Irwin v. Shelby

IN THE SUPREME COURT OF THE STATE OF DELAWARE
GARRETT IRWIN, §
§ No. 235, 2018
Respondent Below, §
Appellant, § Court Below: Family Court
§ of the State of Delaware
v. §
§ File No. CK16-03072
JENNY SHELBY, § Petition No. 16-37170
§
Petitioner Below, §
Appellee. §
Submitted: March 6, 2019
Decided: May 6, 2019
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en Banc.
Upon appeal from the Family Court. AFFIRMED.
Leslie B. Spoltore, Esquire, Oberymayer Maxwell Rebmann & Hippel LLP,
Wilmington, Delaware, for Appellant, Garrett Irwin.
Melissa L. Dill, Esquire, Liguori & Morris, Dover, Delaware, for Appellee, Jenny
Shelby.
VAUGHN, Justice, for the Majority:
I. INTRODUCTION
The appellant, Garrett Irwin (the father), appeals from a Family Court order
granting the appellee, Jenny Shelby (the mother), 1 sole custody and primary
residential placement of their two children. 2 The father makes two claims on
appeal. First, he contends that the Family Court abused its discretion by siding with
the mother’s treating psychologist instead of relying on the expert requested by the
father. Second, he contends that the Family Court’s order granting sole custody and
primary placement to the mother was against the weight of the evidence and an abuse
of discretion. According to the father, the court drew all inferences in the mother’s
favor, minimized her mental health and substance abuse issues while giving undue
weight to the father’s dated history of drug use, ignored the mother’s role in their
physical altercations, and was generally biased against the father.
The father expresses concern that the Family Court judge was biased in favor
of the mother. One view of the record is that the Family Court judge came to the
custody dispute predisposed against the father and approached the remainder of the
proceedings with a closed mind. But, another view of the record is the Family Court
undertook the proper legal analysis, and the factual findings it made in this difficult
case with conflicting testimony—not unlike most cases coming before the Family
1
A pseudonym was assigned to each party on appeal pursuant to Supr. Ct. R. 7(d).
2
See Appellant’s Opening Br. Ex. A [hereinafter Custody Order].
1
Court—are entitled to deference on appeal. Although we might have weighed the
evidence differently and come to a different conclusion, we find that the Family
Court’s factual determinations have support in the record, and thus affirm its
judgment.
II. FACTS AND PROCEDURAL HISTORY
The mother and the father first met in 2012 when she went to work in his
restaurant in Dover. Sometime thereafter, they started dating, and eventually, the
mother moved into the father’s house in Dover. During their relationship, they
agreed to call themselves “husband” and “wife,” but they did not marry. The
mother worked many hours at the restaurant until the couple had their first child on
November 2, 2013. She then stopped working regularly. The couple had their
second child on January 25, 2015. The mother has another minor child (age eight)
from a previous relationship, and the father has an adult child with whom he has no
relationship. The father is twenty-six years older than the mother.3
While the family was intact, the mother was primarily a stay-at-home mother
and provided most of the children’s daily care, including taking them to medical and
dental appointments. The father, the primary financial provider, was involved in
the children’s care to varying degrees.
3
At the time of the custody hearing, the mother was thirty-four years old and the father was sixty
years old.
2
The parties’ relationship began to deteriorate, with arguments that sometimes
resulted in physical altercations. On November 18, 2016, the mother filed the
petition for custody that is now at issue in this appeal.
An incident occurred on November 22-23, 2016 (the “Restaurant Incident”).4
The mother was working at the father’s restaurant on the night of November 22, and
the father was home with the children. The mother did not return home that
evening. The next morning, the father went to the restaurant with the children, who
were not properly restrained in child seats, in his truck. He discovered the mother’s
car in the restaurant parking lot. He entered the restaurant and saw that it was in
disarray, but he did not see the mother. He called for emergency assistance. He
then went to the mother’s car and saw that she was passed out on the floor of the
back seat. When the police arrived, they roused her to consciousness and sent her
to a hospital in an ambulance.
As a result of this incident, the mother was hospitalized initially for “acute
intoxication or withdrawal.” 5 During the admission process, in response to
questions, she admitted to occasional marijuana use and alcohol consumption but
denied any further (non-prescription) drug use. While at the hospital, the mother
4
App. to Opening Br. at A871; see also Custody Order at 3-4 (discussing the incident but
erroneously noting that it occurred in 2017).
5
App. to Opening Br. at A221.
3
tested positive for Amphetamine, Cocaine, and THC. 6 She was ultimately
transferred to, and remained at, Dover Behavioral Health for ten days to receive
inpatient treatment for mental health problems. After release, she continued
outpatient treatment.
As part of her treatment, she was evaluated by Dr. Joseph Zingaro, a
psychologist, who found that “[s]he presented as someone who is typical for a victim
of domestic violence.”7 Specifically, he said she was a victim of “coercive control,
which means that it has happened over a fairly long period of time. And she’s afraid
of the individual, the perpetrator.”8
On December 3, 2016, the day after the mother was released from Dover
Behavioral Health, she (along with the maternal grandmother) went unannounced to
the father’s residence to retrieve the children, who had remained with the father
during the mother’s hospitalization. An altercation ensued, resulting in physical
contact between the parties and the father’s shirt being ripped. The father called
911, and when the police officer arrived he advised the mother to go to the Family
Court to handle the custody dispute, and he let the father keep the children.
As a result of this altercation, the parties each sought a protection from abuse
(“PFA”) order from the Family Court. On December 5, 2016, the mother filed both
6
She was prescribed Adderall, an amphetamine, and had taken it that day.
7
App. to Opening Br. at A511.
8
Id.
4
an emergency petition for an ex parte PFA order and a petition for a PFA order, each
against the father. On that date, a Family Court Commissioner entered an ex parte
PFA order on her behalf, which included a provision that the parties would have
joint custody of the children with residential placement with the mother. Later that
same day, the father returned9 to the Family Court and filed an emergency petition
for an ex parte PFA order against the mother and a motion to rescind the mother’s
ex parte PFA order, in which he requested custody of the children. He informed
the same Commissioner about the mother’s substance abuse, recent hospitalization,
and the events on December 3. As a result, the Commissioner amended the
mother’s ex parte PFA order to give the parties joint custody with the father having
residential placement. The father then filed a PFA petition against the mother on
December 14, 2016.
On December 20, 2016, the parties entered into an interim consent order on
visitation. On January 9, 2017, the father answered the mother’s petition for
custody and counterclaimed for custody.
A hearing on the PFA petitions was held on January 10, 2017, and another
Commissioner entered PFA orders against each party, finding that both parties had
9
Coincidentally, the father had appeared at the Family Court at the same time as the mother to
file a PFA petition against her. The children were with the father, but the mother had contact with
one of them. A security guard intervened and gave the child back to the father. At that time, the
father left the court to avoid further confrontation.
5
committed acts of physical abuse during the December 3 incident. Both orders gave
the parents temporary joint custody with shared residential placement. The shared
residential placement was to rotate on a “2-2-3 schedule,” beginning with the mother
the next day, January 11.10 The orders further specified that the mother’s time with
the children was to be supervised by the children’s maternal grandmother unless the
mother’s therapist recommended otherwise. The maternal grandmother was to
supervise the exchanges until the parties set up exchanges at the Dover Visitation
Center. These orders also required the father to participate in domestic violence
counseling and the mother to participate in domestic violence therapy.
The father sought review of the Commissioner’s PFA order. The Family
Court judge reviewed the order and approved and accepted it in full. Although the
mother did not request a review of the PFA order entered against her, the Family
Court judge, while recognizing that his review was limited to the PFA order against
the father, noted in his order on review that he was “compelled to mention that [his]
reading of the transcript le[ft him] unpersuaded that the evidence to support [the
father’s] petition justifie[d] a finding that [the mother’s] actions [met] a definition
of abuse.”11
10
App. to Opening Br. at A33, A38.
11
Id. at A94.
6
On May 31, 2017, the father moved for a custody evaluation to be performed
by Dr. Romirowsky, which the court granted.12 Dr. Romirowsky interviewed and
met with each parent separately on multiple occasions, observed them with the
children, reviewed court and health records, and conducted collateral interviews.
He then prepared a report and recommendation that was admitted into evidence at
the custody hearing.
On March 6, 2018, the Family Court held a custody hearing. At the hearing,
the court heard testimony from both parents, Dr. Romirowsky, the maternal
grandparents, and a friend of the mother’s. The court also considered the record
from the PFA hearing, which included testimony and a report from the mother’s
treating physician, Dr. Zingaro, concluding that the mother was a victim of domestic
violence because of the father’s controlling behavior.
Following the hearing, on April 16, 2018, the court issued an order granting
the mother sole legal custody and primary residential placement—a result neither
party requested. The mother had sought primary residential placement with the
parents having joint custody of the children. The father, on the other hand, sought
sole custody and primary residential placement, at least until the mother’s drug use
issues were resolved.
12
Id. at A96-98 (Motion for Custody Evaluation) (requesting a custody evaluation by Dr.
Romirowsky); id. at A3 (granting motion).
7
In its order, the court ultimately found that it was in the best interests of the
children for the mother to have sole custody and decision-making authority. Before
analyzing the best interests of the children, however, the court rejected the
recommendation of Dr. Romirowsky’s custody evaluation, which recommended that
the father be granted sole legal custody of the children with the mother exercising
supervised visitation “until the issue of her drug use is clarified.” 13 The court
rejected the recommendation for three reasons.
First, the court determined that Dr. Romirowsky improperly ignored the fact
that this case involved domestic abuse and a victim of that abuse because Dr.
Romirowsky testified that “domestic violence [was] irrelevant to [his] evaluation.”14
The court explained that “[i]n his evaluation report and testimony, [he] 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.”15 The court
continued, “[h]e disparaged the report and testimony of Dr. Joseph Zingaro, a fellow
psychologist involved in the PFA hearing, with whom [he] disagreed. He also
dismissed, without explanation, Mother’s suggestions that Father’s actions
contributed to her mental health challenges.”16
13
Id. at A151.
14
Custody Order at 6.
15
Id.
16
Id.
8
Second, the court determined that Dr. Romirowsky “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.” 17 According to the court, Dr.
Romirowsky’s testimony “indicated that he was very disturbed by the fact that
Mother did not attend an appointment for testing [at his office] and that, in his
judgment, Mother lied about being present for the appointment.”18 The court then
discussed discrepancies in the testimony regarding this 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 [Dr. Romirowsky] later that she was at
his office and that no one else was there. But Mother
demonstrated that she sent an email message to [Dr.
Romirowsky’s] office manager indicating she was running
late and may have been confused about the appointment
date. Mother also testified that she arrived at [his] office
and no one was there. [Dr. Romirowsky] 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. [He] appeared to be personally offended
by Mother’s actions.19
The court also discussed and dismissed Dr. Romirowsky’s other reasons for
discrediting the mother. Although Dr. Romirowsky “was further disturbed by
indications in Mother’s medical record [that] she missed several appointments with
17
Id.
18
Id.
19
Id. at 6-7.
9
her nurse practitioner, seemingly contradicting Mother’s claim she complied with
her treatment program,” the court reviewed the medical record and found that
“Mother made up most of the missed appointments.”20 The court noted that Dr.
Romirowsky “either did not notice this fact or disregarded it.”21 According to the
court, Dr. Romirowsky “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.”22
The court, however, attached “much less significance to the statements Mother made
while she recovered from an intense and traumatic delusional incident than d[id Dr.
Romirowsky]” because the medical reports indicated that she was “unable to focus”
and was experiencing “paranoid delusions.”23 The court explained that it did not
understand why Dr. Romirowsky “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.”24
The court noted that Dr. Romirowsky “attached great significance to the fact
that he told Mother to have her hair follicles tested for drugs in her system and, as
20
Id. at 7.
21
Id.
22
Id. The court must have been referring to the statements the mother made at the hospital the
morning after the Restaurant Incident, which actually occurred on that date in 2016, not 2017.
See App. to Opening Br. at A160.
23
Custody Order at 7.
24
Id.
10
of the hearing, he received no indication that Mother followed this instruction.”25
In dismissing this reason for not trusting the mother, the court explained that Dr.
Romirowsky “could not recall the date of this instruction” and “guessed that he gave
Mother this instruction at the end of December.” 26 The mother, however, testified
that Dr. Romirowsky “gave her no such instruction and when she learned, recently,
that a hair follicle test was expected of her, she had one done.”27 But because the
mother did not introduce any evidence of the results of this test, the court concluded
that “[t]he evidence associated with this fact is insufficient for any finding.”28
Third, the court found that Dr. Romirowsky “applied a different standard to
his evaluation of Father than the standard he applied to Mother.”29 According to
the court, “[t]he facts available to [Dr. Romirowsky] 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.”30 Regarding the father, the court noted that he had admitted to Dr.
Romirowsky that “he used marijuana and cocaine while in his twenties, thirties and
forties.”31 Thus, the court found that Dr. Romirowsky applied a different standard
25
Id.
26
Id.
27
Id. at 8.
28
Id.
29
Id.
30
Id. Again, the court incorrectly referred to the Restaurant Incident as occurring in 2017.
31
Id. Dr. Romirowsky’s report actually describes substance abuse occurring during the father’s
“teens, twenties, and thirties.” Id.
11
to the mother because he “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.”32 Ultimately, the court found that Dr. Romirowsky’s report was
“not helpful.”33
The court then analyzed the best interests of the children as required by 13
Del. C. § 722(a). Although the court discussed all eight statutory factors, factors
(1), (3), and (5) through (8) are at issue on appeal. The court found factor (1), “[t]he
wishes of the child’s parent or parents as to his or her custody and residential
arrangements,” to be neutral.34 The court explained: “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.”35
As to factor (3), which concerns the interaction and interrelationship of the
children with their parents, grandparents, siblings, and others family members, the
court found that it weighed in the mother’s favor because she “presented persuasive
evidence she has a positive and healthy relationship with the children.” 36 In
support, the court noted the following observations: the mother “ha[d] been engaged
with them as their primary care giver for their entire lives”; the children were “very
32
Id.
33
Id.
34
Id. at 8, 8-9, 12 (quoting 13 Del. C. § 722(a)(1)).
35
Id. at 9.
36
Id.
12
familiar” with their maternal grandmother, “who assisted in caring for them,” and
had a “good relationship” with their maternal grandfather; and the mother’s other
minor child had an “important relationship” with the children.37
As to the father, the court found that his testimony—that the mother “had been
‘unstable’ for the past three years” and that “he suspects she was using marijuana
and cocaine”—was “not credible.”38 The court explained, “[h]is 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.”39 Furthermore,
the court noted that although the father “stepped up to provide care for the children
since late November of last year,” there was “unrebutted testimony he generally
provided no holiday gifts to the children.”40 The court also recognized that the
father testified that the children were building relationships with paternal-side
cousins and that he has no relationship with his thirty-three-year-old daughter (the
children’s half-sister) “because her mother ‘sabotaged’ the relationship.” 41 The
court concluded, “[f]actor 3 favors Mother’s position. The children have
37
Id.
38
Id.
39
Id.
40
Id. Because the court issued its decision in 2018, “late November of last year” would be
November 2017. But the Restaurant Incident occurred in November 2016, and from that point
forward, the father had either primary placement or shared placement of the children, except for
the period of August 14, 2017, through September 8, 2017, due to a stay of visitation that had been
granted ex parte but was later vacated following an adversarial hearing.
41
Id. at 9-10.
13
historically done well while in Mother’s care. Father has little history to support
his claim.”42
The court found that factor (5), which considers the mental and physical health
of all individuals involved, was neutral provided that the mother complied with her
treatment:
Mother has mental health issues that require
professional attention. She takes medication and is
monitored by a nurse practitioner. . . . 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.43
The court found factor (6), the parents’ past and present compliance with their
rights and responsibilities for their children under Delaware’s family law, to favor
the mother “to a slight degree.” 44 The court found that “Mother handled the
children’s medical appointments” and that while “Father participated in medical
appointments early in the children’s lives,” he had not in recent years.45 The court
noted that “Father provided most of the financial support while the family was
intact.”46 “Since the split,” the court continued, “Mother has relied on Maternal
42
Id. at 10.
43
Id.
44
Id. at 10-11.
45
Id. at 10.
46
Id.
14
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.”47
The court then discussed the parties’ actions on the night of the Restaurant
Incident:
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.48
The court then concluded, “Factor 6 favors Mother’s petition, to a slight degree.”49
As to factor (7), evidence of domestic violence, the court explained that “[t]his
family has an important domestic violence problem”50 and found that “[t]he great
47
Id. at 10-11. Again the court referred to the incorrect year. See supra n. 41.
48
Custody Order at 11 (footnote omitted). Again the court referred to the incorrect year (2017
as opposed to 2016).
49
Id. at 11.
50
Id.
15
weight of the domestic violence evidence favors Mother’s petition.”51 The court
explained its reasoning:
This Court has previously decided that Father committed
abuse against Mother in several ways. On December 3,
2016,52 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 actions. 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. Joseph Zingaro that
Mother was the victim of a pattern of coercive control by
Father.
Father has completed a treatment course designed
of [sic] 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.53
51
Id. at 12.
52
The court stated the correct year for this incident, which occurred the day after the mother was
released from the hospital following the Restaurant Incident.
53
Id. at 11-12 (footnotes omitted).
16
Regarding factor (8), the criminal histories of the parties, the court noted that
“Mother was convicted of shoplifting before these children were born” and that
“[b]oth Mother and Father have many traffic and automobile related charges.” 54
The court concluded, “The criminal histories of both parties are of no
significance.”55
Finally, the court summarized its analysis of the best interests factors. The
court explained that “factors 3, 6 and 7 favor Mother’s Petition, none of the factors
favors [sic] Father’s Petition, and the remaining factors are neutral.”56 The court
concluded by noting additional reasons for its decision to give the mother sole
custody of the children:
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.57
The court then gave the mother sole custody and primary placement of the children,
with the father having the right to visit with the children every other weekend.
54
Id. at 12.
55
Id.
56
Id.
57
Id.
17
III. DISCUSSION
The father’s first claim on appeal is that the Family Court abused its discretion
when it rejected the expert testimony, opinion, and recommendation of Dr.
Romirowsky. According to the father, the Family Court erred when it found that
(1) Dr. Romirowsky ignored the fact that this case involved domestic abuse, (2)
assessed mother’s testimony as credible, and (3) applied a different standard of
evaluation to the mother compared to the father.
When the Family Court decides to accept the opinion of one expert over
another, the court “has considerable latitude in determining what weight to give to
any expert witness testimony in a ‘best interests of the child’ analysis, and we have
held it improper to consider any expert recommendation binding on that court.”58
Moreover, “[t]his Court will not disturb the Family Court’s determination of
questions of credibility on appeal unless clearly erroneous.”59 Even if we might
have reached a different conclusion, a credibility determination is not clearly
erroneous if it is supported by the record and the product of an orderly and logical
deductive process.60 After carefully reviewing the record, we find that the father’s
58
Kraft v. Kraft, 29 A.3d 246, 2011 WL 4572911, at *3 (Del. Oct. 4, 2011) (TABLE).
59
Boyer v. Poole, 815 A.2d 348, 2003 WL 141267, at *3 (Del. Jan. 17, 2003) (TABLE) (citing
Wife (J. F. V.) v. Husband (O. W. V., Jr.), 402 A.2d 1202, 1204 (Del. 1979)).
60
Wife (J. F. V.), 402 A.2d at 1204.
18
claims of error with regard to Dr. Romirowsky’s report fall within the court’s broad
discretion to accept the conclusions of one expert over another.
First, with regard to the father’s claim that the court erred when it held that
Dr. Romirowsky failed to adequately consider the evidence of domestic violence,
the record shows that Dr. Romirowsky testified that “the whole issue of abuse or
domestic violence really is irrelevant to my consideration and my
recommendation.” 61 Further, there was evidence in the record of abuse—the
“imbalance of power and control” between the mother and the father 62—found by
Dr. Zingaro and the court in the PFA hearing. The father was approximately thirty
years older than the mother, he was her employer, and she testified that he controlled
the money, her work schedule, and even how she dressed. While Dr. Romirowsky
raised some valid concerns with Dr. Zingaro’s methodology, the court was free to
decide which expert it found to be credible and to rely upon the court’s earlier
finding—by a different judicial officer—of the father’s domestic abuse.
As to the court’s second reason for rejecting Dr. Romirowsky’s report—that
Dr. Romirowsky determined that the mother completely lacked credibility—Dr.
Romirowsky’s report concluded that the mother had a “history of noncompliance”
and a “pattern of not telling the truth.”63 This conclusion was primarily founded
61
App. to Opening Br. at A669.
62
Custody Order at 5.
63
App. to Opening Br. at A150.
19
upon two incidents: one occasion where the mother did not attend a scheduled
appointment for psychological testing at Dr. Romirowsky’s office and another where
she failed to comply with a hair follicle drug test he had requested. There was
conflicting testimony relating to Dr. Romirowsky’s reasons for finding the mother
deceitful. It was the role of the court, as fact finder, to resolve these conflicts and
make credibility determinations. As to the mother’s purported failure to have her
hair follicles tested for drugs in her system, again, there was conflicting testimony.
Dr. Romirowsky could not recall the date of his instruction, and the mother testified
that he gave her no such instruction, but that when she recently learned that a hair
follicle test was expected of her, she had one done. The court was in the best
position to judge the credibility of the testimony.
The court also gave several other reasons for finding that Dr. Romirowsky
unfairly determined that the mother completely lacked credibility. The court noted
that it did not understand why Dr. Romirowsky “latched on to some of the things
Mother said while ignoring other things she said” in evaluating her credibility. 64
For example, Dr. Romirowsky found the mother’s statements denying drug use
during her intake examination following the Restaurant Incident “to be conclusive
of her deceitfulness in light of the positive tests for cocaine and marijuana performed
64
Id. at 7.
20
on Mother that same day.” 65 The court, by contrast, attached “much less
significance to statements Mother made while she recovered from an intense and
traumatic delusional incident than d[id Dr. Romirowsky].”66 Because this aspect of
the court’s decision involved a determination of the weight to be assigned by the
mother’s statements in the context of the factual circumstances and because the
Family Court judge was in the best position to weigh this conflicting evidence, we
will not substitute our opinion for that of the trial judge.67
Finally, as to the court’s third reason for rejecting Dr. Romirowsky’s report—
that Dr. Romirowsky gave much greater weight to the mother’s drug use than the
father’s record of his own drug use—we agree with the father that the Family Court’s
determination is questionable, given the passage of time since his last use of drugs.68
But, in our view, the Family Court had the best vantage point to judge the weight to
be given the expert reports in light of the testimony of the mother and the father.
The other reasons given by the Family Court to reject Dr. Romirowsky’s report were
sufficient to support the court’s decision on appeal.
The father’s second claim on appeal is that the Family Court abused its
65
Id.
66
Id.
67
See Wife (J. F. V.), 402 A.2d at 1204 (“When the determination of facts turns on a question of
credibility and the acceptance or rejection of the testimony of witnesses appearing before him,
those findings of the Trial Judge will be approved upon review, and we will not substitute our
opinion for that of the trier of fact.”).
68
The Family Court also incorrectly stated father’s illegal drug use as occurring most recently in
his forties, not his thirties, although both periods were decades removed from the hearing.
21
discretion when it denied his request for sole legal custody and primary placement
of the children and instead granted the mother sole legal custody—despite her asking
for joint custody—and primary placement. He contends that the court’s
conclusions were not supported by the record and were not the product of an orderly
and logical deductive process. He further argues that the court did not
independently consider the statutory best interests factors and give each factor its
due weight.
Our review of a custody decision of the Family Court “extends to a review of
both the facts and law as well as to inferences and deductions drawn by the Family
Court.”69 “To the extent an appeal implicates findings of facts, the scope of our
review is limited to whether the findings are sufficiently supported by the record and
are not clearly wrong.”70 “Moreover, this Court will not substitute its own opinion
for the inferences and deductions made by the Trial Judge where those inferences
are supported by the record and are the product of an orderly and logical deductive
process.”71 “If the Family Court has correctly applied the law, our review is for an
abuse of discretion.”72 To the extent the issues on appeal implicate rulings of law,
we conduct a de novo review.73
69
Potter v. Branson, 877 A.2d 52, 2005 WL 1403823, at *2 (Del. June 13, 2005) (Table).
70
Kraft, 2011 WL 4572911, at *2.
71
Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
72
Potter, 2005 WL 1403823, at *2.
73
Id.22
The father begins his argument by claiming that the court’s findings deviate
from the record and are erroneous. He provides examples of his interpretation of
the court’s erroneous findings; however, the findings in these examples are either
supported by the record or are not significant findings when evaluated independently
from the analysis of the best interests of the children. Accordingly, these claims of
erroneous findings will be evaluated in the context of the best interests analysis.
Under 13 Del. C. § 722, the Family Court is required to determine legal
custody “in accordance with the best interests of the child.”74 In determining the
best interests of the child, the court must consider “all relevant factors,” including
eight factors enumerated by the statute.75 The father argues that the trial judge’s
findings relating to factors (1), (3), and (5) through (8) were unsupported by the
record and not the product of an orderly and logical deductive process.76 When an
appeal implicates findings of facts, the scope of review “is limited to whether the
findings are sufficiently supported by the record and are not clearly wrong.”77
Factor (1) concerns “[t]he wishes of the child’s parent or parents as to his or
her custody and residential arrangements.” 78 The father argues that the Family
74
13 Del. C. § 722(a).
75
Id.
76
Factors (2) and (4) were considered by the Family Court, but these factors are not at issue on
appeal because there was no direct evidence relating to factor (2) and factor (4) did not favor either
party. The father does not dispute these findings.
77
Kraft, 2011 WL 4572911, at *2.
78
13 Del. C. § 722(a)(1).
23
Court provided “no analysis but seem[ed] to consider this Factor to be neutral.”79
Although the court did not say which parent this factor favored in its discussion of
this factor, in the conclusion of its best interests analysis, the court explained that
“factors 3, 6 and 7 favor Mother’s petition . . . and the remaining factors are
neutral.” 80 The father argues that this factor favors him because the mother
provided a mother-centric reason for primary placement instead of a child-centric
reason. He further states that his argument for sole custody and primary placement
was his “desire to parent and his concern for Mother’s ability to parent.”81
As the court explained in its decision, each parent desired placement of the
children, with the mother requesting joint custody and the father seeking sole
custody. The father’s argument that the mother provided a “mother-centric,” as
opposed to a “child-centric,” reason for custody does not relate to factor (1). This
factor considers only the “wishes of the child’s parent or parents.”82 Factor (2),
which the father does not contest, is the “child-centric” factor; it considers “[t]he
wishes of the child as to his or her custodian or custodians and residential
arrangements.”83 The father’s argument that factor (1) favors him is strained and
unpersuasive.
79
Appellant’s Opening Br. at 32.
80
Custody Order at 12.
81
Appellant’s Opening Br. at 32.
82
13 Del. C. § 722(a)(1).
83
Id. § 722(a)(2).
24
The court found that factor (3), which evaluates the child’s interaction and
relationships with his or her parents and other family members,84 favored the mother
for several reasons supported by the record. These reasons included the fact that
the children had historically done well when in her care, the mother had been their
primary caregiver when the family was intact, the children were very familiar with
their maternal grandparents, and the children had an important relationship with the
mother’s other minor child.
With respect to this factor, the father contends that the court erred by
determining that he “has little history to support his claim” 85 and “has developed
little experience and skill in parenting.”86 In particular, he argues that the court
erred in calculating his time with the children when the court stated that he “stepped
up to provide care for the children since late November of last year.” 87 This
statement, according to him, was incorrect, and “not merely a typographical error,”
because it suggests that the court was referring to November 2017, not November
2016, which discredits the period of time he had primary and shared placement by
one year in the court’s analysis of factor (3).88
84
Id. § 722(a)(3).
85
Custody Order at 10.
86
Id. at 12.
87
Id. at 9.
88
Appellant’s Opening Br. at 33.
25
The procedural history detailed by the court in its decision, and the court’s
involvement in the case, shows that its reference to November 2017 as the time the
father “stepped up” to provide care for the children was a typographical error and
not a calculation it relied upon for its analysis. The father “stepped up” to provide
care after the Restaurant Incident, which the court stated “took place on November
22-23, 2017,”89 but which actually occurred on those dates in 2016. The trial judge
became involved in the case at least by May 18, 2017, when he reviewed and
accepted the commissioner’s protection from abuse order that was issued against the
father on January 10, 2017. His May 2017 review order indicated that he was aware
of the correct date for the Restaurant Incident90 and also indicated that he was aware
of the shared placement arrangement established by the commissioner on January
10, 2017.91 In the court’s decision on the custody dispute, the trial judge explained,
“[t]his incident [the Restaurant Incident] was a subject of the hearing on the cross-
PFA petitions and the later Order on Review of a Commissioner’s Order.”92
Furthermore, while the trial judge should have noted the correct date when
discussing these events, the court did not focus on precisely when the father’s
89
Custody Order at 3.
90
App. to Opening Br. at A85 (discussing the Restaurant Incident and noting that it occurred on
November 22, 2016).
91
Id. at A87 (“The Court entered cross Orders of Protection from Abuse and granted the parties
joint legal custody and shared residential placement of the minor children.”); id. at A87 n.4 (“The
Court awarded shared residential placement on a 2-2-3 schedule, beginning with Mother on
January 11, 2017.”).
92
Custody Order at 3.
26
increased care of the children occurred, but rather focused on the several reasons
favoring giving custody to the mother, the father’s entire history of caring for the
children, and the children’s relationships with other family members. The court
explained that “[t]here was unrebutted testimony [the father] generally provided no
holiday gifts to the children.” 93 Although the court acknowledged the father’s
testimony that the children had a good relationship with their paternal grandfather
and had recently began building relationships with paternal-side cousins, it also
noted that the father had no relationship with his thirty-three-year-old daughter, the
children’s half-sister. The children, moreover, were very familiar with their
maternal grandparents, who assisted in caring for them, and had an important
relationship with the mother’s other child. Ultimately, the court’s reference to the
wrong date was just one aspect of its overall analysis and does not amount to
reversible error.
The court found factor (5), “[t]he mental and physical health of all individuals
involved,”94 to be neutral. The court explained, “[w]hen Mother complies with
treatment, this factor (Factor 5) is neutral. If Mother fails to comply with treatment,
this factor would favor Father’s position.”95 The father contests that conclusion,
93
Id. at 9.
94
13 Del. C. § 722(a)(5).
95
Custody Order at 10.
27
arguing that the mother has not complied with treatment as evidenced by her
attendance record, which indicates she missed appointments.
The court, however, recognized that the mother takes medication, is
monitored by a nurse practitioner, and acknowledges her need for talk therapy.
Also, when dismissing Dr. Romirowsky’s determination that the mother lacked
credibility because she missed appointments with her nurse practitioner, the court
noted that its “review of the medical record indicates that Mother made up most of
the missed appointments.”96 This was supported by the record: the mother testified
at the custody hearing that she had been attending therapy sessions every month
since the Restaurant Incident except for two or three months during the summer of
2017, when her car was getting repaired and when she was meeting with Dr.
Romirowsky (because she “thought that [he] was [her] therapist”).97
The court found factor (6), the parents’ past and present compliance with their
rights and responsibilities under Delaware’s family law,98 to favor the mother “to a
slight degree.”99 The father contends that the court erred as to this factor because it
subjected him to a higher standard than the mother. He argues that the court was
swayed by its finding that the father did not provide money to support the children
96
Id. at 7.
97
App. to Opening Br. at A773.
98
13 Del. C. § 722(a)(6).
99
Custody Order at 11.
28
when in the mother’s care. He points out that he provided clothing and financial
support for the children when they were with him and that since the family separated,
the mother had not worked—by her own choice—and instead depended upon her
parents for support. He also argues that the court placed undue emphasis on his
driving the children to the restaurant the morning of the Restaurant Incident without
car seats and inappropriately minimized the mother’s poor judgment of “choosing
to use cocaine, drink alcohol, abuse Adderall and stay out all night” by not
recognizing that the “aftermath of this ‘poor judgment’ rendered Mother unavailable
to provide care for ten days.”100
Given the exigencies of the situation, we agree that the trial judge placed
undue emphasis on the fact that the father did not have the children in child seats on
the morning of the Restaurant Incident. But, as to the mother’s “poor judgment,”
the trial judge reasoned that the mother’s “bad judgment was exercised when she did
not have these children in her care.”101 Although we may have made a different
finding on this factor, we are satisfied that the trial judge’s finding that factor (6)
favored the mother “to a slight degree” is sufficiently supported by the record and
not clearly wrong. And, as noted before, the test is not a rigid application of any
100
Appellant’s Opening Br. at 38.
101
Custody Order at 11.
29
one factor in the analysis. The court must consider all factors to arrive at an overall
custody and placement decision.
The court found factor (7), evidence of domestic violence,102 to weigh heavily
in the mother’s favor. The father contests this conclusion, relying largely on an
argument he made regarding the court’s rejection of Dr. Romirowsky’s report—that
the record did not support the court’s findings on domestic abuse. Although the
court considered the acts of domestic violence by both parties in its analysis, it
highlighted the father’s acts of emotional and physical abuse and relied on Dr.
Zingaro’s testimony and report that the mother was the victim of a pattern of
coercive control by the father and the court’s earlier finding of abuse. Therefore,
the court’s finding of domestic abuse was supported by the record.
The court found factor (8), the criminal history of the parents,103 to be of no
significance because the criminal history of both parties occurred before the children
were born. The father argues that the court erred as to this factor for two reasons:
(1) it omitted the salient fact that the mother involved her oldest child in her
shoplifting by hiding the stolen item in her stroller and (2) it imposed a different
standard on him than it did on the mother by considering his past drug history while
not taking into account the mother’s prior shoplifting conviction. First, although
102
13 Del. C. § 722(a)(7).
103
Id. § 722(a)(8).
30
the court did not address the fact that the mother’s oldest child was with her when
she shoplifted, the father points to no evidence indicating that the child was put at
risk or that the mother has engaged in similar criminal activity involving the children
since then. Second, the court did not consider the father’s dated substance abuse
for this particular factor.
In addition to his contentions challenging the court’s findings as to the
individual factors, the father contends that the court did not independently consider
the best interests factors and give each its due weight. In support of this contention,
he cites Holmes v. Wooley.104 In Holmes, although the trial judge weighed the best
interests factors, his ultimate finding was the result of a mechanical, quantitative
weighing of the factors with each factor having the same value irrespective of their
relative strengths based on the actual facts in the case.105 This Court found that
method of analysis to be erroneous because the Family Court considered only the
enumerated factors in the statute, did not consider all relevant factors as required by
the statute, and ultimately determined the best interests of the child based solely on
which parent had “prevailed” in the majority of the statutory factors.106 The father
asserts that the Family Court performed this same mechanical and perfunctory
analysis in weighing the best interests factors.
104
788 A.2d 131, 2002 WL 27436 (Del. Jan. 3, 2002) (TABLE).
105
Id. at *1.
106
Id.
31
Although the Family Court here weighed the factors quantitatively, the court
also conducted a qualitative analysis of each factor and of all factors considered
together. For example, while considering factor (7), the court explained that “[t]he
great weight of the domestic violence evidence favors Mother’s petition.”107 This
suggests that the court did not simply assign to each factor equal weight.
Moreover, in explaining its ultimate decision, the court noted several reasons why it
was in the children’s best interests for the mother to have sole custody and decision-
making authority: “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.” 108 The trial judge further found that “[t]hese
qualities weigh in favor of vesting Mother with decision authority.” 109 These
statements indicate that the court considered all relevant factors in determining that
placement with the mother was in the best interests of the children and in concluding
that sole custody with the mother, although not requested in her petition filed in
November 2016, was justified—especially given the court’s finding that the father
“does not share control well.”110
107
Custody Order at 12.
108
Id.
109
Id.
110
Id.
32
IV. CONCLUSION
Because the father contests the Family Court’s factual and credibility
determinations, his path to reversal is extremely narrow. The Family Court
analyzed each of the required factors, heard from the experts, the mother and the
father and another witness for the mother, and made a custody determination
supported by the record. Thus, we affirm the judgment of the Family Court.
While we have decided to affirm, we also note with some discomfort the
father’s concern that the Family Court judge came to the custody hearing
predisposed against the father. The trial judge did, it seems to us, place undue
emphasis on the fact that the father drove to the restaurant on the morning of the
Restaurant Incident without having the children in child seats. The record indicates
that he attempted to contact the maternal grandmother to look after the children while
he went looking for the mother, but was unable to contact her. Without
depreciating the importance and necessity of using child seats when transporting
children, the father reasonably believed that he was dealing with an emergency.
Under the circumstances, the fact that he kept his children with him and by necessity
used a vehicle not equipped with child seats had little probative value in deciding
custody. We also think that the father’s drug use of long ago, discussed in
connection with Dr. Romirowsky’s report, was a factor made irrelevant by the
passage of time. Finally, the trial judge’s misstatement that the Restaurant Incident
33
occurred in 2017, when it in fact occurred in 2016, was unfortunate and caused
unnecessary confusion.
Some time has passed since the Family Court’s custody and placement
determination. We believe that, if the father choses to do so, and in light of this
opinion, the Family Court should consider a renewed petition for joint custody by
the father when permitted by 13 Del. C. § 729(c)(2) with the assistance of a new
expert opinion from an expert selected and appointed by the court.
34
STRINE, Chief Justice, dissenting, with TRAYNOR, Justice, joining:
We respectfully dissent from the majority opinion. Our review of the father’s
arguments on appeal leads us to conclude that the Family Court’s decision is not
rationally grounded in the record evidence. If anything is clear from this record, it
is that, like other human beings, neither the Father nor the Mother are close to
perfect. But if children were only entitled to the love and care of perfect parents,
all of us would be orphans. We hope that if the Father remains involved in the
children’s lives in a positive and loving way, that the trial judge will consider in an
impartial and open-minded way any future applications by him to become more
involved in his children’s lives. For now, we can only say that we would reverse
and restore the Father to having the status as joint custodial parent, a status that was
taken from him not at the Mother’s request, but at the spontaneous instance of the
Family Court.
35