Opinion
File No. CN15-04426 CPI No(s) 16-26036
08-08-2017
M--- S------- -- ---- ---- ------ ------- -- ----- Petitioner v. K------ P---- - -------- ----- ----------- -- ----- and G----- P----* --- ------ ------ ---- -------- ---- ----------- -- ----- Respondent
Petitioner Attorney Self-represented Respondent Attorney Self-represented G----- P---- failed to appear*
Nature of Proceeding
Petition for Third-Party Visitation Date Mailed: 8/8/17 Petitioner Attorney
Self-represented Respondent Attorney
Self-represented
G----- P---- failed to appear* 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 August 23, 2016, by M--- S------- (herein "Mr. S-------"), self-represented, against K------ P---- (herein "Mother") and G----- P---- (herein "Father"), both self-represented, in the interest of E--- P----, born ------ --, ----, (herein "minor child"). The Court held a hearing on April 5, 2017, and heard testimony from the parties and R----- H---- (Mr. S-------'s employer), D---- T------- (Mother's friend), and E—T----- (Mother's friend).
During the hearing the Court learned that Mr. S------- had filed a subpoena on or about March 24, 2017, requesting that his Mother appear to testify at the hearing. As of April 5, 2017, the subpoena had not been served. Mr. S------- wanted his mother to testify even though she would not do so voluntarily. Therefore, the Court agreed to continue the hearing to allow Mr. S------- to refile his subpoena and request a special process server serve his mother. The Court waived the cost of the subpoena but Mr. S------- was responsible for paying for service of the subpoena.
The Court continued the hearing on May 11, 2017. Mr. S------- advised the Court that he had his Mother served by a Special Process Server but she again failed to appear. Mr. S------- decided that he did not want to pursue a Petition for Rule to Show Cause and advised that the Court that he had concluded the presentation of his case.
PROCEDURAL HISTORY
Mr. S------- and Mother never married but were in a dating relationship for approximately five (5) years and lived together for part of that time. Mother filed a Petition for Protection from Abuse against Mr. S------- August 7, 2015. An Order was entered after a contested hearing on August 14, 2015, where a finding of abuse was made against Mr. S-------. The Order expired on August 14, 2016. Mr. S------- filed the instant Petition seven (7) days later on August 23, 2016. Mother filed an Answer opposing the Petition on November 9, 2016. Father filed no Answer but appeared at the Case Management Conference and advised the Court that he took no position on the Petition as he had no contact with Mother or the child. Father did not appear for the hearing.
FACTUAL BACKGROUND
Mother is thirty-three (33) years old and has one daughter, E---, who is almost 9 years old. E---'s father is G----- P---- but he has not been involved her life. Mother started dating Mr. S------- when E--- was about two (2) years old. At some point in their relationship, Mother and the child moved into Mr. S-------'s residence. Mother concedes that Mr. S------- had a relationship with the child and it appears that at times it was a positive relationship. However, Mother and Mr. S------- had a rocky relationship. They often fought and many fights were in front of the child. Mr. S------- would throw Mother and E--- out of his residence when he and Mother fought. Mother left Mr. S------- in August, 2015, and filed a PFA against him. The Petition was granted after a contested hearing and a PFA Order was entered against Mr. S------- requiring him to have no contact with Mother and E---.
Mr. S------- is thirty-five (35) years old. He currently resides at - --- ------ -----, ------, -- -----. He works for K---- O------ making eye glasses. He was in a dating relationship with Mother for approximately five (5) years through which he came to know and love E---. He was involved in E---'s life from the time she was about two (2) years old until she was about seven (7) years old. He still loves E--- and would like to be a part of her life. He asserts that she called him Daddy and that he changed her diapers and tucked her in at night. In fact, he believes that he would be a better parent than Mother is to E---. However, he does not want to be in a relationship with Mother and now recognizes that "no contact with Mother is not a bad thing".
LEGAL STANDARD
A petition for third-party visitation is governed by 13 Del. C. § 2410. In this case, Mr. S------- is not a relative eligible to petition for visitation under the statute and, therefore, he has the burden to establish that he has a substantial and positive prior relationship with the child and that it is in the child's best interest for him to have visitation with the child. He must further show as to each parent one of the following:
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.
a. The parent consents to the third-party visitation;
b. The child is dependent, neglected or abused in the parent's care;
c. The parent is deceased; or
d. The parent objects to the visitation; however, the petitioner has demonstrated, by clear and convincing evidence, that the objection is unreasonable; and has demonstrated, by a preponderance of evidence, that the visitation will not substantially interfere with the parent/child relationship.
10 Del. C. § 901(8) provides: "Dependency" or "dependent child" means that a person:
(a) Is responsible for the care, custody, and/or control of the child; and
(b) Does not have the ability and/or financial means to provide for the care of the child; and
(1) Fails to provide necessary care with regard to: food, clothing, shelter, education, health care, medical care or other care necessary for the child's emotional, physical or mental health, or safety and general well-being; or
(2) The child is living in the home of an "adult individual" who fails to meet the definition of "relative" in this section on an extended basis without an assessment by DSCYF, or its licensed agency; or
(3) The child has been placed with a licensed agency which certifies it cannot complete a suitable adoption plan.
In making a finding of dependency under this section, consideration may be given to dependency, neglect, or abuse history of any party.
10 Del. C. § 901(18) provides: "Neglect" or "neglected child" means that a person:
(a) Is responsible for the care, custody, and/or control of the child; and
(b) Has the ability and financial means to provide for the care of the child; and
(1) Fails to provide necessary care with regard to: food, clothing, shelter, education, health, medical or other care necessary for the child's emotional, physical, or mental health, or safety and general well-being; or
(2) Chronically and severely abuses alcohol or a controlled substance, is not active in treatment for such abuse, and the abuse threatens the child's ability to receive care necessary for that child's safety and general well-being; or
(3) Fails to provide necessary supervision appropriate for a child when the child is unable to care for that child's own basic needs or safety, after considering such factors as the child's age, mental ability, physical condition, the length of the caretaker's absence, and the context of the child's environment.
In making a finding of neglect under this section, consideration may be given to dependency, neglect, or abuse history of any party.
10 Del. C. § 901(1) provides: "Abuse" or "abused child" means that a person:
(a) Causes or inflicts sexual abuse on a child; or
(b) Has care, custody or control of a child, and causes or inflicts:
(1) Physical injury through unjustified force as defined in § 468 of Title 11;
(2) Emotional abuse;
(3) Torture;
(4) Exploitation; or
(5) Maltreatment or mistreatment.
Substantial and positive prior relationship with the child
Mother concedes that Mr. S------- had a substantial and positive prior relationship with the child. When Mother and Mr. S------- were in a relationship, Mr. S------- was involved in the child's life. When Mother and Mr. S------- separated and the PFA Order was entered, Mr. S------- no longer had contact with the child. The child has stopped asking for Mr. S-------. According to Mother, she occasionally asks for Mr. S-------'s Mother and cousins in Mr. S-------'s family, but she does not ask for Mr. S-------. It is understandable that a child of this age will begin to forget an adult in her life with whom she has had no contact for almost two (2) years. Nonetheless, based upon Mother's admission that the child had a positive relationship with the child, the Court finds Mr. S------- has met his burden regarding this element of the statute.
Best Interest
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother opposes Mr. S------- having contact with the child. Father took no position on the Petition as he has no contact with the child. Mr. S------- wishes to have visitation every other weekend and to talk with the child every day. This factor is neutral and does not support either party.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The child is young and was not interviewed. 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;
While Mother concedes that E--- had a positive prior relationship with Mr. S-------, Mother asserts that she does not currently have a positive relationship with him. Mother further asserts that the child has stopped asking for Mr. S------- as he has not had contact with E--- since August of 2015 when the PFA was entered. E--- asks about other members of Mr. S-------'s family but Mother can foster those relationships, if she chooses to do so, without involving Mr. S-------. On the other hand, Mother asserts that she and Mr. S------- had a rocky relationship which involved significant fighting in front of E--- that often ended with Mr. S------- kicking Mother and E--- out of his residence.
Mr. S------- asserts that he still loves E--- and wants to be a part of her life. He wants what he believes is reasonable and requested that he be permitted to visit her every other weekend and talk to her every day. He asserts that he helped raise E--- when she lived in his home changing diapers and tucking her in at night. He further asserts that Mother does not have a Mother/child relationship with the child as the child does not call her Mom and calls the maternal grandmother mom.
After considering both parties' position, the Court finds this factor supports Mr. S-------'s position that he should have visitation with the child.
4. The child's adjustment to his or her home , school and community;
It appears that E--- was adjusted to living in Mr. S-------'s home prior to August of 2015. However, according to Mother, E--- has also adjusted well to not living with Mr. S------- and is no longer asking about him. It has been almost two (2) years since E--- has seen Mr. S-------. Mother has no intention of resuming a relationship with Mr. S------- and Mr. S------- confirmed that he has no intention of resuming a relationship with Mother. Therefore, this factor supports Mother's position that Mr. S------- should not have visitation with the child.
5. The mental and physical health of all individuals involved;
The Court has no information on this factor. 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."
Mother is a single parent raising E--- without the help of the child's biological father. Mother has the assistance of extended family members to help her with E---. Using extended family as support system for this generation is often a necessity and the Court commends parents who develop a dependable support system.
Mr. S------- had no legal obligation to support E--- as he is not her biological or legal parent. Nonetheless, Mr. S------- helped raise E--- when she was living in his home and acted as a parental figure. The Court also commends Mr. S------- for his dedication to a child whom he was not legally obligated to support.
After considering both parties' position, the Court finds this factor supports Mr. S-------'s position that he should have visitation with the child.
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.
A PFA Order was entered against Mr. S------- in favor of Mother after a contested hearing on August 14, 2015. This factor favors Mother's position that Mr. S------- should not have contact with E---.
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 reviewed the parties' criminal histories. Mother has no criminal history which would cause the Court concern. In 2001, Mr. S------- pled guilty to Possession of Drug Paraphernalia and Use of a Non-Narcotic Controlled Substance. In 2003, Mr. S------- was convicted of Possess/Consume Alcohol by a Person Prohibited. In 2008, Mr. S------- pled guilty to Possessing or Consuming Spirits, Wine Beer, etc. on Public Property and a Probation Before Judgment plea was entered. Upon successful completion of probation, the charge was dismissed. In May of 2017, Mr. S------- pled no contest to the charge of Disorderly Conduct. On May 16, 2017, Mr. S------- was charged with Driving Under the Influence of Liquor or Drugs. This charge is still pending and, therefore, the Court will not consider this charge in its analysis. However, given Mr. S-------'s history with drugs and alcohol, the Court must find this factor supports Mother's position that Mr. S------- should not have contact with E---.
Based on the forgoing the Court finds factors (1), (2), and (5) are neutral, factors (3) and (6) favor Mr. S-------'s position, and factors (4), (7), and (8) favor Mother's position. Therefore, the Court finds that the factors weigh slightly in favor of Mother's position that it is not in the child's best interest for Mr. S------- to have visitation. As the Court has found that visitation with Mr. S------- is not in the child's best interest, the Petition could be denied now but the Court continues its analysis under the statute nonetheless.
Grounds as to each parent
As E---'s biological father has not been involved in her life, the Court finds that she is dependent or neglected as to her biological Father. Therefore, Mr. S------- has satisfied this element of the statute as to Father.
Contrary to Mr. S-------'s arguments, the Court cannot find that the child is dependent, neglected, or abused by Mother. Mother opposes Mr. S------- having visitation with E---. Therefore, Mr. S------- must demonstrate, by clear and convincing evidence, that Mother's objection is unreasonable and to also demonstrate, by a preponderance of the evidence, that his visitation will not substantially interfere with parent/child relationship between Mother and E---. Mr. S------- failed to meet his burden in this regard. Mr. S------- presented overwhelming evidence that Mother's objection to Mr. S------- having contact with E--- is reasonable and that, if he were permitted to have contact with E---, it is more likely than not that he will in fact interfere with the parent/child relationship. Mr. S-------'s testimony made it very clear that he disapproves of the way Mother lives her life, disagrees with how she is raising her daughter, objects to her family's customs and traditions, and believes he would do a better job raising E---.
Mr. S------- explained to the Court that the child "came into my life right before the age of two (2) years old." He explained that when he met Mother, she was married to her now ex-husband, G----- [Father] who chose not to show up." Mr. S------- stated he knew Mother was married when they were dating and "she explained to [him] that she had already been pursuing other relationships, her husband was aware of it, and the only reason they were continuing to stay married is so that [Father] could get his green card." Mr. S------- clearly disagrees with Mother's decision to stay married to her husband and expressed his disgust for Mother's decision in this regard.
April 5, 2017, hearing at 1:19:48 p.m.
Id. at 1:19:54 p.m.
Id. at 1:20:17 p.m.
Mr. S------- criticized Mother's parenting skills. He said, Mother "has never been the responsible parent." According to Mr. S-------, "[the child] did not even refer to [Mother] as Mother" and the child "called [Maternal Grandmother] 'Mom'." He claimed that when Mother "came in to file for that PFA she stated that there was abuse and money and [this and that] and harassment, but her only harassment that you could technically defer as harassment was me calling to find out where this child was. [Mother] left with two or three changes of clothes for weeks on end, has no family in Delaware, has nothing, the child is in school, her medication, her epi-pen, her everything is there." According to Mr. S-------, there has been "years of abuse of [Mother] throwing, punching, stretching, destroying every content in my house." Mr. S------- further asserted that Mother "was never able to step back and be a parent and prioritize her life. Everything was [Mother, Mother, Mother]." He believes Mother "wants to live the life she wants to live rather than putting [the child] first." And that Mother "by herself as a single parent does not have ability to provide this child with everything that this child needs without having additional support in the child's life."
Id. at 1:22:02 p.m.
Id. at 1:22:08 p.m.
Id. at 1:22:13 p.m.
Id. at 1:31:00 p.m.
Id. at 1:31:39 p.m.
Id. at 1:32:40 p.m.
Id. at 2:05:50 p.m.
Id. at 2:07:25 p.m.
Mr. S------- disapproves of Mother's culture and family values. He stated that when Mother and the child moved in with him, he told Mother that "life's not about going out and partying every single night, you have a child, you have responsibilities, you can't push this responsibility off on to your mother and grandmother who ultimately raised this child as a baby because [Mother] was working, there was five (5) people living in a two (2) bedroom apartment and it was just disgusting. When referencing Mother's relationship with E---'s Father, Mr. S------- said, "because of the culture and [Father] was here on a visa, that she had to wait five (5) years, so he could get his green card and it wouldn't be right to him or his family and the arrangement the families had made." He asserted that "every single birthday, Christmas, holiday, family function, every event, every single year [E---] was at my family's house because [Mother's] family didn't care. [Mother's] brother who is now deceased would refuse to even associate with [Mother] or the child because of the fact that [Mr. S-------] was American. This is the culture you are dealing with." He continued by stating Mother's "family flew us out to Chicago to propose an arrange marriage for [Mother] for $50,000. They flew us out there to sit down and talk to somebody about letting [Mother] get married so someone could get their green card. That's what these people are, that is her family. They thieve the system. They are not positive by any means. [Mother's] mother did it, [Mother's] mother married an already married guy to get money." He further believes that Mother's family is not a positive influence on the child as he describes Maternal Grandmother as "the same grandmother who has illegal marriages for money and encourages [Mother] to do the same, ..., the same woman who is cheating the welfare system every chance she has."
Id. at 1:22:27 p.m.
Id. at 1:25:26 p.m.
Id. at 1:34:47 p.m.
Id. at 1:35:17 p.m.
Id. at 1:46:19 p.m.
He went on to say, "[Father] is saying that he signed over his rights, well the thing of it is [Mother] is a master manipulator. During that time of her saying that [Father] signed over his rights, she was still collecting child support from [Father], threatening [Father], because it is the world that the culture lives in." Mr. S------- also stated that "[Father] was visibly shaken because he was scared that he might get deported. They work these under the table jobs, they go by different names, aliases, that's why the Court found it so difficult to locate him." He further explained to the Court that "when [Mother's] mother and grandmother came over they would talk their language and they look down on American people. They tried to instill on [the child to not] talk English."
Id. at 1:26:50 p.m.
Id. at 1:27:15 p.m.
Id. at 1:29:45 p.m.
Mr. S------- believes he is a better person than Mother and blames her for the problems in their relationship. He asserts, Mother's "insecurities have lead us to this situation." He claims that, Mother "goes and runs around and tells her friends [Mr. S-------] is so abusive," "[Mother] is taunting him," and "[Mother] has manipulated this situation into [Mr. S-------] being this monster." He asserts that Mother was "always destroying stuff, I [Mr. S-------] felt trapped in my own house, [...], and [Mother was] throwing Yankee candles at [his] head [and] putting holes in [the] wall..." He continued to assert that [Mother] completely failed to understand about responsibility." He believes "[Mother] likes to cry wolf and then it all gets dismissed because evidence is not there."
Id. at 1:36:52 p.m.
Id. at 1:39:42 p.m.
Id. at 1:52:10 p.m.
Id. at 1:40:17 p.m.
Id. at 1:41:30 p.m.
Id. at 1:42:02 p.m.
Id. at 1:44:31 p.m.
Given Mr. S-------'s extremely negative feelings for Mother, her family, and her culture, the Court finds Mother's position to be reasonable. This case is not about whether Mr. S------- could be a better parent to E--- than Mother is. Mr. S------- is not E---'s parent. He is not even a relative. When the Court reviews the evidence in a case regarding third party visitation, the Court is not comparing the parties as to who could be the better parent. The Court is only determining whether Petitioner's contact with the child is in the child's best interest and, if so, whether that contact would interfere with the parent's relationship with the child. "Mother [and Father] are the parents, and as parents they can limit who their child[ren] spend time with and who can have influence on them." It is Mr. S-------'s burden to prove by clear and convincing evidence that Mother's position is unreasonable and not Mother's burden to prove her objection is reasonable. Mr. S------- has not met this burden. Given Mr. S-------'s opinions about Mother and her culture, it is reasonable for Mother to not want him to have contact with the child. The Court finds Mother to be a fit parent and as a fit parent, she has the right to raise her child as she deems appropriate.
13 Del. C. § 8-102(23) provides: "Parent-child relationship" means the legal relationship between a child and a parent of the child. The term includes the mother-child relationship and the father-child relationship."
D.Q. v. J.P.Q., 2012 WL 5198334, at *7 (Del. Fam. Ct. Aug. 14, 2012).
Id. --------
Mr. S------- has further failed to prove by a preponderance of the evidence that his contact with the child would not interfere with parent/child relationship between Mother and child. Mr. S------- clearly has an extremely negative opinion of Mother, her family, and her culture. Therefore, the Court finds that it is more likely than not that Mr. S------- would not refrain from speaking negatively about Mother, her family, or her culture if he were permitted to have contact with the child. It is not appropriate for the Court to allow a non-parent's opinions to interfere with Mother's ability to parent her child as she sees fit. Mr. S------- made it clear that he doesn't respect Mother's lifestyle choice. Given his willingness to speak so negatively about Mother in Court, the Court has to believe that it is more likely than not that he would do the same around the child when presented with the opportunity to do so and that doing so would interfere with Mother's relationship with the child.
CONCLUSION
The Court finds that notwithstanding the fact that Mr. S------- may have had a substantial and positive prior relationship with the child, the Court cannot find that Mr. S------- has proven that it is in the child's best interest for Mr. S------- to have visitation with the child nor has he proven by clear and convincing evidence that Mother's objection is unreasonable nor has he established by a preponderance of the evidence that his visitation with the child would not substantially interfere with Mother's relationship with the child.
WHEREFORE, for all of the foregoing reasons, the Petition for Third Party Visitation is DENIED.
IT IS SO ORDERED this 8th day of Aug 2017.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, File