Opinion
CN12-03287 Petition 20-06491 21-16970
11-12-2021
RE: HL v. EP
LETTER DECISION AND ORDER
ROBERT BURTON COONIN, JUDGE
Petition to Modify Custody Order: G -------- P ----- (D.O.B: --/--/04), C------- P ----- (D.O.B.: --/--/06), and E ----- P -----, -- (D.O.B.: --/--/15)
Trial concluded, ready for decision: October 29, 2021
Dear Ms. L ------ and Mr. P -----, This is the Court's decision regarding the cross-Petitions to Modify Custody filed by H------ L ------ ("Mother") and E ----- P -----, --- ("Father"), in the interest of minor children G -------- P----, born ------ -, 2004, C ------- P -----, born ----- --, 2006, and E ----- P -----, --, born --- -, 2015 (collectively "Children").
Procedural History
By default, on July 6, 2018, this Court granted Father sole custody of Children. Mother was granted visitation on January 2, 2019. On March 9, 2020, Mother filed her Petition to Modify Custody. As of March 10, 2020, the parties were granted joint legal custody of all the Children on an emergency basis. On April 23, 2020, the Court issued a Protection from Abuse ("PFA") Order against Father and granted residential placement of Children with Mother. That PFA Order expired on July 23, 2020. On December 2, 2020, the Court held a case management conference and forwarded the matter to mediation. Mediation was unsuccessful. On June 2, 2021 a case management conference was held where trial was set. At that time, Father was also permitted unrestricted access to his children through phone and video contact. Father then filed a custody petition on July 22, 2021.
On October 29, 2021, the Court held a final hearing on the cross Petitions to Modify Custody. The Court took testimony from Mother, Father, and E---- P ----- . The Court also interviewed two children, G -------- and C ------- P ----- .
Background Facts
Mother is 38 years old and is currently unemployed but seeking disability. Mother has scoliosis that requires her to wear a brace, however she has been denied for disability five times and is currently still appealing. Though Mother is technically unemployed she does provide care for a disabled person on a part time basis working 20 to 25 hours a week. Mother is currently living with her husband, R ----- L ------, and the three children subject to these proceedings. Mother also has a 21-year-old daughter who no longer lives at home. Mother's husband is 39 years old and was recently hired in a new position doing general construction for ------- ------------ after not being rehired by his past employer upon their corporate restructuring.
Father is 50 years old and is self-employed, engaging in farming. Father lives with his mother, E---- P -----, his sister, W---- P -----, and his niece L---. Father also has two other children who do not live with him; a 25-year-old who no longer lives at home and an 18-month-old son who is living with that child's mother's sister. Father has weekly contact with that son.
Discussion
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 Court's analysis. The factors are as follows:
An order entered by the Court by consent of all parties, an interim order or a written agreement between the parties concerning the legal custody of a child or his or her residence may be modified at any time by the Court in accordance with the standards set forth in § 722 of this title.
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: 13 Del. C. § 722(a) provides:
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]the 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;
Mother is requesting sole legal custody and primary residential placement of all the children. Mother would also like any visitation of Father be conditioned on at least having substance abuse evaluations completed beforehand. Father is requesting sole legal custody and primary placement as to his son, E ----- P -----, --. Father is also requesting at least visitation with his other two children, G -------- and C ------- .
The Court finds that this factor is neutral to its analysis due to the opposing positions taken by the parties.
(2) The wishes of the child as to his custodian(s) and residential arrangements;
The Court took testimony from G -------- . G -------- detailed abuse she endured by her father. G -------- last saw her father about two months ago, but Father did not see her, when she was at a Wawa. She described that she began crying upon seeing him as she thought about their past and the abuse she endured. G -------- expressed that she does not want to have any contact with Father and does not want to see him. G -------- has been contacted by Father over the phone but hangs up on Father every time he calls.
The Court took testimony from C ------- . C ------- indicated uncertainty as to any interest in seeing Father. C ------- indicated she may be willing to see Father if he was not drunk and produced a clean urine test. However, C ------- still indicated hesitancy even under those conditions and expressed she may still not be willing to have contact under those conditions unless it were to physically take place a police station.
No testimony was presented on this issue as it relates to E ----- P -----, --.
The Court finds this factor favors visitation for Father only on the terms of G -------- and C ------- and is neutral as to E -----, --.
(3) The interaction and interrelationship of the child with his 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;
Children's Relationship with Mother and Mother's extended Family:
Mother openly admits she has struggled in the past when it comes to her children. Mother made the efforts to get back on the right path and prove she was able to care for her children. Mother has been clean from drugs for 17 months and continues to actively engage in counseling and receive methadone treatment. Mother expressed throughout the hearing how much she loved her children and spoke about them with excitement. Mother's parents recently provided Mother and Mr. L ------ with a piece of property on which to build a home. Maternal grandparents have a loving relationship with Children. However, maternal grandmother has stage 4 cancer and a subsequently weak immune system that prevents them from spending as much time together as they would like.
Children's Relationship with Mother's Paramour, R ----- L ------:
Mother and R ----- L ------ have known each other for the last twelve years but have been in a relationship for the last two years. Since being together, Mother reported that they have grown a beautiful life together. Mr. L ------ has also been clean from drugs for the last 17 months. Mother contends that the children love Mr. L ------ and call him dad. Mother informed the Court that G--- ----- has talked about marrying her current boyfriend and has asked about having Mr. L ------ walk her down the aisle.
Children's Relationship with Father:
Little information was provided regarding the relationship between Father and all of the Children. There are allegations of abuse perpetrated by Father against all Children, detailed in section (7) below. At one point in time, Father had sole custody of all Children, which according to Father was "for a reason." Father has not seen, nor has he had any contact with E -----, -- since before the entry of the PFA in 2020. Father has spoken to C ------- over the phone, but in limited capacity. Father has had no contact with G --------, as she hangs up the phone anytime Father calls her. Father testified that he and E -----, -- were once inseparable and he is now being kept from Father out of hatred and spite.
The Court finds this factor favors residential placement of children with Mother.
(4) The child's adjustment to his home, school, and community;
Following the 2020 PFA against Father, Mother had sent all three children to Florida to live with their older sister, Father's first daughter. E -----, -- returned to Mother in October 2020, while C ------- and G --------- returned in early 2021. All of the Children have remained in Mother's care since their return from Florida.
E -----, -- is a first grader and attends in person. Mother reports that E -----, -- loves school and is doing well.
G --------- is currently an eleventh grader at ----- ---- ------ . Mother reports that she has been doing well in school so far. G -------- has been working on adjusting to this new school after returning from Florida and transferring from the ------------- ------ -------- in Middletown.
C -------- is in between ninth and tenth grade currently, due to being short on credits to fully move up in the school. Mother reports that C ------- is working hard in school now. C ------- particularly likes culinary class and has a grade of 95 in that class. C ------- has previously had truancy charges when living with Father fulltime. Mother reports that C ------- now attends school, but the problem has become her cutting class, so Mother has arranged for someone to ensure C ------- attends each class. Mother has been staying on top of C ------- 's class attendance by communicating with the school.
The Court finds this factor favors placement with Mother.
(5) The mental and physical health of all individuals involved
Mother has scoliosis and is actively seeking disability benefits for that diagnosis. As previously mentioned, Mother readily admits to a former drug problem, but has been clean for the last 17 months, as has her husband Mr. L ------ . Both Mother and Mr. L ------ still engage in methadone treatment. Mother actively engages in counseling with Connections once a week, and if Mother requires more counseling, she contacts her providers. Mother has considered weaning off methadone, but she likes the routine and believes it to be better than "putting a needle in her arm" and fearing that DFS will take her children. Mother will at some point seriously consider weaning off, but Mother wants to ensure that both her and her husband are prepared to do so, as they will do it together. Beyond Mother's testimony about Mr. L ------ also engaging in methadone treatment and that he is not actively using anything else, no other information was provided to the Court about his health.
Father reports that he is doing well physically. Father reports that he has had back and neck orthopedic problems. Father also sees a doctor for thyroid medication. Father contends that he is pretty sharp mentally. Father reported that he had a heat stroke in July 2020. Father also has a slur in his speech which he reports began after the 2020 home invasion, described in section (7) below. Father has also suggested that his slurred speech may be the result of farm chemicals. At the hearing, Father was inconsistent in his description about his alcohol use. Father indicated that he last drank excessively about 15 years ago. Father reported he received a driving under the influence charge in 2008 and subsequently stopped drinking. Father stated that he socially drinks and has a beer or a shot of vodka maybe two to three times a month and that is all. C ------- testified that Father abused alcohol in the past and specifically that Father would leave the Children with paternal grandmother while he went to drink at Dover Downs. Father testified that he also uses marijuana two to three times a week, though he does not have a medical use card. Father also reported that he takes Vyvanse. Father admitted to using illegal drugs in the past, specifically opioid pills when Mother and Father were still together, which he contends was to self-manage his medical issues.
No information was provided to the Court regarding paternal grandmother, E---- P ----- 's health, with whom Father lives.
E -----, -- has been diagnosed with Attention Deficit with Hyperactivity Disorder and sees a psychiatrist for medication management for Adderall. Mother has been working with all the children on participating in counseling after school. E----, -- began counseling November 2020, once a month, and has his next appointment around November 7, 2021. E -----, -- began that counseling because of a trauma stressor disorder diagnosis. Mother reported that E -----, -- has nightmares and hides when he hears his father's name. Mother believes the trauma is related to the abuse of the children, specifically as it relates to E -----, --, the 2018 screwdriver incident and the 2020 home invasion, both incidents described in section (7) below. Mother believes that counseling is helping, and they have been referred to Delaware Guidance for a determination on whether visitation with Father would be detrimental or beneficial for E -----, --. That appointment is still pending due to the lengthy wait period due to COVID. E -----, -- is otherwise physically healthy and full of energy.
G -------- is physically healthy.
C ------- has been receiving counseling at the Wellness Center, which only recently began in October 2021. Mother reported that they are working on getting C ------- to open up more. Mother believes that C ------- will need the most counseling of all the children. C ------- also has slight scoliosis but does not require treatment for it at this time.
The Court expresses great concern for Father's possible cognitive issues and possible substance abuse. In the courtroom presented as him having difficulty understanding the court process at times and extreme difficulty in formulating questions to ask during cross-examination. As a result, Father asked very few questions. The Court finds this factor favors placement of Children with Mother.
(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.
While in Father's care, C ------- missed 75 days of school, which resulted in Father having to seek truancy charges. Little other information was provided about Father's involvement with the children, beyond the abuse, as to his compliance with under § 701. Paternal grandmother indicated that Father always tried to provide for his children when they were in his care and when he was working, she would care for the children. Paternal grandmother also reported that she never saw Father mistreat the children. Father has had no involvement with the children, beyond attempted phone contact, since prior to the PFA and the children going to and returning from Florida. Father travelled to Florida to attempt to see Children but was unable to locate them.
When the children still lived with Father fulltime, Paternal grandmother reported that when Mother was present, she would provide for her children, but that she was not always present. Mother reports that she has worked on parenting as she has become sober, and she is involved in the children's academics and in ensuring their wellbeing as evidenced by her testimony regarding the children's counseling and recent school history.
The Court finds this factor is neutral regarding legal custody and residential placement.
(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."
On April 23, 2020, a PFA was entered against Father on behalf of Mother and all three children, after a full hearing. Commissioner Maxwell made specific findings against Father. On March 9, 2020, Father engaged in conduct that "a reasonable person under the circumstances would find threatening or harmful" and would make a reasonable person concerned for their safety. The specific incident involved Father verbally and emotionally abusing C ------- and G---- ---- by "repeatedly screaming and cursing at them in an extremely belligerent and demeaning manner." Father also called them "horrendous names." That exchange also constituted verbal and emotional abuse against Mother. E -----, -- was also present at the time. That same incident led the court to find that: Father intentionally or recklessly put Mother and Children in reasonable apprehension of physical injury; Father engaged in a course of alarming or distressing conduct likely to cause fear, emotional distress, or provoke a violent or disorderly response; and Father engaged in child abuse. The court also expressed concern about a posting on Father's Facebook account, though the Court could not conclude Father had actually posted this himself, stating, "I need more alcohol so I won't remember the killing spree." Commissioner Maxwell made a referral to Department of Services to Children, Youth and Families ("DSCYF/DFS") following the incident.
Following these findings, DFS conducted an investigation and found that there were concerns about the allegations, but they did not have any intent to substantiate Father for the verbal abuse and throwing of a fire log, causing bruising on C ------- . DFS further stated in a letter to Father, presented at trial and admitted into evidence, that that intent not to substantiate was "not conclusive" as to pending proceedings for same or similar incidents.
Throughout Father's testimony, Father alleged that Mother has harassed him for years by filing repeated PFA's. However, a review of the significant paper record involving this family demonstrates that both parties have a history of filling PFA's against each other.
In January 2020, there was a "home invasion" at Father's parent's home. Three people with masks and bats broke car and home windows and then broke into the home while Mother, Father, and all Children were present. The three people that broke into the home then attacked Father. Around that time, Father was charged with assaulting a woman named D ----- T -------, Mother's cousin. Father had allegedly beaten Ms. T -------, with whom he was having a relationship with. Mother reports that it was Ms. T ------- 's boyfriend, son, and another person that attacked Father. Father contends that Mother was somehow involved in arranging this attack because Mother had found out about Father and Ms. T ------- 's relationship. According to Father, his speech slurring began following this attack, although no corroborating medical evidence was presented linking this disability to the assault.
G -------- provided the Court specific accounts of abuse perpetrated by Father against her and her siblings. G -------- stated that the abuse began at age 4 and ended when she was 15 years old. Everyday Father would come home angry and take it out on the children. G -------- indicated that her and her siblings were abused all the time and that Father would mostly go after her, but if she was already on the ground, then Father would go after C ------- . There was one time, about 2 years ago, that Father told her to clean the dishes and cabinets, but she did not do it correctly, so Father attempted to throw a cake at her face, which G -------- avoided, so Father then punched her in the jaw and told her to clean the cake up. There was another incident when she was around the age of 13 or 14 where Father threw her into a brick fireplace wall. Father also has picked G-------- up and thrown her onto baby toys, breaking them. G -------- stated that Father would use a belt, especially the brass portion, hanger, broom, or anything else he could get his hand on against the children. G -------- also described a time when paternal grandmother removed her and C --------- from the room while Father "beat the shit" out of their older sister, D ------- . Finally, there was the screwdriver incident, corroborated by G --------, C -------, and Mother. Mother, Father, and all the Children were in a room together when Father attempted to throw a screwdriver at Mother, but instead it hit E -----, --, causing him to bleed.
C ------- described the screwdriver incident above, as well as other abuse she endured. There was an incident when she was around age 6 or 7 when Father threw a dish at her and it broke. There was another time when Father forced C ------- down into the basement without the lights on and would not let her back up without completing the laundry.
Paternal grandmother, E---- P ----- disputes the allegations of both C ------- and G --------, but indicating that she has never seen Father mistreat his children. The Court took notice of Ms. P ------ 's demeanor when testifying that she never saw abuse, as she appeared quite uncomfortable answering questions by Father regarding this matter. Both C ------- and G ---------dispute paternal grandmother's testimony, indicating the paternal grandmother was aware and turned a blind eye. The Court finds the testimony of Father and Paternal Grandmother denying abuse by Father to lack credibility.
The Court finds this factor weighs in favor of Mother having sole legal custody and primary residential placement and Father having supervised visitation with E -----, -- and visitation with C ------- and G -------- only should they chose to have visitation.
(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.
The Court has reviewed the Delaware criminal histories of the parties and any household member residing with Children. Mother, Father, and Mr. L ------ all have criminal histories.
Father has a 1998 and a 2017 conviction for possession of a deadly weapon by a person prohibited. Father has a prior felony driving under the influence, drunk driving conviction from 2010. Father has dozens of prior charges, many of which are motor vehicle related. Pending, Father has an assault third degree charge from 2020. Father also plead to endangering the welfare of a child in 2017.
Mr. L ------ is subject to a no contact order with ------- --------, ---- and the Town of Newport. Mr. L ------ also has a pending possession of burglar tools, criminal mischief, and criminal trespass third from 2021. Mr. L ------ was convicted for criminal trespass second in 2019 and possession of drug paraphernalia in 2019.
Mother has pending charges from 2019; burglary third, theft under $1,500 from a victim 62 years of age or older, and conspiracy second. Mother also has prior charges for criminal trespass first and theft under $1,500 from 2019. Mother also plead to endangering the welfare of a child in 2017.
Paternal grandmother, E---- P ----- has no criminal history beyond motor vehicle related charges. W---- P -----, Father's sister, has no convictions recently. She has misdemeanor shoplifting convictions from over 20 years ago.
The Court finds this factor neutral as all parties involved have criminal histories.
Conclusion
Based on the evidence presented, the Court finds that factors one (1), six (6), and eight (8) are neutral as to custody and residential placement; factors three (3), four (4), five (5), and seven (7), favor sole legal custody and primary residential placement with Mother; and factor two (2) favors visitation with C ------- and G -------- only on their terms and is neutral as to E ------, --. Upon consideration and weighing of the above factors and the evidence presented, the Court finds Mother having sole legal custody and primary residential placement to be in Children's best interest. It is clear to the Court the relationship between the parties and the relationship between Father and Children has been strained. Further, this Court has great concerns for Father as it relates to the abuse perpetrated against the Children, as well as his substance abuse, and possible cognitive impairments or issues. Some of those concerns were confirmed for the Court after the Court provided a recounting of the Children's testimony to both Mother and Father, at which time Father grew enraged, requiring he be escorted from the Courtroom.
The Court reminds the parties that each parent is entitled by statute to have reasonable access to Children by telephone, mail, and other means of communication and to receive all material information concerning Children. Each party shall foster a feeling of affection and respect between the Children 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. Mother, H ------ L ------ shall have sole legal custody and primary residential placement of Children, G -------- P -----, born ------ -, 2004, C ------- P -----, born ----- --, 2006, and E ----- P-----, --, born --- -, 2015.
2. Father may have visitation with C ------- and G -------- at such time as they so wish to have visitation.
3. Father may have visitation with E -----, -- in a therapeutic setting after it has been determined that such visitation will not have a detrimental effect on the child's emotional health.
4. Prior to any visitation, Father must also engage in an anger management course. Further, prior to such visitation, Father must complete alcohol screenings and provide the results to Mother.
IT IS SO ORDERED.