Opinion
File No.: CN15-06488 Petition No.: 16-13554Petition No.: 16-37161
05-15-2019
RE: C------ W------ v. M------- H----
Michael Corrigan, Esquire
300 Creek View Road, Suite 103
Newark, DE 19711 M------- H----
--- ------- --
Middletown, DE 19709
LETTER, DECISION AND ORDER
Petition for Custody: J------ H---- (D.O.B. --/--/14) Petition- Rule to Show Cause: J------ H---- (D.O.B. --/--/14) Dear Mr. Corrigan and Ms. H----:
This is the Court's decision regarding the Petition for Custody filed by C------ W------ (hereinafter "Father") on May 9, 2016 against M------- H---- (hereinafter "Mother"), in the interest of their minor child, J------ H----, born --------- --, 2014 (hereinafter "Child"), and the Petition-Rule to Show Cause filed by Father against Mother on November 29, 2016. Father is represented by Michael Corrigan, Esquire and Mother is self-represented.
Procedural History
In his May 9, 2016 Petition for Custody, Father requested joint legal custody and initial primary residential placement to Mother initially with gradually increased visitation such that the parents would eventually have a shared 50/50 residential arrangement. On May 31, 2016, Mother filed an Answer and Crossclaim for Custody requesting sole legal custody and primary residential placement, with Father having increasing supervised visitation after a "safety home inspection." Following a Case Management Conference on November 2, 2016, Father orally amended his petition to request primary residential placement of Child.
On November 29, 2016, Father also filed a Petition- Rule to Show Cause (hereinafter "RTSC") alleging that Mother had failed to make Child available for the visitation Father was granted pursuant to the August 12, 2016 Interim Contact Order issued by the Court following the parties' participation in mediation. Pursuant to the Interim Order, beginning August 24, 2016, Father was to have supervised visitation twice per week on Wednesdays and Saturdays from 5:00PM to 7:00PM at the Tri-State Mall. Then, beginning September 21, 2016, Father's supervised visitation was to increase and occur on Wednesdays from 5:00PM to 7:00PM and Saturdays from 3:00PM to 6:00PM. Beginning November 2, 2016, Father was permitted to have unsupervised visits every Wednesday from 5:00PM to 7:00PM and every other weekend on Saturdays and Sundays from 9:00AM to 5:00PM. In his RTSC, Father alleged that Mother failed to make Child available for several visits prior to November 2, 2016 and all scheduled visits after November 2, 2016. Mother filed a response on January 13, 2017 in which she denied that she had ever purposefully prevented Child from attending visits and, instead, claimed that Father had missed twenty-two of the scheduled thirty visits prior to the filing of the RTSC.
After several continuances, a hearing on the Father's Petition for Custody and RSTC was scheduled for October 9, 2017. However, at the time set for the hearing, Father failed to appear without explanation, although his attorney, Mr. Corrigan, Esq., was present. Due to Father's failure to appear, the Court issued a Default Custody Order which granted sole legal custody to Mother and reasonable visitation to Father, with the arrangements for these visits to be worked out by the parties. Father, through his attorney, filed a Motion to Reopen several days later, which the Court granted on November 17, 2017, having been satisfied by the justification Father provided for his absence at the hearing. Mother filed an appeal of this Court's decision to the Delaware Supreme Court, which was ultimately dismissed on May 29, 2018 due to Mother's failure to comply with the requirements for filing an interlocutory appeal.
After a continuance in this matter due to the courthouse being closed for a weather related emergency, a hearing on Father's Petition for Custody and RTSC was scheduled for October 31, 2018. However, at the outset of that hearing, Mother informed the Court that Father had never provided any documents in response to her August 18, 2017 Request for Production, which Mr. Corrigan admitted was true. Rather than dismiss both petitions, the Court elected to continue the hearing to a later date and issued an Interim Visitation Order pending the final hearing. Pursuant to this November 2, 2018 Interim Visitation Order, Father was permitted to have supervised visits at the Middletown Safe Havens Family Visitation Center for up to two hours for three consecutive weeks, effective beginning the weekend of November 10-11, 2018. Following three supervised visits, Father was permitted to have unsupervised weekend visits every other weekend on December 2, 2018, December 16, 2018, and December 30, 2018 from 9:00AM to 6:00PM. Following these three unsupervised daytime visits, beginning on January 11, 2019, Father was permitted to have unsupervised overnight weekend visits every other weekend from Friday evening at 7:00PM until Sunday evening at 6:00PM. Then, beginning on February 17, 2019, the parties were to graduate to a week on week off schedule for visitation, with exchanges to occur on Sunday evenings at 6:00PM. Because Mother further expressed concerns regarding Father's drug and alcohol use, the Court also ordered Father to comply with drug hair follicle testing, contingent on Mother's selection of an appropriate testing facility and advancing the costs of these tests.
The Court held a final hearing on Father's Petition for Custody and RTSC on March 11, 2019. Father requested joint legal custody with shared residential placement on a week on week off schedule. Mother requested joint legal custody and primary residential placement of Child. Due to there not being enough time for the Court to hear all the evidence in this matter, the hearing was recessed to a second day on March 27, 2019. Pending the completion of this hearing, the Court issued an Interim Visitation Order. Pursuant to this March 12, 2019 Interim Visitation Order, Father was to have visitation on March 16, 2019 and March 23, 2019 from 9:00AM until 7:00PM.
Background Facts
Mother and Father were never married, have no other children in common, and have never resided together. The parents met via an online dating website in October 2013 and, although they were never in a relationship with one another, Mother and Father disagreed about the extent to which they spent time together prior to and immediately following Mother becoming pregnant with Child. Father has two other daughters one of whom is an adult and lives on her own and the other is a sixteen-year-old who primarily resides with her mother but visits Father every other weekend either at his house or his parents' house. Mother has three other children two of whom, are adults who live on their own as well as a fourteen-year-old daughter who resides with Mother. In addition, Child currently primarily resides in Mother's care and have never spent considerable time in Father's care.
Father did not have any contact or visits with Child during the first year of her life. Father testified that his lack of involvement in Child's life during that time was because he had no knowledge that Mother was even pregnant, much less had given birth to his child until December 2015, when he was served with a Petition for Child Support filed by Mother. Mother disputed this and testified that she texted Father pictures of Child's ultrasound on January 28, 2014 and continued to have ongoing discussions with him about her pregnancy. A copy of these text correspondences were introduced during the hearing as Respondent's Exhibit #4. When presented with screenshots of these text messages during the hearing, Father continued to deny that he had any knowledge of Child prior to 2015 and merely indicated that he could not recall if the phone number listed in the text messages was his phone number at the time. However, the text message thread with that same number also contained messages from Father in which he discussed going to Florida after visiting Virginia to attend a funeral for a cousin who had been murdered there. Although Father denied ever telling Mother this information, and continued to state that he could not recall whether the number in the screenshots was his previous phone number, Father's father, Charles Harris, testified that Father's cousin who lived in Virginia had, in fact, passed away around early 2014, thereby, providing substantiation to Mother's claim that Father was aware of Mother's pregnancy at the time.
Mother also presented several other examples to demonstrate that Father did, in fact, know about Child much earlier than he claimed. She testified that Father not only knew about Child while she was still pregnant, but he also harassed her in an attempt to convince her to obtain an abortion, an allegation Father denied. Mother's adult son, J----- H----, corroborated these claims and testified that he overheard Father on speaker phone yelling at Mother to have an abortion. Mother's brother, B----- H----, similarly testified that Father was initially upset to learn about Mother's pregnancy and threatened to harm her if she did not obtain an abortion. Mother further testified that her fourteen-year-old daughter, J----, and Father's sixteen-year-old daughter, A-----, had met while she and Father were dating and became friends during that time. She explained that Father must have known Mother was pregnant and had given birth to Child earlier than he claims because J---- had told A----- about Child during their conversations and even video-chatted together while J---- was holding Child so that A----- could see her step-sibling. J---- testified during this hearing and corroborated Mother's testimony on this matter.
In March 2016, the Court issued an Order for Father to undergo genetic testing, which was completed prior to Father filing his Petition for Custody in May 2016. Father had only one visit with Child before paternity was established. Father exercised sporadic visitation and involvement with Child prior to the Court issuing the Interim Visitation Order on August 24, 2016. There is considerable disagreement by the parties as to how frequently Father visited with Child after this Order was entered, which is the central issue in Father's Petition- RTSC, which is discussed below.
Father resides by himself in a three-bedroom home which he claims to have purchased three years ago. Mr. Harris confirmed that Father owned this home, but he believed that Father may have purchased it as many as four years ago. However, two months prior to this hearing, Father submitted a response to a request for production of documents filed by Mother. In his response, Father was asked about any real estate he owns, to which Father responded that he did not own any real estate. When asked about this blatant contradiction during the hearing, Father had no explanation but conceded that he did report two months ago that he owned no real estate despite continuing to reside in a home he purports to own. There were also discrepancies in the testimony as to how much time Father actually spends in this home in Philadelphia. Father stated that he resides in Philadelphia but "sometimes" stays with his girlfriend, M----- J----, who lives in Glassboro, New Jersey. However, when Ms. J---- testified regarding her relationship with Father, she referred to herself as Father's "fiancée" and stated that, in a typical week Father stays at her home on Tuesdays and Wednesdays and on any weekends he does not go to Delaware to visit Child.
Father also mentioned Ms. J---- earlier in the hearing but, at that time, identified her as his "friend."
Father testified that he is employed at J---- L--- L------ but, again, there were some discrepancies in Father's testimony as to how long Father has been employed with the company. Father testified that he has been employed at J---- L--- L------ for the past four years. Mother testified that the parties attended mediation on her Petition for Child Support in August 2016, just over two years ago, at which time Father stated he was employed at Worth and Company and presented paystubs to that effect during the mediation. When asked about this contradiction, Father maintained that he believes he has worked at at J---- L--- L------ for the past four years but, if he reported that he was employed at Worth and Company in August 2016, then he was being truthful and that is where he was employed at the time. He reports that he earns approximately $65,000 annually in this position and typically works from 8:00 AM to 5:00PM on weekdays but is sometimes on call, for emergencies, beyond those hours.
Mother resides in Middletown, Delaware with Child, and her fourteen-year-old daughter. Mother has been employed with E---------- on and off since 2013. Mother has been the primary caretaker for Child since she was born and Mother's daughter, her son, J-----, and her mother all help care for Child and transport her to and from daycare whenever Mother is unable, due to her work schedule.
Father's Visitation with Child
The consistency and frequency of Father's visitation with Child is the subject of Father's Petition- RTSC and was discussed at length during this hearing.
Father's Account of Visitation
Father testified that after the August 24, 2016 Interim Order was put into effect, he initially had visits with Child as Ordered without any concerns, but, over time, Mother began to have issues with the visitation and stopped meeting with Father at the designated visitation location. Father agreed that he had had some unsupervised visits prior to filing his Petition-RTSC but he had never had the opportunity to graduate to overnight visits due to Mother's lack of cooperation. Because Mother would not appear at the visitation location (the Tri-State Mall), Father resorted to calling the local state trooper each time Mother failed to appear. Father reported that the police made reports and records each time he called but, after about one month, the police finally told Father not to contact them about the issue of visitation any more. Father planned to call the state trooper's as witnesses but they did not appear on either days of the hearing. Father explained that, eventually, he stopped driving to the Tri-State Mall on his scheduled visit days because Mother had not allowed Father to have a visit for quite some time.
Following the May 22, 2017 Interim Order, Father was supposed to have a graduated visitation schedule which would ultimately allow him to have a week on week off arrangement with Child by July 2017. Father testified that he has never had a single overnight visit with Child, even after that Order was entered. Father also explained that those exchanges were supposed to occur at the Middletown Police Station and he appeared on time for each of his scheduled visits. Father stated that he would wait for Mother for fifteen minutes and, after she failed to appear, he would go inside the police station and present them with a copy of the Interim Order. Father testified that the police would then go to Mother's home, speak with Mother and then tell Father that there was nothing they could do to help him have visitation. Father could not recall the exact dates he sought the assistance of the Middletown Police but he suspected that it was every other Sunday beginning on July 16, 2017. Father believes he did this for two and a half months before the police asked him to stop getting them involved because there was nothing they could do to help him. After Father's Motion to Reopen was granted and the Court reinstated the May 2017 Interim Order, Father reported that he continued to go to the Middletown Police Station to have scheduled visits with Child for approximately two months but Mother never once brought Child for her visit in that time.
Father began to have more consistent visitation with Child after the Court issued the November 2, 2018 Interim Visitation Order. Father began his supervised visitation at Safe Haven for approximately two hours as scheduled. He stated that Child had a good time and a great demeanor throughout the visit and he and Child played with the many toys supplied by the visitation center. Father also stated that Child was sad at the end of these visits. After having the three required supervised visits at the visitation center, Father expected to have three weeks of unsupervised day visits, as was granted to him under the Interim Visitation Order but testified that he was only able to have one or two visits, although he was able to have visitation for the full amount of time allotted to him. During the first visit, Father introduced Child to her half-sisters for the first time and they all went to eat together at Ruby Tuesday's. Afterwards, Father brought Child to her grandfather's home and Child spent much of that time playing with Father's granddaughter. During the second visit, Father reported that Child tried to drive a Barbie car but was still too small; Instead, she spent most of this visit playing in Father's home with his daughters and granddaughter. Father reported that due to Mother's confusion about the date of the visit, she had inadvertently been scheduled to work at her job with Amazon during the visit. As a result, Mother was not able to pick Child up at 7:00PM as scheduled but, rather, did not arrive until well after 11:00PM.
On January 11, 2019, the day Father was supposed to begin having weekend visits with Child, Father testified that he went to the Middletown Police Station for the pickup but Mother did not meet him there. As a result, Father informed the police that Mother was not allowing him to have visitation and, together they went to Mother's residence only to see Mother pulling away from her home as they arrived. The next day, Father again went to the Middletown Police Station but Mother did not appear. He, again, informed the police and they went to Mother's home. This time, Father reported that the police were able to speak with Mother and they spent thirty to forty-five minutes conversing with Mother in her home. When the police came out of the house, they informed Father they could not help him. Father testified he appeared at the Middletown Police Station the following weekend on Friday, Saturday, and Sunday but Mother never met him there. Father conceded that he never directly communicated with, or called Mother during these attempted visits but, instead, simply appeared at the exchange location at the time Ordered. Father also reported that the police maintained written documentation and records of every time Father reached out to them to exercise his visitation but Father did not present any written evidence of this during the hearing. Based on Mother's lack of cooperation, Father reported that he has never had a single overnight visit with Child and has only had sporadic visitation with her otherwise.
Mother's Account of Visitation
Mother testified that Father has only appeared for eight out of forty of the visits he was scheduled to have under the Visitation Orders and she further denied that she had ever purposefully caused Child to miss a visit. Mother acknowledged that the visits Father did attend which she supervised went very well and Child always appeared excited to be spending time with her father during those times. Mother reported that Father would simply miss visits for weeks at a time and, at one point, he blocked her phone number so she could not communicate him at all regarding the visitation schedule. Mother also suggested, and Father agreed, that there had been some confusion between them as to what specific weekend Father was scheduled to begin his unsupervised visits, which caused some delay in these visits starting. Mother also submitted a series of text messages with Father between August 14, 2016 and December 16, 2016 to support her claim that Father was often unreasonable in facilitating visits and, at times, missed visits as a result. Respondent's Exhibit #2.
Petition for Custody
The Court has not previously entered a final custody Order for Child. Therefore, in making its determination the Court must consider the best interests of Child guided by an analysis of the factors under 13 Del. C. § 722. The Court has held that some factors may be given more weight than others in the Court's analysis. The factors are as follows:
13 Del. C. § 722(a) provides: 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;
2) The wishes of the child as to his or her custodian(s) 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.
See Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997) (noting that "[t]he amount of weight given to one factor or combination of factors will be different in any given proceeding. It is quite possible that the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations.")
(1) The wishes of the child's parent or parents as to her custody and residential arrangements;
Father is requesting joint legal custody and shared residential placement on an alternating week schedule with exchanges at the Troop 1 Delaware State Police Station. Father did not address the logistics of this arrangement but suggested that Child would be able to attend the daycare located around the corner from his home in Philadelphia, which Father did not know the name of at the time of the hearing. Father also did not make any suggestions or requests as to how this arrangement would work next school year when Child is attending elementary school, given the considerable distance between Mother and Father's homes.
Mother is also requesting joint legal custody but is seeking primary residential placement of Child. With regard to a proposed visitation arrangement for Father, Mother is requesting that Father have visitation every Monday and Wednesday afternoon beginning at the time Child is done with daycare/school until "a reasonable time". In addition, Mother also requested that Father have visitation every Saturday for the entire day and overnight visits every other weekend, beginning Saturday morning until Sunday evening. While Mother proposed these days, she also reported that she is fine with Father having visits with Child any day of the week he would like. Mother did express some hesitation about beginning overnight visits immediately, however, as Child has never had an overnight visit in Father's home before and is still working on developing a relationship with him. Mother then noted that she thinks it would be easy for Child to work her way up to overnight visitation with Father because she has greatly enjoyed the few visits she has with him already and clearly loves and enjoys spending time with him.
With regard to Father's request for shared residential placement, Mother did not agree that this arrangement would be in Child's best interest because she and Father live over an hour away from each other and it would be disruptive to Child's day-to-day life to split her homes in this manner. That said, Mother expressed that she would be willing to share the transportation responsibilities with Father for whatever visitation arrangement they have, but she hopes Father will be able to communicate with her more civilly when discussing these details going forward.
Because the parents both agree on legal custody, the Court finds this factor supports joint legal custody, but is neutral as to residence because the parties have taken opposing positions.
(2) The wishes of the child as to her custodian(s) and residential arrangements;
The Court chose not to speak with Child to discuss this pending petition. As a result, the Court finds this factor to be inapplicable. (3) The interaction and interrelationship of the child with 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 person who may significantly affect the child's best interests;
Child's Relationship with Father
Notwithstanding her personal issues with Father and the history of threatening behaviors and substance abuse Mother testified about, Mother did not appear to have any concerns regarding Child's relationship with Father. In fact, Mother agreed that Child enjoys spending time with Father and Mother would like them to be able to spend more time together going forward. If anything, Mother's only concern about Child's relationship with Father simply was that Father has not been involved in Child's life long enough and consistently enough to develop a strong relationship and bond with her. Father did not know details about Child's life, such as the size clothing she wears and where she attends daycare, which Mother suggested was because Father simply has not made enough of an effort to be involved in Child's life up to this point. Mother testified that she would like to see Father be more proactive and consistently involved in Child's life in order to develop a stronger bond with her.
Ms. J---- does not live in Father's home and it was unclear whether Father would plan to bring Child with him to her home in New Jersey when he visits her. In any event, Ms. J---- testified that she has not had the opportunity to meet Child quite yet but she expects they would get along well, just as Ms. J---- gets along well with Father's other daughters.
Child's Relationship with Paternal Relatives
Father testified that Child has a good relationship with his family members, particularly his daughters, granddaughter, and Child's paternal grandparents, all of whom Father is very close to and spends time with on a regular basis. Father reported that Child was able to spend time with these relatives during her visits and appeared to have a "great" relationship with them. Father hopes, that by being granted shared residential placement of Child, she will be able to spend even more time with Father's family members and develop a stronger relationship with them.
Child's Relationship with Mother and Child's siblings
The parties did not present any evidence to suggest that Child has anything beyond a great relationship with Mother, who has been her primary caretaker since birth. Mother also testified that Child has a good relationship with her half-siblings who help Mother with the responsibilities of caring for Child.
Because Child appears to have a positive relationship with Mother and a positive, albeit less familiar relationship with Father, the Court finds that this factor supports joint legal custody and a visitation arrangement with Father that enables Child the opportunity to begin developing a stronger bond with him without being overwhelmed by being away from Mother for such extended periods of time.
(4) The child's adjustment to her home, school and community;
Child has resided in Mother's care since birth and the Court heard no evidence to suggest that she is not well-adjusted to her current home and community.
Child has been enrolled in daycare at the L------- T--- A------, located in Mother's neighborhood, since February 2018. Father called C----- M------, the owner of ------- T--- A------, to testify regarding Child's adjustment and progress in daycare during the one year she has spent there so far. Ms. M------ testified that, early on in Child's time in daycare, Mother would often drop Child off two to three hours late. She reported that this tardiness had a negative impact on Child's progress in school because she was not on the same schedule as the other children in the daycare due to arriving so late. Ms. M------ had a discussion with Mother about the importance of ensuring Child is dropped off on time each morning and Child's attendance drastically improved after that conversation.
Ms. M------ also testified that Child struggled with exhibiting age appropriate behaviors initially but has since managed these issues. Specifically, it was not uncommon for Child to experience meltdowns throughout the day and bite other children. Ms. M------ confirmed that many of these behaviors were confined to the first few months after she began attending their daycare and Child no longer experiences these behavioral issues.
Father's proposal for shared residential placement would require Child to be in his home for one week at a time. Child has never spent even one night in Father's home and has only visited his home on a handful of visits over the course of her life. Father also suggested that Child would be able to attend the daycare located right around the corner from his home, although Father did not know the name of this daycare when asked about it during the hearing. Father also did not discuss what his proposed plans for Child's education would be once she is in elementary school beginning next year
Child is well adjusted to Mother's home and community as it is the only home Child has known for her entire life. While Father seems to suggest that it would be easy for Child to attend his local daycare, Father did not appear to know much about this daycare and the testimony of Ms. M------ suggests that Child has difficulty with transitioning to new environments, which would mean that changing daycares or alternating between daycares may cause a significant disturbance to Child. Therefore, the Court finds that this factor supports joint legal custody but does not support shared residential placement at this time, without some concrete plan or arrangement to gradually increase the amount of time Child spends in Father's home.
(5) The mental and physical health of all individuals involved;
There was no evidence presented that Child or Mother have any significant physical health or mental health concerns that would impact their ability to care for Child. As to Father, Mother alleged that Father has a significant history of drug and alcohol abuse, which Father denied. Mother reported that Father has previously told her that he "sold drugs" and was an alcoholic. She further testified that, in February 2014, Father's cocaine use was "out of control" and he surrounded himself with other drug users, including a couple who had recently had their home searched by the police in a drug investigation. Mother also alleged that she had personal knowledge of Father doing cocaine around that time as well.
Based on these concerns, in an Order dated November 2, 2018, the Court directed Father to comply with a drug hair follicle test, which Father did on November 8, 2018. Father presented a copy of the results from this drug screen which reported that Father tested negative for all illicit substances. Petitioner's Exhibit #2. Father also reported that he had to undergo random drug and alcohol screens in 2013 as a condition of his probation on a criminal charge. Father reported that he believes all those tests were negative as well.
The Court is satisfied, based on the results of Father's drug screen, that Father does not presently have a serious issue of substance abuse that would negatively impact his ability to care for Child. Therefore, the Court finds that this factor supports joint legal custody and shared residential placement.
(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, even without a Court Order, parents are responsible for the support, care, nurture, welfare, and education of their children. Pursuant to a Consent Support Order issued August 9, 2016, Father is obligated to pay $640 per month in child support. Father reported that he makes these payments each month as the payments are automatically deducted from his wages.
Mother contends that Father does not inquire regarding important things in Child's life, such as her education and medical care and has never asked for any information regarding Child. Father disagreed and reported that Mother has not given him information when he has requested it in the past and has purposefully kept Father from obtaining information regarding Child's school. Father testified that in November 2016, Mr. Corrigan asked Mother for information regarding Child's school, medical care, social security, and religious affiliations, which Mother never provided. Ms. M------, at the L------- T--- A------, reported that Mother never included Father's information in Child's registration paperwork and further did not list Father as an approved person to pick Child up from daycare. When L------- T--- A------ asked Mother about Father, Mother informed him that he was not involved in Child's life. While Father conceded that he did not have any information about Child's school prior to this hearing, he maintained that Mother is responsible for his lack of information due to her failure to provide him with regular updates about Child's life. Mother countered by stating that Father has never expressed any interest nor asked her directly for this information, therefore, she did not think to provide him with it.
Father regularly meets his child support obligations and while it appears that he could be more proactive in complying with his parental responsibilities, Mother also could have been more cooperative and forthcoming with information regarding Child's life and care. However, as neither parent appears to be purposefully or deliberately abrogating their parental responsibilities, the Court finds that this factor favors joint legal custody and visitation with Father while he becomes more familiar with Child's day-to-day life and information relating to her well-being.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Mother testified that Father has a history of threatening and harassing behaviors which has led to her filing two separate Petitions for Protection from Abuse. Mother testified that Father's threatening behavior began when he first learned she was pregnant. Mother reported that Father berated her for approximately two months to get an abortion and threatened to "put a hit on her" if she did not. Mother testified regarding another incident involving Father in February 2014 when Father became belligerent as a result of being under the influence. When Mother tried to leave the room to escape the situation, Father put his hand on her throat and tried to block her exit.
Mother also testified that in November 2016, someone drove by her residence in the middle of the night and shot at her house with a high powered pellet gun. She reported that during a conversation with Father on November 23, 2018, Father made comments which suggested he was responsible for the incident and threatened her by stating "don't forget who I'm with." Due to these concerns, Mother filed a Petition for Protection from Abuse against Father. After a hearing on December 9, 2016, the Court found that Mother had not demonstrated, by a preponderance of the evidence, that Father committed acts of domestic violence and her petition was dismissed.
On December 13, 2016, Mother filed another Petition for Protection from Abuse in which she alleged, among other things, that Father had, again, shot at her house with a gun in a threatening fashion, leaving damage to the exterior of her home. The Court scheduled a hearing on this petition for December 29, 2016. At the time set for that hearing, Mother failed to appear and her petition was dismissed as a result. In addition to these concerns, Mother also testified that Father continues to engage in harassing and unwanted behavior, most recently in February 2019 by calling her at three in the morning.
Mother made allegations regarding Father's domestic violence and has filed two Petitions for Protection from Abuse, although both were dismissed, one after a full hearing on the merits. Furthermore, even though Mother has these concerns, she does not appear to be so worried about Father's domestic violence so as to curtail visitation or request supervised visitation between Father and Child as a result. While there was no credible proof of acts of domestic violence by Father, the Court finds that any acts or inappropriate behavior which may have occurred between the parties does not rise to the level of domestic violence required by this factor and, therefore, this factor supports joint legal custody and shared residential placement.
(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.
While the Court heard some testimony by the parties as to their respective criminal histories, the Court also independently reviewed the Delaware criminal histories of the parties. Mother does not have any criminal record aside from minor vehicular and civil ordinance infractions.
Father has a previous charge for terroristic threatening from November 2016 as a result of the above described allegations of Mother that Father shot at her house. In 2012, Father was charged with malicious interference with emergency communications and pled guilty to assault-third degree. Father s then charged with noncompliance with his conditions of bond and breach of bond conditions, however, these charges were either dismissed or rendered nolle prosequi.
Mother further believes that Father is involved in illicit gang activity, and submitted a photo of Father in which he appears to be making gang signs. Respondent's Exhibit #1. While Father did not contest that his hand gestures in the photo were gang signs, Father denied being a member of a gang and further explained that the photo was from a friend's birthday party and should not be taken seriously. Throwing signs in a braggadocious manner does not establish that Father is, in fact, engaging in illicit gang activity. The Court does not find that either parent has a criminal history that would have an impact on their respectively abilities to parent Child.
Conclusion on Petition for Custody
In addition to the above express factors listed under 13 Del. C. § 722, the Court may consider other relevant factors in determining the legal custody and residential arrangements for Child. The Court notes, both throughout the history of this case and during this hearing, that there is a significant amount of animosity between Mother and Father, which was evidenced by occasional disrespectful outbursts and behaviors during this hearing. The Court also notes that this animosity has made it difficult for the parties to communicate civilly with one another, even for the simple purpose of arranging a drop off and pick up location for Child to have visitation with Father. The Court would like to highlight, however, that despite these ill feelings towards one another, there was no evidence or testimony to suggest that either parent is allowing their personal feelings to interfere with Child's feelings of love and affection for her parents, which is a positive factor for which the Court commends the parties. That said, it would be in both parents' interests to find a way to communicate with one another civilly, which includes being flexible and amenable to changes in certain plans, because Child is still young and both parents have many years of co-parenting ahead of them.
Having reviewed the above factors, the Court finds that factor two is inapplicable as to both legal custody and residential placement. Mother and Father are both requesting legal custody and each factor supports granting this request. As to residential placement, factors five, seven, and eight all support granting Father's request for shared residential placement. As stated, the Court may find, however, that some factors should be weighed more heavily than others and with regard to the issue of residential placement, the Court finds that factors three, four, and six should be given extra consideration in this matter. While the Court has no specific concerns about Father's home and ability to care for Child, the Court does not think it is in Child's best interest to grant shared residential custody at this time, especially when Child has never spent a single overnight visit in Father's home and has not had consistent and regular visitation with Father throughout her life. While it would certainly be in Child's best interest to ultimately maximize the amount of time she is able to spend with both parents, doing so immediately, may be overwhelming to a four-year-old without first having the opportunity to develop her relationship with Father and become acclimated to spending the night in his home. The Court also has some concerns about Father's proposed arrangement for shared residential placement as Child will be beginning elementary school next year and it may be disruptive to Child's schedule to have over an hour commute each day for one week at a time, especially when this Court has heard testimony from Child's current daycare that she struggles with transitions. While a week on week off arrangement may very well be a practical option for the parties as Child gets older and can better handle change, at this time, the Court does not find that Father's request for shared residential placement is practical or feasible for Child.
Petition- Rule to Show Cause
In his Petition- RTSC, Father alleges that Mother should be found in contempt of Court for violating the visitation provisions of this Court's Order by repeatedly failing to ensure that Child is brought to the visitation exchange location, thus precluding Father from exercising his visits.
The purpose of a Petition- RTSC seeking to hold someone in civil Contempt of Court is to enforce compliance with the Court's order. The standard for a Petition RTSC is well-established in this Court. "In order to find someone in civil contempt of the Court's Order the Court must first find by clear and convincing evidence that a violation of its Order has taken place." Specifically, the Court must find that 1) a valid mandate, judgment or order exists; 2) the alleged violator had the ability to abide by the valid mandate, judgment or order; and 3) the alleged violator disobeyed the valid mandate, judgment or order. The failure to obey the Court's Order must not be a mere technicality but must be done in a "meaningful way." Because the purpose of levying a civil contempt fine is to coerce compliance with a Court Order, subsequent compliance with the Order may purge the finding of civil contempt.
J.T.D. v. B.N.D, No. CN07-04006, 2010 WL 2708610, at *4 (Del. Fam. Ct. May 5, 2010) (citing Feliciano v. Colon, 697 F. Supp. 26, 34 (D.P.R. 1987).
See Watson v. Givens, 758 A.2d 510, 512 (Del. Fam. Ct. 1999).
J.T.D. v. B.N.D., 2010 WL 2708610 at *4.
DiSabatino v. Salicete, 671 A.2d 1344, 1350 (Del. 1996) (citing Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829 (1994)).
The Court finds that a valid mandate, judgment and Order exists, as the dispute primarily arises from this Court's Interim Order of August 12, 2016. The Court notes, however, that Father is alleging ongoing non-compliance with visitation, which would also be in violation of this Court's Orders regarding visitation, which includes the Interim Order of May 22, 2017, the Order of November 17, 2017, the Interim Visitation and Scheduling Order of November 2, 2018, and the Interim Visitation and Scheduling Order of March 12, 2019. The Court also finds that Mother had the ability to abide by the Order for all but one visit when Mother explained to Father that she would not be able to meet at the designated exchange location due to having issues with her car which would prevent her from driving long distances.
The primary issue for this Court to consider, therefore, is whether Mother failed to abide by the Court's Orders in a "meaningful way." While Father contends that Mother has not made Child available for an overwhelming majority of her visits, Mother contends that Father has missed thirty-two out of forty visits during the relevant period of time. In support of this, Mother submitted a series of text messages between her and Father in which the parents discuss the plans and arrangements for visits between August 14, 2016 and December 16, 2016. In these messages, it appears as though both parents have contributed to Father's missed visits. On at least one occasion Mother unilaterally changed the visitation location from Claymont, Delaware, as Ordered by the Court, to Newark, Delaware. While Mother clearly did not abide by the Order in this regard, Father refused to discuss the change with Mother and merely reiterated that he would only go to Claymont, Delaware for the visit. On another occasion, Mother arrived late to the exchange location with Child. While she kept Father in regular communication about her tardiness, including the fact that she was running late due to car troubles, Father told Mother "that's not my problem" and left the exchange location, after waiting forty minutes.
From the Court's perspective, it appears as though both parents have caused Father to miss visits due to their poor communication and animosity towards one another, rather than unilateral actions solely on Mother's behalf. The text messages clearly show two people who do not enjoy communicating with one another and their frustration is clearly evident, not only in the words they exchange with each other but also in their unwillingness be at all flexible when making plans for visitation that should benefit Child.
Notwithstanding these messages, which speak for themselves as to the specific visitation dates at issue, the Court also has serious issues with Father's credibility, which makes it that much more difficult for the Court to believe Father's allegations and grant his Petition- RTSC. In her testimony and cross-examination, Mother has called into question Father's credibility on a number of important issues such as when he first learned about Child's existence and his primary place of residency. What is just as concerning to the Court, however, is that Father has submitted documentation in the course of the current and past litigation, which directly contradicts his testimony during this hearing. For example, two months prior to this hearing, Father submitted documents to Mother claiming he does not own real estate but then testified that he has owned his home for the past three years. Furthermore, Father testified that he has been in his current place of employment for four years but informed the Court, as recently as two and a half years ago, that he worked elsewhere, and made no mention of his current employer at that time. These are just some examples which call into question Father's propensity for truthfulness. Because the Court does not have such concerns for Mother's veracity, the Court is inclined to accept Mother's counterargument that Father, not Mother, has been the primary cause of Father's missed visitation and Father's RTSC Petition should be dismissed.
ACCORDINGLY, IT IS HEREBY ORDERED THIS 15th DAY OF MAY, 2019 AS FOLLOWS:
1. Father's Petition- Rule to Show Cause is hereby DENIED.
2. Father's Petition for Custody is GRANTED in part.
3. Father, C------ W------, and Mother, M------- H----, shall have joint legal custody of their daughter, J------ H----, born September 12, 2014, with Mother having primary residential placement of J------
4. Visitation Schedule: Father shall have visitation with Child every Monday and Wednesday evening beginning at the time J------ is dismissed from daycare/school (or, when school is not in session, 3:00PM) until 7:00PM. Father shall also have visitation with J------ every Saturday from 9:00AM until 7:00PM. In addition, Father shall have overnight weekend visits with J------ every other weekend beginning at the time J------ is dismissed from daycare/school (or, when school is not in session, 3:00PM) until 7:00PM Sunday evening. This schedule is effective beginning May 20, 2019, with the
weekend of June 1, 2019 being Father's first overnight weekend. If Mother's work schedule changes so that she is not required to work on Saturdays, Father's alternating Saturday day visitation terminate, with his alternating overnight weekend visitation to remain in place.
5. Summer Vacation: Each party shall be permitted two non-consecutive weeks of vacation time with Child from Friday evening until the following Friday evening. The parties shall notify each other of the anticipated dates of their vacation no later than four (4) weeks prior to the anticipated start of their vacation week. The parties shall strive to coordinate their vacation plans such that Father's two weeks and Mother's two weeks do not interfere. If there is a conflict which the parties cannot resolve, Mother's selection shall govern in odd numbered years and Father's selection shall govern in even numbered years.
6. The exchange location shall be at a mutually agreed upon location that is located approximately mid-way between Mother and Father's homes. The parents are strongly discouraged from using police stations or the Tri-State Mall for the exchange location going forward.
7. Father shall not be permitted to exercise his overnight visitation in Ms. J----' home in New Jersey. Father's overnight visits must occur in his home in Philadelphia, PA, unless otherwise agreed to by Mother in writing.
8. Holidays : The parties may split the holidays (and winter and spring school recesses when Child is school age), on a mutually agreed upon schedule. If the parties cannot reach agreement, regardless of whose day it is supposed to be, Father shall have Child on holidays in Column 1 in odd-numbered years and holidays in Column 2 in even-numbered years. Mother shall have Child on the holidays in Column 1 in even-numbered years and the holidays in Column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holidays | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
With the exception of Christmas and Halloween, Holiday contact shall be from 9AM until 6PM the day of the holiday (unless the holiday falls on your normal residential custody, then there is no change). Halloween contact shall begin at 5 PM until 9PM. Christmas Eve contact shall begin at 6PM on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6PM on December 26th.
9. Mother's Day/Father's Day : On Mother's Day and Father's Day, regardless of whose day it is supposed to be, the parent whose holiday is being celebrated shall be entitled to spend the day with Child from 9AM until 6PM.
10. Child's Birthday : If the parties cannot reach agreement, regardless of whose day it is supposed to be, Father shall have Child on her birthday in odd-numbered years and Mother shall have Child on her birthday in even-numbered years.
11. Neither parent shall in any way interfere with the other parents' access to important information concerning Child, including medical care and education.
12. The parties may modify Child's residential visitation schedule by mutual agreement in writing.
The Court reminds the parties that each parent is entitled by statute to have reasonable access to his or her child by telephone, mail, and other means of communication and to receive all material information concerning the child. Each party shall foster a feeling of affection and respect between the child and the other parent. Moreover, neither party shall do anything that may estrange the child from the other party, injure his or her opinion of the other party, or hamper the free and natural development of his or her love and respect for each party.
See 13 Del. C. § 727(a):
Whether the parents have joint legal custody or 1 parent has sole legal custody of a child, each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life, and school activities and conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The Court shall not restrict the rights of a child or a parent under this subsection unless it finds, after a hearing, that the exercise of such rights would endanger a child's physical health or significantly impair his or her emotional development.
IT IS SO ORDERED.
/s/ _________
Robert Burton Coonin, Judge RBC/jr
Cc: File, parties Date e-mailed to Father's Attorney: __________ Date mailed to Mother: __________