Opinion
CN13-03008
11-04-2021
DS v. MR
Alexandra Cumings, Esq.
Alexandra Cumings, Esq.
PETITION TO MODIFY CUSTODY ORDER
ROBERT BURTON COONIN, JUDGE
Dear Ms. S ------ and Ms. Cumings:
This is the Court's decision regarding the Petition to Modify Custody Order filed on January 7, 2021, by D---- S------ (hereinafter “Mother”) against M----- R------ (hereinafter “Father”) in the interest of their minor children J------ R------, born ---- -, 2008, and K------- R---- --, born ----- --, 2010 (hereinafter “Children”). Mother also previously filed two Petition Rule to Show Cause, which have both been dismissed by this Court.
Procedural History
A prior custody order was entered on April 24, 2018, which granted the parties joint legal custody and shared physical custody by way of alternating weeks. A Consent Protection from Abuse Order ("PFA") was entered on February 12, 2021 expiring in February, 2022. As a result of that, Father became the primary residential custodian of Children and Mother became entitled to visitation at the visitation center every other Saturday after Mother completed her parenting and domestic violence classes. Mother asserts that Father has been preventing Children from visiting with her. Father asserts that it is Children who are afraid and do not want to visit with Mother. Mother filed this Petition to Modify Custody Order on January 7, 2021. A trial on this matter was held on October 4, 2021. The Court interviewed Children on October 28, 2021.
Background Facts
Father resides in Wilmington, Delaware with his paramour, M ----- M -----, Children, and his other children, A---- and M ------ . Father is renting his home and has lived there for the last two years. Father is employed full time for a restaurant. In the home, Children share a room together. The home is located in a calm neighborhood, made up of many older people. Father contends that Children have become very comfortable after adjusting to living with him full time. Father and his paramour have been together for four years and he has no concerns about leaving Children with her, as she acts motherly toward them.
The parties previously held joint legal and shared physical custody of Children, which they had agreed to and that it was going fine until the police were called and Children were removed from Mother's care. Father alleges that the police were called to Mother's home in the middle of the night because Mother had hit Children. Maternal Grandmother then went to pick up Children in the middle of that night and Father became aware of the incident after Mother called him and said that she would call the police if her mother did not bring the Children back to her. Father had already retrieved Children from Maternal Grandmother at which time the Children told him that Mother had hit them with a belt and with flip flops when she would get upset and that they were scared of Mother. Father contends he attempted at that point to maintain the custody arrangement by bringing the Children to Mother's home, but they refused to get out of the car to go to Mother's home. Mother called the police and spoke with Father who informed them of the situation. Father was told that he could not force Children to go with their mother, so Father brought them back to his home. Mother later called Father and threatened that she would kill them and other things. About a month later, Mother showed up at Father's place with the police demanding to take custody of Children. The Children told the police they did not want to go, but the police told them they had to go as they had the shared custody arrangement. Father did eventually stop bringing the Children for the purported shared custody visitation, following these incidents. Father contends that he has been bringing Children every visit with Mother at the visitation center, but that when he picks them up, they are upset, angry and state that they do not want to go again.
Mother lives in Wilmington, Delaware and has lived in her current home for the past eight years. Mother is currently seeking to sell her home, and then will be relocating to an apartment elsewhere. Mother lives with her two other children, Y ------ S ------, born ---- -, 2004, and A ------ R ------, born ------- --, 2019. Mother is currently unemployed and is attempting to receive unemployment payments, but her case continues to be reviewed; she otherwise has no other source of income. Mother was last employed by a bank in March 2021. Mother has no physical limitations and is in good physical health. Mother has never been treated for any mental health concerns.
Modification of Custody
For the sake of judicial economy, the Court will not repeat in detail all of the testimony it can obtain from the record, but it will note the salient testimony as it pertains to the required statutory analysis. Pursuant to 13 Del. C. § 729(b), in making a determination on a request to modify the legal custody and residential arrangements for a child set out in a prior order entered by the Court by consent of the parties, the Court must consider all relevant factors including those set forth in 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:
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 children's parent or parents as to their custody and residential arrangements;
Mother is seeking joint legal and shared physical custody of Children. Mother seeks to return to the prior order of custody where the parties exchanged alternating weekly custodial care of Children.
Father is seeking primary custody of Children. Father contends he is open to Mother seeing the Children whenever she wants but seeks to have the Children remain living with him.
Therefore, the Court finds this factor to be neutral as to residential placement, because the parties have taken opposing positions. The Court find this factor weighs in favor of joint legal custody, however.
(2)The wishes of the children as to their custodian(s) and residential arrangements;
On October 28, 2021, the Court conducted an interview of both children independently and without the presence of either parent. J ------ indicated she likes the present arrangement as it is and likes only seeing Mother once or twice a month. J ------ indicated that she does not feel safe around Mother sometimes and would still be scared of Mother if their visits took place in the community. J ------ could not identify anything that could be done to make her feel less afraid of Mother. K---- --- expressed that she too is still scared of Mother and does not want to see Mother more than they already do. K ------- also could not identify anything that could be done to make her feel less afraid of Mother.
The Court finds this factor favors granting Father primary residential placement, but continuing visitation with Mother at the visitation center.
(3) The interaction and interrelationship of the children with their 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 children's best interests;
Children's Relationship with Mother and Mother's Household
In Mother's household is her other daughters Y ------ S ------ (DOB --/--/2004) and A ------ R ------ (DOB --/--/2019). Mother believes that she is a good mother. Mother stays on top of Children's academics and their health. Mother provides as much as she can for Children. When the Children stay at Mother's home, they share a room. Mother contends that she never made Children take care of her youngest child and especially did not make Children miss school to do so. Mother contends that while she was working, she relied on her eldest daughter, Y ------ to watch her baby, A ------ . There are also allegations of abuse against both children by Mother, detailed more specifically in section (7) below. With the current visitation with Mother, Father and Ms. M----- both report that Children indicate they do not want to go to visitation and Children are upset and angry after those visits.
Children's Relationship with Father and Father's Other Children
Children have a very good relationship with Father and everyone in his household. In the home are Children, Father's other daughter M ------, and Father's son A----. Ms. M ----- contends that Children are very close with A---- and M ------ . Father stated Children get along well with M------, so much so that the Children always go check on her as soon as they wake up. Father stated Children get along well with A----; they often play and do homework together. Children and A--- - often follow each other around. All the children in the home eat together, watch tv together, and play together in their free time after school and after homework is done. Father also believes Child has a very strong bond with his parents as well. Father is involved in Children's education and attends to them. Within Father's home also reside Children's uncle and cousin, R ------ R---- (DOB --/--/1984) and A ------ R---- (DOB -/--/2006), who live in the third floor upstairs of Father's home separate from the remainder of the home, according to Children.
Children's Relationship with Father's Paramour, M ----- M
Ms. M ----- has been living with Children for roughly four years, including when the custody arrangement was the alternating week schedule. Children and Ms. M ----- enjoy a good relationship. When the Children first met Ms. M -----, they were shy, afraid, and had a hard time communicating, but they have improved their relationship over time and now Ms. M ----- considers them to be closer and like her own daughters. Ms. M ----- stated that the Children always tell her what is on their mind. Ms. M ----- acts like a mother to them by making sure they have clothes and food. Ms. M ----- often cooks for and with Children, plays with them, and takes them out. Father does not have any concerns about leaving Children with Ms. M ----- . Ms. M ----- contends she has taken on a mother-like role with Children and considers Children to be her own. Ms. M ----- spends a lot of time with Children when Father is at work.
The Court finds this factor favors granting Father primary residential placement, but continuing visitation with Mother.
(4) The children's adjustment to their home, school and community;
The Children have become very comfortable living with Father and his household full time. Ms. M ----- has indicated that the Children's adjustment to Father's home has been fine with no problems. Father reports that J ------ is a happy and content girl who likes to read and write and play with people. Father also reports that K ------- is a joker, likes to make people laugh, and likes to draw. At Father's home, both Children report that they are responsible for specific chores, as are their cousin and half-brother. J ------ is responsible for cleaning the table, while K ------- is responsible for cleaning the counters. Their cousin, A ------, is responsible for mopping and sweeping the floors, while their half-brother, A----, is responsible for mopping and sweeping the hallways. Children believe that the division of chores among all the children in Father's home is fair. The Children do receive punishments if they do poorly in school or do something bad, but those punishments consist of them not being allowed to watch tv or play on their phones or tablet. No physical discipline is utilized. Children share a bedroom at Father's home.
Both Children attend --- -------- ------ -- --- ----. J ------ is in the eighth grade and has been there for three years. K ------- is in the sixth grade and this academic year is her first at this school. Father reported that children were doing well in school and then when custody issues began to arise and hearings were being held, their grades began to slip, as they worried more about these proceedings and their desire not to return to Mother. At the hearing, various school records were admitted demonstrating J ------ and K ------- 's lower grades during the 2019-2020 year. Various school records were also admitted reflecting the Children's grades thus far this academic school year. Both children have demonstrated an improvement in school. Both Children also indicated in their interviews that they are doing well still in school, enjoy being there, and have made friends.
J ------ reported in her child interview that when living at Mother's home when they were younger, her older sister would often take care of her. Children shared a bedroom at Mother's home. It was alleged that Mother made Children care for their baby sister, although Mother has denied that. Father reported that when Children returned to his care during the alternating weeks arrangement, the Children would return with messy hair, sometimes be wearing Mother's clothing. Ms. M ----- reported that the Children would return from Mother's during that alternating scheduling, sad and serious, and had trouble communicating their concerns. Little else was reported about the living arrangements at Mother's home, beyond the reported allegations of abuse against the Children, detailed under section (7), which Mother disputes.
The Court finds this factor favors granting joint legal custody and Father primary residential placement, but continuing visitation with Mother.
(5) The mental and physical health of all individuals involved;
Children were last seen by doctors about three months ago for their physical examinations for school. Father reports that there are no longer any existing concerns for J ------ 's physical and mental wellbeing. Doctors had previously informed Father that J ------ was pre-diabetic and recommended that she needs to eat more fruits, drink more water, and limit herself to kid-sized portions of food. Father did work on portion control, made sure J ------ was eating more fruit, and ensured J ------ was drinking water. Father followed the doctor recommendations and when they went back for the next appointment, J ------ had lost weight and was no longer at risk of diabetes Father reports that there are no concerns for K -------- 's physical and mental wellbeing. Both Children have been prescribed glasses but may have lost them; Father has since sought to get them an eye appointment so they can get new glasses.
No information was provided regarding Father's or Ms. M ----- 's physical and mental health.
Mother contends that she has no physical limitations and is in good physical health. Mother further contends that she has no mental health concerns for which she is being treated. Mother also does not believe either Child has any physical health or mental health needs to be addressed.
No testimony was presented with regard to this factor which impact either parent's ability to care for Child. Therefore, the Court finds this factor to be neutral as to its analysis.
(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.
Father has been the primary caregiver for the children since the entry of the PFA in February 2021, and before then the parties shared the responsibilities as shared residential custodians. Father testified that he is involved in the Children's academics and though he was not receiving correspondence before about their progress in school, he has reached out to the school and spoken with their teachers about that progress and had the school's information updated so that he will now receive that information. Father has taken the children to their annual physical examinations and has worked with J ------ specifically on being healthier, so she is no longer pre-diabetic. Father's paramour, Ms. M -----, confirmed that Father is involved with everything related to Children and attends to them and their needs.
Mother has not had primary care of Children since the entry of the PFA in February 2021. Prior to that time, the parties shared residential custody of Children. Mother believes that she is a good mother who stays on top of the children's academics, ensures they are up to date on the vaccinations, and provides as much as she can for the children. Mother provided the Court email correspondence over the course of the 2020-2021 academic year with the children's teachers about their progress in school.
Therefore, the Court finds this factor neutral as both indicate a compliance of their rights and responsibility to their children.
(7)Evidence of domestic violence as provided for in Chapter 7A of this title; and
Pursuant to 13 Del. C. § 706A, "(a)ny evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the court in determining the legal custody and residential arrangements in accordance with the best interests of the child." A consent PFA was entered against Mother on February 12, 2021 and is set to expire in 2022. That consent PFA is not evidence of domestic violence. Father, however, testified that Children told him that they were being hit by Mother. J------ disclosed in the child interview that Mother would hit Children if the baby was crying, if the house was not clean, if they talked back, or if anything would make her angry, which was, according to J ------, "all the time." J ------ also disclosed that while both her and K ------- were hit, their older sister Y ------ was hit as well. K ------- disclosed similar allegations and elaborated that Mother would hit them for what she believed was no reason and also would hit her specifically if Mother thought someone was touching her.
Department of Services to Children, Youth and Families ("DSCYF/DFS") became involved in January 2021 when the parties were litigating their PFA's. That investigation result was that the allegations were "unsubstantiated with concern" with regard to Mother. That concern was justified against Mother upon learning that one of the girls was hit with a belt or other object that left a mark while in Mother's home, according to Mackenzie Rumford, a DSCYF/DFS family crisis therapist. Mother has also levied allegations of abuse against Father including that he hits the Children with a belt, insults them, and screams at them. Father disputed those allegations and both Children indicated that, contrary to Mother's claims, they have never been abused by Father.
The Court finds this factor favors granting Father primary residential placement, but continuing visitation with Mother.
(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.
Father has no criminal history in Delaware. Mother has no criminal record from Delaware or another state. Therefore, the Court finds this factor to be neutral as to its analysis.
Conclusion
After considering all relevant factors, including those set forth in 13 Del. C. § 722, the Court finds it is in the best interest of Children to maintain joint legal custody, grant Father primary residential custody, and continue visitation with Mother. Factor one (1) is neutral as to residential custody since parties have taken opposing positions, while favoring joint legal custody. Factors two (2), three (3), four (4), and seven (7) favor granting Father primary residential custody. Factors five (5), six (6), and eight (8) are all neutral. Based on the testimony presented, the parties maintained an alternating residential placement schedule of both children, until both Children decided they no longer wanted to withstand the abuse inflicted on them while at Mother's house. Both parties have demonstrated their caring for Children, and nothing has been presented indicating that the parties are incapable of communicating about the decision making in the Children's lives. Therefore, the parties should maintain joint legal custody. Given the testimony presented about the homes of both parents and the Children's own strong fears and aversions to living with Mother, Father should be granted primary residential custody. However, Father presented no evidence from which the Court can conclude that visitation with Mother would be harmful to Child, in fact Father has stated he has no problem with Mother seeing Children as much as she would like, so long as he has primary custody of Children. Therefore, the Court finds there was not sufficient evidence presented to deny Mother visitation with Children. However, that visitation is only possible to the extent that Children are comfortable with visitation given their age and awareness of their situation.
The Court reminds the parties that each parent is entitled by statute to have reasonable access to Child by telephone, mail, and other means of communication and to receive all material information concerning Child. Each party shall foster a feeling of affection and respect between the Child and the other parent.
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.
ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:
1. Father, M ----- R ------, and Mother, D---- S ------, shall share joint legal custody. Father shall have primary residential placement of children, J ------ R ------, born ---- -, 2008, and K ------- R ------, born ----- --, 2010.
2. Mother's visitation: Mother shall continue to have visitation with Children pursuant to the current schedule, every other Saturday at the visitation center. Mother's visitation
may increase in frequency or decrease in supervision only once the Children are comfortable and willing to see her more.
3. Mother must enroll in and demonstrate active participation in anger management counseling. Mother must also enroll in and engage in a parenting class. Mother shall provide Father with periodic evidence of her compliance with these provisions.
4. Notwithstanding the provisions of this Order, the parties may modify the visitation schedule by mutual agreement in writing.
IT IS SO ORDERED.