Opinion
File No.: CN14-04446 Pet. No.: 16-30130 File No.: CN14-04667 Pet. No.: 17-01286
09-15-2017
A. R. , Petitioner, v. J. R. , Respondent. A. R. , Petitioner, v. A. W. and J. R. , Respondents. In the Interest of: R. R. , born N. , 2007 M. W. , born A. , 2002
Order
On August 14, 2017, the Court held a Hearing regarding the Petition to Modify Custody filed by A. R. ("Mother") against J. R. ("Father") in the interest of R. R. ("R. "), born N. , 2007, and the Petition to Rescind Guardianship filed by Mother against Father and A. W. ("M. 's Father"), in the interest of M. W. ("M. "). Present for the Hearing was Mother and Father. The parties represented themselves. Despite being mailed notice on June 7, 2017, M. 's Father was not present for the hearing. The Court heard testimony from Mother and Father and their respective witnesses. The Court interviewed R. and M. on August 16, 2017.
At the outset of the hearing, Father informed the Court that he did not receive a list of Mother's witnesses. Mother responded that she was under the impression that only Father was required to provide a list of witnesses since she was the one who filed the Request for Production. The Court instructed Mother to inform Father of her witnesses. Father stated that he did not object to any of her witnesses. As such, Mother's witnesses were permitted to testify.
Procedural History/Factual Background
Mother and Father were divorced by final decree on May 18, 2015. They have one child in common, R. . M. is Mother's son from a previous relationship with M. 's Father. Father filed a Petition for Custody in the interest of R. and a Petition for Guardianship in the interest of M. on September 5, 2014. A Consent Order regarding custody was entered on September 9, 2014. A Consent Order regarding the guardianship was entered on October 7, 2014.
Mother filed a Petition to Modify Custody on September 29, 2016. Father filed a Response on October 25, 2016. On January 18, 2017, the parties attended a mandatory Mediation, but they were unable to reach an agreement. That same day, Mother filed a Petition to Rescind Guardianship. A call of the calendar hearing was held on March 30, 2017. Mother filed a Motion to bring in a recording device on June 15, 2017. The Court granted Mother's Motion on June 27, 2017. On July 13, 2017, Mother filed a Motion to Interview Children and a Motion for Production of Documents. On July 28, 2017, the Court dismissed Mother's Motion for Production as improperly filed.
The Court shall discuss each Petition in turn.
Petition to Modify Custody (R. )
Legal Standard
Pursuant to 13 Del. C. § 729(b), an order entered by the Court by consent of all parties, concerning the legal custody of a child or his or her residence, may be modified at any time by the Court so long as the modification is in the best interests of the child under 13 Del. C. § 722. The Court balances the best interest factors "in accordance with the factual circumstances presented to the Family Court in each case." In some situations, the weight of one factor will counterbalance the combined weight of the other factors.
Pursuant to DEL. CODE ANN. tit. 13, § 729:
b) 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.
Pursuant to DEL. CODE ANN. tit. 13, § 722:
a) 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
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.
b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
Ross v. Ross, 922 A.2d 1237 (Table) 3 (Del. 2010).
Id at 3 (citing Fisher v. Fisher, 691, 623 (Del. 1997)).
In the present case, a Consent Order was entered on September 9, 2014. Therefore, in coming to a determination regarding custody and residency, the Court must consider only the best interests of R. . The statutory factors are discussed below.
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother wishes to have joint custody and shared residency. She proposed a week on week off visitation schedule. Father wishes to keep the residential arrangement the same, where he has primary residency of R. . Father is opposed to Mother's wishes because he believes that Mother has proven to be unreliable and he questions her mental stability.
Factor (1) does not weigh in favor of Mother or Father as they have different wishes for R. 's residential arrangement.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
The Court conducted a joint interview with R. and M. ("the Children") on August 16, 2017. R. is nine (9) years old and will be entering the fourth grade this school year. He told the Court that he enjoys the week on, week off visitation schedule and enjoys visiting with each parent equally. R. was questioned as to his feelings regarding visiting Father apart from M. given Mother's Petition to Rescind Guardianship and Father's inability to have M. in the home full time absent the guardianship. He responded that he would miss M. because they play together and have friends in common.
Given R. 's young age, the Court will not afford great weight to his wishes regarding the parties' residential arrangement. Therefore, Factor (2) weighs slightly in Mother's favor.
(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 ;
Mother testified that R. has positive interaction with her fiancée, K. C. ("K. "), and K. 's mother, L. C. ("L. "). She stated that K. adores R. and that L. is always engaging with him. K. testified that Mother is nurturing with R. and ensures he is properly cared for. S. B. ("Maternal Grandmother") described Mother as "attentive" and "engaged." She stated that she participates in activities, establishes her own family customs, and provides structure with the Children. Maternal Grandmother testified that she and Maternal Grandfather are involved in R. 's life and that they visit with R. when Mother has visitation. She believes that the Children should stay together for visitation with each parent.
Father testified that he plays Minecraft with R. and that R. enjoys playing outdoors. He further testified that Paternal Grandparents and his siblings moved to Georgia, but R. still visits with Paternal Great-Grandmother and Father's aunts and cousins.
R. told the Court that he has known K. all of his life and refers to her as "K. He refers to L. as "Mom Mom L. ." When visiting Mother's home, they go the farmer's market and to the movies. R. enjoys playing outside. He described tennis courts and pools in Mother's neighborhood. He also described the rules and responsibilities in both homes.
R. refers to Maternal Grandmother as "O. ." He stated that Maternal Grandmother has two (2) friendly pit bulls. During his visits with Maternal Grandmother, Maternal Grandfather is also present and spends time with him.
R. also interacts with Mother's sister, S. , and S. 's girlfriend, J. . He interacts with Mother's brother, E. B. ("Maternal Uncle"), mostly at Father's home. He recently visited Paternal Grandmother and Paternal Great-Grandmother, whom came up from Georgia for a visit. R. is looking forward to visiting them in Georgia for Christmas.
Upon questioning as to the Children's relationship with each other, they admitted that they fight occasionally, but they play together and have friends in common.
Factor (3) is neutral as R. has positive interaction with Mother, Father, the residents of Mother's home, and extended family members.
(4) The child's adjustment to his or her home , school and community;
Mother testified that she has lived in F. R. A. with K. for almost two (2) years. The apartment has two (2) bedrooms. The Children share a room and Mother and K. share a room. L. just recently moved in and she sleeps on the couch in the living room. Mother testified that the apartment lease expires in October of 2017 and that they plan to move to a larger apartment, but she was uncertain as to when they were moving. Mother further testified that they have been saving money for a three (3) bedroom house or apartment. Mother lives approximately five (5) minutes away from Father's home.
Mother testified that she and Father entered a verbal agreement for a shared residency visitation schedule, which was effective from March of 2016 through June of 2017. Mother stated that, during that time, R. expressed that he loved the schedule because he had enough time with both parents. Mother enjoyed the increased visitation as well. R. has friends in Mother's neighborhood and Father's neighborhood. Mother named two (2) of R. 's friends, T. and L. . T. is a mutual friend of both of the Children.
Father resides in the prior martial home with R. and M. . Mother submitted photos of Father's home, which she alleges were developed in December of 2016 and taken just weeks before she had them developed. She alleges that there was cat feces on the floor, urine at the bottom of the toilets in the bathroom, a toilet clogged with feces, clothes scattered, and a "horrendous" smell in the home. Father testified that his home is kept in a clean state and that he replaced the carpets in his home due to the cat urine from Mother's cat. He stated that he started remodeling his home two months after Mother moved out. Mother alleges that she took her cat with her when she moved out and that Father did not remodel his home until three (3) months prior to the hearing. As Mother's pictures did not provide a date stamp and she did not provide Father with prior notice that she would be presenting this evidence, the Court granted Father permission to supplement the record with his own pictures to prove the timeframe of when his home was remodeled.
See Petitioner's Exhibit #2.
Father supplemented the record with pictures of his home, which, in contrast to Mother's photos, show a fairly clean home, new paint on the walls, new carpeting, and replaced flooring in the kitchen. However, Father's pictures do no provide a timeframe as to when the remodeling occurred. Thus, the Court cannot ascertain definitively whether the remodeling occurred prior to the time Mother took her pictures or afterwards.
R. primarily lives with Father. Father testified that R. lives in the marital home where he was raised. R. attends O. E. . He is entering the fourth grade. He told the Court that he participates in Chorus at school. R. stated that he has plenty of friends in Mother's neighborhood and has four (4) friends in Father's neighborhood, including B. and E. . He told the Court that Mother's home is more clean than Father's since K. keeps the home tidy and does not allow them to eat in their room. He described the upgrades to Father's home such as the installation of new carpeting last year and new paint. He has animals at Mother's house, including a cat.
Factor (4) is neutral as R. appears well-adjusted to both Mother's and Father's homes. Based on the testimony, he has been visiting with Mother and Father pursuant to a shared schedule and has had ample opportunity to adjust. No testimony was presented as to his progress in school, but he participates in chorus and has friends in both communities.
(5) The mental and physical health of all individuals involved;
Mother testified that in July of 2014 she suffered a mental breakdown and received treatment from Meadowwood for two (2) weeks. Mother attends therapy twice a month with M. C. ("Mr. C. ") at Mid Atlantic Behavioral Health and she visits a psychiatrist, K. D. , who prescribes her medications. Mother takes the following medications: Viibryd, for anti-depression; Abilify, for depression; and Xanax, for anxiety. She was diagnosed with depression, anxiety, and borderline personality disorder in October of 2014. Mother testified that, in therapy, she has been working on anger management, depression, and anxiety due to experiencing physical and sexual abuse as a child. Mother also suffers from chronic lumbar radiculopathy, which affects her back and leg. She stated that she had several herniated discs in her back and postponed the treatment, which caused permanent damage. Mother underwent two (2) back surgeries, one in March of 2012, and the second in January of 2014. As a result, she is unable to work. She testified that she filed an application for disability in 2014 and was denied twice. She has a hearing in October of 2017. On cross-examination, Mother acknowledged that she also takes Oxycodone, Zanaflex, and Exalgo for back pain.
Father testified that he is diagnosed with ADHD, for which he is prescribed medication. Father does not attend therapy. He stated that he does not have any long-term effects from the sexual abuse he experienced as a child. Mother showed Father a copy of text messages between Father and other persons where Father was allegedly agreeing to sell Adderall pills. Father admitted that he recognized the messages, but denied any mention of Adderall. Upon questioning as to whether he sold prescription medications, Father asserted his rights under the 5th Amendment. Father is employed as a delivery truck driver.
See Petitioner's Exhibit #1.
Mother testified that R. has seasonal allergies and a wandering eye. He wears eye glasses. R. does not have any mental health concerns. Father confirmed Mother's testimony.
Upon questioning by the Court, Mother responded that K. does not have any mental health issues. However, she later testified that K. takes Prozac for depression and anxiety. She further testified that K. does not attend counseling and does not have any physical health issues. Mother stated that K. works for her father, at M. C. 's Plumbing and Heating.
Mother testified that L. is oxygen dependent and suffers from end-stage COPD. She stated that L. 's condition is terminal, but that she outlived the doctor's prognosis of life expectancy. Mother denied that she, K. , or L. had any substance abuse issues.
Mother testified that she and K. have been in a relationship "on and off for three (3) years. However, she admitted that she has been unfaithful a few times in her relationship with K. . K. testified that she has known Mother for ten (10 years, but that they have been romantically involved for three (3) years and dating for one and one-half (1 ½) years. She described their relationship as excellent and supportive. K. testified that she, along with Mother and Father, engaged in a three-some sexual relationship shortly after Mother's back surgery. She described the relationship as polyamorous. Initially, the relationship started between Mother and K. and then Father became involved. K. testified that they engaged in the three-some relationship from February through June of 2014. On cross-examination, K. denied that Father stated that the three-some relationship would ruin their friendship.
Father testified that Mother approached him and stated that she wanted a relationship with K. during their marriage. Father told Mother that it would ruin their friendship. He stated that he was very much opposed to Mother's romantic relationship with K. and that they introduced the idea three (3) different times. He further stated that Mother and K. began their dating relationship, which "blew up horribly." Mother and K. then asked Father again and offered to include Father in the relationship, which ended in an argument. Father stated that they asked him a third time and the three-some relationship lasted for three (3) or four (4) months. He further stated that he embraced it knowing that his marriage was coming to an end. He thought it best to just "ride the wave until it crashes." Mother denied that the Children knew about the three-some relationship since Mother and K. were best friends and K. spending the night was common.
On cross-examination, Mother denied running an escort business. She acknowledged, however, that she and K. had a profile on a website called "Seeking Arrangements." She stated that the profile was created during the marriage since Mother could not work and that they used the profile to seek "sugar daddies" or someone to take on a date, with "no strings attached." Father submitted a copy of Mother's and K. 's profile which showed that the profile was last active August 7, 2017. Mother testified that she only uses the profile for entertainment purposes now. On re-direct, Mother explained that Father suggested the website to her to earn money, but she never financially benefitted from the website.
See Respondent's Exhibit #1.
K. testified that Father encouraged her and Mother to join the "Seeking Arrangements" website for monetary gain. According to K. , Mother and Father were married when they joined the website. She stated that their profile is still active, but they only use it for entertainment, such as conversing with men in jest. K. testified that she was paid for sex in 2014, during the three-some relationship. She further testified that her ex-boyfriend was interested in having a three-some with her and Mother, and offered to "reward them very well" and pay them $2,000. K. alleged that Father encouraged them to accept the offer and, when Mother declined, Father criticized Mother for not supporting the family since she was not working. K. said they accepted the offer and received $2,000. She stated that Father created a profile as well, which seeks "sugar mamas," or older women seeking "eye candy."
Father testified that he created his profile so that Mother and K. would not have to create one. He stated that he wished to earn extra money by taking women on outings and to casinos. He alleged that Mother and K. did not create a profile, but rather took over K. 's old profile. He stated that he was opposed to Mother and K. having a profile. No evidence was presented as to whether Father's profile is still active.
On cross-examination, K. testified that she was unaware that Mother self-mutilated in the past year. However, Father showed K. a document where K. acknowledged awareness that Mother self-mutilated, but the document did not have a date stamp and Father did not provide documentation of the full message. K. denied recollection of the conversation, but she stated that the last time Mother self-mutilated was in May of 2016, which was over a year ago. K. admitted that Mother has been unfaithful in their relationship. She stated that the most recent occasion was in September of 2016.
Maternal Grandmother testified that Mother and Father's mental wellness declined prior to the divorce due to stress and that they made choices which led to the demise of their marriage. Maternal Grandmother testified that Mother and Father engaged in a three-some relationship that she adamantly opposed. After Mother and Father divorced, Maternal Grandparents did not allow Mother to live with them because they thought it was best for Mother to avail herself of mental health counseling rather than them coming to her aid. Maternal Grandmother testified that, when Mother was a teenager she and her sister S. were into "goth," which involved cutting. Mother attended therapy then as well. Maternal Grandmother testified that Mother demonstrates a calmer, consistent, and reasonable demeanor since attending therapy. Maternal Grandmother testified that Mother endeavors to practice self-awareness and applies good, sound advice. According to Maternal Grandmother, Mother appears healthier and more mature.
On cross-examination, Maternal Grandmother acknowledged that Mother was abused as a child. She stated that she learned a few years ago that Mother and S. engaged in "playhouse stuff with Maternal Uncle. Maternal Grandmother testified that Maternal Grandfather had a temper and underwent anger management. She further testified that they lived apart for a while and they both attended counseling. Maternal Grandmother continues to attend counseling. She stated that Mother attends therapy to deal with her own demons and not due to any abuse by Maternal Grandfather.
Maternal Uncle testified that Father has provided a stable environment for R. . He further testified that Father is a good disciplinarian and provides R. with structure. Maternal Uncle described Mother as an opportunist, who meets with people for her benefit. He testified that Maternal Grandfather was terrible when they were children and that Mother and S. received the brunt of his anger. He further testified that Maternal Grandfather received help and that he does not believe Maternal Grandfather would physically abuse R. .
Factor (5) is neutral. Both parties appear to have suffered from mental health issues despite Father's unwillingness to admit to it. Mother and Maternal Uncle's testimony depict maternal relatives as a troubled family that has attempted to overcome abuse and dishonesty. Mother and Father engaged in a three-some relationship with a family friend, which occurred immediately preceding the end of their marriage. They also seemed to undermine the unusual nature of three-some relationship during their marriage. Both Mother and Father created online profiles which encouraged infidelity during their marriage and they have conflicting stories as to how the profiles even came to exist. Mother denied any financial gain from the profile, but K. testified that they did receive payment for sex based on their advertisement as a couple. Thus, the Court does not find Mother's testimony to be credible. While Mother is credited for her mental health progress, the Court is still concerned about the mental stability of both parents. The Court is also troubled by Father's alleged attempt to sell his prescription medication.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
Pursuant to Del. Code Ann. tit. 13, § 701, the father and mother are the joint natural guardians of their minor children and are equally charged with the child's support, care, nurture, welfare and education.
Both Mother and Father completed a parent education course. Mother testified that she has advised Father on multiple occasions of her opposition to M. watching R. alone due to them engaging in fist fights and M. hitting R. 's head against a dresser. She stated that they curse at each other and call each other names. Mother testified that she contacted the Division of Family Services ("DFS") regarding this matter, but that DFS concluded their investigation in Father's favor. Mother testified that after she contacted DFS, Father informed her that she could no longer visit with R. on a shared schedule as they had previously agreed.
Mother described a recent conversation she had with M. where M. explained that he pulled down his pants and revealed his penis to R. because R. refused to follow his instructions. Mother recorded the conversation. The Court advised Mother of its obligation to report this incident.
The Court contacted the DFS hotline on August 14, 2017. At the time the Order was drafted, the investigation was still pending.
Mother is currently unemployed and reliant on K. for financial support. K. also testified that Mother would not be financially stable without her assistance. Mother testified that she has provided financial support for the Children and that she gave Father between $400.00 and $600.00, over time, from her savings, prior to cashing out her IRA that totaled approximately $10,000. She further testified that K. has also helped to provide support. Mother testified that she cashed out her IRA account and gave Father money for four (4) or five (5) months, totaling approximately $500.00 or $600.00. Mother further testified that she purchased school clothing, sneakers, headphones, and cough medicine. She stated that she has not contributed financially since Father assumed primary residence because she felt that it was "his responsibility" to provide all the financial support as the primary parent.
Father denied that he has received financial assistance from Mother. He stated that Mother purchases clothing for R. , but keeps them at her home. Father provides medical insurance for R. and pays for his eye glasses. He stated that he and Mother used to alternate this expense, but he has purchased the last three (3) pairs.
K. testified that she pays most of the household bills and that L. receives disability income and pays the cable and electric bills. She further testified that Mother has a "nest-egg" through her IRA to contribute to household expenses.
Factor (6) weighs in favor of Father. He appears to be in compliance with his responsibilities to R. , while Mother does not have a reasonable concept of her responsibilities. Both parents are charged with R. 's support, care, nurture, welfare, and education regardless of where he resides.
See Id.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Upon questioning by the Court, Mother denied that there was any domestic violence between her and K. . She testified, however, that there was a domestic violence incident between her and L. one (1) year ago where they were engaged in an argument and L. threw a chair at Mother and punched her. Mother stated that she pushed L. down and L. contacted the police. As a result, Mother was charged with offensive touching. She pled guilty and was placed on probation for five (5) months. Mother was required to complete an anger management course, which she completed through her therapist, Mr. C. . On cross-examination, Mother again denied any violence with K. during their relationship and stated that the vehicular assault case was dropped.
K. testified to one incident where Mother's car door "accidentally knocked her over." She stated that Mother was upset about something and wished to leave the scene. Mother's car door was open while K. was speaking to her. According to K. , Mother said "please let me go" and pushed K. back a little. Mother began to move the car in reverse while the car door was still open and the car door knocked K. down. K. stated someone contacted the police, and an ambulance was requested. She was diagnosed with a subdural hematoma and had to stay in the hospital overnight. K. blames the situation on Father manipulating Mother and trying to come between their relationship. She stated that Father told Mother that K. was controlling. K. testified that R. was not present.
Upon questioning as to whether she was on the child protection registry, Mother denied any knowledge about the registry.
Father testified that he has not been involved in any incidents of domestic violence and is not on the child protection registry.
Factor (7) weighs in favor of Father as Mother has been involved in two (2) incidents of domestic violence with the residents of her home, within the past year and one-half (1 ½). Mother denied any domestic violence between her and K. , which causes the Court to question Mother's credibility.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Father was convicted of underage possession/consumption of alcohol in December 2007. Mother's offensive touching charge was discharged without a conviction. As Father's conviction is almost ten (10) years old, factor (8) is neutral.
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Upon consideration of the best interest factors, the Court finds that it is in R. 's best interest for Mother's Petition to be denied. Factors (1), (3), (4), (5), and (8) are neutral. R. enjoys positive interaction with both parties and seems to be well-adjusted to each home. However, the Court is concerned about Mother's financial and housing stability. She has provided minimal support to Father for R. . Further she has been unfaithful in her relationship with K. , on more than one occasion, and has been involved in an incident of domestic violence with her. She also engaged in a domestic violence incident with L. . They all currently live together and Mother is financially dependent upon K. . If Mother's relationship with K. were to end, Mother would then become dependent upon Maternal Grandmother, who is only willing to permit Mother to reside in the home temporarily. Thus, the Court finds that it is in R. 's best interest for Mother's Petition to be denied, but for Mother to receive increased visitation with R. .
Petition to Rescind Guardianship (M. )
Legal Standard
Pursuant to 13 Del. C. § 2332(c), an order may be rescinded if the petitioner makes a preliminary showing that the guardianship is no longer necessary for the reasons it was established. The Court must satisfy itself that the petitioner has the ability and financial means to provide all the care needed to support the child's physical, mental and emotional growth. The guardian must prove, by a preponderance of the evidence, that the child is still dependent, neglected, or abused in the petitioner's care or that the child will suffer physical or emotional harm if the guardianship is terminated. The best interest factors will only be applied if the guardian satisfies his burden of proof. However, if the first test is not satisfied, the Court "may not ignore the parent's fundamental rights by simply weighing the best interest factors."
13 Del. C. § 2332(c) provides: Rescission. --Except as otherwise specified in this chapter, an order of guardianship may be rescinded upon a judicial determination that petitioner has made a preliminary showing the guardianship is no longer necessary for the reason(s) it was established, unless: (1) The Court finds that the guardian has established, by a preponderance of the evidence, that the child will be dependent, neglected, and/or abused in the care of the parent or parents seeking rescission; or (2) The Court finds that the guardian has established, by clear and convincing evidence, that the child will suffer physical or emotional harm if the guardianship is terminated.
Tourison v. Pepper, 51 A. 3d 470, 472 (2012).
Tourison v. Pepper, 51 A. 3d at 473.
Id.
The standard for harm was adopted by the Supreme Court of Delaware to mean either physical harm or long-term emotional harm and not merely social or economic disadvantages. A dependent child is defined as one whose physical, mental, or emotional well- being is threatened due to the inadequate care and protection by the child's custodian.
Id. at 474.
Discussion
In the interest of judicial economy, the Court will not recite all of the testimony that can be more fully obtained from the record, but rather will note any relevant issues throughout the discussion.
I. Whether the Guardianship is no longer necessary.
The guardianship was entered by consent on September 9, 2014. Mother testified that the only reason the guardianship was necessary was due to her unstable housing after Mother and Father separated. She further testified that after the divorce, Father moved out of the marital home and lived with his aunt. She stated that they made a verbal agreement that Mother would move out by March 1, 2015. M. lived with Mother in the marital home from September of 2014 until March of 2015 and Father visited M. on the weekend. Mother testified that she honored the agreement and moved in with her best friend of twenty (20) years, but because Mother was sleeping in the living room of the home, she did not feel that a shared visitation schedule was best for M. . Mother stated that she visited M. on the weekends until December of 2015, when she moved in with K. . .
Mother testified that she worked during the marriage, but stopped after her second surgery in 2014 and is currently unemployed. She previously worked at a child care center. She also had a simple IRA worth over $10,000.00, which she recently cashed out to pay bills. Mother claims that she still has money from the IRA. She lives in a home with K. and K. 's terminally-ill mother, L. . Mother stated that K. works full time and that L. has income as well. She testified that K. and L. pay most of the bills and that she contributes. Mother acknowledged that she would have to obtain Medicaid for M. 's health insurance.
K. acknowledged that Mother would not be able to provide for the Children alone if her relationship with Mother ended. Mother conceded in her testimony that she is not self-sufficient. She stated that if her relationship with K. ended, she would live with Maternal Grandmother. Maternal Grandmother agreed that she would allow Mother and the Children to live with her, if necessary, but that it would be short-term since her house is small.
Mother stated that she gave Father between $400.00 and $600.00 to support the Children, over time, from her savings, prior to cashing out her IRA. She further testified that K. has also helped to provide support. Mother testified that after she cashed out her IRA account, she gave Father money for four (4) or five (5) months, totaling approximately $500.00 or $600.00 (out of $10,000.00). Mother further testified that she purchased school clothing, sneakers, headphones, and cough medicine. She stated that she has not contributed financially since Father stopped allowing her to visit with M. on a shared residency schedule. She felt that it was "his responsibility" to provide all the financial support since M. primarily resided with Father.
Father stated the guardianship was also in place due to Mother's mental health concerns. Father testified that Mother had a suicide attempt in 2014, when they divorced. He stated that he and Mother agreed that he would provide care for M. . Father asserted that he needs to maintain the guardianship in order for M. 's health benefits to continue under Father's policy. Maternal Grandmother recalled that Mother and Father agreed it was best for Father to have guardianship so that M. would have medical benefits. Father denied that Mother provided him with any financial support.
The Court finds that Mother has not made a preliminary showing that the guardianship is no longer necessary for the reasons it was established. In fact, Mother's financial situation is similar to her situation when the guardianship was put in place. She is unemployed and her only source of income is funds withdrawn from an IRA account. She still does not have health benefits for M. , which was a consideration in consenting to Father's guardianship. Mother lives with K. and L. in a two-bedroom apartment as she cannot afford her own housing. Mother's relationship with K. consists of infidelity and an incident of domestic violence. Mother has also been engaged in domestic violence with L. , who is terminally ill. She is totally dependent on K. , as she conceded that she is not self-sufficient. Further, there is a possibility that K. and Mother will be moving again in October of 2017, upon the expiration of K. 's apartment lease. While Maternal Grandmother offers that she would be willing to house Mother if necessary, she was not supportive of Mother in the past, when Mother attempted suicide. Further, Maternal Grandmother is only willing to provide temporary housing, at best. Thus, the Court finds that the same reasons the guardianship was established continue to exist today and the Court is not satisfied that Mother has the ability and financial means to provide all the care needed by M.
II. Whether the Guardian can establish dependency , neglect , or abuse , or physical or emotional harm.
An order of guardianship may be rescinded upon a showing by the petitioner that the guardianship is no longer necessary unless the guardian can establish that the children are dependent, neglected, or abused or will suffer physical or emotional harm. If Mother was able to prove that the reasons for the guardianship no longer existed, the burden would have shifted to Father to establish by a preponderance of the evidence that M. will be abused, neglected or dependent in Mother's care. Although Mother did not make a preliminary showing, the Court will continue with the analysis of whether or not Father proved by a preponderance of the evidence that M. will be abused, neglected, or dependent in Mother's care.
Based on the testimony presented, the Court finds that Father has established, by a preponderance of the evidence, that M. is still dependent in Mother's care. As stated above, Mother does not have her own housing and she resides in a two-bedroom apartment with K. and L. . Although Mother claims that she and K. are searching for a bigger home, they did not provide evidence of a new lease and there is no guarantee that they will move when the lease expires. Mother does not have her own source of income besides dwindling funds that she withdrew from an IRA account. Thus, she is totally dependent on K. . She does not have health benefits for M. and will have to apply for state assistance. Moreover, she has been derelict in providing financial assistance to Father for M. 's care despite the fact that she had the primary responsibility to support M. financially while the guardianship was in effect. As Mother is dependent, M. is also dependent in her care.
See 13 Del. C. § 2331(b).
Father has provided a stable environment for M. as he continues to remain in the marital home where M. was raised. Father provides the necessary support to M. and manages his health needs. As a result of the guardianship, Father is permitted, through FMLA, to take time off work due to M. 's mental health needs.
Accordingly, the Court finds that Father has established by a preponderance of evidence that M. is dependent in Mother's care.
III. Whether it is in the child's best interest for the guardianship to be rescinded.
As much of the testimony described in the best interests analysis above is similar to that which is pertinent to the best interests analysis for the guardianship, the Court will only supplement the analysis below with the testimony relevant to M.
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother wishes to rescind the guardianship. She stated that she still wishes for Father to have visitation on a week on, week off schedule. M. 's biological Father was not present at the hearing to express his wishes. Mother testified that he was aware of the hearing. Father opposes rescinding guardianship.
Factor (1) weighs in favor of Mother as Father was not present to express his wishes.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
The Court conducted a joint interview with R. and M. on August 16, 2017. M. is fifteen (15) years old and will be entering the ninth grade this year. He expressed that he enjoyed the shared residential arrangement where he visited with Mother and Father on a week on, week off schedule. M. was questioned as to his feelings regarding living with Mother apart from R. and he stated that it he would miss R. and that it would be "weird" if R. was not at Mother's home with him. He responded that he would miss R. because they play together and have friends in common.
If the guardianship were rescinded, as Mother desires, and she was awarded shared residency of R. , then the Children would have varying visitation schedules. Thus, factor (2) weighs in favor of Father.
(3) The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or persons who may significantly affect the child's best interests ;
Mother testified that M. interacts with K. and L. and gets along with them. She stated that, similarly, K. adores M. and that M. confides in L. and she helps him to calm down when he is upset. Mother testified that M. has known K. since age five (5). K. testified that Mother is nurturing. Maternal Grandmother described Mother as "attentive" and "engaged." Maternal Grandmother testified that she and Maternal Grandfather are involved in M. 's life and that they visit with M. when Mother has visitation. She believes that the Children should have visitation together with each parent.
Mother testified that M. 's Father does not communicate with M. . She further testified that M. has known Father since age two (2) and refers to Father as "Dad." Father confirmed that M. refers to him as "Dad." He stated that M. is interested in video games and Father tries to keep up with M. 's interests so that he can engage with him. He testified that M. visits with Paternal Great-Grandmother and Father's aunts and cousins.
M. told the Court that he refers to K. as "K. ." He refers to L. as "Mom Mom L. ." When visiting Mother's home, they go the farmer's market and to the movies. M. stated that he swims in the pool in Mother's neighborhood, but mainly plays video games in his room.
M. also refers to Maternal Grandmother as "O. ." He interacts with maternal and paternal relatives the same as R. .
Factor (3) is neutral as M. has positive interaction with Mother, Father, the residents of Mother's home, and extended family members.
(4) The child's adjustment to his or her home , school and community;
Mother lives in a two-bedroom apartment with K. and L. . Mother testified that during that time the parties operated on a shared visitation schedule, that M. expressed that he loved the schedule because he had enough time with both parents. Mother further testified that M. has friends in her neighborhood and Father's neighborhood. She stated that M. does not like to play outside and prefers to play on his laptop.
Mother testified that M. will be attending C. H. S. in the fall due to his need for a special support program for emotional support despite the fact that his feeder school is G. H. . Father testified that M. will actually be attending G. H. since that school has a new emotional support program.
M. told the Court that he is nervous and excited about attending G. H. . He does not have any friends attending that school and is uncertain as to whether he will participate in any activities. M. stated that Father is stricter and that if he gets in trouble at school, he will request that the school contact Mother instead of Father. He further stated that Mother punishes him by denying privileges and Father punishes him by adding extra chores. He has rules and responsibilities in each home. He told the Court that Mother assists him with homework and both Mother and Father attend school events. M. stated that he has more friends in Father's neighborhood.
Factor (4) is neutral as M. appears well-adjusted to both Mother's and Father's homes. He is naturally more adjusted to Father's home as that is where he has lived the majority of his life. The Court notes, however, that Mother incorrectly stated which school M. would be attending.
(5) The mental and physical health of all individuals involved;
The Court incorporates by reference the discussion under factor (5) above. Mother testified that M. was diagnosed with ADHD, oppositional defiant disorder, major depression, and anxiety. She stated that he was diagnosed with ADHD at age six (6) and received the additional diagnoses at age thirteen (13). She testified that M. takes three (3) medications, but she could only recall two (2) of them, Prozac and Ritalin. She stated that M. attends therapy with Mr. C. as well, on an as-needed basis. M. has been treating with Mr. C. for less than a year. No physical health issues were reported. M. told the Court that he likes Mr. C. better than his previous therapists, whom he described as using a "weird tone" with him.
Father supplemented Mother's testimony to say that M. 's third medication is Lamictal. He stated that the only medicine that has a short term effect is Ritalin. Father testified that Mother is compliant with administering M. 's medications when he is in her care. He further testified that M. would be unable to stay at his home without the guardianship because he cannot risk losing his job if M. has an episode and Father is required to miss work. Father is granted leave from work through FMLA as a result of the guardianship.
Mother denied that the Children knew about the three-some relationship since Mother and K. were best friends and K. spending the night was common. Father testified that M. was twelve (12) years old at the time. He stated that, when the Children were home, "everything was distant" and appeared to just be a friendship, but he admitted that M. probably had "an idea" of what was transpiring.
Factor (5) is neutral as the Court is concerned with the mental health of Mother, Father, and M. , especially given the incident between R. and M. that was under investigation by the Division of Family Services. Given this information, Mother and Father should have implemented a safety plan to avoid M. spending time alone with R. .
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
Pursuant to Del. Code Ann. tit. 13, § 701, the father and mother are the joint natural guardians of their minor children and are equally charged with the child's support, care, nurture, welfare and education. --------
As stated above, Mother provided minimal financial support to Father for M. 's care. Father denied that he has received financial assistance from Mother. Father pays for M. 's health benefits and provides for his needs. Mother, on the other hand, believes that it is Father's responsibility to provide for all of M. 's needs as his guardian.
Factor (6) weighs in favor of Father. Mother has not been compliant with her responsibilities as a parent. Father, however, appears to be in compliance with his responsibilities as a guardian, and has gone above and beyond his responsibilities to provide financial support to M.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
The Court incorporates the discussion under factor (7) above regarding Mother's incidents of domestic violence with K. and L. , the residents in her home. K. testified that M. was not present when Mother's car door knocked her down.
Father testified that he has not been involved in any incidents of domestic violence and is not on the child protection registry.
Factor (7) weighs in favor of Father as Mother has been involved in two (2) incidents of domestic violence with the residents of her home, within the past year and one-half. Further, Mother denied any domestic violence between her and K.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Father was convicted of underage possession/consumption of alcohol in December 2007. Mother's offensive touching charge was discharged without a conviction. As Father's conviction is almost ten (10) years old, factor (8) is neutral.
Conclusion
Mother failed to make a preliminary showing that the guardianship was no longer necessary. In fact, some of the same issues exist today that existed when the guardianship was granted. Additionally, Father provided evidence to establish that M. is still dependent in Mother's care. Finally, the best interest factors do not support rescinding the guardianship. If guardianship were rescinded to Mother, the Children would have separate visitation schedules. The testimony presented by Maternal Grandmother as well as statements made by the Children support the Children visiting each parent together, as that is what they have become accustomed to. Father is unable to have M. in in his home apart from the guardianship and will be limited to weekend visitation with M. , which would differ from his visitation schedule with R. . The Court does not believe that this transition would be beneficial for M. . Father appears to be attentive and responsive to M. 's medical needs. Mother has some familiarity as well and is compliant with administering his medications. The Court notes that neither Mother nor Father are without flaws. Mother is credited for her mental health progress, but it is apparent that she still needs to gain financial independence and stability. She has not been compliant with her responsibilities as M. 's parent. Further she has engaged in domestic disputes with the residents of her home, which causes the Court great concern. Thus, the Court believes that M. 's mental and emotional well-being will be threatened if the guardianship were rescinded. The Court acknowledges that Mother and M. have a strong bond and it will enter a visitation order to afford frequent and meaningful contact between them. Therefore, Mother's Petition is DENIED.
ORDER
Therefore, in consideration of the above factors, the Court finds that it is appropriate to enter the following Order:
IT IS HEREBY ORDERED this 15th day of September, 2017, that:
1. Mother's Petition for Custody regarding R. is DENIED. Mother and Father shall have joint custody and primary residency with Father.
2. Mother's Petition to Rescind Guardianship regarding M. is DENIED. The guardianship with Father shall continue.
3. During the school year, Mother shall visit with the Children every other week, from Wednesday after school through Sunday at 6:00 p.m. On the weeks where Mother does not have visitation she shall visit with the Children on Wednesday overnight. Mother shall pick up the Children from school on Wednesday and drop off them off at school on Thursday morning. If school is not in session, the parties shall mutually agree and arrange the pick up and drop off times and locations. The parties shall alternate weeks for visitation during the summer months pursuant to the attached Contact Guidelines.
4. Father shall not leave the Children at home alone pending the outcome of the DFS investigation. If he has to work when the Children are home from school, Mother shall be given the first right of refusal to provide child care for the Children. If she refuses, then Father shall provide a child care provider for R. . Upon the conclusion of DFS's investigation, Mother and Father shall follow any recommendations by DFS.
5. The parties shall follow the attached Contact Guidelines for all other visitation.
6. The parties are free to modify the terms of this schedule, in writing, by mutual agreement.
7. As joint custodians, Mother and Father are entitled to receive, upon request, information concerning R. 's progress in school, medical treatment, significant developments in R. 's life, and other pertinent activities relating to R. . See 13 Del. C. § 727(a).
IT IS SO ORDERED.
/s/ _________
NATALIE J. HASKINS, JUDGE NJH/ceh Date mailed: 9/15/2017
The Family Court of the State of Delaware
In and For [×]New Castle [ ] Kent [ ] Sussex County
Contact Guidelines - R v. R
1. Holidays Father shall have the child on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Mother shall have the child on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years: Column 1 Column 2 Easter or other religious holiday Memorial Day Fourth of July Labor Day Halloween Thanksgiving Day Christmas Day Christmas Eve With the exception of Christmas and Halloween contact, holiday contact shall be from 9 a.m. until 6 p.m. the day of the holiday. Halloween contact shall begin at 5 p.m. and end at 8 p.m. on Halloween. Christmas Eve contact shall begin at 6 p.m. on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6 p.m. on December 26th. When a holiday falls on a Monday immediately following a contact weekend, the parent that had contact for the weekend shall be entitled to keep the children continuously from 6 p.m. Friday until 6 p.m. Monday. 2. Mother's/Father's Day: On Mother's Day and Father's Day, no matter whose turn for contact, the child shall be with the parent whose holiday is being celebrated from 9 a.m. until 6 p.m. 3. School Breaks (Winter and Spring): Winter and Spring Breaks shall be shared equally between the parents by dividing the breaks equally or rotating the breaks. 4. Summer Vacation: With the exception of children under the age of 5 years, the parents shall alternate contact weeks in the summer with the schedule beginning the first Friday in June and concluding the last Friday in August. Mother shall select their weeks first in odd numbered years and Father shall select their weeks first in even numbered years. The parent whose choice it is that year shall give the other parent written notice of his/her summer week selection between March 1st and April 1st. The parent who has the child for the week shall be responsible for taking the child to his or her extra-curricular activities, summer school, and providing summer care for that week. 5. Late pick-up: Both parents shall have the child ready for pick-up at the start of all contact periods. The child and the parent have no duty to wait for the other parent to arrive for contact more than thirty (30) minutes, unless notified. The parent who arrives more than thirty (30) minutes late without prior notification for a particular contact, forfeits that contact, unless the other parent agrees otherwise. 6. Drop-off: Neither parent shall return the child early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to the child must be present when the child is returned from contact. 7. Canceling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period. 21 8. Medical treatment and emergencies: If the child becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the child becomes ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency. 9. Communication: Both parents shall be entitled to reasonable communication with the child while the child is in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between the child and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense. 10. Transportation: Unless otherwise ordered or mutually agreed, parents shall have shared responsibility for transportation of the child to and from their home for contact periods and may use another adult well-known to the children for picking up or dropping off the children when necessary. Any person transporting the children shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All child restraint and seat belt laws must be observed by the driver. 11. School work: Parents shall provide time for children to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the children. Both parents are responsible for providing ail of the school assignments and books to the other parent. Summer school which is necessary for a child must be attended, regardless of which parent has the child during the summer school period. 12. Extracurricular activities: Regardless of where the child is living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom the child is staying shall be responsible for providing transportation to activities scheduled during contact with that parent. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address and telephone number of the activity leader, if available. 13. Relocation: Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the child's school, travel time to school or extracurricular activities or otherwise may adversely affect the child's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating. 14. Notice of change of address: Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county. 15. Other: