Opinion
File No.: CN17-01619 Petition No.: 17-09880
04-01-2019
RE: J----- R----- v. L--- R-----
Judy M. Jones, Esquire
1105 N. Market Street, 19th Floor
Wilmington, DE 19801 L--- R-----
--- --------- ------ ----
Townsend, DE 19734 LETTER, DECISION AND ORDER Petition for Custody: A----- R----- (D.O.B. --/--/08) and E--- R----- (D.O.B. --/--/12) Dear Ms. Jones and Ms. R-----:
This is the Court's decision regarding the Petition for Custody filed by J----- R----- (hereinafter "Father") on March 30, 2017 and the Counterclaim for Custody filed by L--- R----- (hereinafter "Mother") on April 19, 2017, both in the interest of their minor children A----- R-----, born ------- --, 2008, and E--- R-----, born --- --, 2012 (collectively hereinafter "Children"). Father is represented by Judy Jones, Esquire and Mother is self-represented.
Procedural History
In his Petition for Custody, Father requested joint legal custody and shared residential placement. In her Answer to Father's Petition for Custody and Crossclaim for Custody, Mother requested sole legal custody and primary residential placement, with Father having "frequent and meaningful visitation" with Children. On April 27, 2017, Father filed an Answer opposing Mother's counterclaim. Following an unsuccessful mediation, an Interim Custody Order was put into effect on May 16, 2017 wherein Mother and Father were to have joint legal custody and shared residential placement, pending a final hearing on the Petition and Crossclaim for Custody. Mother was to have Children every Monday and Tuesday, and every other weekend and Father was to have Children every Wednesday and Thursday, and every other weekend. On November 27, 2017, the Court held a teleconference on the crossclaims for Custody and scheduled trial on the matter for March 12, 2018.
On February 26, 2018, the Court signed a Stipulation and Order for Drug and Alcohol Hair Follicle Testing, agreed to by both parties, wherein Mother and Father each consented to submit to drug and alcohol hair follicle testing within five days, with the costs of such testing to be borne by the other party. On March 8, 2018, Mother filed an Expedited Motion for Continuance requesting that trial on the crossclaims for custody be rescheduled to a later date with additional time due to the extensive nature of the evidence being presented at the hearings and because the results of the agreed to drug and alcohol testing had not yet been received. The Court granted Mother's Motion and rescheduled trial for three days in June 2018.
These dates would later be continued to December 5, 2018 and December 6, 2018, due to circumstances beyond the Court's control.
Following the Court granting Mother's request for a continuance, Mother moved for Interim Relief requesting that the Court issue an Order requiring Father to produce Children's social security cards, which Mother believed Father had in his possession at the former marital residence. On March 13, 2018, Father filed an Emergency Motion for Interim Relief requesting that the Court issue an Order preventing Mother's paramour, J—S------, from driving Children and caring for Children without another adult present. To support this Motion, Father cited Mother's testimony during a deposition on February 26, 2018 in which Mother described the concerning details of Mr. S------'s seizures, which she indicated can occur as often as "every day." Additionally, Father also alleged that Children have told him Mr. S------ threatens to discipline the children and, on at least one occasion, threatened to use his belt to do so. On March 23, 2018, Mother filed an Answer opposing Father's Emergency Motion in which she denied that Mr. S------ places Children in danger. Instead, Mother claimed that Father's own medical concerns, such as his high blood pressure and reluctance to take his medication as prescribed, and Father's abuse of his anxiety and PTSD medication, present a higher risk of danger to Children than Mr. S------'s medical conditions.
On April 11, 2018, the Court held a teleconference on Father's Emergency Motion. The Court determined that medical documentation of the severity of Mr. S------'s seizures would be important to consider before deciding Father's Motion. Therefore, the Court allowed Mother \ten days to obtain Mr. S------'s consent to either submit his medical records or undergo an independent medical evaluation by a doctor of Father's choosing. If Mr. S------ did not provide his consent within ten days, Father's Emergency Motion would be granted, in part, and Mr. S------ would be prohibited from driving Children. Mother's then counsel later informed the Court that Mr. S------ would not give his consent. On May 1, 2018, the Court issued an Order granting Father's Motion, in part, which stated "Respondent Mother L--- R----- shall not permit J-- S------ to drive a motor vehicle in which the above-named children are occupants." The Court, however, denied Father's request that Mr. S------ be prohibited from supervising Children without another adult present.
On November 9, 2018, Father filed another Emergency Motion for Interim Relief alleging that Mother refused to allow Children to be with Father on his scheduled days, in violation of the Interim Custody Order. On November 7, 2018, Mother filed for an Order of Protection from Abuse ("PFA") of Father and obtained a Temporary Ex Parte Order, pending the final hearing on November 20, 2018. In her PFA Petition, Mother alleged that Father violated the Court's Order and by consuming alcohol during visits with Children. In addition, Mother claimed that A----- had alleged that Father was sexually inappropriate with her, watched her shower, and slept naked with her in bed. Mother also claimed that both children had expressed fears of being alone with Father and driving in a car with him and the Division of Family Services ("DFS") had opened up an investigation to address these allegations. On November 8, 2018, the Court issued a Temporary Ex Parte PFA Order which prohibited Father from having any contact with Children until the PFA Hearing on November 20, 2018. Because Children were protected victims under this Temporary Order, the Court denied Father's Emergency Motion. On November 20, 2018, the Court, having heard evidence, found that Mother failed to meet her burden of proving that abuse had occurred by a preponderance of the evidence and her PFA Petition was dismissed.
On November 21, 2018, Mother also filed a Petition to Modify Custody Order (Pet. No.: 18-34897), requesting that the Court modify the custody Order of November 20, 2018. However, the Court notes that not only is this decision the sole final custody Order between the parties, but the November 20, 2018 Order was merely an Order denying Mother's most recent PFA Petition and vacating the Temporary Ex Parte Order which contained no provisions regarding Custody of Children. Therefore, as there was no custody Order to be modified, the Court does not find that Mother's Petition to Modify Custody is valid.
The Court held a hearing on the crossclaims for Custody on December 5, 2018 and December 6, 2018. However, the matter was later scheduled for an additional third day on December 31, 2018, due to there not being enough time for the parties to complete the presentation of their evidence. Both parties were present during the hearings, as well as Father's attorney, Ms. Jones. Across all three days, testimony was taken from Kinesha Thompson, a DFS worker, M----- B---, Children's school counselor at ------ Elementary, Father, S----- R-----, Children's paternal grandmother, S---- D------, Mother's brother-in-law, and Mother. Following the conclusion of day three, the Court granted Mother's Motion for a Child interview as to A----- only and this interview occurred on January 17, 2019.
Background Facts
Mother and Father were married on June 15, 2002, separated on October 15, 2016, and divorced on November 17, 2017. Following the parties' separation in October 2016, Mother remained in the marital residence with Children until late 2016 to early 2017, during which Father was staying in his aunt's trailer. By early 2017, Mother and Children left the marital residence and Father moved back into the home where he continues to reside to this day. Shortly after this move, Mother and Father implemented an informal visitation schedule in which they agreed to share their weeks with the children and alternate caring for the children on the weekends. This visitation arrangement was memorialized in the Interim Custody Order of May 16, 2017. This schedule remained in place without issue until November 2018 when Mother filed a PFA against Father and withheld visitation from Father, pursuant to Children being protected victims under the Temporary Ex Parte Order. Following this PFA being dismissed on November 20, 2018, Mother and Father resumed visitation under the Interim Custody Order.
Father, 37 years old, continues to reside in the former marital residence, a three-bedroom split level home in Wilmington, Delaware. Father reports there is no one else residing in this home. Father is employed as a carpenter with B-----, Incorporated in Bear, Delaware. Father's typical work hours vary, but he often works from 7:00 AM to 3:00 PM on weekdays. Father reports he has an understanding supervisor and boss and so he can have some flexibility with his schedule if need be to accommodate his responsibilities caring for the girls. Father also reported that his mother lives ten to fifteen minutes away from his home and she is generally available to help care for the girls after school if necessary. Father can usually take the children to and from school on the days they are in his home but, if not, Father can drop the children off at either his mother or sister's home where the girls can wait for the bus to school.
Mother, 35 years old, resides in a two-bedroom home in Townsend, Delaware with Mr. S------. Both Mother and Mr. S------ are on the lease for this rental home. Mother is currently pregnant with Mr. S------'s child and is due in late March 2019. Mother reports that, although she is not formally employed, she earns money by helping Mr. S------ with his construction company when she can. Mother primarily assists Mr. S------ with running his Facebook and social media pages, but still helps with construction jobs occasionally. Mother reports that, since becoming pregnant, she works only one day per week on average. Prior to living with Mr. S------, Mother and Children resided in Mr. S------'s son's home.
Custody
The Court has not previously entered a final custody Order for Children. Therefore, in making its determination, the Court must consider the best interests of the children 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:
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 children's parent or parents as to their custody and residential arrangements;
Although Father initially requested joint legal custody and shared residential placement in his Petition for Custody, Father is now seeking either sole legal custody or joint legal custody with final decision-making authority and primary residential placement, with Mother having visitation every other weekend and one weekday evening visit. To support this request, Father indicated that the shared residential placement and joint legal custody arrangements that the parties were abiding by under the Interim Order no longer seems like a viable option for Mother and Father going forward because Father believes that Mother has purposefully made it difficult to share custody and make decisions together regarding Children. Father also expressed how important his religion is to him and his daughters as a Jehovah's Witness. Father explained that Mother's actions and behaviors have led her to be "shunned" from the church and Father was worried about the effect this may have on the children if they were in Mother's care. Father also had several concerns regarding Mother's paramour, Mr. S------, and did not want the children spending as much time in Mother's home with him.
Mother is seeking joint legal custody and primary residential placement of both children. While Mother expressed a willingness to allow Father to visit with Children, she noted that she did not want to force the children to go to Father's home when they did not want to. Mother also does not want the children to have overnight visits with Father, as Children have stated that they do not feel comfortable sleeping in Father's home. In addition, Mother reported that Father abuses prescription drugs and has an alcohol problem. Mother testified that the children have reported fears and concerns regarding Father's substance abuse and, for these reasons, Mother wished to reduce the contact Children have with Father.
As Mother and Father have taken opposing positions on legal custody and residential placement, the Court finds this factor to be neutral to the Court's analysis.
(2) The wishes of the children as to their custodian(s) and residential arrangements;
On November 30, 2018, Mother moved for a Child Interview, which this Court later granted only as to 11 year-old A-----. On January 17, 2019, this Court spoke with A-----. ' A----- described Father as a generally good father who takes "good care of [her]." When asked about Father's substance abuse, A----- explained that Father used to drive erratically in the past and would almost crash into things on the side of the road. A----- also stated that her Father has hit things and gotten into accidents while she was in the car. A----- said that Father blamed his driving on his having taken Nyquil that day and was tired but A----- informed the Court she does not believe that really happened. Instead, A----- suspected that Father had been drinking rum and Coke, which A----- believed to be a fact because her Mother had once commented on Father drinking rum and Coke and has since told A----- that Father drinks this beverage often. A----- also described one instance where Father made A----- try his drink and she said that it only tasted like Coke, to which Father told her "good, remember that." A----- has also observed her Father taking yellow pills which he kept in his truck. Father explained to A----- that the pills were for "depression" and A----- stated that whenever she asks Father about his substance abuse he becomes very angry and yells at her. A----- expressed that she appreciates her Father's willingness to answer her questions about other things, but she noted that Father has a habit of answering things by stating his opinion as if it were a fact and refuses to consider other positions or sides to the story.
A----- described her Mother as nice, somewhat enthusiastic and generally kinder than Father. A----- explained that Mother can often exaggerate situations and sometimes blows things out of proportion, including A-----'s feelings about seeing Father. A----- also described Mother's boyfriend, Mr. S------, (whom A----- called "Mr. J--") as "nice" and she enjoyed that he makes Mother feel comfortable and happy, despite Father's negative feelings towards Mr. S------. A----- reported that Mr. J-- physically disciplined her when she was younger but no longer does this, although she stated that he smacked her approximately six months ago. A----- also informed the Court that Mr. S------ continues to drive with her and her sister in the car, although Mother is usually in the passenger seat when he does. The most recent time that A----- could recall Mr. S------ driving was around Christmas time.
A----- feels as though she can communicate more freely and openly with Mother than with Father. When asked why this was, A----- explained that Father makes conversations more one-sided and does not take her own thoughts and feelings into consideration as much as Mother does. A----- also rarely appreciated that Father asks her to keep secrets from other adults in her life, such as discussing arguments or disagreements she has with Father in his home. A----- also did not appreciate that Father usually requires her to be on speakerphone while speaking with Mother, especially when Mother will give A----- her privacy and usually leaves the room whenever she is on the phone with Father. A----- also dislikes when Father records conversations with her. While both Mother and Father have done this, A----- explained that Mother has since stopped but Father continues to do this even though A----- has told him she does not like being recorded.
A----- also complained about the specific things Father has said to her. For example, Father has told A----- and her sister if they say bad things about someone, they could be taken away from that person. A----- also reported that Father has told her that people think he is a "bad dad" with problems with alcohol and he has warned her that if she tells others this then those people may take her away from him.
Overall, A----- did not appear to have any concerns or fears about residing in Father's home. A----- explained that she used to be very scared of being with Father and she described another incident during which Father got into a car accident after falling asleep in the car. A----- informed the Court that Father would "act like he's drunk" or "act weird" while driving and she used to feel "scared [she] wouldn't live to see another day" when riding in the car with Father. A----- explained that she is no longer scared of spending time with her father and does not mind spending time with him, even overnight.
Despite the concerns Mother expressed on the record, A----- does not currently appear fearful, apprehensive, or anxious about spending time with her father. While it seems as though once, A----- was quite concerned about spending time with Father, in accordance with Mother's testimony about the children's feelings, this no longer appears to be the case and A----- expressed no issues about presently being with Father. Therefore, the Court finds this factor supports Children spending time with both parents.
(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 children, any other residents of the household or person who may significantly affect the children's best interests; Children's Relationship with Father
Mother expressed numerous concerns regarding Father, many of which the Court finds to be less problematic than Mother perceives them to be, given the Court's conversation with A-----. Overall, Mother testified that the children, and in particular, A-----, are anxious and scared to be in Father's home. Mother testified that in November 2017, A----- expressed that she was scared to be with Father and reported that even being in Father's room was scary. Mother also testified that during her visits with Father, A----- would sometimes call Mother in tears due to being upset and uncomfortable in Father's home. Eventually, A----- indicated to Mother she wanted to visit Father's home during the day but did not want to spend the night in his home.
Mother also expressed specific concerns regarding allegations made by A----- in October 2018. Mother testified that A----- reported to her school counselor that Father touched her inappropriately and slept naked in bed with her. A----- also allegedly reported that Father often watches her shower, or showers with her, which makes her feel uncomfortable. M------ B---, Children's school counselor at ------ Elementary, testified that A----- had made similar concerning allegations to him during one of their meetings. Mr. B--- noted that A----- had expressed issues regarding Father's home, but none as serious as these. Mr. B--- also noted that A-----has severe anxiety, particularly as it pertains to issues involving her parents, though there has been a marked improvement in her mood since beginning therapy in 2017. However, due to the serious concerns expressed by A-----, Mr. B--- and the school principal both reported to DFS for further investigation.
Kinesha Thompson, a DFS Master Family Service Specialist, investigated these allegations and testified regarding her findings during the hearing. Ms. Thompson reported that she first received a hotline report involving the family on October 30, 2018. The specific allegations in the report indicated that Father drinks heavily and drives while under the influence. During her conversation with Father, Father denied ever driving the girls while under the influence and Ms. Thompson reported that she had no reason to doubt that Father was telling the truth. Ms. Thompson also reported E--- alleged that Father "takes pills" which make it hard to wake him up but noted that A----- made no reference to pills while discussing Father. Ms. Thompson also repeated the allegations that Father sleeps in the same bed as A----- and showers with her, but noted that A----- disclosed no inappropriate behavior by Father during her conversation with Ms. Thompson. A----- even acknowledged that she willingly sleeps in Father's bed when scared and feels comfortable with this arrangement. Notwithstanding this, Ms. Thompson noted that A----- appeared very anxious throughout her interview. She further testified that Mother, although concerned by the allegations, did not appear vindictive or as though she wanted to stop the girls from having any relationship with Father. As , Ms. Thompson had no concerns with either household, but DFS is still awaiting a collateral questionnaire from the children's school and doctors, and a drug and alcohol assessment for Father.
Mother also cited several other issues involving Father's interactions with the girls. For example, in March 2017, after Mother and Children had moved out of the marital home, Father was supposed to return the family pets to Mother and the children. Mother testified that Father handed A----- a hamster cage without realizing that the hamster had died. This not only upset the girls, but Mother suspected that Father did not even bother to take care of the hamster as the hamster was so young and likely did not die from natural causes in Mother's opinion. Father also neglected to take the family cat to the vet, despite repeatedly promising A----- he would do so. Mother was also concerned that Father was not trying to address E---'s peanut allergy, which has resulted in Mother bringing food to Father's house on several occasions to ensure that E--- had safe and healthy meals while visiting Father. Mother alleged that these behaviors demonstrate Father's lack of consideration for the girls' feelings, which has often had a detrimental effect on his relationship with them.
S----- R---, paternal grandmother, testified that Father has a wonderful relationship with the children. Because she lives so close to Father and has a close bond with Children, it is not uncommon for Children to spend the night in her home while they are visiting with Father. Paternal Grandmother stated that Children often ask to go back home to Father towards the end of their visits and Paternal Grandmother denied that the children appear fearful or anxious about being with Father.
Above all, Mother was primarily concerned about Father's substance abuse, particularly his alcohol use. Mother testified that Father has called her under the influence of alcohol on several occasions, including during the afternoon on January 5, 2018 when Father was at a gas station in his vehicle and spoke with Mother on the phone for hours. Mother played an audio clip from that phone call in which Father sounded as though he was slurring his words and had difficulty expressing coherent thoughts and sentences. Mother testified this conversation led her to request that Father undergo hair follicle testing for drugs and alcohol and she remained concerned about Father's substance use even after receiving the negative results of these tests. Since then, Mother testified that Father has continued to have issues with alcohol and cited a family barbeque in Baltimore in late summer 2018 when Father got drunk and her family had to intervene to prevent Father from driving the girls home to Delaware. Mother also spoke about a more recent incident in October 2018, that A----- informed her about, in which Father was allegedly drunk and got into an argument with his parents resulting in them taking his car keys away to prevent him from driving under the influence.
Paternal Grandmother also testified regarding Father's alcohol use. Paternal Grandmother claimed that she was concerned about Father's substance abuse immediately after he and Mother separated. Paternal Grandmother reported that Father was drinking heavily around that time and Paternal Grandmother had become so concerned that she told Father she would seek guardianship of the children if he did not address his issues. However, Paternal Grandmother reported that she no longer has any concerns regarding Father's ability to care for Children. Paternal Grandmother also addressed the incident involving Father and his car keys in October 2018. Paternal Grandmother explained that on October 25, 2018, Father came to her house with Children shortly before the family was supposed to attend a church meeting. Paternal Grandmother smelled beer on Father's person and when she asked him about it, Father admitted that he had had one beer. Although Paternal Grandmother noted that Father did not appear under the influence of alcohol in any way, she explained that it is a sign of disrespect to attend a church meeting after having any alcohol. Paternal Grandmother testified that she took Father's keys and Father became agitated that she would not allow him to attend the church meeting but he ultimately agreed to stay home that evening. Paternal Grandmother claimed that she does not think Father has a problem with alcohol and none of her family members or friends have ever suggested otherwise.
S---- D------, a long-time friend of Father's and Mother's brother-in-law, also testified regarding Father's alcohol use. Mr. D------ testified that he had seen Father under the influence of alcohol most recently in September 2018 while at a family barbeque in Baltimore. Although Mr. D------ had only seen Father drink one beer, Father appeared impaired to Mr. D------, was slurring his words and speaking incoherently. Mr. D------ also reported that Father was acting belligerently and was speaking negatively about his relationship with Mother, which Mr. D------ noted was out-of-character for Father. At the end of the barbeque, Father took Children with him to drive back to Delaware. Because Mr. D------ and the children's paternal grandfather noticed Father's apparent drunkenness, they convinced Father to allow the children to stay at their paternal grandparents' home in Baltimore that weekend to prevent him from driving the children in that condition.
Mr. D------ also described other instances where Father appeared under the influence of alcohol while with Children. In May 2018, Father arrived at Mr. D------'s home to pick up the children. Mr. D------ testified that he not only smelled alcohol when Father arrived, but Father also stumbled while walking, slurred his words, and acted very emotional. Despite these concerns, Mr. D------ allowed Father to leave with the children. Mr. D------ estimated that he had seen Father under the influence of alcohol three to four times in the past fifteen to twenty years of knowing Father.
Father acknowledged that he previously had an issue with alcohol but denied that his alcohol consumption, at this time, impairs his ability to care for Children. Father further denied ever consuming so much alcohol he could not safely drive in a car with Children. Father further testified that he has a fantastic relationship with Children and reported that, during his visits with the girls, they often go out to eat or spend time with his family, or spend time at home together doing arts and crafts or watching movies. Regarding the claims that Children were fearful around Father, Father reported this was only because they had watched a scary television program but the children have since gotten past this fear. Father further reported that the children always appear excited to see him and often run up to him to give him hugs. While Father also acknowledged that A----- can, seem uncomfortable around him, Father believes this is due to A-----'s anxiety and her feelings she has caused even greater tension between Mother and Father by reporting certain things that go on with the other parent.
Children's Relationship with Mother
Father expressed several concerns regarding Children's relationship with Mother, most of which stem from what Father believes to be poor judgment on Mother's part. For example, Father disagreed with Mother's decision to allow the children to skip visits or phone calls with Father simply because they did not want to. Father also testified that Children have a strained relationship with Mother. Specifically, Father stated that A----- is sometimes angry with Mother because Mother often makes promises to the girls she does not keep. Father also reported that the girls sometimes comment which suggest that returning to Mother's home is an obligation, to which Father explains to Children the importance of sharing their time with both parents. Father admitted that he has never informed Mother of the children's feelings but, instead, tried to address the concerns with Children on his own.
Father also expressed concerns that Mother had been "coaching" the girls to feel certain things and say specific things, both throughout these proceedings and during the course of the girls' therapy sessions. Though Father could not recall exact instances of such behavior, Father believes that Mother has lied to the children and has overdramatized many issues in Children's lives, such as Father's drinking and the girls' fears of being with Father, to influence Children to be "on her side."
Paternal Grandmother testified that Children have a strained relationship with Mother, largely due to how Mother influences the children. For example, sometimes E--- will talk about things in Mother's home and A----- will interrupt her saying "we are not allowed to talk about that." Paternal Grandmother also testified that the children seem upset when they speak with Mother on the phone. She further explained that A----- has told her that speaking to Mother upsets her because it reminds her of all the problems in her home. Paternal Grandmother also believed that both A----- and E--- continue to be upset by the discord between their parents and would be happier and prefer that their parents could get along more harmoniously.
Mother denied that she has had any improper influence on Children. Mother testified that she values honesty with the children and prefers to be straightforward with them rather than lying or making up information solely for Children's benefit. Mother further stated that she would like to have a peaceful and cooperative relationship with Father and she would like both of them to continue to be important and consistent figures in the children's lives.
Children's Relationship with J-- S------ (Mother's Paramour)
Father expressed several concerns about the influence that Mr. S------ has on Children. Specifically, Father contends that Mr. S------ has a problem with alcohol and possibly marijuana. To support this contention, Father presented several Facebook postings made by Mr. S------ which showed bottles of alcohol and content supporting marijuana usage. Petitioner's Exhibit #7 and #9. In addition, Paternal Grandmother testified that she believes Mr. S------ may be engaging in inappropriate sexual activities in the home by his membership to a website for swingers. Paternal Grandmother indicated that the girls know these activities to an extent because they have commented on the number of people who come in and out of their home without explanation and feel uncomfortable by this. Paternal Grandmother also testified that Children have reported that Mr. S------ has chased E--- around their home with a belt. When E--- shut herself in a room to get away from Mr. S------, Paternal Grandmother stated that Mr. S------ banged on the door while swearing at E--- to get her to come out of the room.
Mother testified that Mr. S------ has been an immense support system for both herself and Children. Mother explained that Mr. S------ treats Children as if they were his own kids and even paid for the entire family take a trip to Disney World in August 2017 without asking for any reimbursement or financial contribution from Mother.
Mother did not call Mr. S------ as a witness to testify at the hearing.
Children's Relationship with Paternal Grandparents
Father and Paternal Grandmother testified that Children spend significant time with Paternal Grandparents. Paternal Grandmother stated that she sees Children every time they are with Father because Father brings Children to religious meetings on Thursday nights and Saturdays. Paternal Grandparents live approximately ten minutes away from Father's home and Father sometimes relies on Paternal Grandmother's assistance to get Children to school on days when he conflicts with his work schedule. Father and Paternal Grandmother both testified that Children are close to their Paternal Grandparents and it is not uncommon for them to spend the night in their home.
Paternal Grandmother is concerned that her relationship with Children would be severed if Children were in Mother's sole care and custody. Paternal Grandmother explained that she has never been given the opportunity to see Children while they are with Mother and Mother has sent her numerous messages in the past threatening to cut-off all visitation with Paternal Grandparents. Paternal Grandmother and Mother both testified about their own strained relationships with one another. Recently, A----- was speaking on the phone with Mother while visiting with Paternal Grandmother and Mother disagreed with something Paternal Grandmother told A-----. Mother screamed at Paternal Grandmother on the phone, while admonishing her for inserting herself into their family's affairs. Mother conceded that she had yelled at Paternal Grandmother during this phone conversation but explained it was due to her frustration that Paternal Grandmother was not acting the way she believed a grandmother should act.
It is clear that Mother and Father have starkly different opinions on the interactions and interrelationships of Children with their other parent and other important adults in their lives. When considering the information that A----- provided to the Court during the interview, the parents have allowed their own feelings of tension, frustration, and animosity towards one another to influence their perception of Children's relationship with their family and household members. Specifically, A----- explained that she has no fears or concerns about spending time with Father and reported that he was a good Father who ensures that she is well-taken care of. While A----- certainly knew her Father's alleged alcohol use, A----- presented no concerns which would lead this Court to believe this issue impacts her relationship with her Father. A----- also expressed primarily positive feelings towards Mother as well, and expressed that she was kinder and more willing to engage in conversations with her than Father. Similarly, A----- reported that Mr. S-----was nice and many concerns presented by Father and Paternal Grandmother were not echoed by A-----. Overall, A----- appeared to have a loving relationship with the adults in her life and seemed comfortable and content with these relationships. While the Court did not speak with E---, there is no reason to believe that E--- does not share her sister's sentiments. Therefore, notwithstanding the concerns presented by Mother and Father, Children have a much better relationship with the other parent than Mother and Father suggest. As this conclusion is supported by the descriptions A----- gave of her family members during her conversation with this Court, this factor supports allowing both parents to spend time with Children and maintain active involvement in their lives through sharing joint legal custody and residential placement.
(4) The children's adjustment to their home, school and community;
Both girls attend ------ Elementary School in Newport, Delaware. E--- is in the first grade and A----- is in the fifth grade and the parties reported that the girls are doing well in school overall. A----- reported that her favorite part of the school day is lunch time. She also enjoys learning how to do new things in school but does not like when her teachers expect her to learn new things by figuring it out on your own as she would rather have her teachers show her how to do something first. Both parents can transport Children to and from school without difficulty. Mother testified that she used to have trouble getting the children to school on time, as it is approximately an hour away from her home with traffic, but informed the Court this is no longer an issue because the school has since changed the timing for the school day. While Mother is requesting primary residential placement, she did not indicate what her plans would be for Children's education, given she lives outside the Children's school district.
Father testified extensively about Children's adjustment to their local community, particularly their religious community. Father continues to reside in the marital home he shared with Mother and Children. Father explained that he is surrounded by friends and family in the neighborhood, including Paternal Grandparents. Father further testified that Children have a close relationship with other members of his family and regularly attend family gatherings either at Paternal Grandparents' home or at religious meetings, because most members of Father's family are also Jehovah's Witnesses. By attending services on Thursdays, Saturdays, and Sundays, Father testified that Children can not only see his family members frequently, but they can also make friends and develop relationships with other children in their congregation.
In contrast, Father testified that Mother could not ensure that Children remain a part of this community if she were granted sole legal custody and primary residential placement because she has been "shunned" from the congregation due to her actions and behaviors. Father explained that, because Mother has been shunned, while she can attend religious meetings and services, the other members of the congregation must ignore her presence and act as though she is not there. Therefore, if Children were to primarily reside with Mother, Mother could not ensure Children can have experiences with their community because Mother is not a recognized member of that community at this time and other members, even Mother's own relatives, are forbidden from interacting with her. Father, however, had reason to doubt that Mother would even try to be involved in their religious community going forward, as Mother has not attempted to be reinstated in the church and has not attended meetings and services as often as she previously did.
Additionally, Father reported that Children are uncomfortable around the people with whom Mother now associates. Father testified that, as Jehovah's Witnesses, Children were taught to choose their company carefully and are encouraged to spend their time with people who share their faith. Father explained that, Mother's lifestyle choices has not only been out of accordance with their faith, but she has also surrounded herself by people who are not Jehovah's Witnesses, which Children have allegedly told Father makes them feel uncomfortable. Because Father was concerned that Mother would alienate Children from the community in which they grew up, Father believes it is in Children's best interest to reside primarily with him so they can maintain a connection to this community going forward.
While Mother did not address these specific concerns, she stated that she would like to maintain a good relationship with Father and his family and have everyone get along. Mother also spent little time describing the children's adjustment to her home and community, though the Court notes that Children have only recently moved into a home with Mr. S------within the last few years, whereas Father's home is one the girls have been accustomed to for a significantly longer while. Because Father presented considerable evidence to demonstrate the specific ways Children are adjusted to both his home and community, however, there is nothing to suggest that Children are not also adjusted to Mother's home and community. While Father expressed concerns that Children would be isolated if they resided primarily with Mother, Mother stated in her testimony she wanted to have a relationship with Father and his family and, at the very least, would ensure that Children can do so even if she remains shunned by the church. Because Children do not appear to be more or less adjusted to either parent's home or community, this factor supports granting shared residential placement.
(5) The mental and physical health of all individuals involved;
Children's Mental and Physical Health
Overall, Children are in good physical health and their medical concerns are being appropriately addressed. In August 2018, A----- was experiencing problems which led Mother to believe she may be experiencing heart problems. Mother and Father both took A----- to Nemours and, after a full evaluation including an EKG, there were no concerns noted. Mother also testified that E--- has a "lethal peanut allergy." While Mother had no specific concerns that Father has neglected this allergy, she stated that Father does not ensure that E--- is fed healthy and safe foods and often brings food for E--- to eat when she is with Father. In addition, Children have both been diagnosed with asthma and use inhalers to manage these diagnoses.
Both Mother and Father testified that they had concerns regarding Children's mental health and both girls are in counseling to address these concerns. Father testified that Children, particularly A-----, experienced minimal anxiety before the parents' separation, however, this anxiety became much more pronounced and disruptive throughout 2017. Due to these concerns, in December 2017 Mother and Father arranged for both girls to participate in weekly counseling. Father believed this therapy helped Children process the divorce and separation, however, Mother believed the therapy addressed A-----'s fears about overnight visitation with Father. A----- sees G-------- R----- on weekly basis and E--- sees J------- B---- weekly. Mother and Father agreed there has been significant improvement in Children's anxiety since beginning therapy but noted that A----- still struggles with anxiety in both social settings and with issues about her parents.
Father testified that, although he has never gone to a therapy session with Children, he has spoken to and maintained communication with both Children's counselors since they began therapy. Father worries that Mother is coaching Children on what to say during their therapy sessions, although he did not specify what led him to this belief. Mother testified that, since beginning therapy, Children have become more comfortable sharing their concerns with authority figures. Mother further stated that A----- has become more confident and willing to share her feelings with others. At first, E--- was reluctant to engage in therapy, and Mother reported that she was kicking animals and stepping on the family's rabbits as a way of expressing her frustration. Mother explained that E--- has now progressed to where she can express her feelings and remain calm and throws fewer tantrums now than she used to.
Father's Mental and Physical Health
Father reported that he has no physical health concerns at this time aside from occasionally having high blood pressure. Father was previously on medication to manage his blood pressure levels but no longer takes this medication.
Regarding his mental health, Father testified that he has been diagnosed with mild Post Traumatic Stress Disorder which he claims results from Mother's narcissistic abuse. Father reported this diagnosis has no impact on his daily life but he has previously suffered from panic attacks. To address these concerns, Father was prescribed Xanax. Father testified that he has discontinued taking Xanax within the past three months, after doing research on the drug. Father also stated that he used to have difficulty sleeping due to stress associated with Mother and was prescribed Ambien to help with this issue.
And Mother spent considerable time testifying about Father's substance use, including alcohol dependence and Father's abuse of prescription drugs. Father denied ever taking someone else's prescriptions, despite Mother's allegations otherwise, but admitted there were times in the past when he took more the prescribed dosage of his own prescription for Xanax, in part, what led him to discontinue taking the medication altogether. In addition, both Mother and A----- reported instances when Father had allegedly taken pills just before driving and either fell asleep while at the wheel or drove carelessly, sometimes causing accidents.
Mother also testified about a recent incident in December 2018. Mother testified that Children informed her Father had taken medicine right before they went out to dinner which caused Father to swerve and drive erratically. Because Mother was concerned Father was abusing prescription drugs, Mother reported this incident to DFS. Father however, explained that his truck was veering off the road and swerving due to a mechanical defect in the car, and presented a copy of a Pep Boys Auto Repair Statement, obtained a few days after the incident, to demonstrate that the vehicle had a legitimate malfunction which Father addressed. Petitioner's Exhibit #11. By way of further response to the claims he abuses prescription drugs, Father acknowledged that he sometimes would take his blood pressure medication while driving in the car with Children but denied abusing any prescription drugs while operating a vehicle. Father also denied having any issues with alcohol use, and testified that he drinks alcohol once "every couple of weeks." The Court questions Father's veracity regarding taking blood pressure medicine while driving rather that, at a set time each day generally how such medication is prescribed and would generally be expected of a patient with hypertension.
Mother's Mental and Physical Health
Mother reported that she is in good physical health and is pregnant. Mother denied having any mental health concerns at this time, but stated that she was diagnosed with ADHD when she was younger and was prescribed Adderall and Vyvanse for this. More recently, Mother testified that she saw a psychiatrist and therapist for approximately four to six months beginning in December 2017 but Mother does not believe she needs any additional treatment or counseling.
Father also made allegations about Mother's alcohol use. Father testified that Mother drank often and heavily throughout their marriage. Father also presented multiple Facebook posts involving Mother, including one incoherent Facebook post by Mother where she makes statements which clearly suggest she was under the influence of alcohol while writing the post ("I've had the convenience of alcohol at my disposal"). Petitioner's Exhibit #6. Father also presented screenshots of several of Mr. S------'s Facebook posts, which included references to Mother and suggested that he and Mother were out drinking together at numerous different bars. Petitioner's Exhibit #7. Mother testified that she only drinks alcohol "on occasion" but has had no alcohol for several months due to being pregnant.
Mr. S------'s Mental and Physical Health
The Court heard substantial testimony regarding Mr. S------'s physical health. Mother testified that Mr. S------ was diagnosed with an inoperable brain tumor approximately five years ago and underwent treatment for some time, including chemotherapy, but discontinued this treatment two years ago. Father testified that, throughout these proceedings, including during pre-trial depositions, Mother had made Mr. S------'s condition sound particularly concerning and has said that "Mr. S------ could die at any moment." Although Mother has provided no medical documentation to support these claims, nor has Mr. S------consented to release any records to Father, Mother has reported that the primary side effect of Mr. S------'s brain tumor are uncontrollable seizures, which can occur at any time without warning. Mother has also stated that Mr. S------ sometimes passes out during his seizures and swallows his tongue which requires him to be resuscitated. Mother testified that while Mr. S------would have seizures sometimes twice a week in early 2018, his seizures are much less frequent now due to Mr. S------changing his diet.
Because of the severity and unpredictability of these seizures, Father requested, in an Emergency Interim Motion, that Mr. S------ not be permitted to drive Children in the car, a request which the Court granted. Father requests this prohibition remain in place because he has received no medical documentation demonstrating that it is safe for Mr. S------ to be driving a vehicle, much less a vehicle with Children. Father was further concerned because Children had reported to him that Mr. S------ continued to drive them in the car, even after the Court had issued an Order prohibiting Mother from allowing Mr. S------to do so. Mother conceded that Mr. S------continued to drive Children after the Court's Order was issued but explained that she misunderstood the Order and believed it would be okay for Mr. S------ to drive a vehicle if she or another adult were in the passenger seat. The Court notes that the Order dated May 1, 2018 states "Mother L--- R----- shall not permit J—S------ to drive a motor vehicle in which the above-named children are occupants." Any mention in the Court's Order of Mr. S------ being permitted to drive the Children if other adults are also in the car is notably absent and the Court does not find Mother's assertion on her belief to be particularly truthful.
Father also expressed concerns about Mr. S------'s alcohol and marijuana use. Again, Father presented several postings from Mr. S------'s Facebook page which contained photos, comments, and stories about drinking alcohol. Petitioner's Exhibit #7. Mother testified that simply because Mr. S------ posted photos of alcohol and commented about opening such bottles did not mean he was drinking alcohol on those occasions. Father also presented a Facebook posting by Mr. S------ in which he shared an article about marijuana improving sexual activities, which Mother commented on to suggest she would like to try the drug with Mr. S------. Petitioner's Exhibit #9. During the hearing, Mother maintained this post, and her comment, were humorous but denied that either she nor Mr. S------ are using marijuana.
Based on the testimony, the Court has concerns regarding Father's alcohol use, particularly given the described audio recording presented by Mother from Father's mid-afternoon phone call with Mother in which Father was slurring his words and speaking incoherently. The Court does not, however, find these concerns necessarily rise to the level of impeding Father's ability to care for Children. The Court remains concerned about Children's safety with Mr. S------ while he is driving. The Court continues to maintain that Mr. S------should not be permitted to operate a motor vehicle in which Children are passengers. While the obvious risks remain should Mr. S------ suffer an unanticipated seizure, even if Mother or another licensed adult driver sits in the passenger seat, allowing Mr. S------ to drive the children under such circumstances adds some small degree of improved safety. Overall, however, the Court finds this factor supports joint legal custody and shared residential placement as the Court has strong concerns about both households, but none of which are serious enough to warrant one parent spending more time with Children than the other parent. In short, there is a serious need of better parental decision making by both parents.
(6) Past and present compliance by both parents with their rights and responsibilities to their children under § 701 of this title;
Under 13 Del. C. § 701, parents are responsible for the support, care, nurture, welfare, and education of their children, even without the entry of a Court Order. Both Mother and Father complained about the other parent's compliance with their parental responsibilities. Besides the concerns expressed above about Mother violating Court Orders and permitting Mr. S------ to drive Children, Father's primary concern was that Mother makes unilateral decisions regarding Children without first consulting him.
To support this concern, Father described an incident in August 2018 in which Mother unexpectedly informed A----- that Father was not her biological Father. While at a doctor appointment to explore the concerns regarding A-----'s heart, Father testified that the doctor asked Mother and Father if there was a history of heart concerns on either parent's side. Before Father could answer, Mother told the doctor, in the presence of A-----, that they were looking into that history with A-----'s biological Father, a disclosure not previously made to that child. Father informed the Court that Mother engaged in several affairs during their marriage, including around the time of A-----'s conception. Although genetic testing has never been performed, Mother has stated in the past she believes A-----'s biological Father was a man named J--- O---- B---, and, the Court notes this person is listed as A-----'s Father on Mother's Affidavit of Parentage dated November 21, 2018. While Father expressed many negative feelings towards Mother about this alleged affair, Father was primarily concerned about the fact that Mother so abruptly revealed this information to A----- without discussing the matter with him beforehand. Father also reported that, over the past year, Mother regularly threatened to inform A----- of her true parentage to get Father to do things that Mother wants, such as giving Mother Children's social security cards and other documents. Father testified that A----- was hurt and confused to learn this information in such an unexpected way and Father believed that Mother's behavior demonstrated that she is not working with Father to co-parent Children.
Father is also concerned about Mother's actions because Mother has since claimed that A-----'s father is not Baez, but another man, one D-- S------, and Mother has never discussed this information with Father nor collaborated with Father to address the worries A----- now is now experiencing because of receiving this new information. When asked about this incident during the hearing, Mother maintained that she behaved appropriately and reasonably given the situation and believed that it would have been wrong of her to keep that information from A----- or lie during the appointment.
In addition, Father suggested that Mother does not respect his time with Children and often unnecessarily interferes during his visitation. Father testified that Mother will often call Father multiple times a day and becomes irrationally upset whenever he cannot answer Mother's calls due to being busy with other activities. Father also cited an incident in October 2018, in which Mother called the police on Father at 11:00 PM because Father was not answering her phone calls. Father reported that he and Children had fallen asleep for the night, which is why they missed Mother's numerous phone calls and text messages, most of which were made within seconds of each other. Father further testified that the police were banging on his front door, which woke up and scared Children. Overall, Father believes that Mother did not handle this situation appropriately and feels as though it is characteristic of her to exaggerate small issues, often to the detriment of Children. Father also testified that Mother purposefully keeps information from him and does not share important updates regarding Children. For example, Mother conceded that she never made Father aware of filing any PFA Petitions, nor did she make Father aware of contacting DFS. Father believed that, had Mother brought these concerns to his attention, they may have been able to address the issues without resorting to such drastic measures. Mother disagreed and testified that while she would like to work together and have a good relationship with Father, it is Father who Mother believes makes their relationship unnecessarily difficult.
Father reported that he remains involved in all aspects of Children's lives, including their education and medical appointments. Father also regularly communicates with Children's school and participates in parent teacher conferences including Children's school open house, which Father recently attended. Father also attends medical appointments with Children and has spoken with the children's therapists on several occasions, though he has not been involved in any of their therapy sessions.
Many of Mother's concerns regarding Father's interaction and ability to co-parent with Children were described under factor (4). Mother also testified that Father similarly calls her sometimes twenty times a day and sends her messages on Facebook to harass her. Mother does not believe that Father will cooperate and co-parent Children with her. Mother further contended that Father was not compliant with previous Court Orders as he continues to consume alcohol and did not obtain the drug and alcohol testing as required. However, the Court notes there is no specific provision in the Court Orders which explicitly prohibits Father from consuming alcohol and this Court has further found, by virtue of an Order dated May 22, 2018, that the delay in Father's drug screening resulted from errors on behalf of the drug testing facility, ArcPoint Labs. Nevertheless, Mother continued to maintain that Father unnecessarily delayed his drug and alcohol tests to obtain negative results and claimed that Father had died his hair to interfere with the hair follicle testing, but presented no evidence to support this allegation.
Mother also testified that she remains involved in all aspects of Children's lives, including their education and medical appointments. While Mother did not disagree that Father has not been involved in these aspects, Mother suggested that she is more involved than Father.
Considering the above evidence, the Court is greatly concerned about Mother's judgment with issues involving Children, particularly Mother's unilateral decision to inform A----- about her parentage without warning and without consulting Father. The Court is also inclined to believe that Mother's lack of compliance with previous Court Orders, namely the Order prohibiting Mr. S------ from driving Children, was intentional rather than inadvertent, as the language in the Order was clear and nothing in the record supports Mother's alleged misunderstanding. However, Mother also presented evidence which demonstrates that Father does not always comply with his rights and responsibilities as a parent, though to a lesser degree than Mother. Above all, both parents need to put aside their personal differences with one another and strive to improve their ability to communicate with one another to make decisions with Children's best interest in mind. Because of these concerns, the Court finds this factor is neutral as to residential placement but slightly favors joint legal custody with Father having final decision-making authority.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Under 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." Both Mother and Father have a history of filing PFA Petitions against one another. Mother filed her first PFA Petition against Father on March 1, 2017 in which she alleged that Father verbally berated her, commented about killing or harming her, and had a history of being physically aggressive with her, including choking Mother, slamming her against walls, and otherwise threatening and terrorizing herself and Children. Shortly thereafter, on March 15, 2017, Father filed a PFA Petition against Mother alleging that Mother has punched and attempted to punch him numerous times in the past and has behaved inappropriately in the presence of Children. On March 17, 2017, after a full hearing on the merits, the Court denied Mother's PFA Petition and, in response, Father agreed to voluntarily dismiss his own PFA Petition.
On November 7, 2018, Mother filed a second PFA Petition against Father alleging that Father had been consuming alcohol during visitation with Children and had engaged in sexually inappropriate behaviors with A-----. Again, after a full hearing on the merits, the Court could not find, by a preponderance of the evidence, that abuse had occurred and Mother's petition was again dismissed.
Besides these PFAs, both parents testified about the domestic violence of the other parent. Father testified that Mother has punched him in the face and jaw, has left slap marks on his face, cuts on his lip and bruises around his eye. Mother testified that, she remains fearful of her safety and refuses to be alone with Father without someone else, usually Mr. S------ present.
While both Mother and Father have alleged domestic violence against one another, any PFA petitions filed involving Mother and Father have been dismissed by the Court after a full hearing or voluntarily dismissed by the parties themselves. Therefore, the Court finds this factor to be neutral to the Court's analysis.
(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 independently reviewed the Delaware criminal histories of the parties. Neither Mother nor Father have a criminal record in Delaware, other than vehicle infractions. And both Mother and Father denied having a criminal history and Mother further denied that Mr. S------ has any criminal history. Therefore, the Court finds this factor is neutral to the Court's analysis.
Conclusion
Based on the evidence, the Court finds that factors one (1), seven (7), an eight (8) are neutral on both legal custody and residential placement. The Court further finds that factors two (2), three (3), four (4), five (5), and six (6) all support shared residential placement with Mother and Father. Although both Mother and Father have both requested primary residential placement, the Court finds no reason Children should not share their time equally with both Mother and Father. While Mother's primary basis for requesting primary residential placement was due to Children's, and particularly A-----'s, fears and anxieties about spending time with Father,
A----- informed this Court she is no longer worried about spending time in Father's home and appeared to enjoy a good relationship with Father. DFS has investigated both homes and found each to be safe and appropriate. Therefore, the Court finds it would be best for Children to maximize the time they spend with both parents.
Regarding legal custody, while Mother has requested joint legal custody, Father has requested that he be granted joint legal custody final decision making authority or sole legal custody. The Court finds that factors two (2), three (3), four (4), and five (5) support both parents sharing joint legal custody with factor six (6) slightly favoring Father being granted final decision making authority. However, while Mother and Father do not get along with one another, it does not appear this tension significantly interferes with the parents' ability to make decisions together concerning Children. What appears to be the larger issue is that Mother has demonstrated poor judgment and makes decisions concerning Children without first consulting Father. While Father's request for final decision making authority is understandable, from the Court's perspective, this authority would not alleviate Father's concerns about Mother's judgment, but, Mother needs to understand that she has the responsibility, as a parent with joint custody, of consulting with Father before making any decisions that involve Children, which includes the decision to inform Children of important information, such as their true parentage. However, bases on the evidence, the Court concludes that it remains at this time to be in the best of interest of Children that Mother and Father share joint legal custody of Children and neither parent shall be permitted to make unilateral decisions involving Children.
However, the Court remains concerned about many allegations and issues presented. While the Court is granting Father joint legal custody and shared residential placement, the does not lessen the Court's concerns about Father's alcohol. Father is encouraged to be mindful of the time he spends with Children and ensure that he is doing everything in his power to keep them safe and well-taken care of when they are in his home. The testimony and the Court's conversation with A----- both indicate that the tension and conflict between Mother and Father is affecting Children. While the Court can understand that Mother and Father may not always get along or like one another, the parties should, nevertheless, do everything they can to ensure that they do not let these feelings hinder the children's relationship with the other parent. Both Mother and Father appear to have had conversations with Children not only inappropriate for children of this age, but also places a substantial burden on Children, which appears to put them in a very difficult and stressful position. Both parents clearly love and care for A----- and E--- and so the Court suggests that Mother and Father be aware of the effect that their words may have on the children going forward for them to maintain a kind and loving relationship with both parents. ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:
1. Father, J----- R-----, and Mother, L--- R-----, shall have joint legal custody and shared residential placement of Children, A----- R----- and E--- R----.
2. Residential Arrangement: Mother shall have Children every Monday and Tuesday overnight and Father shall have Children every Wednesday and Thursday overnight. Mother and Father shall alternate weekends with Children. As this is the schedule outlined in the Interim Order, this schedule shall continue from that Order and, therefore, be effective immediately.
3. Summer Vacation: Each party shall be permitted two weeks of vacation time with Children. The two weeks may be consecutive or non-consecutive as each parent chooses. The parties shall notify each other by May 15 of the dates they have selected for their two weeks. The parties shall strive to coordinate their vacation plans so Mother's two weeks and Father's two weeks do not interfere.
4. Holidays: The parties may split the holidays (and winter and spring school recesses), on a mutually agreed upon schedule. If the parties cannot agree, regardless of whose day it is supposed to be, Father shall have Children on holidays in Column 1 in odd-numbered years and holidays in Column 2 in even-numbered years. Mother shall have Children on the holidays in Column 1 in even-numbered years and 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 |
Except for 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.
5. 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 may spend the day with Children from 9AM until 6PM.
6. Mother shall not permit J-- S------to drive a motor vehicle in which the above-named children are occupants unless either she, or another licensed adult familiar to the Children, are also in the vehicle.
7. The parties may modify Children's residential visitation schedule by agreement in writing.
8. Mother and Father shall ensure that the other parent has reasonable access to the children
by telephone, mail, and other means of communication and receives all material information about the children, as obligated by law under 13 Del. C. § 727(a). Each parent shall foster a feeling of affection and respect between the children and the other parent. Neither parent shall do anything that may estrange the child from the other parent, injure his or her opinion of the other parent, or hamper the free and natural development of the children's love and respect for each parent.
13 Del. C. § 727(a) states: 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
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