Opinion
File No.: CN09-02434 Petition No.: 14-21340
12-28-2017
Re: K-------- L. T----- v. S---- R. T-----
Carl W. Heckert, Esquire
Gawthrop Greenwood, PC
3701 Kennett Pike
Suite 100
Wilmington, DE 19807
checkert@gawthrop.com R. Kerry Kalmbach, Esquire
109 W. Linden Street
Kennett Square, PA 19348
kkalmbach@kalmbachlaw.com Kara M. Swasey, Esquire
Bayard
222 Delaware Avenue, Suite 900
P.O. Box 25130
Wilmington, DE 19899
KSwasey@bayardlaw.com
LETTER DECISION AND ORDER
Dear Mr. Heckert, Mr. Kalmbach, and Ms. Swasey:
On September 19, 2017, the Court conducted a Final Custody Hearing in the above-captioned matter. Present in Court were K-------- L. T----- ("Mother"), represented by Carl W. Heckert, Esquire ("Mr. Heckert") and Kerry Kalmbach, Esquire ("Mr. Kalmbach"), and S---- R. T----- ("Father"), represented by Kara Swasey, Esquire ("Ms. Swasey"). This proceeding pertained to the custodial and residential arrangements for the parties' minor children, C---- O. T----- ("C----"), born ----- --, ----, and B----- A. T----- ("B-----"), born ----------, ---- (collectively, "the children"). In addition to the parties' testimony, the Court heard testimony from N----- C----- ("Ms. C-----"), the reunification therapist for the family, and the Court conducted an interview with both C---- and B----- on October 10, 2017.
Mr. Kalmbach was admitted Pro Hac Vice.
For purposes of this Order, the Court incorporates by reference the findings of fact and conclusions of law set forth in the April 10, 2017 Temporary Custody Order as supplemented throughout by evidence received at the Final Custody Hearing. Based upon the evidence presented at this hearing, as well the evidence from prior hearings in this matter, the Court's decision is as follows:
Procedural Background
In its April 10, 2017 Order, the Court granted Father's two Petitions - RTSC (14-20319 and 15-03179) and found Mother in Contempt of Court. Mother's sanctions were limited to an assessment of attorney's fees and costs related to the two RTSC petitions and Father's Motion for Interim Order resulting in the July 5, 2016 Order. As directed by that Order, Ms. Swasey filed a Fee Affidavit on April 24, 2017, and Mr. Heckert filed a response on behalf of Mother as to the reasonableness of those expenses on May 8, 2017. The Court granted Father's request for attorneys fees and costs in the amount of $16,164.00 on June 13, 2017. Ms. Swasey thereafter filed a Motion for Reargument on June 23, 2017 asking the Court to amend the June 13th Order by removing the paragraphs on page 9 and 10 titled "Bankruptcy" so as not to preclude the award from being considered non-dischargeable as "domestic support" in a subsequent bankruptcy proceeding. Mr. Heckert filed an answer on July 3, 2017 asking the Court to deny Ms. Swasey's Motion. The Court granted Father's Motion for Reargument to reflect the Court's intention and amended the June 13th Order to state that the Court intended its award of attorneys fees as a sanction for Mother's Contempt of Court and to encourage compliance with Custody Orders. The addendum was inserted at the end of the final paragraph entitled "Conclusion," and the "Bankruptcy" paragraphs of the June 13th Order were removed in their entirety.
As noted in the June 13th Order, Mother is currently in bankruptcy.
In addition to granting Father's Petitions in the April 10th Order, the Court issued a temporary order granting Father sole legal custody and for the children to remain in Father's primary residency. The Court also ordered Mother's contact with the children to continue progressing in accordance with Ms. C-----'s therapeutic schedule, with additional non-therapeutic contact to commence as soon as Ms. C----- deemed it appropriate. This was a Temporary Order subject to a Review Hearing, scheduled for September 19, 2017, where the Court would assess Mother's progress and render a Final Custody Order.
The Court notes that this arrangement was recommended by Dr. F---------- as indicated in the April 10th Order.
Mr. Heckert filed a Motion for Change of Therapist on June 27, 2017, requesting that Mother's reunification with the children be placed in the hands of R----- J. D--------, M.A. ("Mr. D--------"), with a deadline of thirty days for non-therapeutic contact to begin. On behalf of Father, Ms. Swasey filed an answer on July 10, 2017 asking the Court to deny Mr. Heckert's motion and for the course of therapy with Ms. C----- to continue as previously ordered. Ms. Swasey also requested that Mother be assessed with attorneys fees and costs incurred by Father as a result of the Motion. The Court denied Mother's Motion for Change of Therapist and ordered Mother to comply with Ms. C-----'s reunification therapy in accordance with the Temporary Custody Order. The Court also deferred its decision on attorneys fees and costs related to the motion until the Final Custody Order.
On August 31, 2017, Mr. Heckert filed a Motion for Interview of Children pursuant to 13 Del. C. 724(a). On behalf of Father, Ms. Swasey filed a response on September 12, 2017 asking the Court to deny the motion. She also requested that if the Court should grant the Motion, the interviews of each child be separate to avoid influencing each other's answers. The Court deferred its decision on the Motion until the Review Hearing on September 19, 2017. Given the ages of the children and the evidence presented at the hearing, the Court granted the Motion and interviewed the children separately on October 10, 2017.
Factual Background
Following the Interim Contact Hearing on November 2, 2016, Mother was ordered to participate in therapeutic reunification with the children administered by Ms. C-----. Mother first met with Ms. C----- on December 9, 2016 and had joint sessions with Father on December 19, 2016; January 13, 2017; May 9, 2017; June 5, 2017; and August 2, 2017. Mother's first session with the children was scheduled to take place on January 30, 2017; however, due to her noncompliance with Ms. C-----'s guidelines, that session was cancelled by Ms. C-----. On May 16, 2017, Mother had her first session with the children and Father. Due to Mother's noncompliance with Ms. C-----'s protocol, as discussed below, this session was Mother's only contact with the children, therapeutic or otherwise, since July 18, 2016 when they were transferred to Father's care in accordance with the sequestration imposed by the Court in its July 5th Order.
Father is seeking to maintain sole legal custody and primary residency of the children. Due to Mother's noncompliance with reunification therapy, Father requests Mother have nontherapeutic visitation with the children supervised by Ms. C----- and for a psychiatric evaluation be conducted for Mother to address any underlying mental health issues not currently being addressed by her current therapist, Mr. D--------. Last, Father is asking for attorneys fees and costs to be paid by Mother. Mother is requesting joint legal custody of the children and would like primary residency to be transferred to her immediately.
Custody Modification
The parties are currently operating under the April 10th Order, which temporarily granted sole legal custody and primary residential placement of the children to Father pending a final hearing. Additionally, the Court ordered therapeutic contact for Mother with the children until Ms. C----- deemed it appropriate for non-therapeutic contact.
Since the Court has never entered a Final Order on custody, residency, and visitation for the children after a full hearing on the merits, the Court must analyze the factors under 13 Del. C. §722 to create an Order that is in their best interests. Further, pursuant to 13 Del. C. § 728(a), the Court shall determine "a schedule of visitation with the non-residential parent, consistent with the child's best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents unless the Court finds, after a hearing, that contact of the child with one parent would endanger the child's physical health or significantly impair his or her emotional development. The Court shall specifically state in any order denying or restricting a parent's access to a child the facts and conclusions in support of such a denial or restriction."
13 Del. C. § 722(a): The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;(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.
(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 cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
§ 722 Testimony
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father is seeking to maintain sole legal custody and primary residency of the children. Father stressed Mother's contempt of court order and violation of Father's legal custody rights when Mother moved to Pennsylvania under a joint legal custody arrangement. He also asks that Mother have non-therapeutic visitation under the supervision of Ms. C-----. Father acknowledges that the children want to see Mother again, and Mother is noncompliant with Ms. C-----'s reunification therapy protocol outlined in factor (6). Therefore, since therapy is not effective at this point, Father seeks supervised visitation. Last, Father is asking for Mother to undergo a psychiatric evaluation. The goal with an evaluation is for Mother to receive any help she needs so the same problems from the past do not continue.
Mother is requesting joint legal custody of the children and would like primary residency to be transferred to her. While Mother thinks the children should maintain contact and visitation with Father, she believes the children want to live with her and are unhappy living with Father. She indicated that C---- dislikes his current school, and B----- misses riding her horse, which she has not ridden since living with Father.
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
In an effort to determine the children's wishes regarding their residential and visitation arrangements, the Court conducted an interview with C---- and B----- separately on October 10, 2017. The Court recognizes that both children were aware that any party could gain access to their interviews, which was taken under consideration in the Court's analysis. C---- indicated that he and his Father and Ms. T----- have an "okay relationship." He expressed that they do not fight all the time, but he does not go out of his way to spend a lot of time with them. In her interview, B----- confirmed that Father and C---- argue sometimes but not as much as they have in the past. C---- stated that he still prefers living in Pennsylvania and attending C---------- High School, but he does not wish to change schools at this point in time since he is set to graduate from D-------- High School at the end of the academic year. He expressed anger about not being able to see Mother. He stated that he misses Mother, and he is planning to see her when he turns 18 years old in -----.
B----- indicated that she enjoys living with Father and is comfortable being in the home. She expressed that she is used to sharing time between Mother and Father's homes, so she has no concerns about Father. She also gets along well with Ms. T-----. Like C----, B----- expressed that she misses Mother and wants to see her.
On behalf of Mother, Ms. Swasey requested that the Court ask the children whether they have had any recent contact with Mother, Mr. C------, or Mr. C------' children. During the interviews, both children denied having any contact with them.
(3) The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or persons who may significantly affect the child's best interests;
As of the date of this hearing, Mother had contact with the children once since July 18, 2016 due to the Court-imposed sequestration and Mother's noncompliance with Ms. C-----'s reunification therapy protocol. The Court notes that the sequestration was implemented out of concern for Mother's role in the children's estrangement from Father, particularly in C----'s case. Mother represented that she misses the children and is upset that she has only seen them once since July 2016.
Father told the Court that his relationship with the children has been positive. The Court notes that C----'s relationship with Father has been very contentious over the past several years. However, Father, as well as Ms. C-----, reported that C---- had a "breakthrough" in July 2017 where he emotionally opened up about his past behaviors. According to Father, C---- was caught smoking marijuana in his room by Ms. T-----. Ms. T----- confronted C---- and tried talking to him. C---- told her he had "lots of stuff in his head" and was having a difficult time sleeping. Father immediately contacted Ms. C----- asking for a session with her. During the conversation with Ms. C-----, C---- said he was unhappy and feels badly about his past behavior. He expressed that he does not understand why he behaves in such a mean way towards Father, Ms. T-----, and B-----. At the hearing, Father stated that C---- was grounded for smoking, and they had a conversation about peer pressure and changing his circle of friends. Father referenced a text message that C---- sent to him in 2015, in which C---- called him a "d-ckhead" and said he was no father of his. According to Father, he and C----'s relationship is very different now. They have rock climbed together and go out to dinner with C----'s girlfriend. C---- has also been helpful since being able to drive by taking B----- to school and rock climbing. Father conveyed that C---- has his "moments" like all teenagers do, but he has started to be more open and talkative. Father expressed that he is doing his best to teach C---- to act maturely and make wise decisions, and Father believes C---- has been showing this maturity recently. Father reported that B----- has also been easier to talk to, and she has opened up more since the last hearing.
Ms. C----- testified that she believes severe emotional abuse of the children was occurring in Mother's home, especially since moving in with Mr. C------. Ms. C----- based this opinion on stories the children have shared with her during therapy. When asked to provide those specific instances to the Court, Ms. C----- would not divulge them because she promised the children that she would keep them confidential. However, she stated that these details began to emerge in July with C---- and last winter for B-----. The emotional abuse involved Mother's coaching towards the children to say or act in certain ways. This coaching occurred for court interviews, counseling with L---- G------- ("Ms. G-------") in New York, phone calls with Father, and visits with Father and Ms. T-----. On cross examination, Ms. C----- admitted that Mother has not been diagnosed as an alienator but believes this is a case of alienation based on the children's behaviors and stories they have shared. Ms. C----- also clarified that, although C---- has had problems with Father in the past, Ms. C----- does not believe that was the "whole story" based on the emotional abuse occurring in Mother's home.
The Court notes that Parental Alienation is not listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
Although Ms. C----- did not reveal the children's stories that led her to believe that emotional abuse was occurring in Mother's home, Father testified that he was present in the sessions when the children shared. According to Father, B----- was told by Mother when wellness/safety checks would occur at Father's home. Mother would then coach B----- on what she should say to the officers when they arrived, including that she wanted to live with Mother, not Father. Father also found phone calls with B----- confusing when she was at Mother's home. He stated that she would be trying to tell him that she wanted to live with Mother. Father would ask her what was wrong, and B----- would hang up the phone. Since then, B----- revealed that Mr. C------ was present during the calls and prepared a script of what she should say. Finally, B----- revealed that she was instructed by Mother not to hug Father or Ms. T----- when she arrived for visits because Mother told her it would make the transition to Mother's home easier.
According to Father, C---- revealed that he stayed in the bedroom close to Mother and Mr. C------' bedroom when he was living there full-time. One night, he was woken up from their yelling, and he went to the door to ask them if they could be quiet. Mr. C------ threatened C---- that if he does not do what Mr. C------ says, he will be kicked out of the house, Mother will be kicked out of the house, or both. Father conveyed that C---- has fears about what Mr. C------ said and believes C---- wants to protect Mother.
Mother testified that the alienation claim is "ridiculous," and she hoped that the Court would interview the children to see that. Mother denied doing anything or seeing Mr. C------ do anything that depicted any alienating behaviors. She expressed that they both love the children and would never act in such a way. Mother also stated that she has never been diagnosed as an alienator. She conveyed that when the children would come home to her after visiting with Father, the children would express concerns regarding Father and Ms. T-----. Mother told them that if they had a problem with Father, they should address it with him. She also said that she never spoke negatively about Father to the children; however, she admitted on cross examination that she previously sent an email to one of the children's schools saying Father was a bad parent. According to Mother, she never had an interest in alienating the children from Father, but she thinks he needs to "step up" regarding their relationships.
In their interview with the Court, neither child expressed that Mother or Mr. C------ "coached" them while living in Mother's home. The children did not share the stories Father conveyed to the Court. B----- indicated that she had no fears or concerns with seeing Mother and Mr. C------. Similarly, C---- stated that he has a "good relationship" with Mr. C------ and wants to have contact with Mother.
(4) The child's adjustment to his or her home , school and community;
As indicated, the children have been residing with Father full-time since July 2016. Father believes the children have adjusted well and are happy in his home on a day-to-day basis. Mother believes the children miss her and were happier in her home where C---- could attend the school he prefers and B----- could ride her horse.
Ms. C----- expressed her belief that reunification therapy with Father has been positively progressing and that the children have acclimated to Father's care. According to Ms. C-----, C---- has adjusted positively to Father's home. He is performing well in school and participating in soccer again. He has been respectful in Father's home and in her office and has been following her protocol. B----- has also been doing well. Ms. C----- reported that she has discontinued individual sessions with B----- in February since she has met her therapeutic goals. However, Ms. C----- reported that C---- regressed the week before the hearing during his session and showed the same behaviors that he exhibited a year ago when she first met him. These behaviors reportedly continued in Father's home. Ms. C----- was unsure of why C---- showed regression and thought that he might be in contact with Mother, Mr. C------, or Mr. C------' children despite the sequestration order. During cross examination, Ms. C----- admitted that she had no evidence of any contact. As indicated above, C---- denied having any contact in his interview with the Court.
C---- is currently a senior at D-------- High School ("D--------") in Wilmington. Mother asserted that C---- told her in the reunification therapy session that he dislikes D-------- and the environment. In his interview, C---- indicated that he still preferred attending C---------- High School over D--------, but he does not wish to change schools now because he is set to graduate in May. C---- told the Court that school is "fine," and he currently has all passing grades. He expressed that he wants to attend college but might work for a year or two first. C---- believes his behavior has improved in Father's home due to his relationship with his ex-girlfriend, who had often visited the house and had dinner with the family.
B----- is currently a ninth grade student at C----- ------- -- ------- ("C-----") in Wilmington. B----- told the Court she enjoys C----- and is doing well academically. Her favorite subjects are Science and English. B----- also reported that she participates in rock-climbing at the Delaware Rock Gym in Bear and plans to try out for C-----'s track and field team in the spring.
C---- has played soccer for several different teams over the course of this litigation. Mother asserted that C---- was taken off a soccer team by Father in the past and expressed concern that he was not currently playing soccer. However, Father and Ms. C----- indicated that C---- has re-joined the D-------- soccer team at his choice but has been unable to play due to an injury. C---- confirmed to the Court that he got injured this season and is unable to play. C---- stated that he is now trying to find a part-time job.
C---- and B----- have both participated in competitive indoor rock climbing. Although B----- is still participating, C---- told the Court that he stopped due to his work schedule over the summer. C---- indicated that he worked with Ms. T----- during these months in assisting her with staging homes.
B----- was previously a competitive horseback rider, and the Court notes that her ability to ride has been a major point of contention throughout this litigation. Mother testified that B----- has not ridden her horse in over a year, and Father does not seem to care. She stated that the issue was brought up in a session with Father and Ms. C----- because they were "after her" to tell Mr. C------ that Father should be involved with the horse. Mother also expressed that B----- has an option to go to equestrian boarding school in Pennsylvania. On cross-examination, Mother stated that she spoke with B----- regarding the boarding school within the past couple years and never brought it up to Father because he already chose her school. Mother also acknowledged on cross examination that Dr. F---------- testified in April 2016 and stated that putting the horse in a neutral location would be good for B-----. In response, Mother indicated that the horse is owned by Mr. C------, who does not permit Father to be around the horse, so she was unable to follow the recommendation. Father reported that B----- never brings up wanting to horseback ride to him. He conveyed that he has reminded her and told her that if she wants to ride, she can. In her interview with the Court, B----- confirmed that she has not been riding since living with Father and that she missed her horse.
(5) The mental and physical health of all individuals involved;
No evidence was presented at the instant hearing regarding C---- and B-----'s physical health. According to the record, B----- appears to be a generally healthy child. C---- is also generally in good physical health, with the exception of his injury that prevents him from playing soccer.
The Court notes from the March 20, 2015 hearing that B----- had undergone a bone density scan, which revealed she was two to three years behind in growth. However, Mother indicated that her bones were considered "normal."
In regards to mental health, C---- has exhibited substantial anger issues throughout this litigation. The Court notes that C---- has seen various different therapists throughout the years, which are summarized in detail in the April 10th Order. During his interview with the Court, C---- expressed that he does not benefit from his therapy with Ms. C----- and does not wish to continue. In contrast, B-----'s mental health has not been a significant concern as C----'s has throughout these proceedings. As indicated, Ms. C----- discontinued B-----'s individual sessions due to her therapeutic progress.
Since returning to Father's primary care in July 2016, the children have participated in reunification therapy with Ms. C----- on a weekly basis. The initial goal of the therapy was to reunify the children with Father and Ms. T-----. However, in accordance with this Court's Orders, Mother was to have gradual, therapeutic contact with the children in that setting pursuant to Ms. C-----'s recommendations. The family's progress and the parties' compliance with that course of therapy is discussed in factor (6).
However, B----- indicated in her interview with the Court that she does not attend every week like she has done in the past.
The record indicates Father is in good physical and mental health. In regards to mental health, Father has been participating in reunification therapy with Ms. C----- and the children since July 2016. Although he met with Ms. C----- once individually before that therapy commenced and had various sessions with Mother, Father confirmed that he does not receive individual counseling from Ms. C-----.
Mother previously testified that she is generally in good physical and mental health, although she has asthma and suffers anxiety related to this litigation. Mother testified at the instant hearing that she and her current therapist, Mr. D--------, are "keeping in touch." She indicated that they converse over email, and she will see him for a session on an as-needed basis. On cross examination, Mother could not recall how often she participates in her individual counseling because it is on an as-needed basis determined by her and Mr. D--------. She could not recall her last session but believed it was in 2017.
Mother also did not have any Axis I or Axis II mental health diagnoses pursuant to Dr. F----------'s initial custody evaluation in 2015.
Mother began participating in therapy with Mr. D-------- on August 8, 2016 to address anxiety related to her separation from the children.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
Mother maintains that she, Mr. C------, and Mr. C------' children have not had any contact with the children since the sequestration was imposed other than through Ms. C-----'s recommended letter-writing process and the one reunification session in May. As indicated, the children confirmed that they have not had any contact with either Mother or Mr. C------. Although Ms. C----- testified that C---- may have had contact based on his recent regression as indicated under factor (3), she admitted that she had no conclusive evidence of any contact.
In regards to Mother's participation in reunification therapy with Ms. C-----, Mother has not followed Ms. C-----'s protocol. Mother recognized that the Court ordered her to participate in reunification therapy but stated she does not agree with the Court's basis for the requirement. Ms. C----- testified that the only session with both parents and the children occurred on May 16, 2017. This was Mother's only session with the children due to her failure to follow Ms. C-----'s recommendations after that session. According to Ms. C-----, there was a simple miscommunication regarding a picture of B----- on her birthday. During the session, Ms. C----- asked Mother if she had received a picture sent by Father of B----- on her birthday. Mother stated she had not received one. When relating back to her emails after the session, Ms. C----- confirmed that a picture was indeed sent to Mother from Father. Mother testified that the situation was "blown way out of proportion." She contended that Ms. C----- asked whether she received a picture on B-----'s actual birthday, not merely a picture of her birthday. Mother further testified that she emailed Ms. C----- about the next session, and Ms. C----- responded saying Mother was "dishonest" and a "bad person." Mother indicated that she emailed Ms. C----- and informed her that the picture was sent months after B-----'s birthday, and she was unable to conclude what the picture was. To resolve the discrepancy, Ms. C----- instructed Mother to apologize and confirm that a picture was indeed sent. Mother refused to do so.
Mother was unable to produce this email at the hearing; therefore, the Court gives little weight to the testimony.
On cross examination, Mother was asked if the photograph contained the word "Happy" beneath it with a cake and a candle. Mother responded that the picture was blurry on her phone.
Ms. C-----'s protocol for the next reunification session scheduled for June 5, 2017 was as follows: Father would bring B----- to meet with Mother during the first half of the session; Mother would apologize to B----- for saying Father did not send her a picture at the first reunification session; Mother would apologize to B----- for anything negative that she has said about Father and his home; and Mother would tell B----- that Father and Ms. T----- love her and take good care of her. Ms. C----- reported that Mother did not agree to say that Father and Ms. T----- love B----- and take good care of her. Mother also did not agree to apologize for any negative statements she had made regarding Father. According to Ms. C-----, Mother said the apologies would be lies, and she would not lie to her children. Ms. C----- also requested that Mother and Father jointly tell C---- that his behavior towards Ms. G------- was disrespectful and for the three of them to discuss the situation together. Mother did not agree to this arrangement, sending Ms. C----- an email on August 4, 2017 stating there was a litigation pending regarding Father in New York. Ms. C----- had not heard any information about a pending litigation. On cross examination, Mother stated that her basis for believing charges could be brought is due to Mr. C------ talking to a District Attorney in New York. She further stated that it would be inappropriate to discuss the situation in a therapy session because criminal actions should be discussed between lawyers. Mother also stated previously that charges could be brought against Father in Pennsylvania for inappropriate behaviors at Mother's residence. Mother admitted that Father has not been arrested or charged with any criminal action in any state, and she is refusing to address incidents with Ms. C----- based on this information.
As discussed in the November 28, 2016 Order, Father had to physically restrain C---- on the floor after he broke Ms. G-------'s video camera and attempted to leave her office.
Ms. C----- reported that another element of her protocol was to change therapists in accordance with Dr. F----------'s recommendation. Ms. C----- provided her with the names of alternative therapists, but Mother refused. Ms. C----- felt this was necessary because Mother has not "reformed herself" and shows no insight into her behavior. Mother conveyed that she briefly looked at the recommended therapists on the Internet but would not change because she was required to sign releases that would allow Ms. C----- and the new therapist to discuss details about Mother's sessions. On cross examination, Ms. C----- reported that she has spoken with Mr. D-------- several times. She reported that she never said he was incompetent but feels Mother has not reformed herself or understands the severity of the case. Mother testified that she would not change her current therapist because she has a great relationship with Mr. D--------. Further, she stated that there is nothing to indicate that he is an inappropriate or unprofessional therapist. She reported that he listens to her, answers her questions, and has always been professional. The Court notes that although Dr. F---------- and Ms. C----- recommended that Mother change therapists, the Court did not order her to do so, which is indicated in the prior Order.
Dr. F---------- indicated in his custody evaluation report (mentioned in the Court's April 10th Order) that "if [Ms.] C----- determines that [Mr. D--------] is not fully supportive of the current treatment plan, it is strongly recommended that [Mother] be ordered to find a new therapist who can partner appropriately with [Ms.] C-----." On cross-examination, Mother stated that she did not interpret the Court's Order adopting Dr. F----------'s recommendation in a way that required her to change therapists.
Mother testified that during the June 5th session, Father and Ms. C----- "verbally abused" her, and she was told to sit and be quiet. Father stated that the session consisted of Ms. C----- outlining her protocol and then Mother expressing pushback. Father stated that voices were raised a few times by both Mother and Ms. C----- but denied any verbal abuse occurring.
Ms. C----- testified to the communications she has had with Mother via email. Ms. C----- stated that there were approximately 15-20 communications between her and Mother regarding Ms. C-----'s protocol. These emails did not contain name-calling, but Ms. C----- reported that Mother used very strong language. On September 6, 2017, Mother sent an email to Ms. C----- stating:
A packet of emails and correspondence was admitted as Fathers Exhibit 1.
"Requiring me to lie to my children can in no way be viewed as therapeutic by any reasonable person. You constantly ignore my comments and refuse to address the fact that your protocol requires me to lie. The unmitigated gall you consistently exhibit in your communication is shameful at best and more likely borderline criminal. Again, I'm a good parent who will not lie to my children. Change your protocol to reflect this or I cannot comply."
Ms. C----- responded to this email on September 7, 2017 stating that it was time for the Court to make its recommendation regarding the status of the therapy. Ms. C----- felt that the therapy was not moving forward at this point, Mother was agitated, and it was not in her best interest to respond. Ms. C----- also mentioned four letters sent to her by Mr. Kalmbach where he demanded to be sent the protocol and informed her that Mother was going to file a formal complaint to her Board. Ms. C----- noted that there was never a point in these communications when she said she was not going to continue therapy with the family.
Ms. C----- reiterated that she never asked Mother to lie and believes she has met the Court's mandate to initiate reunification therapy sessions to the best of her ability. She recommends that the children continue living with Father and establish supervised visitation between Mother and the children. She feels supervised visitation, instead of further therapeutic contact, is the best approach at this point because Mother is not willing to participate in therapy. Ms. C----- also stated that she would be willing to supervise the visits because she knows the case well and would be able to recognize any alienating behaviors immediately. She believes that unsupervised visitation would be emotionally detrimental to the children after the progress that has been done and does not believe the children would be able to combat Mother's behaviors. Ms. C----- admitted that C---- is turning 18 years old in ----- and will be able to see his Mother under no such restraints.
Ms. C----- indicated that she did not believe visitation centers could recognize such alienating behavior because this is such a severe case.
Although Mother was willing to participate in reunification therapy with Ms. C----- at the time of the interim contact hearing, Mother told the Court that she is not willing to comply with Ms. C-----'s approach, despite recognizing that Ms. C----- was responsible for creating the therapy protocol and moving Mother to non-therapeutic contact with the children. Mother believes that Ms. C----- is partial to Father and does not agree with what Ms. C----- is requiring of her. She further stated that Ms. C----- is unethical and confirmed that she has made a complaint to the state board in Pennsylvania. She indicated that she has tried to comply with Ms. C-----'s reunification therapy by attending sessions and writing letters to the kids, including one in support of Father.
On cross examination by Ms. Swasey, Mother did not recall how often she has emailed Father to check on the children since the time of the last hearing but expressed that she emailed Father about C----'s failing grades. Mother also stated that Father has responded to her every time she emailed him. Further, Mother did not email Ms. C----- regarding how the children were doing. Mother stated that if she asked, she felt that Ms. C----- and Father would be dishonest.
Mother admitted that C---- did not have failing grades by the end of the academic year.
In contrast to Mother, Ms. C----- reported that Father, like the children, has participated in counseling in a meaningful way. He has complied with protocol and never demanded it to be changed. Father testified that he felt disappointment towards the reunification therapy between Mother and the children. He expressed that he wanted the therapy to be successful because he feels the more parents work together, the better the children will be. He has witnessed the communications between Mother and Ms. C----- and expressed that Mother gets caught up in semantics, such as the situation with the picture. He conveyed that Mother and Father's ability to co-parent has been unsuccessful despite participating in co-parenting therapy multiple times as well as the reunification therapy with Ms. C-----. Father believes that Mother views situations as his fault and ultimately decides not to participate in getting help.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
The Court notes that, as indicated in the April 10th Order, the parties stipulated at the prior hearing that there is no history of domestic violence in their relationship. At the instant hearing, Father expressed concerns about Mr. C------' alleged threats toward him and C---- while C---- was living in the home. He believes Mr. C------ could be a danger to the children if they were to return to his home. Mother denied any such behavior by Mr. C------.
As indicated in the April 10th Order, the Court notes that Father testified at the March 19, 2015 hearing that Ms. T----- also has no history of domestic violence. See March 19, 2015 transcript, p. 224, lines 4-7.
(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.
As stated in the April 10th Order, neither Mother nor Father has any criminal convictions other than motor vehicle violations according to DELJIS. Mr. C------ and Ms. T----- also do not have Delaware criminal histories. Although Mr. C------ previously admitted that he incurred a DUI charge in Pennsylvania, the offense was expunged from his record several years ago.
§ 722 Conclusion
Based upon the above evidence, the Court finds that it is in the children's best interest for Father to be awarded SOLE LEGAL CUSTODY and for the children to remain in Father's PRIMARY RESIDENCY. The Court also finds that unsupervised visitation with Mother is consistent with the children's best interests and maturity. Factors (2), (3), (4), (5), and (6) support this determination, and factors (1), (7), and (8) are neutral in the best interest analysis.
The parties are opposed in their positions on legal custody and residency of the children under factor (1). Father requests sole legal custody and primary residency of the children. In regards to Mother's contact, he would like the Court to adopt Ms. C-----'s recommendation for Mother and the children to have supervised visitation with Ms. C----- supervising the visits. Conversely, Mother is seeking an award of primary residency but for joint legal custody to continue. Therefore, factor (1) is neutral in the Court's analysis.
The Court does not consider the children's preferences under factor (2) in regards to legal custody, and the children were not asked about legal custody during their interviews with the Court. However, with respect to residency, C---- and B----- did not express any fear or concerns regarding Father's home during their interviews with the Court on October 10, 2017. In contrast to the children's November 3, 2016 interview with the Court where they expressed a desire to promptly return to Mother's home, the Court finds that the children seemed content in Father's home, supporting an award of sole legal custody and primary residency to Father. However, both children adamantly expressed that they missed Mother and wanted contact with her, supporting the Court's determination regarding unsupervised visitation.
Under factor (3), the Court notes that C----'s relationship with Father has been tumultuous throughout this litigation, but testimony from Father, Ms. C-----, and C----'s interview indicate that their relationship has improved since Father was awarded primary residency. The Court notes that B----- has not had significant issues in her relationship with Father, and she confirmed to the Court in her interview that she gets along well with Ms. T-----. In regards to their relationship with Mother, the children told the Court that they miss Mother and want contact with her. The Court expresses considerable concern regarding Ms. C-----'s testimony that emotional abuse was occurring in Mother and Mr. C------' home when the children were living there. However, the Court does not find that the continued period of separation between the children and Mother is in the children's best interests under the burden of 13 Del. C. § 728(a). The children have been in Father's care since July 2016, and evidence has shown that the children's relationships with Father have improved. Although Father is requesting that Mother's visitation be supervised by Ms. C----- to combat any alienating behaviors Mother may exhibit, the Court finds that Mother and Ms. C-----'s relationship is significantly hostile, and any communication between them is unlikely to be beneficial for any party involved.
The Court also recognizes C---- and B-----'s ages and maturity levels. C---- turns 18 years old in ----- and has expressed that he will have contact with Mother then, if contact is not granted by the Court now. Ms. C----- and Father have also testified to his improved behavior and relationship with Father. B----- turns 15 years old in -------- and both Father and Ms. C----- have testified to her maturity, openness, and more willingness to talk even since the last hearing. Additionally, the Court notes that the evidence presented throughout this litigation was consistent in that Mother's alleged alienating behavior was particularly concerning for C----'s relationship with Father. In contrast, B----- always had appropriate contact with Father and built a positive relationship with him. Therefore, the Court finds that factor (3) supports its decision for sole legal custody and primary residency to be awarded to Father and for Mother to have unsupervised visitation with the children.
Under factor (4), the Court notes that the children had some problems adjusting after primary residency was transferred to Father in July 2016. However, based on testimony from Father and Ms. C-----, as well as the interviews of C---- and B-----, the children appear to have made substantial progress adjusting to Father's care. According to Father and Ms. C-----, C---- has been showing signs of maturity, and his behavior towards Father, Ms. T-----, and B----- has been more positive. C---- similarly told the Court that he believes his behavior has improved. Additionally, the children continue to succeed in school. B----- enjoys attending C----- and performs well academically. Although he still prefers C---------- High School, C---- told the Court that he wishes to stay at D-------- High School, and he is currently passing all of his classes. C---- and B----- both participated in competitive rock climbing, and C---- was playing soccer at D-------- until his injury. Unfortunately, B----- has still not been able to ride her horse since the sequestration took effect, although Father testified that he has made several offers to her asking if she would like to ride. The Court notes that it is indeed unfortunate that Mr. C------, an adult, would take out his animosity towards Father by prohibiting B----- from riding his horse. However, Mr. C------ is not a party to this proceeding. Despite this issue, the Court finds that the evidence under factor (4) supports its decision for Father's sole legal custody and primary residency of the children.
The Court notes that Mr. C------ banned Father from being present around the horse, so Father offered for B----- to ride a different horse.
Under factor (5), the Court again notes that this family has received extensive therapeutic intervention over the past couple years due to the extreme and unusual familial issues, particularly C----'s anger towards Father and Mother's negative influence on the relationship. Based on testimony from Ms. C----- and Father, C----'s relationship with Father seems to have made progress through reunification therapy with Ms. C-----. Although C---- denied a positive outcome concerning therapy in his interview with the Court, he did note that he was not fighting with Father constantly, which is an improvement from his anger towards Father in the past. The evidence suggests, and Mother confirms, that she is not willing to participate in reunification therapy with Ms. C----- and wishes to continue her own treatment with Mr. D--------, which seems to be in conflict with Ms. C-----'s therapy. However, Mother further testified that she merely "keeps in touch" with Mr. D-------- and only sees him on an as-needed basis. She also could not recall the date of her last appointment.
Additionally, under factor (5), the Court previously placed significant weight on Dr. F----------'s recommendation in concluding that contact with Mother outside the therapeutic paradigm would significantly impair the children's emotional development. However, Dr. F---------- also stated that this harm to their emotional development would be due to a "severe impairment" in the children's relationship with Father. Dr. F---------- also told the Court that the prior order should be temporary, as the family needs to be assessed after some time has passed in counseling to determine if any progress has been made. At that point, the Court can make a decision as to custody and visitation. The Court considers its findings under factor (3) above regarding the children's positive adjustment to Father's home since living with Father full-time and the children's advanced ages. Father and Ms. C----- testified that the children's relationship with Father has improved. Ms. C----- has also terminated individual counseling with B----- based on her therapeutic progress. Further, the Court agrees with Ms. C----- and Father that therapy is no longer an option due to Mother's noncompliance, outlined under factor (6), and it is in the children's best interest to resume contact with Mother since they have only seen her once since July 2016. Therefore, even though Mother's counseling has not occurred in the manner originally recommended by Dr. F---------- and Ms. C-----, the children's relationship with Father has progressed after living with Father on a full-time basis and attending therapy with Ms. C-----. For these reasons, the Court finds that unsupervised visitation between Mother and the children is in the children's best interests. Additionally, the Court finds that sole legal custody and primary residency be awarded to Father in order for the children's relationship with him to continue progressing in the same manner as it has been since residing with him on a full-time basis and participating in therapy with Ms. C-----.
Under factor (6), the Court finds that Mother's noncompliance with Court-ordered reunification therapy with Ms. C----- weighs against her. The Court gives minimal consideration to the reasons Mother provided for her refusal to cooperate with Ms. C-----'s protocol. Based on the testimony presented, the Court finds that Mother was never instructed to lie to the children; she was asked to clarify the incident regarding the photograph of B----- and to express support for Father's home pursuant to establishing an effective co-parenting relationship. The Court also notes that it would not be a lie for Mother to state that Father loved the children, and Mother would not even acknowledge that simple notion. Further, Mother declined to participate in therapeutic discussions based on her speculations of future criminal charges acquired by Father that never occurred. The Court notes that it has never ordered Mother to change therapists despite the conceptual conflict with the reunification therapy. However, Mother refused to change therapists pursuant to Ms. C-----'s protocol and then testified that she does not participate in counseling with Mr. D-------- on a regular basis and could not recall the date of her last session. For these reasons, the Court finds that factor (6) supports an award of sole legal custody and primary residency to Father.
The parties previously stipulated at the prior hearing that there is no history of domestic violence in their relationship under factor (7). At the instant hearing, Mother admitted that Father has never been arrested or charged with any criminal action regarding alleged incidents described in the April 10th Order. Although the Court considers Father's testimony regarding Mr. C------' alleged threats to C---- while living in the home, C---- and B----- both told the Court that they have a "good" relationship with Mr. C------ and expressed no fear or concerns regarding him or his home. Mother further denied any such behavior. Therefore, the Court finds that factor (7) is neutral in the best interest analysis.
Factor (8) is also neutral, as the Court has no concerns about the parties' criminal records or those of the adult residents in their households.
The Court notes its considerable concern regarding Mother's negative influence on the children, and Ms. C-----'s diagnosis that emotional abuse due to "coaching" the children was occurring in Mother and Mr. C------' home. The Court also recognizes Mother and Father's consistent inability to effectively co-parent, and Mother's previous noncompliance with Court orders, which have resulted in a sequestration order and court sanctions. Because of these concerns, the Court finds that it is in the children's best interest for Father to be awarded sole legal custody and primary residency of the children.
In terms of visitation, the Court finds that continued separation of the children from Mother cannot continue. Under 13 Del. C. § 728(a), the Court must "determine a schedule of visitation with the non-residential parent, consistent with the child's best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents unless the Court finds, after a hearing, that contact of the child with one parent would... significantly impair his or her emotional development." As indicated, the Court previously gave weight to Dr. F----------'s testimony at the last hearing regarding how contact with Mother outside of therapy would impact the children's emotional well-being. Notwithstanding this recommendation, Dr. F---------- stated that his expectation with the children having no contact with Mother outside of therapy would be a "short step" in the process and should quickly advance to Mother having other contact. Unfortunately, this lack of contact was significantly prolonged due to Mother's noncompliance, with the children only seeing Mother once since July 2016. The children expressed to the Court that they miss Mother, and the Court has significant concerns regarding the children's emotional well-being if this period of separation continues. Additionally, as previously indicated, reunification therapy is no longer an option due to Mother's noncompliance.
Although Father requested supervised visitation by Ms. C-----, the Court considers the language of 13 Del. C. § 728(a) and recognizes the children's advanced ages and the progress they have made in Father's home since Father was granted primary residency. As indicated, the children have adjusted positively to Father's home, and Dr. F----------'s previous recommendation was out of concern for the relationship between Father and the children. The Court also notes that C----'s relationship with Father was of highest concern throughout this litigation, as the history of the case shows a strained and tumultuous relationship between them. However, based on testimony from Father, Ms. C-----, and C----, their relationship has improved since being in Father's home, and C---- wishes to stay in the home at least until he graduates from high school. Additionally, C---- turns 18 years old in ----- and will be able to make his own decisions regarding contact with Mother. In contrast, B----- is 15 years old and has expressed to the Court that she has always traveled back and forth between Mother and Father's homes. Despite any alienating behaviors exhibited by Mother in the past, B----- and Father never had a considerably adverse relationship comparable to C----'s, and B----- never voiced concerns regarding Father's home during her interview with the Court. As indicated, Ms. C----- also discharged B----- from individual therapy due to her therapeutic progress. Finally, the Court notes that Mother and Ms. C-----'s current relationship is hostile and any further contact between them would not be beneficial for either party or the children. For these reasons, the Court finds that unsupervised visitation between Mother and the children is consistent with the children's best interests and maturity and would not significantly impair their emotional development, especially if they remain in Father's home.
Based on the above analysis, the Court finds that it is in the children's best interests for Father to be awarded SOLE LEGAL CUSTODY and PRIMARY RESIDENCY. The Court also finds that unsupervised contact with Mother is consistent with the children's best interests and maturity and would not significantly impair their emotional development. Factors (2), (3), (4), (5), and (6) support this determination, and factors (1), (7) and (8) are neutral in the best interest analysis. In making this determination, the Court asserts its concerns regarding Mother's ability to support Father's role with the children. However, as sole custodian, Father has the authority to continue counseling with Ms. C----- as he deems necessary and beneficial for the children and their relationship with him. The Court also orders that neither parent use disparaging comments or remarks about the other parent to the children. Further, each parent has the obligation to remove the children from any situation where an individual is using disparaging comments or remarks about the other parent. IT IS SO ORDERED.
Last, Father requests the Court to order a psychiatric evaluation be conducted for Mother. Pursuant to Family Court Rule of Civil Procedure 35, the Court may order a party to submit to a mental examination if "good cause" is shown. On behalf of Father, Ms. Swasey argued that Father genuinely wants Mother to get help, and Father fears that if Mother does not reform herself, the same problems will continue. The Court finds that "good cause" for Father's motion is not found under the Rule. This is a final order for custody in this matter, and an intrusive psychiatric evaluation is likely to have minimal impact on the parties after the Court's decision. Therefore, Father's request is DENIED.
Fam. Ct. Civ. R. 35(a).
"When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the Court in which the action is pending may order the party to submit to a physical or mental examination by a psychologist suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made."
Attorneys Fees
Father is seeking an award of attorneys fees and costs associated with the instant custody modification proceeding, including the motions, petitions, pleadings, court and legal interventions, and letters, that he believes were usually necessitated by Mother's actions or failure to adhere to Court orders. On behalf of Father, Ms. Swasey submitted evidence regarding the costs Father has incurred throughout the litigation as well as both Mother and Father's current income information. At the instant hearing, Mother's counsel requested the opportunity to submit an affidavit of fees to be considered by the Court. Therefore, the Court finds it appropriate to DEFER its decision on Father's request until Mother's counsel provides evidence to the Court in this matter. Counsel shall provide a stipulation to the Court regarding a preferred timeframe that would provide an opportunity for Father's counsel to supplement the previously admitted evidence and Mother's counsel an opportunity to comprehensively respond. The stipulation must be submitted to the Court no later than the end of business on January 12, 2018.
This evidence was admitted as Father's Exhibit 3 without objection.
ORDER
IT IS HEREBY ORDERED this 28th day of December, 2017 that:
1. Father is awarded SOLE LEGAL CUSTODY of the children.
2. Father is granted PRIMARY RESIDENCY of the children.
3. Mother shall have unsupervised visitation with the children beginning the week of January 1, 2018. This visitation will begin with a three-month transitional period where the children shall visit with Mother for a series of weekly three-hour visits. By mutual agreement, the parties may choose the day of the week most convenient for their schedules and the children's schedules. However, if the parties are unable to reach an agreement, the visits shall alternate between Wednesday and Friday evenings each week. The visits will be from 5:00 p.m. until 8:00 p.m., with the children being returned to Father no later than 8:30 p.m.
At the conclusion of the three-month transitional period, the children shall engage in weekend visits with Mother on alternating weekends. A weekend visit begins from Friday at 5:00 p.m. until Sunday evening, with the children being returned to Father no later than 8:30 p.m.
Due to the hostile relationship between Father and Mr. C------, Mother shall be responsible for the children's transportation to and from these visitations. The Court expects the parties to act with civility towards one another and the children at these exchanges.
4. Mother and Father shall divide time with the children equally on Christmas, Thanksgiving, and the children's birthdays in accordance with a mutually agreed-upon schedule. If they cannot agree on a schedule, the Court will establish one. The parties should notify this Court of their agreement by January 12, 2018. The children shall spend Father's Day, Mother's Day, and the parties' respective birthdays with the parent whose holiday or birthday is being celebrated.
5. Neither parent shall use disparaging comments or remarks about the other parent to the children. Further, each parent must remove the children from any situation where another individual is making disparaging comments or remarks about the other parent.
6. Father's request for attorneys fees is DEFERRED until Mother's counsel has the opportunity to submit evidence on the matter. Counsel shall submit a stipulation to the Court regarding a preferred timeframe in addressing their applications for attorneys fees no later than the end of business on January 12, 2017.
The first visit will be on Wednesday evening, the next visit will be the following Friday evening, the next visit will be the following Wednesday evening, and so forth. --------
IT IS SO ORDERED.
Very truly yours,
/s/_________
MICHAEL K. NEWELL, Chief Judge MKN/bab Date emailed: 12/28/2017