Titiana M. De'Lancer v. Luis D. Rodriguez (2013)

MEMORANDUM OF DECISION ON CUSTODY/PARENTING

This action was filed by the plaintiff Titiana De'Lancer requesting custody of the minor child, Destiny M. Rodriguez, who was born on April 3, 2009.   The defendant father, Luis D. Rodriguez, opposes the plaintiff's request and is requesting custody of the child.   Prior to this action, there has never been a custody order regarding this child.

A full hearing was held in this matter on May 31, 2013.   Family Relations conducted a custody evaluation and their report, along with the testimony provided, was considered by the court.

FINDINGS OF FACT

The parties were never married.   They met when the defendant was serving significant time in prison for selling drugs and the plaintiff's brother was the defendant's roommate.   The parties dated on and off both before and after Destiny's birth on April 3, 2009.

The plaintiff has three children ages 9, 6, and 4. Only the four-year-old is the child of the parties and the subject of this custody action.   In 2010, the plaintiff moved from Puerto Rico with her three children to her sister's home in Texas.   She then moved to Boston and then New York to find a job opportunity.   During this period, she was suffering from depression and anxiety and was receiving no child support from either of the fathers of her children.   As a result, she sent her two older children back to Puerto Rico to temporarily reside with family members.   She asked the defendant, who had moved from Puerto Rico to Connecticut in 2009, after one of many break-ups, to take the youngest child Destiny for a period of six months while she established a more stable living situation for the children.   The defendant agreed.

In September 2011, the plaintiff requested the child's return as her living situation had stabilized.   The child went back and forth between the parties until Thanksgiving 2011 when the defendant told the plaintiff that he would return the child to her in January 2012.   At that point, instead of returning the child to the plaintiff, the defendant moved with the child between Hartford, New Britain, and Bridgeport, giving no forwarding information to the plaintiff.   When the plaintiff finally learned where the defendant was, she tried to call him at his home but he would not answer the telephone.   She subsequently learned the address of his place of employment, filed a custody action on May 3, 2012 and had him served.   Only then did he call her.

That same month, the plaintiff traveled to Puerto Rico to retrieve her two oldest children and brought them to New York where she and her partner had resided for several months.   Because the plaintiff's brother resided in Philadelphia and because there were few employment opportunities for her partner in New York, they moved to Philadelphia.   While this action has been pending, the plaintiff has with few exceptions consistently traveled by public transportation every other weekend from Philadelphia to Connecticut or has met the defendant halfway in New York City in order to visit with the child.

The plaintiff currently resides in Philadelphia with her partner of two years and her partner's child.   According to the home study of their home, it is an appropriate and safe environment for Destiny.   The plaintiff receives SSI benefits, child support for her two older children and cash assistance.   Her partner is employed.   Neither the plaintiff nor her partner have a criminal history, a history of drug abuse, any history of DCF involvement, domestic violence, or any other issues that would give this court concern over placement of Destiny in their home.

The defendant lives with his girlfriend, her three children, and Destiny.   As a child, the defendant endured physical abuse and turned to illegal drugs as a teenager.   He claims that he stopped using drugs in 2010 when his grandmother died.   He has served time in prison and has at least one felony conviction.

The defendant is currently unemployed and receives cash assistance from the state of Connecticut.   He met his current girlfriend on Facebook and they have been together for two years.   While the couple appears to have cared for Destiny appropriately during her eighteen-month stay with them, the defendant also has a history of physical abuse against his girlfriend's children.   Although the incidents alleged appear to be documented, DCF did not substantiate abuse on the two separate referrals.   According to the family relations report, the defendant's girlfriend appears to have a parent-like relationship with Destiny.

While it is true that both parties have had some issues impacting their parenting of Destiny over the course of her life, they both love their child and their significant others are bonded with the child as well.   This court is cognizant of the fact that the defendant has maintained a home for Destiny for at least eighteen months and that she has been well-cared for.   However, the child's time spent in the defendant's home was due in large part to his refusal to return the child to the plaintiff pursuant to their agreement and the need for an out-of-state home study that resulted in a significant delay in resolving this case.

This court concludes that the distance between Philadelphia and Hartford has created an onerous traveling schedule for any four-year-old child and a major impediment to a regular and frequent parenting access schedule by both parents.   It has considered all of the statutory criteria and finds that it is in Destiny's best interests to order joint custody of the child to both parents, with primary residence to the plaintiff mother, as well as the following orders.

ORDERS

1. The parties shall share joint legal custody of their minor child, Destiny M., with primary residency to the plaintiff in Philadelphia.

2. During the school year, the defendant shall have parenting time once per month in Connecticut.   The parties shall meet at the halfway point to exchange the child at an agreed upon time on Fridays and by 2:00 P.M. on Mondays while she is in preschool.   The defendant's parenting time shall end on Sundays when the child starts kindergarten.   The defendant may exercise an additional weekend of visitation each month in Philadelphia if he so chooses.

The defendant may choose, as his monthly weekend, any three-day holiday weekend, with a return of the child by 3:00 P.M. on the day the long weekend ends.

3. Mother's Day weekend shall be with the plaintiff, Father's Day weekend shall be with the defendant if he chooses that weekend for his parenting time.

4. The parties shall alternate the child's spring vacation schedule as well as holidays which shall supersede the regular parenting plan.

5. For the Christmas holiday, in odd years, the plaintiff shall have the child until December 26th, exchanging the child at the halfway meeting point at 12:00 noon.   The defendant shall have the remainder of the Christmas vacation with the child until December 30th at 4:00 P.M. In even years, the defendant shall decide whether to pick up the child at the halfway point on Christmas Eve day or Christmas day and shall have the child until December 27th at 4:00 P.M.

6. For the Thanksgiving holiday, in even years, the plaintiff shall have the child until the day after Thanksgiving and shall meet the defendant at the halfway point at 12:00 noon and he shall return the child on Sunday.   In odd years, the defendant shall have the child from the day before Thanksgiving until Saturday at noon.

7. In the summertime, each party shall have two consecutive weeks with the minor child.   The plaintiff shall have the choice in even years, the defendant shall have the choice in odd years.   One party shall notify the other of their chosen weeks by May 1st of each year.

8. The parties shall exchange telephone numbers with one another.   The parties shall call the child each evening at 7:30 P.M when the child is not in their care.   If the child is not available, the parties shall make every effort to return the other's phone calls.

9. The parties shall utilize Skype or its equivalent if they have it available to allow the child to communicate with the other parent and to exchange information about the child.   Each party is expected to notify the other in the event of an emergency or a schedule change.

10. This court orders no child support at the present time due to the defendant's unemployment.   The defendant shall notify the plaintiff when he becomes reemployed and she is free to request child support within a reasonable period of time.

11. Both parties shall provide medical/dental insurance for the benefit of the minor child if available at a reasonable cost through place of employment;  said cost not to exceed 7.5% of their net weekly wage.

12. The parties shall alternate taking the minor child as an income tax deduction with the plaintiff mother taking odd tax years (beginning with 2013 taxes) and the defendant taking even years.

SO ORDERED.

BY THE COURT,

Prestley, J.

Prestley, Linda Pearce, J.