Opinion
CK16-01860
01-24-2024
D. F., Petitioner, v. J. P., Respondent. In the Interest of: D. F., Jr.
Petition - Rule to Show Cause Petition No. 23-24838
ORDER
JAMES G. McGIFFIN JR., JUDGE.
Before the HONORABLE JAMES G. MCGIFFIN, JR., JUDGE of the Family Court of the State of Delaware:
On January 24, 2024, the Court convened on the Petition - Rule to Show Cause filed by D. F. (Father) against J. P. (Mother) related to the Order on Cross Petitions for Custody enter in the interest of their son, D. F., Jr., on June 30, 2021. Father appeared with counsel, Candace E. Holmes. Mother appeared self-represented.
The facts are largely uncontested. These are the facts:
1. Mother relocated from Wilmington to Selbyville and enrolled the child in a new school without obtaining the prior approval of Father or this Court. Mother made the move October 2, 2023. She filed a Petition to Modify Custody, without a motion for emergency relief or a motion for an expedited hearing, on October 31, 2023.
2. Mother registered the child for the new school but failed to identify Father to the school as a parent or an emergency contact person.
3. Mother was subject to a bond order prohibiting her contact with Father from August 14, 2023, until December 13, 2023.
4. Father did not have an opportunity to exercise his weekend parenting time between November 3, 2023, and December 8, 2023, missing 12 days of parenting time.
5. Mother had the assistance of her own mother and other relatives to facilitate Father's parenting time, but that assistance ended before November 3, 2023.
6. Father has made up 4 of the missed parenting time days since December 8, 2023.
Father seeks a finding of contempt against Mother for violating the Court's Order. "When an asserted violation of a court order is the basis for contempt, the party to be sanctioned must be bound by the order, have clear notice of it, and nevertheless violate it in a meaningful way."Upon the showing of a prima facie case, the contemnor has the burden to demonstrate the reason they were unable to comply.
TransPerfect Global v. Pincus, 278 A.3d 630, 644 (Del. 2022).
Id., at 645.
Father established the elements of contempt. The validity of the order is not in question, nor is Mother's notice of the order. Mother relocated the child, resulting in a change of the child's school, without the approval of Father and the Court. Mother failed to adhere to the schedule for exchange of the child for Father's parenting time. I find that Mother violated the order in a meaningful way on both counts.
Mother's justification for her acknowledged violations of the order is that she was subject to a bond order prohibiting her contact with Father. I find that Mother's reason spares her from contempt for her failure to keep to Father's parenting time schedule. But for her relocation, Mother had an alternative to contacting Father. The order allowed her to seek permission of the Court for the move. She did not seek the Court's permission until 29 days after she committed the act. Mother is in contempt of the order.
Although Mother is not in contempt for failing to keep to Father's parenting time schedule, she is not spared sanction. Our statute requires the Court to impose a sanction allowing the offended parent to make up visitation.
Father shall make up the 8 missed visitation days during the Spring 2024 school break (4 days) and during the summer, adding 4 days to one of his parenting time weeks. Father shall provide Mother 30-day notice of the time he intends to exercise this option.
Both the visitation statute and general civil contempt principles allow that Mother be required to pay reasonable counsel fees incurred by Father for prosecuting this action. Counsel shall submit an affidavit for the Court's approval with a form of order.
See, Clark v. Clark, 2012 WL 6597798 at *2 (Del. Dec. 17, 2012).
IT IS SO ORDERED.