Opinion
File No. CN18-01765 Case No. 20-10224
06-24-2020
M D , Petitioner, v. J C , Respondent.
John R. Weaver, Jr., Esquire, 831 North Tatnall Street, Wilmington, DE 19801 jrweaverlaw@verizon.net J C , self-represented
ORDER ON PETITION FOR VISITATION MODIFICATION John R. Weaver, Jr., Esquire, 831 North Tatnall Street, Wilmington, DE 19801 jrweaverlaw@verizon.net J C , self-represented, ARRINGTON, Judge.
On June 22, 2020, the Court conducted a hearing on the Petition for Visitation Modification in the interest of An D (born , 2015) (herein "An ") and Aa D (born , 2017) (herein "Aa ")(collectively "Children"). Participating in the hearing were Petitioner Melvin D (herein "Father"), represented by John R. Weaver, Jr., Esquire, and Respondent Jacqueline C (herein "Mother"), self-represented. Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
Father filed a Petition for Custody on September 11, 2019. In the Petition, Father alleged parental alienation on behalf of Mother. Father filed a Petition for Order of Protection From Abuse on November 18, 2019. Father requested an ex parte order alleging "[Mother] has exhibited unstable and overly emotional behavior and [Father] fears for [his] children and [his] safety." The ex parte Order was granted on the same day based on the alleged risk of immediate and irreparable harm to the Children.
Dkt. #15.
Mother filed a Cross-Petition for Order of Protection from Abuse on November 21, 2019. Mother requested an ex parte order, which was granted on the same day. The Court conducted a hearing on the Cross-Petitions for Order of Protection From Abuse on December 4, 2019. The Court dismissed both petitions for failure to meet the burden of proving by a preponderance of evidence that abuse as defined in the statute had occurred. The Court conducted the final custody hearing on December 18, 2019. The Court awarded Father sole legal custody and primary residential placement of the Children in an Order entered on December 23, 2019.
Dkt. #18.
The findings and analysis of the sole custody order are set forth in the December 23, 2019 decision and order. Those findings are equally applicable to this case as the decision was less than five months old when this petition was filed. Changes to the status of the "best interest factors" are noted herein.
Father filed a Petition for Visitation Modification on May 7, 2020. Father alleged that Mother was residing with the Children in a motel amid the COVID-19 pandemic and the Governor's "Stay-at-Home" Order. The Court issued the requested ex parte Order and scheduled an emergency hearing for the following week. On May 15, 2020, the Court conducted the emergency hearing on the application for visitation modification. Mother failed to attend the hearing. The Court attempted to contact Mother at all three phone numbers provided by her in the Court records. The third call was answered and immediately hung up. The Court continued the terms of the ex parte Order which suspended Mother's visitation until the Petition for Visitation Modification is heard by the Court. The Court conducted the final hearing on the Petition for Visitation Modification on June 22, 2020.
FACTUAL BACKGROUND
Father's Position
Father testified that he filed the Petition for Visitation Modification because he was informed that Mother had moved into a two-bed single motel room at the Superlodge Motel on Route 9 in New Castle, Delaware. According to Father, there were three children and four adults occupying the motel room. Father testified that the Children would share a bed with another child when in Mother's care.
Father testified that Mother brought the Children to the Superlodge Motel despite the warnings, restrictions, and directions for safe care set forth in Governor John C. Carney's "Stay-at-Home Order" which was attached as Exhibit A to the Petition and admitted as Father's Exhibit 1. Father feared that Mother took the Children to a location that the Governor deemed "non-essential" and placed them in an overcrowded location thereby increasing their chances of exposure to the virus.
Father testified that he has not had contact with Mother in the last month. Father testified that he last saw Mother at the Superlodge Motel sometime in the afternoon during the week of June 15, 2020. Father later clarified that it was approximately 2:00 p.m. when he saw Mother at the Motel. Father testified that during the last month, Mother has not attempted to contact the Children, nor has she requested any type of contact with the Children.
Father testified that in addition to the safety concerns for the Children living in a motel, the Children's dietary restrictions were not followed in Mother's care. Father testified that there is a McDonalds within walking distance of the Superlodge Motel. Father explained that a short-time following the Children's stay at the motel, the Children refused to eat anything that was not chicken nuggets from McDonalds. Father explained that both Children carry excess weight and it is important for them to follow a healthy diet. Father testified that since Mother's visitation has been suspended, the Children are eating better and An has slimmed down to a healthy weight for a child his age.
Father requested that the Court continue to suspend Mother's visitation with the Children until there is evidence that Mother can provide a stable home for the Children.
Mother's Position
Mother denied that she resided in the Superlodge Motel. Mother claims that she continued to reside at the home of her grandmother where she resided at the time of the December 2019 hearing. Mother testified that her cousin E resides in the motel with her family and would watch the Children while Mother was at work. Mother is employed and earns approximately $16.15 per hour. Mother testified that her work hours are Monday through Friday from 6:30 a.m. until 2:30 p.m. Mother often works an overtime shift on Saturdays. Mother does not work on Sundays.
Mother's claim that she did not reside at the Motel conflicts with Father's testimony that he personally saw Mother at the Motel at 2:00 p.m. Mother testified that she is at work until 2:30 p.m.
Service on Mother was attempted at her grandmother's address and was accepted by her grandmother. Grandmother did not identify herself for the process server.
Mother had no explanation for why she took the children to a motel room where five others resided rather than have them stay at her Maternal Grandmother's home where Mother testified that she lived.
Mother's testimony was hard to understand and contradictory. At first, Mother testified that she moved into a two-bedroom apartment approximately one month ago which would have been in late May. Mother then testified that the Landlord did not want the unit leased until the COVID-19 restrictions were lifted. Mother then presented a lease that was signed by Mother on June 15, 2020, however, was unexecuted by the landlord. Mother then testified that she moved into the apartment on June 15, 2020, not one month ago. At the close of her testimony, Mother presented what she referred to as the "actual lease." According to the "actual lease" submitted by Mother, and again contrary to Mother's prior testimony, the lease term does not begin until July 1, 2020 and Mother has not paid the first month's rent or security deposit. Mother's testimony regarding the apartment is just one of many times that Mother offered contradictory sworn statements throughout the hearing. It remains unclear where Mother resides at present.
Despite notice allowing Mother to file a Motion for Temporary Visitation in the Interim Order, Mother testified that she did not request contact with the Children because she thought that her visitation was suspended indefinitely. Mother further testified that a Family Court employee named "Curtis Harris" informed her that the "Family Court was closed amid COVID-19."
The Court notes that the Family Court was not closed and there is no Family Court employee named Curtis Harris. The Court asked Mother to confirm the name of the employee and she provided the same name for the purported employee.
Mother requested that the Court award an increase in her visitation with the Children beyond the days set forth in the five-month old custody decision. Mother testified that she "has never been on drugs, never lived in a motel, and never avoids school payments." Aside from her denial of residing at a motel, Mother's testimony was unnecessary and not relevant as Father did not testify to Mother's drug use or evidence of missed school payments.
Mother presented her cousin, D C , as her first witness. Mr. C testified that he picks the Children up from school approximately 6-7 times per months. Mr. C testified that he will typically take the Children to Maternal Grandmother's home for the Maternal Grandmother to watch, or to the Superlodge Motel for E to watch until Mother is home from work. Mr. C 's testimony was credible and responsive to the questions actually presented to him. However, Mr. C often strayed from the questions to offer unsolicited opinions on various issues.
Mother presented Maternal Grandmother as her final witness. Maternal Grandmother is biologically the Children's Great-Grandmother. However, Maternal Grandmother adopted Mother at a young age and raised her as her own child. For this Order and any proceedings going forward, A C will be referred to as Maternal Grandmother.
Maternal Grandmother testified that Mother has been residing in her own two-bedroom apartment. Maternal Grandmother testified that Mother never resided in the Superlodge Motel. Maternal Grandmother explained that the Children would be at the motel because E resides there and at times E was the only available babysitter. Maternal Grandmother did not testify as to any work schedule or other activities that would make her unavailable during the day.
The Court gives little to no weight to Maternal Grandmother's testimony. As evidenced above, Mother has not been residing in her own apartment as Mother had no lease, Mother testified that the Landlord did not want to lease the unit until COVID-19 restrictions were lifted, and the lease term does not begin until July 1, 2020. Due to the contradictory and non-credible testimony presented during Mother's case-in-chief, Father's personal viewing of Mother at the Motel during her purported work hours, and Father's testimony of the Children's diet from McDonalds in close proximity to the Motel, the Court finds that it is more likely than not that Mother and the Children resided in the Superlodge Motel. Further, the Court finds that it is unclear where Mother resides at present although she may have the right to live at her new address after July 1, 2020.
LEGAL STANDARD
An order concerning visitation may be modified at any time if the best interests of the child would be served. In deciding the visitation rights of a parent, the Court is guided by 13 Del. C. § 728(c) which states:
13 Del.C. § 729(a).
A parent of a child who believes it to be in the best interests of a child for the custodial authority, visitation or communication between a parent and a child as established by a prior Court order or written agreement of the parties to be modified may apply to the Court for such modification, and the Court may grant such an application if it finds after application of the standards set forth in subsection (a) of this section that the best interests of the child would be served by ordering such a modification.
13 Del.C. § 728(c).
Subsection (a) reads, in part, that the Court shall set a "schedule of visitation with the . . . parent, consistent with the child's best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents . . . ." The Court must also consider the best interest factors set forth in 13 Del. C. § 722 in establishing a visitation schedule.
13 Del.C. § 728(a).
Title 13, Section 722 provides in pertinent part: 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 cohabitating in the relationship of husband and wife with a parent of the child, and 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 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.
In determining the best interests of the children, the Court shall consider all relevant factors as provided in 13. Del. C. §722. 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. As a full best interest analysis was recently executed in December 2019, the Court will address the relevant facts of the matter at hand in the analysis below.
13 Del. C. § 728(a). --------
Father requested that Mother's visitation be suspended until Mother can provide evidence that she has a stable home in which the Children can reside while in her care. Conversely, Mother requested that her visitation with the Children be increased. Mother testified that she has a two-bedroom home and is able to provide a safe place for the Children.
The Court finds that Mother in fact does not have a two-bedroom apartment for herself and the children to reside at present. Mother's contradictory testimony throughout the hearing does not convince the Court to give Mother's testimony little to any weight. Additionally, despite the commencement of the lease being July 1, 2020, Maternal Grandmother supported Mother's testimony that she resides in a two-bedroom apartment at present. While Mr. C 's testimony was largely credible, his support of Mother stretched beyond his personal knowledge. The Court cannot offer much of any weight to Maternal Grandmother's testimony or Mr. C 's testimony to the extent that it exceeded his actual knowledge.
Father testified that the Children's physical health is at risk in Mother's care. In addition to the very ill-advised decision to place the children in a room with five other individuals - even if "just for childcare" - during the COVID-19 period, Father testified that the Children's weight and diets are injuring them when in Mother's care.
Father explained that Mother feeds the Children chicken nuggets from McDonalds and other unhealthy fast food options. Father testified that since Mother's visitation has been suspended, An has slimmed down and is following a healthy diet. Father testified that Aa has not lost much weight but is now close to maintaining an appropriate weight for a young girl. Mother provided no testimony related to the Children's physical health and/or diet.
Mother admitted that the Children spent time in the Superlodge Motel while she was at work for not less than eight hours, five days per week. Mother's decisions have unnecessarily placed the Children in an environment that poses a direct threat to their health and welfare. Mother willingly exposed her Children to a heightened risk of exposure to a very serious and deadly virus. Moreover, despite the testimony at the hearing in December concerning the Children's health, Mother has restricted the Children's diet to McDonalds' foods. Mother's cavalier approach to the Children's development causes the Court serious concerns and is a strong and persuasive factor in limiting her time with the Children.
The Court finds that there is a need to modify the current visitation schedule. In considering the best interests of the children, the parties cannot continue following the previously entered Order while Mother does not have stable housing and fails to make responsible decisions for the children's health and safety.
ORDER
IT IS HEREBY ORDERED this 24th day of June 2020:
1. Mother shall have visitation with the Children every Sunday from 9:00 a.m. until 7:00 p.m. The visitation may not take place at a Motel or any other location where there is close proximity to others in contravention of the guidelines in the Governor's orders. Mother must be present for all visitation with the Children.
2. If Mother cannot provide care for the Children during her visitation time, Mother will forfeit her time and Father shall keep the Children. Mother is not to have other individuals care for the Children during her Sunday visitation.
3. At such time as Mother actually resides in home and can provide proof to the Court of the living and care arrangements for the Children, Mother may file a petition for visitation modification.
4. Mother may also have the holidays granted to her in the petition so long as Mother is not working on the holidays.
5. Mother shall provide all information to Father concerning her residence and any changes thereto.
THIS IS A FINAL ORDER ON THIS PETITION.
IT IS SO ORDERED.
/s/Michael W . Arrington
Honorable Michael W. Arrington
Judge cc: J C (by e-mail and first-class mail)
John R. Weaver, Jr., Esquire (by e-mail) Date e-mailed/mailed: June 24, 2020