Case of Delaware Family
New Castle, Delaware
New Castle, Delaware
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Table of Contents:
2000
- Family Court of Delaware, New Castle (10/02/2000)
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Family Court of Delaware, New Castle
October 2, 2000
BARBARA FORD *, PETITIONER/COUNTER-CLAIM RESPONDENT v. SAMUEL C. FORD *, RESPONDENT/COUNTER-CLAIM PETITIONER
* Pursuant to the 8/16/00 Order, the Court is using pseudonyms to identify the parties.
FILE NO. CN99-06509, PETITION NO. 99-01329
FAMILY COURT OF DELAWARE, NEW CASTLE
October 2, 2000, Submitted
December 19, 2000, Decided
DISPOSITION: [*1] Father's visitation with Susan and Harriet supervised.
CORE TERMS: visitation, custody, sexual abuse, interview, tape, picture, supervised visitation, audio, inappropriate, drew, residential, recommend, happened, condom, bed, best interest, sexual contact, recommendation, residency, therapy, anxiety, accusation, pedophile, indicator, household, treating, divorce, revenge, testing, preponderance
HN1 In a normal custody case, a Delaware family court evaluates the factors set forth in Del. Code Ann. tit. 13, § 722. Where a custody case is overshadowed by allegations of sexual abuse, however, before the court can even entertain a review of the best interest factors, it must first resolve whether the allegations are true. If the court finds by a preponderance of the evidence that those allegations are true, then there are statutory considerations that impact a parent's rights. Del. Code Ann. tit. 13, § 710A.
Family Law > Child Custody > Awards HN2 See Del. Code Ann. tit. 13, § 722(a).
Family Law > Child Custody > Visitation
Family Law > Family Protection & Welfare > Children HN3 See Del. Code Ann. tit. 13, § 710A.
Family Law > Child Custody > Awards HN4 The best interest factors used in Delaware child custody determinations, enumerated in Del. Code Ann. tit. 13, § 722, are as follows: (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 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 Del. Code Ann. tit. 13, § 701; and (7) evidence of domestic violence as provided for in Del. Code Ann. tit. 13, ch. 7A.
COUNSEL: CURTIS P. BOUNDS, ESQ., ATTORNEY FOR PETITIONER. H. ALFRED TARRANT, JR., ESQ., ATTORNEY FOR RESPONDENT.
JUDGES: Mark D. Buckworth, Judge.
OPINIONBY: Mark D. Buckworth
OPINION: PETITION FOR CUSTODY/COUNTER-CLAIM FOR CUSTODY
BUCKWORTH, J.
Pending before the Court is a Petition for Custody filed by Barbara G. Ford ("Mother") against Samuel C. Ford ("Father") regarding the parties' two minor children, Susan * n1 born June 28, 1993, and Harriet * n2 born January 16, 1996. Pursuant to this Court's Order of August 16, 2000, the Court will use pseudonyms to identify the parties. The issues before the Court relate to the custody and visitation of the parties' minor children. The Court held a hearing in this matter that lasted four days; specifically, May 31, 2000; June 1, 2000; June 22, 2000; and June 26, 2000. The Court allowed counsel to submit closing memoranda. Both parties submitted closing memoranda on September 1, 2000 and subsequently submitted replies to those closing arguments on October 2, 2000. In addition to the testimony of the parties, the Court heard testimony from the following witnesses:
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* Pursuant to the 8/16/00 Order, the Court is using pseudonyms to identify the parties. [*2]
n1 Pseudonym used.
n2 Pseudonym used.
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Rabbi David Kaplan; Frances Klaff, Ph.D.; Dr. Richard A. Gardner; Samuel Romirowsky, Ph.D.; trial deposition of Dave Swain * n3; trial deposition of Ann Pedrick of the Division of Family Services (DFS); and the trial deposition of Pamela Denney of the State of Delaware Visitation Center. The Court received a volume of exhibits at trial, including video tapes and an audio tape.
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n3 Pseudonym used.
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The Court reserved its decision regarding the introduction of DFS records pending the post-trial submission of counsel. The Court received the post-trial submissions simultaneously on August 4, 2000. The Court will address this issue first as it pertains to the introduction of evidence.
Mother requests admission into evidence of pages 16-17, 22-25, and 39 of the DFS records. Father does not object initially to the introduction of pages 24, 25 and 39, or the first paragraph of page 22. [*3] However, Father objects to the introduction of pages 16, 17, 23, as well as the balance of page 22. The Court finds that pages 16, 17, 22, and 23, although contested by Father, shall be admissible into evidence pursuant to Delaware Rules of Evidence 801(d)(1)(B), as they are not hearsay. The disputed pages are consistent with trial testimony and, in addition, are being used properly to rebut charges of improper influence and motive n4.
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n4 The primary thrust of Father's case against Mother is that Mother had an improper motive in bringing sexual abuse allegations against him. As such, this evidence clearly is being presented to rebut that argument.
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Father requests introduction of pages 14, the first paragraph of page 22 n5, 23 except as to line 4 of the first full paragraph, and 24. The Court allows the introduction of page 24, as neither party disputes its admissibility. The Court, however, accepts the version presented by Mother that contains an additional paragraph regarding a telephone call. Additionally, [*4] the Court will accept Father's version of page 23 as the Court agrees with Father that the statement regarding Detective Williams constitutes double hearsay because Detective Williams was not called as a witness. The Court specifically rejects Father's arguments that the requested documentation from Mother should be excluded because it is duplicative and because he did not have an opportunity to cross-examine. Clearly, those documents were sought to be admitted prior to the final day of trial, and both parties had copies of those records. Therefore, counsel for the parties had the opportunity to cross-examine the parties regarding their testimony on the fourth day of trial. The Court declines to find the evidence duplicative as it was offered to show consistency with trial testimony and to rebut a charge of improper motive. The Court shall admit page 14, as Father has requested, pursuant to 801(d)(1)(C), as it shows the identity of the caller n6. Finally, both parties agree to the introduction of page 39 n7. The Court hereby admits Mother's pages 16, 17, 22, 24, 25, and 39 as Mother's Exhibit # 39 and admits Father's page 14 and 23 as Father's Exhibit # 6.
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n5 The introduction of this page has been discussed above and shall be admitted. [*5]
n6 The Court also notes that Mother testified that she was not the first to call DFS and that she had gone to neighbors regarding the issue.
n7 Page 39 is the case plan signed by Mother.
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PROCEDURAL HISTORY
The parties in this case were formerly husband and wife. They separated around June or July 1998, but continued to reside in the same household until January 14, 1999, when Mother and the children left the household. Mother filed a Petition for Custody on January 15, 1999 and a Petition for Protection From Abuse (PFA) on January 19, 1999. She received an Ex Parte Order that date. On January 29, 1999, Father entered into a Consent PFA Order. The Order allowed Mother and the children to move back into the house, thereby removing Father from the home. Mother and the children have resided in the former marital residence since that time.
On March 3, 1999, Father filed an Answer and Counter-Claim to Mother's Petition for Custody and Mother filed an Answer to Father's Counter-Claim on March 16, 1999. Thereafter, the parties executed a Stipulation and Order that modified the PFA Order, [*6] signed by a Commissioner on April 27, 1999. On May 11, 1999, the Commissioner further clarified the PFA Order. Finally, the Court entered a modified Order regarding Father's visitation on January 27, 2000, and the parties have been operating under that Order since that time.
Although initially both parties opposed joint custody, at trial the parties agreed to continue joint custody of the children. Each requested primary residency. Mother testified that if the Court awards her residency of the children, she seeks to continue Father's supervised visitation. Father indicated that if Mother is awarded residency, he wants liberal, unsupervised visitation. However, Father asked that he be awarded primary care and Mother, liberal visitation.
STATEMENT OF FACTS
Mother's allegations of sexual abuse regarding Father and Susan, the parties' oldest child, precipitated the parties' separation in January 1999. On January 8, 1999, DFS received a call from Jewish Family Services and two other calls from Ann Cash * n8, a neighbor of the parties, regarding the allegations. DFS began an investigation on January 14, 1999, by having Ann Pedrick interview Susan. Later that day, Susan was taken [*7] to the Children's Advocacy Center (CAC) and was interviewed on video by Ann Pedrick, as well as Terry Kaiser, a Forensic Interviewer. New Castle County Police questioned Father, who denied the allegations. Father was removed from the former marital residence pursuant to the Ex Parte PFA Order entered on January 19, 1999. On January 29, 1999 a Consent PFA Order was entered extending Father's exclusion from the marital residence. Mother made an audio tape of Susan in mid-January 1999 in which she confirmed the allegations. After the January 29, 1999 PFA Order, Father brought the matter back to Court to outline a specific telephone schedule for his contact with the children. It was not until May 1999 that Father began visitation at the State Visitation Center. The parties utilized the Northeast Visitation Center due to its current availability, notwithstanding the fact that both reside closer to the Hudson Center in Newark. Father's visitation ultimately was extended to 2 two-hour blocks per week pursuant to Court Order in January 2000. The parties have continued to operate under that Order.
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n8 Pseudonym used.
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In addition to being examined by Dr. Alan DeJong, a physician at A.I. DuPont Hospital who found no physical evidence of abuse, Susan was counseled for over a year by Dr. Frances Klaff. She was further evaluated by Father's expert, Dr. Richard Gardner, and was the subject of a custody evaluation performed by Mother's expert, Dr. Samuel Romirowsky.
FINDINGS
HN1In a normal custody case, the Court would evaluate the factors set forth in 13 Del. C. § 722 n9. However, this is custody case is overshadowed by allegations of sexual abuse and therefore is not a normal custody case. The major issue before the Court is the allegation of sexual molestation committed by Father against Susan. Before the Court can even entertain a review of the best interest factors, it must first resolve whether the allegations are true. If the Court finds by a preponderance of the evidence that those allegations are true, then there are statutory considerations that impact Father's rights. 13 Del. C. § 710A n10. It has been argued that the statute presumes not only that a parent who is found to have sexually abused a child is prohibited from [*9] having custody, but that the offending parent should not have any contact or visitation until such time as the Court deems that supervised visitation is appropriate. The Court notes that, in this case, supervised visitation has been taking place. Mother argues that the statute dictates that Father never will be entitled to anything but supervised visitation.
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n9 13 Del. C. § 722. Best interest of a child.HN2
(a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including: (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(s) 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; and (7) Evidence of domestic violence as provided for in Chapter 7A of this title. [*10]
n10 13 Del. C. § 710A provides:HN3
If the Court finds by a preponderance of the evidence that a parent has sexually abuse a child, the Court shall prohibit all visitation and contact between the abusive parent and the child until such time as the Court finds, after a hearing, that supervised visitation would not harm, endanger, or impair the child's physical, psychological, or emotional well-being. In determining whether such visitation may be appropriate, the Court should consider all relevant factors, including: 1) Whether the abusive parent has successfully completed a treatment program of evaluation and counseling that is specifically designed for sexual abusers and is conducted by a public or private agency or a certified mental health professional; (2) Whether the abusive parent has successfully completed a program of alcohol or drug abuse counseling; (3) Any testimony by a mental health professional who is the therapist for the abused child; (4) Any testimony by a mental health professional who is the therapist for the abusive parent; and (5) Whether supervised visitation is in the child's best interests.
Nothing in this section shall preclude the Court from denying visitation under other appropriate circumstances, including denying such visitation under an ex parte or other emergency order.
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If the Court finds that Mother has failed to sustain her burden of proof regarding the occurrence of sexual abuse, the Court must then decide whether Mother has falsely accused Father. Should the Court find that Mother coached the child and brought false allegations, Father argues that Mother is unfit to be the children's primary caretaker. However, the Court could find that Mother did not prove the allegations of abuse by a preponderance of the evidence, yet that she did not falsely bring these allegations, rather she acted in a course of conduct that she felt was in the best interest of her children.
There was testimony from Dr. Gardner, Father's expert, that the statements Susan made that led to the investigation simply could have been innocent comments made by a precocious, highly intelligent five-year old, to which Mother responded in an inflammatory way. Were this the case, the Court would rely on the best interest factors enumerated in 13 Del. C. § 722 in order to determine which parent would be the most appropriate primary caretaker.
It is undisputed that this case is troubling in many aspects. The position of the parties is that either the alleged abuse occurred and Father should [*12] have restricted contact forever, or that abuse did not occur and Mother is bringing these charges as revenge for Father's enforcement of the parties' prenuptial agreement. After four days of trial, submissions of trial depositions, exhaustive review of video tapes and an audio tape, and a thorough review of the closing arguments, the Court must make certain findings. In doing so, the Court must consider the credibility of the witnesses, the positions of the parties, their motivation, the relationship and interaction of people that had significant contact with the parties, and finally the Court's most important job of reconciling the conflicting evidence and testimony.
The Court will not recite all of the testimony from the four-day hearing, as the record clearly speaks for itself and counsel for both parties have obtained transcripts of the trial. The Court, however, will place emphasis on those parts of the testimony that have impacted its decision and on which it relies.
EVIDENTIARY FINDINGS
The Court finds, based upon all the evidence presented and notwithstanding Father's continued denials to the contrary, that Mother has sustained her burden of proof that Father had [*13] inappropriate sexual contact with Susan. The Court stresses that its finding is not an easy one to make, but one that is supported by the evidence. First, the Court finds that Mother did not coach Susan regarding her explanation of Susan's disclosure or the subsequently obtained audio tape in which Susan repeated the allegations. Despite Father's contention that the mood was too light (there was singing both before and after the accusations were recorded), the Court has listened to the audio tape numerous times and finds that there is a break in recording both before and after Susan's disclosure. The Court reconciles the fact that Susan was not upset or crying, with the repeated testimony from all of the experts that Susan did not consider what happened to be bad and was not traumatized by it initially. Therefore, the Court finds that Susan's composure on the audio tape is not relevant to the truth of her statements. The Court specifically finds that Susan's comments on the audio tape are her , and not the words of another. As such, while Mother may have asked Susan to repeat what she had disclosed previously, the Court finds that Susan's statements on the audio tape are inconsistent [*14] with statements that are coached or memorized by a five-year old child.
Having found that the audio tape is legitimate, the Court finds that Mother's actions thereafter are an appropriate response. The Court accepts Mother's version of the subsequent events. Initially, Mother approached Father who denied the accusations and alleged that Susan was lying. She sought advice from her Rabbi who referred her to Jewish Family Services. Jewish Family Services called DFS, with whom Mother cooperated in order to ascertain the truth of the allegations. Mother sought advice from a friend. In addition, the Court finds Mother's version of her confrontation of Father at the library to be credible.
The only unclear issues to the Court are the facts and circumstances surrounding Mother's finding condoms in parts of the house under Father's exclusive control. The Court agrees with Dr. Gardner that Mother failed to ask the critical question of how Susan knew what a condom was. The Court finds both Mother's explanation and Father's explanation insufficient, yet the Court finds Mother's version to be the more credible.
The Court agrees with Father's argument that Mother would have been upset with his [*15] refusal to alter or destroy the prenuptial agreement, but the Court does not find that she would put her children at risk in order to seek revenge against him. The Court finds it unrealistic to accept that version, especially because Susan, in the months following January 1999, continued to believe that there was nothing wrong with what happened. If Mother were bent on seeking revenge against Father, it would follow that she would impress upon Susan that Father is evil or that his actions were bad and wrong. It was only after a course of therapy with Dr. Klaff that Susan came to the conclusion that what happened was inappropriate.
In support of the Court's findings, the Court finds that little weight can be given the interview performed at CAC, despite the fact that Mother became convinced of the truth of the allegations after this interview. It is clear from a review of the video tape that Susan was more comfortable with Ann Pedrick. Her revelations to Ann Pedrick, instead of Terry Kaiser, are understandable. It is obvious from Susan's body language that when Terry Kaiser entered the room, she shut down completely and provided no information. However, whenever Ann Pedrick was present, [*16] Susan was more comfortable and forthcoming with information. Although Ms. Pedrick did not videotape Susan's initial statement, the Court finds that Susan did indeed make the statements to Ms. Pedrick.
All in all, the Court finds that the CAC interview was not helpful in this case. Were it the only evidence, the Court could find a failure to prove the abuse. However, Dr. Klaff indicated that Susan corroborated the details that she provided on the CAC tape in her sessions with her.
The Court accepts that Dr. Klaff's role was to treat Susan and not to determine whether the abuse occurred. While it is true that Susan was referred to Dr. Klaff by SOAR (Survivors of Abuse in Recovery), an agency that deals with children effected by sexual abuse at an early age, Dr. Klaff's main focus was to treat a child diagnosed with adjustment disorder and anxiety. Dr. Klaff testified that she formed her diagnosis within Susan's second or third visit based upon Susan's nightmares, fear of monsters, fear of being alone in bed, and scary thoughts. It was clear to her that Susan was exhibiting symptoms of anxiety. Dr. Klaff further testified that she found nothing that led her to the conclusion that Susan [*17] was coached by Mother. If she had, she would have confronted Mother. Doctor Klaff stressed that her role was not to check the veracity of the allegations or gather evidence, but only to treat her patient. She further testified that it was not customary for children of Susan's age to draw genitalia unless they have experienced sexual contact. It was significant that when the issue of the condoms was raised, Susan drew a picture of genitals with a circle around them. When asked if she wanted to draw another picture, she drew a man with genitals and a circle around it, drew frenetic circles on the head and said "It's Daddy." Doctor Klaff testified that she would not expect a five and a half year old to know about or to be able to draw a picture of such things or to know the purpose of a condom n11. All of these facts caused Dr. Klaff great concern.
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n11 Dr. Klaff testified that Susan described liquid being emitted into a condom.
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Dr. Klaff analyzed all of the pictures that Susan drew for her, and while each picture [*18] can be individually interpreted, clearly when grouped together, the pictures in this case, indicated a certain theme involving Father and the relationship to a bed. Susan was also able to describe how she touched Father's penis "at the tip", a detail of carnal knowledge uncharacteristic for a five-year old. As a result, Susan is more sexualized for a little girl, although not in a manner of traumatization that one might expect in a typical case of sexual abuse. Dr. Klaff indicated that these incidents may become more traumatic for Susan in the long run.
It is not unusual, given the circumstances of this case, that the child would think it was a good touch, done in a loving way, allowing her to be closer to a parent, especially because she was not told it was a bad thing to do. However, upon being told that it was wrong, Susan perceived it differently. It is interesting to note that after seven to eight months of treatment, Susan indicated that she did not remember what happened between her and Father, other than that she should not have told Mother. Susan also indicated that she kept the secret for a long time and that she remembers it was a secret. During this point in her therapy, [*19] while not specifically remembering what happened, Susan made comments to Dr. Klaff regarding a picture she drew when asked to draw what happened. The picture n12 was accompanied by Susan's statements "I'm yelling at Daddy and he's yelling at me. He's saying touch me and I'm saying no..no." On January 18, 2000, Susan indicated to Dr. Klaff that she felt guilty about telling a lie about not doing it. She acknowledged that Father did ask her and she did do it, i.e. "touched his peepee". Dr. Klaff specially stated that she does not believe Mother discussed any issues with Susan in later sessions. Dr. Klaff found it significant that Susan said that she did not remember, but at the same time relayed details of it occurring in the master bedroom while Mother was in the kitchen.
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n12 The picture was introduced as Mother's Exhibit 24.
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As indicated previously, part of Dr. Klaff's methodology of treating children, especially children of Susan's age, is to have the child draw. Dr. Klaff interprets those drawings, but, not [*20] in a vacuum. Her interpretations of drawings, including the Gingerbread Book, are based on her years of clinical experience and empirical studies. She objectively analyzes certain themes and elements in the material. Dr. Klaff indicated that the story was consistent in the times and places it occurred. Based on this consistency and the pictures themselves, Dr. Klaff found that the abuse occurred n13. She testified that would not be adverse to including Father in Susan's therapy in the future should Susan have difficulty in her relationship with Father.
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n13 Although Father argued that Mother had control over Susan during times when Susan drew certain pictures, and that Susan drew no suggestive pictures during the CAC interview, or for Dr. Romirowsky or Dr. Gardner, the Court finds that Susan's drawings for Dr. Klaff are legitimate.
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In her rebuttal testimony, Dr. Klaff indicated that she had a working diagnosis that was confirmed by interviews with the child. She indicated that her technique was not faulty.
Dr. [*21] Klaff gave lesser weight to Dr. Gardner's findings because he did not see Susan until a year after she had been in treatment. Dr. Klaff further indicated that throughout the course of her treatment of Susan she found several indicators of sexual symptoms and issues. She criticized Dr. Gardner for making an evaluation without talking with Susan's treating therapist and reviewing all the materials and record. Dr. Klaff pointed out that Dr. Gardner did not see Susan when she started therapy and therefore did not see the symptoms that Susan exhibited. Finally, the Court notes that Dr. Romirowsky corroborated Dr. Klaff's findings, especially those regarding the interpretation on the pictures.
Before turning to Dr. Romirowsky's custody evaluation, the Court will address Dr. Gardner's testimony. While the Court respects Dr. Gardner's years of experience and involvement in cases such as this, it questions the weight it can give his analysis and findings. The Court acknowledges that Dr. Gardner found a likelihood that the alleged abuse did not occur and agrees with his finding that the CAC interview was a suspect interview, however, the Court finds that his projective group analysis was inappropriate [*22] in this case. This method compares the subject child to children known to have been sexually abused, children who were not sexually abused, and to the 67 indicators that bear on the probability of whether abuse has occurred. However, the instant case is atypical of a normal sexual abuse case in that, as previously indicated, Susan did not feel that anything bad or wrong happened. Additionally, by the time Dr. Gardner saw her, it had been over a year since the incident occurred and Susan had been in therapy since that time. As previously noted, Susan responds differently to each individual, depending on her comfort level. In addition, Dr. Gardner only received the audio tape and not the video tape of the CAC interview so he did not have the opportunity to observe Susan's body language during the interview. The Court notes that Susan's reluctance in answering Dr. Gardner's questions is understandable given the fact that Dr. Gardner questioned her over a year after the alleged incident occurred.
With respect to Dr. Gardner's evaluation of Father for pedophilia, Dr. Gardner's own testimony indicated that his method would not indicate if Father is a regressed pedophile. Dr. Gardner testified [*23] that regressed pedophiles could include divorced, lonely individuals who crave attention. He further attested that contested divorce and custody battles could bring out repressed urges that did not previously exist, although noting that not every person will act out. Dr. Gardner acknowledged that there is not one test to determine who is a pedophile, but that his criteria are the best indicator available. In his book, Dr. Gardner indicated that his criteria are designed to identify fixated pedophiles and not regressed ones. He admitted, however, that if Father was spending one or two nights per week in Susan's bed, Father should be evaluated to determine why Father had the need for such extended contact with his daughter, as such contact is not healthy for either of them.
Dr. Gardner was critical of Dr. Klaff for treating Susan for sexual abuse. He testified that a year of treatment is not justified, even if Susan touched or pulled Father's penis, because such contact was not significant. He did indicate, however, that he might have to consider the possibility of sex abuse without trauma in this case. Dr. Gardner further acknowledges that he is in the minority on this point and that [*24] too many professionals are treating children unnecessarily. He feels that the majority of people would take Susan's statements as indicators of abuse, and noted that there has been hysteria over this issue over the last fifteen years. The Court notes Dr. Gardner did not find parent alienation in this case. He testified that generally he only recommends transferring custody to parents in very moderate and severe parent alienation cases. He indicated that there are very few cases involving false accusations that are not accompanied by parent alienation syndrome. This harks back to the Court's earlier finding that if Mother were seeking revenge on Father, she would have taken a more negative approach in influencing Susan. Again, however, an explanation of the condom issue troubles the Court, with Dr. Gardner questioning why Father would leave any evidence behind. Dr. Gardner testified that the condom claim has a preposterous quality characteristic of a false accusation.
Finally, the Court notes that Dr. Gardner acknowledged that there is no known accuracy rate for his sex abuse protocol, as no studies have ever been done. No one has ever tested his 67 criteria, so there is no external [*25] validity. He acknowledged that it cannot be verified and that it may not detect mild forms of abuse. At the same time, Dr. Gardner would not invalidate use of the protocol.
The Court heard testimony from Dr. Romirowsky, the custody evaluator in this case. Dr. Romirowsky did not focus his evaluation on whether the alleged incidents took place, but at the same time he considered whether either parent posed a risk to the children. He found that the tone on the audio tape is believable, in contrast to Dr. Gardner's finding. He noted that the comments were not histrionic or embellished upon when Susan talks about the event. These characteristics make Dr. Romirowsky believe that the events more likely than not occurred. He further found that there was no indication that Mother attempted to impose on Susan that it was bad or that it was her fault or that she was a bad person. As far as he saw, Mother was taking deliberate measures so that Susan would see herself as a normal, healthy child. He feels that Mother acted out of concern and without malice. In his testing of Mother, while he found that there were elevations of anxiety levels, he found that it was not her agenda to undermine the [*26] children's relationship with Father. Dr. Romirowsky does not believe that she fabricated the incident. He further determined that Father's comments regarding Mother and her problems and needs are not compatible with his clinical findings of Mother.
Regarding Father, he found no evidence of psychopathology and while he found nothing registered on the sexual abuse potential inventory, he indicated that it does not necessarily screen for behavior that could cause emotional harm but not physical harm. It therefore does not exclude the behavior that was alleged in this case.
The Court is especially concerned with Dr. Romirowsky's findings regarding Susan's response to the Rorschach test and the Thematic Apperception Test because they showed a different side of Susan. One indication was the death sign covered in blood. There were also responses regarding witches, monsters, and blood. While not 100% scientific, Dr. Romirowsky notes that he concludes that these results indicate a darker side of Susan over what is safe or how good she is. It is clearly evidence of anger and frustration. In the Incomplete Sentences Test, Susan notes that she looks in a mirror and sees an evil twin sister and [*27] then runs away, possibly evidencing Susan's struggle with good versus bad acts.
Dr. Romirowsky finds no indication that Susan has been traumatized from the testing or from Mother, Dr. Gardner or Dr. Klaff. He concluded that she suffers from adjustment disorder requiring on-going treatment, especially in light of the possible effects of this Order, the presence of anxiety, some knowledge or impression of sexualization, and a connection to bed, Father and genitalia. As indicated, he corroborates Dr. Klaff's interpretation of the totality of the pictures that Susan drew. While Dr. Romirowsky shares Dr. Gardner's concerns regarding the DFS interview, he does not disregard it or discount its validity because it is not being viewed in a vacuum but it is considered with all of the information taken in the context of that interview.
As he was hired to do, Dr. Romirowsky has made a custody recommendation to the Court. He testified that in spite of the significant tension and anger between the parents, once all litigation is resolved, both Mother and Father are dedicated to their children and will do what is necessary to resolve the major issues involving their children. He indicated that [*28] both parties have the requisite skills to communicate and work with one another. He recommends joint custody so that neither parent will feel disenfranchised, noting that both have indicated to him that they would work with each other. As for contact, he noted that it is important for Susan and Harriet to maintain a normal relationship with Father. This would include spontaneity of contact as well as shared activities. Dr. Romirowsky recommends that visitation occur in Father's home, away from the artificial constraints of the Visitation Center, however, the visits should continue to be supervised. He recommends that Father employ someone to be present during visits in his home or elsewhere, until such time that all experts have confidence that the girls are old enough to report any difficulties. He finds that primary placement with Mother is appropriate and that contact with Father be expanded dramatically to conform with Standard Visitation, excluding any overnights. He specifically recommended alternating weekends, Friday evenings from 5:00 to 8:00 p.m., Saturdays from 10:00 a.m. to 6:00 p.m., and Sundays from 10:00 a.m. to 6:00 p.m. In addition, he recommends weekly visits on Wednesday [*29] from 5:00 to 8:00 p.m. He further feels that Father's visitation should continue to be supervised until such time as a mental health professional recommended by the Court approve unsupervised visitation. He recommends alternating holidays, alternating spring and winter breaks, as well as summer visitation.
Dr. Romirowsky further finds that it is not in the best interest of the children for Father to have primary placement. He bases his recommendation to a reasonable degree of psychological certainly on the fact that they have relied primarily on Mother heretofore and that not having her as primary caretaker could be detrimental to them. He indicates that no one has provided any evidence that the girls are not thriving while in Mother's care, noting that even under the difficult circumstances, the children still have maintained their relationship with Father. It is reasonable to conclude that because Dr. Romirowsky does not recommend overnight visitation with Father, primary placement is not a possibility. He finds that Father's claims of fabrication by Mother regarding these allegations is baseless. Therefore, Father's claim that Mother is unfit to parent is without merit. Finally, [*30] Dr. Romirowsky believes that Mother acted responsibly in this case.
It is noted that on cross-examination he acknowledged that the results of Father's test on Child Abuse Potential Inventory were negative but that there was no real test for pedophilia, only indicators. He notes that Father is resistant to treatment, however at the same time, he concludes that Father is not in need of treatment. On redirect, he noted that the presence of psychopathology is not necessary as evidence that an individual has engaged in incest either as evidenced by the personality assessment inventory or the child abuse potential inventory. He noted that there is literature distinguishing general pedophilia from circumstances in a family that might lead to incest. He set forth four precursors as conditions for incest in regards to likelihood it has occurred:
1) Where the marriage has failed, and either parent might be in a position where they are not getting much love and attention;
2) Where the parent would temporarily or permanently overcome his or her own internal inhibitions to the incestuous act;
3) Where the parent has access to the child absent the other parent, apart from the [*31] supervised situation where the other parent would be present;
4) Where the parent overcomes the child's resistance to any inappropriate behavior. The Court notes that these conditions are consistent with Dr. Gardner's definition of a regressed pedophile. According to Dr. Romirowsky, Father satisfies factors 1, 3 and 4, while there is no evidence regarding factor 2 n14. With respect to the first factor, Dr. Romirowsky acknowledged that separation and a deteriorating marriage could lead to an individual's need for affection and unconditional love and that it certainly sets the stage for a child to take the place of a spouse. With regard to the third factor, he notes that according to Susan, the events took place when Mother was either in the kitchen cooking dinner or asleep on the couch. With respect to the fourth factor, he noted that when the child is affectionate, enjoys pleasing a parent, and does not view what she is doing as wrong, there would be less resistance. Although Father argues that the first and third factor could apply to any separation and divorce case, the Court notes that in the majority of divorce cases, there are not accusations and allegations like those [*32] in this case.
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n14 With the Court's finding that inappropriate contact occurred, this factor can be considered affirmatively answered.
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Turning now to other witnesses, the Court notes that the testimony of Ms. Denny was consistent with both parties testimony that visitations between Father and the children have been going well at the Visitation Center. This testimony supports Dr. Romirowsky's recommendation that visitation with Father be expanded beyond the confines of the Visitation Center. As to the trial deposition testimony of Mother's neighbor, the Court finds this corroborates Mother's version of events notwithstanding his lack of memory regarding the specific statement of a sexual nature that Susan made in his presence. He did recall a statement of a sexual nature being made, and therefore his testimony regarding the timing of the event is appropriate.
With respect to the trial deposition testimony of Ann Pedrick and Terry Kaiser, the Court found Ms. Pedrick's testimony credible as to Susan's initial revelation [*33] to her regarding what transpired. It is clear from the videotape that Susan is much more comfortable confiding in Ann Pedrick and resisted opening up to Terry Kaiser.
As to Mother's testimony, as the Court has previously indicated, the Court finds her version of events to be the most believable for the reasons previously set forth. As such, with the Court finding Mother's testimony more credible than Father's, and with the positions of Mother and Father being at total opposites, the Court finds Father's denial of inappropriate contact unbelievable. At the same time, the Court acknowledges that what may have started out as innocent contact between a Father and daughter reading stories in bed together, nevertheless culminated in inappropriate sexual contact between them. The most impressive result of what occurred is that Susan was not traumatized by the incident, however, at the same time, has become cognizant that what occurred was inappropriate. It is only hoped by the Court that with the therapy she has undergone and may need in the future, the incident can be resolved and the parties can go on to live a normal life and maintain healthy relationships.
Having concluded that Mother [*34] has sustained her burden of proof by a preponderance of the evidence that inappropriate sexual contact has occurred, the Court will review HN4the best interest factors enumerated in 13 Del. C. § 722.
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements. This factor favors Mother because of her history as the primary caretaker when the parties were together, notwithstanding Father's assistance on the weekends when he was not working. Additionally, the Court finds that she took the appropriate course of conduct when the sexual abuse allegations came to light. Father, on the other hand, has accused Mother of coaching Susan to falsely accuse him of sexual abuse for the sole purpose of gaining revenge on him for not altering the prenuptial agreement between the parties. The Court finds that Father has taken an all or nothing approach in this case which does not reflect that he has kept the best interests of his children in mind. Obviously, with the finding of inappropriate sexual contact, this factor clearly favors Mother.
(2) The wishes of the child as to his or her custodian(s) and residential
[*35] arrangements.
The Court did not interview the children for several reasons including the young age of the children, especially Harriet, and because of the frequency of interviews that Susan has been subjected to. The Court finds that it has sufficient information from those sources to glean her wishes and desires. Clearly, the wishes of Susan are to see Father more than she is currently seeing him as it was obvious from the evidence that she misses her extended contact with him which has been limited due to the supervised visitation at the Visitation Center. The Court notes that Dr. Romirowsky's recommendation was for Mother to have primary residency, noting this recommendation came after interviews and testing with Susan.
(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;
The evidence has supported the fact that both parents have an excellent relationship with each of their children. The visits have been going extremely well [*36] at the Northeast Visitation Center and Dr. Romirowsky has observed both parents acting appropriately with the children and being attuned to their needs. Obviously, with the Court's finding of inappropriate sexual contact between Father and Susan, that relationship has suffered and it is only hoped that it can be rekindled to what one may consider a normal relationship. The Court accepts Mother's feelings that Father remained in bed with Susan beyond what is normal and appropriate. While it is one thing to read stories in bed with a child, it is another to remain the evening there. Again, unfortunately, what was a happy and pleasurable moment for Susan resulted in more than what any child, especially a child as young as Susan, should experience.
Father's testimony regarding the different parenting styles employed by Mother and himself, with Mother being more prone to physical and verbal discipline of the children, reflected well on Father. The Court finds Father's style more appropriate in that he reasons with the children, talks with them, and uses time-outs instead of other forms of discipline.
With respect to extended family, it is undisputed that as a result of the parties separation [*37] and restrictions pursuant to the original PFA Order and pursuant to the parties' divorce, the children have enjoyed more significant contact with Mother's extended family. It should be noted that the Court heard no evidence that Father's parents filed a Petition for Visitation or accompanied Father to visits at the Visitation Center. While Father testified that should the Court award him residency, his parents would move to Delaware and become an integral source of support for him and the children, the evidence suggest that they have not been there for the children over the past year and a half. As a result of the situation, Mother has been a full-time parent for almost two years now. As a result, this factor favors Mother.
(4) The child's adjustment to his or her home, school and community; By all accounts, the children are well-adjusted to their home and community, and as far as Susan is concerned, to school. Harriet is not in school at this point in time. Although the Court acknowledges that the former marital residence is to be sold, both parties have testified that should they be awarded primary residency, they would remain in the area in order to provide stability [*38] for school purposes for Susan. While there was some dispute regarding who was responsible for pool membership, the purchase of a swing set, and Synagogue attendance, the Court finds these factors should not be given as much weight as the parties have implied. The bottom line is that the children are thriving under Mother's care and that there is no evidence, aside from Father's allegations that Mother falsified the allegations, that she is unfit with regard to her ability to take care of the children on a day-to-day basis. As Dr. Romirowsky further indicated, she has been able to provide for their medical care, respond to their needs, including academically, and has made sure that they continue to be clean, fed, and nurtured. He noted this was especially true notwithstanding the difficult circumstances. He adds that the girls have a good relationship with both Father and Mother. This factor favors Mother.
(5) The mental and physical health of all individuals involved; The Court has previously detailed the significant findings of Drs. Klaff, Romirowsky and Gardner and will not reiterate them here, other than to say that it is obvious from the evidence that Susan suffers [*39] from adjustment disorder with anxiety. While Father argued that this could have been just as easily caused by the separation, divorce and lack of contact he personally had with the children, the Court finds that it is more likely a result of the sexual abuse at the hands of Father n15. The Court is not minimizing the impacts of divorce and separation, however, had the sexual abuse not occurred, the evidence in this case indicates that the parties would have continued to maintain significant contact notwithstanding who was the primary residential parent. It is also important to note that in Dr. Romirowsky's testing, both parties tested normally, showing no signs of psychopathology. Although Dr. Romirowsky found that Mother has higher levels of anxiety, he also indicated that it would not be abnormal for that to be present in the case at hand. For the reasons set forth herein, as well as in the previous discussion regarding the experts testimony on the issue of sexual abuse, the Court finds that this factor favors Mother.
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n15 This finding is further buttressed by the total lack of evidence regarding any problems that Harriet has had due to the factors that Father alleged.
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(6) Past and present compliance by both parents with their rights and responsibilities to their child under 13 Del. C. § 701 of this title;
The Court finds that Father did have to come to Court after the initial PFA Order was entered in order to ensure a more scheduled telephone contact between he and the children, and that Mother did not take steps to encourage that contact prior to the Order being entered. However, at the same time, the Court notes that Mother burdened herself by having visitation occur at the Northeast Visitation Center so as not to wait an additional three to four months to commence visitation at the Hudson Visitation Center. Further, because the Court finds that the sexual abuse allegations are true, the Court does not accept Father's possible argument that Mother violated her obligation as a parent by bringing false accusations. The Court finds overall that this factor does not favor either party.
(6) Evidence of domestic violence as provided for in Chapter 7A of this title.
Mother testified as to several incidents of physical abuse at the hands of Father during the parties' marriage, the most significant being the time that Father grabbed Mother [*41] and forcibly removed her from Susan's doorway because Mother attempted to prevent Father from sleeping with Susan that night. At the same time, however, Mother did not characterize the events as violent but as physical intimidation. The Court notes that no charges were ever filed against Father and Father was never brought to Court and the psychological testing indicated that neither party scored on the abuse testing. Obviously, with the finding that sexual abuse did occur, domestic violence is evident in this case as described in Chapter 7A of Title 13. This factor favors Mother.
With the Court finding a review of the best interest factors supports the conclusion that Mother should be the primary residential parent, the Court shall enter an Order accordingly. Therefore, joint custody of both minor children are awarded to Mother and Father, with primary residence to be in Mother's household. Further, the Court accepts Dr. Romirowsky's recommendation regarding an expansion of Father's visitation rights. The Court specifically finds that Father should be entitled to visitation every other weekend, on Friday evenings 5:00 to 8:00 p.m., Saturdays 10:00 to 6:00 p.m., Sunday's 10:00 to [*42] 6:00 p.m., along with every Wednesday from 5:00 to 8:00 p.m. Mother shall have the right to approve of the individual or individuals who will provide supervision. Absent an agreement of the parties, the Court would approve of Paternal Grandparents or a nanny hired by Father for that purpose. Obviously, the parties are free to agree to any other third party to provide supervision, including but not limited to family, friends, and coworkers. Further, the parties shall alternate holidays pursuant to the Standard Visitation Guidelines, but which shall be limited to exclude overnights. Additionally, Father would be entitled to alternating winter and spring breaks from school, again daytime only from 10:00 a.m. to 6:00 p.m. on the days he is able to take them. Father also would be entitled to take up to five weeks in the summer on the days he is available, so long as supervision occurs. The Court also finds that supervised visitation of Harriet is appropriate, especially in light of the sex abuse finding involving Susan. Clearly the opportunity for abuse is present with Harriet if visitation is unsupervised, and the Court is uncomfortable allowing that opportunity to exist.
While the Court [*43] acknowledges the restrictions for visitation set forth in 13 Del. C. § 710A, the facts of this case are such that supervised visitation is occurring presently and, as a result of the hearing and findings herein, will continue in the foreseeable future. Applying the five factors enumerated in 13 Del. C. § 710A to the facts of this case, the Court finds that as to the first factor, although Father has not completed a treatment program, Dr. Romirowsky and Dr. Gardner both testified that Father is not in need of one. With respect to the second factor, the Court finds that alcohol and drug abuse was not an issue in this case. With respect to the third factor, the Court accepts Dr. Klaff's finding that supervised visitation is appropriate and that despite what transpired, Father and Susan have a good relationship. The fourth factor is not applicable in this case because Father does not have a treating therapist. Finally, with respect to the fifth factor, and for the reasons discussed, the Court finds that supervised visitation with Father is in the best interests of Susan and Harriet.
The Court finds that a liberal interpretation [*44] of the statute may not preclude a finding regarding future visitation being unsupervised. However, that issue is not before the Court and may need to be addressed at some point in the future. It is not presently ripe for consideration. Therefore, for the reasons set forth herein, Father's visitation with Susan and Harriet shall be supervised.
ATTORNEY'S FEES
Mother has requested in her closing arguments that she be afforded the opportunity to request an award of attorney's fees due to the protracted litigation that has occurred in this case and due to Father's financial superiority. The Court, therefore, directs that within 15 days of this Order, Mother shall file a Motion and Affidavit for Attorney's Fees and Costs to which Father shall have 10 days to respond. The Court will reserve a decision on the issue of attorney's fees until the submission of those filings. Should Mother fail to file her Motion and Affidavit within 15 days of the date of the Court Order, she will be foreclosed from pursuing that action.
IT IS SO ORDERED.
Mark D. Buckworth, Judge
* Pursuant to the 8/16/00 Order, the Court is using pseudonyms to identify the parties.
FILE NO. CN99-06509, PETITION NO. 99-01329
FAMILY COURT OF DELAWARE, NEW CASTLE
October 2, 2000, Submitted
December 19, 2000, Decided
DISPOSITION: [*1] Father's visitation with Susan and Harriet supervised.
CORE TERMS: visitation, custody, sexual abuse, interview, tape, picture, supervised visitation, audio, inappropriate, drew, residential, recommend, happened, condom, bed, best interest, sexual contact, recommendation, residency, therapy, anxiety, accusation, pedophile, indicator, household, treating, divorce, revenge, testing, preponderance
HN1 In a normal custody case, a Delaware family court evaluates the factors set forth in Del. Code Ann. tit. 13, § 722. Where a custody case is overshadowed by allegations of sexual abuse, however, before the court can even entertain a review of the best interest factors, it must first resolve whether the allegations are true. If the court finds by a preponderance of the evidence that those allegations are true, then there are statutory considerations that impact a parent's rights. Del. Code Ann. tit. 13, § 710A.
Family Law > Child Custody > Awards HN2 See Del. Code Ann. tit. 13, § 722(a).
Family Law > Child Custody > Visitation
Family Law > Family Protection & Welfare > Children HN3 See Del. Code Ann. tit. 13, § 710A.
Family Law > Child Custody > Awards HN4 The best interest factors used in Delaware child custody determinations, enumerated in Del. Code Ann. tit. 13, § 722, are as follows: (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 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 Del. Code Ann. tit. 13, § 701; and (7) evidence of domestic violence as provided for in Del. Code Ann. tit. 13, ch. 7A.
COUNSEL: CURTIS P. BOUNDS, ESQ., ATTORNEY FOR PETITIONER. H. ALFRED TARRANT, JR., ESQ., ATTORNEY FOR RESPONDENT.
JUDGES: Mark D. Buckworth, Judge.
OPINIONBY: Mark D. Buckworth
OPINION: PETITION FOR CUSTODY/COUNTER-CLAIM FOR CUSTODY
BUCKWORTH, J.
Pending before the Court is a Petition for Custody filed by Barbara G. Ford ("Mother") against Samuel C. Ford ("Father") regarding the parties' two minor children, Susan * n1 born June 28, 1993, and Harriet * n2 born January 16, 1996. Pursuant to this Court's Order of August 16, 2000, the Court will use pseudonyms to identify the parties. The issues before the Court relate to the custody and visitation of the parties' minor children. The Court held a hearing in this matter that lasted four days; specifically, May 31, 2000; June 1, 2000; June 22, 2000; and June 26, 2000. The Court allowed counsel to submit closing memoranda. Both parties submitted closing memoranda on September 1, 2000 and subsequently submitted replies to those closing arguments on October 2, 2000. In addition to the testimony of the parties, the Court heard testimony from the following witnesses:
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* Pursuant to the 8/16/00 Order, the Court is using pseudonyms to identify the parties. [*2]
n1 Pseudonym used.
n2 Pseudonym used.
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Rabbi David Kaplan; Frances Klaff, Ph.D.; Dr. Richard A. Gardner; Samuel Romirowsky, Ph.D.; trial deposition of Dave Swain * n3; trial deposition of Ann Pedrick of the Division of Family Services (DFS); and the trial deposition of Pamela Denney of the State of Delaware Visitation Center. The Court received a volume of exhibits at trial, including video tapes and an audio tape.
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n3 Pseudonym used.
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The Court reserved its decision regarding the introduction of DFS records pending the post-trial submission of counsel. The Court received the post-trial submissions simultaneously on August 4, 2000. The Court will address this issue first as it pertains to the introduction of evidence.
Mother requests admission into evidence of pages 16-17, 22-25, and 39 of the DFS records. Father does not object initially to the introduction of pages 24, 25 and 39, or the first paragraph of page 22. [*3] However, Father objects to the introduction of pages 16, 17, 23, as well as the balance of page 22. The Court finds that pages 16, 17, 22, and 23, although contested by Father, shall be admissible into evidence pursuant to Delaware Rules of Evidence 801(d)(1)(B), as they are not hearsay. The disputed pages are consistent with trial testimony and, in addition, are being used properly to rebut charges of improper influence and motive n4.
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n4 The primary thrust of Father's case against Mother is that Mother had an improper motive in bringing sexual abuse allegations against him. As such, this evidence clearly is being presented to rebut that argument.
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Father requests introduction of pages 14, the first paragraph of page 22 n5, 23 except as to line 4 of the first full paragraph, and 24. The Court allows the introduction of page 24, as neither party disputes its admissibility. The Court, however, accepts the version presented by Mother that contains an additional paragraph regarding a telephone call. Additionally, [*4] the Court will accept Father's version of page 23 as the Court agrees with Father that the statement regarding Detective Williams constitutes double hearsay because Detective Williams was not called as a witness. The Court specifically rejects Father's arguments that the requested documentation from Mother should be excluded because it is duplicative and because he did not have an opportunity to cross-examine. Clearly, those documents were sought to be admitted prior to the final day of trial, and both parties had copies of those records. Therefore, counsel for the parties had the opportunity to cross-examine the parties regarding their testimony on the fourth day of trial. The Court declines to find the evidence duplicative as it was offered to show consistency with trial testimony and to rebut a charge of improper motive. The Court shall admit page 14, as Father has requested, pursuant to 801(d)(1)(C), as it shows the identity of the caller n6. Finally, both parties agree to the introduction of page 39 n7. The Court hereby admits Mother's pages 16, 17, 22, 24, 25, and 39 as Mother's Exhibit # 39 and admits Father's page 14 and 23 as Father's Exhibit # 6.
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n5 The introduction of this page has been discussed above and shall be admitted. [*5]
n6 The Court also notes that Mother testified that she was not the first to call DFS and that she had gone to neighbors regarding the issue.
n7 Page 39 is the case plan signed by Mother.
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PROCEDURAL HISTORY
The parties in this case were formerly husband and wife. They separated around June or July 1998, but continued to reside in the same household until January 14, 1999, when Mother and the children left the household. Mother filed a Petition for Custody on January 15, 1999 and a Petition for Protection From Abuse (PFA) on January 19, 1999. She received an Ex Parte Order that date. On January 29, 1999, Father entered into a Consent PFA Order. The Order allowed Mother and the children to move back into the house, thereby removing Father from the home. Mother and the children have resided in the former marital residence since that time.
On March 3, 1999, Father filed an Answer and Counter-Claim to Mother's Petition for Custody and Mother filed an Answer to Father's Counter-Claim on March 16, 1999. Thereafter, the parties executed a Stipulation and Order that modified the PFA Order, [*6] signed by a Commissioner on April 27, 1999. On May 11, 1999, the Commissioner further clarified the PFA Order. Finally, the Court entered a modified Order regarding Father's visitation on January 27, 2000, and the parties have been operating under that Order since that time.
Although initially both parties opposed joint custody, at trial the parties agreed to continue joint custody of the children. Each requested primary residency. Mother testified that if the Court awards her residency of the children, she seeks to continue Father's supervised visitation. Father indicated that if Mother is awarded residency, he wants liberal, unsupervised visitation. However, Father asked that he be awarded primary care and Mother, liberal visitation.
STATEMENT OF FACTS
Mother's allegations of sexual abuse regarding Father and Susan, the parties' oldest child, precipitated the parties' separation in January 1999. On January 8, 1999, DFS received a call from Jewish Family Services and two other calls from Ann Cash * n8, a neighbor of the parties, regarding the allegations. DFS began an investigation on January 14, 1999, by having Ann Pedrick interview Susan. Later that day, Susan was taken [*7] to the Children's Advocacy Center (CAC) and was interviewed on video by Ann Pedrick, as well as Terry Kaiser, a Forensic Interviewer. New Castle County Police questioned Father, who denied the allegations. Father was removed from the former marital residence pursuant to the Ex Parte PFA Order entered on January 19, 1999. On January 29, 1999 a Consent PFA Order was entered extending Father's exclusion from the marital residence. Mother made an audio tape of Susan in mid-January 1999 in which she confirmed the allegations. After the January 29, 1999 PFA Order, Father brought the matter back to Court to outline a specific telephone schedule for his contact with the children. It was not until May 1999 that Father began visitation at the State Visitation Center. The parties utilized the Northeast Visitation Center due to its current availability, notwithstanding the fact that both reside closer to the Hudson Center in Newark. Father's visitation ultimately was extended to 2 two-hour blocks per week pursuant to Court Order in January 2000. The parties have continued to operate under that Order.
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n8 Pseudonym used.
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In addition to being examined by Dr. Alan DeJong, a physician at A.I. DuPont Hospital who found no physical evidence of abuse, Susan was counseled for over a year by Dr. Frances Klaff. She was further evaluated by Father's expert, Dr. Richard Gardner, and was the subject of a custody evaluation performed by Mother's expert, Dr. Samuel Romirowsky.
FINDINGS
HN1In a normal custody case, the Court would evaluate the factors set forth in 13 Del. C. § 722 n9. However, this is custody case is overshadowed by allegations of sexual abuse and therefore is not a normal custody case. The major issue before the Court is the allegation of sexual molestation committed by Father against Susan. Before the Court can even entertain a review of the best interest factors, it must first resolve whether the allegations are true. If the Court finds by a preponderance of the evidence that those allegations are true, then there are statutory considerations that impact Father's rights. 13 Del. C. § 710A n10. It has been argued that the statute presumes not only that a parent who is found to have sexually abused a child is prohibited from [*9] having custody, but that the offending parent should not have any contact or visitation until such time as the Court deems that supervised visitation is appropriate. The Court notes that, in this case, supervised visitation has been taking place. Mother argues that the statute dictates that Father never will be entitled to anything but supervised visitation.
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n9 13 Del. C. § 722. Best interest of a child.HN2
(a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including: (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(s) 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; and (7) Evidence of domestic violence as provided for in Chapter 7A of this title. [*10]
n10 13 Del. C. § 710A provides:HN3
If the Court finds by a preponderance of the evidence that a parent has sexually abuse a child, the Court shall prohibit all visitation and contact between the abusive parent and the child until such time as the Court finds, after a hearing, that supervised visitation would not harm, endanger, or impair the child's physical, psychological, or emotional well-being. In determining whether such visitation may be appropriate, the Court should consider all relevant factors, including: 1) Whether the abusive parent has successfully completed a treatment program of evaluation and counseling that is specifically designed for sexual abusers and is conducted by a public or private agency or a certified mental health professional; (2) Whether the abusive parent has successfully completed a program of alcohol or drug abuse counseling; (3) Any testimony by a mental health professional who is the therapist for the abused child; (4) Any testimony by a mental health professional who is the therapist for the abusive parent; and (5) Whether supervised visitation is in the child's best interests.
Nothing in this section shall preclude the Court from denying visitation under other appropriate circumstances, including denying such visitation under an ex parte or other emergency order.
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If the Court finds that Mother has failed to sustain her burden of proof regarding the occurrence of sexual abuse, the Court must then decide whether Mother has falsely accused Father. Should the Court find that Mother coached the child and brought false allegations, Father argues that Mother is unfit to be the children's primary caretaker. However, the Court could find that Mother did not prove the allegations of abuse by a preponderance of the evidence, yet that she did not falsely bring these allegations, rather she acted in a course of conduct that she felt was in the best interest of her children.
There was testimony from Dr. Gardner, Father's expert, that the statements Susan made that led to the investigation simply could have been innocent comments made by a precocious, highly intelligent five-year old, to which Mother responded in an inflammatory way. Were this the case, the Court would rely on the best interest factors enumerated in 13 Del. C. § 722 in order to determine which parent would be the most appropriate primary caretaker.
It is undisputed that this case is troubling in many aspects. The position of the parties is that either the alleged abuse occurred and Father should [*12] have restricted contact forever, or that abuse did not occur and Mother is bringing these charges as revenge for Father's enforcement of the parties' prenuptial agreement. After four days of trial, submissions of trial depositions, exhaustive review of video tapes and an audio tape, and a thorough review of the closing arguments, the Court must make certain findings. In doing so, the Court must consider the credibility of the witnesses, the positions of the parties, their motivation, the relationship and interaction of people that had significant contact with the parties, and finally the Court's most important job of reconciling the conflicting evidence and testimony.
The Court will not recite all of the testimony from the four-day hearing, as the record clearly speaks for itself and counsel for both parties have obtained transcripts of the trial. The Court, however, will place emphasis on those parts of the testimony that have impacted its decision and on which it relies.
EVIDENTIARY FINDINGS
The Court finds, based upon all the evidence presented and notwithstanding Father's continued denials to the contrary, that Mother has sustained her burden of proof that Father had [*13] inappropriate sexual contact with Susan. The Court stresses that its finding is not an easy one to make, but one that is supported by the evidence. First, the Court finds that Mother did not coach Susan regarding her explanation of Susan's disclosure or the subsequently obtained audio tape in which Susan repeated the allegations. Despite Father's contention that the mood was too light (there was singing both before and after the accusations were recorded), the Court has listened to the audio tape numerous times and finds that there is a break in recording both before and after Susan's disclosure. The Court reconciles the fact that Susan was not upset or crying, with the repeated testimony from all of the experts that Susan did not consider what happened to be bad and was not traumatized by it initially. Therefore, the Court finds that Susan's composure on the audio tape is not relevant to the truth of her statements. The Court specifically finds that Susan's comments on the audio tape are her , and not the words of another. As such, while Mother may have asked Susan to repeat what she had disclosed previously, the Court finds that Susan's statements on the audio tape are inconsistent [*14] with statements that are coached or memorized by a five-year old child.
Having found that the audio tape is legitimate, the Court finds that Mother's actions thereafter are an appropriate response. The Court accepts Mother's version of the subsequent events. Initially, Mother approached Father who denied the accusations and alleged that Susan was lying. She sought advice from her Rabbi who referred her to Jewish Family Services. Jewish Family Services called DFS, with whom Mother cooperated in order to ascertain the truth of the allegations. Mother sought advice from a friend. In addition, the Court finds Mother's version of her confrontation of Father at the library to be credible.
The only unclear issues to the Court are the facts and circumstances surrounding Mother's finding condoms in parts of the house under Father's exclusive control. The Court agrees with Dr. Gardner that Mother failed to ask the critical question of how Susan knew what a condom was. The Court finds both Mother's explanation and Father's explanation insufficient, yet the Court finds Mother's version to be the more credible.
The Court agrees with Father's argument that Mother would have been upset with his [*15] refusal to alter or destroy the prenuptial agreement, but the Court does not find that she would put her children at risk in order to seek revenge against him. The Court finds it unrealistic to accept that version, especially because Susan, in the months following January 1999, continued to believe that there was nothing wrong with what happened. If Mother were bent on seeking revenge against Father, it would follow that she would impress upon Susan that Father is evil or that his actions were bad and wrong. It was only after a course of therapy with Dr. Klaff that Susan came to the conclusion that what happened was inappropriate.
In support of the Court's findings, the Court finds that little weight can be given the interview performed at CAC, despite the fact that Mother became convinced of the truth of the allegations after this interview. It is clear from a review of the video tape that Susan was more comfortable with Ann Pedrick. Her revelations to Ann Pedrick, instead of Terry Kaiser, are understandable. It is obvious from Susan's body language that when Terry Kaiser entered the room, she shut down completely and provided no information. However, whenever Ann Pedrick was present, [*16] Susan was more comfortable and forthcoming with information. Although Ms. Pedrick did not videotape Susan's initial statement, the Court finds that Susan did indeed make the statements to Ms. Pedrick.
All in all, the Court finds that the CAC interview was not helpful in this case. Were it the only evidence, the Court could find a failure to prove the abuse. However, Dr. Klaff indicated that Susan corroborated the details that she provided on the CAC tape in her sessions with her.
The Court accepts that Dr. Klaff's role was to treat Susan and not to determine whether the abuse occurred. While it is true that Susan was referred to Dr. Klaff by SOAR (Survivors of Abuse in Recovery), an agency that deals with children effected by sexual abuse at an early age, Dr. Klaff's main focus was to treat a child diagnosed with adjustment disorder and anxiety. Dr. Klaff testified that she formed her diagnosis within Susan's second or third visit based upon Susan's nightmares, fear of monsters, fear of being alone in bed, and scary thoughts. It was clear to her that Susan was exhibiting symptoms of anxiety. Dr. Klaff further testified that she found nothing that led her to the conclusion that Susan [*17] was coached by Mother. If she had, she would have confronted Mother. Doctor Klaff stressed that her role was not to check the veracity of the allegations or gather evidence, but only to treat her patient. She further testified that it was not customary for children of Susan's age to draw genitalia unless they have experienced sexual contact. It was significant that when the issue of the condoms was raised, Susan drew a picture of genitals with a circle around them. When asked if she wanted to draw another picture, she drew a man with genitals and a circle around it, drew frenetic circles on the head and said "It's Daddy." Doctor Klaff testified that she would not expect a five and a half year old to know about or to be able to draw a picture of such things or to know the purpose of a condom n11. All of these facts caused Dr. Klaff great concern.
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n11 Dr. Klaff testified that Susan described liquid being emitted into a condom.
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Dr. Klaff analyzed all of the pictures that Susan drew for her, and while each picture [*18] can be individually interpreted, clearly when grouped together, the pictures in this case, indicated a certain theme involving Father and the relationship to a bed. Susan was also able to describe how she touched Father's penis "at the tip", a detail of carnal knowledge uncharacteristic for a five-year old. As a result, Susan is more sexualized for a little girl, although not in a manner of traumatization that one might expect in a typical case of sexual abuse. Dr. Klaff indicated that these incidents may become more traumatic for Susan in the long run.
It is not unusual, given the circumstances of this case, that the child would think it was a good touch, done in a loving way, allowing her to be closer to a parent, especially because she was not told it was a bad thing to do. However, upon being told that it was wrong, Susan perceived it differently. It is interesting to note that after seven to eight months of treatment, Susan indicated that she did not remember what happened between her and Father, other than that she should not have told Mother. Susan also indicated that she kept the secret for a long time and that she remembers it was a secret. During this point in her therapy, [*19] while not specifically remembering what happened, Susan made comments to Dr. Klaff regarding a picture she drew when asked to draw what happened. The picture n12 was accompanied by Susan's statements "I'm yelling at Daddy and he's yelling at me. He's saying touch me and I'm saying no..no." On January 18, 2000, Susan indicated to Dr. Klaff that she felt guilty about telling a lie about not doing it. She acknowledged that Father did ask her and she did do it, i.e. "touched his peepee". Dr. Klaff specially stated that she does not believe Mother discussed any issues with Susan in later sessions. Dr. Klaff found it significant that Susan said that she did not remember, but at the same time relayed details of it occurring in the master bedroom while Mother was in the kitchen.
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n12 The picture was introduced as Mother's Exhibit 24.
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As indicated previously, part of Dr. Klaff's methodology of treating children, especially children of Susan's age, is to have the child draw. Dr. Klaff interprets those drawings, but, not [*20] in a vacuum. Her interpretations of drawings, including the Gingerbread Book, are based on her years of clinical experience and empirical studies. She objectively analyzes certain themes and elements in the material. Dr. Klaff indicated that the story was consistent in the times and places it occurred. Based on this consistency and the pictures themselves, Dr. Klaff found that the abuse occurred n13. She testified that would not be adverse to including Father in Susan's therapy in the future should Susan have difficulty in her relationship with Father.
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n13 Although Father argued that Mother had control over Susan during times when Susan drew certain pictures, and that Susan drew no suggestive pictures during the CAC interview, or for Dr. Romirowsky or Dr. Gardner, the Court finds that Susan's drawings for Dr. Klaff are legitimate.
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In her rebuttal testimony, Dr. Klaff indicated that she had a working diagnosis that was confirmed by interviews with the child. She indicated that her technique was not faulty.
Dr. [*21] Klaff gave lesser weight to Dr. Gardner's findings because he did not see Susan until a year after she had been in treatment. Dr. Klaff further indicated that throughout the course of her treatment of Susan she found several indicators of sexual symptoms and issues. She criticized Dr. Gardner for making an evaluation without talking with Susan's treating therapist and reviewing all the materials and record. Dr. Klaff pointed out that Dr. Gardner did not see Susan when she started therapy and therefore did not see the symptoms that Susan exhibited. Finally, the Court notes that Dr. Romirowsky corroborated Dr. Klaff's findings, especially those regarding the interpretation on the pictures.
Before turning to Dr. Romirowsky's custody evaluation, the Court will address Dr. Gardner's testimony. While the Court respects Dr. Gardner's years of experience and involvement in cases such as this, it questions the weight it can give his analysis and findings. The Court acknowledges that Dr. Gardner found a likelihood that the alleged abuse did not occur and agrees with his finding that the CAC interview was a suspect interview, however, the Court finds that his projective group analysis was inappropriate [*22] in this case. This method compares the subject child to children known to have been sexually abused, children who were not sexually abused, and to the 67 indicators that bear on the probability of whether abuse has occurred. However, the instant case is atypical of a normal sexual abuse case in that, as previously indicated, Susan did not feel that anything bad or wrong happened. Additionally, by the time Dr. Gardner saw her, it had been over a year since the incident occurred and Susan had been in therapy since that time. As previously noted, Susan responds differently to each individual, depending on her comfort level. In addition, Dr. Gardner only received the audio tape and not the video tape of the CAC interview so he did not have the opportunity to observe Susan's body language during the interview. The Court notes that Susan's reluctance in answering Dr. Gardner's questions is understandable given the fact that Dr. Gardner questioned her over a year after the alleged incident occurred.
With respect to Dr. Gardner's evaluation of Father for pedophilia, Dr. Gardner's own testimony indicated that his method would not indicate if Father is a regressed pedophile. Dr. Gardner testified [*23] that regressed pedophiles could include divorced, lonely individuals who crave attention. He further attested that contested divorce and custody battles could bring out repressed urges that did not previously exist, although noting that not every person will act out. Dr. Gardner acknowledged that there is not one test to determine who is a pedophile, but that his criteria are the best indicator available. In his book, Dr. Gardner indicated that his criteria are designed to identify fixated pedophiles and not regressed ones. He admitted, however, that if Father was spending one or two nights per week in Susan's bed, Father should be evaluated to determine why Father had the need for such extended contact with his daughter, as such contact is not healthy for either of them.
Dr. Gardner was critical of Dr. Klaff for treating Susan for sexual abuse. He testified that a year of treatment is not justified, even if Susan touched or pulled Father's penis, because such contact was not significant. He did indicate, however, that he might have to consider the possibility of sex abuse without trauma in this case. Dr. Gardner further acknowledges that he is in the minority on this point and that [*24] too many professionals are treating children unnecessarily. He feels that the majority of people would take Susan's statements as indicators of abuse, and noted that there has been hysteria over this issue over the last fifteen years. The Court notes Dr. Gardner did not find parent alienation in this case. He testified that generally he only recommends transferring custody to parents in very moderate and severe parent alienation cases. He indicated that there are very few cases involving false accusations that are not accompanied by parent alienation syndrome. This harks back to the Court's earlier finding that if Mother were seeking revenge on Father, she would have taken a more negative approach in influencing Susan. Again, however, an explanation of the condom issue troubles the Court, with Dr. Gardner questioning why Father would leave any evidence behind. Dr. Gardner testified that the condom claim has a preposterous quality characteristic of a false accusation.
Finally, the Court notes that Dr. Gardner acknowledged that there is no known accuracy rate for his sex abuse protocol, as no studies have ever been done. No one has ever tested his 67 criteria, so there is no external [*25] validity. He acknowledged that it cannot be verified and that it may not detect mild forms of abuse. At the same time, Dr. Gardner would not invalidate use of the protocol.
The Court heard testimony from Dr. Romirowsky, the custody evaluator in this case. Dr. Romirowsky did not focus his evaluation on whether the alleged incidents took place, but at the same time he considered whether either parent posed a risk to the children. He found that the tone on the audio tape is believable, in contrast to Dr. Gardner's finding. He noted that the comments were not histrionic or embellished upon when Susan talks about the event. These characteristics make Dr. Romirowsky believe that the events more likely than not occurred. He further found that there was no indication that Mother attempted to impose on Susan that it was bad or that it was her fault or that she was a bad person. As far as he saw, Mother was taking deliberate measures so that Susan would see herself as a normal, healthy child. He feels that Mother acted out of concern and without malice. In his testing of Mother, while he found that there were elevations of anxiety levels, he found that it was not her agenda to undermine the [*26] children's relationship with Father. Dr. Romirowsky does not believe that she fabricated the incident. He further determined that Father's comments regarding Mother and her problems and needs are not compatible with his clinical findings of Mother.
Regarding Father, he found no evidence of psychopathology and while he found nothing registered on the sexual abuse potential inventory, he indicated that it does not necessarily screen for behavior that could cause emotional harm but not physical harm. It therefore does not exclude the behavior that was alleged in this case.
The Court is especially concerned with Dr. Romirowsky's findings regarding Susan's response to the Rorschach test and the Thematic Apperception Test because they showed a different side of Susan. One indication was the death sign covered in blood. There were also responses regarding witches, monsters, and blood. While not 100% scientific, Dr. Romirowsky notes that he concludes that these results indicate a darker side of Susan over what is safe or how good she is. It is clearly evidence of anger and frustration. In the Incomplete Sentences Test, Susan notes that she looks in a mirror and sees an evil twin sister and [*27] then runs away, possibly evidencing Susan's struggle with good versus bad acts.
Dr. Romirowsky finds no indication that Susan has been traumatized from the testing or from Mother, Dr. Gardner or Dr. Klaff. He concluded that she suffers from adjustment disorder requiring on-going treatment, especially in light of the possible effects of this Order, the presence of anxiety, some knowledge or impression of sexualization, and a connection to bed, Father and genitalia. As indicated, he corroborates Dr. Klaff's interpretation of the totality of the pictures that Susan drew. While Dr. Romirowsky shares Dr. Gardner's concerns regarding the DFS interview, he does not disregard it or discount its validity because it is not being viewed in a vacuum but it is considered with all of the information taken in the context of that interview.
As he was hired to do, Dr. Romirowsky has made a custody recommendation to the Court. He testified that in spite of the significant tension and anger between the parents, once all litigation is resolved, both Mother and Father are dedicated to their children and will do what is necessary to resolve the major issues involving their children. He indicated that [*28] both parties have the requisite skills to communicate and work with one another. He recommends joint custody so that neither parent will feel disenfranchised, noting that both have indicated to him that they would work with each other. As for contact, he noted that it is important for Susan and Harriet to maintain a normal relationship with Father. This would include spontaneity of contact as well as shared activities. Dr. Romirowsky recommends that visitation occur in Father's home, away from the artificial constraints of the Visitation Center, however, the visits should continue to be supervised. He recommends that Father employ someone to be present during visits in his home or elsewhere, until such time that all experts have confidence that the girls are old enough to report any difficulties. He finds that primary placement with Mother is appropriate and that contact with Father be expanded dramatically to conform with Standard Visitation, excluding any overnights. He specifically recommended alternating weekends, Friday evenings from 5:00 to 8:00 p.m., Saturdays from 10:00 a.m. to 6:00 p.m., and Sundays from 10:00 a.m. to 6:00 p.m. In addition, he recommends weekly visits on Wednesday [*29] from 5:00 to 8:00 p.m. He further feels that Father's visitation should continue to be supervised until such time as a mental health professional recommended by the Court approve unsupervised visitation. He recommends alternating holidays, alternating spring and winter breaks, as well as summer visitation.
Dr. Romirowsky further finds that it is not in the best interest of the children for Father to have primary placement. He bases his recommendation to a reasonable degree of psychological certainly on the fact that they have relied primarily on Mother heretofore and that not having her as primary caretaker could be detrimental to them. He indicates that no one has provided any evidence that the girls are not thriving while in Mother's care, noting that even under the difficult circumstances, the children still have maintained their relationship with Father. It is reasonable to conclude that because Dr. Romirowsky does not recommend overnight visitation with Father, primary placement is not a possibility. He finds that Father's claims of fabrication by Mother regarding these allegations is baseless. Therefore, Father's claim that Mother is unfit to parent is without merit. Finally, [*30] Dr. Romirowsky believes that Mother acted responsibly in this case.
It is noted that on cross-examination he acknowledged that the results of Father's test on Child Abuse Potential Inventory were negative but that there was no real test for pedophilia, only indicators. He notes that Father is resistant to treatment, however at the same time, he concludes that Father is not in need of treatment. On redirect, he noted that the presence of psychopathology is not necessary as evidence that an individual has engaged in incest either as evidenced by the personality assessment inventory or the child abuse potential inventory. He noted that there is literature distinguishing general pedophilia from circumstances in a family that might lead to incest. He set forth four precursors as conditions for incest in regards to likelihood it has occurred:
1) Where the marriage has failed, and either parent might be in a position where they are not getting much love and attention;
2) Where the parent would temporarily or permanently overcome his or her own internal inhibitions to the incestuous act;
3) Where the parent has access to the child absent the other parent, apart from the [*31] supervised situation where the other parent would be present;
4) Where the parent overcomes the child's resistance to any inappropriate behavior. The Court notes that these conditions are consistent with Dr. Gardner's definition of a regressed pedophile. According to Dr. Romirowsky, Father satisfies factors 1, 3 and 4, while there is no evidence regarding factor 2 n14. With respect to the first factor, Dr. Romirowsky acknowledged that separation and a deteriorating marriage could lead to an individual's need for affection and unconditional love and that it certainly sets the stage for a child to take the place of a spouse. With regard to the third factor, he notes that according to Susan, the events took place when Mother was either in the kitchen cooking dinner or asleep on the couch. With respect to the fourth factor, he noted that when the child is affectionate, enjoys pleasing a parent, and does not view what she is doing as wrong, there would be less resistance. Although Father argues that the first and third factor could apply to any separation and divorce case, the Court notes that in the majority of divorce cases, there are not accusations and allegations like those [*32] in this case.
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n14 With the Court's finding that inappropriate contact occurred, this factor can be considered affirmatively answered.
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Turning now to other witnesses, the Court notes that the testimony of Ms. Denny was consistent with both parties testimony that visitations between Father and the children have been going well at the Visitation Center. This testimony supports Dr. Romirowsky's recommendation that visitation with Father be expanded beyond the confines of the Visitation Center. As to the trial deposition testimony of Mother's neighbor, the Court finds this corroborates Mother's version of events notwithstanding his lack of memory regarding the specific statement of a sexual nature that Susan made in his presence. He did recall a statement of a sexual nature being made, and therefore his testimony regarding the timing of the event is appropriate.
With respect to the trial deposition testimony of Ann Pedrick and Terry Kaiser, the Court found Ms. Pedrick's testimony credible as to Susan's initial revelation [*33] to her regarding what transpired. It is clear from the videotape that Susan is much more comfortable confiding in Ann Pedrick and resisted opening up to Terry Kaiser.
As to Mother's testimony, as the Court has previously indicated, the Court finds her version of events to be the most believable for the reasons previously set forth. As such, with the Court finding Mother's testimony more credible than Father's, and with the positions of Mother and Father being at total opposites, the Court finds Father's denial of inappropriate contact unbelievable. At the same time, the Court acknowledges that what may have started out as innocent contact between a Father and daughter reading stories in bed together, nevertheless culminated in inappropriate sexual contact between them. The most impressive result of what occurred is that Susan was not traumatized by the incident, however, at the same time, has become cognizant that what occurred was inappropriate. It is only hoped by the Court that with the therapy she has undergone and may need in the future, the incident can be resolved and the parties can go on to live a normal life and maintain healthy relationships.
Having concluded that Mother [*34] has sustained her burden of proof by a preponderance of the evidence that inappropriate sexual contact has occurred, the Court will review HN4the best interest factors enumerated in 13 Del. C. § 722.
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements. This factor favors Mother because of her history as the primary caretaker when the parties were together, notwithstanding Father's assistance on the weekends when he was not working. Additionally, the Court finds that she took the appropriate course of conduct when the sexual abuse allegations came to light. Father, on the other hand, has accused Mother of coaching Susan to falsely accuse him of sexual abuse for the sole purpose of gaining revenge on him for not altering the prenuptial agreement between the parties. The Court finds that Father has taken an all or nothing approach in this case which does not reflect that he has kept the best interests of his children in mind. Obviously, with the finding of inappropriate sexual contact, this factor clearly favors Mother.
(2) The wishes of the child as to his or her custodian(s) and residential
[*35] arrangements.
The Court did not interview the children for several reasons including the young age of the children, especially Harriet, and because of the frequency of interviews that Susan has been subjected to. The Court finds that it has sufficient information from those sources to glean her wishes and desires. Clearly, the wishes of Susan are to see Father more than she is currently seeing him as it was obvious from the evidence that she misses her extended contact with him which has been limited due to the supervised visitation at the Visitation Center. The Court notes that Dr. Romirowsky's recommendation was for Mother to have primary residency, noting this recommendation came after interviews and testing with Susan.
(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;
The evidence has supported the fact that both parents have an excellent relationship with each of their children. The visits have been going extremely well [*36] at the Northeast Visitation Center and Dr. Romirowsky has observed both parents acting appropriately with the children and being attuned to their needs. Obviously, with the Court's finding of inappropriate sexual contact between Father and Susan, that relationship has suffered and it is only hoped that it can be rekindled to what one may consider a normal relationship. The Court accepts Mother's feelings that Father remained in bed with Susan beyond what is normal and appropriate. While it is one thing to read stories in bed with a child, it is another to remain the evening there. Again, unfortunately, what was a happy and pleasurable moment for Susan resulted in more than what any child, especially a child as young as Susan, should experience.
Father's testimony regarding the different parenting styles employed by Mother and himself, with Mother being more prone to physical and verbal discipline of the children, reflected well on Father. The Court finds Father's style more appropriate in that he reasons with the children, talks with them, and uses time-outs instead of other forms of discipline.
With respect to extended family, it is undisputed that as a result of the parties separation [*37] and restrictions pursuant to the original PFA Order and pursuant to the parties' divorce, the children have enjoyed more significant contact with Mother's extended family. It should be noted that the Court heard no evidence that Father's parents filed a Petition for Visitation or accompanied Father to visits at the Visitation Center. While Father testified that should the Court award him residency, his parents would move to Delaware and become an integral source of support for him and the children, the evidence suggest that they have not been there for the children over the past year and a half. As a result of the situation, Mother has been a full-time parent for almost two years now. As a result, this factor favors Mother.
(4) The child's adjustment to his or her home, school and community; By all accounts, the children are well-adjusted to their home and community, and as far as Susan is concerned, to school. Harriet is not in school at this point in time. Although the Court acknowledges that the former marital residence is to be sold, both parties have testified that should they be awarded primary residency, they would remain in the area in order to provide stability [*38] for school purposes for Susan. While there was some dispute regarding who was responsible for pool membership, the purchase of a swing set, and Synagogue attendance, the Court finds these factors should not be given as much weight as the parties have implied. The bottom line is that the children are thriving under Mother's care and that there is no evidence, aside from Father's allegations that Mother falsified the allegations, that she is unfit with regard to her ability to take care of the children on a day-to-day basis. As Dr. Romirowsky further indicated, she has been able to provide for their medical care, respond to their needs, including academically, and has made sure that they continue to be clean, fed, and nurtured. He noted this was especially true notwithstanding the difficult circumstances. He adds that the girls have a good relationship with both Father and Mother. This factor favors Mother.
(5) The mental and physical health of all individuals involved; The Court has previously detailed the significant findings of Drs. Klaff, Romirowsky and Gardner and will not reiterate them here, other than to say that it is obvious from the evidence that Susan suffers [*39] from adjustment disorder with anxiety. While Father argued that this could have been just as easily caused by the separation, divorce and lack of contact he personally had with the children, the Court finds that it is more likely a result of the sexual abuse at the hands of Father n15. The Court is not minimizing the impacts of divorce and separation, however, had the sexual abuse not occurred, the evidence in this case indicates that the parties would have continued to maintain significant contact notwithstanding who was the primary residential parent. It is also important to note that in Dr. Romirowsky's testing, both parties tested normally, showing no signs of psychopathology. Although Dr. Romirowsky found that Mother has higher levels of anxiety, he also indicated that it would not be abnormal for that to be present in the case at hand. For the reasons set forth herein, as well as in the previous discussion regarding the experts testimony on the issue of sexual abuse, the Court finds that this factor favors Mother.
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n15 This finding is further buttressed by the total lack of evidence regarding any problems that Harriet has had due to the factors that Father alleged.
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(6) Past and present compliance by both parents with their rights and responsibilities to their child under 13 Del. C. § 701 of this title;
The Court finds that Father did have to come to Court after the initial PFA Order was entered in order to ensure a more scheduled telephone contact between he and the children, and that Mother did not take steps to encourage that contact prior to the Order being entered. However, at the same time, the Court notes that Mother burdened herself by having visitation occur at the Northeast Visitation Center so as not to wait an additional three to four months to commence visitation at the Hudson Visitation Center. Further, because the Court finds that the sexual abuse allegations are true, the Court does not accept Father's possible argument that Mother violated her obligation as a parent by bringing false accusations. The Court finds overall that this factor does not favor either party.
(6) Evidence of domestic violence as provided for in Chapter 7A of this title.
Mother testified as to several incidents of physical abuse at the hands of Father during the parties' marriage, the most significant being the time that Father grabbed Mother [*41] and forcibly removed her from Susan's doorway because Mother attempted to prevent Father from sleeping with Susan that night. At the same time, however, Mother did not characterize the events as violent but as physical intimidation. The Court notes that no charges were ever filed against Father and Father was never brought to Court and the psychological testing indicated that neither party scored on the abuse testing. Obviously, with the finding that sexual abuse did occur, domestic violence is evident in this case as described in Chapter 7A of Title 13. This factor favors Mother.
With the Court finding a review of the best interest factors supports the conclusion that Mother should be the primary residential parent, the Court shall enter an Order accordingly. Therefore, joint custody of both minor children are awarded to Mother and Father, with primary residence to be in Mother's household. Further, the Court accepts Dr. Romirowsky's recommendation regarding an expansion of Father's visitation rights. The Court specifically finds that Father should be entitled to visitation every other weekend, on Friday evenings 5:00 to 8:00 p.m., Saturdays 10:00 to 6:00 p.m., Sunday's 10:00 to [*42] 6:00 p.m., along with every Wednesday from 5:00 to 8:00 p.m. Mother shall have the right to approve of the individual or individuals who will provide supervision. Absent an agreement of the parties, the Court would approve of Paternal Grandparents or a nanny hired by Father for that purpose. Obviously, the parties are free to agree to any other third party to provide supervision, including but not limited to family, friends, and coworkers. Further, the parties shall alternate holidays pursuant to the Standard Visitation Guidelines, but which shall be limited to exclude overnights. Additionally, Father would be entitled to alternating winter and spring breaks from school, again daytime only from 10:00 a.m. to 6:00 p.m. on the days he is able to take them. Father also would be entitled to take up to five weeks in the summer on the days he is available, so long as supervision occurs. The Court also finds that supervised visitation of Harriet is appropriate, especially in light of the sex abuse finding involving Susan. Clearly the opportunity for abuse is present with Harriet if visitation is unsupervised, and the Court is uncomfortable allowing that opportunity to exist.
While the Court [*43] acknowledges the restrictions for visitation set forth in 13 Del. C. § 710A, the facts of this case are such that supervised visitation is occurring presently and, as a result of the hearing and findings herein, will continue in the foreseeable future. Applying the five factors enumerated in 13 Del. C. § 710A to the facts of this case, the Court finds that as to the first factor, although Father has not completed a treatment program, Dr. Romirowsky and Dr. Gardner both testified that Father is not in need of one. With respect to the second factor, the Court finds that alcohol and drug abuse was not an issue in this case. With respect to the third factor, the Court accepts Dr. Klaff's finding that supervised visitation is appropriate and that despite what transpired, Father and Susan have a good relationship. The fourth factor is not applicable in this case because Father does not have a treating therapist. Finally, with respect to the fifth factor, and for the reasons discussed, the Court finds that supervised visitation with Father is in the best interests of Susan and Harriet.
The Court finds that a liberal interpretation [*44] of the statute may not preclude a finding regarding future visitation being unsupervised. However, that issue is not before the Court and may need to be addressed at some point in the future. It is not presently ripe for consideration. Therefore, for the reasons set forth herein, Father's visitation with Susan and Harriet shall be supervised.
ATTORNEY'S FEES
Mother has requested in her closing arguments that she be afforded the opportunity to request an award of attorney's fees due to the protracted litigation that has occurred in this case and due to Father's financial superiority. The Court, therefore, directs that within 15 days of this Order, Mother shall file a Motion and Affidavit for Attorney's Fees and Costs to which Father shall have 10 days to respond. The Court will reserve a decision on the issue of attorney's fees until the submission of those filings. Should Mother fail to file her Motion and Affidavit within 15 days of the date of the Court Order, she will be foreclosed from pursuing that action.
IT IS SO ORDERED.
Mark D. Buckworth, Judge
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