Opinion
File No. CN19-02624 Case No. 20-18867
10-09-2020
M R , Petitioner, v. C G , Respondent.
M R , self-represented, C G , self-represented,
ORDER ON PETITION FOR VISITATION M R , self-represented, 1 C G , self-represented, ARRINGTON, Judge.
This case involves two parents who love their child very much. Unfortunately, one parent was absent from the child's life for an extended period of time and the Court must now decide the best way to reintroduce the parent into the child's life. While reintroducing a parent to any child is a difficult transition for the child, there are added intricacies in this case as the child here has Autism. The child's challenges require training and patience - the reintroduction order must require the same.
On October 6, 2020, the Court conducted a hearing on the Petition for Visitation Modification in the interest of M R , Jr. ( ) (born April 8, 2015) ("Child"). Petitioner M R ("Father") self-represented; Paternal Grandmother; and Respondent C G ("Mother"), self-represented, participated at the hearing.
PROCEDURAL HISTORY
On March 3, 2020, a Consent Order on Petition for Custody was entered by the Court. On September 2, 2020, Father filed a Petition for Visitation. On September 24, 2020, Mother filed an Answer to Father's petition. Notice of the hearing was sent to the parties on September 21, 2020. A Rescheduling Order was sent to the parties on September 25, 2020, with an updated time. The hearing was conducted on October 6, 2020.
Dkt. #11.
Dkt. #12.
Dkt. #19.
JURISDICTION
The current consent custody order was issued by the Family Court of the State of Delaware on March 3, 2020. Both parents continue to reside in New Castle County, Delaware. Jurisdiction in the Family Court of the State of Delaware in and for New Castle County is appropriate.
TESTIMONY OF THE PARTIES
Father's Position:
Father was released from prison on July 23, 2020. Father had been incarcerated since August 16, 2019. Father went to prison after his plea to robbery in the second degree, possession of a deadly weapon during the commission of a felony, conspiracy in the second degree, and wearing a disguise during a robbery.
Father is currently visiting with Child on Tuesdays and Thursdays from 6:00 p.m. until 8:00 p.m. at Mother's house. Father wishes to see Child more, and requests that visitation be increased. Father testified that he would like the Child to visit his home every other weekend for six hours, from 12:00 p.m. until 6:00 p.m., and for an overnight visit once a month. Father also wishes to rotate holidays and the Child's birthday with Mother. Father believes that increasing visits with the Child a little bit at a time would be a smooth transition. Father does not want Mother to attend the visits at his home.
Father testified that he saw the Child the day after he was released from prison. Father reported that the visit went very well, despite the Child being nervous at first, and that Father felt "very good" about the visit afterwards.
Father testified that he has attended one doctor's appointment for Child and missed one doctor's appointment. Father missed one appointment because he was upset with Mother for choosing not to speak with him. Father explained that he does not have a working phone at this time and has to borrow a phone in order to check his email or to attend video calls. Father testified that he has explained this to Mother and that he is working on getting a working phone. Father stated that Mother has gotten upset with Father because he has not given her a set schedule but Father insists that he has to work around Mother's schedule.
Father testified that he had borrowed a phone from someone to attend the hearing.
Father testified that before he went to prison, Child spent every other weekend with Father at Father's home. Those weekend visits started when Child was two or three years old after the parents' relationship ended. Prior to that time, Father lived with Mother and Child.
Father testified that he gets along very well with Child. Father testified that both he and Paternal Grandmother are researching Autism to learn more about it. When asked what "stimming" is, Father explained that he didn't exactly know, but that he thought it was when Child puts his arms in the air and moves them. Father stated that Child gets along well with Father's other son, who also visits Father on the weekends. Father further stated that Child has a good relationship with Paternal Grandmother and Uncle who also live in Father's home.
Stimming is a term used for self-stimulation, which usually involves repetitive movements or sounds. Individuals with Autism often partake in stimming when they experience emotions, including happiness, sadness, anxiety, and anger. https://www.medicalnewstoday.com/articles/319714#stimming_causes
Father lives with Paternal Grandmother and Uncle in a three-bedroom, 2,100 square foot house. Father testified that the house has a full basement and a playroom for the children to use. Father testified that he has the entire basement to himself, and when Child stays over, he would have his own bed to sleep in, within close proximity to Father. Father testified that there are no doors to get outside of the basement except by going up the stairs.
Father testified that he provided support for Child in the past when Father and Mother were together. Father testified that when he and Mother no longer lived together, "things at [Mother's] were [Mother's] and things at [Father's] were [Father's]." Father stated that he would help with diapers and "things" when he could, but that he was going through a bad addiction at the time. Father testified that he is starting a new job soon and is opening a bank account for Child and plans to support Child.
Father testified that there is no domestic violence between Mother and Father, nor between anyone in Father's home. Father testified that he has no criminal history outside of Delaware.
Father called D P ("Paternal Grandmother") as a witness on Father's behalf. Paternal Grandmother testified that Child was comfortable visiting Father at Father's house prior to Father being incarcerated. Paternal Grandmother testified that she did not see Child at all while Father was in prison and has only seen Child one time since Father was released. Paternal Grandmother stated that Paternal Great-Grandmother has only seen Child two or three times in the past year. Paternal Grandmother believes that Child would be safe and comfortable if he were to come over to Father's house. Paternal Grandmother further believes that Father could provide for Child and take care of him.
Paternal Grandmother testified that she had a DUI five or six years ago and was arrested and detained two years ago after a physical altercation with a friend. Paternal Grandmother was charged with offensive touching for the physical altercation. Paternal Grandmother testified that she used cocaine in the past, but has not done drugs in about twenty years. Paternal Grandmother testified that she has not had alcohol since she got the DUI five or six years ago.
Mother's Position
Mother testified that she does not think Father is prepared to have Child for as much time as Father seeks. Mother stated that Child has severe asthma in addition to Autism, and that she believes that Father is uncomfortable with some of Child's stimming and behaviors. Mother believes that Father is patient and can co-parent when Mother is with Father, but is worried that that Father will not be able to handle it on his own. Mother initially indicated that she is concerned because Father cannot call Mother to ask questions due to Father's phone issues, but when Father asked Mother if it would make a difference if Father had a working phone and could call Mother, Mother stated that it would not.
Mother believes that Father's visitation with Child should increase gradually. Mother proposed that Father visit with Child at her house two to three times a week for two hours at a time, then to increase it to six hours at a time, and then to transition to Father's home where Mother would like to accompany Child as a support in the beginning.
Mother testified that Child has had five doctor's appointments since Father was released from prison and that Father has only attended one. Mother stated that Father gets emails that state when the appointment is and contain the link to attend the virtual appointment.
Mother testified that she thinks Father needs to learn Child's patterns and what Child is able to do before Mother will be comfortable with Father having increased visitation with Child on his own. Mother explained that she is worried about what will happen if Child does something and it interrupts Father. Mother explained that when Child is left alone for longer than five minutes, he will often take his diaper off and relieves himself no matter where he is. Mother explained that Child will also elope when he is angry. Mother expressed that she does not want Child left alone for any lengthy period of time.
Mother admitted that Father has asked to see Child repeatedly since he was released from prison and that she has told him "no". Mother testified that the Tuesday and Thursday visitation that Father is currently having with Child has only been occurring for two weeks. Mother told Father that he would have to file for visitation if he wanted to see Child. Mother does not trust Father with Child.
Mother lives in a 2,000 square foot home with her two daughters, Child, and Maternal Grandfather. Mother testified that neither of her daughters have a criminal history and that Maternal Grandfather is on Hospice with end stage COPD.
Mother testified that she suffers from Anemia, Autoimmune Rheumatic Inflammatory Disease, nerve damage in her right ear, a meningioma on her brain, anxiety, and depression. Mother testified that she believes Father has mental health issues as well.
Mother testified that there is no domestic violence with Father or any individuals living in the home.
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 unless the Court finds, after a hearing, that contact of the child would endanger the child's physical health or significantly impair his or her emotional development." 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)(emphasis added).
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.
ANALYSIS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father wishes to see Child more frequently and requests that visitation be increased. Father testified that he would like the Child to visit his home every other weekend for six hours, from 12:00 p.m. until 6:00 p.m., and for an overnight visit once per month. Father also wishes to rotate holidays and the Child's birthday with Mother.
Mother believes that Father's visitation with Child should increase gradually. Mother proposed that Father visit with Child at her house two to three times a week for two hours at a time, then to increase it to six hours at a time, and then to transition to Father's home where Mother would like to accompany Child as a support in the beginning.
Factor one is neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Child is five years old and has Autism. The Child is too young to express his wishes as to his residential agreements.
Factor two 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;
Father testified that Child gets along very well with him. Father testified that he is doing his best to learn more about Autism and that he is able to handle when Child gets upset. Father testified that Child and his brother, who also stays with Father on the weekends, get along well. Father further testified that Child gets along well with Paternal Grandmother and Paternal Great Grandmother, despite infrequent contact with both of them while Father was in prison.
Mother testified that she has a close relationship with Child. Mother has been taking care of Child since he was born. Mother explained that she knows Child's patterns and what upsets him. Mother testified that Child gets along fine with his sisters and Maternal Grandfather who live in the house with Mother. Child has Autism and requires a routine. Mother is able to provide that routine and has done so throughout his life. The relationship with Father and Father's family likely will increase as Child spends more time with Father, but for the present time Mother has a more significant relationship with Child.
Factor three favors Mother.
4. The child's adjustment to his or her home , school and community;
Father testified that Child used to stay at his house every other weekend. Both Father and Paternal Grandmother testified that Child was very comfortable at Father's house.
Mother testified that Child has lived with Mother his entire life.
Child has not been around Father, without Mother, in over a year. Child has not been at Father's house in over a year. Moreover, Father's living space in the home is in the basement which has no exit to the exterior of the house other than climbing the stairs. It is a difficult transition for any child when a parent leaves or enters a child's life. In this case, Father became absent in Child's life for almost an entire year due to incarceration, and then had to be reintroduced. For a child with Autism, transitions can be even more difficult. While Child used to stay at Father's home, he stopped doing so for a substantial period of time. Child will have to readjust to Father's home.
Factor four favors Mother.
5. The mental and physical health of all individuals involved;
Father testified that he is in good physical health. However, Father (and Maternal Grandmother) also testified that he had issues in the past with substance abuse, specifically - "bad addiction" - which causes the Court some concern. Mother testified that she believes Father is depressed and struggles with his mental health. Father did not attempt to rebut Mother's assertions. Maternal Grandmother offered testimony concern herself and two of her children that suggests there is something that may require more in depth study.
Mother suffers from Anemia, Autoimmune Rheumatic Inflammatory Disease, nerve damage in her right ear, a meningioma on her brain, anxiety, and depression. Mother testified that none of these conditions are life-threatening.
Child has Autism and severe Asthma.
Factor five 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."
Father testified that that he provided support for Child in the past when Father and Mother were together. Father testified that when he and Mother were no longer together, "things at [Mother's] were [Mother's] and things at [Father's] were [Father's]." Father stated that he would help with diapers and "things" when he could, but that he was going through a bad addiction at the time. Father testified that he is starting a new job soon and will be opening a bank account for Child and helping Mother provide for Child.
Mother testified that she has cared for and provided for Child his entire life. Mother stated that she was Child's sole caretaker while Father was incarcerated.
There was contradicting testimony regarding how many doctors' appointments Father has missed since he was released from prison. According to Father, he has only missed one of which he was aware. According to Mother, Father has missed four appointments. Mother stated that the appointments are emailed to Father with a link to attend virtually. Father testified that he does not have a working phone and cannot check email or attend virtual meetings unless he borrows a phone.
Factor six weighs slightly in favor of Mother.
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.--------
Both parties testified that there is no domestic violence between Mother and Father. Father testified that there is no domestic violence in his home.
Factor seven is neutral.
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.
Father was recently incarcerated for approximately eleven months after entering a plea to robbery in the second degree, possession of a deadly weapon during the commission of a felony, conspiracy in the second degree, and wearing a disguise during a robbery.
Mother does not have a criminal record that would cause the Court concern in deciding visitation of the Child.
Factor 8 weighs in favor of Mother.
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 interests of Child primarily, and the parents secondarily. From the evidence presented during the hearing on October 6, and upon consideration of the enumerated best interest factors, the Court finds that factors 3, 4, 6, and 8 weigh in favor of Mother. Factors 1, 2, 5, and 7 are neutral. Of all of the best interest factors, factor 4 and 6 carry the most weight in this case.
It is important that the Child has frequent and meaningful contact with both Mother and Father, but Father must be reintroduced into Child's life at a pace that will work for the Child. Pushing too must visitation on the Child too quickly could have a negative impact on the Child and his adjustment. The Court understands that Father wishes to see Child more after so much time apart, but must acknowledge that it is in the Child's best interest to do so incrementally.
The Court recognizes that Mother and Father get along fairly well, but Mother's approach better addresses Child's needs. The Court encourages Mother to have Father do the caretaking of Child while Father is present. This will simultaneously make Father more comfortable with Child's needs, and will make Mother more comfortable with Father's ability to take care of Child.
ORDER
IT IS HEREBY ORDERED this 9th day of October 2020:
1. Father will have contact with Child on an incrementally increasing schedule.
a. For the first month, Father will have contact with Child two days per week, three hours per visit, in Mother's home with Mother present; then
b. For the second month, Father will have contact with Child for three days per week, three hours per visit, in Mother's home with Mother present; then
c. For the third and fourth months, Father will have contact with Child two days per week for three hours per visit in Mother's home with
Mother present, AND one day per week for three hours in Father's home with Mother available by phone; then
d. For fifth and sixth months, Father will have contact with Child three days per week for three hours per visit in Father's home with Mother available by phone; then
e. If, in the joint opinion of the parents, Child is ready, Father will have an overnight visit with Child in Father's home every weekend.
2. This Order may be modified by joint agreement of the parties.
THIS IS A FINAL ORDER.
IT IS SO ORDERED this 9th day of October 2020.
/s/Michael W. Arrington
MICHAEL W. ARRINGTON
Judge cc: M R
C
File Date E-Mailed: October 9, 2020