Opinion
File No. CN15-01009 CPI No(s) 19-14697
02-25-2020
K----- P----- CONFIDENTIAL ADDRESS Petitioner v. J----- G------ -- --------- ---- -- --- - ----------, -- ----- Respondent
Attorney Alfred Cave, III, Esquire Attorney Self-Represented
Nature of Proceeding
Petition for Custody Attorney
Alfred Cave, III, Esquire Attorney
Self-Represented ORDER - PETITION FOR CUSTODY
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition for Custody filed on May 21, 2019, by K----- P----- (herein "Mother"), represented by Alfred Cave, III, Esquire, against J----- G------ (herein "Father"), self-represented, in the interest of K---- G------, born February 11, 2008, and J---- G------, born December 30, 2009, (herein "minor children"). The Court held a hearing on December 9, 2019, and heard testimony from both parties as well as Kayla Mason (DFS worker), Dr. Allison Dovi (Children's Therapist), P------- W--------- (Father's aunt), and J----- C---- (herein "Paternal Grandmother").
PROCEDURAL HISTORY
Mother filed a Petition for Protection from Abuse (herein "PFA") and requested an Ex-Parte Order against Father on January 5, 2015. Mother's request for an Ex-Parte Order was granted. Father filed a PFA on January 9, 2015, against Mother. On January 23, 2015, Mother's PFA was resolved when Father signed a Consent Order and Father's was resolved by voluntary dismissal.
Mother filed a second PFA and requested an Ex-Parte Order against Father on January 30, 2019. Mother's request for an Ex-Parte Order was granted. Father filed an Answer on February 15, 2019. Mother amended her PFA Petition on February 19, 2019, Father filed another Answer on March 5, 2019. After a hearing on March 8, 2019, the Court found by a preponderance of the evidence that Father abused Mother.
Mother filed a Motion for Contempt of a PFA on May 14, 2019. On August 30, 2019, Mother agreed to voluntarily dismiss the Motion for Contempt of PFA.
On May 21, 2019, Mother filed a Petition for Custody. Father later filed a Petition for Custody and requested an Ex-Parte Order on July 24, 2019. Father's Motion was denied as he failed to allege any facts supporting his emergency application. He was given an opportunity to amend his Petition to allege grounds upon which his Petition could be granted. Father's Petition was automatically dismissed on August 29, 2019, after he failed to amend his Petition.
On July 24, 2019. Father filed a Motion to Modify, Extend or Vacate a PFA. On August 13, 2019, Mother filed a Motion for Contempt of a PFA.
The Court held a Case Management Conference Teleconference regarding Mother's Petition for Custody on August 29, 2019, at which time the parties discussed the numerous outstanding matters. The conference was held via teleconference because the Court believed Father was living in Michigan. However, the Court has learned that Father has resided in Delaware at all times relevant hereto. At this conference, Father insisted that the Motion for Contempt of the PFA against him be resolved prior to the custody matter despite the fact that he had pending criminal charges which were based on the same facts alleged in the Motion for Contempt and the criminal charges were not scheduled to be heard until January 27, 2020. The Court scheduled a hearing on the Motion for Contempt and a Case Management Conference on the Petition for Custody for October 8, 2019. Mother was present with her witnesses for the Motion for Contempt on October 8, 2019. Father failed to timely appear. After some research, the Court learned that Father was present in the Courthouse for a criminal matter related to the same facts alleged in the Motion for Contempt. With the help of Court staff, Father was found and brought to the courtroom. When he finally appeared, he explained that he got the two matters confused and thought the Public Defender was representing him on both matters. The Court also found the Public Defender who was representing him in the criminal matter and asked that she come to this Judge's courtroom. The Court explained to the Public Defender what was going on and asked the Public Defender to meet with Father and explain her role and discuss with Father whether he should proceed with a contested hearing regarding the civil Motion for Contempt when he had criminal charges pending related to the same matter. After Father consulted with his Public Defender, the Public Defendant was excused and Father asked for a continuance of the hearing regarding the Motion for Contempt. The Court denied the oral Motion to Continue but agreed to bifurcate the hearing because Mother had subpoenaed a police officer who was present to testify and her witness had traveled from Massachusetts to testify after Father had objected to the witness testifying by telephone. The Court proceed with Mother's Case in Chief and allowed Father to present his defense during the Custody Hearing on December 9, 2019. The custody hearing was completed on December 9, 2019, and the Court reserved its decision at the conclusion of the evidence.
FACTUAL FINDINGS
The parties were married in February, 2003, and divorced in May, 2019. The parties had two children during their marriage. The parties lived together as a family until January, 2019, when the family was evicted and Mother filed a PFA Petition against Father. A PFA Order was entered against Father on March 8, 2019, when Father, after trial, was found to have committed an act of abuse against Mother. The PFA Order included language that Father may use a 3rd Party to contact Mother regarding visitation with the children.
There were two hotlines calls that prompted the Department of Services for Children, Youth, and Their Families (herein "DSCYF"), to investigate Father. Kayla Mason from DSCYF investigated the report regarding inappropriate sexual contact between Father and one of the girls. Ms. Mason testified that while conducting her investigation, Ms. Mason's supervisor had to be involved because Father was verbally aggressive toward Ms. Mason. Ms. Mason indicated her investigation of Father included reports of substance abuse issues, domestic violence, and grooming behavior. Ms. Mason's investigation concluded that Father should be substantiated at Level II on the Child Protection Registry for emotional abuse due to the children's traumatic interactions with their Father. Ms. Mason testified that the children disclosed Father would take them out of their beds in the middle of the night and make them sleep with him in his bed. The cuddling made the children uncomfortable. DSCYF decided to substantiate Father for emotional abuse. Father did not contest the Level II substantiation.
Mother moved into her current residence in February, 2019. Mother resides in a two-bedroom apartment. Mother is employed as a paraprofessional with a school district and works Monday through Friday from 8:45 a.m. to 4:00 p.m. Mother uses a family friend for after care to watch the children until she is home from work.
Father lives in an apartment in Wilmington, DE. He did not provide the Court with information regarding his current living situation. However, Father represented that he, his girlfriend, and his girlfriend's three daughters intend to buy or rent a home in Middletown, DE, within six (6) months of the hearing. Father works for Accenture as a consultant.
The parties have two children. K---- is in the -th grade at -.-. W----- M----- S-----. K---- is Autistic and she is struggling in two (2) of her classes. K---- has an IEP that includes speech therapy and extra help in the classroom. K---- also has anxiety.
J---- is in the -th Grade at C---- L--- E--------- S-----. J---- is doing well in school earning As and Bs. J---- is described as a vocal student who ask questions in class and is very focused in the classroom. J---- participates in the band and plays the flute.
The children see Dr. Allison Dovi, a psychologist at Nemours Hospital for Children. Dr. Dovi works in the field of Behavioral Health where she focuses her expertise on cognitive trauma informed therapy.
Neither parent completed a parenting class and filed a certificate of completion.
Further description of the relevant facts in this case are discussed in the analysis of the best interest factors below.
LEGAL STANDARD
To determine custody, residential placement, and visitation, the Court must analyze the factors under 13 Del. C. § 722 to create an Order that is in the child's best interests. Additionally, the Court shall award both parents frequent and meaningful visitation "unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child's physical health or significantly impair his or her emotional development."
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.
§ 722 FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
The parties agree Mother should continue to have primary residence of the children. Therefore, the Court's analysis focused on legal custody and a contact schedule for Father.
Mother is seeking sole custody of the children and proposes that Father have supervised visitation at the Visitation Center after he completes a parenting class and submits to a mental health evaluation.
Father wants to continue with the parties having joint custody and he proposes that he have visitation for one day every other weekend and counseling with the girls one to two times per week.
The Court finds this factor is neutral. 2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Mother filed a Motion to Interview the Children. At the conclusion of the evidence, the Court deferred its decision with respect to the Motion. After further consideration, the Court believes that it can make its decision without interviewing the children and, therefore, Mother's request to interview the children is denied. 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;
Mother testified that she has a good relationship with her children. Mother described K---- as a silly child and one who trusts her Mother's opinion. Mother testified that K---- is a vocal child as she speaks up when she does not like something. Mother described J---- as a "mini me" and she considers J---- a feisty girl. Mother described J---- as an opinionated child and one who is not easily convinced. According to Mother, she said that the girls love her and tell her she is a great mom. Mother loves having "girl time" with J---- and K---- as they spend hours doing hair and nails together. Mother described the girls as having a typical sister relationship where they have love/hate moments.
Mother testified that the girls see Mother's extended family, including maternal grandparents, maternal aunt, and nephews during holidays and the summer. Additionally, Mother said she Facetimes with the same relatives two (2) to three (3) times per month. She indicated that the girls have a good relationship with Mother's family.
Mother testified that, initially, Father and K---- were "thick as thieves" and their relationship was adorable but it became something different. Mother said that K---- was sleeping in Father's bed every night. Mother reported that Father would take K---- out of her bed in the middle of the night and move her into his bed in order to cuddle her. Regarding J----, Mother described Father's relationship as one where he had to gain her trust. However, Mother believes her trust was broken because she witnessed the fights between Mother and Father. Mother indicated that since J---- stopped living with Father, J---- no longer has panic attacks and K---- is more vocal regarding school. Mother testified that after the PFA Order, she still encouraged the girls to have a relationship with their Father and she tells them that their Father loves them.
Kayla Mason from DSCYF testified that as a result of her investigation of Father, he was substantiated at Level II for emotional abuse of his children due to K----'s and J----'s traumatic interactions with him. Ms. Mason testified that she learned d from the children that Father forced them to cuddle with him in his bed and that made them uncomfortable.
To the contrary, Father testified that he has a great relationship with each child. When the family resided in the same home, Father recalls having "K" dates, "J" dates, and "K & J" dates with his girls. Father testified that he would use his days explaining and modeling behavior about how a man should treat a woman. Father testified that the girls were always excited for their "daddy-daughter days".
Paternal Great-Aunt, P------- W---------, testified that the girls love being around their Father. Ms. W--------- indicated that she is around the girls for family gatherings, which may be three (3) to four (4) times per year.
Paternal grandmother testified that she thinks the girls were very fond of their Father. She reported the girls would love to sit in his lap and they were very affectionate with their Father. The Court has no timeframe as to when this behavior allegedly occurred. Paternal grandmother indicated that she had a good relationship with the children as well.
DSCYF substantiated Father at Level II on the Child Protection Registry for emotional abuse of K---- and J----. Father did not appeal this substantiation. While Father and his witnesses want the Court to believe that Father has a good relationship with the children, the Court does not agree. The DSCYF worker testified that Father's behavior makes the children uncomfortable and the Court found her credible in this regard. To the contrary, the children are appropriately attached to Mother and there are no concerns for the children in her care. Therefore, the Court finds this factor supports sole custody with Mother. With respect to visitation, as the children have not seen their Father since January, 2019, the Court finds that resuming contact with their Father in a therapeutic setting is appropriate. 4. The child's adjustment to his or her home , school and community;
The children are adjusted to Mother's home and the neighborhood where she resides. Mother resides in a two-bedroom apartment. Mother moved into her current home in February, 2019, and the children have resided there with her since that time. Mother reported that her current apartment is clean compared to the marital home. Mother argued that in the months prior to the eviction from the marital home, Father was responsible for cleaning the parties' home because he was not working. Mother indicated that when it was Father's responsibility to clean the parties' home, he did not and left the home messy and chaotic. Mother reported that the kitchen had dirty dishes and there was trash everywhere.
See Mother's Exhibit # 5
Mother's Exhibit # 6
Mother's Exhibit # 6.
Mother testified that the children attend school at the C---- L--- Campus. K---- is in the -th grade at -.-. W----- M----- S-----. Mother reported that K---- struggles with two (2) of her classes but she is doing well socially. Mother explained that K---- is autistic and she has an IEP and receives speech therapy. Additionally, K---- receives extra help in school and works in small groups. Mother also indicated that due to K----'s anxiety, her classes are in a small, closed room with no distractions.
J---- is in the -th Grade at C---- L--- E--------- S-----. Mother reported that J---- is doing well in school earning As and Bs. Mother explained that J---- is a vocal student who ask questions in class and is very focused in the classroom. J---- participates in the band and plays the flute.
The children have not had an opportunity to adjust to Father's home since they have had no contact with him since the parties separated and the PFA Order was entered against Father.
The Court finds this factor is neutral as to legal custody. As the children have had no contact with Father since the parties separated, they have not had a chance to adjust to Father's home. The Court gives this factor little weight as it relates to visitation. 5. The mental and physical health of all individuals involved;
K---- and J---- see Dr. Allison Dovi, a psychologist employed at Nemours Hospital for Children. Dr. Dovi works in the field of Behavioral Health where she focuses her expertise on cognitive trauma informed therapy. J---- and K---- had intake sessions with Dr. Dovi on August 7 and 21, 2019, respectively. Dr. Dovi explained that trauma focused therapy ranges from 12 to 20 sessions. Dr. Dovi outlined the goals and expectations for the therapy and the process to help the children manage their trauma. Dr. Dovi explained that therapy is broken down into three sections. The first section focuses on education, the second section focuses on helping the children process their experiences, and the third section focuses on giving the children safety skills they can use in the future.
After assessing each child, Dr. Dovi believes J---- exhibits PTSD symptoms due to the domestic violence she witnessed in the marital home. J---- described the domestic violence to Dr. Dovi who relayed J----'s description to the Court. Dr. Dovi testified that J---- witnessed her Father push Mother into the bedroom and J---- described the incident as a loud pillow fight. J---- perceived her Mother as the victim and that Father was hurting Mother. J---- told Dr. Dovi that she hid her tears because she thought Mother would be mad at her for eavesdropping. Dr. Dovi explained that J---- is withdrawn and she has concerns for the child's anger. In the beginning of their sessions, J---- had a low or depressive mood, but her mood has improved according to Dr. Dovi. At the time of the hearing, Dr. Dovi had completed nine (9) sessions with J---- and eight (8) sessions with K----.
Regarding K----, Dr. Dovi explained that her Autism acted as a protective barrier. Dr. Dovi testified that K---- struggles with adjustment disorder and from Dr. Dovi's perspective the source of the K----'s trauma is the move from her childhood home to Mother's current home. Dr. Dovi also recalled K---- asking, "How would a child know if they were sexually abused." Dr. Dovi testified that she requires between four (4) and six (6) more sessions with each child.
K---- and J---- speak with Dr. Dovi about their parents. Dr. Dovi reports that both children enjoy things with their Mother. J---- loves how silly her Mother is with her and K---- enjoys being with Mother. Dr. Dovi reports that K---- had asked about the rules regarding visitation with her Father while, J---- expressed hesitation about seeing her Father. J---- told Dr. Dovi that she feels the domestic violence was her fault because it started after she was born. When asked about Father's contact with the girls, Dr. Dovi testified that she cannot make that judgement as she provides trauma therapy. She indicated that she does not decide custody or visitation because she lacks the training on how visiting with a parent will affect progress with the girls' treatment. Dr. Dovi did recommend placing a hold on visitation with Father until her therapy work with them is finished.
Mother testified that she is physically healthy but she suffers from depression and anxiety. Mother testified that she does not take any illegal drugs but she drinks alcohol socially. Mother claims that Father's judgement should not be trusted right now. Mother alleges that Father suffers from borderline personality disorder as well as anxiety and depression but the Court has no evidence of same. Mother recalls Father suffering multiple concussions and has physical ailments related to his wrist, ankle, and neck and that these conditions require him to take "pain pills" but the Court has no evidence of same. Additionally, Father smokes marijuana and Mother claims he would drink beer or whiskey in combination with his pain pills and marijuana when they were together.
Father appeared physically healthy but he did not testify regarding his mental or physical health. Father had previously reported to the Court that he suffered a traumatic brain injury but he did not have documentation to support his claim. While the Court has concerns regarding Father's physical and mental health, the Court has no clear evidence of any diagnoses.
Although both parents may be able to physically meet the children's needs, it appears that Father's behavior is the reason the children are uncomfortable around him and is the reason why they are in trauma therapy. Father is in denial that he is the cause of the children's current problems. Therefore, the Court finds this factor supports sole custody with Mother and visitation with Father in a therapeutic setting after the conclusion of the children's trauma therapy. 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."
Mother alleges that she has fulfilled her rights and responsibilities as a parent but argues that Father has not complied with his rights and responsibilities because he failed to pay the rent that led to the parties' eviction from the marital home. Mother explained that Father received monthly disability payments due to an injury he sustained while part of the military, and that he was supposed to use the monthly disability check to pay rent. Mother argues that Father did not pay the rent. Furthermore, Mother states that Father was not helpful after receiving the eviction notice as Father told Mother she had to solve the problem on her own. Mother also alleged that Father did not have his children's best interests in mind when he saved pornography to the desktop of the family's home computer. Mother testified that she knows that Father used the family computer to view teenage pornography because she found it saved to the desktop and in the recently viewed webpages of the browser history. Mother indicated that the girls did not see the pornography but they easily could have if she did not find it first. Lastly, Mother alleged that Father did not have his children's best interests in mind when he forced the children to cuddle with him during the middle of the night.
Kayla Mason from DSCYF testified that she investigated a report regarding inappropriate sexual contact between Father and one of the girls. Ms. Mason indicated her investigation of Father included reports of substance abuse issues, domestic violence, and grooming behavior. Based on the investigation, Ms. Mason substantiated Father at Level II of the Child Protection Registry for emotional abuse after Ms. Mason learned that Father forced the children to cuddle with Father in his bed at night and that the cuddling made the children uncomfortable. Ms. Mason testified that the children disclosed Father would take them out of their beds in the middle of the night so they could sleep with him in his bed. She characterized this behavior as "grooming" behavior. On cross-examination, Father asked what grooming behavior is and Ms. Mason defined it as certain behavior with a child that could lead to future sexual abuse. However, grooming behavior is not considered to be sexual abuse. Therefore, she was only able to substantiate Father for emotional abuse and not sexual abuse. Father did not contest the Level II substantiation.
Father argues that he has been complying with his rights as a parent. He has been paying child support and requesting visitation with his children regularly. Father has also attempted to remain in the children's lives even when his job relocated him to Detroit, Michigan. He wants to resume contact with his children and he is willing to gradually increase his contact after starting in a therapeutic setting. Father expressed concerns for Mother's ability to care for the children. He recalled one time when Mother was so intoxicated in front of the children that she passed out on the front lawn. Father also asked his witness, P------- W---------, about another time Mother was intoxicated. Ms. W--------- said that Mother was visibly intoxicated at paternal grandfather's funeral on November 17, 2018.
Mother testified that the incident where Father said she was passed out on the front lawn was Memorial Day weekend in 2016 or 2017. Mother acknowledged that she drank too much with her friends. Mother testified that she coordinated with her friends to have them drive her and the children home in separate vehicles. Mother did not want the children to witness her in an intoxicated state. Mother did not dispute that she was intoxicated at paternal grandfather's funeral. There was no other testimony regarding Mother's use of alcohol. The Court does not find that two (2) incidents of intoxication over the course of three (3) years is sufficient to cause the Court concern that Mother has a substance abuse problem or that the children are at risk in her care.
Notwithstanding Father's concern, the Court finds Mother has been complying with her rights and responsibilities as a parent to the extent that she has been caring for J---- and K---- on a full-time basis for the past nine (9) months and has met their needs. To the contrary, the Court is concerned with Father's behavior and interactions with his children. Therefore, the Court finds this factor supports Mother having sole custody. With respect to visitation, the Court finds it appropriate for Father to resume contact with the children in a therapeutic setting after the conclusion of the children's trauma therapy. 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.
Father was found to have abused Mother by a Commissioner after a PFA trial in March, 2019. Mother testified at the instant hearing regarding the domestic violence that existed during the parties' relationship. Mother described Father as manipulative, condescending, and someone who has no respect for her or the law. Mother alleged that she suffered physical, emotional, and verbal abuse while living with Father. In 2015, Mother had gone out with friends and Father texted Mother non-stop throughout the night. When she returned from her night out, Mother said things escalated quickly. Mother testified that Father locked her in the bedroom and choked her until she blacked out. She thought she was going to die and called the police. Father did not deny this allegation.
Mother claims another altercation occurred in 2013 or 2014. Mother testified that she was struggling to teach K---- something, but Father was touching Mother. Mother told Father to stop touching her. Then Father put Mother in a headlock, dragged her across the kitchen floor by her hair, and banged her head against the refrigerator. Mother also recounted another incident when Father slapped her and she fell to the floor. Father's slap left a hand print on her face. Father did not deny either of these allegations.
Mother also testified regarding an incident in January, 2019, when Father sent her a threatening text message when they still lived together. The text message from Father was a screenshot of search results regarding "how long it takes to choke someone until they die". Mother testified that Father asked her if she received his message. Father then said to Mother, "I just want you to know that if I really wanted to kill you, I would have".
Mother described Father as controlling. She recalled him telling her "under his roof, they follow his rules" since the lease was in Father's name. Mother testified that Father repeatedly intimidated her with threats to take away the girls. He would tell Mother that if the parties went to Court, the judge would side with him because he had a greater income. Furthermore, Mother testified that Father would constantly text her at work with requests to obey him and how she needed to do more for him. Mother testified that, in general, the children did not see a happy, healthy Mother because Father was hurting her. Mother explained that the children should not have to see their Mother consistently cry nor should they see domestic violence in their home.
When it was Father's time to testify, he did not dispute or attempt to refute any allegation Mother made during her testimony. He testified that he does not put his children in danger and he follows what the Court says. Otherwise, his testimony was unresponsive to Mother's allegations. Thus, Mother's allegations are unrefuted.
Based on the finding of abuse in the March 8, 2019, PFA Order in addition to the unrefuted testimony at the instant hearing, the Court finds that Father did commit acts of domestic violence against Mother. The Court gives this factor great weight and finds this factor supports Mother having sole legal custody. With respect to visitation, the Court finds it would be appropriate for Father to resume contact with the children in a therapeutic setting after the conclusion of the children's trauma therapy if Father completes a class for perpetrators of domestic violence. 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 has reviewed the criminal histories of all parties involved. At the time of the hearing, Father had pending charges for Criminal Contempt of a Domestic Violence Protective Order and Breach of Release. The Court has no concerns with Mother's Delaware criminal history.
Although Father's pending charges do not involve the children or impact his ability to care for the children, his pending charges include acts of domestic violence where Mother is the victim. The Court finds this factor supports Mother having sole legal custody with Father having visits in a therapeutic setting after the conclusion of the children's trauma therapy and after Father completes a class for perpetrators of domestic violence.
CONCLUSION
The parties agree Mother should have primary residence of the children. Therefore, the Court's analysis focused on legal custody and a visitation or contact schedule for Father.
Based upon the Court's analysis of the best interest factors as they relate to legal custody, for the reasons set forth herein, the Court gives factor (4) little weight and finds factors (1) and (2) are neutral and factors (3), (5), (6), (7), and (8) support Mother having sole custody. No factors support the parties having joint custody. Based upon the Court's analysis of the best interest factors as they relate to a visitation or contact schedule, for the reasons set forth herein, the Court finds factors (1) and (2) are neutral; the remaining factors support Father having supervised visitation with the children in a therapeutic setting after the children complete their trauma therapy and Father has completed a class for perpetrators of domestic violence.
Father was found to have abused Mother after a PFA trial. Father was also substantiated at Level II by DSCYF for emotionally abusing the children. It is clear to this Court that Father is in denial that his behavior has caused the strain on his relationship with the children. The children need time to heal before having contact with Father. Father needs time to learn that his behavior is causing problems in his relationship with the children. A class for perpetrators of domestic violence may help in this regard. The children and Father will need time in therapy to repair their relationship. It is this Court's hope that Father and the children will be able to repair their relationship and resume contact.
WHEREFORE, the Court enters the following Order:
A. Mother shall have sole custody and shall all make decisions jointly regarding the children's health, education, and welfare.
B. Mother shall have primary residence.
C. Once the children have completed their trauma therapy with Dr. Dovi and Father has completed a class for perpetrators of domestic violence, Father may have contact with the children in a therapeutic setting. Father shall provide Mother's counsel with proof that he has completed his domestic violence class and provide Mother's counsel with the names of three (3) counselors he wishes to use for reunification counseling. Mother shall choose one of the counselors within two weeks of receiving the names. Father shall be responsible for paying for the reunification counseling. Either or both parties may provide the counselor with a copy of this Order. The parties shall follow the recommendations of the counselor with respect to Father's contact with the children with the hope that Father will eventually have visitation at least every other weekend. If Father and the children have completed
reunification counseling and Father is not satisfied with the amount of contact he is having with the children, he may file a Petition to Modify Visitation.
D. Contact between the parties as set forth herein shall not be considered a violation of the PFA Order.
E. This is a Final Order entered after a full hearing on the merits. Therefore, any future modifications 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 25th day of February, 2020.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, File