Opinion
File No. CN19-01855 Case No. 20-16711
10-01-2020
P P , Petitioner, v. C P , Respondent.
P P , self-represented, C P , self-represented
ORDER ON PETITION FOR CUSTODY P P , self-represented, C P , self-represented, ARRINGTON, Judge.
On September 30, 2020, the Court conducted a hearing on the Petition for Custody in the interest of C P (born / /2019) ("Child"). Petitioner P P ("Father") self-represented, and Respondent C P ("Mother"), self-represented, participated in the hearing.
Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
On August 5, 2020, Mother filed a Petition for Protection From Abuse ("PFA") against Father. On August 5, 2020, a Temporary Ex Parte PFA Order was issued against Father. On August 12, 2020, Father filed a Petition for Custody. On August 17, 2020, Father filed a Petition for a PFA against Mother.
Dkt. #8.
Dkt. #13.
Dkt. #14.
Dkt. #19.
On September 9, 2020, Mother's Petition for PFA against Father was denied. On September 9, 2020, Father's Petition for PFA against Mother was granted and a PFA Order was issued against Mother until September 9, 2021.
Dkt. #27.
Dkt. #28.
JURISDICTION
The Petition for Custody was filed on August 12, 2020. The Child has resided in Delaware since she was born. Mother and Father continue to reside in New Castle County, Delaware. Delaware has jurisdiction to make an initial child custody determination as Delaware is the home state.
13 Del.C. §1920(a)(1).
TESTIMONY OF THE PARTIES
Father's Position:
Father is requesting joint custody of the Child as he feels that Mother is keeping the Child from him for reasons that "do not make sense" to him. Father would like primary placement of the Child. Father would like Mother to follow the PFA Order and not contact him when it is not about the Child.
Father testified that the Child is a "daddy's girl," lights up every time she sees him, and cries when she has to leave him. Father testified that Child hasn't seen his side of the family as much as Father would like, but that the Child has a great relationship with those members of Father's family that Child does see. Father lives with his brother, D H , his brother's eleven year old son, and Father's ten year old son. Father testified that Child gets along great with everyone in Father's home. The Paternal Grandmother lives in Wilmington and Child sees her once or twice per week. Child has her own room at Paternal Grandmother's house and she will go there on Saturday's for a few hours when Father has to work.
Father testified that Child is very comfortable in Father's home. Father stated that Child knows where her room is, knows where the bathroom is, and knows where to go and to do things when she is in Father's house. Child has her own room, which is a middle room that has two doors. Childs' room contains her crib, her toy box, and her Minnie Mouse table. Father testified that Mother has a concern with the second door in Childs' bedroom and Father agreed to seal it of by locking it and making the other individuals in the home walk around the room.
Father testified that his physical health and mental health are both fine. Father testified that he believes Mother is in good physical health, but that her mental health is struggling. Father stated that Mother has "daddy issues" along with abandonment issues and has threatened to kill herself multiple times.
Father testified that he and Mother met in 2014 when they were both working at Bahama Breeze in Christiana. Father then moved to New York for a few years, but moved back to Delaware in 2018. Father and Mother began dating in November 2018. Father stated that when Mother was first pregnant, he was supportive but Mother did not want to keep the baby and had an abortion. After Mother and Father had ended their relationship, Father testified that Mother found out she was pregnant again. Father was not supportive but Mother decided to keep the child.
Father admitted that he did not support Mother during her pregnancy, but testified that he has supported the Child since the day she was born. Father stated that he brought formula and diapers and would come to Mother's house when she had to go to work to watch the Child.
Father has a PFA Order against Mother. Father's PFA Order was granted after Father was able to prove that Mother threw a bottle at him, pulled a chain off his neck, posted disparaging comments about him multiple times on social media, threatened to have someone beat him up, threatened to interfere with his employment, hit him in the face, spit on him, tried to break his laptop, and continued to contact him multiple times. Father testified that Child was present for the incidents that occurred which was a factor that encouraged Father to file for a PFA Order. Father stated that the same type of behavior will happen in front of the Child and Mother will go into "nasty details" in front of the Child.
Mother's Position
Mother is requesting joint custody and primary placement. Mother would like to have every other weekend with the Child. Mother testified that she hired a lawyer to appeal the PFA decision. Mother also testified that it is hard not to talk to Father because she is pregnant with his child.
Mother lives with her two older children, ages ten and twelve years old. Each child has their own bedroom at Mother's house. Mother testified that she owns a four bedroom house and that Child has lived there since she was born. While it is an older house, Mother had made sure to keep it safe for Child since Child is young.
Mother testified that Child gets along great with her siblings, as well as her grandparents and Aunts and Uncles. Maternal Grandmother and Maternal Grandfather live in Kennett Square, Pennsylvania and Child sees them about three times per month.
Mother agrees that Father is in good physical health. Mother has not been able to see a doctor yet about her pregnancy, but has an appointment in mid-October. Mother has Rheumatoid Arthritis. Mother testified that having an abortion was very hard on her mental health and she plans to keep the baby. Mother stated that she did not threaten to harm herself, but testified she became very depressed after she had an abortion and "didn't want to be here." Mother stated that she never took any steps to harm herself. Mother further testified that she went through horrible post-partum depression when Child was approximately eight months old and she started taking Prozac and seeing a therapist. Mother no longer takes Prozac, but continues to see a therapist once weekly for abandonment issues.
Mother filed a PFA petition against Father but the PFA was denied. Mother testified that there have been several documented times where Father has put his hands on Mother and she called the police but did not press charges.
LEGAL STANDARD
Since the Court has never entered a final order on custody, residency, and visitation for the child 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 child'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 child'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.
ANALYSIS: CUSTODY FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father seeks joint custody and primary placement. Father currently has custodial time with the Child Thursday through Sunday. Father would like to continue that schedule, or have Child from Wednesday at 3:00 p.m. until Sunday at 5:00 p.m.
Mother agrees with joint legal custody but objects to Father's request for primary placement. Mother seeks primary placement herself. Mother wishes to have the Child every other weekend.
Factor one is neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Child is only nineteen months old. The Child is too young to express her wishes as to her custodial and residential agreements. However, the Child seems to enjoy spending time with both parents and is happy with both parents.
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 he shares a great relationship with the Child. Father testified that Child is a "daddy's girl" and lights up whenever she sees him.
Father testified that Child gets along with the other members of Father's household: her uncle, her cousin, and her brother. Father testified that Child sees Paternal Grandmother once or twice a week, and that Child will stay with Paternal Grandmother for several hours on days that Father has to work.
Mother testified that Child gets along with Mothers two older children that live in Mother's home. Mother testified that Maternal Grandmother and Maternal Grandfather are very active in Child's life and they see Child about three times per month. Mother stated that Child often sees her aunt and uncles and gets along great with them, but especially "clings to the women."
Factor three is neutral.
4. The child's adjustment to his or her home , school and community;
Father testified that Child is adjusted very well to Father's home. Child has her own room at Father's house. Child's room is a middle room that has two doors, one of which Father keeps closed and locked. Child has her crib, her toy box, and her Minnie Mouse table in her room. Father feels that Child knows where her room is, where the bathroom is, where the food is located, and where to go in the house to accomplish whatever Child is trying to do.
Mother testified that Child is adjusted very well to Mother's home. Child has been residing at Mother's home since she was born. Child has her own room at Mother's house, which is downstairs where Mother's room is located.
Child is too young to be in school or out in the community.
Factor four is neutral.
5. The mental and physical health of all individuals involved;
Father testified that he is in good physical and mental health. Mother agreed that Father is healthy.
Mother has Rheumatoid Arthritis but is otherwise physically healthy. Mother is currently pregnant with another child. Mother has struggled with postpartum depression and taken Prozac in the past. Mother currently attends therapy once weekly. Father testified that Mother has threatened to kill herself multiple times. Mother denies Father's allegations but admits that she was depressed after having an abortion and "didn't want to be here," but has never taken steps to harm herself.
While Mother has struggled with her mental health in the past, she appears to be mentally well at the present. Mother has taken proactive steps to achieve mental wellness. The Court recommends that Mother continues weekly therapy while it is benefiting her.
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 admitted to the Court that he was not involved while Mother was pregnant but testified that he has been there for Child since she was born. Father testified that he bought formula and diapers for the Child and would go to Mother's house to watch Child when Mother was supposed to go to work. Mother testified that Father was not around for six months, but did not provide any further details to support the allegation.
Both Father and Mother provide support and care for the Child. Both parents care for the Child and want what is best for her. Neither party presented any evidence that the other has not met their responsibility to the Child.
Factor six is neutral.
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.
Mother filed a PFA petition in August 2020, but the petition was dismissed for failure to present evidence to support her petition by a preponderance of the evidence. Mother testified that Father has put his hands on Mother multiple times, but did not provide further detail.
This claim by Mother includes facts that upon which the PFA was denied. --------
Father filed a PFA petition in August 2020. Father's PFA was granted. The Court found that Father was able to prove that Mother threw a bottle at him, pulled a chain off his neck, posted disparaging comments about him multiple times on social media, threatened to have someone beat him up, threatened to interfere with his employment, hit him in the face, spit on hi,, tried to break his laptop, and was continuing to contact him multiple times.
Factor seven weighs in favor of Father.
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.
Neither party has a criminal record that would cause the Court concern in deciding custody and visitation of the Child.
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 interests of Child primarily, and the parents secondarily. From the evidence presented during the hearing on September 30, 2020, and upon consideration of the enumerated best interest factors, the Court finds that factor 7 weighs in favor of Father. Factors 1, 2, 3, 4, 5, 6, and 8 are neutral.
These are two parents who have great potential. The minor issues can be resolved by active listening to understand the other parent's views and feelings. Domestic violence is the only issue that favors one side of this case. Mother needs to take the time to understand what she has done and what seemed to "trigger" it. Nevertheless, this is a case for which the Contact Guidelines are very appropriate. Under the Guidelines, shared placement is recommended for children from ages 18 months to five years. The Court will accept this recommendation and enter an Order consistent with the Guidelines.
Based upon all of the factors and the totality of the evidence provided, the Court awards the parties JOINT LEGAL CUSTODY of Child as suggested by the parents.
As joint custodians, the parties must discuss all of the major decisions in Child's life before reaching a decision. These decisions include, but are not limited to Child's support, care, nurture, welfare and education.
The parties shall have shared residential placement of the Child. Mother shall have custodial time two days per week and every other weekend from 4:00 p.m. on Friday through Monday morning. Father shall have custodial time two days per week and every other weekend from 4:00 p.m. on Friday through Monday morning.
The parents shall discuss their summer plans and agree on two non-consecutive weeks of vacation with the Child for each parent. Mother shall make her selection by March 1st of each odd-numbered year. Father shall make his selection by March 1st of each even-numbered year. The selection shall not interfere with Mother's Day, Father's Day, or any holiday awarded to a parent.
ORDER
IT IS HEREBY ORDERED this 1st day of October 2020:
1. Mother and Father shall have JOINT LEGAL CUSTODY of Child. As joint custodians, the parties must discuss all of the major decisions in Child's life before reaching a decision.
2. Mother and Father shall have SHARED RESIDENTIAL PLACEMENT. Mother shall have custodial time with Child overnight every Monday, Tuesday, and every other weekend from 4:00 p.m. on Friday through Monday morning.
3. Father shall have custodial time with Child overnight every Wednesday, Thursday, and every other weekend from 4:00 p.m. on Friday through Monday morning.
4. Summer Vacation. Each parent shall have two non-consecutive weeks of summer visitation with the Child. Mother shall select her dates by March 1st in all odd-numbered years. Father shall select his dates by March 1st in all even-numbered years. No selected vacation shall interfere with Mother's Day, Father's Day, or any awarded holiday as set forth in Paragraph 7, below.
5. Holidays. Father shall have the children on the holidays in Column 1 on odd-numbered years and the holidays in Column 2 in even-numbered years. Mother shall have the children on the holidays in Column 2 on odd-numbered years and the holidays in Column 1 in even-numbered years.
| Column 1 | Column 2 |
|---|---|
| Easter | Memorial Day Weekend |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving |
| Christmas Eve | Christmas Day |
UNLESS MUTUALLY AGREED TO THE CONTRARY:
a. Easter, Memorial Day, Labor Day, and Thanksgiving shall be from 9:00 a.m. until 7:30 p.m. on the holiday.
b. Fourth of July shall be from 9:00 a.m. on July 4th until 9:00 a.m. on July 5th.
c. Halloween shall be from 5:00 p.m. until 8:00 p.m. on October 31st if there is "trick or treating" in the neighborhood.
d. Christmas Eve shall be from 9:00 a.m. on December 24th until noon on December 25th.
e. Christmas Day shall be from noon on December 25th until 7:30 p.m. on December 26th.
6. Mother's/Father's Day. On Mother's Day and Father's Day, no matter whose turn for contact, the Child shall be with the parent whose holiday is being celebrated from 9:00 a.m. until 7:30 p.m.
7. The parties may mutually agree to modify this schedule but only so long as both are in agreement.
THIS IS A FINAL ORDER.
IT IS SO ORDERED this 1st day of October 2020.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge cc: P P
C P
File Date E-Mailed: October 1, 2020