Opinion
File No. CN20-01142 Case No. 20-06222
07-15-2020
S L , Petitioner, v. K H , Respondent.
Megan M. Mahle, Esquire, Community Legal Aid Society, Inc, 100 W. 10th Street, Suite 801, Wilmington, DE 19801 Attorney for Petitioner. K H , self-represented,
ORDER ON PETITION FOR CUSTODY Megan M. Mahle, Esquire, Community Legal Aid Society, Inc, 100 W. 10th Street, Suite 801, Wilmington, DE 19801 Attorney for Petitioner. K H , self-represented, ARRINGTON, Judge.
On July 10, 2020, the Court conducted a hearing on the Petition for Custody in the interest of K H (born / /2016) and K H (born / /2018) ("Children"). Petitioner S L ("Mother) represented by Megan M. Mahle, Esquire, and Respondent K H ("Father"), self-represented, participated in the hearing.
Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
Mother filed a Petition for Protection From Abuse ("PFA") on January 13, 2020. After a hearing held on January 28, 2020, the Court entered a two-year PFA Order against Father. The Court found after a hearing on the merits that the incidents of abuse included: (1) that Father strangled Mother while she was holding one of the children; (2) that Father had a history of breaking phones so that Mother was unable to call for help; (3) that Father kicked Mother down the steps with his work boots; (4) that Father stated he was going to kill Mother; and (5) that Father hit her on the face, causing injury to her lip. Through the PFA Order, Mother was awarded temporary custody of the Children. Father was granted supervised visitation at the visitation center.
Dkt. #9.
Id.
Mother filed a Petition for Custody on February 21, 2020. In the Petition, Mother sought sole legal custody and primary residential placement of the Children. Mother alleged that Father has committed severe and repeated acts of abuse against her, sometimes in front of the Children. Mother further alleged that she cannot safely communicate with Father regarding the Children. Mother alleged that she is the Children's primary caretaker and sees to their daily and medical needs. Father was served with the Petition on March 10, 2020. Father did not file an Answer to the Petition.
Dkt. #13.
Id.
The Court conducted the final hearing on the Petition for Custody on July 10, 2020.
FACTUAL BACKGROUND
Mother's Position:
Mother is twenty-four years old and resides in a two-bedroom home. Residing in the home is Mother and the Children. The Children have their own princess themed room at the home. Mother is presently unemployed due to the COVID-19 pandemic. Prior to the pandemic, Mother was employed at a business school. Mother has obtained a master's degree in both criminal justice and health care administration.
Mother is seeking sole legal custody and primary residential placement of the Children. Mother fears for her safety around Father. Father has a history of engaging in domestic violence and there is currently a two-year PFA Order in place. Mother testified that Father has hit her several times with the Children present or while she was holding one of the Children.
Mother testified that she does not want to keep Father from the Children, but believes that supervised visitation is necessary. Mother explained that Father has left the Children alone in the home on four separate occasions. Mother testified that in August 2019 a neighbor witnessed Father leave the home without the Children. The neighbor looked through the window and observed the Children alone in the living room. The neighbor subsequently called Mother and informed her of the situation. Mother testified that she was forced to bring the patient that she was working with to her home in order to be there for the Children.
Mother testified that on another occasion she observed Father drive past her while he was supposed to be watching the Children. Mother explained that on a third occasion, Father had called Mother to inform her that he had left the home and that the Children were there alone. Mother testified that she had missed work several times to care for the Children after Father would unexpectedly leave.
Additionally, Mother testified that Father has "popped" the Children several times. When questioned by the Court, Mother explained that Father would slap the Children on the forearm area as a form of discipline. Mother testified that she does not use physical discipline and instead believes in speaking with the Children when discipline is necessary.
Mother testified that she does not want to "deprive" the Children of having a healthy relationship with their Father but believes that she needs to limit her own contact with him. Mother testified that she understands the importance of the Children having both parents present in their lives. Mother explained that both parties grew up with absent Fathers and she does not wish that for the Children. Mother explained that despite the status of the parties' relationship she ensures that the Children continue to know and love Father.
Mother testified that Maternal Grandparents live close to her home and see the Children often. Mother testified that Maternal Grandparents adore the Children and host birthday parties for them each year. Maternal Uncle and the Children's Godmother also see the Children on a daily basis and assist Mother in providing care when necessary.
Mother called L B as a witness. Ms. B is a friend of Mother's through Child Inc. Community Center. Mother and Ms. B have been friends for approximately two years. Ms. B explained that she is in contact with Mother on a daily basis. Prior to the COVID-19 pandemic, Mother and Ms. B would see each other in person each day. In light of COVID-19, the two have been communicating by telephone to stay in contact.
Ms. B testified that she would "stay around" Mother frequently because Mother did not feel safe. Ms. B explained that she attended the Protection From Abuse hearing with Mother because she "saw a woman in need" and could relate to Mother due to her own past experiences.
Ms. B testified that in 2019 she was on the phone with Mother while Mother was "in distress." Ms. B testified that she heard Father screaming at Mother and heard the children crying. Ms. B testified that Mother began crying and became hard to understand because Father was choking Mother. Ms. B testified that she heard rambling of the phone and explained that the phone ultimately broke during the incident.
Ms. B testified that she was present at Mother's home when Father attempted to break into Mother's home through a window. Mother had changed the locks and Father was unhappy that he was unable to get into the home. The police were ultimately called to the scene.
Father's Position
Father is twenty-nine years old and currently resides in Paternal Grandparents' basement. Father explained that it is a four-bedroom home. Residing in the home is Father, Paternal Grandparents, Paternal Aunt and Paternal Uncle. Father resides in the basement which does not have direct access to the exterior of the home. Father testified that Paternal Uncle is scheduled to move out in the near future at which time the Children would be able to move upstairs.
Father requests joint legal custody of the Children. Father testified that he would like "everything to be 50/50." Father testified that he is a "good man and a good father." Father believes that the parties have disagreements because Mother "does not like his family." However, Father testified that his stepmother does not like Mother because she believes that Mother is a liar. Father further testified that he, too, believes that Mother is a liar. Father did not provide any testimony to support this belief.
Father testified that he would watch the Children alone frequently. Father did not offer any testimony related to the allegation that he left the Children home alone on four occasions. Father testified that when he is with the Children he will take them to the park and they will ride bikes. Father testified that the Children would sleep in his bed in the basement if he were awarded overnight visits.
On cross-examination, Father admitted that he has not had any form of contact with the Children since January 4, 2020. Father testified that he has not completed his domestic violence evaluation as required in the PFA Order. Father testified that he has not been able to schedule the evaluation due to the COVID-19 pandemic. However, Father was ordered to complete the evaluation in January, which was two months before the COVID-19 closures occurred.
Father denied using physical discipline on the Children. Father testified that he typically does not have to discipline the Children.
LEGAL STANDARD
Since the Court has never entered a final order on custody, residency, and visitation for the children after a full hearing on the merits, the Court must analyze the factors under 13 Del. C. §722 to create an Order that is in the children's best interest. Additionally, the Court shall award both parents frequent and meaningful contact unless the Court finds, after a hearing, that contact of the children with one parent would endanger the child's physical health or significantly impair his or her emotional development.
13 Del C. §722(a): The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interest of the child. In determining the best interests of the child, the Court shall consider all relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
CUSTODY FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother seeks sole legal custody and primary residential placement of the Children. Mother believes that sole custody is necessary due to Father's history of abuse and the parties' inability to discuss matters related to the Children. Mother explained that despite the status of the parties' relationship she ensures that the Children continue to know and love Father. Mother seeks primary residential placement and supervised visitation for Father.
Father requests joint legal custody of the Children. Father testified that he would like joint custody of the Children because he is a "reasonable person." Father would like everything to be "50/50." Father does not want to fight with Mother in order to see the Children. Father's position is contradicted by the findings in the PFA case. While both parties' believe their positions are understandable given their respective situations, the Court finds that factor one favors Mother. The parties do not share a relationship in which joint custody is practicable.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The children are one year and four years old. The Children are too young to express their wishes as to their custodial and residential arrangements.
Factor two is neutral.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabitating in the relationship of husband and wife with a parent of the child , any other residents of the household or persons who may significantly affect the child's best interests;
Mother testified that she shares a great relationship with the Children. Mother testified that she and the Children attend church every Sunday. Mother explained that she ensures that the Children are happy and healthy young girls.
Mother testified that Maternal Grandparents are very active in the Children's lives. Mother explained that Maternal Grandmother would watch the Children while Mother was attending school. Maternal Grandparents adore the Children and host birthday parties for them each year.
Mother testified that Maternal Uncle and the Children's Godmother are very involved in the Children's lives. Maternal Uncle sees the Children on a daily basis and provides Mother with additional support.
Father testified that he has a great relationship with the Children. Father testified that he will take the Children to the park and go on bike rides. However, Father admitted that he has not had any type of contact with the Children in seven months.
Father testified that paternal relatives have not had contact with the Children since January "because Mother does not wish for them to see one another." However, Father's testimony was that Paternal Grandmother does not like Mother because she believes Mother is liar. Father also testified that he believes Mother is a liar but did not provide any evidence in support of his position. Mother's testimony is more believable as she recounted exactly why a father-figure is important in the children's lives. Mother's positive focus contrasts sharply against Father's attributions as to Mother's veracity.
Factor three weighs strongly in favor of Mother. Mother has provided continuous care for the Children since their births. Mother has a large support system and is able to find assistance with the Children when needed. Father has not had contact with the Children in seven months, nor has Father attempted to contact the visitation center to schedule visits.
4. The child's adjustment to his or her home , school and community;
Mother resides in a two bedroom home. Residing in the home is Mother and the Children. The Children have their own room at Mother's home.
Father currently resides in the basement of Paternal Grandparents' home. Residing in the home is Father, Paternal Grandparents, Paternal Aunt and Paternal Uncle. Father explained that there is no exit from the basement of the home. The Children would sleep in Father's bed if he were granted overnight visitation. Father testified that Paternal Uncle is moving out soon and he hopes to utilize his bedroom for the Children.
The older Child attends New Castle Head Start School. Mother testified that she does well in school and is an intelligent young girl. Mother testified that the older Child was "traumatized" after witnessing the several incidents of domestic violence that occurred. The older Child was receiving therapy and continues to work with a school counselor. Mother testified that the teachers believe that the older Child would become an "introvert" after incidents of abuse would occur. The younger Child is only one year old and is not enrolled in school.
Factor four favors Mother. Father currently resides in the basement of Paternal Grandparents' home. Father's plan to have the Children sleep in his bed in a basement is not appropriate for the Children, especially given their young ages. The Children each need their own mattress in a room that is safe in the event of an emergency. Once Father can show that the Paternal Uncle has moved and the Children have a bedroom, Father may begin having overnight visits with the Children.
5. The mental and physical health of all individuals involved;
The parties are both in fine mental and physical health. The Children are in fine mental and physical health with the above-noted school based counseling for the oldest child.
Factor five is neutral as it relates to the parties.
6. Past and present compliance by both parties with their rights and responsibilities to their child under § 701 of this title;
13 Del. C. § 701(a) states in relevant part: "The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare, and education."
Mother testified that the parties ended their relationship on January 4, 2020. Prior to the termination of the relationship, the parties lived together since April 2014. Mother testified that she has been the Children's primary caretaker since their respective births. Mother takes the Children to all medical appointments and ensures that they are up to date on immunizations.
Mother testified that Father has "popped" the Children several times. When questioned by the Court, Mother explained that Father would slap the Children on the forearm area as a form of discipline. Mother testified that she does not use physical discipline and instead believes in speaking with the Children when discipline is necessary.
Mother testified that there were four separate occasions that Father left the Children unattended at home. Father attempted to refute one of the incidents but did not respond to the other three times when it was alleged that he left the Children alone.
Mother explained that pursuant to the PFA Order, Mother was awarded temporary sole custody and Father was to have supervised visitation. Mother explained that Father has not exercised his visitation in seven months. Mother testified that the Children were available for visitation on Thursdays and Fridays but Father "refused to see the Children."
Mother testified that Father has provided her with only $300 one time since the parties split in January 2020. Mother filed a Petition for Child Support on March 30, 2020. To date, the Petition for Child Support has not been properly served on Father. The Court will include a copy of the petition for Father along with this Order. Father has acknowledged that he will accept the mailed service of the Child Support Petition.
Father denied "popping" the Children as a form of discipline. Father testified that he typically does not have to discipline the Children at all.
Factor six strongly favors Mother. Mother has been the Children's primary caretaker since their respective births. To date, Father has not had any form of contact with the Children since January 4, 2020. Father has not attempted to contact the visitation center, nor has he completed the requirements set forth in the PFA Order. Additionally, Father does not assist Mother in providing for the Children financially within his means.
7. Evidence of domestic violence as provided for in Chapter 7A of this title;
13 Del. C. § 706A in relevant part states:
(a) Any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the court in determining the legal custody and residential arrangements in accordance with the best interests of the child.
A two-year PFA Order was entered against Father on January 28, 2020 after a full hearing. The findings of abuse include Father admitting that he wrote a note that that said "I will never hurt Special again", Father having a history of breaking phones so that Mother was unable to call for help, Father kicked Mother down the stairs while wearing work boots, Father stated he was going to kill Mother, and Father hitting Mother on her face, causing a laceration on her lip and the need for medical attention. The allegations and findings are very serious and argue strongly for sole custody.
Factor seven weighs in favor of Mother.
7. The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Neither party has a criminal record that would cause the Court concern in deciding custody and visitation of the children.
Factor eight is neutral.
CONCLUSION
In determining custody, no single factor is determinative. Rather, the Court must weigh the totality of the circumstances and reach a decision that will best serve the Children. From the evidence presented during the hearing on July 10, 2020, the Court finds that factors one, three, four, six, and seven weigh in favor of Mother. Factors two, five and eight are neutral as they relate to the parties. The factors and totality of the factual circumstances favor an award of sole custody and primary residential placement.
The Court hereby orders that Mother shall have SOLE LEGAL CUSTODY of the Children. As sole custodian, Mother must consult with Father on all decisions but Mother ultimately will make the final decision. These decisions include but are not limited to the Children's support, care, nurture, welfare and education.
See 13 Del. C. §701. --------
Mother shall have PRIMARY RESIDENTIAL PLACEMENT of the Children. Father shall have supervised visitation with the Children every Thursday for the longest amount of time available through the visitation center. The Court encourages Father to follow through on his words. There is a clear disconnect between Father's words and his actions. Through his words, it is clear that Father cares deeply for the Children and wishes to spend time with them. However, Father's actions show an anger and aggression toward Mother and the Children. Father needs to remember that the Children are young girls and will grow up to mirror the actions that they observe from their parents.
ORDER
IT IS HEREBY ORDERED this 15th day of July 2020:
1. Mother shall have SOLE LEGAL CUSTODY of K H (born , 2016) and K H (born , 2018).
2. Mother shall have PRIMARY RESIDENTIAL PLACEMENT of the Children.
3. Father shall have supervised visitation with the Children on Thursdays for the longest amount of time available through the center.
4. At such time as Father can provide proof that Father's brother no longer lives in the home and there is a room for the Children other than in the basement, Father's visits will expand to overnights on alternate weekends from Friday at 5 p.m. until Sunday at 7:00 p.m.
5. Holidays shall be divided as shown below:
Father shall have the children on the holidays in Column 1 on odd-numbered years and the holidays in Column 2 in even-numbered years.
Mother shall have the children on the holidays in Column 2 on odd-numbered years and the holidays in Column 1 in even-numbered years.
| Column 1 | Column 2 |
|---|---|
| Easter | Memorial Day Weekend |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving |
| Christmas Eve | Christmas Day |
UNLESS MUTUALLY AGREED TO THE CONTRARY:
a. Easter, Memorial Day, Labor Day, and Thanksgiving holiday shall be from 9:00 a.m. until 7:30 p.m.
b. July 4th holiday shall be from 9:00 a.m. until 9:30 p.m. on July 4th.
c. Halloween shall be from 5:00 p.m. until 8:00 p.m.
d. Once overnight visits have started, Christmas Eve shall be from 9:00 a.m. on Dec. 24th until noon on Dec. 25th. Otherwise, Christmas Eve shall be from 9:00 a.m. until 7:30 p.m.
e. Once overnight visits have started, Christmas Day shall be from noon on Dec. 25th until 7:30 p.m. on Dec. 26th. Otherwise, Christmas shall be from 9:00 a.m. until 7:30 p.m.
6. The parents may modify this schedule but only by mutual agreement.
THIS IS A FINAL ORDER.
IT IS SO ORDERED this 15th day of July 2020.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge cc: Parties, File
Date Mailed/E-Mailed: July 15, 2020