Opinion
File No. 16-14741
06-22-2017
C------ R-------, Petitioner, v. V------- S-----, Respondent.
Petition No. PETITION FOR VISITATION In the Interests Of: M.S.
ORDER
Currently before the Court is a Petition for Visitation ("Petition") filed by C------ R------- ("Father") against Mother. Mother failed to file a response.
BACKGROUND
Father filed his pending Petition on May 9, 2016. Father alleged that he had been asking to have visitation with M.S. since March 2015. Mother continued to refuse to permit Father to have visitation with M.S. Father requested that he be given visitation with M.S. every other weekend.
Following two Pre-Trial Hearings, one held on September 23, 2016, at which Mother failed to appear, and one held on February 21, 2017, at which Father failed to appear due to miscommunication between the Court and prison authorities, the Court held a hearing on Father's Petition on April 18, 2017. Again, Mother failed to appear. The Court received evidence from Father. That evidence is discussed below.
Father is currently incarcerated.
A capias was issued for Mother's arrest due to her failures to appear on May 26, 2017. Mother appeared before the Court on May 31, 2017 and was provided notice to appear on June 14, 2017, for a hearing on Father's Petition.
The Court held a hearing on Father's Petition on June 14, 2017. Both parties appeared pro se. The evidence presented is discussed below.
DISCUSSION
Pursuant to 13 Del.C. § 728(a), the Court is to establish a schedule of visitation with a parent consistent with the child's best interests and maturity, unless the Court finds, after a hearing, that contact of the child with the parent would endanger the child's physical health or significantly impair his or her emotional development. Furthermore, before entering an order for visitation to be conducted in a correctional facility the Court must, in addition to other relevant factors, consider:
(1) The parent seeking visitation in a correctional facility had a substantial and positive relationship with the child prior to incarceration;
(2) The nature of the offense for which the parent seeking visitation is incarcerated;
(3) Whether the victim of the offense is the child, a sibling of the child, stepsibling, half sibling, parent, stepparent, grandparent, guardian or custodian of the child; and,
(4) Whether the child seeks a relationship with the incarcerated parent.
13 Del.C. § 728(d).
The Court will first determine whether it would be in M.S.'s best interests to have visitation with Father. The best interest factors are as follows:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father is currently incarcerated on a Reckless Endangering conviction. Following completion of his sentence for that conviction, Father will serve a consecutive sentence for a Possession conviction. Father has been incarcerated since 2013. Father anticipates to be released no later than 2021, but testified he could be released as early as next year.
Though Father has spoken to M.S. on the phone, he has never met him in person.
Father wishes to have visitation with M.S. so that he may see his son and begin to build a relationship with him. Father testified that the last time he spoke to Mother was in 2015. During that conversation, Father asked Mother to bring M.S. to the correctional facility for visitation. Mother declined. Father feels that if he is able to establish a relationship with M.S. it will benefit M.S. because Father will be able to help M.S. stay on the right path, and not make the same mistakes that Father has.
Mother testified that she asked Father if he wanted to see M.S. following M.S.'s birth in 2010. Father told Mother at that time, and while Mother was pregnant, that Father wanted to have a paternity test completed. Mother declined. Subsequently, Father was not involved in M.S.'s life. In 2013, Mother requested financial assistance from the State. At that time, a paternity test was ordered. It was not until 2013, when Father was incarcerated and after his paternity was established, that he reached out to Mother and requested visitation with M.S.
Mother testified that she has no problem with Father seeing M.S. However, Mother is not currently permitted to be on the correctional facility's premises due to her status as a probationer. Mother is not comfortable with having a third party take M.S. to the correctional facility to see Father. Mother stated that once Father is released, she would not deny Father the opportunity to visit with M.S.
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
M.S. is only six years old and the parties did not request that the Court conduct an interview to ascertain his preference on visitation with Father. The Court does not find it appropriate in this case to interview M.S. given his young age and his lack of a relationship with Father.
(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;
M.S. has never met Father. M.S.'s relationship with Father has occurred only through telephone conversations during the time that Father has been incarcerated. Mother testified that M.S. has spoken to Father on the phone approximately fifteen or twenty times for approximately ten minutes each time.
Father's brother and other members of Father's family have seen M.S. and have a relationship with M.S. Mother testified that Father's family has always been supportive of her and accepted M.S. as a part of their family. M.S. sees members of Father's family whenever Mother "runs into" Father's brother. Also, sometimes Father's brother calls Mother to see how she and M.S. are doing. M.S. has never spent time with any members of Father's family alone, without Mother present.
The Court did not receive evidence as to Mother's relationship with M.S. However, Mother has been the primary caretaker of M.S. his entire life and thus, it is likely they have developed a close relationship.
(4) The child's adjustment to his or her home, school and community;
The Court did not receive evidence on this issue.
(5) The mental and physical health of all individuals involved;
The Court did not receive evidence that either parent has any physical or mental health issues, or that M.S. has any physical or mental health issues.
Father testified that, while incarcerated, he has completed the Green Tree behavioral modification program; he is currently enrolled in a life skills and victims' impact program; he facilitates the Thresholds and Alternative to Violence programs; and he is taking a computer class. Father also plans to begin a conflict-resolution program and is planning to finish the second half of his life skills class which focuses on moral recognition therapy.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
Pursuant to 13 Del. C. § 701, "[t]he 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."
Father did not have a relationship with M.S. before he was incarcerated. Therefore, Father has not provided the child with the type of support, care, nurture, welfare and/or education anticipated by the statute. Further, Father is currently unable to provide such care to the child as he is incarcerated.
The Court did not receive details regarding Mother's care of M.S. However, it appears that Mother has been the sole provider for M.S. since he was born.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
The Court did not receive any evidence concerning domestic violence.
(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 testified that she is currently on probation. Mother does not have a criminal history which would be relevant to the Court's decision.
The Court takes judicial notice of Mother's criminal history which indicates that Mother received an Escape in the Third Degree conviction in October 2016.
Father has a significant criminal record. Of relevance, Father testified he is currently incarcerated on a Reckless Endangering in the First Degree conviction from February 2013. Following the expiration of that sentence, Father will continue to be incarcerated for a Possession of a Controlled Substance in a Tier 4 Quantity conviction also from February 2013.
Father received an Endangering the Welfare of a Child charge in February 2013 which was dismissed in his favor through the entry of nolle prosequi. Father received an Assault in the First Degree charge in 2010 which was dismissed through the entry of nolle prosequi.
Father was convicted of Manslaughter in 2004. Within that same case, Father was charged with two counts of Assault in the First Degree and one count of Assault in the Third Degree. The Assault charges were dismissed through the entry of nolle prosequi.
Father testified at the April 18 hearing that this conviction arose from a car accident and that the victim was Father's cousin.
Conclusion
The Court recognizes that a presumption in favor of visitation exists pursuant to 13 Del.C. § 728(a), unless the Court finds that contact of the child with the parent would endanger the child's physical health or significantly impair his or her emotional development. The Court is unable to find that contact between Father and M.S. would endanger M.S.'s physical health or significantly impair his emotional development, aside from the fact that visitation would have to occur at a correctional facility.
This Court has held that "being in a prison for visitation with a parent, without more, does not preclude the exercise of visitation by a natural parent," nor does it automatically rise to the level of physical or emotional harm which would preclude visitation pursuant to 13 Del.C. § 728(a). See State in the Interest of Taylor M.F., Shane R.F., Kala F., 1994 WL 811731, at *1 (Del. Fam. Ct. Feb. 15, 1994).
However, based on the evidence presented under § 722, the Court does find that it is in M.S.'s best interests to DENY Father's request for visitation at this time. Factors three, six and eight support this determination.
Factor one is neutral and factors two and four are inapplicable to the Court's decision.
Father has no relationship with M.S. The Court notes that Delaware Family Court Judges "have often denied incarcerated fathers visitation where there is a very young child, and where the father has had no previous meaningful contact." M.S. is six years old and has never met Father. According to Mother, M.S. would not be able to "pick [Father] out of a line up." Furthermore, Mother is unable to transport M.S. to the prison for visits with Father because Mother is currently on probation. The Court does not find it appropriate to order that a third party be responsible for taking M.S. to the prison to visit with Father, who he has never met, without Mother present. Factor three weighs against visitation.
Rahn v. Norris, 820 A.2d 1183, 1194 (Del. Fam. Ct. May 9, 2001).
Further, Father has disregarded his parental obligations to M.S. since M.S. was born. Both parties testified that Father basically refused to be involved in M.S.'s life until paternity was established. Nonetheless, Father has been incarcerated since 2013 and has not been involved in M.S.'s life or had any contact, besides brief telephone calls, with M.S. since that time. For that reason, factor six weighs against Father's request for visitation.
The Court places significant weight on Father's criminal history. Father is currently serving a sentence for Reckless Endangering, which is an offense against another person. Accompanying that conviction was an Endangering the Welfare of a Child charge. Father, additionally, has incurred numerous drug charges over the years, which are indicative that Father may suffer from a substance abuse issue. Finally, the Court has concern with the Manslaughter conviction Father received in 2004. Due to Father's criminal history, Father may be incarcerated for another four years. The Court commends Father for participating in multiple programs and courses during his incarceration which hopefully have improved Father's life and way of thinking. However, at this time, factor eight supports the Court's conclusion that it is in M.S.'s best interest not to have visitation with Father at this time.
Factors five and seven favor an award of visitation between Father and M.S. as the Court has no concerns under either of those factors.
Section 728(d) Factors
Because visitation between M.S. and Father would occur at a correctional facility, in addition to the best interest factors, the Court must also consider the prison visitation factors established by 13 Del.C. § 728(d).
Under § 728(d), the Court finds that factors (1), (2) and (4) strongly support its decision to deny Father's request for visitation.
See supra pg. 2.
Father did not have a substantial and positive relationship with M.S. prior to being incarcerated. Father did not have any relationship with M.S. prior to being incarcerated.
The nature of the offense for which Father is currently incarcerated is concerning to the Court because Reckless Endangering in the First Degree is an offense against another person, and one which evidences a reckless disregard for the life of another. Father's Possession conviction is of minimal concern to the Court in regards to this analysis; however, Father's criminal history as a whole does raise concern to the Court regarding a potential substance abuse problem in Father's life.
See 11 Del. C. § 604 (stating that Reckless Endangering in the First Degree occurs when a person "recklessly engages in conduct which creates a substantial risk of death to another person.") --------
According to Father, the victim of his Reckless Endangering conviction was a police officer. Therefore, the Court has no concern under factor three of Section 728(d).
Finally, neither party testified as to whether M.S. seeks a relationship with Father and neither party requested the Court interview M.S. to determine his wishes as to visitation with Father.
CONCLUSION
Based on the foregoing, the Court hereby DENIES Father's Petition for Visitation. However, the Court does not discount the possibility of contact between Father and M.S. in the future following Father's release from incarceration. Furthermore, nothing contained herein shall prohibit Father and Mother from reaching an alternative agreement as to Father's visitation with M.S. at any time.
IT IS SO ORDERED this 22d day of June 2017.
/s/_________
PETER B. JONES, JUDGE PBJ cc: