Opinion
File No. CK10-03118 Petition No. 17-37317
01-29-2019
P---- A.T-----, Petitioner, v. C---- W-------, Respondent.
CUSTODY DECISION and ORDER
In the Interest of:
C----A-- W------- (DOB: 05/13/04)
T--- W------- (DOB: 04/01/05)
C---- W-------, JR. (DOB: 05/03/06)
Before the HONORABLE LOUANN VARI, JUDGE of the Family Court of the State of Delaware:
P---- A. T----- ("Mother") and C---- W------- ("Father") are the parents of three children: C----A-- W-------, born May 13, 2004; T--- W-------, born April 1, 2005, and C---- W-------, Jr., born May 3, 2006 (together, "the children"). Mother and Father were previously married and they lived together with the children until about five years ago. In 2016, Mother and Father agreed to maintain joint legal custody of the children. They also decided the children would live primarily with Mother and visit with Father as he and Mother mutually agreed. Mother and Father's agreement was entered as an Order of this Court on April 1, 2016 ("the 2016 Custody Order").
On December 14, 2017, Mother filed the captioned Petition to Modify Custody and Visitation. Father filed an Answer to the Petition on January 16, 2018. A case management conference was held on April 13, 2018 and the Petition was scheduled for hearing on November 1, 2018. Mother appeared for the November 1st hearing with her attorney, Tara Blakely, Esquire. Father appeared for the hearing without legal representation. Mother and Father both testified. The Court reserved its decision at the end of the evidentiary hearing and now grants Mother's Petition to modify the 2016 Custody Order.
Father is incarcerated at a work-release center. At the beginning of the hearing, he requested that it be rescheduled because he had an initial intake appointment to begin employment services through the center. The Court denied his request, noting that the time allotted to complete the custody hearing would not interfere with Father's appointment. In fact, the hearing was completed about 1½ hours before Father's scheduled e appointment.
FINDINGS OF FACT
Some of the facts are undisputed. Father was convicted of felony aggravated menacing of Mother after an incident in August 2016. Mother explained that Father came to her workplace and attempted to attack her with a weapon. Father was charged with multiple felonies, including stalking with a deadly weapon and reckless endangerment. He was also charged with criminal contempt of the protection from abuse order then in effect for Mother's protection. Father resolved the 2016 charges by entering a Robinson plea to a single count of aggravated menacing. He has been incarcerated since 2016 and has now reached the work release program. Mother and Father's mother, M--- G------ ("Grandmother"), enjoy a good relationship, and Mother trusts Grandmother to protect the children. She has permitted Grandmother to take them to prison to visit Father throughout his incarceration. Mother also acknowledges the children enjoy visiting Father and she believes they should continue to do so.
Mother was not able to specifically identify what sort of weapon Father had, variously describing it as a crowbar, machete or possibly even a gun.
Robinson v State, 291 A.2d 279 (Del.1972) In Robinson v State, the Delaware Supreme Court eliminated the prior requirement that a defendant admit his actual commission of a charged offense in order to plead guilty to it. Rather, it is enough that the defendant's plea be voluntarily, knowingly and understandably made and that there is a factual basis for it. See also North Carolina v Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).
Father has been diagnosed with bipolar disorder and schizophrenia. He initially testified Mother was lying about his conduct during the 2016 crime leading to his incarceration. Father eventually conceded he did not remember the incident, an acknowledgment consistent with his Robinson plea. The 2016 incident is not the only time Father has been violent with Mother. Mother explained Father has physically abused her "many times." Among others, she described an incident in which Father put a knife to her throat and another in which he pushed her to the floor. Father specifically denies these events, and generally denies he has ever mistreated Mother (or at least, physically abused her in front of the children).
Mother's description of the events leading to Father's conviction is also consistent with the contemporaneous charging documents.
Mother's testimony is more credible and persuasive. First, it is consistent with the Orders of Protection from Abuse ("PFA") she has sought and been awarded against Father by this Court. Mother filed her first PFA Petition against Father in November 2013. Among other things, she alleged Father had pushed her to the ground. The PFA Petition was granted after an evidentiary hearing, and a year-long PFA Order was entered against Father for Mother's protection. In another Court appearance in February 2014, Father admitted he had violated the PFA Order by entering Wife's home while "he knew it was unlawful to do so." Several months later, Wife filed a motion asserting Husband had threatened her with a knife in violation of the PFA Order. The Court held another evidentiary hearing. It found credible Wife's testimony that Father entered her car during a visitation exchange for the children in June 2014 and held a knife to her throat. The Court extended the expiration date of the PFA Order to its current term—September 2, 2114, longer than the parties' lifetimes.
W------- v W-------, Del. Fam., C.A. No. CK10-03118, 13-36009, Blades, C. (November 26, 2013).
Id., 13-36009 & 13-36054, Page 3, Pyott, J. (April 29, 2014).
Id., 14-21106, Vari, C. (September 2, 2014). Delaware's criminal justice records confirm Father was charged with several crimes as a result of this incident. He pled guilty to terroristic threatening.
Second, Father's credibility is compromised by his criminal history, which includes convictions for crimes of dishonesty or false statement. Third, Father acknowledges he has misused Percocet in the past. This, in combination with his mental illness, made it impossible for him to recall his violence against Mother in the August 2016 workplace incident leading to his present incarceration. It now raises doubts about his ability to remember—and credibly deny—the other violent behavior Mother described. The Court concludes that Father has, in fact, repeatedly abused Mother.
D.R.E. 609(a)(2). Specifically, Father was convicted of falsifying business records in 2015 and of theft by false pretenses and issuing a bad check in separate incidents in 2014. Mother was also convicted of misdemeanor forgery in 2005. This conviction is less damaging to Mother's credibility because it is her only conviction for a crime of dishonesty and occurred when C----A-- was just a few months old, some 13 years ago.
Additional findings of fact are included in the Discussion below.
DISCUSSION
The 2016 Custody Order was entered with Mother and Father's agreement. As a result, it may be modified at any time "in accordance with the standards set forth in [section 722]" of Title 13 of the Delaware Code. Section 722 requires the Court decide a child's custody and residential arrangements in accordance with the child's best interests. It also directs the Court to "consider all relevant factors," including these.
DEL. CODE ANN. tit. 13, § 729(b) (2009).
DEL. CODE ANN. tit. 13, § 722(a) (2009).
(1) The wishes of the children's parents as to custody and residential arrangements.
Mother requests sole legal custody of the children. She agrees Father should have regular visitation with them, including every weekend, but asks that exchanges of the children occur at a family visitation center. She also requests that visits occur at Grandmother's home, where Father intends to live after his release from incarceration. Father wants the 2016 Custody Order to remain in place.
(2) The wishes of the children as to their custody and residential arrangements.
The Court did not interview the children. Mother acknowledges that they enjoy their visits with Father and that she has permitted the children to visit him during his incarceration. For purposes of deciding Mother's Petition, the Court assumes Father's belief about their wishes is true. Specifically, Father explained that the children want to continue visiting him and do not want Mother to have sole custody of them.
(3) The interaction and interrelationship of the children with their parents, grandparents, siblings, persons cohabiting in the relationship of husband or wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interest.
Father lived with Grandmother after he and Mother separated, and the children saw Father at Grandmother's house nearly every weekend until his incarceration in August 2016. With Grandmother's assistance and Mother's agreement, the children have continued visiting Father in prison a few times each year. Father also talks regularly with the children by telephone. Mother acknowledges C----A--, T--- and C---- enjoy seeing Father and she wants them to maintain their relationship with him. Mother also trusts the children in Grandmother's care; from this the Court infers the children's relationship with Father's mother is also strong and healthy. No specific evidence was presented about the children's relationships with their other extended family members.
Father also saw the children at a family visitation center for a few months.
Father has several concerns about Mother's care of the children. He has raised many of them in prior petitions he filed against her, mostly before the 2016 Custody Order in which Father agreed the children should continue to live primarily with Mother. The Court did find that Mother called C----A-- selfish and told her to move out of their home in 2013; C----A-- stayed with Grandmother for a few days before returning to Mother's home. The Court also concluded these acts did not amount to abuse by Mother. Father now alleges that Grandmother cares for the children "80% of the time"; that Mother again recently forced C----A-- out of the home; that Mother physically disciplines the children and neglects them; and that the children tell Father they quarrel with Mother "all the time." Grandmother did not testify on Father's behalf, and there is only hearsay evidence supporting Father's concerns. Mother also testified that the Delaware Division of Family Services ("DFS" or "the Division") has investigated allegations against her several times since she and Father separated, including claims that she physically and sexually abused the children. Mother believes Father made these reports; Father denies doing so; and representatives from the Division did not testify at the custody hearing. The evidence does not establish that Father has made allegations of child abuse against Mother to continue his mistreatment of her. It is unrefuted, however, that the children have remained in Mother's continuous care despite multiple investigations by DFS. In short, Father failed to prove that Mother abused or significantly mistreated the children before, or since, his incarceration.
W------- v W-------, Del. Fam., C.A. No. CK10-03118, 13-33279, Pyott, J. (November 25, 2013).
Id.
The Court itself once referred Mother to the Division concerning Father's claim that she hit the children with a belt in 2012. Id.
(4) The children's adjustment to their home, school and community.
Mother works full-time outside the home as a medical assistant. She and the children share a three-bedroom townhome in Dover. T--- attends Dover High School where she is supported by an individualized education program ("IEP"). C---- and C----A-- attend Central Middle School. Mother reports that all three children do well in school. No evidence was presented about their activities or other community involvement.
(5) The mental and physical health of all individuals involved.
Other than T---'s learning difficulties, all of the children are healthy. So is Mother. Father suffers from bipolar disorder and schizophrenia for which he now takes Zyprexa. The Court notes that Father's condition is apparently severe enough to disable him, at least periodically, from many life activities: on August 2, 2016, before the events leading to his incarceration, Father filed a Petition to reduce his support obligation to the children, explaining that he had developed "mental health issues" and was "declared disabled and can't work." Father testified that he has completed an anger management program and two substance abuse treatment programs while incarcerated (the Key and Crest programs). He began, but did not complete, a program of interventions to reduce domestic violence before he was incarcerated.
W------- v W-------, Del. Fam., C.A. No. CK10-03118, 16-24734.
Mother testified Father did not drink alcohol when they were married, but did misuse prescription medications.
(6) Past and present compliance by both parents with their rights and responsibilities to their children under section 701 of Title 13 of the Delaware Code.
Father maintained regular contact with the children after he and Mother separated, and Mother has supported his visits with the children despite significant mistreatment she has experienced at Father's hands. Father worked at Perdue for parts of 2015 and 2016 and paid child support to Mother for at least some of this time. Otherwise, as between Mother and Father, Mother has provided all of the children's financial support and most of their day-to-day care since the parties separated—and all of it since Father's incarceration two years ago.
(7) Evidence of domestic violence as provided for in chapter 7A of Title 13 of the Delaware Code.
Father has filed four PFA Petitions against Mother. He failed to appear for the evidentiary hearing to consider two of them (in December 2010 and January 2015) and failed to prove that Mother abused him after a hearing on another Petition (in October 2013). Father was granted a PFA Order against Mother after a hearing in November 2013. Mother's only PFA Petition against Father was granted the same day. The Court included temporary care arrangements for C----A--, T--- and C---- as part of the cross-PFA Orders. These directed that the children would live with Mother, not Father. There is no evidence Mother has committed any act of abuse against Father since the 2013 cross-PFA Orders. Father has pled guilty to at least two crimes against Mother, including the felony for which he is currently incarcerated—a crime Father committed against Mother after the Court entered a lifetime PFA Order on her behalf.
Father has also filed petitions and motions in this Court repeatedly accusing Mother of lying about his abuse of her (including about the crimes to which he pled guilty) and of misusing the Court system to take advantage of him. A complete review of the docket reveals that Father has filed eleven original actions against Mother since 2010. Many have been dismissed because Father failed to appear to prosecute them; some have been denied for lack of evidence; and the Court granted Father a one-year PFA Order in 2013. In contrast, Mother has filed four prior actions against Father: a petition for divorce, granted in 2015; a petition for child support, granted in 2015; the PFA petition leading to her lifetime protection; and a petition for custody of the children, resolved by the 2016 Custody Order with Father's consent. Father has failed to support his accusations that Mother has, or has attempted, to misuse Court proceedings to her advantage. To the contrary, Father has begun nearly four times the court actions Mother has begun, and has failed to appear or failed to prove nearly all of them.
(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.
A review of Delaware's criminal justice records reveals Mother and Father each have many motor vehicle violations. Mother also pled guilty to misdemeanor forgery in 2005. Mother and Father were then each charged with several counts of theft, forgery and conspiracy in 2006: Father pled guilty to felony theft and felony possession of forgery devices, and Mother pled guilty to misdemeanor conspiracy. The 2006 misdemeanor conviction was Mother's last criminal conviction. Charges filed against her in 2013 for harassment and criminal contempt of a domestic violence protective order were dismissed; so was a charge filed against Father for criminal contempt of the cross PFA Orders. The State of Delaware then declined to prosecute charges filed against Mother in 2014 for terroristic threatening and criminal contempt of a protective order; it also dropped another charge against Father for violating the protective order. Finally, charges filed against Mother for conspiracy and theft by false pretense in 2016 were also not prosecuted.
As noted, Father was convicted of two felonies in 2006, and is currently incarcerated for his aggravated menacing of Mother at her workplace. In addition to his felony record, Father has the following misdemeanor convictions, most associated with the dismissal of many other related charges: terroristic threatening (2013); theft by false pretenses (January 2014); falsifying business records and failing to report a collision (occurring in March 2014); criminal contempt of a domestic violence protective order (April 2014); issuing a bad check (April 2014); terroristic threatening for brandishing a knife against Mother during a visitation exchange (June 2014); disorderly conduct (January 2016); and criminal mischief (August 2016). Father committed this final misdemeanor about three days before appearing at Mother's workplace to threaten her with a weapon. The State of Delaware dismissed or declined to prosecute at least eight additional sets of charges filed against Father in this Court alone between June 2011 and his incarceration in August 2016. Mother was the alleged victim in most of these unprosecuted charges, most of which concerned Father's compliance with the PFA Order issued for Mother's protection.
*****
Mother acknowledges the children have an established relationship with Father and want to continue seeing him (best interest factors 2 and 3). They also have a healthy and supportive relationship with their paternal grandmother (factor 3). Despite his repeated and unproved allegations against her, Father agrees the children should continue living primarily with Mother, and Mother agrees the children should see Father every weekend once he is released from jail (factor 1). The children appear well-adjusted to their current placement with Mother and with the contact they have had with Father during his incarceration (factor 4). These factors confirm it is in the children's best interests to continue living with Mother and to see Father on a regular weekend schedule.
The other best interest factors weigh heavily in favor of Mother's request for sole legal custody of C----A--, T--- and C----, and her request that visitation exchanges occur under supervision. While not expressly argued at trial, Father is a perP----tor of domestic violence: he was convicted of a felony offense against Mother---the conviction for which he is currently incarcerated. As a result, there is a rebuttable presumption against awarding Father sole or joint legal custody of the children. Father has not overcome this presumption. He acknowledges he has not completed a program specifically designed for perP----tors of family violence. Father also failed to demonstrate that it is in the children's best interests he maintain joint custodial responsibilities toward them: the Court is skeptical the children understand the difference between legal custody and their contact and visitation with Father (factor 2), and Father otherwise failed to demonstrate that maintaining his custodial responsibilities is in the child's best interests.
DEL. CODE ANN. tit.13, § 705A(a) (2009).
Nor are there extraordinary circumstances warranting the rejection of the presumption arising against Father. To the contrary, Father's mental health needs, his criminal history and his continued failure to accept responsibility for his violence toward Mother are compelling evidence there remains a significant risk Father will abuse Mother in the future. The successful exercise of joint legal custody requires parents have roughly equal ability to respect interpersonal boundaries and roughly equal motivation and willingness to negotiate parenting decisions in a non-violent, non-coercive, and instrumental way. When one of their parents lack these skills, children suffer because their other parent---the victim of domestic violence—is no longer free to make choices consistent with the children's welfare.
Id.
Here, the Court is persuaded the unrebutted presumption against Father's request to maintain his joint custodial rights is also consistent with a full consideration of the children's best interests: Mother should not be required to navigate joint custody with Father given his demonstrated, criminal, and unreformed willingness to use violence against her (best interest factors 7 and 8). Father's violence against Mother also requires the Court to decide "conditions for visitation that best protects the child[ren] and [Mother] from further violence." The weight of the evidence, particularly Father's willingness to violate the PFA Order entered for Mother's protection, convinces the Court that Mother's personal safety requires visitation exchanges occur in a way that reduces the opportunity for Father to have contact with Mother.
DEL. CODE ANN. tit.13, § 708A(a) (2009). --------
CONCLUSION
Mother's request to have sole decision-making authority concerning the children, is well supported by the evidence.
Accordingly, after considering all the relevant evidence, Mother's Petition is GRANTED.
IT IS ORDERED that sole legal custody of C----A-- W-------, born May 13, 2004; T--- W-------, Born April 1, 2005 and C---- W-------, Jr., Born May 3, 2006 is awarded to Mother, Petitioner P---- A. T-----.
IT IS FURTHER ORDERED that the children shall continue to live primarily with Mother.
IT IS FURTHER ORDERED that Father shall visitation with the children every weekend upon his release from incarceration.
IT IS FURTHER ORDERED that visitation exchanges shall occur through the Dover Family Visitation Center. A referral to the Center is attached. Father is responsible for contacting the Center to initiate services and is responsible for any cost associated with the Center's use.
IT IS SO ORDERED, this 29th day of January, 2019.
__________
//s// Judge Louann Vari LV:mg
cc: Litigants
Date distributed: __________