DSCYF became involved, Father has re-established his relationship with N------- and has had primary caretaking responsibilities for the last two (2) years. N-------' needs are being met and he is thriving in Father's care although he is struggling with some classes at school. Father is appropriately addressing N-------' needs by helping him with his homework and arranging for tutors as necessary. This Court finds that Father has exercised his rights and met his responsibilities as a parent despite not having contact with N------- for five (5) years.
Father's daughter testified regarding Father's parenting style and his discipline of N-------. She explained that Father limits or prohibits N------- from playing his video games until N------- understands what he has done to cause him to be in trouble. Ms. B------ testified that N------- is compliant with completing his homework assignments.
Father asserted that Mother has not fulfilled her rights and responsibilities as a parent and provided several instances where Mother abused N-------. Furthermore, Mother's diagnosis of Factitious Disorder Imposed on Another has affected her ability to parent N------- (see factor 5) and will continue to affect her ability to properly care for N------- until she is successfully treated for her condition.
Mother had the primary caretaking responsibilities of N------- after the parties separated in June, 2007, until February, 2017, when DSCYF filed a Dependency/Neglect Petition for Custody. When N------- lived primarily with his Mother, he attended four different schools between Kindergarten and fourth grade. During N-------' interview with the Court, N------- told the Court his favorite school was the W----- School. He said everyone liked him and he was comfortable and familiar with the building layout. Yet, N------- was moved from the W----- School.
While in the care of Mother, N------- alleges he endured physical abuse (see factor 2) and emotional abuse (see factor 5). Mother maintains that her parenting of N------- was appropriate and well within her rights and responsibilities as a parent. Mother disagrees that she abused N------- while he was in her care.
The Court finds N-------' version of events more credible than Mother's and agrees with Dr. Zingaro's opinion that Mother has failed to satisfy her responsibilities as a parent. For all of the foregoing reasons, the Court finds that this factor supports sole custody and primary residence with Father and Mother's contact being appropriately restricted.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and
13 Del. C. § 706A in relevant part states:
(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 legal custody and residential arrangements in accordance with the best interests of the child.
Mother filed three PFAs against Father and Father filed one against Mother. The cross PFAs were resolved by consent and Mother voluntarily dismissed her other two PFAs. Therefore, there has never been a finding of abuse against either party in the context of a PFA. The Court also notes that Mother filed her PFAs immediately after she was served with a Petition filed by Father.
Father was convicted of harassment and Mother was the victim. Father's conviction will be addressed in factor 8.
Mother was convicted of Child Abuse 3rd Degree and Endangering the Welfare of a Child but that decision is on appeal. Therefore, the Court is not considering the conviction as part of its analysis herein.
Dr. Zingaro testified that his review of the records showed numerous school and medical professionals were reporting that Mother was abusing N------- leading him to believe that it was unlikely that all of those professionals were lying and Mother was telling the truth. However, none of those witnesses testified in the instant hearing.
N------- reported numerous acts of abuse Mother committed against him. He explained that when he would drive in the car with his Mother, she would make him sit in the middle of the back seat so that she could slap his legs while she was driving. N------- recalls his Mother threatening him with physical abuse and actually physically abusing him. When DSCYF notes were sent to Mother's home, she told N------- that if the notes keep showing up at her home she would have to beat him. N------- also indicated that his Mother would discipline him by throwing things at him including his hard covered books. He recalled his Mother pulling down his pants and smacking his bottom with a book or her hand. However, Mother did not have a chance to defend N-------' allegations because they Court learned of his allegations in the child interview after Mother testified. Mother denied ever abusing N------- but the Court found N------- credible in his interview.
Given the Court has concerns regarding the way Mother treated N------- when he was in her care, the Court finds this factor supports primary residence with Father and Mother's contact being appropriately restricted. This factor has little effect on the Court's decision regarding custody.
8. The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
The Court reviewed the parties' criminal histories. Father was convicted of Harassment on April 5, 2011. Mother was the victim of the crime. The Court notes that Father was charged with this crime during a time when the parties were having significant problems with their custodial arrangement. Father was attempting to get relief from the Court and was unsuccessful. Dr. Zingaro specifically considered this charge in his evaluation and opined that Father's charge was more than likely a result of his frustration dealing with Mother.
State of Delaware v. J----- S. B------, Case No.: 1102021650.
Mother was convicted of Endangering the Welfare a Child and Child Abuse 3rd, on December 13, 2018. The parties' son, N-------, was the victim. Mother filed a Request for Review of the Commissioner's Order (herein "ROCO"). Judge Ranji affirmed the Commissioner's guilty finding. Mother has requested a jury trial on the charges. As of the issuance of this Order, Mother's criminal charges have not been resolved and, therefore, the Court cannot consider the guilty finding with respect to these charges.
State of Delaware v. D--- M. R-------, Case No.: 170615040.
On December 18, 2018, Mother plead guilty to two counts of Criminal Contempt. Mother plead guilty after admitting that she sent N------- emails, text messages, or gifts when her bail conditions prevented her from having contact with N-------.
State of Delaware v. D--- M. R-------, Case No.: 1806015697.
Given the amount of time since Father's conviction, and the fact that he has had no convictions involving the child or since that time, the Court gives Father's criminal history the appropriate weight. The Court is concerned with Mother's admission to knowingly violating a Court's Order to not have contact with N-------. At the time she admitted to having contact with N-------, she not only was under a criminal No Contact Order but she was under an Order in the context of the Custody matter to not have contact with N-------. Therefore, Mother blatantly disregarded two Court Orders, one which was her Stipulation. The Court must find this factor supports sole custody and primary residence with Father with Mother's contact being appropriately restricted.
CONCLUSION
Based on the Court's Analysis of the best interest factors and for the reasons set for forth herein, the Court finds as to custody factors (1), (2), (3), (4), and (7) are neutral and factors (5), (6), and (8) support Father having sole custody. No factors support Mother having sole custody. With respect to residence, the Court finds factor (1) is neutral but all remaining factors support Father having primary residence. With respect to a contact schedule, factors (1) and (4) are neutral and all remaining factors support Mother's contact being appropriately restricted.
The Court places the most weight on factors (4), (5), and (6). When weighing the best interest factors, the weight assigned to each relevant factor and considerations varies with each unique factual situation. The Court has the ability to assign greater or lesser weight to some factors than others to create a custody Order that is in the best interests of the child. The Court cannot ignore Mother's very serious mental health condition and its effect on this child. The Court found the expert witness to be extremely credible and logical with respect to his diagnosis. The evidence was clear that Mother has yet to accept the diagnosis nor has she made any progress in her therapy.
DLK v. CS, 1986 WL 9029, at *2 (Del. Super. Ct. Aug. 5, 1986).
Id.
Father has asked for joint custody with final decision making authority which, in essence, is a request for sole custody. In this case, given Mother's diagnosis of Factitious Disorder Imposed on Another, the Court cannot find that it is in the child's best interest for Mother to have any decision making authority regarding this child. It would also not be in the child's best interest for Father to have to consult Mother regarding any decisions. Mother has shown to lack good judgement when making decisions for her child. The Court must also find, for all of the reasons stated herein, that it is not in the child's best interest for Mother to have primary residence or frequent and meaningful visitation with the child. To the contrary, the Court finds that it is more likely than not that Mother having any contact with the child at this time would be harmful to the child.
WHEREFORE, the Court enters the following Order:
A. Father shall have sole custody and shall make all decisions regarding the child's health, education, and welfare.
B. Father shall have primary residence.
C. Pursuant to 13 Del. C. § 728(a), the Court finds that the child having contact with Mother would endanger the child's physical health or significantly impair his emotional development and, therefore, Mother shall have no contact with N------- at this time.Mother shall no contact with N------- until such time as she is working with a therapist who is willing to testify on Mother's behalf. Mother must provide the therapist with a copy of Dr. Zingaro's report and this Order and the therapist must be willing to testify that he or she is aware that Dr. Zingaro has diagnosed Mother with Factitious Disorder Imposed on Another and that Mother has been successful in owning her behavior and is willing to apologize to N------- and has a plan to assure him that she will not harm him again. When Mother is prepared to present such a witness, she may file a Petition to Modify Visitation pursuant to 13 Del. C. § 729(a) as visitation may be modified at any time if it is in the best interests of the child.
D. This is a Final Order entered after a full hearing on the merits. Therefore, any future modifications of custody shall be made pursuant to 13 Del. C. § 729(c).
13 Del. C. § 729(c) provides: An order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:
(1) If the application for modification is filed within 2 years after the Court's most recent order concerning these matters, the Court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair his or her emotional development.
(2) If the application for modification is filed more than 2 years after the Court's most recent order concerning these matters, the Court may modify its prior order after considering:
--------a. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification;
b. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and
c. The factors set forth in § 722 of this title.
IT IS SO ORDERED this 28 day of June, 2019.
/s/ _________
JANELL S. OSTROSKI, Judge cc: Parties, Counsel, File