J- S v. G- I

JAMES G. MCGIFFIN, JR JUDGE

JAMES G. MCGIFFIN, JR JUDGE FINAL ORDER
PETITION FOR CUSTODY
IN THE INTERESTS OF:
G----- I------

DOB: XX/XX/XXXX

D---- I------

DOB: XX/XX/XXXX

Before the HONORABLE JAMES G. McGIFFIN JR., JUDGE of the Family Court of the State of Delaware:

The Court convened on a Petition for Custody and a Counterclaim for Custody, both filed in the interests of the parties' minor children, G----- I------, born on -------- -, ---- and D--- I------, born on ------- --, ----, by J----- S---- (Mother) and by G----- I------ (Father). Mother appeared represented by counsel, Melissa L. Dill. Father appeared represented by counsel, Edward Curley. The hearing was held on March X, 2018. The Court reserved decision. This Order is the Court's decision.

PROCEDURAL HISTORY

Mother filed this Petition for Custody on November 18, 2016. On December 5, 2016 Mother filed a Petition for Order of Protection From Abuse against Father, and on that date the Court entered an ex parte Order of Protection on her behalf. Father then filed a PFA petition against Mother on December 14, 2016. On December 20, 2016, the parties entered an Interim Consent Order on Visitation. On January 9, 2017, Father Answered the Petition for Custody and counterclaimed for custody simultaneously. On January 10, 2017, the Court held a hearing on the PFA petitions and entered a PFA order against each party. On February 3, 2017, Father moved for Contempt (referencing the PFA Order) against Mother. After a hearing on this motion on March 14, 2017, the Court held Mother in contempt of the PFA order.

Father sought a Review of Commissioner's Order, and after my review I accepted the Commissioner's order in whole.

Father moved this Court for a custody evaluation on May 31, 2017. I granted that application, allowed Father to select the evaluator, and required Father to pay the fee.

Mother filed an emergency Motion for Stay of Visitation on August 14, 2017. I stayed Father's visitation on an ex parte basis and held a hearing September 8, 2017. The evidence suggested that the female child disclosed inappropriate touching by a male person at Father's home, but the quantum of evidence adduced did not warrant Court intervention.

THE FACTS Mother's Case

Mother met Father when she went to work in his restaurant. They began dating. She moved into Father's home. She worked many hours at the restaurant until the couple had their first child, and then she stopped working regularly. While the family was intact, Mother provided most of the care for the children. Father was generally not available to provide care. On a rare occasion when she left the children in Father's care, Mother came home to find one child in a saturated diaper eating puzzle pieces.

Mother has a daughter from a previous relationship.

Mother is now seeking employment and living out of two homes, each owned by her parents. One home is in L----, Delaware and the other in H---------, Delaware. She is in drug therapy with a nurse practitioner to address her mental health issues. She is not presently in talk therapy, though she has benefited from talk therapy in the past.

Mother is relying upon her parents for much of her material support.

An incident took place on November 22-23, 2017, when Mother was working in the restaurant and Father was home with the children. This incident was a subject of the hearing on the cross-PFA petitions and the later Order on Review of a Commissioner's Order.

D----- S---- (Maternal Grandmother) testified about her observations and experience with Mother, Father and the children. During that period of time when Mother's visits with the children were supervised, Maternal Grandmother provided the supervision. She described Mother's activities with the children: Mother plays with them, they do crafts together. It was to her that the child disclosed an inappropriate touching that gave rise to the Motion for Stay of Visitation. She also testified that both children have indicated to her they fear Father. Maternal Grandmother once had an encounter with Father that frightened her, as well, when he aggressively confronted her at a visitation exchange about Mother's use of "drugs, cocaine."

Required by the PFA Order of January 10, 2017.

G--- S---- (Maternal Grandfather) also testified. He observed that Mother does well with the children.

Mother offered the testimony of M---- A-- D----, a long-time friend (best friend, apparently). Ms. D---- testified to a good deal of contact with Mother over the last year and before Mother began her employment at the restaurant, but little contact in the intervening time. Ms. D---- has children of her own, and they are playmates with Mother's children. This witness indicated that she was unaware that Mother ever used illegal drugs but she knew that Mother had mental health challenges. Ms. D---- expressed great confidence in Mother's parenting practices.

Father's Case

Father operates S------- P--- -- restaurant in D----, Delaware. His father started this restaurant. Father need not spend much time at the restaurant, as he has delegated operational authority and responsibility to others. For the short term he lives in D----, Delaware, but his plan is to relocate to G---------, Delaware, in northern N-- C----- County.

Father and Mother agreed to call themselves "husband" and "wife," although they did not marry. Father testified that she "promised" him that marriage was not important to her, and at trial he appeared offended or perhaps annoyed that she changed her mind on this question.

Father's preferred domestic arrangement typically benefits a monied party to the detriment of a party who enters the relationship without money, as the latter party has no claim for alimony or property division. 13 Del.C.§§ 1512, 1513.

Father testified about the November 22-23, 2017 incident at the restaurant. He spoke with Mother early in the evening, as she was in charge of the restaurant that evening while he was home with the children. Mother did not return to the home that evening. The next morning, Father went to the restaurant, with the children in his truck (and not properly restrained). He discovered Mother's car in the restaurant parking lot. He entered the restaurant and noted that it was in disarray. He did not see Mother. He called for emergency assistance. He then went to Mother's car and saw she was on the floor of the back seat.

When the police arrived they aroused Mother to consciousness and sent her to a hospital in an ambulance.

Father complained about Mother's substance use. He never witnessed Mother possess or use cocaine, but he has seen her smoke marijuana. He believes her to be emotionally unstable, deceitful and "verbally violent."

Mother's deceitfulness is a fact Father has asserted since the findings of the custody evaluation were published to the parties.

THE CUSTODY EVALUATION

Father retained a Delaware-licensed psychologist to perform a custody evaluation, as ordered by this Court. The evaluator tested both parents, observed and interviewed them, reviewed some of the court record (Motion for Custody Evaluation and Answer, Mother's PFA Petition, Father's Affidavit for Ex Parte Order and his Motion to Modify, Extend or Rescind the PFA, the PFA orders, the PFA hearing transcript, the Order on Review of Commissioner's Order, and Mother's Motion for Stay of Visitation), reviewed various medical and police records related to Mother, a letter from Child, Inc. about Father, a Private Investigator Report, birthday cards, observed each parent with the children, and interviewed collateral contacts.

S----- R---------, Ph.D.

Evaluator also indicated that he reviewed a Motion to Modify, extend, or Rescind a PFA Order dated 8/6/17, but no such document is in the Court's file.

The evaluator formed and reported clinical impressions of both parents and reported his conclusions and recommendations. He expressed "serious concerns about [Mother's] parental capacity" and recommended Father be the sole custodian of the children with Mother exercising supervised visitation, "until the issue of her drug use is clarified," and then visiting on alternating weekends and Wednesday evenings, with holidays and summer vacations consistent with the Family Court Guidelines.

I reject the evaluator's recommendations for three reasons.

First, this case involves a domestic abuser and a victim of that abuse. The relationship began with an imbalance of power and control. Father was Mother's employer and was significantly older than Mother, in the generation of her own parents. The PFA trial transcript includes Mother's testimony about Father's control of the family's money, of Mother's work schedule, and even of her attire. Yet the evaluator testified, "domestic violence is irrelevant to my evaluation of parenting." In his evaluation report and testimony, the evaluator all but ignored the substantive fact findings of this Court in the transcript of the original PFA hearing and in the Order on Review of Commissioner's Order. He disparaged the report and testimony of Dr. J----- Z------, a fellow psychologist involved in the PFA hearing, with whom the evaluator disagreed. He also dismissed, without explanation, Mother's suggestions that Father's actions contributed to her mental health challenges.

Studies have shown that custody evaluators often fail to recognize domestic violence in the cases they evaluate. See Ruth Leah Perrin, Overcoming Biased Views of Gender and Victimhood in Custody Evaluations When Domestic Violence is Alleged, 25 AM. U. J. GENDER & SO. POL'Y & L., 155 (2017); see also Daniel G. Saunders, et. al., Child Custody Evaluators' Beliefs About Domestic Abuse Allegations: Their Relationship to Evaluator Demographics, Background, Domestic Violence Knowledge and Custody-Visitation Recommendations, NATIONAL CRIMINAL JUSTICE REFERENCE SERVICE (Oct. 31, 2011), https://www.ncjrs.gov/pdffiles1/nij/grants/238891.pdf.

Second, the evaluator ultimately decided, unfairly, that Mother was not credible at any level on anything, and that judgment colored most of his observations about Mother as a parent. The evaluator's testimony indicated that he was very disturbed by the fact that Mother did not attend an appointment for testing with an associate and office mate of the evaluator and that, in his judgment, Mother lied about being present for the appointment. I accept as fact that the appointment was scheduled for Mother, that she did not appear at the appointed time, and that she insisted to the evaluator later that she was at his office and that no one else was there. But Mother demonstrated that she sent an email message to the evaluator's office manager indicating she was running late and may have been confused about the appointment date. Mother also testified that she arrived at the evaluator's office and no one was there. The evaluator confirmed that his office suite door is kept locked. And he never saw the email message Mother sent to the office manager. He made no suggestion that Mother's late arrival would be accommodated. The evaluator appeared to be personally offended by Mother's actions.

The evaluator was further disturbed by indications in Mother's medical record she missed several appointments with her nurse practitioner, seemingly contradicting Mother's claim she complied with her treatment program. My review of the medical record indicates that Mother made up most of the missed appointments. The evaluator either did not notice this fact or disregarded it.

The evaluator also found Mother's statements denying drug use made by Mother on November 23, 2017 to be conclusive of her deceitfulness in light of the positive tests for cocaine and marijuana performed on Mother that same day. Importantly, that same record describes Mother as "disorganized" in thought and coherency, "unable to focus," and experiencing "paranoid delusions." One reporter noted that Mother could not describe what substance she used or even if she used a substance. The next day, November 24, 2017, according to the medical record, Mother admitted cocaine use. On November 25, 2017 Mother both admitted and denied cocaine use.

I cannot understand why the evaluator latched on to some of the things Mother said while ignoring other things she said, unless he decided she is a liar and he needed no more information. I attach much less significance to statements Mother made while she recovered from an intense and traumatic delusional incident than does the evaluator.

The evaluator attached great significance to the fact that he told Mother to have her hair follicles tested for drugs in her system and, as of the hearing, he received no indication that Mother followed this instruction. The evaluator could not recall the date of this instruction. He guessed that he gave Mother this instruction at the end of December. Mother testified that the evaluator gave her no such instruction and when she learned, recently, that a hair follicle test was expected of her, she had one done. Mother introduced no evidence of the results of such a test. The evidence associated with this fact is insufficient for any finding.

Third, the evaluator applied a different standard to his evaluation of Father than the standard he applied to Mother. The facts available to the evaluator indicated that Mother had used marijuana casually and had used cocaine twice in her life, once during the November 22-23, 2017 incident at the restaurant, and once (by Mother's admission) while in high school. Father admitted to the evaluator he used marijuana and cocaine while in his twenties, thirties and forties. Notwithstanding Father's extensive history of substance use, the evaluator found that Mother's substance usage directly affected her parenting ability and had no comment about any impact of substance use on Father's parenting ability.

The evaluator's report is not helpful to the Court.

Best Interests of the Children

This Court determines the legal custody and residential arrangements for children based on the best interests of those children. Our statute directs that we consider all relevant factors including:

13 Del. C. § 722(a)

(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 or custodians 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.

Each parent seeks placement of the children. Mother asks the Court to award joint custody to the parties. Father seeks exclusive custody of the children. The Court received no direct evidence about the wishes of the children.

Mother presented persuasive evidence she has a positive and healthy relationship with the children. She has been engaged with them as their primary care giver for their entire lives. The children are very familiar with Maternal Grandmother, who assists in caring for them. The children also have a good relationship with Maternal Grandfather. Mother's child through a prior relationship also has an important relationship with the children, as that child spends time with both Mother and her own father.

Father testified that Mother had been "unstable" for the last three years, and he suspects she was using marijuana and cocaine (though he never saw her use cocaine). His suspicions did not move him to make sure he was home with the children more often or for more time, but they convinced him to limit the money he provided to Mother. Father's testimony was not credible.

Father has stepped up to provide care for the children since late November of last year. Though he has paid no cash support to Mother, he has provided clothing for the children. There was also unrebutted testimony he generally provided no holiday gifts to the children. His evidence indicated that the children have a good relationship with Paternal Grandfather, who lives in northern Delaware. Father testified that the children are now building relationships with paternal-side cousins living in northern Delaware and southeastern Pennsylvania. Father has another daughter, a half-sibling of these children, XX years old. Father has no relationship with this daughter because her mother "sabotaged" the relationship.

Factor 3 favors Mother's position. The children have historically done well while in Mother's care. Father has little history to support his claim.

The children are not yet school age. They have lived in the D ----, Delaware home formerly occupied by the entire family and now exclusively in Father's possession. When they are in Mother's care they have lived in the Maternal Grandparents' home in H---------, Delaware. Mother is relocating to a home in L----, Delaware (also owned by Maternal Grandparents) and Father plans to relocate to G---------, Delaware. This factor favors neither party's position.

Mother has mental health issues that require professional attention. She takes medication and is monitored by a nurse practitioner with Connections CSP. Mother acknowledges her need for talk therapy. Father and the children present no health issues. When Mother complies with treatment, this factor (Factor 5) is neutral. If Mother fails to comply with treatment, this factor would favor Father's position.

Factor 6 is based on the statute that indicates Father and Mother are equally charged with the children's support, care, nurture, welfare and education. The evidence established that Mother handled the children's medical appointments. Father participated in medical appointments early in the children's lives, but not in recent years. Father provided most of the financial support while the family was intact. Since the split, Mother has relied on Maternal Grandparents for support while she seeks employment. Father has provided no money to support the children when in Mother's care, but he has provided clothing, and since late December 2017 he has shared in the actual care responsibilities.

13 Del. C. § 701(a)

When Father took the children to his restaurant on the morning of November 23, 2017, after Mother did not return home from work, Father transported them in a pickup truck with no child safety seats. He testified that he tried to contact Maternal Grandmother to look after the children, but was unsuccessful in reaching her. Father believed this was an "emergency" situation, justifying the risk to the children. His testimony was not clear about whether he left home that morning, putting the child at risk of injury, because he wanted to check on Mother or on the restaurant. Mother used poor judgment in using substances that contributed to her decompensation on November 22, 2017, but that bad judgment was exercised when she did not have these children in her care. Father's exercise of bad judgment is alarming because he put the children at risk.

He testified that Mother had, "done this before," by which he meant she had previously stayed away from home all night.

Factor 6 favors Mother's petition, to a slight degree.

This family has an important domestic violence problem. This Court has previously decided that Father committed abuse against Mother in several ways. On December 3, 2016, during a dispute over the children and while the children were present, Father shoved Mother up against a car multiple times, causing injury to her that required medical attention. Father also suggested to Mother she "slit her wrists," again while a child was present. Father admitted throwing hot coffee on Mother in anger and that one child knew of Father's action. Father also threatened Mother he would confuse her for a burglar and "shoot" her. This Court also found considerable support in the testimony and report of Dr. J----- Z------ that Mother was the victim of a pattern of coercive control by Father.

I------ v. S----, File No. CK16-03072, May 18, 2017, p. 2.

Id.

Id. at 8.

Id. --------

Father has completed a treatment course designed of people who have committed acts of abuse, as required by the January 10, 2017 PFA order entered against him.

I note that Mother also committed abuse against Father, according to the Commissioner who ruled on the PFA petitions, by ripping Father's shirt during the altercation that caused Mother's injuries, and by "yelling and screaming." Mother was evaluated by the same service provider who treated Father. She did not need to take the course.

The great weight of the domestic violence evidence favors Mother's petition.

The final "best interests" factor is that of the criminal histories of the parties. Mother was convicted of shoplifting before these children were born. Both Mother and Father have many traffic and automobile related charges. The criminal histories of both parties are of no significance.

CONCLUSION

My analysis of the facts reveals that Best Interests factors 3, 6 and 7 favor Mother's Petition, none of the factors favors Father's Petition, and the remaining factors are neutral. Father's priorities have been business- and money-related. He has developed little experience and skill in parenting. He is inclined to act inappropriately, and sometimes violently, when angry. He needs to be in control and does not share control well. These qualities weigh in favor of vesting Mother with decision authority.

I award custody of G------ and D--- to Mother and direct that the children are placed with Mother. This placement contemplates that in approximately one-year Father and Mother will live at opposite ends of Delaware and the children will begin their school careers.

Father will visit every other weekend, from Friday at 6:00 PM to Sunday at 6:00 PM. Visitation exchange will take place at a site selected by agreement of the parties near C-------, Delaware.

Each parent will refrain from any intoxicant 24 hours before and during the time for which that parent is responsible for the care of the children.

The parties will communicate in writing, including text messages and email messages, unless they agree, in writing, to other types of communication.

Mother shall enroll in talk therapy with a licensed provider and participate in that therapy until discharged as successful.

This general contact/visitation schedule is subject to the specific guidelines below.

CONTACT/VISITATION GUIDELINES

1. Holidays: Father shall have the children 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 children 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 holidaysFourth of JulyChristmas Day	Memorial DayLabor DayThanksgiving DayChristmas Eve

Except for 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 with 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 children 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. 4. Summer Vacation: 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 her weeks first in odd numbered years and Father shall select his 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 children for the week shall be responsible for taking the children to their extra curricular activities, summer school, and providing summer care for that week. 5. Late pick-up: Both parents shall have the children ready for pick-up at the start of all contact periods. The children 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 children early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to the children must be present when the children are 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. 8. Medical treatment and emergencies: If the children become seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the children become 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 children while the children are 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 children 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 children 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 all of the school assignments and books to the other parent. Summer school which is necessary for a child(ren) must be attended; regardless of which parent has the child(ren) during the summer school period. 12. Extracurricular activities: Regardless of where the children are living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom the children are 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 children's school, travel time to school or extracurricular activities or otherwise may adversely affect the children'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. Modification: The parties may agree to modify the terms of this Order in writing.

IT IS SO ORDERED this 16^th day of APRIL, A.D. 2018.

/s/ _________

JAMES G. MCGIFFIN
, JR., JUDGE JGM/dea cc: Melissa L. Dill

Edward Curley

J---- S

G----- I------ Date mailed: __________