Opinion
File No. CN17-05278 Case No. 19-00043
09-13-2019
T M , Petitioner, v. A H , Respondent.
ORDER ON PETITION TO MODIFY CUSTODY ARRINGTON, Judge.
On September 5, 2019, the Court conducted a hearing on the petition for modification of custody in the interest of A H (d.o.b. / /15) ("Child"). Present in Court were T M ("Petitioner/Mother") and A H ("Respondent/Father"). Both parties were self-represented at the hearing.
The Court understands that parenting is very difficult, especially when each parent has different styles and methods to their parenting. Child is facing adjustment issues and, in order to mitigate these issues, it is important that both parties work together to help [Child adjust to his homes with different standards and expectations. The challenge, of course, is for each parent to support the other while maintaining their own standards of conduct within the home. The Court believes this is possible and, more importantly, in the best interests of Child. Based upon the evidence presented, the Court's decision is as follows.
Factual Background
Father is 34 years old and resides at Avenue in Philadelphia, Pennsylvania with Paternal Grandmother. The residence is a two-story home with three bedrooms. Father is currently unemployed.
Mother is 28 years old and resides at Avenue in Wilmington, Delaware with her 8 year old son, M M , and S M ("Maternal Grandmother"). The residence is a two-story home with three bedrooms and two bathrooms. Child and M share a bedroom with bunkbeds. Mother works exceptionally hard to provide for her family. She currently is employed full-time at Whole Foods working Tuesday through Saturday nights from 10:00 pm until 5:00 am. Mother also works part-time at Wawa, totaling approximately 55 hours per week between the two jobs.
Currently, Father picks Child up from Mother's residence Thursday evenings and has custodial time with him until Saturday evenings the first three weekends of each month. On Saturdays, Maternal Grandmother and Father meet in Columbia, Maryland to exchange Child at approximately 9:00 pm.
Mother's Testimony
Mother states her request for sole legal custody and visitation with Father on alternate Friday afternoons until Sunday evenings. Mother requested that pick-up and drop-off of Child be at her residence. Mother believes driving to Maryland to pick Child up each Saturday negatively affects Child's schedule, as Child does not get back to Mother's home and in bed until close to midnight. Mother believes this change will also help Child adjust to his new school schedule and allow him time to prepare for the school week each Sunday night.
Mother further testified to concerns she has with Child's behavior after returning from visits with Father. Mother explained to the Court that after every visit with Father, Child is extremely aggressive, has used profanities, has no respect for authorities, and acts inappropriately by attempting to urinate on his stepbrother and in water bottles kept in the home. Mother expressed it takes her 3-4 days following Child's return from Father to break him of this behavior. Mother testified she has attempted to address these issues with Father but her messages are left unanswered. Mother believes bi-weekly visitation is in Child's best interest to allow her to correct his behavioral issues and give Child more stability.
When asked why Mother believes Father is unable to make decisions regarding Child, Mother testified that Father's answers are that "finances are tight" or "it's not his problem." Mother further explained she feels as though Father has not been present in Child's life aside from visitation in over two years.
Currently living at Mother's home is Mother, Child, Maternal Grandmother and her older son, M M (8 years old). Mother's niece, A M (1 year old), also spends most weekends at the home. Mother testified that she and Child are extremely close as they spend all day together. According to Mother's testimony, Child and M get along very well. They play football together, play games together, and M reads homework to Child. Child also has an excellent relationship with Maternal Grandmother as the two spend time together almost every evening and Maternal Grandmother picks Child up from Maryland on Saturdays. Further, Mother testified Child plays very well with A and is very protective of her.
Mother testified that Child has many friends in her family-orientated neighborhood in Wilmington. Mother explained that her neighborhood is filled with children that play together. Mother explained children in the neighborhood trick-or-treat together as well as celebrate Christmas, New Years, and the Fourth of July together.
Further, Mother testified that Child will be attending school for the first time beginning Wednesday, September 11, 2019, at New Castle County Head Start Program. According to Mother's testimony, Child has recently visited the school and is very excited to start. Following his time at New Castle County Head Start Program, Child will attend kindergarten at Marbrook Elementary School, which is the same school as M M .
Mother called Maternal Grandmother as her only witness. Maternal Grandmother began her testimony telling the Court the extent of her relationship with Child. Maternal Grandmother testified she and Child spend every evening together and she is the one who picks Child up in Maryland following visitation with Father. Maternal Grandmother testified that Child's behavior is different following each visit. Maternal Grandmother explained that most times Child is either very hyper, crying, or using profanities toward her. Maternal Grandmother further testified to witnessing Child attempting to urinate on his stepbrother and urinating on the floor. When Maternal Grandmother attempted to discipline Child for these acts Child stated he learned to do so from his dad.
Maternal Grandmother continued her testimony with her opinion of each of the parties' parenting styles. Maternal Grandmother believes Mother is a good parent and explained different activities she has observed Mother doing with her two sons. As it relates to Father, Maternal Grandmother is limited to the times she sees Father with Child. Maternal Grandmother has witnessed Father holding Child like a baby and hugging him often, in her opinion making Child feel like he is a "young little boy." Maternal Grandmother is worried Child's "negative behavior" will affect him at school and is worried he will be a disruptive child.
Father's Testimony
Father began his testimony stating his request to keep joint legal custody of Child. Father explained he believes joint custody is best, as it is important for Child to have both parents in his life. Father testified he does not agree to a reduced visitation schedule as Father wants to be involved in Child's life and believes seeing Child only twice a month is not being a parent. Father believes that he and Mother are still in the "clashing stage" post-divorce but believes they can work together to achieve the purposes of joint legal custody.
Father introduced into evidence two different text messages sent to him by Mother. The first message, marked as Father's Exhibit 1, was from March 2017 and was offered for proof that Mother was not allowing Father to see Child because Father stopped spending time with her older son, M, following the separation. The second message, marked as Father's Exhibit 2, was offered as evidence that Mother will be raising Child as a "M " not as a "H ." This evidence, according to Father, suggests that Child may be confused as to his identity. Father testified that Child has been told by Mother that his last name is M , not H .
Father contrasted his parenting style as compared to Mother's in raising Child. Father testified he allows Child to be a four-year old kid. However, Father explained whenever Child does something wrong, either Father or Paternal Grandmother will tell Child "straight up the right way to do something and the wrong way to do something" or take away his toys and tablet. While Father testified he does not see the bad behavior Mother claims to exist, Father stated he would correct Child right away if such behavior occurred.
Currently living at Father's house is Father and E M ("Paternal Grandmother"). Father testified that his neighborhood has recently been renovated and "is a normal area". Father explained that there are three schools within two blocks of his home.
Father called his long-time friend, J F [Redacted] , as a witness. Ms. F testified that she has known Child for about 2-3 years and has always observed him as friendly. She testified that she has a son who is around the same age as Child and the two play together every time Child is with Father. Ms. F further testified that she has never seen the bad behavior as discussed above.
Father concluded his case by calling Paternal Grandmother as a witness. Paternal Grandmother began her testimony stating she would describe Child as a "sweet little boy" and a "regular little boy." Paternal Grandmother also testified she has never seen Child use profanities or disregard authority figures. Paternal Grandmother testified she will discipline Child by sitting down with him and telling him the right and wrong way to act. Paternal Grandmother concluded by testifying that when it is time for Child to leave each Saturday he does not want to, begins to cry, and hides in her bedroom.
Legal Standard
Since the previous Custody Order was entered by consent, the Court must analyze all factors in 13 Del.C. §722(a) to create a new Order that is in Child's best interest. Additionally, the Court is required to award both parents frequent and meaningful contact unless the Court finds, after a hearing, that contact of the Child with one parent would endanger the Child's physical health or significantly impair his or her emotional development.
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements.
Mother is requesting sole legal custody and primary residency of Child. Regarding her preferences to visitation, Mother is requesting that Father have alternating weekend visitation, beginning with pick-up at her residence on Friday evening and ending with drop-off at her residence Sunday evening.
Father disagrees and seeks joint legal custody of Child and visitation Friday through Sunday every weekend. Father believes it is important for Child to spend time with both parents and wants to be in his life as much as possible. Father believes the parties are still in a "clashing stage" but he is ready to move forward.
Mother's request for sole custody is understandable, but there was no evidence that the parties are unable to discuss the essential factors in Child's life to reach a mutual decision. Factor 1 is neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements.
Child is four years of age and unable to adequately express his wishes. The parties each testified that Child wishes to live with each of them. Mother explained Child loves living with his stepbrother and enjoys the ability to play with the other Children in her neighborhood. Further, Mother testified that Child is happy when living with her and that his behavior is acceptable on the weekend(s) following his three weekends with Father.
Conversely, Father testified that Child loves living with him and considers Father's residence "his house." Father and Paternal Grandmother both testified that Child begins to cry and hides when it is time for him to leave Father's house on Saturday evenings. Father testified he believes Child not wanting to leave could be the reason behind his bad behavior on car rides back to Mother's home. However, children of Child's age will often cry when leaving either home. This is less a sign of preference than an expression of the difficulty of transitioning between homes.
Child loves each of his parents. It is understandable that a four-year old may struggle with transitions between houses. Factor 2 is neutral as to the parties.
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.
Child has lived with Mother for the last two years. Also living in the home is Maternal Grandmother and stepbrother, M M . Mother's niece, A M l, also spends most weekends at the home. Mother testified that Child has a very strong relationship with all named persons living in the home.
When Child is with Father, he also lives with Paternal Grandmother. Father and Paternal Grandmother both testified that Child enjoys spending time with them both. Additionally, when Child is with Father the two spend time with Ms. F and her son who is similar in age to Child. Ms. F testified that Child and her son enjoy spending time together.
Child's reported conduct with M shows that he has a strong connection with his brother. Although the transitions at present are difficult, the four- year old should outgrow any problems if the parents work with him. Factor 3 slightly favors Mother.
4. The child's adjustment to his or her home, school and community.
According to Mother's testimony, Child loves living with her and his stepbrother. Child enjoys being able to spend time with his stepbrother and with other children in the neighborhood. Child will be attending a school that is within three blocks of Mother's house starting September 11, 2019.
According to Father's testimony, Child enjoys living with him and Paternal Grandmother. Father testified that his neighborhood has recently been completely renovated and is a nice area. Both Father and Ms. Fisher testified that Child and Ms. Fisher's son play together often. Further, Father explained that there are three schools within two blocks of his home. However, Child will be attending New Castle County Head Start Program which is a significant distance from Father's home in Philadelphia.
Mother's preparation for school and the parties conduct with respect to school supports Mother's place for attending The New Castle County Head Start Program. Factor 4 favors Mother.
5. The mental and physical health of all individuals involved.
Both Mother and Father are in good physical and mental health. Mother testified that her other son, M , has autism that is classified as high-functioning. Mother explained M mainly suffers from a social condition and a stutter. M was previously seen by Delaware Guidance and now works with an in-school counselor and classroom aid. Child, by contrast, is physically healthy and, despite his adjustment issues, is a happy Child.
Factor 5 is neutral, as there are no health conditions that would negatively affect custody or placement of the Child.
6. Past and present compliance by both parents with their rights and responsibilities to their children under §701 of this title.
Both parents have complied with the original Virginia Custody Order. It is clear to the Court that both parties have very different, yet acceptable, parenting styles. Mother testified to her more structured style of parenting. On the other hand, Father believes in allowing Child to "be a kid," but still will appropriately discipline him when necessary.
The difference in parenting styles is not a detriment but rather an asset for Child. Both parties love Child and want him to grow into a fine young man. The parties need to understand and support the standards of each other and work together to harmoniously provide a united approach that Child will understand. Factor 6 is neutral as to the parties.
7. Evidence of domestic violence as provided in Chapter 7A of Title 13.
The parties both testified that there is no domestic violence between them and no domestic violence with any of the residents in their respective homes.
Factor 7 is neutral.
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.
There is no criminal history for either party that would cause concern for the Court in deciding custody of Child.
Factor 8 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 Child. From the evidence presented at the hearing on September 5, 2019, the Court orders that the parties shall have JOINT LEGAL CUSTODY of Child. As joint custodians, the parties must discuss all of the major decisions in Child's life before reaching a decision. These decisions include but are not limited to the Child's support, care, nurture, welfare, and education.
See 13 Del.C. §701. --------
The current schedule of custodial time must be revised in light of Child's schooling. Mother shall have primary residential placement of Child but Father will have substantial parenting time. Child's school schedule coupled with the distance between New Castle County Head Start Program and Father's residence was considered in making this decision. Father shall have Child for the first, second, and fourth weekends of each month from Friday after school through Sunday at 7:30 pm. Father shall also have a weekly dinner visit with Child every Tuesday evening from after school to 6:30 p.m. so long as the dinner takes place in Delaware. Child should not have to travel to Philadelphia for a mid-week dinner visit. Father is encouraged to include M in these weekly dinner visits if Mother agrees. Mother shall have Child beginning every Sunday evening to Friday after school as well as the third and fifth weekends. A "fifth weekend" shall be defined as a Friday and Saturday occurring in the prior month. Otherwise, the weekend shall be considered the first weekend of the next month. Beginning with the first Monday after school ends until the Sunday before school resumes, each party shall have alternating full weeks with Child with no mid-week dinner visit.
ORDER
IT IS HEREBY ORDERED this 13th day of September 2019, that:
1. Mother and Father are awarded JOINT LEGAL CUSTODY.
2. Mother is awarded PRIMARY RESIDENCE.
3. During the school year, Father shall have custodial time on first, second, and fourth weekends from Friday after school until Sunday at 7:30 p.m. of each month and a weekly dinner visit in Delaware every Tuesday.
4. Beginning with the first Monday after school ends until the Sunday before school resumes, each party will have alternating full weeks with Child. Mother shall have the first week after school has ended.
5. The pick-up and drop-off location will take place at Mother's residence with Father providing all transportation.
6. The following holiday schedule and special conditions shall apply to this Order. Holidays overrides any regular visitation:
1. Holidays Father shall have the Child on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in even-numbered
years. Mother shall have the Child in Column 2 in odd-numbered years and the holidays in Column 1 in even-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holiday | Memorial Day |
| Fourth of July | Labor Day |
| Christmas Day | Thanksgiving WeekendChristmas Eve |
UNLESS MUTUALLY AGREED TO THE CONTRARY:
a. Easter holiday shall be from 7:00 p.m. on Saturday before Easter until 7:00 p.m. on Easter Sunday.
b. Memorial Day and Labor Day shall be from 9:00 a.m. until 7:00 p.m. on each of the holidays.
c. July 4th shall be from 9:00 a.m. on July 4th until 9:00 a.m. July 5th.
d. Thanksgiving weekend shall be from 9:00 on Thanksgiving morning until 7:00 p.m. on the Sunday following Thanksgiving.
e. Christmas Eve shall be from 9:00 a.m. on Dec. 24th until noon on Dec. 25th.
f. Christmas Day shall be from noon on Dec. 25th until 7:00 p.m. on Dec. 26th.
2. Mother's/Father's Day : On Mother's Day and Father's Day, no matter whose turn for contact, the Children shall be with the parent whose holiday is being celebrated from 9 a.m. until 7 p.m.
3. Late pick-up : Both parents shall have the Children ready for pick-up at the start of all contact periods. The Children 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.
4. Drop-off : Neither parent shall return the Children early from contact unless the parents agree to a different drop-off time in advance.
The parent or other adult well-known to the Children must be present when the Children are returned from contact.
5. Canceling contact : Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
6. Medical treatment and emergencies : If the Children become seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the Children become ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.
7. Communication : Both parents shall be entitled to reasonable communication with the Child while the Child is in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between the Children and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
8. School work : Parents shall provide time for Children to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the Children. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for a Child must be attended, regardless of which parent has the Child during the summer school period.
9. Relocation : Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the Child's school, travel time to school or extracurricular activities or otherwise may adversely affect the Child's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
10. Notice of change of address : Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.
IT IS SO ORDERED this 13th day of September 2019.
THIS IS A FINAL ORDER.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge Date mailed/emailed: 9/13/19