Opinion
File No. CN16-06681 CPI No(s) 16-39628
07-09-2018
K---- O-- and A----- O-- ---- ------- ---- ----------- -- ----- Petitioner v. *K---- P-------- --- ----- -- ---------- -- ----- and T------- S---- (DECEASED) Respondent
Petitioner Attorney John Macconi, Jr. Respondent Attorney *David Gagne, Esquire
Petitioner Attorney
John Macconi, Jr. Respondent Attorney
*David Gagne, Esquire Nature of Proceeding
Petition for Third-Party Visitation ORDER - PETITION FOR THIRD-PARTY VISITATION
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition for Third-Party Visitation filed on December 28, 2016, by K---- and A----- O-- (herein "Petitioners"), represented by John Macconi, Jr., Esquire, against T------- S---- (herein "Mother"), who is deceased, and K---- P-------- (herein "Father"), represented by David Gagne, Esquire, in the interest of T------- S----, born ------ --, ----, (herein "minor child"). The Court held a hearing on April 30, 2018, and heard testimony from the parties.
PROCEDURAL HISTORY
In December, 2016, the Petitioners filed a Petition for Guardianship of the above-named child as well as an Affidavit and Motion for an Emergency Ex Parte Order which was granted. After an emergency hearing on December 12, 2016, the Court issued a temporary Order granting the Petitioners Guardianship of the child and established a graduated visitation schedule for Father. The instant Petition was filed on December 28, 2016, while the Petition for Guardianship was pending. When the parties retuned for the final hearing on January 3, 2017, the Petitioners withdrew their Petition for Guardianship. An Interim Stipulated Order was entered, without prejudice, regarding the instant Petition which provided that the Petitioners would have visitation with the child every other weekend from Friday evening until Sunday evening.
FACTUAL BACKGROUND
The Petitioners are the Maternal Aunt and Uncle of the child. Mother died in November, 2016. Prior to Mother's death, the child and Mother were residing with the Maternal Grandparents and the child was visiting with Father at his home in New Jersey, although the parties dispute how much time Father had actually spent with the child in the months leading up to Mother's death. On the day Mother died, the child was visiting with Father in New Jersey. Father returned the child to Mother's family but Mother's family did not tell Father about Mother's death until days after the child was returned to Delaware. When the family told Father about Mother's death, Father allowed the child to stay with the maternal family so that she could attend the funeral. The maternal family decided that it would be best for the child to move into the Petitioners' home after Mother's passing so that she would not have to go to the home where she resided with Mother. The Petitioners did not tell Father that they had changed the child's residence.
After Mother's funeral, Father requested that the child be returned to him. Father, members of his family, the Petitioners, and members of Mother's family met at the Panera on Concord Pike to discuss the matter. The meeting at Panera did not go well as Father wanted to have the child back in his care and the Petitioners wanted her to stay with them. Eventually, the parties were able to reach an agreement that the Petitioners would keep the child until the Friday of that week since that would be Father's visitation time. However, the day after the meeting at Panera and unbeknownst to Father, the Petitioners filed a Petition for Guardianship and an Affidavit and Motion for an Emergency Ex Parte Order. The Ex Parte Order was granted the next day and an Emergency Hearing was held on December 12, 2016. At the Emergency Hearing, the Court entered an Interim Order allowing the child to continue to primarily reside with the Petitioners and set a visitation scheduled for Father. At the final hearing in January, 2017, the Petition for Guardianship was dismissed and the child moved to Father's residence in New Jersey.
Between the time of the emergency hearing in December, 2017, and the final hearing in January, 2018, (where the Petition for Guardianship was dismissed), the Maternal Aunt and Uncle filed the instant Petition for Third Party Visitation. At the hearing in January, 2017, regarding the Petition for Guardianship, the parties entered a Stipulation under the Petition for Third Party Visitation and agreed that the Maternal Aunt and Uncle would visit every other weekend.
During the hearing held on April 30, 2018, after the close of Petitioner's case, Father made an oral Motion for the Petition to be dismissed pursuant to Family Court Civil Rule 41(b). For the reasons stated on the record, the Court deferred the Motion and decided to hear all of the evidence.
Family Court Civil Rule 41(b) provides: Involuntary dismissal: Effect thereof. -- For failure of the petitioner to prosecute or to comply with these Rules or any order of court, a respondent may move for dismissal of an action or of any claim against that respondent. After the petitioner has completed the presentation of evidence, the respondent, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the petitioner has shown no right to relief. The Court as trier of the facts may then determine them and render judgment against the petitioner or may decline to render any judgment until the close of all the evidence. Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this Rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Further description of the relevant facts in this case are discussed in the analysis below.
LEGAL STANDARD
A petition for third-party visitation is governed by 13 Del. C. § 2410. In this case, the Petitioners are the Maternal Aunt and Uncle of the child and have standing to file the Petition by virtue of their relationship with the child. As Mother is deceased and Father objects to the visitation, Petitioner must prove that it is in the child's best interest to have visitation with the Petitioners and must further prove by clear and convincing evidence that Father's objection is unreasonable and prove by a preponderance of the evidence that visitation will not substantially interfere with the parent/child relationship.
13 Del. C. § 2410 Persons eligible to petition for third-party visitation provides:
(a) Unless otherwise specified in this chapter, any adult person or persons may file a petition for a third-party visitation order regarding a child not his, hers, or theirs against the child's guardians, parents, or DSCYF, provided that the adult person or persons can establish that the adult person or persons petitioning for visitation:
(1) Has a substantial and positive prior relationship with the child; or
(2) Is a grandparent, aunt, uncle or adult sibling of the child.
See 13 Del. C. § 2412.
A. Best Interest
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother is deceased and Father objects to the Court entering an Order allowing Petitioners visitation with the child. He asserts that he does not intend to keep the child away from Mother's family, but he does not believe that a Court Order should be entered establishing a visitation schedule. He asserts that he would continue to allow visitation with Mother's family, but on his terms. The Petitioners filed the instant Petition because they want assurance that the child will continue her connection to Mother's family. The Petitioners are requesting that they have visitation with the child every other weekend.
The Court finds this factor is neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Court did not interview the child. Therefore, the Court finds this factor is neutral.
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;
Father lives with his girlfriend, his fourteen (14) year old daughter, and Paternal Grandmother. Father asserted that L--- and his girlfriend do everything together that a mother and child would do together. L---- also has an "unbelievable" and "really good" relationship with her half-sister, K----, and has a good relationship with Paternal Grandmother.
The Petitioners have two (2) children ages seven (7) and ten (10). Maternal Aunt described her relationship with L--- as "more of a maternal" relationship since Mother passed away. Maternal Uncle and the child play together and have a good relationship. When the child is in a bad mood, Maternal Uncle can "get her to giggle". L--- gets along well with the Petitioners' children. Their daughter is "like a big sister" to L--- and their son teaches her things.
The Court finds that the child has a good relationship with Father and the Petitioners as well as the members of their households. Therefore, the Court finds this factor supports the Petitioners' request for visitation with the child.
4. The child's adjustment to his or her home , school and community;
L--- is in kindergarten and has been attending school from Father's home since January, 2017. She is doing well in school. L--- has an Individualized Education Plan (herein "IEP") at school to help with her speech and reading delays.
While at Father's home, the child plays with her half-sister. They play outside, swim in the pool, participate in cheerleading, and do each other's makeup. She also gets to spend time with her half-brother who lives approximately fifteen (15) minutes away from Father's home.
L--- enjoys participating in competitive cheerleading. Her half-sister also participates in cheerleading at the same place. The practices and competitions are on the weekends. The cheerleading is close to Father's home. When it is the cheerleading season, the Petitioners have taken her to the practices and the competitions. The Petitioners complain that the cheerleading "impedes" their visitation with the child because it takes a long time to get there and back home.
Since the Interim Order was entered, all of the visits with the Petitioners have occurred at their home and have gone well. The child has a routine at the Petitioners' home and is able to participate in activities with the Petitioners and their children. The child is also able to spend time with members of Mother's family.
Father asserts that when the child returns home from visitation with the Petitioners, she "shuts down" and says that she is not allowed to talk to him about things that go on in the Petitioners' home. He asserts that she never acts that way when she is with him all of the time.
Overall, the Court finds that the child is well adjusted to her school, her community, and both parties' home and seems to be benefitting from the visits despite the conflict amongst the adults in her life. Therefore, the Court finds this factor supports Petitioners having visitation with the child.
5. The mental and physical health of all individuals involved;
Father is in "outstanding" health. The child is in good health and is up to date on her doctor's appointments and vaccinations. The Court does not have information as to the Petitioners' health. The Court finds this factor is neutral.
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."
If Mother was alive, both Mother and Father would be "equally charged with their child's support, care, nurture, welfare, and education." Father is solely charged with providing for the child's needs and has been complying with his rights and responsibilities to the child. The Petitioners do not have the same responsibilities to the child according to § 701. However, the Petitioners have gone above and beyond what is expected of an aunt and uncle. After Mother died, the Petitioners took the child into their home and have treated her as their own child. They have continued to provide such care to the child when she is in their home for visitation. Therefore, the Court finds this factor supports the Petitioners' position that they should continue having visitation with the child.
S.M. v. S.M., II, 2015 WL 6442150, at *5 (Del. Fam. Ct. Feb. 19, 2015) citing 13 Del. C. § 701(a).
Id.
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.
Petitioners expressed a concern regarding Father's treatment of Mother prior to the child's birth. From June through July, 2011, Maternal Aunt resided with Mother and Father. She described their relationship as "volatile and abusive". She alleged that Father restricted Mother's food, access to money, cell phone usage, and access to the vehicle. She also alleged that Father "provided" Mother with drugs. Maternal Aunt was aware of Mother's "drug use" but alleged that she believes Father "provided" the drugs to Mother because one time he took Mother somewhere and she came back unable to walk. Maternal Aunt acknowledged that she did not see Mother take any drugs and she did not know what actually happened. Father denied ever abusing Mother or giving Mother drugs. Father asserted that he was making efforts to help Mother with her drug abuse and talked to Mother's family regarding his concerns about Mother's drug use. He also asserted that he had contacted Mother's doctors to talk to them about what was happening in Mother's life. The Court finds that Petitioners did not prove by a preponderance of the evidence that Father abused Mother. Therefore, the Court finds this factor is neutral.
8. The criminal history of any party or adult member of a household and shall take into consideration whether a party or adult member of a household has pled guilty or no contest to or was convicted of a criminal offense.
The Court has reviewed the parties' Delaware criminal histories as well as the members of their households and is not concerned. The Court is not able to check the criminal histories in New Jersey where Father and the members of his household live. During the hearing, Father denied having a criminal history. The Court finds this factor is neutral.
Summary of Best Interest Analysis
Based upon the Court's analysis of the best interest factors, the Court finds factors (1), (2), (5), (7), and (8) are neutral and factors (3), (4), and (6) support the Petitioners' position that they should be permitted visitation with the child. As the best interest factors support the Petitioners' having visitation with the child, the Court will continue the analysis under the statute to determine if visitation is appropriate.
A. Father's objections to the third-party visitation are not unreasonable
The Petitioners have the burden to prove by clear and convincing evidence that Father's objection to the visitation is unreasonable. When evaluating the evidence, "[t]he clear and convincing standard requires evidence that 'produces in the mind of the trier of fact an abiding conviction that the truth of [the] factual contentions [is] highly probable.' " The Delaware Supreme Court has "upheld the Family Court's determination that the parents' objections to visitation were not unreasonable when there was at least some evidence to support the objections." Here, the Petitioners have not proven that Father's objections are unreasonable.
Grant v. Grant, 2017 WL 5148258, at *4 (Del. Nov. 7, 2017).
Id.
On direct examination, Father indicated the he objects to the visitation because the parties do not communicate well with one another. The Petitioners admitted that they do not think "highly" of Father. Maternal Aunt stated that she does not see a "reason" for her to communicate with Father and she does not wish to communicate with him. Maternal Uncle agreed that the parties do not communicate well. While it is true that Father and Maternal Uncle have some communication, Father does not believe that the Petitioners will inform him if something happens in their home. For example, the Petitioners testified that the child made concerning statements in their home three (3) different times. After the third statement, the Petitioners contacted DFS, but never contacted Father. The Petitioners asserted that they did not communicate their concerns with Father because they weren't sure why the statements were being made and did not want to alert Father if he was the cause. No one told the Court what the statements were, but Petitioners insinuated that the statements were sexual in nature. The Petitioners indicated that they have done a lot of research about pedophiles and "grooming" leading the Court to believe that they were concerned that Father may be harming the child in some way. Father indicated that he was "devastated" when he learned that the Petitioners turned to DFS before they came to him. He stated that he would never do anything to harm the child and was embarrassed that DFS had come to his home and investigate him. He would have also liked to have had the ability to talk to them and the child about the statements. Based upon a letter from the State of New Jersey's Department of Children and Families, the investigation was closed and the agency terminated their involvement.
See Respondent's Exhibit 1.
It was the Petitioners' burden to prove Father's objections are unreasonable. They did not meet their burden. They in fact confirmed Father's objections are reasonable as they admit that they do not like Father and do not communicate with him. Therefore, the Court finds that the Petitioners failed to prove that Father's objections are unreasonable.
B. The third party visitation will substantially interfere with the parent/child relationship
It is the Petitioners' burden to prove by a preponderance of the evidence that visitation with the child will not substantially interfere with Father's relationship with the child. The preponderance of the evidence standard requires the Court to weigh "such relevant evidence as will enable the Court to determine the identity of the litigant who should prevail, the weight of the evidence tipping in favor of that litigant." Preponderance of the evidence is also defined as evidences that "indicates that the fact 'is more likely than not'."
Shipman v. Div. of Social Servs., 454 A.2d 767, 768 (Del.Fam.1982) citing Reynolds v. Reynolds, 237 A.2d 708 (Del.1967).
Father is concerned that the Petitioners will interfere with his relationship with the child. Father points to the Petitioners' behavior after Mother passed away to support his position. Mother passed away on a Friday night after the child had gone to Father's house for the weekend. No one called Father to tell him that she had passed away. Even when Father brought the child back to Delaware that Sunday, no one told him of Mother's death. It wasn't until that following Tuesday that Mother's father and brother told him that Mother had died. Father was devastated. He agreed to allow the child to stay with Mother's family for the funeral. During this time, the Petitioners decided it would be best if the child moved into their home so that she would not have to return to the home where she was living with Mother and maternal grandparents. The maternal relatives did not tell Father that they had changed the child's residence.
After Mother's funeral, the parties met at Panera to discuss the child returning to Father's care. Father admits that he was upset during the meeting because the Petitioners suggested that the child continue to reside with them but he wanted his child to return to his home. Because of how the meeting was going, Father called the police. He had all intentions of taking the child back to his home that evening. Before the police arrived, Father and Maternal Uncle talked and it was decided that it was too late for the child to leave the Petitioners' home and that Father would pick up the child on Friday as it would have been his regular visitation. The parties did not communicate with one another after they left the meeting at Panera. When Friday came and Father was ready to pick up the child, no one in Mother's family would answer his phone call as to where he could pick up the child. He then went to the New Castle County Police Department and they informed him that the Petitioners had been granted temporary guardianship of the child. The Petitioners filed the Petition for Guardianship the day after the meeting at Panera. They acknowledge that they did not tell Father that they were going to file the Petition. While the Petition was pending, Father did not see the child for three (3) weeks.
While the Petition for Guardianship was pending, the Petitioners filed the instant Petition. After they withdrew the Petition for Guardianship, an Interim Order was entered in this matter providing the Petitioners with visitation every other weekend. The Petitioners alleged that Father had violated the Order when he changed the drop off location from a Cracker Barrel in one area to a gas station that was closer to his home. However, the Order did not provide for a specific location for exchange of the child. To the contrary, the Order indicated that the Petitioners were responsible for the transportation. The Petitioners also asserted Father's change to the exchange location was making visitation with the child harder on them. They asserted that they spent a lot of time in the car and that took the "meaningfulness" of the visitation away from them. Father indicated that he changed the exchange location because of his schedule and because of his mother's declining health. As the Order did not set an exchange location and only indicated that the exchange details would be by agreement of the parties, Father is not in contempt of the Interim Order.
See Order entered January 3, 2017.
As discussed herein, the Petitioners acknowledged that they do not like Father and do not think "highly" of him. During the exchanges, Maternal Aunt does not look at Father or acknowledge him. The parties admit that they do not communicate well with one another. Maternal Aunt does not see a "reason" to communicate with Father at exchanges. Maternal Uncle stated that he and Father communicate but it is "sparse". They usually communicate if it has to do with the exchanges or if the child gets sick when she is with them.
Father also believes that the Petitioners contacting the Division of Family Services (herein "DFS") with their concerns and not him was their way of attempting to take the child away from him. According to Maternal Aunt, the child made some concerning statements when the child was visiting with them. After the child allegedly made concerning statements on three (3) different occasions, the Petitioners called DFS. However, at no time did they communicate their concerns to Father. The Court has no information about the statements or the context in which they were made or when they were disclosed. DFS' investigation has been closed indicating that the allegations were unfounded. The Petitioners denied that they tried to "stick it" to Father by calling DFS but admit that they did not contact Father regarding their concerns.
Finally, Father has concerns about the child being in the Petitioners' home. When she comes home from visitation, she "shuts down" and indicates that she is not allowed to talk about what happened at Petitioners' home. Father stated that she never shuts down when she is with him full time. Father is also concerned about the child not communicating with him about anything that happens in the Petitioners' home.
Petitioners have in fact repeatedly attempted to interfere with Father's relationship with his child. Therefore, for all of the foregoing reasons, the Court finds that the Petitioners have not met their burden of establishing that the visitation would not interfere with the parent/child relationship.
CONCLUSION
While the best interest factors support the Petitioners having visitation with the child, the Court cannot find that Petitioners have met their burden in establishing that Father's objections are unreasonable or that the visitation will not interfere with the parent/child relationship. The Delaware Supreme Court has "upheld the Family Court's determination that the parents' objections to visitation were not unreasonable when there was at least some evidence to support the objections."
Grant, 2017 WL 5148258, at *4 (Del. Nov. 7, 2017).
The Petitioners failed to establish that Father's objections are unreasonable. The Court did not learn of Father's objections to the visitation until he testified. It was the Petitioners' burden to prove that the objections were unreasonable, not Father's burden to prove that they were reasonable. The Petitioners and Father do not get along. Maternal Aunt will not even speak to Father during exchanges and the Aunt and Uncle admit they do not think highly of Father. For the reasons stated herein, the Petitioners failed to meet their burden that Father's objections to the visitation are unreasonable.
D.Q. v. J.P.Q., 2012 WL 5198334, at *7 (Del. Fam. Ct. Aug. 14, 2012). --------
The Court also finds that the Petitioners failed to meet their burden of establishing that the visitation would not interfere with the parent/child relationship. The Petitioners do not like Father and do not communicate with him. Maternal relatives kept the child from Father in the days following Mother's death and orchestrated a deal with Father in bad faith leading him to believe they would willingly return the child to him and then immediately filed for Emergency Guardianship of the child. They accused Father of violating the Interim Order when there was no basis to do so. They insinuated that Father was grooming the child for sexual abuse and they have told the child not to talk about things that happen in their home when she returns to Father's home from visitation. The Aunt and Uncle clearly love this child and want to continue to be part of her life. It is obvious that they are hurting after the sudden loss of the child's Mother and desperately want the child to continue to know the maternal side of her family. The Aunt and Uncle had good intentions and should be commended for be willing to fight for what is in this child's best interest. It is unfortunate that the parties do not get along and could not work out an amicable resolution to this matter as this young child will clearly benefit from having contact with the maternal side of her family. It is the Court's hope that Father is willing to foster that relationship notwithstanding the fact that Petitioners failed to meet their burden in this case.
WHEREFORE, the Court enters the following Order:
1. The Petition for Third-Party Visitation is hereby DENIED. However, this Order in no way prevents the parties from making arrangements for the child to visit the maternal side of her family and the parties are encouraged to do so.
2. The interim Order entered on January 3, 2017, is hereby TERMINATED.
3. Father's oral 41(b) Motion is DENIED as moot as the Petition has been denied.
IT IS SO ORDERED this 9th day of July 2018.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, File