DS v. MR
| Decision Date | 04 November 2021 |
| Docket Number | CN13-03008 |
| Parties | DS v. MR |
| Court | Delaware Family Court |
Alexandra Cumings, Esq.
PETITION TO MODIFY CUSTODY ORDER
Dear Ms. S ------ and Ms. Cumings:
This is the Court's decision regarding the Petition to Modify Custody Order filed on January 7, 2021, by D---- S------ (hereinafter “Mother”) against M----- R------ (hereinafter “Father”) in the interest of their minor children J------ R------, born ---- -, 2008, and K------- R---- --, born ----- --, 2010 (hereinafter “Children”). Mother also previously filed two Petition Rule to Show Cause, which have both been dismissed by this Court.
A prior custody order was entered on April 24, 2018, which granted the parties joint legal custody and shared physical custody by way of alternating weeks. A Consent Protection from Abuse Order ("PFA") was entered on February 12, 2021 expiring in February, 2022. As a result of that, Father became the primary residential custodian of Children and Mother became entitled to visitation at the visitation center every other Saturday after Mother completed her parenting and domestic violence classes. Mother asserts that Father has been preventing Children from visiting with her. Father asserts that it is Children who are afraid and do not want to visit with Mother. Mother filed this Petition to Modify Custody Order on January 7, 2021. A trial on this matter was held on October 4, 2021. The Court interviewed Children on October 28, 2021.
Father resides in Wilmington, Delaware with his paramour, M ----- M -----, Children, and his other children, A---- and M ------ . Father is renting his home and has lived there for the last two years. Father is employed full time for a restaurant. In the home, Children share a room together. The home is located in a calm neighborhood, made up of many older people. Father contends that Children have become very comfortable after adjusting to living with him full time. Father and his paramour have been together for four years and he has no concerns about leaving Children with her, as she acts motherly toward them.
The parties previously held joint legal and shared physical custody of Children, which they had agreed to and that it was going fine until the police were called and Children were removed from Mother's care. Father alleges that the police were called to Mother's home in the middle of the night because Mother had hit Children. Maternal Grandmother then went to pick up Children in the middle of that night and Father became aware of the incident after Mother called him and said that she would call the police if her mother did not bring the Children back to her. Father had already retrieved Children from Maternal Grandmother at which time the Children told him that Mother had hit them with a belt and with flip flops when she would get upset and that they were scared of Mother. Father contends he attempted at that point to maintain the custody arrangement by bringing the Children to Mother's home, but they refused to get out of the car to go to Mother's home. Mother called the police and spoke with Father who informed them of the situation. Father was told that he could not force Children to go with their mother, so Father brought them back to his home. Mother later called Father and threatened that she would kill them and other things. About a month later, Mother showed up at Father's place with the police demanding to take custody of Children. The Children told the police they did not want to go, but the police told them they had to go as they had the shared custody arrangement. Father did eventually stop bringing the Children for the purported shared custody visitation, following these incidents. Father contends that he has been bringing Children every visit with Mother at the visitation center, but that when he picks them up, they are upset, angry and state that they do not want to go again.
Mother lives in Wilmington, Delaware and has lived in her current home for the past eight years. Mother is currently seeking to sell her home, and then will be relocating to an apartment elsewhere. Mother lives with her two other children, Y ------ S ------, born ---- -, 2004, and A ------ R ------, born ------- --, 2019. Mother is currently unemployed and is attempting to receive unemployment payments, but her case continues to be reviewed; she otherwise has no other source of income. Mother was last employed by a bank in March 2021. Mother has no physical limitations and is in good physical health. Mother has never been treated for any mental health concerns.
Modification of CustodyFor the sake of judicial economy, the Court will not repeat in detail all of the testimony it can obtain from the record, but it will note the salient testimony as it pertains to the required statutory analysis. Pursuant to 13 Del. C. § 729(b), in making a determination on a request to modify the legal custody and residential arrangements for a child set out in a prior order entered by the Court by consent of the parties, the Court must consider all relevant factors including those set forth in 13 Del. C. § 722. The Court has held that some factors may be given more weight than others in the Court's analysis.[1] The factors are as follows:
(1)The wishes of the children's parent or parents as to their custody and residential arrangements;
Mother is seeking joint legal and shared physical custody of Children. Mother seeks to return to the prior order of custody where the parties exchanged alternating weekly custodial care of Children.
Father is seeking primary custody of Children. Father contends he is open to Mother seeing the Children whenever she wants but seeks to have the Children remain living with him.
Therefore the Court finds this factor to be neutral as to residential placement, because the parties have taken opposing positions. The Court find this factor weighs in favor of joint legal custody, however.
(2)The wishes of the children as to their custodian(s) and residential arrangements; On October 28, 2021, the Court conducted an interview of both children independently and without the presence of either parent. J ------ indicated she likes the present arrangement as it is and likes only seeing Mother once or twice a month. J ------ indicated that she does not feel safe around Mother sometimes and would still be scared of Mother if their visits took place in the community. J ------ could not identify anything that could be done to make her feel less afraid of Mother. K---- --- expressed that she too is still scared of Mother and does not want to see Mother more than they already do. K ------- also could not identify anything that could be done to make her feel less afraid of Mother.
The Court finds this factor favors granting Father primary residential placement, but continuing visitation with Mother at the visitation center.
(3) The interaction and interrelationship of the children with their parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or person who may significantly affect the children's best interests;
In Mother's household is her other daughters Y ------ S ------ (DOB --/--/2004) and A ------ R ------ (DOB --/--/2019). Mother believes that she is a good mother. Mother stays on top of Children's academics and their health. Mother provides as much as she can for Children. When the Children stay at Mother's home, they share a room. Mother contends that she never made Children take care of her youngest child and especially did not make Children miss school to do so. Mother contends that while she was working, she relied on her eldest daughter, Y ------ to watch her baby, A ------ . There are also allegations of abuse against both children by Mother, detailed more specifically in section (7) below. With the current visitation with Mother, Father and Ms. M----- both report that Children indicate they do not want to go to visitation and Children are upset and angry after those visits.
Children have a very good relationship with Father and everyone in his household. In the home are Children, Father's other daughter M ------, and Father's son A----. Ms. M ----- contends that Children are very close with A---- and M ------ . Father stated Children get along well with M------, so much so that the Children always go check on her as soon as they wake up. Father stated Children get along well with A---- they often play and do homework together. Children and A--- - often follow each other around. All the children in the home eat together, watch tv together, and play together in their free time after school and after homework is done. Father also believes Child has a very strong bond with his parents as well. Father is involved in Children's education and attends to them. Within Father's home also reside Children's uncle and cousin, R ------ R---- (DOB --/--/1984) and A ------ R---- (DOB -/--/2006), who live in the third floor upstairs of Father's home separate from the remainder of the home, according to Children.
Children's Relationship with Father's Paramour, M ----- M -----
Ms. M ----- has been living with Children for roughly four years including when the custody arrangement was the alternating week schedule. Children and Ms. M ----- enjoy a good relationship. When the Children first met Ms. M -----, they were shy, afraid, and had a hard time communicating, but they have improved their relationship over time and now Ms. M ----- considers them to be closer and like her own daughters. Ms. M...
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