Opinion
File No. CN16-02314 CPI No. 16-09218 CPI No. 16-28451
05-08-2017
R--- F---- - -------- -- --- -- N----- , DE ----- Petitioner v. M----- C---- --- -------- ---- N-----, DE ----- Respondent
Attorney Dana Reynolds, Esq. Attorney Joseph Wahl, Esq.
CIVIL DISPOSITION
Nature of Proceeding
Petitions for Custody Attorney
Dana Reynolds, Esq. Attorney
Joseph Wahl, Esq. [ ] Announced in Court [×] Decision Reserved ORDER
Before the HONORABLE JENNIFER B. RANJI, JUDGE of the Family Court of the State of Delaware:
PROCEDURAL HISTORY
Pending before the Court are Cross-Petitions for Custody. The first Petition was filed on March 29, 2016 by R--- F---- ("Mother") against M----- C---- ("Father"). The second Petition was filed on September 14, 2016 by Father against Mother. Both Petitions were filed in the interest of the parties' minor son, A---- C---- ("A----"), born ------- --, 2015. On October 14, 2016, Mother filed an Answer to Father's Petition. On November 3, 2016, Mother filed a Motion and Affidavit for Emergency Ex Parte Order alleging that A---- had bruises and scratches on his body after he came home from visitation with Father. The Court granted the Order, suspended Father's visitation, and scheduled a hearing for November 9, 2016. Following the hearing on November 9th, the Court issued an Interim Order granting Mother and Father joint legal custody and awarding Mother primary residency. Father was granted supervised visitation every other Saturday and Sunday from 9:00 a.m. until 5:00 p.m. and every Wednesday from 4:00 p.m. until 8:00 p.m. Visitation was ordered to be supervised by Paternal Grandparents. A full hearing on the ex parte Order was scheduled for January 6, 2017. After the full hearing, the Court issued a second Interim Order which continued joint legal custody and primary residency with Mother. The Court, however, modified Father's visitation with A---- to every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and required that Father exercise his visitation weekends at Paternal Grandparents home. Trial on the Cross-Petitions for Custody was then scheduled for February 17, 2017.
R--- F---- v. M----- C----, CN16-02314; 16-28451, 16-09218 (Del. Fam. Ct. Nov. 14, 2016)(Interim Order)(J.Ranji). Prior to the Court's November 14, 2016 Interim Order, the parties had shared custody of A----, exchanging primary residency every week, pursuant to a temporary custody order that was put in place as a result of a Protection from Abuse Order entered against Mother on August 19, 2016.
Id.
Id.
R--- F---- v. M----- C----, CN16-02314; 16-28451, 16-09218 (Del. Fam. Ct. Jan. 18, 2017)(lnterim Order)(J. Ranji).
Id. During trial on February 17, 2017, counsel agreed that during the January 6, 2017 hearing, the Court, on the record, awarded Father visitation every weekend, as opposed to every other weekend as noted in the January 18, 2017 Interim Order. The parties also agreed that Father was, in fact, receiving visitation with A---- every weekend.
DISCUSSION
The Court held Trial on February 17, 2017 for which Mother appeared, represented by Dana Reynolds, Esquire, and Father appeared, represented by Joseph Wahl, Esquire. In addition to the parties' testimony, the Court heard testimony from Mother's friend A----- D------ ("Ms. D------"), and Father's paramour A----- C------- ("Ms. C------").
For the sake of judicial economy, the Court will not restate the testimony given at trial, which can be more fully reviewed on the record. Rather, the Court will note any relevant issues throughout the discussion. In determining the custody and residential placement of children, the Court must consider the best interest factors of 13 Del. C. § 722.
Title 13, Section 722 provides:
The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests 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(s) 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 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 for in Chapter 7A of this title and
(8) The criminal history of any party or adult member of a household and shall take into consideration whether a party or adult member of a household has pled guilty or no contest to or was convicted of a criminal offense.
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Currently, A---- primarily resides with Mother and has visitation with Father every other weekend Friday through Sunday. Mother believes she should continue to have primary residency with Father receiving visitation every other weekend. She also requests to split holidays and summer vacation as well as have a right of first refusal if Father is unable to care for A---- for more than three consecutive hours.
Father is requesting joint legal custody and primary residential placement of A---- with Mother receiving visitation every other weekend Friday through Monday morning and one overnight visit per week.
This factor favors neither party.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
A---- is a one-year old infant and therefore, the Court is unaware of his wishes. Based on the testimony, however, it appears that A---- enjoys spending his time with both parents. This factor favors neither parent.
(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;
Mother described her days with A---- which include play time, eating, giving A---- his daily nebulizer treatments, bathing, and watching television together. Mother testified that A---- watches some television shows in Spanish to help him learn the language. Father testified that he enjoys playing and rough housing with A---- in addition to taking him on outings such as to the library, zoo, and car exhibitions. Father noted that he believes A---- is more excited to spend time with him than Mother because A---- will often clap his hands at the sight of Father and paternal family members, which he does not do when he sees Mother. Father admitted, however, that he only witnesses A---- interact with Mother during the few minutes of an exchange.
Regarding A----'s relationship with significant individuals other than his parents, Mother testified A---- has a good relationship with maternal family members and enjoys playing with his cousins who live in Chester, Pennsylvania. Mother reported that she and A---- will sometimes visit maternal family for holidays and on weekends. Father argued that A---- does not have an existing relationship with maternal family members, and that while he and Mother were together, they would always celebrate holidays with paternal family members. Father reported that A---- has a very strong relationship with Paternal Grandparents and Paternal Uncle. This is due, in part, to the fact that Father lived with Paternal Grandparents for a period of time and therefore A---- stayed with him at Paternal Grandparents' house during his visitations.
Father currently resides with his girlfriend, Ms. C-------, and her nine year-old daughter. Ms. C------- stated she first met A---- approximately eight months prior to the hearing and that A---- has been to her and Father's apartment several times. A---- reportedly gets along very well with Ms. C------'s nine year-old.
This factor does not favor either party as it appears that A---- has a strong relationship with both parents and extended families.
(4) The child's adjustment to his or her home , school , and community;
Mother lives with A---- in an apartment in Newark, Delaware. The apartment has two bedrooms, with A---- having his own room. A---- was born when Mother and Father resided together in this apartment, so A---- has always lived in Mother's apartment. Mother testified that her apartment is clean, safe, and in a good area that is five minutes from A----'s daycare and nine minutes from Mother's workplace. Mother submitted into evidence pictures of her apartment in which it appears the residence is appropriately furnished, including A----'s bedroom. A---- has attended Pirulos Child Care in Newark since November 2016. According to Mother, A----- loves going to daycare, as he spends time playing with friends and learning both English and Spanish, which is Mother's primary language.
See Petitioner's Exhibit #1.
Mother testified that she and A---- have a daily routine. During the week, Mother and A---- wake-up around 7:00 a.m. Mother stated that A---- requires medication twice daily for his asthma, with one treatment administered in the morning and the second at night. After Mother gives him his morning medication, she and A---- eat breakfast as A---- watches cartoons. Mother gets A---- dressed and drops him off at daycare around 8:00 a.m. so that she can get to work by 9:00 a.m. When Mother is finished her work shift at 5:00 p.m., she picks A---- up from daycare and takes him back home for their nighttime routine, which includes watching television, eating dinner, playing, bathing, and administering his second asthma treatment. Mother stated that A----'s bedtime is between 7:00 - 7:30 p.m.
Father testified he lives in a two bedroom apartment in Newark with Ms. C------ and her 9 year-old daughter. Father stated that he and Ms. C------ share a bedroom and A---- would share a bedroom with Ms. C------'s daughter. Father plans to reside at this apartment for the next few years. Father and Ms. C------ testified that they have been dating for approximately ten months and A---- was introduced to her eight months ago. Regarding A----'s bedtime routine while in Father's care, Father testified he bathes him, they read together, and sing lullabies before A---- falls asleep. Before bedtime, Father stated that he and A---- will play with his toys. Father also testified that he visits A---- at daycare during the week.
Mother raised concerns regarding Father's housing instability. Mother stated that in October 2015, Father began living with Paternal Grandparents in their two bedroom apartment on Lauren Lane in Oxford, Pennsylvania. Father used this address when he signed the Voluntary Acknowledgement of Paternity form for A---- on October 30, 2015. In February 2016, however, Mother reported that Father sent her a text message saying that she must use a Post Office box to send him mail, as he is not permitted to live with Paternal Grandparents since their home was obtained via public assistance and there were limits as to who could live there. In May 2016, Father used an address on Baltimore Pike in Oxford, Pennsylvania, which Mother testified was Father's uncle's home. Four months later, however, on Father's September 2016 Petition, he listed his address as being in Nottingham, Pennsylvania, living with Paternal Grandparents. Finally, in January 2017, Father reported that he lived in Newark, Delaware with Ms. C------. Mother stated she did not find out about Father's move in with Ms. C------ until February 2017. In support of her testimony, Mother offered into evidence a collection of documents spanning October 2015 through February 2017, showing various addresses at which Father claimed to be residing. Father testified that he did not move as frequently as the documents would appear to indicate, as some of the addresses were used for mailing purposes only.
See Petitioner's Exhibit #7.
Id.
Mother also has concerns about A---- staying at Paternal Grandparents' home, as Mother testified that although it is a five bedroom home, it is her understanding that in addition to Paternal Grandparents living in the home, other residents included Father, his two brothers, his sister-in-law, their two children and dogs, and Father's great-grandmother. Mother testified that some of Father's family members smoke inside the home which can affect A----'s asthma.
This factor weighs in favor of Mother's request for primary custody. A---- has lived in Mother's current apartment since birth, where he has his own room and stability in his environment and where Mother is able to provide housing independent of others. Father has moved several times and on each occasion, appears to have been at least partially dependent on others to financially support his residence. Father only recently moved into his current apartment, which he shares with his paramour of one year. If A---- stays overnight with Father, he will have to share a room with Father's paramour's nine year old daughter. A---- appears to be well-adjusted living primarily in Mother's home. The Court would not anticipate a change in A----'s child care arrangement regardless of with whom he lived.
(5) The mental and physical health of all individuals involved;
Father claimed no mental or physical health issues for himself. Mother stated that during her pregnancy she was depressed, and Father reported that Mother had spoken to mental health professionals in the past about her low self-esteem. Mother and Father testified that A---- has asthma and requires daily doses of medication. Father and Mother agreed that both parents are involved in A----'s medical appointments.
This factor is neutral as the Court was not presented with evidence that Mother's past issues with depression hinder her ability to appropriately care for A----.
(6) Past and present compliance by both parents 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."
Parental rights and responsibilities include providing for the child's emotional, financial, medical, and educational needs, as well as recognizing the importance of the child's relationship with his other parent and supporting that relationship as appropriate. This means sharing information that impacts the child with the other parent, supporting the child's ability to communicate and spend time with the other parent, and not exposing the child to negative communications about or with the other parent.
Regarding communications with and about one another, both parties have fallen short. Mother admitted she has called Father names such as a "faggot" and called Paternal Aunt an "ugly whore." Father also stated that Mother will refer to him in text messages as "Mrs. C----" instead of "Mr." in an attempt to disrespect and insult him when they are having disagreements. Mother argued that calling Father "Mrs. C----" was a mistake, as English is not her first language, and submitted into evidence an e-mail she wrote to her male supervisor in which she also refers to him as "Mrs." Father, however, noted that Mother had previously indicated that her reference to him as "Mrs." was a typo. Regardless of whether the reference to Father as "Mrs. C----" was intentional, Mother has clearly called Father inappropriate and demeaning names.
See Respondent's Exhibit #1. Father submitted at least ten different text messages whereby Mother referred to Father as "Mrs. C----."
Petitioner's Exhibit #9.
As noted below in Factor 7, Mother alleges that Father has said inappropriate and threatening things to her. In addition, Father did not deny a failure to inform Mother of important information that Mother had a right to know, as the information impacted A----. For example, the Court held its initial emergency hearing in this matter based on Mother's claim that A---- had been returned to her care from visiting with Father with significant bruises to his body, as well as on his face. Mother took A---- to the emergency room, where the injuries on A---- were documented. Father alleged that the bruises were due to a fall A---- had in his parents' kitchen and agreed that he had not told Mother about the fall so that she would know the reason for the bruises. Father claims he did not explain to Mother what had happened to A---- because she had a pending criminal case. As the Court noted during the hearing, this is not acceptable. Mother entered into evidence photographs of the bruises, which were significant. If such occurs during time with Father, he must in some civil fashion let Mother know what happened to cause the injuries. If he is concerned about Mother misconstruing or misrepresenting his communications, he may do so via text or email.
In addition, as noted above, Father moved in with his paramour in January 2017. Mother claims, and Father does not deny, that Father did not inform her that he had moved out of his parents' home or that he was planning for A---- to stay with him in his new residence. Father also underwent a period of time when his work schedule changed from day work to working from 2:00 PM to 10:00 PM, which Father was still working as of the hearing date. Father testified that he would soon be returning to the day shift, but he had not informed Mother of the change in his schedule, leaving Mother uncertain of how he expected to be able to care for A----. Conversely, Father was of the belief that Mother was taking evening classes that Mother testified have ended, and therefore Father was unaware of how Mother would be able to care for A---- in the evenings.
Finally, Father argued that Mother has refused to give Father any of A----'s medical insurance information. In January 2017, Father stated that A---- was rushed to A.I. DuPont Hospital for pneumonia while in the care of Father. Father gave Mother information surrounding the hospital stay and kept her informed as he learned information from the doctors. A.I. DuPont Hospital, however, needed A----'s medical insurance information to determine the cost of treatment. When Father asked Mother for the information, Mother refused to give Father any details. On cross-examination, Mother admitted that she had not, and has not, given Father A----'s medical insurance information and provided no explanation as to why.
Mother was unable to go to A.I. DuPont to see A---- because at the time, Father had a PFA against Mother.
The Court recognizes there are significant allegations by both parties regarding domestic violence and concerns - perhaps legitimate - that the other will misrepresent any communications. There are, however, key pieces of information that must be somehow transferred between the parties in order to ensure that A---- is safe and that each party knows where he is and what is happening with him. Using a third party or simple text messages could address such concerns as it relates to the parties conveying basic information about A----.
Regarding the other considerations under this factor, Mother has been employed by Amtrak for nine years, currently working as a coach cleaner. Mother's regular schedule is 9:00 AM to 5:00 PM, and prior to January 2017 it was 7:00 AM to 3:00 PM. Mother had her own apartment when she and Father met, and he moved in with her prior to A---- being born. As noted elsewhere, through the end of the parties' relationship and Father moving in with his parents, perhaps his uncle, and his current paramour, A---- has been able to maintain stability in the residence in which he resides with Mother.
Mother has also provided the bulk of the financial support. Mother testified that she solely pays for A----'s clothing, food, supplies, and medical visits without contribution from Father, despite the fact that he is under a current support order to pay $700 per month. The parties' testimony and the Court file reflect that on December 7, 2016, the Court issued a Child Support Order requiring Father to pay $656 per month in current support, plus $44 per month in arrears. As of the date of the custody hearing in February, however, no wage attachment had gone into effect. The Child Support Order notes that the parties had agreed during the child support hearing that Father had paid a total of $1,200 in child support to Mother prior to the hearing. Spread across the nine months between the time the parties separated in March 2016 and the child support hearing in December 2016, that means that Father paid only $133 per month towards support for A---- during that time, while Mother paid for their housing, food, diapers and supplies, as well as the $195 per month for child care. On Fridays, Mother stated she works overtime from 9:00 AM until 1:00 AM so that she is financially able to care for A----.
Father is also currently employed full-time by Amtrak as a car repairman/inspector and has been working there for two years. As of the date of the hearing, Father's work hours were 2:00 PM until 10:00 PM Monday through Friday. Father testified, however, that as of March 3, 2017, his hours were changing to 6:00 AM until 2:00 PM since Amtrak had hired more employees. Regarding the current child support order, Father testified that he believed there was a current wage garnishment against him for child support, but realized the deduction has not been taken from his paychecks. Father alleged he wrote Mother a check for child support the morning of the February 17th hearing.
While Father may have paid some additional support for A---- beyond the $1,200, based on the testimony presented and the parties' credibility, the Court finds that Mother has provided the bulk of the financial support for A----.
Mother testified, and Father did not dispute, that she found Pirulos, the child care provider that the parties currently use for A----. Mother testified that she researched child care providers during her pregnancy and visited Pirulos both prior to and after A----'s birth. Mother testified that she chose Pirulos in part because it is a bilingual child care provider and because it has a good rating. Father testified that Mother did not consult with him prior to enrolling A---- at Pirulos, but Father did not provide any testimony or other evidence of his own efforts to find a child care provider for A----.
Regarding A----'s medical care, the parties agreed that Father has been the one taking A---- to his medical appointments over the three months prior to the hearing. Father testified that he and Mother shared responsibility for taking A---- to his medical appointments prior to that time. When asked why he has been taking A---- to the appointments more recently, Father stated it was because Mother asked him to do so, and he assumed it was because their current work schedules make it easier for him to take A---- during the day. Mother testified that she is the one who provides the child care with the medications that A---- needs for his asthma, and both parties testified that Mother provides health insurance coverage for A----.
This factor favors Mother, as the Court finds that has been the primary provider of emotional, financial, medical and educational needs for A----.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Both parties alleged domestic violence perpetrated by the other during their relationship. On April 11, 2016, Mother filed her first Petition for Protection of Abuse ("PFA") against Father alleging Father punched her repeatedly and made threats to "get rid of her." Mother received an ex parte PFA Order against Father and on April 14, 2016, amended her PFA petition to include other alleged acts of domestic violence. On April 17, 2016, however, Mother voluntarily dismissed her PFA with prejudice.
On August 9, 2016, Mother filed her second PFA against Father detailing instances of domestic violence dating back to January 2015. Some of the domestic disputes were acts described in her April 11th PFA that she voluntarily dismissed. Mother also filed a Motion and Affidavit for an Emergency Ex Parte Order which the Court granted. On August 11, 2016, Father filed a cross-PFA against Mother also detailing many instances of abuse by Mother against Father dating back to November 2015. On August 26, 2016, the Court held a trial on the cross-PFAs, although the Court precluded Mother from presenting evidence regarding allegations of abuse that occurred prior to her voluntary dismissal of the April PFA Petition. After hearing testimony from the parties, the Court granted Father's PFA and dismissed Mother's. As a result of the granting of Father's PFA Petition, the Court issued a one-year no-contact order, which permitted the parties to only have contact when exchanging A----.
On January 19, 2017, Mother filed her third PFA against Father alleging that during an exchange of A----, Father pushed and elbowed Mother. On February 3, 2017, after a full hearing, the Court found that Mother failed to prove abuse by a preponderance of the evidence and again denied her PFA.
During the February 17, 2017 custody hearing, Mother testified that Father would lose control when he did not get his way or if he became jealous. Mother described situations in which Father would be unhappy with a meal that Mother had cooked and would throw the food on the floor, telling her that it was food for black people. Mother also testified that Father would punch holes in doors and break furniture and other items when he became angry. Mother entered several pictures into evidence. The pictures, which were undated, showed food that appeared to have been thrown, holes in doors, a broken mirror on the floor, a dent in a wall, and items such as frames and a plant thrown on the floor. Mother alleged some physical abuse as well, claiming that at one point she had to lock herself inside the bathroom to get away. Mother alleged that she took pictures at the time that the damage was done and kept the pictures because Father would always threaten that he could take her to court and win.
Mother called Ms. D------, an Amtrak co-worker and friend, to testify regarding Father's behaviors. Ms. D------ testified that she had been friends with Mother since Mother began working at Amtrak and that she met Father through Mother when they started dating. Ms. D------ testified that she was "not pleased" when she initially met Father, as she found him to be "obsessive." Ms. D------ stated that she shared her concerns with Mother at the time, but she also did not want to burst Mother's bubble regarding her new relationship. Ms. D------ testified that in December 2014, she attended Mother's birthday party at Mother's apartment. Ms. D------ recounted that Father became very angry with Mother that night and that he told Ms. D----- he was angry because Mother was not giving him enough attention during the party. Ms. D------ opined that Father was cursing, punching holes in the walls, and slamming doors. Ms. D------ noted that she had seen some holes in the walls in Mother's apartment prior to that evening, and that she saw additional holes when she visited after that evening. On cross-examination, Ms. D------agreed that the police showed up at Mother's apartment during the December party due to a noise complaint and that Ms. D------ did not tell the police that Father was being violent or destroying the property. Ms. D------ testified that she had also heard Father talking to Mother on the phone on one occasion, calling her names and threatening her.
Regarding the December 2014 party, Father denied damaging Mother's property and testified that it was Mother's friends from out-of-state who had caused the damage, due to a fight that broke out during the party. Father agreed that at other times he had punched Mother's doors, but claimed that he did so because Mother hits him a lot and since he cannot hit her back, so he hit the doors out of frustration. Father denied being angry about the food that Mother prepared, and alleged that Mother was the one who had thrown food.
As noted above, a finding has already been made by the Court that Mother perpetrated domestic violence against Father. The Court finds that Father also committed acts of domestic violence against Mother. The Court found Mother's testimony, combined with the photographs and the testimony of Ms. D------, to be credible as to Father's actions of throwing food, breaking property, and punching holes in walls and doors. Furthermore, Father admitted he had punched doors in Mother's apartment before, and the Court did not find his explanation for doing so to be credible. These various acts constitute abuse.
During the hearing, Father argued that the Court should not consider allegations of domestic violence that were included in Mother's April 11, 2016 PFA Petition, as that Petition was voluntarily dismissed with prejudice by Mother on April 17, 2016. Father further argued that the Court should not consider allegations included in the August 9, 2016 PFA Petition filed by Mother, as the Court denied that Petition following a hearing on August 26, 2016.
First, the Court notes that it found the testimony of Ms. D------ regarding Father's behaviors at the December 2014 party, and her observations prior to and following that party, to be credible. These allegations of Father acting out in anger to destroy property in Mother's apartment do not appear to have been the subject of the April 11, 2016 or the August 9, 2016 PFA Petitions. Even the broader language in those Petitions references acts by Father in 2015, while Ms. D------'s testimony refers to acts during and prior to a party in December 2014.
Second, the dismissal with prejudice that Mother signed, which the Court notes was signed while Mother was unrepresented by counsel, indicates only as follows, regarding the effects of her dismissal: "I hereby voluntarily dismiss my P.F.A. Petition with prejudice, so that I cannot revive it..." The Court does not find that such language, or the general impact of a dismissal with prejudice of a PFA, precludes consideration of the abuse alleged in the PFA at a future custody proceeding. The language was specific to the filing of a future PFA petition based on the same allegations and does not preclude presentation of that evidence at a later custody or other type of proceeding. The Court is particularly inclined towards a strict reading of the language in the voluntary dismissal since Mother was not represented by counsel at that proceeding and therefore it is not likely that she knowingly waived her right to raise those allegations at any and all legal proceedings in the future, including custody.
Finally, in order to preclude evidence based on a doctrine of collateral estoppel, the Court must find, inter alia, that the "[p]rior action has been finally adjudicated on the merits ... and ... the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." State v. Machin, 642 A.2d 1235, 1239 (Del. Super. 1993) (citing U.S. v. Rogers, 960 F.2d 1501, 1508 (10th Cir. 1992)). In this case, Mother's claims of domestic abuse that were included in her April 2016 and August 2016 PFA Petitions were not adjudicated on the merits, nor did she have a full and fair opportunity to litigate the issues, with one exception. As noted above, at the August 2016 PFA hearing, the Court precluded Mother from presenting evidence of domestic violence that occurred prior to April 2016, given Mother's voluntary dismissal of her April 2016 PFA Petition. The August 2016 hearing, however, was a hearing on both Mother and Father's PFA Petitions, and one of Father's allegations was that Mother had committed domestic violence against him on March 27, 2016, which was Easter. Mother had made allegations in both her April and August 2016 PFA Petitions, as well as at this custody hearing, that Father had attacked her on Easter 2016. At the August PFA hearing, Father testified to his allegations of what had happened on Easter 2016. Although Mother was not permitted to testify on direct examination to her allegations of Father's abuse on Easter 2016, she was cross-examined about the facts of that day, based on Father's allegations. After hearing that testimony, the Court determined that Father had proven abuse by Mother on Easter 2016, in that Mother had initiated the altercation by punching Father. In making its determination, the Court found Father's testimony as to the incidents of that day credible and found Mother's testimony insufficient to rebut it. Since Mother had some opportunity, albeit via cross-examination, to testify as to the events of Easter 2016 and the Court made a finding at the PFA hearing that favored Father's testimony as to the events of that day, this Court did not consider Mother's allegations regarding the incidents of Easter 2016 in its findings regarding domestic violence by Father.
The Court, therefore, makes its finding of domestic violence based on the testimony of Ms. D------ from 2014 and early 2015, as well as the testimony and photographs of the parties regarding Father having thrown food and broken or otherwise destroyed Mother's property by punching holes in walls and doors. To the extent those allegations were included within the language of Mother's April 2016 or August 2016 PFA Petitions, those allegations were never heard on the merit due to Mother's voluntary dismissal of the April 2016 Petition and the Court's refusal to hear testimony on those allegations at the August 2016 hearing.
Regarding Father's care of A----, Mother testified that at times, she has received A---- back from visiting with Father and A---- has had bruises on his body. Mother stated that in October 2016 and February 2017, she noticed bruising on A----'s leg and submitted into evidence a picture of what she alleges is a bruise on A----'s right leg from February 12, 2017. Mother alleged that Father does not tell her when A---- is injured while in his care and believes the bruises may be the results of intentional acts by Father. In the Court's Interim Order issued on January 18, 2017, the Court noted that the Chester County Department of Children, Youth and Families investigated Mother's concerns regarding the October 2016 bruising and closed their investigation without concern that A---- was abused or neglected by Father. Following that Order being issues, at the Court's request, Father obtained and submitted a letter from Chester County Department of Children, Youth and Families, noting that Christiana Hospital had determined there was nothing suspicious about the bruises and that they were typical of a 1 year old.
See Petitioner's Exhibit #8.
While Father agreed that he rough houses with A----, he denied intentionally injuring him. Father reported that the bruises occur because A---- is learning to walk and often falls, especially when he gets excited. Furthermore, Father alleged that A---- has been injured and scratched previously at daycare and, therefore, Mother is aware that it is not uncommon for him to be hurt. Mother agreed, but stated that A---- does not fall while walking in her care as his balance has improved.
The Court is unable, based on the evidence presented, to find that Father abused A----. Both parties are urged to (i) communicate with one another in some appropriate fashion when A---- falls or is otherwise injured, to explain what happened so that the other parent is aware that there may be bruising, and (ii) if abuse is suspected, to contact the appropriate child protective services agency such that an investigation can be conducted, as well as seeking medical treatment. This Court is limited in how much it will be able to glean solely from pictures of some bruising on a child of A----'s age. Medical and child protection professionals can more easily determine whether such bruising is consistent with the normal bumps and bruises of a toddler or if there are reasons for more concern.
The Court finds that this factor favors neither party, as it appears that Mother and Father have each been aggressors in domestic disputes and, as noted above, the evidence presented was not sufficient for a finding that Father had caused the bruises that Mother found on A----.
(8) The criminal history of any party or adult member of a household and shall take into consideration whether a party or adult member of a household has pled guilty or no contest to or was convicted of a criminal offense.
The Court reviewed the Delaware criminal histories of Mother, Father, and Ms. C--------. Neither Father nor Ms. C------- have any adverse history. Mother's record reveals she was charged with Offensive Touching for an incident involving Father in August 2016. That charge was disposed of without a finding or admission of guilt via a Probation before Judgment plea by Mother. This factor does not favor either party.
CONCLUSION
After reviewing the evidence against the § 722 best interest factors, the Court finds that joint legal custody with Mother having primary residential placement to be in A----'s best interest. While Mother has taken some actions relating to Father that have been concerning, she has been A----'s primary caregiver and primary financial support and has provided appropriate care for A---- in those roles, while maintaining stable housing, medical care, and child care for his benefit.
Accordingly, the Court enters the following ORDER:
1. Mother's Petition for Custody (16-09218) is hereby GRANTED in part and DENIED in part.
2. Father's Petition for Custody (16-28451) is hereby DENIED.
3. The parties shall have joint legal custody of A---- C----, born ------- --, 2015.
4. Mother shall have primary residency of A----.
5. Father shall have visitation with A---- every other weekend from Friday evening at 6:00 PM to Sunday evening at 5:00 PM. Father shall pick up A---- from daycare on Friday evenings and the parties shall exchange A---- at Troop 2 in Newark, Delaware on Sunday evenings. Father shall also have visitation with A---- every Wednesday evening at 6:00 PM until Thursday morning at 8:00 AM. Father shall pick up A---- from daycare on Wednesday evenings and drop him off at daycare by 8:00 AM on Thursday mornings. If exchanges at Troop 2 cause any issues, the Court will order that the parties exchange at a visitation center going forward. The Court fully expects Mother and Father to interact civilly during exchanges of A----.
6. Mother shall have the right of first refusal as it pertains to childcare for A---- if the childcare is for a five hour period or longer.
7. The parties shall follow the Standard Visitation Guidelines for holidays and school vacations. Mother shall enjoy Column 1 in even years, Column 2 in odd years. Father shall enjoy Column 2 in even years, Column 1 in odd years. New Year's Eve shall be listed in Column 1 and New Year's Day in Column 2:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holidays | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
| New Year's Eve | New Year's Day |
With the exception of Christmas and Halloween visitation, holiday visitation shall be from 9:00 AM until 6:00 PM the day of the holiday. Halloween visitation shall begin at 5:00 PM and end at 8:00 PM on Halloween. Christmas Eve visitation shall begin at 6:00 PM on December 24th and end at noon on December 25th. Christmas Day visitation shall begin at noon on December 25th and end at 6:00 PM on December 26th. When a holiday falls on a Monday immediately following a visitation weekend, the
parent whom had visitation for the weekend shall be entitled to keep A---- until 6:00 PM Monday.
8. Mother's/Father's Day: On Mother's Day and Father's Day, no matter whose turn for visitation, A---- shall be with the appropriate parent from 9:00 AM to 6:00 PM
9. Birthdays: In odd-numbered years, Father shall have A---- for his birthday from 9:00 AM until 8:00 PM In even-numbered years, Mother shall have A---- for his birthday from 9:00 AM until 8:00 PM.
10. School Breaks (Winter and Spring): In odd-numbered years, Father shall have A---- for all breaks from school starting at 9 AM the day after school recesses until 6 PM the day before school resumes. Mother shall have A---- for school breaks in even-numbered years.
11. Summer Vacation: The parents shall alternate contact weeks in the summer with the schedule beginning the first Friday in June and concluding the last Friday in August. Mother shall select her weeks first in odd numbered years and Father shall select his weeks first in even numbered years. The parent whose choice it is that year shall give the other parent written notice of his/her summer week selection between March 1 st and April 1 st. The parent who has A---- for the week shall be responsible for taking him to his extracurricular activities, summer school, and providing summer care for that week.
12. Late pick-up: Both parents shall have A---- ready for pick-up at the start of all contact periods. A---- and the parent have no duty to wait for the other parent to arrive for contact more than thirty (30) minutes, unless notified. The parent who arrives more than thirty (30) minutes late without prior notification for a particular contact, forfeits that contact, unless the other parent agrees otherwise.
13. Drop-off: Neither parent shall return A---- early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to A---- must be present when the children are returned from contact.
14. Canceling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
15. Medical treatment and emergencies: If A---- becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If A---- becomes ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.
16. Communication: Both parents shall be entitled to reasonable communication with A---- while he is in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging) when A---- is of the appropriate age. Neither parent shall interfere with the communication between A---- and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
Because this Order was entered after a full hearing on the merits, any modification thereof shall be pursuant to Del. Code Ann. Tit. 13, § 729 (c) (1999).
Del. Code Ann., tit. 13, § 729 (c) (1999) provides: (c) An order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:
(1) If the application for modification is filed within 2 years after the Court's most recent order concerning these matters, the Court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair his or her emotional development.
(2) If the application for modification is filed more than 2 years after the Court's most recent order concerning these matters, the Court may modify its prior order after considering:
a. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification;
b. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and
c. The factors set forth in § 722 of this title.
IT IS SO ORDERED.
/s/ _________
JENNIFER B. RANJI, Judge JBR/jls
cc: Counsel, Parties, File
Date emailed:__________
Date sent regular mail: __________