File No.: CN12-06804 Petition No.: 19-12082
J. W. C. , Jr. C. J.
LETTER DECISION AND ORDER
Petition Type: Custody Modification Dear Mr. C and Ms. J. :
The Court held a teleconference regarding the above-referenced matter and the consent order which the parties' signed at mediation. The original reason for the teleconference was that a review of the criminal record of the husband of C. J. ("Mother") was a Registered Tier 2 sex offender and he also had a subsequent violent felony conviction in 2012 for aggravated menacing. Subsequent to the signing of the consent order Mother filed a Motion to Reopen alleging that there was a mistake in the consent Order, which both parties signed, and that she wanted at least one weekend per month and if there were five weekends in a month she wanted the fifth weekend. J. C. ("Father") did not agree with Mother's request for the weekend visitation. Mother also requested that there would not be visitation for Father for in-service days during the middle of the week but rather only on Mondays or Fridays as they are attached to the weekend. For the reasons explained herein, the issues raised in the Motion to Reopen are moot at this time. There was no final Order entered following the parties' signing of the consent and the Court cannot sign the consent order as a final order due to the presumption against entering an Order permitting a child to reside with a sex offender who cannot rebut the presumption in 13 Del. C. 724A.
The Court reviewed the prior orders as Mother indicated that the sex offender presumption had already been dealt with in a previous order by Judge Newell. The Court notes that the Order entered by Judge Newell analyzed the statute and determined that Mother could not be awarded residential placement of the children as Mother's husband was a sex offender who could not rebut he presumption due to his subsequent conviction of a violent felony. Father was awarded primary residence and Mother was given visitation. Mother was required to supervise Mr. J. during the visitation periods. The Court drew a distinction between primary residence and visitation. (See attached). According to 13 Del. C. .§ 724A(a):
Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender and that no sex offender shall have unsupervised visitation with a child.
Mother correctly points out that her husband was only thirteen years of age at the time of the sex offense. However, it is the later conviction in 2012 for aggravated menacing and terroristic threatening that causes the greater concern and which leads to the inability to rebut the presumption in §724A. The Court notes that these offenses were domestic violence charges. Terroristic threatening has been determined by this Court to be a violent offense and aggravated menacing is classified as a violent offense in 11 Del. C. §4201. The criminal history notes that the charges were domestic related and were the result of a plea and that the original charges included strangulation, possession of a deadly weapon by a person prohibited, malicious interference with an emergency phone call and other charges.
In addition to the presumption, the Court notes that Mother's husband was also, subsequent to the entering of the last Court order, convicted of one count of Endangering the Welfare of a Child. While this offense alone does not impact the application of the presumption, it causes concern, when viewed with Mr. J. 's record as a whole. Mother's husband was previously found to have committed an act of abuse against T. ' brother J. in the presence of T. . Unfortunately, the law prevents the Court from entering an Order agreed upon by the parties.
Based on the above reasons, the interim consent Order is VACATED and the prior Order from September 5, 2014 remains the current order of the Court. The petition will be scheduled for a hearing at which time Mother will need to provide evidence that the 2012 convictions were not for violent offenses.
IT IS SO ORDERED this 28th day of JUNE, 2019.
Very truly yours,
Felice Glennon Kerr, Judge FGK:vm Date emailed: