Opinion
CN19-01518 21-17975
01-26-2022
M. D. W., Petitioner, v. T. R., Respondent.
Amanda L.H. Brinton, Esquire, Attorney for Petitioner T -------- R ----------, self-represented
Date Submitted: January 25, 2022
Amanda L.H. Brinton, Esquire, Attorney for Petitioner
T -------- R ----------, self-represented
ORDER ON PETITION FOR CUSTODY
MICHAEL W. ARRINGTON JUDGE
On January 12, 2022, the Court conducted a hearing on the Petition for Custody in the interest of G ------- W ----------- (born 5/27/2010) (herein "Child"). Petitioner M -------- D. W ---------- (herein "Father") and Respondent T ---------- R ---------- (herein "Mother") participated in the hearing. Father's counsel, Amanda L.H. Brinton, Esquire ("Ms. Brinton") also participated. Mother appeared self-represented. Father presented A --------- W --------- ("Stepmother") as a witness. On January 13, 2022, the Court reconvened and interviewed Child.
Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
Father filed the Petition for Custody and a Motion for an Emergency Ex Parte Order on October 28, 2021. In the Petition, Father sought sole legal custody and temporary primary residential placement of Child. On October 28, 2021, the Court granted Father's request for an Emergency Ex Parte Order.
Dkts. #5, 10.
Dkt. #11.
On November 2, 2021, the Court held an emergency hearing on the Motion for an Emergency Ex Parte Order. On November 3, 2021, the Court granted the parties joint legal custody and awarded Father temporary primary residential placement of Child. Mother was granted custodial time with Child on Friday evening until Saturday evening. Mother was ordered to undergo hair follicle testing.
Dkt. #12.
Mother was served on November 7, 2021. Mother did not file an Answer.
On November 12, 2021, Father filed an Emergency Motion to Enforce Order and Suspend Visitation. On November 12, 2021, the Court granted the Motion for an Emergency Order due to Mother's failure to undergo hair follicle testing.
Dkt. #13.
Dkt. #14.
On November 17, 2021, the Court held an emergency hearing on the Motion for Emergency Ex Parte Order filed by Father. The Court granted the parties interim joint legal custody, granted Father temporary residential placement of Child, and suspended Mother's visitation with Child until she underwent hair follicle testing.
Dkt. #15
On January 5, 2022, Father filed an Expedited Motion to Compel. On January 12, 2022, the Court denied the Motion for failure to certify a "meet and confer" had occurred between Father's counsel and Mother as required by Family Court Civil Rule 37(a).
Dkt. #18.
The Court held the final hearing on the Petition for Custody on January 12, 2022. The Court reconvened and interviewed Child on January 13, 2022.
JURISDICTION
The Petition was filed on October 28, 2021. Child has resided in Delaware since birth. Father resides in New Castle County, Delaware. Mother resides in New Castle County, Delaware. Delaware has jurisdiction to make an initial child custody.
Dkt. #6.
TESTIMONY OF THE PARTIES
The parties testified at trial. Father presented A --------- W --------- ("Stepmother") as a witness. The Court interviewed Child at the request of the parties. The Court interviewed Child on January 13, 2022. The facts listed below are limited to those which are relevant to a custody proceeding and to this case in particular.
Father's Testimony
Father is thirty-five years old and works as a fabricator for the Briggs Company. Father works Monday through Friday from 6:00 a.m. until 4:00 p.m. Father stated he sometimes works on weekends, but that his hours are flexible. Father has a high school diploma. Father testified that he resides in a three-bedroom home with his wife ("Stepmother"), Child, Stepmother's fourteen-year-old son, and Stepmother's eight-year-old son. Father has no other children.
Father testified he currently has interim joint legal custody and temporary primary placement of Child. Mother's visitation was suspended after Mother failed to submit her hair follicle testing results to the Court. Prior to filing the Petition, Father stated that he and Mother had a "week on, week off" arrangement. Father and Mother would have alternating weeks with Child with exchanges on Fridays after school. The arrangements changed when Father discovered that Mother allegedly used drugs during her custodial time with Child. Mother had given Child her old cellphone for Child's use. Father discovered a series of messages Mother had made to her friends related to drugs. Father testified that he denied Child contact with Mother because of her alleged drug usage. Father filed for, and was granted, emergency custody. The Court ordered Mother to undergo hair follicle testing.
Father did communicate with Mother after the November 3, 2021 Order. Father introduced and the Court admitted into evidence a text message conversation between Father and Mother dated November 4, 2021. Father informed Mother that she could call to speak with Child. Mother responded by telling Father he "was not following the Order." Mother was supposed to visit with Child on November 5, 2021. However, Child's school, H.B. Dupont Middle School, informed Father that Child was exposed to COVID-19. Father informed Mother immediately and Mother was not happy the visitation would not take place because Child had to quarantine.
Father's Ex. #1.
Father introduced and the Court admitted into evidence an email dated November 4, 2021, that Father sent to Mother to inform her about Child's quarantine because of COVID-19 exposure. On November 5, 2021, Child was tested for COVID-19, and again on November 8, 2021. Child tested negative for COVID-19 both times. Father testified that he had no communication with Mother between November 4, 2021, and December 24, 2021.
Father's Ex. #2.
On December 24, 2021, Mother sent Father a text message requesting to speak with Child. Father testified that Mother's cellphone number was not blocked on his phone and that his number did not change. Father decided not to respond to Mother's text message because he was worried that Mother would upset Child and try to "manipulate" Child.
Father testified that Child was disappointed with Mother because Mother promised Child a PC gaming computer for Christmas. Child did not receive the computer. Father explained that Child never requested to see Mother on December 25, 2021. On cross examination, Father confirmed that Child believed Mother promised Child a PC Gaming Computer. Father revealed that Maternal
Grandmother offered to take Child and Child's twelve-year-old Maternal Cousin to Hershey Park. Father declined Maternal Grandmother's offer because Father was worried Mother would "get into [Child's] ear." Father believed that Mother would attempt to contact Child.
On questioning from the Court, Father testified that Mother lies to Child about Father and Stepmother. Mother told Child that Stepmother drinks and Stepmother does not care about Child. Mother told Child that Father tries to keep Mother from Child; that Father is a bad parent; that Father is never around for Child; and that Father cares more for Paternal Stepbrothers than Child.
Father testified that Child never mentions contact with Mother. However, on December 26, 2021, Father invited Maternal Grandmother, Maternal Grandfather, and Maternal Cousin to Father's house to visit Child. However, Father did not invite Child's brother because Father believed that this time was only for Child.
On questioning from the Court, Father stated that Mother manipulates Child. Father provided the examples of Mother telling Child she was getting a house, buying Child cleats for soccer, buying Child new socks for baseball, and other items for baseball. According to Father, Mother always says she will buy things for Child but fails to do so.
Father explained that Mother has stolen jewelry from Maternal Grandparents and lies to Child. Father did not remember any specific examples of these lies. Father testified that Mother took Child to a pawn shop in September 2021. Father believes that Mother is surrounded by "unsavory characters" like her friends named Mike, Brittany, and Steve.
Father testified that he wants Mother to "prove that she is a good parent" by providing a clean hair follicle test. Father wants Mother to find a steady job, provide for Child, find a separate home, and attempt to be a parent for Child.
Father resides in a three-bedroom home that he owns. Child shares a bedroom with eight-year-old stepbrother. However, Father is converting the home's garage into a bedroom for Child. Father stated that he believes Mother lives in her boyfriend's house. Father testified that Child does not like Mother's boyfriend.
On cross examination, Father testified that Child is scared to be with Mother and that Mother's boyfriend beats Mother. Father claims that Child told him that Mother's boyfriend abused Child. On redirect, Father testified that Child has had to care for Child's brother. Child has found Mother sleeping on the couch and Mother did not wake up. Child told Father that Mother's shampoo bottles are full of alcohol. Father saw Mother under the influence in November 2021 because Mother appeared "amped up" and her eyes were bloodshot. Father stated that Child was present when Mother exhibited this behavior.
Father testified that he shares a great relationship with Child. Father and Child play video games, play basketball, watch movies, go to the beach, play sports, go to Child's baseball games and practices, build stuff, and have a great time together. Father or Stepmother make all of Child's doctor appointments and Mother does not attend. Father or Stepmother attend Child's school conferences and attend Child's school events. According to Father, Mother does not attend these events.
Father testified that Child gets along well with his stepbrothers. Child and stepbrothers play basketball and "hang out" together. Father stated that Child shares a good relationship with Paternal Grandmother. Child sees Paternal Grandmother a few times per month. Child shares a good relationship with Maternal Grandparents. Father does not oppose Maternal Grandparents having a relationship with Child. Child has a good relationship with Paternal Aunt and sees her a few times per month.
Child is doing well in school. Child is in sixth grade at H.B. Dupont Middle School in Hockessin, Delaware. Child participates in chorus and recently tried out for the soccer team. Child plays baseball in the spring and in the fall for Midway Little League. Father introduced and the Court admitted into evidence a copy of Child's report card showing that Child made honor roll in the first marking period.In response to Mother's testimony that Child did not complete his schoolwork in Father's home, Father testified that Child did complete his work.
Father's Ex. #3.
Child has an Individualized Education Program ("IEP") because of a learning difference in reading comprehension and math. Father testified that Father or Stepmother attend Child's IEP meetings. Mother does not attend the IEP meetings according to Father. On cross examination, Father stated he had been to two IEP meetings in three years. On questioning from the Court, Father testified that there is one IEP meeting per year for Child. Father believed the last IEP meeting was in June 2021 and Child's first IEP meeting was when Child was in third grade at Linden Hill Elementary School. Father believes that Mother attended the first meeting but not the IEP meeting for fourth and fifth grade.
Father explained that there is no child support order in place. Father testified that he provides support for Child and "pays for everything." Father carries health insurance for Child and has not received any child support from Mother since November 4, 2021. Father testified that Mother has never contacted Father asking if Child needed anything since November 4, 2021.
Father is in good physical and mental health. Father stated that he does smoke, but he does not smoke in the house or in his car. Father does drink alcohol on social occasions. Father testified that Child is in good physical health. Child is diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") and takes medication for this condition.
Father testified that he has no criminal history and that there is no domestic violence in his home. The Court questioned Father on his arrest for a domestic incident on June 29, 2013. Father denied that he was arrested. On further questioning from the Court, Father testified that he never spoke with a judge and that the claim was "thrown out." The criminal history indicates that the charges were eventually dismissed.
Father stated that he does not intend to keep Mother away from Child. He wants to protect Child until Mother "gets herself together."
Father requests sole legal custody and primary residential placement of Child. Father requests that Mother have no visitation with Child until Mother provides a negative hair follicle test. Once Mother completes a satisfactory test, Father requests that Mother have supervised visitation. Father requests that Maternal Grandparents do not supervise visitation because Mother "manipulates" Maternal Grandparents. Father requests that visitation does not take place at a visitation center.
Stepmother's Testimony
Stepmother is thirty-three years old and works as a job developer at CIS. Stepmother and Father have been married for four years. Stepmother testified that the current contact schedule is that Child does not have contact with Mother.
Stepmother testified that Child is doing well. Child made honor roll in school, recently had his first sleepover, hangs out with his friends, and went to Tennessee in November 2021 for Thanksgiving and vacation with Child's paternal family. Child gets along well with Stepmother's children. Stepmother believes Child and Father have a great relationship. They hike, play basketball, go to the beach, and build Legos together.
Stepmother testified that Mother appears to use drugs. Mother sleeps a lot and Mother drinks out of shampoo bottles in her home. Stepmother testified that Child told her that Child cares for his baby brother. Child feeds the baby, changes his diapers, and stays up with him. According to Stepmother, Child does not want these responsibilities. Mother informed Child that Stepmother drinks until she passes out and that Stepmother is not a good person. Stepmother denied these allegations.
Stepmother is concerned that Mother has not demonstrated she is "clean." Stepmother feels that Child is not safe with Mother and that Mother "fills [Child's] head with lies."
Since the November 17, 2021, Order, Child has had no contact with Mother. Child requested to see Maternal Grandparents over Christmas. Stepmother and Father decided to invite Maternal Grandparents and Maternal Cousin over and they visited for two hours. Child had a lot of fun and played with Maternal Cousin.
On cross examination, Stepmother confirmed that she contacted Mother and informed Mother she "was done" with her. Stepmother testified that Mother has never interfered with Child's schooling and vacations with paternal family. Stepmother testified that Mother did not attend IEP meetings for Child and that Child is not scared to speak with Father.
Mother's Testimony
Mother is thirty-four years old and is unemployed. Mother sometimes works as a flagger but is looking for fulltime employment. Mother testified that she used to work as a mechanic at ACA Performance but was laid off because the employer did not have enough work for her. Mother resides in a home in New Castle, Delaware with her second child and her parents.
Mother testified that she had joint legal custody and shared residential placement of Child with Father. Mother and Father would do a "week on, week off" contact schedule. Mother never had any issues with Father and Stepmother taking Child on holidays. Stepmother often schedules appointments for Child and will either fail to inform Mother or tell Mother at the last minute and expect Mother to be available. However, Mother testified that she scheduled Child's most recent appointment and Stepmother cancelled the appointment.
Mother and Father did not communicate effectively during the joint custody arrangement. Mother explained that she often would communicate primarily with Stepmother. Mother believes Father is controlling. If Mother would take Child to get a haircut, then Father would take Child to get a second haircut. Father would not allow Mother to help select Child's school. On one occasion, Mother was playing Xbox with Child during Father's custodial time. Father made Child get off the game when Father learned Child was playing Xbox with Mother.
Mother testified that she would attend Child's recent school events if she "was allowed." In the past, Mother has gone to Child's baseball games, practices, and picked up Child from school. Mother testified that she has a good relationship with Child. She takes Child to the beach. Mother will take Child boating, and crabbing. Mother has taken Child to see the Monster Show and takes Child to the park. Mother explained that she does not take Child on trips because she cannot afford them.
Mother helps Child complete his schoolwork. Mother testified that when Child would come to her house after Father's custodial time, she would help Child make up two weeks' worth of schoolwork. Child was not doing his schoolwork at Father's house. Mother brought this issue to Father and Stepmother's attention. Mother testified that she would never hurt Child. Mother has told Child that she will get a house one day and she intends to get a house, but she cannot afford one at present.
Mother testified that Child shares a good relationship with his brother who is nine months old. Mother testified that she has never had Child watch over his baby brother. Mother stated that Child "has never changed his brother's diaper except on maybe one occasion." Child has fed the baby once or twice. Child asked to stay up with Mother and the baby one night when the baby was a newborn infant. Child likes to sit and read bedtime stories to his brother. Mother testified that she believes it is wrong that Child missed his brother's first Halloween, Thanksgiving, and Christmas.
Mother explained that she never drinks out of shampoo bottles. Mother stated that she has never taken Child to drug houses nor does she do drugs.
Mother explained that she did buy a PC Gaming Computer for Child, but she has not been able to give the computer to Child. On cross examination, Mother testified that she obtained the PC Gaming Computer in October 2021. Mother has not seen Child since November 4, 2021. Mother stated that she has not lied or tried to disappoint Child because she has only spoken to Child twice since the case began. The first time Mother only spoke with Child for ten minutes and Father was present during the conversation. The second time, Mother reached out to Father on December 24, 2021, to say "Merry Christmas" to Child. Father did not allow Mother to speak with Child. Mother feels that Father and Stepmother make all the decisions regarding Child.
Between November 4, 2021, and December 24, 2021, Mother confirmed that she did not try to contact Child because she was not allowed to contact Child as per the Court's November 17, 2021, Order. Father informed Maternal Grandparents that Child was not allowed to speak with Mother and Mother did not contact Father because she felt he would not respond.
Dkt. #15.
Mother does not speak negatively about Father or Stepmother to Child. Mother encouraged Child to listen to Stepmother and told Child that Stepmother is a good person. Child felt out of place in Father's life when Father started a relationship with Stepmother. Child struggled to tell Father about his feelings and Mother encouraged Child to share his concerns with Father.
Mother testified she no longer lives with her boyfriend. The criminal No Contact Order against Mother's boyfriend is still in place. Mother explained that her boyfriend never put his hands on Child. Mother only continued the relationship with her boyfriend because she thought Child seemed to like boyfriend. However, Child disliked Mother's boyfriend when Child learned that he abused Mother. Mother testified that she is no longer together with her boyfriend because of his abuse and because Child does not like her boyfriend.
Mother testified that she has not undergone hair follicle testing because Mother feels that Father should be required to undergo drug testing as well. Mother testified that Father smokes marijuana and Mother felt blindsided by Father's petition for custody. Mother confirmed that she understood the Court ordered her to take the drug test and that she could not have visitation with Child until she underwent drug testing. Mother testified that the test would show she has used marijuana and alcohol. Mother confirmed she would take the test. On cross examination, Mother testified she does not abuse methamphetamines.
On questioning from the Court, Mother testified that she took Child to a pawn shop on one occasion. Child saw the show "Pawn Stars" on television and was curious about visiting a pawn shop. Mother has never pawned any items. Mother has bought items from a pawn shop. Mother purchased Child's PC Gaming Computer from a pawn shop.
Mother testified that she has Attention Deficit Hyperactivity Disorder and Dyslexia. Mother has not submitted copies of her medical records to Father's counsel. Mother explained she does not know why she needs to, and Mother revealed she does not like visiting the doctor. Mother did see a doctor when she was pregnant with her second child. Mother testified that she has never had any treatment for mental health nor does she need it. Mother has not undergone any substance abuse treatment.
Mother testified that there was domestic violence between her and Father. On June 29, 2013, Mother and Father had an altercation in front of their home. Their neighbors called the police when they saw Father push Mother into the garage. Father was arrested but the charges were later dismissed. Child does not remember the incident because Child was inside the house during the altercation. Mother confirmed that she suffered domestic violence from her former boyfriend.
Mother testified that there are three open cases from DSCYF against her concerning her second child. Mother testified that Father revealed that he called DSCYF to report Mother in April 2021. Mother gave birth to her second child on April 9, 2021. Mother revealed she did not provide Father's counsel with copies of the paperwork from the DSCYF investigations.
Mother seeks joint legal custody and shared residential placement of Child. Mother suggests a contact schedule where the parties have alternate weeks with Child and exchange Child on Fridays after school. Child's Interview
On January 13, 2022, the Court interviewed Child. Child's testimony was both forthright and credible. Child testified that he attends H.B. DuPont Middle School in Hockessin, DE. Child attended Linden Hill Elementary School before H.B. DuPont. Child decided to go to H.B. Middle School because his older stepbrother recommended the school. Child likes baseball and tennis. He plays first base and left field for his baseball team.
Child testified that he gets along well with Stepmother and does what she asks. Child revealed that Stepmother has called Mother a very bad name in front of Child.
Child explained that he gets along fine with his stepbrothers. His older stepbrother spends most of his time in his room and the younger stepbrother shares a room with Child.
Child testified that he gets along well with Father. When Father lived at Mother's house, Child and Father would play video games together. Child revealed that Father drinks alcohol when he is stressed. Father drinks beer or a shot of vodka. Father works, takes care of the family, and tries to spend time with Child and Child's stepbrothers when Father has time. Child explained that Father does not say bad things about Mother and that Father tries to protect Child. Child stated that Father smokes but does not smoke in the house or in the car with Child.
Child testified that he gets along well with Mother. Mother does not feel well sometimes because she cares for his brother. Mother was more energetic before the baby's birth and would do more things with Child. Child and Mother would go outside, mow the lawn, go to the park with Child's friends, and play basketball together.
Child testified that Mother does drink alcohol. Mother drinks beer and will have a coke and vodka sometimes. Mother does smoke and Child would like Mother to stop smoking. Child stated clearly that he never saw Mother drink from a shampoo bottle. Mother has said bad things about Father and Stepmother. Mother sometimes "gets heated" and goes on a car ride. On one occasion, Mother has asked Stepmother to "stay out" of her conversations with Father. Child stated that Mother lies to Child but could not give a specific example. Child did not see Mother at Christmas.
Child testified that he does not see his brother. He feels that his brother is a really good baby.
Child gets along well with his Maternal Grandparents. They helped Child learn how to change the baby's diaper under Mother's supervision.
Child revealed that he has a different phone. His original cellphone (the one he received from Mother) is upstairs in Father's home. Father and Stepmother did not want Mother texting Child.
Child testified that he thought Father smoked marijuana. Child could not articulate why he was suspicious that Mother used drugs.
The Court decided to remove Mother and Father from the conversation at Child's request. Father's counsel remained on the call. Significantly, Child was more honest about his preferred placement after Mother and Father left the conversation. Child revealed that Child's younger stepbrother bullies him, and his older stepbrother does not really interact with him. Child would prefer to be with Mother during the week and with Father on the weekends. DFS Investigations
The Court checked with the Division of Family Service on the status of the investigations. No petitions or safety plans are in place. Inasmuch as Father was a reporting person, the Court has no concerns about the DFS investigations. Mother's Hair Follicle Drug Testing - Post Trial Order
Mother was ordered by the Court on three separate occasions to undergo hair follicle drug testing. Mother has yet to comply with the Court's January 13, 2022, Post-trial Order to undergo and submit a hair follicle drug test to the Court.
LEGAL STANDARD
Since the Court has never entered a final order on custody, residency, and visitation for the child 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 the child's best interest. Additionally, the Court shall award both parents frequent and meaningful contact 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.
13 Del C. §722(a): The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interest 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;
(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.
CUSTODY FACTORS
The Court is required to consider the eight best interest factors in determining the custody and residential placement of children. While parties may introduce evidence on other issues supporting their claims or defenses, analysis of the eight custody factors is required and carries great weight.
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father seeks sole custody and primary residential placement with Father. Father requests the Court suspend Mother's visitation until Mother undergoes drug testing and proves she does not take drugs. If Mother provides proof, Father still requests that Mother have supervised visitation. Father asked that Maternal Grandparents do not supervise visitation because Mother "manipulates" Maternal Grandparents although Father could not give examples of the alleged manipulation.
Mother seeks joint custody and shared residential placement based on the prior custody arrangement with Father. Mother suggests that the parties use a "week on, week off" system where the parties would exchange Child on Friday afterschool.
There was no evidence that Mother has attempted to interfere in the decision-making process. Similarly, Mother has not created a hostile environment that might lead the Court to consider sole custody. The Court has concerns about Father overreaching in his control, not only of Mother but also of Child. Awarding Father his requested sole custody is highly likely under these set of facts to lead to further exclusion of Mother from Child's life.
Factor one favors Mother.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Child is eleven years old. The Court interviewed Child who was able to testify credibly and frankly. The Court finds that Child is articulate and polite with well-formed reasons for his preferences.
Child testified that he would like to spend time with Mother and Father. Significantly, Child revealed after the Court asked Mother and Father to leave the phone call, that he would like to spend time with Mother during the week and spend time with Father on the weekends. However, in response to the Court's question of what he would like to see changed, Child stated that he wanted his Mother and Father together again. Child clearly wants to live with both of the parties.
Factor two favors Mother.
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 testified that he has a good relationship with Child. Father has helped care for Child since Child's birth. Father testified that Child has a good relationship with Child's Stepmother, Child's stepbrothers, Paternal Grandmother, and Paternal Aunt. Father and Child play video games, play basketball, watch movies, go to the beach, go to Child's baseball practices and games, build stuff together, and have a good time together. Child testified that he gets along well with Father, gets along fine with Stepmother, and gets along fine with his stepbrothers.
Mother testified that she shares a good relationship with Child. Mother has helped care for Child since Child's birth. Mother and Child used to do many activities together before Mother had her second child. Mother testified that Child enjoys a good relationship with Child's baby brother, Maternal Grandmother, and Maternal Grandfather. Mother stated that Child loves his brother and likes to sit and read bedtime stories to him.
The parties both have a positive relationship with Child. The parties have each developed a meaningful relationship with Child for at least seven years. The paternal and maternal relatives also have good relationships with Child.
Factor three is neutral.
4. The child's adjustment to his or her home, school and community;
Father resides in a three-bedroom home in Wilmington, DE with Stepmother, two of Child's stepbrothers, and Child. Father testified that Child shares a room with the younger stepbrother in Father's home. Father is converting the home's garage into a separate bedroom for Child. Child would spend alternating weeks in Father's home for the past seven years until November 2021.
Father testified that Child is in the sixth grade at H.B. DuPont Middle School. Father testified that Child has an IEP and Father has attended some IEP meetings. Child plays baseball and recently tried out for his school's soccer team. Child currently lives in Father's home with Father, Stepmother, and his stepbrothers.
Mother currently resides in a home with Maternal Grandmother, Maternal Grandfather, and Maternal Brother in New Castle, DE.
Until November 2021, Child would spend half of his time at Mother's residence. Child attended baseball practice, baseball games, and would go to the park with friends. Mother would take Child to many of his activities and Mother knows where Child goes to school and has attended some of Child's IEP meetings.
Up until November 2021, Child was accustomed to spending half his time in Mother's home and half his time in Father's home. Child has spent a significant amount of time in both parties' homes.
Factor four is neutral.
5. The mental and physical health of all individuals involved;
Father testified that he is in fine mental and physical health. Father does smoke, but he never smokes in his home or in his car with Child present.
Father testified that Child is in fine mental and physical health. Child is diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"). Child takes medication for his condition. Father testified that Child has a learning difference. Child has an IEP in place for this difference.
Mother testified that she is in fine physical and mental health. Mother informed the Court she was diagnosed with ADHD and dyslexia. Father alleged that Mother is drug dependent and provided some evidence at the two emergency hearings that was not refuted. Ordinarily, a parent against whom such allegations are made would simply provide a hair follicle test, especially when ordered by the Court. For some unknown reason, Mother has refused to get the testing done for the last sixty days leading the Court to be suspicious of the intentions. The Court is concerned about this issue.
Factor five favors Father.
6. Past and present compliance by both parties with their rights and responsibilities to their child under § 701 of this title; 13 Del. C. §701(a) states in relevant part: "The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare, and education."
Father testified that he and Mother shared an alternating weeks custody arrangement before November 2021. Father and Mother would both spend time with Child, take Child to his activities, and would participate in Child's school. However, in early November 2021, Father found evidence of Mother's purported drug usage. The Court found probable cause that Child was in immediate and irreparable harm because of Mother's admitted use of alcohol during stressful times, relatively frequent marijuana use, and hearsay evidence related to crystal methamphetamine. The Court ordered Mother to undergo hair follicle testing for marijuana, alcohol, and other controlled substances on November 3, 2021, November 12, 2021, November 17, 2021, and January 13, 2022. While the Court takes judicial notice of the prior Court Orders, it does so with the understanding that such findings were made by probable cause. The Delaware Supreme Court has defined probable cause as "more than a suspicion" but less than preponderance. This trial provided no testimony or exhibits to bring the probable cause standard to the level of preponderance of the evidence.
Mother testified that she had not undergone drug testing after the Court ordered her to do so on at least three separate occasions. Mother felt that Father should also undergo drug testing. On the date of the trial, Mother had still not undergone drug testing and the Court issued a Post-trial Order for Mother to undergo hair follicle testing. As of January 25, 2022, Mother still had not provided any test results.
Mother testified that Father has made co-parenting difficult. The parties do not communicate effectively with each other. Mother would communicate primarily with Stepmother about Child's activities, appointments, and other matters. Mother felt that she and Father would often get into arguments when they did converse. Mother testified that when she made appointments for Child, Father or Stepmother would cancel those appointments. Mother would take Child to get a haircut and Father would take child to get his hair cut a second time.
Mother testified that Father has made communication with Child difficult since the November 3, 2021, Order. Mother had contact with Child before the November 17, 2021, Order. Mother attempted to have visitation but was unable to do so because Child was exposed to COVID-19 on two separate occasions. Father's counsel did inform Mother of Child's need to quarantine. Mother was able to have one phone conversation with Child, but Father attempted to distract Child and the conversation was only ten minutes long.
On December 24, 2021 (after the suspension of Mother's visitation) Mother reached out to Father and asked to speak to Child. Father did not respond to Mother's request. Maternal Grandmother offered to take Child and Maternal Cousin to Hershey Park. Maternal Grandmother informed Father that Mother would not go. Father denied the request because he did not want Mother to "manipulate" or "lie" to Child.
Father does not seem to understand that both parents are equally entitled to provide for child's support, care, nurture, and education. Father cannot decide unilaterally when, where, and how Mother cares for Child. By way of example, there was no explanation from Father on his decision to deny Mother the chance to say "Merry Christmas" to their Child. Similarly, Father's decision to allow a cousin to visit but to deny Child's brother to see him makes no sense.
However, Mother has still failed to undergo mandated drug testing. Mother's failure to comply with the Court Order means that the Court could find that she is endangering Child's welfare. Father failed to provide any new evidence on Mother's alleged drug usage, but Mother has still not undergone drug testing despite three orders requiring it.
Factor six weighs in favor of Father.
7. Evidence of domestic violence as provided for in Chapter 7A of this title;
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 testified that there is no domestic violence in his home and none between him and Mother. On questioning from the Court with Father's criminal history before the Court, Father eventually conceded that he was arrested on June 29, 2013, for a domestic incident between Mother and Father. Father minimized the incident and testified that the charges were "thrown out."
Mother testified that there was domestic violence between Mother and Father. Mother explained that on June 29, 2013, she and Father got into an argument and Father pushed Mother into their home's garage. Their neighbors saw the incident and called the police. Mother further testified that there was domestic violence between her and her boyfriend. Child was never harmed by Mother's boyfriend and Mother confirmed that she and her boyfriend were no longer together.
Father has not been found guilty of domestic violence. Mother and her boyfriend are no longer together. These incidents occurred during Child's life, but Child was never directly involved in these incidents which diminishes but does not vindicate Father's actions nor does it favor Mother. Father's failure to disclose the incident weighs more on Father's credibility. Mother's status as a domestic violence survivor and the fact the domestic violence did not directly affect Child means this factor does not weigh against Mother.
Factor seven slightly favors Mother.
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.
Neither party has a criminal record that would cause the Court concern in deciding custody and visitation of the children.
Factor eight is neutral.
CONCLUSION
In determining custody, no single factor is determinative. Rather, the Court must weigh the totality of the circumstances and reach a decision that will best serve the Child. From the evidence presented during the hearing on January 12, 2022, and upon consideration of the enumerated best interest factors, the Court finds that factors 1, 2, and 7 weigh in favor of Mother. Factors 5 and 6 favor Father. Factors 3, 4, and 8 are neutral. Of all the best interest factors, it is factors 1, 2, and 6 that carry the most weight in this case.
There was no evidence that Mother has ever interfered in any decisions related to Child. Rather, the opposite is an issue of concern. Mother's testimony paints a picture of a Father who needs to control Child's time with Mother. Awarding Father his request for sole custody would further marginalize Mother. Consequently, the Court awards the parties JOINT LEGAL CUSTODY of Child. As joint custodians, the parties must discuss all of the major decisions in Child's life before reaching a decision. These decisions include, but are not limited to Child's support, care, nurture, welfare and education.
Until Mother has provided the ordered hair follicle test results to Father's counsel and the Court, Father shall have PRIMARY RESIDENTIAL PLACEMENT and Mother shall have contact with the Child on alternate weekends from Friday after school until Sunday evening at 6:00 p.m. However, once Mother has provided a hair follicle test showing no amphetamines or opiate use, the parties shall have SHARED RESIDENTIAL PLACEMENT of Child.
Both parties apparently use marijuana and alcohol. While they minimize their own use, they criticize the other party for similar behavior. Significantly, Child has noticed both parents use and is concerned. The Court cannot require Mother to be clean of alcohol and marijuana use in the hair follicle test but will require that neither party use alcohol or marijuana during their custodial periods.
In having shared residential placement, the parties shall ensure that Child maintains regular contact with the other parent and Child attends all custodial time. The parties cannot interfere with each other's communication with Child nor can the parties direct when either parent has custodial time with Child. Both parties shall ensure that the custodial time takes place and shall not express negative feelings about each other to or around the Child. Neither party shall use marijuana or alcohol during periods of custodial care of Child.
In light of Mother's request, Child's preference, and the previous custody arrangement, Child shall spend alternating weeks at both parties' homes. Unless the parties mutually agree otherwise, exchange of Child shall take place every Friday after school. If school is not in session, exchange shall occur at 4:00 p.m. on Fridays Each party shall provide transportation for their separate custodial time.
Father and Mother shall share holidays as agreed between the parties. If the parties cannot agree, then the parties shall alternate the holidays as provided by the schedule herein.
ORDER
IT IS HEREBY ORDERED this 26th day of January 2022:
1. The parties shall have JOINT LEGAL CUSTODY of G ---------- W ------------, (born 5/27/2010).
2. Until Mother provides a hair follicle test showing that Mother has not used amphetamines or opiates, Father shall have PRIMARY RESIDENTIAL PLACEMENT of Child.
a. While Father has primary residential placement, Mother shall have custodial time with Child on alternate weekends from Friday after school until Sunday at 6:00 p.m. If school is not in session, Mother shall have Child from 4:00 p.m. on Fridays. Mother's first weekend shall be February 4, 2022.
3. Once Mother provides a hair follicle test showing that Mother has not used amphetamines or opiates, Mother and Father shall have SHARED RESIDENTIAL PLACEMENT of Child.
a. While the parties have shared residential placement, the parties shall have alternating weeks with Child. Unless the parties mutually agree otherwise, exchange of Child shall take place every Friday after school. If Child is not in school, then exchange of Child shall occur at 4:00 p.m. on that Friday.
4. Mother shall be responsible for all transportation while Father has primary residential placement. Once shared residential placement begins, the party beginning their custodial time shall provide transportation.
5. Each party shall be entitled to have phone contact with Child during the other party's custodial time. Neither party shall interfere in Child's contact with the other party.
6. Once Mother has provided a hair follicle test showing that Mother has not used amphetamines or opiates, the parties shall share holidays. If the parties cannot agree on shared holidays, then the parties shall alternate holidays as stated below.
7. Holidays: Father shall have the child on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Mother shall have the child on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in the odd-numbered years.
| Column 1 | Column 2 |
| Easter or other religious holiday | Memorial Day |
| Fourth of July | Labor Day |
| Christmas Day | Thanksgiving Weekend Christmas Eve |
UNLESS MUTUALLY AGREED TO THE CONTRARY:
a. Easter holiday shall be from 7:00 p.m. on Saturday before Easter until 7:00 p.m. on Easter Sunday.
b. Memorial Day and Labor Day shall be from 9:00 a.m. until 7:00 p.m. on each of the holidays.
c. July 4th shall be from 9:00 a.m. on July 4th until 9:00 a.m. on July 5th.
d. Thanksgiving weekend shall be from 9:00 a.m. on Thanksgiving morning until 7:00 p.m. on the Sunday following Thanksgiving.
e. Christmas Eve shall be from 9:00 a.m. on December 24th until noon on December 25th.
f. Christmas Day shall be from noon on December 25th until 7:00 p.m. on December 26th.
8. Mother's/Father's Day: On Mother's Day and Father's Day, no matter whose turn for contact, the child shall be with the parent whose holiday is being celebrated from 9:00 a.m. until 7:00 p.m.
9. Child's Birthday: The parties shall attempt to share Child's birthday. If the parties cannot reach agreement, Father shall have Child in even numbered years and Mother shall have Child in odd numbered years. Birthday time with a parent shall be from after school until 8:00 p.m. If Child's birthday falls on a non-school day, Child shall be with his parent from 9:00 a.m. until 8:00 p.m. unless otherwise agreed.
10. Cancelling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
11. Medical treatment and emergencies: If the Child becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the Child becomes ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.
12. Communication: Both parents shall be entitled to reasonable communication with the Child while the Child is in the other parents' care (including but not limited to telephone, video calls, e-mail, mail and text messaging). Neither parent shall interfere with the communication between the Child and the other parent.
13. School work: Parents shall provide time for the Child to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the child. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for the Child must be attended, regardless of which parent has the child during the summer school period.
14. Relocation: Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the child's school, travel time to school or extracurricular activities or otherwise may adversely affect the child's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
15. Notice of change of address: Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.
16. 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).
IT IS SO ORDERED.