J R v. J O

Decision Date09 November 2020
Docket NumberFile No. CN20-01207,Case No. 20-10495
PartiesJ R - , Petitioner, v. J O , Respondent.
CourtFamily Court of Delaware

ORDER ON AMENDED PETITION FOR CUSTODY

John A. Macconi, Jr., Esquire, 900 Philadelphia Pike, Suite B, Wilmington, Delaware 19809, Attorney for Mother

J O , self-represented,

ARRINGTON, Judge.

On November 2, 2020, the Court conducted a hearing on the Petition for Custody in the interest of T O (born / /2016) ("Child"). Petitioner J R - H ("Mother"), represented by John A. Macconi, Jr., Esquire, and Respondent J O ("Father"), self-represented, participated in the hearing.

The testimony of the parties indicates that they both care deeply for the Child and have provided for the Child in their own ways. This Child is fortunate to have two parents who care for him.

Based upon the evidence presented, the Court's decision is as follows.

PROCEDURAL HISTORY

On May 15, 2020, Mother filed a Petition for Custody.1 In the Petition, Mother alleged that the Child has primarily resided with her since the parties legally separated in June 2019. Mother asserted that, pursuant to 13 Del.C. § 722 and controlling case law, she should be awarded sole custody and primary residential placement.

On August 13, 2020, Father was served by publication. On September 10, 2020, Father filed an Answer to the Petition.2 In the Answer, Father opposed Mother's request for sole custody and asserted that he has been a present parent in the Child'slife since birth, takes the Child to preschool every morning, and provides health insurance for the Child. Father requested shared custody and shared residential placement.

On September 17, 2020, Mother filed an Amended Petition for Custody.3 Mother's amendments to the original Petition added allegations that Mother has "almost exclusively cared for the child, in terms of decision-making, in the areas of decisions regarding medical and academic, among others." Mother further alleged that she has difficulties communicating with Father.

On September 28, 2020, Father was served with the Amended Petition. On October 12, 2020, Father filed an Answer to the Amended Petition.4 In the Answer, Father commented on the eight custody factors and provided text messages representing communication between the parties.

On November 2, 2020, the Court held the final hearing on the Petition for Custody.

JURISDICTION

The petition was filed on May 15, 2020. Child had resided in Delaware since birth.5 Both parents continue to reside in New Castle County, Delaware. Delawarehas jurisdiction to make an initial child custody determination as Delaware is the home state of Child.6

TESTIMONY OF THE PARTIES

The parties testified at trial. Neither parent presented any non-party witnesses. Facts presented at trial that had no significant impact on the custody decision were considered nonetheless by the Court. The facts listed below are limited to those which are relevant to a custody proceeding and to this case in particular.

Mother's Testimony

Mother is thirty-six years old and works as a Nurse Anesthesiologist for Nemours. Mother works three days a week, ten hours each day. Mother's scheduled working days change each week. Additionally, Mother works approximately one day per month at an endocrinology center. Mother's current salary is approximately $100,000 per year.

Mother lives in a townhouse with three bedrooms. Child has his own room at Mother's house. Child has lived in Mother's house for his entire life.

Mother reported that Child is a "loveable four year old." Child loves both parents and enjoys spending time with both sides of his family. Child is well-rounded and excels in his preschool. Mother and Child spend time together in activities such as visiting museums and going to Sesame Place.

Mother testified that Child shares a close relationship with Maternal Grandparents, Maternal Uncle, and Mother's best friend and her child. All of these individuals live close to Mother. Maternal Grandparents transport Child to preschool every day that Mother has Child and Mother is working.

Child has Reactive Airway Disease which has been further diagnosed as Asthma. Prior to Mother's and Father's separation, the Child was very ill multiple times. Since the separation, the Child has been hospitalized once and was sick four times. Child is prescribed multiple inhalers and allergy medication. Child has begun to attend routine doctor's visits which Mother attends.

Mother has concerns for some of the behaviors that Child exhibits after returning from visits with Father. Mother testified that Child has urinated on himself multiple times at preschool and has shown anger towards Mother. Mother stated that Child has told her that he "hates her" and that he "wants to spend more time with [his] brothers" who live with Father on alternate weekends.

Mother reported that Child returned to her home on one occasion with new shoes and complained that his feet hurt. When Mother took off the Child's shoes, Mother said his feet were covered in blisters. Mother testified that Child does notalways attend preschool for the full five days per week because Father will often not take him on Fridays.

Initially after their separation, Mother and Father communicated well with each other. Mother feels that things began to change in December 2019, when Father went on vacation and did not call Child on Christmas Day. Mother testified that communication between Mother and Father is now infrequent and Mother is always the initiator. Mother testified that Father never makes decisions and instead leaves it up to Mother. According to Mother, Father does not try to contact Child when he is with Mother.

Since April or May 2020, Mother and Father have been utilizing a visitation schedule where Father has the Child every other Thursday after preschool until Monday morning. Sometimes Father requests to have Child longer, which Mother often allows but when the Child returns to Mother he misses his brother.

Father does not provide Mother with any court-ordered child support, but he does pay half of Child's preschool costs. Mother stated that there have been times that the preschool called because Father has not yet paid his portion. Mother once had to advance Father's portion which Father reimbursed to Mother. Both Mother and Father cover Child for health insurance. Father has occasionally purchased shoes and clothing for the Child.

Mother no longer allows Father at her house due to an alleged incident of domestic violence in July 2020. Mother testified that she asked Father to retrieve his things from her house and, as he was getting into his car to leave, Father pushed Mother. Child did not witness the incident. Mother testified that Father and Mother "fought often" when they were together and that the arguments would get "very heated."

Mother seeks sole custody and primary residential placement of Child as she is the primary caretaker for Child and is the parent that makes all of the decisions regarding Child. Mother requests that the exchanges of the Child between Mother and Father occur at the Child's preschool or, in the instance that the preschool is closed, at a specified location.

Father's Testimony

Father is thirty-five years old and works as a Building Engineer for ISS Facility Services. Father works four days a week, ten hours per day. Father works every Sunday through Wednesday. Father's testified that his current salary is between $50,000 to $60,000 per year.

Father lives in a two bedroom house. Child shares a room with his ten year old brother at Father's house. Father described Child as a "happy kid" when Child is with Father. On weekends when Father has Child, Father takes Child to his hometown of York, Pennsylvania to visit with Father's ten year old son and hisbrothers. Child gets along well with his brother, his brother's siblings, and his brother's mother. On Sundays Paternal Grandmother, who also lives in York, Pennsylvania, watches Child when Father has to work. Child is very close with Paternal Grandmother.

Child spends a lot of time with Paternal Aunt, Paternal Uncle, Paternal Grandfather, and Paternal Grandmother's boyfriend during Father's custodial time. Father testified that Child has an excellent relationship with each of these family members.

Father denied speaking negatively about Mother in front of Child. Father testified that Mother is a "great mother." Father agreed that communication with Mother has deteriorated since their divorce but stated that he does not have an issue with Mother. According to Father, it is Mother that chooses not to speak to Father.

Father denied Mother's claims of domestic violence. Father agreed that he used to get in very heated arguments with Mother, but stated that he has never put his hands on Mother. Father's version of the incident is that Father came to Mother's home to get his belongings but there were more items than could fit in his car. Consequently, Father had to return with a U-Haul truck for the items that were too large for his vehicle. According to Father, Mother attempted to put these large items in Father's car, and Father put his arm out to stop her from being able to do so. Father admitted that he was wrong for putting his arm out, but testified that hedid not lay his hands on Mother. Mother did not call the police or file for a protective order.

Father believes that he is a good father and works hard. Father acknowledged that he did not call Child on Christmas Day in 2019, but explained that he did not do so because he had celebrated Christmas with Child and Father's family the week prior to the official holiday. Father stated that he came to see Child every day that he was in the hospital.

Father argued that Child did not tell Father that the shoes that Father purchased for Child were hurting his feet until Child had been wearing them for several weeks. Additionally, Father testified that Mother sent Child back to F...

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