Opinion
FILE NO.: CN05-03073 PETITION NO.: 18-17583
03-28-2019
RE: A. C. v. R. M.
LETTER DECISION AND FINAL ORDER
PETITION FOR CUSTODY Dear Ms. C. and Mr. M. :
This Court held a hearing on January 18, 2019, regarding the Petition for Custody filed by A. S. C. ("Mother") against R. M. ("Father") in the interest of the parties' son, R. C. -M. ("R. ") (born, , 2004). Father was present in Court and was self-represented. Mother was also present in Court and self-represented. The Court heard testimony from the parties. The Court also conducted a child interview with R. on January 23, 2019. This is the Court's decision after consideration of all the evidence presented during the hearing, and R. 's child interview.
PROCEDURAL HISTORY
On June 20, 2018, Mother filed her Petition for Custody. The parties had no prior final custody order. Mother also filed for an Emergency Ex Parte Order. The Court denied Mother's request and set the matter to be heard in normal course. Mother and Father signed a consent Parentage Decree on August 8, 2018. On October 23, 2018, the Court entered an Interim Order pending the hearing on January 18, 2019. The Interim Order provided joint custody to the parties and primary residence to Mother. The Interim Order also provided Father with weekly visitation from Friday after school until Monday morning school drop off. The Court also included a holiday schedule in the Interim Order.
LEGAL STANDARD
The Court determines legal custody, residential arrangements, and visitation for a child in accordance with the best interest factors set forth in 13 Del. C. § 722. In consideration of 13 Del. C. § 722, the Court balances the best interest factors "in accordance with the factual circumstances presented to the Family Court in each case." In some situations, the weight of one factor will counterbalance the combined weight of the other factors. The Court notes that this is the initial custody determination between the parties.
Pursuant to 13 Del. C. § 722:
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
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;
7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
Ross v. Ross, 922 A.2d 1237 (Table) 3 (Del. 2010).
Id at 3 (citing Fisher v. Fisher, 691, 623 (Del. 1997)). --------
BEST INTEREST FACTORS
In the interest of judicial economy, the Court will not recite all of the testimony and evidence presented at the hearing that can be more fully obtained from the record. Instead, the Court will summarize and analyze the evidence applicable to the 13 Del. C. § 722 best interest factors.
(1) The wishes of the child's parent or parents as to his or her custody and residential
arrangements;
Mother is seeking sole custody and primary residency. If she is unable to have sole custody, Mother alternatively seeks final decision-making authority for education and medical matters. Mother stated she has been the primary care giver of R. for most of his life, except for the year R. lived with Father. Mother also testified that R. has his medical insurance through her and that she bears the cost of any medical decisions potentially made by Father. Mother explained that her and Father were never married and she had R. very young. In spite of this, she believed her and Father were able to co-parent up until 2017, when R. was injured. As a result of the issues that occurred during the summer of 2018, Mother believes sole custody is in R. 's best interest.
Father is seeking joint custody and agrees that Mother should have primary residence. He believes he and Mother could co-parent and that a schedule was unnecessary. Father stated that he cared for R. while he was in seventh grade and that he is an active Father. Father believes that it is better for R. to primarily live with his little sister (Mother's younger daughter with her current husband), as long as he can have liberal visitation. Father said he has been very active with visitation. Father also said that he has become even more involved since R. began playing basketball in order to train him. Father wants joint custody to make sure he has input regarding R. 's education and basketball opportunities.
The Court finds factor (1) favors Mother having primary residency as Father consents to that request. However, Father contests Mother having sole custody and final decision making authority regarding education and medical decisions. Therefore, Factor (1) is neutral regarding custody as the parties have differing wishes.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
The Court interviewed fourteen-year-old R. on January 23, 2019. R. was rather talkative during the interview especially when he discussed basketball. R. expressed his love of basketball and his hope to play professional basketball in the future. R. stated that he enjoys spending time with both parents. He stated that both parents care and participate in his sports, but Father has more experience in basketball and can help with training. R. understands that Mother and Father disagree about visitation. R. also understood that Mother was worried during the summer of 2018 when he was with Father for multiple weeks without Mother's agreement. R. stated that he willingly spent the summer with Father to ensure that he was prepared to play basketball and be reclassified in Fall 2018. R. believes that if Mother and Father are given a specific visitation schedule, it will be easier for all parties involved.
R. discussed the injury he received in 2017, and was very honest about how he was not icing his knee three times a day as recommended by his doctor. He said that since he was not icing his knee properly, he could not attend physical therapy and make proper progress. R. then learned that the physical therapy appointments were too expensive to continue if he was not following all recommendations of treatment. In June 2018, R. believed he was ready to return to playing basketball, but injured himself again while playing basketball. R. believes that the sports physical therapy was very important in order for him to play basketball again. R. understood that both parents thought they were doing what was best, but R. wanted to be able to play basketball at school which required sports therapy.
R. explained that picking a new school and being "reclassified" as an eighth grader again was very important to his basketball career. This plan would make sure he was ready to play high school basketball on a competitive level. R. stated that he only began playing basketball in sixth grade and was set back by his two injuries. R. told the Court that he was excited to pick a high school, because he is being recruited by several high ranking basketball programs. R. is hoping to attend S. C. High School and excel on the basketball team to earn a college scholarship. R. understands that his grades are also important and works hard to maintain his grades. He explained to the Court that in the fall of 2018 he failed to turn in an assignment which caused his grades to slip. R. believes that he has made up for that mistake. R. attempts to do his homework right after school before basketball practice and before going to the gym with Father. With all the focus on basketball and academics, R. stated that he is not interested in obtaining a job. R. is also not interested in participating in any extracurricular activity outside of basketball.
R. told the Court that he gets along with everyone in both households. R. admitted that his little sister, M. W. , can get on his nerves, but that he enjoys spending time with her. He stated that he has his own room to sleep in at each house and feels safe at both homes. R. said the main difference in the households is that Mother's home was bigger. R. explained that when he lived with Father in seventh grade, all the household chores were done by Father and that there were no issues. R. did not elaborate about why he lived primarily with Father during his seventh grade year. Additionally, R. told the Court about all the schools he has attended and enjoys maintaining contact with all the friends he gained at each school.
R. does not have any concerns about either parent using illicit drugs or drinking in excess. R. really wants to spend equal time with Mother and Father. R. proposed that he have every other weekend with Father. R. also would like to have a dinner visit every Wednesday that would last until 10 p.m., to allow time to go to the gym with Father. After basketball season, R. would like an additional dinner visit every Tuesday and Thursday.
The Court finds that factor (2) weighs in favor of Father's request for joint custody and against Mother's request for sole custody. R. was very thoughtful during his interview and it was evident that he cares about Mother and Father. R. expressed a desire to consistently see both parents and to make sure he has time to train with Father. R. believes that Mother and Father are both looking out for his best interests and believes that both parents should be involved in his life.
(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;
Mother did not testify about her relationship with R. . Mother stated that she has held primary residency of R. since his birth for every year except seventh grade. Mother said E. A. C. ("Maternal Uncle") has a good relationship with R. but did not elaborate. R. stated that he spends a lot of time with Maternal Grandfather after school. R. also stated that Maternal Grandfather gets along with Father and they collaborate about his basketball training. R. discussed babysitting his little sister. He said he did not mind watching her occasionally, but that his sister can be annoying at times. R. also told the Court that he used to play football which helped him bond with his step-father, D. W. , as his step-father played football in the past. R. said that step-father and Mother are supportive of basketball but do not attend games as regularly compared to his football games.
Father did not testify about his relationship with R. outside of training him for basketball. R. stated that he enjoys spending time with Father. R. really enjoys preparing and training for basketball with Father. R. stated that he gets along with Father's paramour, G. R. , and that they have been together for several years. Father also has other children with whom R. visits when he visits Father's home.
The Court finds factor (3) to be neutral. R. seems to be conformable with everyone in Mother and Father's households. Additionally, R. seems to have a normal sibling relationship with Mother and Father's other children, but R. spends more time with Mother's daughter and helps babysit her.
(4) The child's adjustment to his or her home , school and community;
Mother's Home, School and Community
Mother testified that R. graduated from H. Middle School ("H. "), completing the eighth grade in June 2018. While at H. , he had straight A's and was playing basketball. Mother believed that R. would matriculate to T. M. High School, the feeder pattern school for Mother's address. Mother did not want R. to repeat the eighth grade and be reclassified for basketball purposes. One of Mother's main contentions in this matter is that Father enrolled R. at S. A. without her permission and without consulting her. She did not believe it was in R. 's best interest to repeat the eighth grade. R. believed that Mother was "okay" with the decision to reclassify him as an eighth grader because Mother provided him with a book explaining reclassification, and Mother stated that she approved of the decision. Mother also told R. that she consented to the reclassification. Mother later told the Court that her consent for reclassification was involuntary. Mother feared that if she did not tell R. that she agreed with reclassification, then he would live with Father for the entire 2018 summer since no court order was in place until August 20, 2018.
The Court finds Mother's contention slightly hypocritical as she has made many educational decisions without consulting Father. Such as constantly moving R. from school to school and having R. skip or repeat grades. R. attended Kindergarten and first grade at H. C. . R. then skipped the second grade. R. attended W. Elementary School for third grade and then repeated third grade at G. L. School. R. continued at G. L. School for fourth grade. He then attended fifth and sixth grade at F. S. A. . For seventh grade R. attended G. O. School. Throughout all of these school changes, Mother did not consult Father or take his opinion into consideration according to Father.
Mother supports R. being involved in sports, and said originally, he was involved with football until late sixth grade before becoming involved in basketball. Besides school and basketball, R. attends his Mother's monthly mortgage classes in order for R. for be more financially aware. Mother also stated that she has lived in her current home since March of 2017 along with her husband, R. , and his little sister.
R. stated that he is comfortable in Mother's home, has his own room, and everything he needs. He is adjusted to the schedule at Mother's home that includes watching his little sister from time to time. R. stated that Mother has lived in the same home for a couple of years. R. even stated that he did not mind Mother placing him in multiple schools over the years because it gave him the chance to meet lots of people. Due to basketball games, practices, and school, R. does not have time for a lot of social activities.
Father's Home, School and Community
Father testified that he enrolled and reclassified R. as an eighth grader at S. A. . Father said he enrolled him at this particular school because of the basketball program and reclassified him in order for R. to better prepare for high school basketball. Father further said that he was trying to respect R. 's wishes of taking the sport seriously and working towards a college scholarship. Father told the Court that he has been working with R. on shadow days and tours for high schools that are recruiting him. Father stated that most of the time spent in the community with R. is at the local gym on Wednesday nights for training sessions. Father also stated that he has a stable home and has lived with his paramour for several years. Further, when R. visits he is given his own room in order to provide him with privacy. Father also stated that R. lived with Father during his 7th grade year, which R. confirmed.
R. stated that he really likes S. A. , and really enjoys playing basketball. He also stated that he enjoys going to training sessions at the gym on Wednesday nights. Further, R. stated that Father attends all of his school practices on Tuesday and Thursday and all of his school games. This encourages him to do well and stay engaged. R. agreed that Father's living arrangement seems stable and has been consistent for years. R. also stated that his hard work is paying off and that he is getting scholarship offers to play high school basketball.
The Court finds factor (4) to be neutral. R. stated that he has adjusted to attending S. A. and is happy in the basketball program. While Father enrolled him at the school without Mother's permission, Mother testified that she is involved in making sure R. attends all of his games and practices. Additionally, Mother has made several educational decisions without Father in the past. R. stated that Mother and Father's homes are stable and consistent. Mother testified that R. spends time in the community with her family and at her mortgage class. Father testified that he spends a lot of time with R. at the gym in order to train him for high school basketball. Overall, R. seems to be adjusted to spending time with both parents and being in either home or community setting.
(5) The mental and physical health of all individuals involved;
Mother testified that she does not have any physical or mental health concerns. Mother also stated that her husband does not have any physical or mental health concerns. Mother said that her daughter has asthma, but that it is well controlled. Mother raised concern about Father potentially self-medicating with marijuana. R. later denied that either parent used marijuana or drank excessively.
Mother also extensively testified about R. 's knee injury from October 2017 which lead to most of the tension between Mother and Father. Mother stated that in October of 2017 R. severely injured his knee playing basketball with Father. Mother said that Father took him to the emergency room and contacted her. R. had an x-ray and an MRI. R. was diagnosed with an ACL meniscus tear. The injury required surgery. Mother stated that R. was on crutches for a period of time and had outpatient surgery. Mother discussed that after the injury Father took R. to the emergency room for a second time for further testing. Mother believes that these tests created unnecessary medical costs that Father did not contribute to.
On cross-examination, Mother stated that R. was not able to complete the doctor recommended physical therapy. Mother explained that R. was walking and moving normally. Physical therapy could not be completed as R. was not following his icing regiment. Mother testified that Father offered to help pay a portion of R. 's hospital bills so she provided him a copy of the bills. Father told the Court that he was unaware of the costs of the initial surgery. Mother also explained that Father requested her insurance card so he could schedule physical therapy appointments, but she wanted to be the one to schedule R. 's doctor appointments since she was responsible to pay for the visits.
In June of 2018, Father believed that R. was cleared to play basketball as physical therapy had ended. Father then stated that in June 2018, R. reinjured himself while playing basketball. Father then looked into whether R. completed his physical therapy. Father stated that Mother would not allow him to attend any medical appointments for R. so he had to take Mother's word that R. was cleared to play again. Father said that once he learned that R. had not fully recovered from his first injury, he contacted a specialist in sports therapy. Father stated that this specialist helped R. play basketball at a competitive level again. Father also stated that he paid for this specialist out of his pocket. Father then explained that R. stayed with him for several weeks until the sports therapy was complete. He was concerned that Mother would not allow R. to complete the sports therapy if he returned to Mother's home. R. added that he thought it was best to stay with Father in order to make sure he completed his sports therapy and was medically cleared to play basketball again.
Father testified that he does not have any physical or mental health concerns. Additionally, Father testified that his paramour does not have any physical or mental health concerns.
The Court finds that factor (5) weighs in favor of Father's request for joint custody and against Mother's request for sole custody. Father presented valid concerns that Mother prematurely ended R. 's physical therapy and left it up to R. to follow the doctor's orders. Ending his physical therapy early could have been severely detrimental and caused further injury as R. was still playing basketball. Additionally, Mother was not communicating with Father to notify him that R. was not cleared to train for or play basketball. The Court understands that Mother was concerned about the rising medical costs and that R. was not icing his knee properly. However, Mother should have communicated these concerns to Father. Due to the lack of communication, R. was injured a second time. At that time Father felt that he needed to take immediate action to prevent R. from getting further injuries. While Mother may disagree with the actions Father took to ensure R. received medical care, that is not a reason to take away his decision making ability. This situation shows the Court that Mother and Father need to communicate and discuss important medical decisions together, and consider how those decisions may affect R. 's ability to participate in sports.
(6) Past and present compliance by both parents with their rights and responsibilities to
their child under §701 of this title;
Summer 2018 Incidents
Mother testified at length about how R. spent an unusual amount of time with Father during the summer of 2018, although in the beginning of the summer no custody order was in place. In fact, a Custody Order was not in place until August 20, 2018. Based on Mother's testimony, the Court believes that the first incident of extended visitation with Father occurred in June 2018. Mother stated that R. was with Father for about seven days during the first incident. During those seven days there was no order in place and when Mother called the police, they had no authority to bring R. back to Mother's home. In order to encourage R. to come home, Mother told R. that she would agree to reclassify him as an eighth grader. However, Mother had no intention of following through on her statement and only made the statement to persuade R. to return to her home.
R. injured himself a second time in June of 2018, and Father took R. to see a sports therapist. R. 's second knee injury lead to a second incident of R. staying with Father for an extended period of time. Mother stated that the second incident occurred in late July and continued into August 2018. R. stayed with Father for about eighteen days during the second incident. The second incident concluded when Mother obtained an Interim Custody and Visitation Order indicating that Father would have weekend visitation only. Once Mother received the August 20, 2018, Order she believed it was again necessary to call the police. Father allowed Mother to talk to R. on the phone every day to ensure that she knew that R. was safe. However, Mother stated that she was worried and called the police because during those eighteen days, Mother would leave socks and underwear on R. 's bed and each day the clothes would be gone. R. returned to Mother's home after the police became involved and pulled Father's car over with R. inside. After the second incident, Mother stated that she allowed Father to have day time visitation only. However, the August 20, 2018 Interim Order gave Father overnight visitation. Mother was concerned about overnight visitation because she believes that there were several people "doing drugs" in front of Father's apartment building. Mother was also concerned because she believed Father was "high" at one of R. 's games. Additionally, Mother was concerned that Father would take R. to see his family in New York without her knowledge. Mother used these facts to unilaterally decide what type of visitation Father should have in spite of the Interim Order.
Father testified there was only one incident of R. spending extra time with him. Father stated that the only incident began after R. 's second knee injury and continued until R. began school at S. A. . Father believes that the entire summer incident was for less than eighteen days. Father stated that it was unusual for R. to visit for a seven-day period. However, he felt justified in keeping R. to ensure that he completed the sports therapy. Father wanted to also ensure that R. was reclassified for basketball and began school S. A. . Father stated that Mother was not involved in R. 's enrollment at S. A. , but he believed that he was looking out for R. 's career and that Mother was not listening to R. 's desire to attend S. A. . Additionally, Father elaborated that Mother knew R. was not in danger because she spoke to R. every day, and that there was no need to call the police to make R. return to her home. R. added that he chose to stay with Father during August 2018, because he thought it was easier to complete the sports therapy while staying with Father. Father also contended that he did not receive the Interim Custody and Visitation Order issued on August 20, 2018, and that had he known about the schedule he would not have kept R. over his allotted time period.
General Financial Support for R.
Mother is a Mortgage Broker and conducts monthly classes about mortgages. R. 's insurance is through Mother's employment. There was no dispute about whether Mother was able to meet R. 's financial needs. The only dispute that arose with finances was over school tuition and co-payments for medical care. Mother stated that Father has not contributed to R. 's medical bills except for the sports therapy that he initiated on his own. Father stated that he was waiting for Mother to send him a bill so that he could pay his portion of the knee surgery and follow-up care. Mother also told the Court that she would not pay the private school tuition at S. A. 's since R. was enrolled without her consent. Mother does not feel responsible for the tuition and admitted that Father pays for S. A . Mother also stated that Father has not paid child support. The Court notes that no Child Support Order is in place at this time.
Father stated that he works as a personal trainer with inconsistent income. He acknowledged that he agreed to cover the tuition for S. A. , and that the tuition is currently behind. Father told the Court that he is able to help pay for R. 's medical expenses, and would make a greater effort in the future to find out what bills were owed. Father acknowledged that communication with Mother has been inconsistent, but he would like to work on the communication to make sure R. has every opportunity possible.
The Court finds that factor (6) also weighs against Mother's request for sole custody, as Father has shown an ability to share responsibility with Mother and to work on communication. However, the Court notes that both parents need to begin discussing major decisions with the other parent, as the evidence shows that both parents at one point in time enrolled R. in school without the knowledge or consent of the other parent.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Mother testified about an alleged incident of domestic violence. Mother stated that the incident occurred when she was pregnant with R. . Mother testified that in 2004, she was standing at the top of a staircase, and Father tried to "choke" her. A neighbor called the police. When the police arrived on scene, Father was arrested and criminal charges were filed against him. The charges were later dismissed when Mother chose not to go to Court. After that incident, Mother ended her relationship with Father. Father denies that this incident occurred and that he ever choked or threatened to choke Mother. With minimal evidence of the alleged incident and no criminal conviction, the Court cannot make a finding of abuse.
The Court finds that factor (7) slightly favors Mother's petition due to her testimony about domestic violence. However, Mother did not describe any current fear of Father, and did not believe their inability to communicate was due to domestic violence.
(8) The criminal history of any party or any other resident of the household including
whether the criminal history contains pleas of guilty or no contest or a conviction of a
criminal offense.
The Court does not have any concerns regarding the criminal record of Mother. Father has one drug related conviction from 2012, that would not prevent R. from visiting Father or prevent Father from having joint custody. Therefore, factor (8) is neutral in the Court's analysis.
LEGAL ANALYSIS
The Court finds that the best interest factors collectively favor Father's request for joint custody and Mother's request for primary residency. Factor (1) favors Mother having primary residency as Father consented to that portion of Mother's petition. However, Factor (1) is neutral regarding custody as each party has a different position.
Factor (2) weighs in favor of joint custody. When R. spoke with the Court, he gave a full picture of how much Mother and Father care about him. R. explained that Mother and Father often have a difference of opinion, but that he thinks both parents are trying to do what they respectively think is best. R. stated that he wants Father involved in choosing a high school because he enjoys playing basketball and wants Father's opinion about which program is best. R. told the Court that Father is very understanding of his aspirations to play college basketball, and that Father has the knowledge to help him. R. also knows that grades are important to Mother and for a basketball scholarship. He intends to continue working on improving his grades. Based on speaking with R. , the Court believes that R. wants Mother and Father to make joint school and medical decisions.
As to factor (3), R. seems to have a good relationship with everyone in Mother and Father's households. R. described his average week and told the Court about the time he spends with both sides of his family. After school R. normally spends time with his little sister, M. , and his Maternal Grandfather at Mother's house. Father picks R. up to go to the gym after school from Mother's home. R. even stated that while he does not spend much time with Mother's husband or Father's paramour, he is comfortable around both of them. For this reason, factor (3) is neutral.
The testimony presented for factor (4) demonstrates that R. is adjusted to Mother and Father's home, his current school, and community. R. told the Court that he enjoys the school he currently attends for basketball even though he had to repeat the eighth grade. While he chooses not to participate in other extracurricular activities, he enjoys the friends he has from the basketball team. Mother stated that she has lived in the same home since 2017. Father stated he has had the same living arrangement for the last seven years and that R. resided with him primarily in the 7th grade. For this reason, factor (4) is neutral.
Factor (5) also weighs in favor of joint custody. Most of the evidence in this case was about R. 's knee injury from 2017 and the decisions Mother and Father made. While it is clear that in October 2017 R. injured himself to a point where surgery was needed, it was unclear what specific follow-up care was needed and exactly who is at fault that it did not occur. It was also unclear if ending physical therapy early was in R. 's best interest. Mother stated that in the spring of 2018, she stopped taking R. to physical therapy because he was not icing his knee properly. At that time, Father believed that R. was 100% healed and could play basketball again. In June 2018, R. injured himself again while training with Father. Father then hired a sports therapist to ensure that R. would be well enough to play basketball in the fall season. While the Court understands that Mother ended physical therapy for a number of reasons, the Court is concerned that the responsibility to ice his knee was left to R. , and whether Mother considered R. 's ability to play sports after the injury. At a minimum, Mother should have discussed R. 's follow-up care with Father to make sure R. did not reinjure himself during training with Father. With joint custody, Mother and Father should discuss any sports injuries and the needed follow-up care as basketball is extremely important to R. .
As to factor (6) the Court finds that the parties are capable of communication even if it is strained and that this factor weighs in favor of joint custody. Throughout both incidents that occurred during the summer of 2018, Mother stated that she knew where R. was, but did not like that he was spending so much time with Father. Father testified that he was open to communication, but that he would like flexibility with visitation in order to coach and train R. . Mother and Father are both employed and are able to financially provide for R. . The Court notes that the parties should work together in choosing a high school for R. to ensure a bright academic and sports future.
Factor (7) weighs slightly in favor of Mother due to her testimony about domestic violence. However, Mother did not provide enough evidence for the Court to make a finding of abuse. Further, Mother stated that until 2017, her and Father effectively co-parented in spite of the domestic violence that occurred many years ago. Father denied all allegations of domestic violence. Since the Court could not make a finding of abuse, sole custody would not be warranted under this factor as Mother did not express a current fear of Father and an inability to communicate on that basis.
Factor (8) is neutral as the Court does not believe Mother has any concerning criminal history and Father only has one drug related conviction from 2012.
CONCLUSION
The Court finds that the best interest factors collectively favor the parties have joint custody and Mother having primary residence. Father consented to Mother having primary residency and there was insufficient evidence to warrant sole custody.
ORDER
1. Mother and Father shall have joint custody of R. C. -M. .
2. Mother shall have primary residency of R. C. -M. during the academic year.
3. Mother and Father shall have shared residence of R. C. -M. during summer vacation with a week on, week off schedule and exchanges to occur at Mother's residence at 6 p.m. every Sunday. If R. opposes week on, week off residency then Mother shall maintain primary residency and Father shall have visitation for the first three (3) weekends of every month in the summer. Father shall also have continuing dinner visits every Tuesday, Wednesday, and Thursday evenings from 6 p.m. until 10 p.m.
4. Father shall have visitation during the academic year as follows:
a. During Basketball season:
i. Father shall have visitation every other weekend AND
ii. Father shall have a dinner visit every Wednesday evening from 6 p.m. until 10 p.m.
iii. A weekend shall be defined as Friday at 6 p.m. until Sunday at 8 p.m.
iv. All exchanges shall occur at Mother's residence.
b. During the off season:
i. Father shall have visitation every other weekend AND
ii. Father shall have a dinner visit every Tuesday, Wednesday, and Thursday evenings from 6 p.m. until 10 p.m.
iii. A weekend shall be defined as Friday at 6 p.m. until Sunday at 8 p.m.
iv. All exchanges shall occur at Mother's residence.
5. R. C. -M. shall spend his Thanksgiving break with Father each year.
6. R. C. -M. shall spend Christmas Eve and Christmas Day with Mother each year.
7. Other provisions of the Court's Standard Contact Guidelines apply as follows:
a. Holidays: Mother shall have R. on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Father shall have R. on holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years.
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holiday | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Spring Break |
|---|
With the exception of Halloween and Spring Break, holiday contact shall be from 9 a.m. until 6 p.m. the day of the holiday. Halloween contact shall begin at 6 p.m. and end at 10 p.m. on Halloween. Spring Break contact shall begin at 6 p.m. on the Friday beginning break and last until 8 p.m. on the Sunday before break ends. This contact period is designed to be longer than a week.
b. Mother's/Father's Day: On Mother's Day and Father's Day, no matter whose turn for contact, R. shall be with the parent whose holiday is being celebrated from 9 a.m. until 6 p.m.
c. Late pick-up: Both parents shall have R. ready for pick-up at the start of all contact periods.
d. Drop-off: Neither parent shall return R. early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to R. must be present when he is returned from contact.
e. Cancelling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
f. Communication: Both parents shall be entitled to reasonable communication with the R. while he is in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between R. and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
g. Transportation: Unless otherwise ordered or mutually agreed, parents shall have shared responsibility for transportation of R. to and from their home for contact periods and may use another adult well-known to R. for picking up or dropping off R. when necessary. Any person transporting R. shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All seat belt laws must be observed by the driver.
h. School work: Parents shall provide time for R. to study and complete homework assignments, even if the completion of work interferes with the parent's plans for R. . Both parents are responsible for providing all of the school assignments and books to the other parent. If Summer school is necessary, R. must attend, regardless of which parent has him during the summer school period.
i. Relocation: Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in R. 's school, travel time to school or extracurricular activities or otherwise may adversely affect his best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
j. Notice of change of address: Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.
8. The parties may modify any provision of this Order by mutual written agreement.
IT IS SO ORDERED.
/s/ _________
NATALIE J. HASKINS, JUDGE NJH/jw xc: File, Parties Date Mailed:__________