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In re Walters

Family Court of Delaware, New Castle

April 1, 2014

RE: Alan S. Walters
v.
Tami R. Humphries [*]

Sean M. Lynn, Esq., Dover, Delaware.

Jennifer Hartnett, Esq., Hockessin, Delaware.

LETTER, DECISION AND ORDER

ROBERT BURTON COONIN, JUDGE.

Petition for Modification of Custody; Petitions for Modification of Visitation

Before the Court is a Petition for Modification of Custody filed on September 3, 2013 by Alan Walters (hereinafter " Father" ),

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represented by Sean M. Lynn, Esquire, with regard the parties' minor child James Walters (d.o.b. 8/24/2009) (hereinafter referred to as " Child" ). On September 27, 2013 Tami Humphries (hereinafter " Mother" ), represented by Jennifer Hartnett, Esquire, filed an Answer to the Petition for Modification of Custody. Also pending before the Court are two Motions for Modification of Visitation. Mother filed a Petition to Modify Visitation on September 19, 2012. Father filed an Answer to Mother's Motion on October 18, 2012. Father also filed a Petition for Modification of Visitation on October 18, 2012 and then filed an Amended Petition for Modification of Visitation on December 3, 2012.

Procedural History

The parties entered into a Consent Order of Custody and Visitation on or about June 30, 2010. Mother filed a Petition for Modification of Visitation on September 19, 2012. Mother requested Father be granted visitation every other weekend from Saturday at 6 p.m. until Monday morning. Mother also requested that Father have visitation with Child every Wednesday after school until 6:30 p.m. On October 18, 2012, Father filed an Answer to the Motion for Modification of Visitation stating that he did not agree with the visitation schedule requested by Mother. Father filed his own Petition for Modification of Visitation on October 18, 2012. Father requested visitation with Child Monday afternoon through Wednesday morning as well as every other weekend from Saturday at 8 p.m. until Monday morning.

On November 1, 2012, Father filed a Petition for Modification of Custody wherein Father requested sole legal custody of Child as well as primary residential placement. On November 19, 2012, Father filed a Motion to Consolidate both parties' pending Petitions for Modification of Visitation with Father's Petition for Modification of Custody. On December 3, 2012, Father filed an Amended Petition for Modification of Visitation in which he requested sole legal custody of Child as well as primary residential placement. On January 4, 2013 the Court granted Father's Motion to Consolidate and scheduled the parties for mediation on January 14, 2013.

The parties appeared before the Court on February 21, 2013 and agreed that the parties would share joint custody of Child and Mother would retain primary residency; however, the parties were unable to agree to a visitation schedule. The Court entered an Order on January 25, 2013 granting Mother and Father joint legal custody of Child with primary residence with Mother. The parties were to continue an interim visitation schedule under which Father was to have visitation with Child every other weekend from Friday at 7:30 p.m. until Sunday at 6 p.m. and every Wednesday evening from 5:00 p.m. until 7:30 p.m. A hearing on the issue of visitation was scheduled for May 2, 2013.

The parties appeared before the Court on May 2, 2013 and Father advised that he wished to withdraw his consent to joint custody and reopen the matter for consideration. The Court advised Father that the matter had been resolved by order dated February 21, 2013 and the matter would not be relitigated in the proceeding. The parties represented to the Court that they had been unable to reach an agreement with regard to visitation but stated the interim schedule was acceptable during the school year until the matter could be resolved at a full hearing. The parties also agreed that during the summer Father was to have visitation every other week from Friday at 7:30 p.m. until Sunday at 6:00 p.m. in addition to every Tuesday from 3:00 p.m. to 7:30 p.m. However,

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the parties were unable to agree upon extended summer vacation visitation. By Order dated May 6, 2013 the Court ordered custody of Child would remain vested jointly with Mother and Father and with primary residence to be with Mother. Father was to have summer visitation as agreed by the parties and he was to have two one week visitation periods to be scheduled on weeks between those during which Father was entitled to Monday and Tuesday visitation. A hearing on the issue of future summer visitation was scheduled for September 9, 2013.

On September 3, 2013 Father filed a Petition for Modification of Custody requesting sole custody and primary residential placement with Father on the grounds that Mother had relocated with Child to Maryland without Father's consent. Father also filed a Motion to Consolidate the parties' Petitions for Modification of Visitation with Father's Motion for Modification of Custody. On September 9, 2013, Mother filed an Answer to the Motion to Consolidate requesting the Motion be denied on the grounds that Mother had insufficient time to address the new issues raised in the Petition for Modification of Custody prior to the scheduled hearing. On September 16, 2013 the Court entered a Scheduling Order consolidating the issue of visitation with the modification of custody and scheduled a hearing. The Court granted Father visitation every Tuesday from 3:40 p.m. until 6:00 p.m. and every other weekend from Friday at 7:30 p.m. until Sunday at 6:00 p.m. with pick-up and drop-off at the Middletown, Delaware Wawa store. On September 27, 2013, Wife filed a Response to Father's Petition for Modification of Custody requesting that the modification be denied.

On October 22, 2013, Father filed Motion for Discovery and Request for Production of Documents. On October 30, 2013, Mother filed an Answer to the Motion for Discovery requesting the Court deny Father's Motion for Discovery. On November 14, 2013, the Court entered an Order Permitting Discovery which limited the number of interrogatories that could be served by either party. On January 21, 2014, Mother filed an Emergency Motion for a Protective Order regarding the taking of a third party deposition to which Father filed a response on January 24, 2014. The Court held a teleconference on March 18, 2014 and Father agreed that the case could go forward without the deposition. The Court held a full hearing on the merits on February 21, 2014 and March 14, 2014.

Discussion

For the sake of judicial economy, the Court will not repeat in detail all of the testimony that can be obtained from the record, but will note the salient testimony as it pertains to the required statutory analysis. This Court has not previously entered a final Order on the custodial, residential, and visitation arrangements for the Child except by agreement of the parties. Therefore, the Court must consider the best interests of the child together with an analysis of the factors under 13 Del. C. § 722. They are as follows:

Best Interest Factors

(1) The wishes of the child's parent or parents as to her custody and residential arrangements;

Currently, the parties share joint legal custody of the Child with primary residential placement with Mother. Father has visitation with Child every Tuesday from 3:40 p.m. until 6:00 p.m. and every other weekend from Friday at 7:30 p.m. until Sunday at 6:00 p.m. Father is seeking sole legal custody and primary residential placement in his home. Father believes

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that it is in Child's best interest to reside with Father because Father can provide a stable living environment for Child.

Father contends that Mother's living environment is unstable as she and her husband, Maxwell Marsh, have a history of break-ups and domestic violence. On January 15, 2014 there was an incident between Mr. Marsh and Mother in their Maryland home after which Mr. Marsh was arrested and is currently facing criminal charges. Mother also sought a Protection from Abuse Order against Mr. Marsh after the incident occurred. Father introduced an email sent to him by Mother in which Mother claimed that she sought a PFA because Mr. Marsh had physically held her against her will and attacked her physically and that Mr. Marsh had threatened to hurt her again.[1] Mother testified on the day following the incident Mr. Marsh returned to his and Mother's home and " turfed" the yard. Father claims at the time of the second incident Child was in the home and recounted that the incident was horrible to his step-sister Kylie.[2] However, both Mother and Mr. Marsh deny the Child was in the home at the time the incident occurred.

Father testified that there were other incidents of domestic discord between Mother and Mr. Marsh which resulted in Mother moving Child on multiple occasions. Mother lived with Mr. Marsh at 202 Beetle Road in Wilmington until the couple ended their relationship due to an argument. Father asserted that Mother moved into her mother's home at 400 North Dunkin Street in Wilmington. Mother and Mr. Marsh then reconciled and Mother returned with Child to the marital home. After the altercation between Mother and Mr. Marsh on January 15, 2014 Mother once again moved out of the home and into a home in New Castle, Delaware.

Father has concerns about the effect the numerous moves are having on the Child and the environments which Mother is subjecting Child to in these homes. Father testified that he was extremely concerned when Mother moved in with Child's maternal grandmother because Mother's family has serious issues. Father claimed that maternal grandmother and Mother's siblings have all been in and out of jail and have drug dependency and domestic violence issues. Mother's husband, Mr. Marsh, confirmed that when he and Mother were living together he had taken affirmative steps to keep Child away from Mother's family because of their numerous issues including incarceration and drug use. While Father indicated that he believes Mother's home in New Castle is appropriate, she is residing with a woman he does not know, and Mother does not have any type of lease that grants her a legal right to remain in the home. Mother did not call as a witness the individual in whose home she resides.

Father also alleges that Mother was abusing prescription medications during their relationship and believes she continues to do so. Mother has been in several motor vehicle accidents and has health issues for which she has been prescribed pain medications. Father contends, however, that he has seen Mother take too much of the medication on several occasions and become unaware of her surroundings. Father also asserts that when Mother does not have her medication she becomes extremely volatile. Mother's husband, Mr. Marsh, testified that when Mother has her pills she is at her best and when she does not have her pills she is at

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her worst. Mr. Marsh denied Mother had a drug problem; however, he made several statements to Father's wife through Facebook messaging such as: " I never had drama before. When her pills run low then it starts" and " I have to manage her pills." [3]

Father claims that in addition to her prescription medication, Mother often takes several medications which she is not prescribed and often mixes medications. Father testified that while the parties were in a relationship he often observed Mother and her family members sharing medications as a part of a " drug exchange." Father claims that Mother and her family members would discuss who had what pills and how they were going to get different prescription medications. Father worries about Mother's drug use around Child because when she is using she is unaware of her surrounding and has severe mood swings.

Mother denies having a drug problem or that she has ever sold any of her prescription medication. Mother stated she would never sell her own medication because she needs the medication which she is prescribed. Father recounted an incident where a man came to the door of their former home and Mother went upstairs and then returned an exchanged something with the man and Father believed this to be a drug exchange. Mother, however, claimed that the man who came to the door was a retired construction worker who was building a deck on the home and had come to the home to get money for building supplies.

Father also claims that Mother is behaving inappropriately at custody exchanges in front of Child and this is having a negative impact on Child. Father testified on several occasions Mother had become very upset during the exchanges and began berating him and shouting profanities at Father in Child's presence. Father introduced two recording of custody exchanges occurring January 26, 2012 [4] and January 29, 2013 [5] in which Mother can be heard shouting expletives and becoming increasingly irate and hostile toward Father. Father also introduced a recording of a custody exchange on July 13, 2013 [6] in which the Child can be heard asking Mother to " stop being mean to my daddy."

Mother admits that she did act inappropriately during one custody exchange as she had just found out Father was in a new romantic relationship with his current wife and was very upset. Mother testified that she had never acted inappropriately in front of her Child before and after doing so immediately called Father and asked if she could meet with him and Child in order to apologize. Mother stated that she never wanted Child to see her in that light or think that she feels that way about Father. Father admitted that Mother did apologize after this incident. Mother claimed on another occasion in which she got into a heated discussion with Father and his wife during an exchange she asked Child to go into the house so he did not witness the ...


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