Opinion
File No.: CK04-04465 Petition No.: 15-26483
09-06-2016
Re: W------ R. D----- v. G----- H. J----, Jr.
W------ R. D----- ------ ------- --- ------- ------- Road D----, DE ----- G----- H. J----, Jr. --- C------- Court D----, DE
LETTER DECISION AND ORDER
Dear Ms. D----- and Mr. J----:
On August 17, 2016, the Court conducted a hearing on a Petition for Custody filed by W------ R. D----- ("Mother") in the interest of T--- R. D----- ("T---"), born -------- -, ----. Present in Court were Mother, representing herself, G----- H. J----, JR. ("Father"), representing himself, and B----- M------- ("Ms. M-------") from the Department of Services for Children, Youth, and Their Families ("DSCYF"). The Court heard testimony from the parties and Ms. M------- and conducted a child interview with T--- at the conclusion of the hearing at Mother's request. The Court's decision on Mother's Petition for Custody follows.
Mother requested through the Court that Ms. M------- attend this hearing to provide testimony about a DSCYF investigation resulting from a domestic incident between the parties on August 30, 2015.
Father was not opposed to Mother's request for T--- to be interviewed by the Court.
Procedural History
Mother and Father were never married and have never resided together. On August 30, 2015, a domestic dispute transpired between the parties in T---'s presence at Maternal Grandmother's home, where Mother was residing. That incident was investigated by DSCYF and is discussed at length below. Mother filed the instant Petition for Custody on August 31, 2015, and Father filed his response opposing Mother's petition on November 10, 2015.
Father was convicted of two counts of terroristic threatening against Mother on September 24, 2015 as a result of the incident, and DSCYF determined that T--- was the victim of severe emotional neglect by Father at the conclusion of its investigation on January 5, 2016. On March 17, 2016, Mother filed a Motion and Affidavit for Emergency Ex Parte Order, claiming that someone from DSCYF advised her to do so "in case [Father] tries to take [T---] and get custody." That motion was denied by the Court on March 18, 2016, and this Custody Hearing was scheduled for August 17, 2016.
Factual Background
Mother is twenty-seven years old and resides in D----, Delaware. She told the Court that she plans to file a protective order in regards to her address, as she does not want Father to know where she is residing. The other residents of her home include T--- and her three younger children, D------ D----- ("D------," born -------- -, ----), D------ D----- ("D------," born --------- -, ----), and P------- D----- ("P-------," born -------- --, ----). Mother was previously married to the biological father of those children, D----- W------ ("Mr. W------"); however, Mother and Mr. W------ were divorced on October 14, 2015. Mother represented that there is a visitation order in place through the Family Court with respect to D------, D------, and P------- but that Mr. W------ does not exercise his schedule of contact. Mother is not employed; she receives disability and TANF benefits through the State as well as child support.
Father is thirty-five years old and resides at --- C------- Court in D----, Delaware. This home belongs to Father's parents, G----- J----, Sr. ("Paternal Grandfather") and L------- J---- ("Paternal Grandmother"), with whom he has been residing since his release from incarceration on April 27, 2016. Father obtained employment at --- ----- following his release and continues to work in that capacity making blimps and balloons. His hours of employment are from 7:00am through 3:30pm every Monday through Friday. Father told the Court that he is capable of visiting with T--- during the week or on weekends and that there is a furnished bedroom at Paternal Grandparents' home where she could stay overnight.
Father told the Court that he was incarcerated for 90 days after violating a criminal no-contact order with an individual by the name of N----- H--- ("Ms. H---").
T--- has resided primarily with Mother since her birth. Although there is some dispute as to the extent of Father's contact with T--- throughout her life, the parties agree that it has been rare. Mother told the Court that Father has seen T--- five or six times over her life and could only recall one occasion on which T--- visited him overnight. Father essentially agreed with Mother's representation but asserted that the number of visits "may have been more" and that T--- has stayed overnight with him on more than one occasion, including the last time he saw her in August 2015. It is undisputed that Father's last visit with T--- took place on the date of the parties' domestic altercation on August 30, 2015.
Mother is seeking sole legal custody and primary residency of T---. She is opposed to any contact between T--- and Father at this time based upon her belief that T--- does not wish to have any contact with him. Father is opposed to Mother's request for sole legal custody but stipulated to an award of primary residency to Mother. Although he did not file a Petition for Visitation, Father represented that he would like visitation with T---. However, he indicated that he would not "push it" in the event T--- told the Court that she does not wish to have contact with him.
Legal Standard
Since the Court has never entered a Final Order on custody, residency, and visitation for T--- 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 T---'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 child with 1 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 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;(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
(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.
§ 722 Factors
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother is seeking sole legal custody and primary residency of T---. She is opposed to any contact between T--- and Father at this time; she believes T--- does not wish to see Father and is fearful of him after witnessing the domestic incident in August 2015.
Father agreed for T--- to continue residing primarily with Mother but opposed Mother's request for sole legal custody since he "sees no reason" for such an award. Father did not file a Petition for Visitation but told the Court that he would like to have visitation with T---. Father explained that he always wants to see T--- but that it is "on [Mother's] time." According to Father, Mother does not allow T--- to see him often because she does not like T--- to be around other women and/or Paternal Grandparents. Father never sought visitation through the Court because he believes he and Mother should be able to agree and is "not going to fight with her."
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
At Mother's request, the Court conducted a child interview with T---, who is twelve years old. Father did not oppose Mother's request and told the Court that he would not "push it" if T--- were to state that she did not wish to have contact with him. Mother indicated that she has not attempted to influence T--- in any way and that it is T---'s choice "who she looks up to." Mother does not believe T--- wants to see Father and is still scared from the August 2015 incident. According to Mother, T--- hid behind her when she saw Father at the courthouse on the date of this hearing.
T--- told the Court that she did not know the reason for her interview. She represented that she has not seen Father in "a long time" and that she does not want to have contact with him. When asked for her reasoning, T--- explained that when she last visited Father she witnessed his acts of domestic violence towards Mother and another ex-girlfriend. According to T---, Father went to his ex-girlfriend's house, grabbed her cell phone out of her hands, and proceeded to physically abuse her. Father then drove with T--- to Mother's residence at Maternal Grandmother's home and threatened to have his brother shoot Mother. T--- told the Court that nothing would change her mind about visiting with Father; there are no third-party supervision provisions or any other conditions that the Court could order to make her feel safe with Father. T--- does not foresee a future time when she will feel comfortable seeing Father since she is doubtful that people can change.
T--- reported that she only saw Father on two occasions prior to her last visit in August 2015 and that she also has not had any telephone or social media contact with him since that time. She indicated that her two earlier visits with Father, which included an overnight visit at Paternal Grandparents' home, went well. Although she used to see Paternal Grandparents on a more frequent basis than Father, T--- also has not seen them since her last visit with Father on August 30, 2015. According to T---, Paternal Grandmother no longer calls to come pick her up like she used to. T--- would be open to seeing Paternal Grandfather but has no interest in seeing Paternal Grandmother, as she believes Paternal Grandmother was involved in the domestic incident and continues to text "bad stuff" to Mother.
(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 represented that her relationship with T--- is "excellent" and that T--- gets along well with her three half-siblings.
According to Mother, Father does not have a relationship with T--- since he was never around to develop one. T--- reportedly calls Father "G-----" instead of "dad." Father provided no testimony regarding the quality of his relationship with T--- but admitted that he has rarely seen her throughout her life. The Court notes that T--- is fearful of Father and has no desire to see him at this time.
As noted above, T--- previously had a relationship with Paternal Grandparents but has not seen them since August 2015. T--- would be interested in seeing Paternal Grandfather again but not Paternal Grandmother.
(4) The child's adjustment to his or her home , school and community;
T--- indicated that everything is going well in Mother's home and that she gets along with all of the other residents. Ms. M------- conducted a home assessment in conjunction with her investigation and found Mother's home to be appropriate. At that time, Mother's home had working utilities, appropriate furniture, and an adequate supply of food.
T--- will be a seventh grade student at ----- Middle School beginning on August 29, 2016. She enjoys school and told the Court that her favorite class is gym. She has an Individualized Education Program ("IEP") for reading comprehension and math. T--- is not currently involved in any extracurricular activities but would like to participate in track this year. Mother indicated that T--- is a good student and has received honors and awards through her school.
Ms. M------- also obtained medical and educational collaterals for T---, D------, D------, and P------- during the course of her investigation. She advised that no concerns were discovered. All four children appeared to be clean and dressed appropriately at all times.
(5) The mental and physical health of all individuals involved;
The Court received limited evidence under this factor. Mother testified that both she and T--- are in "okay" physical and mental health. Father told the Court that he is in "good" physical and mental health as well.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
A child support order was entered on March 18, 2013 that requires Father to pay Mother $216 per month for T---'s support, $197 of which is his current monthly obligation and $19 of which is his monthly payment towards arrears. Mother testified that Father is not current in his obligation; although he recently began paying "a little bit," Mother claims that Father's arrears are close to $600. Father asserted that he has been paying child support directly from his paycheck ever since he found out that he was T---'s biological Father. He believes his arrears, which were accrued while he was incarcerated, are only around $365. Father further stated that he previously had T--- covered on his medical and dental insurance plan when he worked at Delaware State University.
Mother represented that T--- has resided with her for her entire life and that she has served as T---'s sole caregiver. Mother asserted that Father has only ever seen T--- five or six times and has never tried to call T---, even on her birthdays and holidays. According to Mother, Father saw T--- "once in a blue moon" from the time she was born until one year ago, at which point she attempted to increase his involvement in T---'s life following her divorce from Mr. W------. Father then began taking T--- to family barbeques occasionally, most recently in July 2015. However, Mother no longer wishes for Father to be involved in T---'s life after committing the abusive act in her presence during her last visit in August 2015. Although T--- has not visited with Father since that day, Mother told the Court that T--- saw Father from her car window one day shortly after the scheduling conference in this matter in April 2016. Mother suggested that T--- try to talk to him, and T--- called out his name from the car window. However, according to Mother, Father kept walking and "paid [them] no mind." Mother stated that she "knows" Father heard T--- but would not even look in her direction.
Father could not recall the exact number of times he has seen T--- throughout her life, but he conceded that Mother's representation was essentially accurate. However, he asserted that he has tried to call T---, and the only reason he has rarely seen her over time is because Mother refuses to allow it. Mother denied that allegation, emphasizing that she always allows T--- to decide whether she wants to visit with Father but that she never wishes to do so.
Father further claims that T--- occasionally reaches out to him on social media or text message asking when she can see him again. However, he told the Court that he does not respond to her messages in light of the no-contact order. In her interview, T--- denied having any communication with Father via social media or text message since August 2015.
According to Mother, Father has never asked to be involved in medical or educational decisions for T--- and has never sought information or updates. The only school event Mother could recall Father attending was T---'s Kindergarten graduation, which Father confirmed. Father explained that, although he was not prohibited from having contact with T--- or her school prior to the current no-contact order, he was never notified of any events. He used to get bills in the mail pertaining to T---'s medical treatment, but he was never notified of appointments or medical issues in advance.
Mother does not believe she would be able to work with Father as joint legal custodians to reach decisions in T---'s interest. She emphasized that altercations always ensue whenever Father becomes involved. Mother has had limited contact with Father herself over the course of T---'s life and would mostly communicate with Paternal Grandparents about Father. According to Mother, Paternal Grandparents would express their agreement that Father needs to "step up" and be a better parent to T---.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Mother gave the following account of the events which transpired on August 30, 2015. T--- had been visiting with Father that day and Father was late returning her home. When Father arrived at Maternal Grandmother's home, where Mother was residing, an argument ensued between the parties. Father then physically pushed Mother, and several neighbors came to get in between them. Father called his brother on the telephone and told him to "bring the gun" to Mother's home and shoot her. Mother called the police but Father had fled the property before they arrived. Mother told the Court that Father's brother did arrive at her home but she did not see a gun in his possession. Mother knew the police were searching for Father but did not know if he was ever convicted of criminal charges. Mother indicated that she did not file for an Order of Protection from Abuse ("PFA") because she was already involved in a lot of litigation with Mr. W------.
Father indicated that he was supposed to have T--- back home by 8:30pm since it was a school night, but he did not arrive until 8:34pm. According to Father, Mother "freaked out" even though he was only four minutes late.
According to Ms. M-------, DSCYF received a hotline report from the Delaware State Police on August 30, 2015 regarding a domestic violence incident between Mother and Father. The allegation at that time was emotional abuse to T---, who had witnessed the incident. According to the reporter, Mother had recently agreed to allow Father back into T---'s life shortly before the incident. However, on the date of the report, Father allegedly threatened to "get a jawn" and "shoot up" Mother's home. Ms. M------- represented that Father fled the home but was eventually located by police and was charged with two counts of terroristic threatening, disorderly conduct, and offensive touching.
Ms. M------- explained that "jawn" is a slang term for a handgun.
Ms. M------- was the lead investigator on the case and conducted interviews with T---, Mother, Father, and Mother's other three children. Ms. M------- first met with T--- at ---- Middle School on September 9, 2015. At that time, T--- represented that she rarely sees Father but was with him on the weekend of the incident. T--- explained that Father was supposed to bring her back home at a certain time, and an argument broke out over the telephone when he called Mother to advise that he was running late. T--- reported that Father cursed at Mother and proceeded to drive to Maternal Grandmother's home. Once he arrived at the residence, T--- stated that Father "put his hand on [Mother]." When Ms. M------- asked T--- to elaborate, she indicated that Father pushed Mother but that Mother did not reciprocate with any violence. T--- was very upset and mad about this incident.
Ms. M------- conducted a telephone interview with Father on September 17, 2015. According to Ms. M-------, Father stated that he and Mother got into an argument about what time T--- would be returned from her visit with him. He asserted that Mother wanted T--- to come home because she felt threatened by any time that T--- spent with him. Father denied touching Mother but admitted to arguing with her.
Ms. M------- told the Court that Father was substantiated at Level II for severe emotional neglect to T--- as a result of the investigation, which was closed in January 2016. DSCYF recommended that Father follow through with the terms of his probation but took no official position about visitation between Father and T---. However, Ms. M------- recommended that a third party facilitate visits and provide transportation for T--- in the event visitation is to continue such that any contact between Mother and Father is avoided. According to Ms. M-------, T--- was "nonchalant" about her desire to see Father at the beginning of the investigation, merely stating that it did not matter to her. However, T--- reportedly became more adamant in her aversion to contact with Father as the investigation progressed.
Father informed the Court that there is a "zero tolerance" no-contact provision regarding both T--- and Mother set forth in his sentencing order. He explained that if Family Court were to order visitation with T---, he would have to go to the Court of Common Pleas to request that the criminal no-contact order be lifted. The Court independently confirmed that Father was ordered to have no contact with Mother and/or T--- as a condition of his sentence.
Mother represented that the August 2015 altercation was the only incident of domestic violence between the parties. However, she indicated that Mr. W------ has committed acts of domestic violence towards her as well and that there have been PFAs entered against him. Ms. M------- also testified that DSCYF has received hotline reports pertaining to Mr. W------ and his three children with Mother. One report was screened out and the other went unsubstantiated without concerns. Ms. M-------confirmed that Mother has never been substantiated for abuse or neglect.
The Court notes that there is currently a PFA Order against Mr. W------ naming Mother, D------, D------, and P------- as protected victims. That Order was entered on August 4, 2015 and expires on August 4, 2017. However, a Visitation Order was subsequently issued on June 14, 2016 awarding Mr. W------ alternate weekend visitation with the children.
On November 5, 2012, Father was convicted of criminal contempt of a PFA Order that names T-- H----- ("Ms. H-----") as a victim. The Court notes that the PFA Order was entered in April 2012 and prohibited Father from having contact with Ms. H----- or her property. Father explained that he used to watch Ms. H-----'s children while she attended night class, and he was found in violation of the no-contact order when he returned the children to her home one night. According to Father, the police were contacted after he got into a verbal altercation with Ms. H-----'s boyfriend.
Under 13 Del. C. § 703A(b), a person who is convicted of criminal contempt of a family court protective order based on an assault or other physical abuse, threat of assault or other physical abuse, or any other actions placing the victim in immediate risk or fear of bodily harm is considered a perpetrator of domestic violence. A presumption against an award of legal custody or primary residency applies to perpetrators of domestic violence under § 705A(a)-(b), and the Court cannot grant an individual with such status legal custody or primary residency unless and until the individual successfully rebuts that presumption in accordance with § 705A(c). However, in this case, the Court received insufficient evidence to conclude that Father's conviction for criminal contempt of a family court protective order was based on an assault or other physical abuse, threat thereof, or any other action that placed Ms. H----- in immediate risk or fear of bodily harm. Accordingly, the Court does not find that Father is precluded from serving as a joint legal custodian to T--- on that basis.
Under 13 Del. C. § 703A(b), "'[p]erpetrator of domestic violence' means any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:
(1) Any felony level offense;
(2) Assault in the third degree;
(3) Reckless endangering in the second degree;
(4) Reckless burning or exploding;
(5) Unlawful imprisonment in the second degree;
(6) Unlawful sexual contact in the third degree; or
(7) Criminal contempt of Family Court protective order based on an assault or other physical abuse, threat of assault or other physical abuse or any other actions placing the petitioner in immediate risk or fear of bodily harm."
In relevant part, 13 Del. C. § 705A indicates:
(a) Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no perpetrator of domestic violence shall be awarded sole or joint custody of any child.
(b) Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no child shall primarily reside with a perpetrator of domestic violence.
(c) The above presumptions shall be overcome if there have been no further acts of domestic violence and the perpetrator of domestic violence has:
The presumption may otherwise be overcome only if a judicial officer finds extraordinary circumstances that warrant the rejection of the presumption, such as evidence demonstrating that there exists no significant risk of future violence against any adult or minor child living in the home or any other family member, including any ex-spouse.(1) Successfully completed a program of evaluation and counseling designed specifically for perpetrators of family violence and conducted by a public or private agency or a certified mental health professional; and
(2) Successfully completed a program of alcohol or drug abuse counseling if the Court determines that such counseling is appropriate; and
(3) Demonstrated that giving custodial or residential responsibilities to the perpetrator of domestic violence is in the best interests of the child.
(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.
Mother has no criminal history other than motor vehicle violations.
On the other hand, Father has an extensive criminal history. He most recently pled guilty to terroristic threatening as a result of the incident with Mother and remains on Level III probation at this time. Father was previously convicted of terroristic threatening of another victim, Ms. H---, in March and August, and was placed on Level VI probation as a result. Father subsequently violated the no-contact order with Ms. H--- and was incarcerated for ninety days from February through April 2016.
According to Father, the offensive touching and disorderly conduct charges were dropped as a part of his plea bargain. --------
Additionally, as discussed above, Father was convicted of criminal contempt of a PFA Order on November 5, 2012 after having prohibited contact with Ms. H-----'s property. Father was also convicted of possession of drug paraphernalia in January 2015. He explained that he had marijuana paraphernalia in his vehicle when he was pulled over by the police, but the matter was resolved after he appeared in Court and paid a $100 fine. The Court notes that Father was also convicted of theft in November 2012, criminal mischief in October and November 2012, and offensive touching in January 2013. He has violated probation on five occasions and has several motor vehicle violations on his record.
Father advised the Court that Paternal Grandparents have no criminal history. However, the Court conducted its own Delaware criminal record check and discovered that this is not the case. Paternal Grandfather was convicted of third degree assault in May 1990 and has one motor vehicle violation on his record. Paternal Grandmother was convicted of issuing bad checks in April and August 2003, offensive touching in June 1997, and third degree assault in May 1991. She also has several motor vehicle violations on her record.
Conclusion
In accordance with the parties' stipulation, the Court awards Mother PRIMARY RESIDENCY of T--- and will conduct its § 722 analysis in regards to legal custody and visitation only. For the reasons discussed below, the Court finds that it is in T---'s best interest to award Mother SOLE LEGAL CUSTODY. The Court further finds based upon the evidence that entering a schedule of visitation between T--- and Father at this time would significantly impair her emotional development and therefore DECLINES Father's request to do so.
In regards to legal custody and visitation, the parties are opposed in their positions under factor (1). Mother would like sole legal custody of T--- and is opposed to any contact between T--- and Father, while Father would like the Court to grant the parties joint legal custody and award him a schedule of visitation. Accordingly, factor (1) is neutral in the best interest analysis.
The Court places great weight on T---'s preference under factor (2) in regards to visitation, especially in light of Father's representation that he would "not push it" in the event T--- tells the Court she does not wish to have contact with him. T--- in fact made that representation during her interview and indicated that there are no conditions under which she would feel comfortable or safe seeing Father. Accordingly, the Court finds that factor (2) supports its decision not to award Father a schedule of visitation at this time. The Court will not consider T---'s preferences when determining legal custody since that decision is based on a number of factors that T--- is not and should not be privy to, so this factor is not applicable to the Court's decision in that regard.
Under factor (3), the Court notes that T--- has a good relationship with Mother and her half-siblings residing in Mother's home. Conversely, her relationship with Father has been minimal throughout her life, as evidenced by the fact that she refers to Father as "G-----." The Court further notes that T---'s relationship with Father has had a negative impact on her emotional wellbeing over the past year since she witnessed the August 2015 domestic incident between Mother and Father. Although T--- demonstrated some willingness to communicate with Father in April 2016 when she observed him from Mother's car, she reportedly acted in a fearful manner towards Father at the courthouse on the morning of this hearing. T--- also told the Court in her interview that she would not feel safe having any type of contact with Father at this time. The Court emphasizes that there is in fact a no-contact order pursuant to Father's criminal sentencing order which currently prohibits Father from having any contact with T--- as a result of that incident. Additionally, the Court notes that T--- once had a considerable relationship with Paternal Grandparents. Although she would be open to continuing her relationship with Paternal Grandfather, T--- has no desire to see Paternal Grandmother at this time in light of her actions related to the domestic incident. Accordingly, the Court finds that factor (3) supports Mother's request for sole legal custody and disfavors Father's request for visitation.
The evidence under factor (4) suggests that T--- is very well adjusted to Mother's home and her school. Since T--- has had limited contact with Father throughout her life and remains strongly averse to any contact, the Court finds that granting Father joint legal custody and implementing a visitation schedule would be disruptive to her adjustment and development at this time. This is especially true in light of how emotionally disturbed T--- was, and still is, as a result of the violent incident that she witnessed last time she was in Father's care. Therefore, the Court finds that factor (4) favors an award of sole legal custody to Mother and disfavors Father's request for visitation at this time.
Based upon the limited evidence presented under factor (5), which did not raise any concerns about the physical or mental health of the parties and/or T---, factor (5) is neutral in the Court's best interest analysis.
Under factor (6), the Court notes that Father has been paying some financial support to Mother in T---'s interest and offered a valid explanation for his arrears, which were accrued during his incarceration. Nonetheless, Father admittedly has had very little contact with T--- throughout her life and has made minimal efforts to become involved in her physical, emotional, educational, and medical development. The Court credits Mother's testimony that she made attempts to get Father more involved in T---'s life recently and encouraged T--- to attend family affairs with Father. However, justifiably, Mother abandoned her attempts after Father's serious act of physical violence and terroristic threats towards her in T---'s presence in August 2015. For those reasons, the Court finds that the evidence under factor (6) supports an award of sole legal custody to Mother and weighs against Father's request for visitation.
The Court places significant weight on the evidence of domestic violence presented under factor (7). This is Mother's primary concern in terms of Father's contact with T---, and T--- is very fearful of Father as a result of the domestic violence that she witnessed in August 2015. In light of this incident, as well as additional evidence of Father's aggressive and abusive history, the Court cannot ensure that T--- will be safe in his care. Although the Court cannot find that Father is precluded from serving as a legal custodian to T--- under § 705A, sufficient evidence exists to support the Court's finding that factor (7) weighs strongly against his request for joint legal custody and visitation with T---.
Lastly, Father's extensive criminal history, including several convictions for terroristic threatening and offensive touching, is of great concern to the Court. The Court emphasizes that Father is prohibited from having contact with Mother as a result of his conviction from the August 2015 incident, which effectively renders him incapable of serving as a joint legal custodian with Mother. The Court also has some concern about Paternal Grandparents' prior assault convictions, as Father resides in their home and T---'s visits would take place therein. Conversely, Mother's criminal record only contains motor vehicle violations. Accordingly, the Court finds that factor (8) supports Mother's request for sole legal custody and weighs against Father's request for visitation.
For the foregoing reasons, the Court finds that it is in T---'s best interest to grant Mother SOLE LEGAL CUSTODY. Factors (3), (4), (6), (7), and (8) support the Court's conclusion, factor (2) is inapplicable to the Court's decision on legal custody, and factors (1) and (5) are neutral in the best interest analysis. Of primary concern to the Court is Father's lack of interest and involvement throughout T---'s life, his aggressive and abusive history, as well as the fact that a no-contact order is currently in effect pursuant to Father's criminal sentencing order, prohibiting him from having contact with T--- and/or Mother. The Court places significant weight on Father's physical and verbal acts of violence towards Mother in T---'s presence, which leads the Court to believe that Father's involvement in T---'s life as a joint legal custodian would only lead to additional emotional disruption to her.
For the same reasons stated above, T---'s clear desire not to have contact with Father under factor (2), and Father's representation that he would not force visitation against T---'s will, the Court DENIES Father's request for visitation. The Court finds that ordering a schedule of contact against T---'s will would significantly impair her emotional development, as evidenced by the negative impact that resulted from her last visit with Father in August 2015. T--- told the Court that there are no visitation conditions it could set forth in this Order that would make her feel safe visiting with Father. However, in the event T--- changes her mind about seeing or communicating with Father, the Court expects Mother to cooperate. Father would also be required to take any necessary steps to have the no-contact provision of his sentencing order modified such that contact with T--- is permitted, if she so desires.
Finally, Mother shall have PRIMARY RESIDENCY of T--- in accordance with the parties' stipulation. IT IS SO ORDERED.
ORDER
IT IS HEREBY ORDERED this 6th day of September, 2016 that:
1. Mother is awarded SOLE LEGAL CUSTODY of T---.
2. In accordance with the parties' stipulation, Mother shall have PRIMARY RESIDENCY of T---.
3. The Court DENIES Father's request for visitation with T--- at this time. However, T--- may decide to have visitation with Father in the future, assuming Father has the no-contact provision of his sentencing order modified. In that event, the Court expects Mother to comply.
IT IS SO ORDERED.
Very truly yours,
/s/
MICHAEL K. NEWELL, Chief Judge MKN/amp Date mailed: 9/6/16