Opinion
File No.: CN09-02434 Petition No.: 18-19052
04-16-2019
Re: S [Redacted] R. T [Redacted] v. K [Redacted] L. T [Redacted]
George R. Tsakataras, Esquire
704 King Street, Suite 600
Wilmington, DE 19801
george@tsakataraslaw.com Judy M. Jones, Esquire
Parkowski, Guerke, & Swayze, P.A.
1105 North Market Street, 19th Floor
Wilmington, DE 19801
jjones@pgslegal.com
LETTER DECISION AND ORDER
Dear Mr. Tsakataras and Ms. Jones:
On January 29, 2019, this Court conducted a final hearing related to a Petition to Modify Visitation filed by S [Redacted] R. T [Redacted] ("Father") and the Answer and Counterclaim filed by Judy M. Jones, Esquire ("Ms. Jones") on behalf of K [Redacted] L. T [Redacted] ("Mother"). Present in Court were: Father, represented by George R. Tsakataras, Esquire ("Mr. Tsakataras"), and Mother, represented by Ms. Jones. The parties' petition and counterclaim seek to modify this Court's Custody Order dated December 27, 2017 relating to the custody and visitation arrangements of the parties' minor daughter, B [Redacted] T [Redacted] ("B [Redacted] "), born February 13, 2003. The Court received testimony from both parties. Based upon the evidence presented, the Court enters the following decision.
Procedural History
The parties have an extensive and complex history in regards to their two children, B [Redacted] and C [Redacted] T [Redacted] ("C [Redacted] "), born April 16, 2000, which the Court will summarize without discussing in full. Father was awarded sole legal custody and primary residency of the children by Final Order of this Court on December 27, 2017. In that order, Mother was granted unsupervised visitation with the children, beginning with a three-month transitional period where the children visited Mother for weekly three-hour visits. At the conclusion of the three-month transitional period, Mother had weekend visits with the children on alternating weekends. The parties were ordered to divide time equally on Christmas, Thanksgiving, and the children's birthdays in accordance with a mutually agreed-upon schedule.
The Court notes that C [Redacted] has since turned 18 years old, and this matter pertains only to B [Redacted] .
Since 2014, the parties have engaged in extensive litigation that centered on Mother's parental alienation of the children from Father. In 2016, a custody modification hearing was conducted. Based upon the recommendations of Dr. H [Redacted] F [Redacted] ("Dr. F [Redacted] "), who conducted a custody evaluation, the Court issued an order requiring the parties to participate in an intensive family therapy program with the children. The program required the "rejected" parent to have legal custody and primary residency of the children and for all contact with the other parent to be temporarily suspended. Temporary legal custody and residential placement of the children was transferred to Father beginning on July 18, 2016, the first day of intensive reunification therapy. Mother was ordered not to have any physical, telephonic, or electronic contact with the children unless directed by the program facilitator.
Father filed a Motion for Sanctions on August 11, 2016 due to Mother's alleged violation of the sequestration order by communicating with C [Redacted] telephonically during the intensive therapy program. Father's motion was granted, and the period of sequestration was extended indefinitely. The Court ordered that family reunification therapy with N [Redacted] C [Redacted] ("Ms. C [Redacted] ") continue with the family in accordance with Ms. C [Redacted] 's recommendations and for Mother to engage when Ms. C [Redacted] deemed it appropriate. On November 28, 2016, the Court issued an Interim Order granting Mother's request for interim contact but ordering such contact to be conducted in a therapeutic setting under the advisement of Ms. C [Redacted] .
On February 2 and 3, 2017, the Court conducted what was intended to be a final hearing on the petitions to modify custody, as well as outstanding Petitions - Rule to Show Cause ("RTSC") filed by Father. The Court found Mother in Contempt of Court for failing to abide by the parties' stipulated visitation schedule after relocating to [Redacted] , Pennsylvania in 2014, as well as removing C [Redacted] from the [Redacted] (" [Redacted] ") mid-year and enrolling him at [Redacted] High School over Father's objection. Additionally, the Court entered a temporary order granting Father sole legal custody and for the children to remain in Father's primary residency. Mother was ordered to continue participating in therapeutic reunification with Ms. C [Redacted] and the children. Non-therapeutic contact would begin as soon as Ms. C [Redacted] deemed it appropriate.
In its Final Custody Order, the Court expressed its concern regarding Mother's negative influence on the children related to their relationship with Father, and Ms. C [Redacted] 's testimony that emotional abuse from "coaching" the children was occurring in Mother's home. Mother also refused to comply with Ms. C [Redacted] 's counseling and had only seen the children once since the sequestration period began. The Court awarded Father sole legal custody and primary residency of C [Redacted] and B [Redacted] . Mother was granted unsupervised visitation, with a three-month transitional period that would progress to alternating weekend visits. Mother and Father were ordered to divide time with the children equally on Christmas, Thanksgiving, and the children's birthdays in accordance with a mutually agreed-upon schedule.
On January 16, 2018, the parties submitted a stipulation to the Court regarding the children's birthdays, Mother's Day/Father's Day, and the parties' birthdays, which the Court granted. However, the parties could not reach an agreement on the division of Christmas and Thanksgiving and sought an order from the Court. On April 24, 2018, the Court issued an order granting Father's request for attorney's fees in the amount of $37,539.
Father filed a Motion to Modify Visitation, as well as a Motion and Affidavit for an Emergency Ex Parte Order, on July 2, 2018 requesting to take B [Redacted] on a rock-climbing trip from July 7-23, 2018 as Mother had refused to exchange her visitation days. The Court granted Father's motion to take B [Redacted] on the trip and scheduled a hearing on August 23, 2018. Mother filed an Answer and Counterclaim for Visitation Modification on July 19, 2018. Her counterclaim requested increased visitation time with B [Redacted] to include every other weekend from Friday until Monday morning, a mid-week overnight visitation, alternating holidays, sharing of Winter/Spring Break, and week on/week off during the summer. Father filed an Answer to the Counterclaim on August 13, 2018 opposing Mother's request and stating that Mother continues to violate the Court's order.
On October 31, 2018, Father filed a Motion and Affidavit for Emergency Ex Parte Order requesting that Mother's visitation with B [Redacted] be suspended due to Mother's conduct in allowing C [Redacted] to engage in illegal drug use and other high risk behaviors that contributed to his arrest on October 12, 2018. Father claimed that Mother allowed C [Redacted] to drive B [Redacted] during visitations despite his frequent drug use. The Court granted Father's motion and suspended Mother's weekend visitation beginning on November 2, 2018. The Court indicated that it would address the matter at the teleconference.
On November 2, 2018, Ms. Jones filed an Emergency Motion for Clarification regarding Mother's telephone contact with B [Redacted] as Father had begun supervising the calls. Father filed a Motion and Affidavit for Emergency Ex Parte Order on November 5, 2018 requesting that the Court immediately suspend Mother's contact with B [Redacted] or limit it to supervised telephone or electronic contact. According to Father, Mother informed B [Redacted] that the Court suspended the weekend visitation after the order was issued on October 31, 2018, and she placed the blame on Father and C [Redacted] . Father argued that the conversation resulted in severe emotional injury to B [Redacted] and the commencement of weekly counseling sessions with Ms. C [Redacted] . The Court denied the motion and noted that it would address the matter further during the teleconference.
Following the teleconference on November 7, 2018, the Court issued an order scheduling a final hearing on Father's Petition to Modify Visitation and Mother's counterclaim. Further, the Court scheduled an Interim Hearing to address the upcoming Thanksgiving and Christmas holidays, Mother's ongoing visitation with B [Redacted] , and the conditions in Mother's home concerning C [Redacted] . For the purposes of the Interim Hearing, Ms. Jones was permitted to contact Ms. C [Redacted] for information related to B [Redacted] 's counseling sessions dating from October 31, 2018 to present.
On November 15, 2018, Ms. Jones filed an Emergency Motion to Compel and for Sanctions claiming that Ms. C [Redacted] refused to release B [Redacted] 's records despite the Court's order and Father's signed authorization. Father submitted a response and counterclaim to Mother's motion on November 16, 2018. He stated that he and Ms. C [Redacted] believed that the requested files would not be required when it was later determined that Ms. C [Redacted] would not testify at the hearing. Further, Father claimed that the authorizations were "far reaching and outside the scope" of what the Court ordered, and Ms. C [Redacted] is bound by a therapist/client confidentiality and code of ethics. In his counterclaim, Father also stated that Mother submitted a release signed by C [Redacted] requesting that all of his files and records from Ms. C [Redacted] be released to Ms. Jones for the purposes of litigation. Father asked for the Court to compel Mother to produce C [Redacted] 's records.
Due to the impending Interim Hearing, the Court conducted a teleconference with Father and Ms. Jones on November 19, 2018. Because the Interim Hearing was scheduled for the following day and Ms. C [Redacted] was not being called as a witness, the Court resolved to interview B [Redacted] before the start of the hearing to gain her insight into the holiday and visitation issues. Ms. Jones' motion and Father's counterclaim would then be addressed at a later date in anticipation of the final hearing on January 29, 2019.
The Court interviewed B [Redacted] before the start of the Interim Hearing. B [Redacted] adamantly expressed to the Court that she wanted to resume visitation with Mother. She indicated that she feels safe in Mother's home, though she was aware of C [Redacted] 's past and present marijuana use. According to B [Redacted] , neither parent nor their paramours speak negatively about the other parent to her. B [Redacted] was interested in going with Father and her stepmother to Boston for Thanksgiving but wished to see Mother before the trip. Further, she requested to spend Christmas Eve and Christmas morning with Mother and then spend the remainder of Christmas Day with Father.
At the Interim Hearing on November 20, 2018, Mother informed the Court that C [Redacted] was currently out on bail, but a trial date has not yet been scheduled. He did not have a GPS monitor but was unable to stay overnight in another state without permission. Father informed the Court that he filed his emergency motion requesting Mother's weekend visitation be suspended because he was concerned for B [Redacted] 's safety after C [Redacted] 's arrest and did not receive any information about the arrest from Mother. However, Father agreed that B [Redacted] should see Mother and deferred to the Court for resuming visitation. By agreement of the parties, the Court ordered Mother's weekend visitation with B [Redacted] pursuant to the Court's order to resume. Further, B [Redacted] would have overnight visitation with Mother from November 20, 2018 to November 22, 2018 (Thanksgiving Day), as well as December 24, 2018 (Christmas Eve) at 9:00 a.m. to December 25, 2018 (Christmas Day) at 12:00 p.m. The Court also ordered that B [Redacted] is not permitted to ride in a vehicle while C [Redacted] is driving.
On December 4, 2018, Father filed a Motion to Disqualify Counsel claiming that Ms. Jones violated the Delaware Lawyers' Rules of Professional Conduct due to a conflict of interest. Father stated that Ms. Jones and William J. Walls, Jr. ("Mr. Walls"), a former Family Court judge who was involved in the parties' custody prior custody matter from October 2015 to September 2016, are both attorneys at the law firm of Parkowski, Guerke, & Swayze, P.A. Ms. Jones failed to inform Father and the Court of this conflict. She filed a response on December 17, 2018 stating that the custody matter Mr. Walls presided over is separate from the current pending matter, and he was only privileged to the information presented to him by both parties. Further, Mr. Walls practices part-time at the firm's Dover office while Ms. Jones practices primarily at the Wilmington office.
In an Order dated January 2, 2019, the Court granted Mother's Motion to Compel and ordered Ms. C [Redacted] to release to Father and Ms. Jones the records from B [Redacted] 's counseling sessions dated September 20, 2017 to present. The Court also granted Father's counterclaim requesting C [Redacted] 's records only if Ms. Jones intended to submit the records as an exhibit at the hearing. Last, the Court denied Father's Motion to Disqualify Counsel but ordered Ms. Jones to properly screen Mr. Walls regarding the pending matter and notify Father and the Court of such screening procedures.
Mother filed a second Motion to Compel and for Sanctions on December 31, 2018. In her motion, Mother stated that Father was served with a Request for Production of Documents on November 13, 2018. An answer or the requested documents from Father were due by December 16, 2018, and no documents or response had been received. Mother requested that Father be required to pay Mother's attorney fees and costs related to the motion and prohibit Father from introducing any evidence that contradicts Mother's position if the information may have been discoverable or lead to discoverable evidence. With no response from Father, the Court granted Mother's Motion to Compel and for Sanctions on January 16, 2019 ordering Father to produce all of the requested documentation to Ms. Jones. Mother was also awarded attorney's fees and costs related to the motion.
On January 18, 2019, Father filed a Motion for Reconsideration of Mother's award for attorney's fees and costs related to the Motion to Compel and for Sanctions. Father stated that the Request for Documents was never filed with the Court, and all documentation was delivered to Ms. Jones on January 8, 2019. He requested that, if the sanction must remain, the amount of fees be applied to Mother's outstanding reimbursements to Father for her portion of the children's medical expenses, which she has left unpaid since Father was awarded sole legal custody in July 2016. Mother filed a response on January 25, 2019 stating that the Request was timely made, and records from Ms. C [Redacted] had still not been produced. Father had only produced receipts from the sessions, and Ms. C [Redacted] produced six session notes via email. Further, the alleged outstanding reimbursements for the children's medical expenses had not been produced, some expenses were not incurred for the children, and the costs are a result of Father's failure to inform Mother that he did not have health insurance in violation of a Child Support Order.
Factual Background
Mother is 49 years old and has resided at [Redacted] in [Redacted] , Pennsylvania for approximately five years with her fiancée, D [Redacted] C [Redacted] ("Mr. C [Redacted] "), C [Redacted] , and Mr. C [Redacted] ' two sons, A [Redacted] and A [Redacted] , who are in college. C [Redacted] began living with Mother on April 16, 2018 when he turned 18 years old. Mother is employed as a nurse anesthetist with [Redacted] in Anesthesia and works 42 hours per week. Mr. C [Redacted] recently changed employment and now works for [Redacted] and a liquor store in Pennsylvania. With Mother and Mr. C [Redacted] ' flexible schedules, Mother contends that they would be able to transport B [Redacted] to and from school instead of visitation exchanges occurring at Father's home.
Father is also 49 years old and resides at [Redacted] in Wilmington, Delaware with his wife, T [Redacted] T [Redacted] ("Ms. T [Redacted] "), and B [Redacted] . B [Redacted] has her own bedroom in the home.
At the start of the hearing, the Court conducted a conference with counsel only. On behalf of Father, Mr. Tsakataras informed the Court that Father withdraws any petitions or motions that would modify the Court's Final Custody Order dated December 27, 2017. On behalf of Mother, Ms. Jones indicated that Mother is still seeking expanded visitation. Further, she never received the counseling records from Ms. C [Redacted] , and thirteen session notes were not produced to her. The Court proceeded with the hearing and noted that any issues of discovery would be addressed through evidentiary objections throughout the proceeding.
After Mother's case had concluded, Mr. Tsakataras made a Motion for a Directed Verdict, arguing that the circumstances had not changed since the Court's Final Order. In response, Ms. Jones argued that the Court must consider the evidence in Mother's favor to grant the motion, and Mother had presented evidence that it was in B [Redacted] 's best interest to increase visitation with Mother. The Court denied the Motion for a Directed Verdict as it must consider all the evidence under the best interest analysis.
Legal Standard
Under 13 Del. C. § 729(a), "[a]n order concerning visitation may be modified at any time if the best interests of the child would be served thereby in accordance with the standards set forth in 13 Del. C. § 728(a)." The Court analyzes the factors set forth in 13 Del. C. § 722(a) when rendering decisions on a child's best interest.
Under § 722(a), "[t]he 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 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."
Further, pursuant to 13 Del. C. § 728(a), the Court shall determine a schedule of visitation with the non-residential 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 with one parent would endanger the child's physical health or significantly impair his or her emotional development. The Court shall specifically state in any order denying or restricting a parent's access to a child the facts and conclusions in support of such a denial or restriction.
§ 722 Factors
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother is requesting to expand her visitation with B [Redacted] to include an overnight visit during the week, every other week during the summer months, and alternating major holidays, including Spring Break this calendar year. Additionally, for her weekend visits, Mother wants to be able to take B [Redacted] to school on Monday morning instead of returning her to Father's home on Sunday evening. Mother believes that expanded visitation would allow her to play a larger role in B [Redacted] 's life, including her schooling. She does not believe Father keeps her properly informed with school, and she does not have much input. Mother also believes that, despite her home being an hour away, she would not have a problem with transporting B [Redacted] to school on time in the mornings.
Father is requesting that the parties continue to abide by the visitation schedule outlined in the Court's Final Custody Order dated December 27, 2017. Father expressed concerns related to increased visitation based on Mother's past behavior, which is detailed in the order. He reported that B [Redacted] is doing well and is stable in Father's home, and he is concerned that B [Redacted] will be influenced by Mother as C [Redacted] has been. Further, Father objects to Mother's mid-week overnight request as she lives an hour away in [Redacted] , Pennsylvania, and the visit could interfere with B [Redacted] 's school work and extracurricular activities. However, Father is not opposed to Mother taking B [Redacted] out to dinner one time during the week as long it does not interfere with school or extracurricular activities. Father is also opposed to Mother's request to spend Spring Break with B [Redacted] as he has a family tradition of traveling to [Redacted] Beach, North Carolina for the week.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
Neither party requested that the Court interview B [Redacted] to determine her wishes on visitation with Mother. Father testified that B [Redacted] has never asked him for more contact with Mother. In contrast, Mother testified that B [Redacted] wants increased visitation with her. The Court notes that it interviewed B [Redacted] prior the Interim Hearing on November 20, 2018, and B [Redacted] wanted to resume weekend visitation with Mother and spend the Thanksgiving and Christmas holidays equally with both parents.
(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 testified that her visitation with B [Redacted] has been "awesome," and they have a strong relationship. She indicated that she missed the children during the sequestration period, and they missed her. According to Mother, B [Redacted] was upset that Mother missed certain events in her life, such as her eighth grade graduation. When B [Redacted] visits Mother, they go to the movies, horseback riding, and out to dinner with friends. Father testified that B [Redacted] returns to his home after a weekend visit around 8:30 p.m. on Sunday. Generally, B [Redacted] is a happy and talkative child. However, Father noticed changes in her demeanor after returning home from a visit with Mother. She tends to stay in her room on Sundays and seems to be "decompressing." According to Mother, B [Redacted] gets along well with C [Redacted] , as well as Mr. C [Redacted] ' sons, and views them all as her big brothers.
Father reported that B [Redacted] is stable in his home and is doing well. B [Redacted] also gets along well with Ms. T [Redacted] . Mother believes that having more contact with B [Redacted] would strengthen Father's relationship with B [Redacted] . She noted that when she was not having any contact with C [Redacted] , Father's relationship with him suffered.
Mother testified that C [Redacted] does not have a relationship with Father. Father confirmed that C [Redacted] is not speaking with him at this time. Father has attempted to contact him on major holidays or a special event, but C [Redacted] did not reply. Father also tries to monitor C [Redacted] 's social media use, which has been very concerning and distressing.
(4) The child's adjustment to his or her home , school and community;
B [Redacted] is 16 years old and is currently enrolled as a sophomore at [Redacted] (" [Redacted] ") in Wilmington. Mother believes that B [Redacted] is currently struggling in school as she takes numerous Advanced Placement ("AP") classes. However, Mother admitted that B [Redacted] 's grades are A's and B's, except for a C in AP Biology last marking period. Mother noted that B [Redacted] was marked for tardiness approximately ten times and believes she would be able to get B [Redacted] to school on time because she is organized in the mornings and has to be at work early. According to Mother, overnight visits on a weekday would not cause more difficulty with B [Redacted] 's schedule. She also indicated that she was involved in C [Redacted] 's schooling when he moved in with her and assisted him with graduating from [Redacted] High School, which will be discussed further.
Father testified that B [Redacted] is a good student and always has been. The AP courses have been tough for her as the teachers expect more independent work. B [Redacted] stopped participating in some extracurricular activities in order to focus on her classes and now has mostly A's and B's. According to Father, some of the late arrivals were related to an oral surgery that B [Redacted] had a month prior to the hearing. Further, B [Redacted] needs to arrive at school by 7:25 a.m., and she has difficulty getting up in the morning, which has resulted in arriving late to school on some occasions. With Mother's home an hour away from [Redacted] , Father is concerned that it would be difficult to get there on time if B [Redacted] had to travel from [Redacted] . Father lives approximately 15 minutes from the school.
On cross examination, Mother first reported that she is unsure if B [Redacted] is well-adjusted to Father's home but believes B [Redacted] has adjusted to her current situation. Mother then indicated that she believes B [Redacted] is primarily well adjusted to Father and Ms. T [Redacted] . She admitted that B [Redacted] is doing well in school and taking three AP classes as a sophomore. B [Redacted] has also talked about joining the track and crew teams. Mother stated that most of B [Redacted] 's friends from school live closer to Father's home. Father confirmed that B [Redacted] lives close to many of her friends at school, and she also has friends in the neighborhood. Additionally, B [Redacted] spends time with many of his relatives, including aunts, uncles, cousins, and grandparents.
Mother indicated that B [Redacted] enjoys horseback riding, which has been a point of contention through the duration of the parties' litigation. Since January 2018 when Mother's weekend visits began, Mother requested for B [Redacted] to resume riding lessons and participate in horse shows. According to Mother, it took Father an extensive time to sign the required waivers for B [Redacted] to ride. Mother also received an email from Father that Ms. C [Redacted] did not support resuming the lessons or shows. Due to past history involving Father and Mr. C [Redacted] , Mother moved B [Redacted] 's horse to a stable in [Redacted] , Pennsylvania, so its location would be in halfway between both residences. Beginning in April 2018, Father took B [Redacted] to the stable occasionally but then stopped for a period of time. Recently, Father began bringing B [Redacted] again. Mother is requesting that the Court grant her a mid-week overnight visit so she would be able to take B [Redacted] to lessons.
The Court notes that B [Redacted] rides a horse owned by Mr. C [Redacted] , who had previously not permitted Father to be around the horse.
Father testified that he will take B [Redacted] to horseback riding lessons when she asks, and they have added horseback riding as a part of their schedule. On cross examination, Father confirmed that Mother sent him an email in February 2018 related to B [Redacted] riding during visits with Mother, and he was unsure of the exact date when he ultimately granted her permission. Father indicated that having B [Redacted] return to horseback riding was a process that took several months due to Father's history of not being permitted near the horse.
As previously noted, Mother refused to exchange her weekend visit in order for B [Redacted] to attend a rock climbing trip in July, which led to Father filing a Motion for an Emergency Ex Parte Order. Mother stated that she did not refuse to exchange her visits because she was angry at Father about horseback riding. She was merely upset that she would not see B [Redacted] for a month, which would also upset B [Redacted] . Mother indicated that she never received additional visitation after the trip to make up for the time she missed. Further, B [Redacted] was merely watching others rock climb on the first part of the trip, and she did not participate until the second half of the trip.
Although C [Redacted] is not the child in this proceeding, the Court received extensive testimony related to C [Redacted] 's transition to Mother's home. As previously indicated, C [Redacted] began living with Mother after he turned 18 years old in April 2018. When he was living with Father and prior to his move to Mother's home, C [Redacted] attended [Redacted] High School (" [Redacted] "). He transferred to [Redacted] High School upon the move. Mother testified that C [Redacted] 's grades at [Redacted] were poor, and he was failing most classes. C [Redacted] graduated from [Redacted] High School in June 2018. According to Mother, neither Father nor B [Redacted] attended the ceremony. Mother sent Father an email about B [Redacted] attending, but she never received a response.
C [Redacted] 's report card for his 12th grade year at [Redacted] prior to moving in with Mother was admitted into evidence as Mother's 1 without objection.
On cross examination, Mother reported that C [Redacted] transferred schools with only five weeks left of the academic year, which Mother believed was in his best interest. She disputed his interview with the Court prior to the final hearing when C [Redacted] stated that he wanted to finish his senior year at [Redacted] . Mother confirmed that a vehicle was available for C [Redacted] to drive when he visited her on the weekends and when he moved in with her, but she also drove it. Father testified that he learned of Mother taking B [Redacted] to a Jeep dealership during a visit through an app on his cell phone that allows him to track B [Redacted] 's whereabouts. Mother indicated that she does not plan to buy a Jeep for B [Redacted] , and she only took B [Redacted] to look around. Due to her current bankruptcy proceedings, Mother reported that she is not in a position financially to purchase a new car.
Mother has asked Father to disable the app when B [Redacted] is visiting her, but Father has refused.
C [Redacted] was arrested in October 2018. The status of the case is ongoing, and he does not have a court date yet. To Mother's knowledge, the charges include possession of a firearm, possession of marijuana, and reckless driving. One firearm charge was dropped. After his arrest, Mother did not allow C [Redacted] to drive, spend time with friends, or use drugs. C [Redacted] has abided by these rules, and he is now permitted to drive to and from his job at Fed Ex.
(5) The mental and physical health of all individuals involved;
No evidence was presented at the instant hearing regarding Father or B [Redacted] 's physical and mental health. As stated in Father's various pleadings, B [Redacted] continues to participate in counseling with Ms. C [Redacted] .
Mother testified that she continues to see her own therapist, R [Redacted] D [Redacted] , M.A. ("Mr. D [Redacted] "), whose office is located in West Chester, Pennsylvania. She talks to him on the phone and will go in for an appointment if needed. Mother could not recall the number of appointments she had with Mr. D [Redacted] in 2018. She confirmed that she does not participate in counseling with Ms. C [Redacted] , and Mr. D [Redacted] does not have any communication with B [Redacted] . Mother stated that she learns how to properly cope with Father's behavior while in therapy, and her therapy is not related to therapeutic reunification with B [Redacted] .
The Court notes that Mother has participated in counseling with Mr. D [Redacted] throughout the history of the case. Mother previously refused to change therapists at the request of Ms. C [Redacted] , who testified that Mother's treatment with Mr. D [Redacted] and her reunification therapy were in conflict. --------
According to Mother, C [Redacted] is receiving mental health services every week. However, he is not receiving treatment for substance abuse. Mother believes that C [Redacted] is no longer using drugs because he tells her he is not using drugs. No additional monitoring has been implemented. Mother is aware that C [Redacted] has used social media in the past to portray his drug use, but Mother does not believe he currently uses it in that way.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
As noted in the procedural section above, Mother has a history of refusing to comply with this Court's orders related to custody and residency of the children. Mother was previously found in Contempt of Court for failing to abide by the parties' prior stipulated residential schedule after relocating to Pennsylvania in 2014 and removing C [Redacted] from [Redacted] mid-year and enrolling him at [Redacted] High School over Father's objection. Mother also communicated with C [Redacted] during a court-ordered period of sequestration, which was then extended due to her noncompliance. Most recently, and as discussed in the Court's Final Custody Order, Mother refused to comply with court-ordered reunification counseling with Ms. C [Redacted] .
Mother testified that her communication with Father is poor, which the Court notes has been true throughout the duration of this case. According to Mother, Father sends her "nasty, accusatory" emails, and she does not respond. She also testified that Father does not inform her of major issues related to B [Redacted] . A child support modification hearing between the parties was conducted in August 2018, and Mother learned that the children's health insurance had lapsed since February 2018. Under the child support order, the parties were required to keep each other informed of any major changes. Mother indicated that she always had health insurance that would have been able to cover B [Redacted] . On cross examination, Mother admitted that, during the time that the children's insurance lapsed, Father had signed up for Christian Healthcare Ministry Insurance. However, Mother was never informed of the change in insurance.
Father testified that he and Mother always had difficulty with communication. He also confirmed that he had enrolled in Christian Healthcare Ministry Insurance, which is not classified as traditional insurance. Christian Healthcare Ministry Insurance is a cost sharing program where the individual pays out of pocket unless the medical bill is more than $500, which would be covered. Father noted that he has submitted receipts to Mother while using the program, but he is unsure if they would have shown that the program was not traditional insurance. Father indicated that B [Redacted] is currently covered under Mother's medical insurance, and he understands the importance of informing Mother of these major changes.
Despite Mother's claim that Father failed to inform her of the insurance lapse, Mother confirmed on cross-examination that she failed to inform Father of a birthday party that B [Redacted] attended in Dover. Mother took B [Redacted] to the party where she was asked if B [Redacted] could ride down to the beach. The family had rented a vehicle and hired a driver to take approximately six teenagers, ages 15-16 years old, to the beach and then bring them back to Dover. Mother granted her permission as she was originally told that another mother would be going too. However, Mother later learned that the hired driver was the only adult supervisor. Mother also did not inform Father of C [Redacted] 's arrest because she said he is 18 years old, and she did not have to tell anyone.
Mother reported that she has complied with the Court's order concerning B [Redacted] 's contact with C [Redacted] . Since the Court permitted weekend visits to resume in November 2018 after C [Redacted] 's arrest, C [Redacted] has not driven with B [Redacted] in the vehicle.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
No evidence was presented at the instant hearing under this factor. The parties had stipulated in prior proceedings that there is no history of domestic violence in their relationship.
(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 Mother nor Father has any criminal convictions other than motor vehicle violations according to DELJIS. Mr. C [Redacted] and Ms. T [Redacted] also do not have Delaware criminal histories. Mother testified that there was previously a pending matter in Pennsylvania where she was charged with Interference with Custody, but it has been expunged from her record. Mr. C [Redacted] also incurred a DUI charge in Pennsylvania, and the offense was expunged from his record several years ago.
Conclusion
Based upon the evidence presented, the Court finds that it is in B [Redacted] 's best interest to continue visitation with Mother pursuant to the schedule outlined by the Court in its Final Custody Order dated December 27, 2017, including during the summer months. However, Mother is granted an additional visit during the week to occur in Delaware or at the stable that houses B [Redacted] 's horse in [Redacted] , Pennsylvania; two nonconsecutive weeks during the summer; and alternating holidays. The parties shall have B [Redacted] in their care for major holidays on an alternating basis, with B [Redacted] spending her upcoming Spring Break with Father and Christmas Break with Mother. Factors (2), (3), (4), (5), and (6) of the best interest analysis support this decision, and factors (1), (7), and (8) are neutral.
Under factor (1), Mother requested to expand her current visitation schedule to include an overnight weekday visit, alternating weeks during the summer, and alternating major holidays, including Spring Break. She also would like to take B [Redacted] to school on Monday morning at the conclusion of her weekend visits instead of taking B [Redacted] to Father's home on Sunday evenings. Although he is not opposed to a weekday visit after school, Father is opposed to increased visitation with Mother during the summer, as well as Mother transporting B [Redacted] to school in the morning as she lives an hour away. Further, Father has a family tradition of traveling to South Carolina for Spring Break. Thus, factor (1) of the best interest analysis is neutral.
The Court was not asked to interview B [Redacted] to ascertain her wishes in regards to increased visitation with Mother under factor (2). However, the Court interviewed B [Redacted] prior to the Interim Hearing in November 2018 where she expressed that she wanted to resume visits with Mother and split the Thanksgiving and Christmas holidays between both parents. Therefore, this factor supports the Court's determination in granting Mother an additional weekday visit, two nonconsecutive weeks during the summer, and alternating holidays.
The evidence under factor (3) suggests that B [Redacted] 's visits with Mother have been positive. Although Father testified that B [Redacted] seemed to be "quieter" when she returned from visits with Mother, the Court was not presented with any evidence that the visits have been emotionally harmful to B [Redacted] or have affected Father's relationship with her. Conversely, Father testified that B [Redacted] is still doing well in his home, gets along with Ms. T [Redacted] , and excels in school. However, the Court considers Mother's history throughout this case, as well as its analysis related to Mother's negative influence on both B [Redacted] and C [Redacted] related to their relationship with Father, that was described in detail in the Final Custody Order just a year ago. Therefore, the Court finds that factor (3) supports the continuation of Mother's visitation schedule with an additional weekday visit, two nonconsecutive weeks in the summer, and alternating holidays.
Under factor (4), both parties testified that B [Redacted] has adjusted well to Father's home. The Court notes that B [Redacted] is excelling in school as a sophomore at [Redacted] with a difficult schedule of AP courses. Father admitted that B [Redacted] must be at school by 7:25 a.m. each morning, and she has arrived late on some occasions due to her difficulty in getting up in the morning. The Court finds that requiring B [Redacted] to wake up even earlier and drive approximately one hour to school on Monday mornings, as well as another day during the week, will not benefit (and may even harm) her already busy and academically challenging schedule. However, Father is not opposed to Mother's request for a weekday visit, as long as she does not stay overnight. The Court received extensive testimony from both parties regarding B [Redacted] 's horseback riding. Mother testified that she has moved B [Redacted] 's horse to a neutral location between both of the parties' residences, but Father has hindered B [Redacted] 's opportunities to ride it. Therefore, the Court finds that granting Mother's request for an additional visit during the week would enable B [Redacted] to both spend additional time with Mother and guarantee her the opportunity to ride her horse, if she chooses. Thus, factor (4) supports the Court's determination in continuing the visitation schedule as ordered and granting Mother an additional visit during the week. However, B [Redacted] shall return to Father's house by 8:30 p.m., as is the case for Mother's weekend visits. As B [Redacted] is the only child in this proceeding, the Court finds that the evidence presented regarding C [Redacted] does not weigh heavily in the Court's analysis.
No evidence was presented under factor (5) related to Father and B [Redacted] 's physical and mental health. Mother testified that she continues to participate in therapy with Mr. D [Redacted] though she could not recall the amount of sessions she had in 2018. Additionally, she indicated that her counseling focuses on coping with Father, not therapeutic reunification with B [Redacted] , which the Court previously ordered. However, as previously indicated, the Court notes that Father did not present any evidence that B [Redacted] 's emotional well-being, or his own relationship with B [Redacted] , has suffered due to Mother's weekend visits since the Final Custody Order was issued, other than his own testimony regarding B [Redacted] 's "changed demeanor" after visits. For those reasons, the Court finds that factor (5) supports its decision to continue Mother's visitation schedule as outlined in the Final Custody Order and grant her an additional weekday visit, two nonconsecutive weeks in the summer, and alternating holidays.
In regards to factor (6), Mother has a history throughout this case of failing to abide by the Court's orders regarding the children and counseling. However, no evidence was presented at the instant hearing that demonstrated Mother's noncompliance with the terms and provisions of the Final Custody Order. Despite this finding, the Court notes that the Final Custody Order was issued fairly recently in December 2017, and Father has had sole legal custody and primary residency of B [Redacted] during that time. Further, the Court finds that both parties have failed to communicate with each other in situations that warranted swift and open communication related to both B [Redacted] and C [Redacted] . Both parties admitted that their communication with each other is either poor or nonexistent. For those reasons, factor (6) supports the Court's decision for Mother's visitation with B [Redacted] to continue as ordered in the Final Custody Order with an additional weekday visit, two nonconsecutive weeks in the summer, and alternating holidays.
No evidence under factor (7) related to any domestic violence between the parties or their current paramours. Therefore, factor (7) is neutral in the best interest analysis.
Factor (8) is also neutral, as the Court has no concerns about the parties' criminal records or those of the adult residents in their households.
Under 13 Del. C. § 728(a), the Court recognizes B [Redacted] 's advanced age and maturity, as well as her continued progress in Father's home even after beginning weekend visits with Mother. Although the Court continues to have concerns regarding Mother's past negative influence on both B [Redacted] and C [Redacted] related to their relationship with Father, as well as her failure to abide by Court orders, Father did not present any evidence at the instant proceeding that B [Redacted] 's emotional well-being or his relationship with B [Redacted] has been harmed. Therefore, the Court finds that an additional weekday visitation with Mother, two nonconsecutive weeks during the summer, and alternating holidays is consistent with the B [Redacted] 's best interest and maturity and would not significantly impair her emotional development, especially if she remains in Father's home.
Based upon the above analysis, the Court finds that it is in B [Redacted] 's best interest for Mother's visitation schedule outlined in the Final Custody Order dated December 27, 2017 to continue, including during the summer months. Mother is granted an additional weekday visit with B [Redacted] to occur in Delaware or at the stable that houses B [Redacted] 's horse in [Redacted] , Pennsylvania; two nonconsecutive weeks during the summer; and alternating holidays. Due to the impending nature of B [Redacted] 's Spring Break and Father's family tradition of traveling that week, B [Redacted] shall spend her upcoming Spring Break with Father. She shall spend her Christmas Break, including Christmas Day, with Mother. The parties will then switch for the next calendar year. Factors (2), (3), (4), (5), and (6) of the best interest analysis support the Court's conclusion. Factors (1), (7), and (8) are neutral to the Court's analysis. IT IS SO ORDERED.
Father's Motion for Reconsideration
Mother filed a Motion to Compel and for Sanctions on December 31, 2019 claiming that Father was served with a Request for Production of Documents, and an answer or the requested documents had not been received by the due date on December 16, 2018. With no response from Father, the Court granted Mother's Motion to Compel and for Sanctions on January 16, 2019 ordering Father to produce all of the requested documentation to Ms. Jones. Mother was also awarded attorney's fees and costs related to the motion.
On January 18, 2019, Father filed a Motion for Reconsideration regarding its granting of attorney's fees and costs for the Motion to Compel and for Sanctions. Father stated that the Request for Documents was never filed with the Court, and all documentation was delivered to Ms. Jones on January 8, 2019. He requested that the amount of fees be applied to Mother's outstanding reimbursements to Father for her portion of the children's medical expenses, which she has left unpaid since Father was awarded sole legal custody in July 2016. Mother filed a response on January 25, 2019 stating that the Request was timely made, and records from Ms. C [Redacted] had still not been produced. Further, Mother argued that the alleged outstanding reimbursements for the children's medical expenses had not been produced, some expenses were not incurred for the children, and the costs are a result of Father's failure to inform Mother that he did not have health insurance in violation of a Child Support Order dated October 9, 2017.
In response to Father's Motion that indicates Mother's Request for the Production of Documents was not "filed or clocked in with the Court," the Court notes that it received Mother's Request on November 14, 2018. Further, Father indicated that he did not receive the Request until December 14, 2018, but he did not inform the Court of its untimeliness until after Mother's Motion to Compel was filed on December 31, 2018. From the testimony at the instant hearing, Father admitted that he did not inform Mother of any lapse or change in medical insurance, which was a violation of the parties' Child Support Order, and B [Redacted] is currently covered under Mother's insurance. Therefore, the Court DENIES Father's Motion for Reconsideration. The Court grants Ms. Jones leave to submit an Affidavit of Attorney's Fees related to the Motion to Compel and for Sanctions within fifteen days of the issuance of this Order, after which Father shall have ten days to respond. The Court will then consider Father's request related to Mother's alleged outstanding reimbursements for the children's medical expenses. IT IS SO ORDERED.
ORDER
IT IS HEREBY ORDERED this 16th day of April, 2019 that:
1. B [Redacted] shall continue to engage in weekend visits with Mother on alternating weekends, as outlined in the Final Custody Order, including during the summer months. A weekend visit begins from Friday at 5:00 p.m. until Sunday evening, with B [Redacted] being returned to Father no later than 8:30 p.m.
2. Mother shall be entitled to a weekly visit with B [Redacted] to occur in Delaware or at the stable that houses B [Redacted] 's horse in [Redacted] , Pennsylvania. By mutual agreement, the parties may choose the day of the week most convenient for their schedules and B [Redacted] 's schedule. However, if the parties are unable to reach an agreement, the visits shall occur on Thursday evenings to accommodate B [Redacted] 's horseback riding lessons.
The visits will occur from the time B [Redacted] is dismissed from school until 8:30 p.m., unless otherwise agreed upon by the parties. Mother is responsible for picking B [Redacted] up from school and transporting her back to Father's home at the conclusion of the visits. If school is not in session on the chosen day, which would include the summer months, the visit will begin at 5:00 p.m., and Mother is responsible for picking B [Redacted] up from Father's home.
3. Mother shall be entitled to two nonconsecutive weeks with B [Redacted] during her summer break. Mother shall provide notice to Father of her chosen weeks no later than May 17, 2019.
4. In regards to major holidays, the parties shall operate on an alternating basis. Father shall have B [Redacted] in his care for her upcoming Spring Break at the end of April. Mother shall have B [Redacted] in her care for her Christmas Break, including Christmas Day. The parties shall then alternate the following year, with Mother having B [Redacted] for Spring Break and Father having B [Redacted] for Christmas Break.
For all major holidays in 2019, Mother shall have B [Redacted] in her care for the holidays in Column 1, and Father shall have B [Redacted] in his care for the holidays in Column 2.
For all major holidays in 2020, Mother shall B [Redacted] in her care for the holidays in Column 2, and Father shall have B [Redacted] in his care for the holidays in Column 1.
| COLUMN 1 | COLUMN 2 |
|---|---|
| Memorial Day | Spring Break |
| Labor Day | Fourth of July |
| Christmas Break | Thanksgiving Break |
Holiday contact shall be from 9 a.m. until 10 p.m. the day of the holiday, with the exception of Spring Break, Thanksgiving Break, and Christmas Break, which shall include all days B [Redacted] does not have school.
5. The parties shall continue to follow the stipulation submitted to and granted by the Court on January 16, 2018 regarding the children's birthdays, Mother's Day/Father's Day, and the parties' birthdays.
6. B [Redacted] 's continued participation in extracurricular activities shall not be interrupted. The parent with whom B [Redacted] is staying shall be responsible for providing transportation to any activities scheduled during that time.
7. Father's Motion for Reconsideration is hereby DENIED. Mother shall submit an Affidavit of Attorneys Fees related to the Motion to Compel and for Sanctions within fifteen days of the issuance of this Order. Upon receipt, Father may file a response within ten days.
IT IS SO ORDERED.
Very truly yours,
/s/
MICHAEL K. NEWELL, Chief Judge MKN/bab Date emailed: 4/16/2019