Opinion
File No.: CN15-04654 Petition No.: 15-30429 (Visitation)
10-10-2016
Re: M. R. S. v. M. S.
M. R. S. Norman E. Levine, Esq.
Woodmill Corporate Center
5149 W. Woodmill Drive, Suite 20
Wilmington, DE 19808
LETTER DECISION AND ORDER
Dear Mr. S. and Counsel:
On September 29, 2016, the Court held a hearing on a Petition for Parental Visitation filed by M. R. S. ("Father"), in the interest of T. M. R. ("T. "), born on July 1, 2015. Father appeared at the hearing and represented himself. M. S. ("Mother") appeared at the hearing and was represented by Norman Levine, Esquire ("Mr. Levine").
On September 11, 2015, pursuant to cross-petitions for protection from abuse filed by the parties, this Court granted Mother temporary custody of T. and provided that Father shall have supervised visitation at the Hudson Center every other week. This order expired on September 11, 2016. Father is now requesting visitation with T. at least once a week, for one-half day. Mother opposes Father's request for visitation and is requesting that Father's visitation be supervised at the Hudson Center for two hours, once every three or four weeks.
Visitation Standard
Pursuant to 13 Del. C. § 728, in ordering visitation, the Court shall determine a schedule of visitation with the other 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 that contact of the child with one parent would endanger the child's physical health or significantly impair his emotional development. A parent's right of access to his child will ordinarily be decreed unless that parent has forfeited privilege by his conduct or unless exercise of privilege would injuriously affect the welfare of the child.
A. Child's welfare
Mother presented no evidence that frequent and meaningful contact between Father and T. would be harmful to T. 's welfare. Mother testified that she does not believe Father is a healthy man and that he should see a psychiatrist. To support her beliefs, Mother proffered that Father consistently brings up past claims that Mother and Mother's family stole his passport even though the matter was adjudicated prior to today's hearing. In addition, Mother alleges that Father used a single razor to shave T. 's head that caused a small cut. Mother did not witness Father shave T. 's head but saw Father with a razor in his hand shortly after observing that T. 's head had been shaved. Lastly, Mother alleged that shortly after T. 's birth, Father removed T. from Mother's apartment without her knowledge and did not return with T. for two or three hours.
Father testified that he has visited with T. at the visitation center and that his visits have gone well. No evidence was presented to dispute this testimony.
Mother's testimony is insufficient to prove that Father presents a danger to T. . Father harping on the same issues repeatedly does not suffice to constitute a mental illness. As such, the Court finds that Father should not be required to undergo a mental health evaluation.
While the Court is of the position that shaving T. 's head was likely not a good decision, Father did not harm T. . The fact that Father removed T. from Mother's apartment without her knowledge is troubling, but T. was returned unharmed and the parties were both T. 's parents and Mother had no superior right to make decisions as to when he would be able to go out with his Father. Mother has failed to provide evidence that Father has committed any act which would disqualify him from frequent and meaningful contact with T. . T. is fifteen months old and should be afforded the opportunity to develop a relationship with his father. Accordingly, the Court finds that Father's visitation with T. would not be harmful to his physical health or significantly impair his emotional development.
B. Best interest factors
The Court sets forth the evidence below as it pertains to the "best interest of the children standard" under 13 Del. C. §722.
1. The wishes of the child's parents as to his or her custody and residential arrangements.
Father requests visitation with T. once a week for at least one-half day. Father lives in a one bedroom apartment and has a place to visit with T. . Mother requests supervised visitation at the Hudson Center for two hours, every three or four weeks.
Mother's request would deny Father of frequent and meaningful contact with T. . The Court does not find Father's request unreasonable and finds Mother's position unreasonable. Thus, factor one weighs in favor of Father.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements.
T. is only fifteen months old and much too young to be interviewed or asked this question. Thus, factor two is inapplicable.
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, and any other residents of the household or persons who may significantly affect the child's best interests.
Father has visited with T. at the visitation center for the last year. His last visit was on September 11, 2016, due to the order expiring. Father testified that his visits went well and that T. was happy with Father. Father expressed concerns that T. would not sit properly during visits and that he was of the opinion that T. was not being properly placed in his car seat. He stated that T. is doing well now. Father has no other family members here in the United States.
T. has lived with Mother and Mother's family, including maternal grandfather, maternal grandmother, maternal aunt, and maternal uncle, since his birth. Mother lives in her own apartment with T. . Mother testified that she has a busy work and school schedule and relies heavily on maternal grandmother to watch T. when she is at work or in school.
This factor does not weigh in favor of one parent versus the other given the limited amount of visitation requested by Father. Both parents seem to have positive interaction with T. . Mother has extended family that is very involved, but Father should have more of an opportunity to bond with T. .
4. The child's adjustment to his or her home , school and community .
T. primarily resides with Mother. Mother initially testified that she was the child's sole caregiver. Yet, when the Court attempted to schedule the exchange Mother testified that she has a busy work and school schedule and relies heavily on maternal grandmother to watch T. when she is at work or in school. Mother made scheduling the limited six hour visit very difficult.
This factor does not weigh in favor of one parent versus the other. While T. is more adjusted to Mother's home, Father is requesting very limited visitation. This is not a situation where Father is seeking to have T. reside with him.
5. The mental and physical health of all individuals involved.
Father stated that his health is good. Father works at Wholesale Outlet, as a customer care cashier, full time.
Mother appeared to be in good health. She testified that she attends Delaware Technical Community College and is working toward an Associate's Degree in General Business. Mother also works in the evenings.
Mother testified that T. is very healthy and has check-up appointments with his doctor every three months. There is no actual evidence that T. had any negative consequences from sitting improperly in a car seat.
This factor does not weigh in favor of one parent versus the other.
6. Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this section.
Father stated that he visited with T. at the visitation center and has complied with the child support order, paying $200.00 monthly.
7. Evidence of Domestic Violence as provided for in Chapter 7A of this title.
There was no new evidence of domestic violence presented. Both parties filed Petitions for Orders of Protection from Abuse, which were granted on September 11, 2015. Father's Petition did not allege physical abuse. The Commissioner found that Father caused scratch marks to Mother with a pin. Thus, this factor weighs somewhat in favor of Mother but Father has attended the visitation center for a year and is now only requesting a few hours of visitation.
8. The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Neither party has any significant criminal history relevant to this matter. Therefore, this factor is inapplicable.
The best interest factors weigh in favor of Father being awarded visitation with T. . Mother did not present any evidence which sufficed to prove that Father's visitation would be anything other than in T. 's best interest. Father has been visiting with T. at the visitation center for the past year without incident and has complied with the child support order. Although Mother's PFA Order was granted last year, Mother did not present any evidence during the hearing that would suggest that Father posed a legitimate threat to her or T. .
ORDER
THEREFORE, IT IS HEREBY ORDERED this 10th day of October, 2016 that:
1. Father shall have visitation with T. every Wednesday from 8:00 a.m. until 2:00 p.m. Mother and Father shall meet at Delaware State Police: Troop 6, 3301 Kirkwood Highway, Wilmington, DE 19808, to pick up and drop off T. .
2. Father's visits shall be unsupervised.
IT IS SO ORDERED.
Very truly yours,
FELICE GLENNON KERR, JUDGE Date Mailed: __________
Capri M.P. v. Ronald O., 480 A. 2d 669, 673 (Del.Fam.Ct. 1984) (quoting 2 Nelson, Divorce, § 15.26 (2d ed. 1961).