Opinion
File No. CN18-01765 Case No. 19-26066
12-23-2019
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 CUSTODY John R. Weaver, Jr., Esquire, 831 North Tatnall Street, Wilmington, DE 19801 jrweaverlaw@verizon.net J C , self-represented, ARRINGTON, Judge.
On December 18, 2019, the Court conducted a hearing on the Petition for Custody in the interest of An D (born , 2015) (hereafter "An ") and Aa D (born , 2017) (hereafter "Aa ). Present in Court were Petitioner Melvin D (hereafter "Father"), represented by John R. Weaver, Jr., Esquire, and Respondent Jacqueline C (hereafter "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 that same day based on Father's application and representation.
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. Preliminary to this hearing, the Court ordered that Father have visitation with the children for the upcoming two weekends beginning on Friday at 4:00 p.m. The Court conducted the final custody hearing on December 18, 2019.
Dkt. #18.
FACTUAL BACKGROUND
Father is 29 years old and resides in New Castle, Delaware. Father is currently employed part-time as a supervisor for UPS and is currently in the Air National Guard. Father presently lives with his paramour, J T , his son Jayden who is not involved in this matter, and Ms. T 's son.
Mother is 30 years old and resides in New Castle, Delaware. Mother is currently employed by Amazon. Mother presently lives with Maternal Great-Grandmother and the children. Mother is expecting a child in January 2020.
Father's position
Father requests sole legal custody and shared residential placement. Father believes that he should have sole custody due to Mother's failure to have dental work done for Anthony and Mother's failure to have the children immunized. Father believes that it would be best for the children to spend every Wednesday, every Thursday night, and alternating weekends with him.
Father presented multiple exhibits of text messages with Mother, the content of which was disturbing. Father's requests were civil while Mother's responses were laced with profanity and insults against Father.
Father testified that he did not have any parenting time with the children in August, October, or November. Father explained that he had a one-night visit with Anthony in September but Aaliyah was not present. Father testified that he had parenting time with the children for two weekends in December as ordered by this Court on December 4, 2019. Father testified that Anthony has unaddressed dental issues causing browning to his gums and teeth. He further testified that Mother had refused recommended vaccinations for the children and supported the testimony with exhibits from the care provider. Father testified the two weekends ordered went well overall but Mother did not exchange the children at the Court ordered time of 4:00 p.m. on both Fridays.
Father testified that when the children are with him they have plenty of toys and clothes. Father explained that the children watch television or play learning games. Father testified that Anthony is very comfortable with Father and that the two share a good relationship. Father explained Aaliyah had some adjustment problems at first but the issue no longer exists. The last two weekends Aaliyah did very well at Father's home.
Father called Paternal Grandmother as a witness. Paternal Grandmother testified that per this Court's Order she was to pick the children up from Mother's home at 4:00 p.m. for two Fridays in a row. Paternal Grandmother testified that she attempted to contact Mother on the day that she was to pick up the children, but did not get a response. Paternal Grandmother explained that she ultimately got in touch with Mother's Grandmother who informed her that the children were still at school at 4:00 p.m. Paternal Grandmother was not permitted to pick up the children until 6:30 p.m. on both Fridays.
Father called Paternal Aunt, S D , as a witness. S testified that she lives in New Castle, Delaware about ten minutes from Father's home. S testified that the D 's are a close-knit family and that they have family get together often. S explained that despite this close relationship, she has seen Aaliyah approximately three times in the child's entire life and Anthony approximately six to seven times throughout his life. S explained that she knows nothing about the children which makes it "hard to bond" with her niece and nephew.
S testified that she no longer speaks to Mother. S explained that Mother was always negative and constantly angry or arguing with Father. S explained that Mother did not want Father near the children and would tell S that she would not bring the children over if Father were present. S testified that Mother is disrespectful toward Father, Paternal Grandmother, and their home.
Father called second Paternal Aunt, R D , as a witness. R testified that she has two sons, one of whom is similar in age to Anthony. R testified that her family will get together often but Anthony and Aaliyah are only present occasionally on Christmas. R testified that in order to see Anthony and Aaliyah she could not invite Father to her home. R explained that she knew if Father was at her home Mother would not bring Anthony and Aliyah there.
Father called paramour, J T , as a witness. Ms. T testified that she was at the home when the children were with Father this past weekend. Ms. T explained that Anthony and her son got along well but did disagree over a toy. Ms. T explained that the two boys began to "tussle" and gave each other scratches. Ms. T separated the boys and gave them both a time out. Ms. T testified that she examined the children on Monday before school and did not see any bruises. Ms. T does not foresee any problems in the future if the children stay with Father.
The Court notes that Father was unaware of any bruising on Anthony until the hearing. Mother did not inform Father of the bruise when the school notified her on Monday December 16, 2019.
Mother's Position
Mother requests sole legal custody and shared residential placement. Mother proposed that Father have parenting time with the children every weekend and that the parties can split holidays. Mother testified that she is okay with co-parenting but wants there to be "some type of level of respect for each other as a parent." However, Mother admitted that she has withheld the children from Father in the past but only "with reason." As introduced as evidence, however, Mother texted Father on August 1, 2019 refusing to co-parent and called Father a list of derogatory names.
Father's Exhibit 3.
Mother testified that the parties have "co-parented" in the past but recently "family drama" has put a stop to this. Mother explained that she wanted Father to "shut down the situation" in order to go back to co-parenting. Mother explained in response to the Court's questioning that the "family drama" and "the situation" were undesignated issues occurring between Mother and Paternal Relatives.
The trial exhibits contradict Mother's oral testimony and are given more weight as they are contemporaneous with the events that occurred. Mother's credibility was questionable throughout this hearing.
Mother testified that when she gets "beyond upset" she tends to say things that she does not mean. There were a number of instances where Mother had sent Father aggressive and derogatory texts. On cross-examination, Mother testified that she has a habit of calling the children "her" children because it has never been an "our" thing. Mother testified that she understands that the children are Father's children as well, but it is her belief that Father only thinks about himself.
The Court addressed each text that was entered into evidence with Mother. Mother admitted to sending every text.
Mother testified that she takes good care of the children and has been their primary caretaker their entire lives. Mother explained that she refused the vaccinations as listed in the medical records because the children had already received the vaccination at a nearby Walgreens. The children are both in the 95th percentile for weight. Anthony's pediatrician recommended and put in place a dietary plan for him in June 2019. Mother testified that she no longer follows the plan and had stopped in August 2019 after just two months. Mother explained that a typical meal for the children is fried chicken, broccoli and "mac-n-cheese". Mother testified that the children receive two meals at school along with a second or third snack depending upon what time they get picked up.
Mother testified that the flu vaccine was given months after Mother had refused the vaccine offered at the hospital. There were no records introduced to support the assertion that they were given a flu shot.
Mother called maternal cousin, E , as a witness. E testified that she has seen Father with the children "once in a while when he decides that he wants to see the children." E testified to an incident that occurred in summer 2019. E accompanied Mother to retrieve children from Paternal Grandmother's home because she believed Paternal Aunt was going to harm Mother. E explained that she remained in the car the entire time and no problems occurred.
Mother called Maternal Great-Grandmother, A C , as a witness. Ms. C testified that Father does not want to co-parent with Mother. Ms. C testified that Father has not "seen the children in three years" and that "Aaliyah does not even know him." Ms. C testified that it is her belief that Father has her phone number blocked. The Maternal Great-Grandmother's testimony was somewhat disjointed and overly supportive of Mother far beyond the actual question being presented to the witness. The Maternal Great-Grandmother is afforded less credibility than the Paternal Grandmother whose testimony did not have the same deficits.
LEGAL STANDARD
Since the Court has never entered a final order on custody, residency, and visitation for the children 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 children'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 children'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.
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father requests sole legal custody and shared residential placement. Father believes that he should have sole custody due to Mother's failure to prioritize the children's medical needs. As presented into evidence, Mother has refused to have the children immunized, has not addressed Anthony's dental issues and has not followed the doctor's recommended dietary plan. Father proposes that he has parenting time with the children every Wednesday and Thursday nights and alternating weekends.
Mother requests sole legal custody in order to "have her peace back and not deal with drama." Despite Mother's assertions, she was not able to describe credibly any event of drama or breach of the peace. Mother proposed shared residential placement of the children. Mother's position is that she has been the children's primary caretaker their entire lives and that Father "is only a parent when he chooses to be." Mother proposed that Father has parenting time each weekend and that the parties split holidays.
Mother does not fully comprehend the impact of her communications and denial of Father's time with the children. Father is more likely to ensure respectful time with Mother than Mother has been able to show. Factor one favors Father.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The children are four and two years old. Both Anthony and Aaliyah are too young to adequately express their wishes. The Court is certain that the children love both parties equally.
Factor two is neutral as to the parties.
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 shares a strong relationship with Anthony. Father explained that Aaliyah struggled with adjusting to his care at first but that has since been resolved. Father testified that the children watch television or play learning games when at his home. Father has a second son, Jayden, who gets along well with the children.
Ms. T lives in the home with Father and her son. Ms. T testified that she gets along very well with both Anthony and Aaliyah. Ms. T explained that Anthony and her son play together as typical boys. From the testimony presented, other paternal relatives such as Paternal Grandmother and Paternal Aunts are present in the children's lives.
Mother testified that she takes the children to IHOP, Chuckie Cheese and SkyZone. Mother's cousin, E , testified that she shares a strong relationship with the children and sees them frequently. Maternal Great-Grandmother testified that she takes care of the children daily and cooks a majority of their meals. Factor three is neutral as it relates to the parties.
4. The child's adjustment to his or her home , school and community;
The children have lived primarily with Mother. Mother testified she lives in a home with Maternal Great-Grandmother and the two children. The children attend Hope Lutheran for daycare.
Father testified that he lives in a home with Jayden, Ms. T , and Ms. T 's son. Father explained that the children could continue attending Hope Lutheran as it is in walking distance from his home. Father believes that Hope Lutheran is a good school and he wants what is best for the children.
Both homes are acceptable for the children to reside in. As the parties live within minutes from one another, the children will continue at Hope Lutheran regardless of the placement. Factor four is neutral as it relates to the parties.
5. The mental and physical health of all individuals involved;
Both Mother and Father are in good physical and mental health. Mother is pregnant and expecting a child on January 21, 2020. Both children are in the 95th percentile in weight for children their age while in Mother's care. Anthony was recommended a dietary plan in June 2019 that Mother has since chosen not to follow. Anthony has unaddressed dental issues causing browning to his gums and teeth. It is unclear whether the children received the required vaccinations. Factor five favors Father.
6. Past and present compliance by both parents with their rights and responsibilities to their children under §701 of this title;
Father has never had consecutive parenting time with the children. Mother testified that there has been instances that she intentionally kept the children from Father.
Mother's admitted tendency to become "beyond upset" is an underestimation of the content of her e-mails to Father. Mother has exhibited retribution toward Father for unknown reasons and has denied him time with the children. The credible testimony of each of Father's witnesses as to Mother's behavior strongly suggests that Mother does, in fact, view the children as her own to the detriment of Father.
Mother has failed to address the children's healthcare needs. Both children are in the 95th percentile for their weight yet Mother has chosen not to follow the doctor recommended dietary plan. Additionally, it is unclear whether the children received certain vaccinations.
Factor six strongly favors Father.
7. Evidence of domestic violence as provided in Chapter 7A of Title 13;
The parties both testified that there is no domestic violence with any of the residents in their respective homes. Mother and Father filed Cross-Petitions for Orders of Protection From Abuse Orders in December 2019. This Court dismissed both petitions as the allegations did not rise to a level of abuse by a preponderance of the evidence.
Factor seven is neutral.
8. The criminal history of any party or any other resident of the household including whether criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
There is no criminal history for Father or Mother that would cause concern for the Court in deciding custody 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 children. From the evidence presented at the hearing on December 18, 2019, the Court orders that Father shall have SOLE LEGAL CUSTODY of the children. Factors one, five, and six favor this award. Mother has shown that she is unwilling to treat Father with respect and had made decisions against medical advice. The dental issues for Anthony are a concern for the Court.
As sole custodian, Father must consult with Mother on all decisions but Father ultimately will make the final decision. These decisions include but are not limited to the children's support, care, nurture, welfare, and education. Specific to this case, Father must consult with Mother on medical and dental care for the children.
See 13. Del. C. §701.
Father is awarded PRIMARY RESIDENTIAL PLACEMENT of the children. The parties will follow continuing four-week blocks of time commencing December 23, 2019. On weeks "A," "B," and "C," Mother has Monday, Tuesday and Wednesday and Father has Thursday, Friday, Saturday and Sunday. On the "D" week, Mother will have parenting time Monday, Friday, Saturday and Sunday, with Father having Tuesday, Wednesday and Thursday. The Court orders that the parties may pick the children up from daycare at any time on their custodial days. Further, the children are to be returned to daycare following their last day of custodial time.
The Court notes that the "D" weeks in 2020 are: 1/13, 2/10, 3/9, 4/6, 5/4, 6/1, 6/29, 7/20, 8/17, 9/14, 10/12, 11/9, 12/7. --------
ORDER
IT IS HEREBY ORDERED this 23rd day of December 2019 that:
1. Father is awarded SOLE LEGAL CUSTODY.
2. Father is awarded PRIMARY RESIDENTIAL PLACEMENT.
3. The parties will follow a four-week block of custodial time commencing December 23, 2019. On "A," "B," and "C," Mother shall have parenting time on Monday, Tuesday and Wednesday. On the D week, Mother shall have parenting time on Monday, Friday, Saturday and Sunday. Father will have all other times.
4. The party ending their custodial time shall bring the children to daycare on the morning following their overnight. If school is not in
session, the parent ending their custodial time shall bring the children to the parent starting their custodial time.
5. Parents are to ensure that the children follow the dietary recommendations of their physician and dentist.
6. No phones are to be blocked. Communication shall occur through text messages and e-mail, except in emergencies.
7. Mother will have the children on Christmas Eve 2019 until Noon on Christmas Day 2019. Father will have the children from Noon on Christmas Day until Noon on Tuesday December 31, 2019 (New Year's Eve).
8. In 2020 and all even numbered years, Father shall have the children from 9:00 a.m. on December 24th until noon on December 25th. Mother shall have the children from noon on December 25th until 6:00 p.m. on December 26th.
9. In 2021 and all odd-numbered years, Mother shall have the children from 9:00 a.m. on December 24th until noon on December 25th. Father shall have the children from noon on December 25th until 6:00 p.m. on December 26th.
10. Mother will have the children every Mother's Day regardless of the week in which it falls.
11. Father will have the children every Father's Day regardless of the week in which it falls.
12. Each parent gets to select one (1) week of uninterrupted vacation. In even numbered years, Mother selects her week by March 1st and Father by April 1st. In odd numbered years, Father selects his week by March 1st and Mother by April 1st.
13. Holidays override any regular visitation without make up time. A parent may not choose a week that conflicts with the other parent's time under this Section except by mutual consent. The following holiday schedule and special conditions shall apply to this Order:
A. Holidays. Mother shall have the child on the holidays in Column A in even-numbered years and the holidays in Column B in odd-numbered years. Father shall have the child in Column B in even-numbered years and the holidays in Column A in odd-numbered years:
| Column A | Column B |
|---|---|
| Easter Weekend (Friday 12pm-Monday 9am) | Memorial Day (9am-7pm) |
| Fourth of July (7/4 at 9am - 7/5 at 9am) | Labor Day (9am - 7pm) |
| Halloween (after school - 7:30 pm) | Thanksgiving(Wed. 4pm-Mon) |
| Christmas Eve (9am - 12/25 at 12pm) | Christmas (12pm- 12/26 at 7pm) |
| Spring Break (includes Easter weekend) | Winter Break(except Christmas) |
THIS IS A FINAL ORDER AFTER A HEARING ON THE MERITS.
/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 of Written Order: December 23, 2o19
Date e-mailed to Parties: December 23, 2019