Opinion
File No. CN17-02635 CPI No(s) 17-18816
03-15-2018
K----- W----- -- - ---------- --- ----------- -- ----- Petitioner v. B------ G------- ---- ---- --- ---- ---------- -- ----- Respondent
Petitioner Attorney Michelle Skoranski, Esquire Respondent Attorney Rachelle Cutrona, Esquire
Nature of Proceeding
Petition for Custody Date Mailed: 3/15/18 Petitioner Attorney
Michelle Skoranski, Esquire Respondent Attorney
Rachelle Cutrona, Esquire ORDER - PETITION FOR CUSTODY
Before the hearing, the Court determined that the Court lacked jurisdiction over Mother's Petition as at the time of filing, the child had not resided in Delaware for six (6) months. However, the parties agreed that at the time Father filed a counterclaim, the Court had jurisdiction and therefore, the Court could proceed.
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition for Custody filed on June 21, 2017, by K----- W----- (herein "Mother"), represented by Michelle Skoranski, Esquire, against B------ G------- (herein "Father"), represented by Rachelle Cutrona, Esquire, in the interest of A------ G-------, born -------- -, ----, (herein "minor child"). The Court held a hearing on February 20, 2018, and heard testimony from both parties, as well as D----- G----- (Maternal Step-grandmother) and D----- R---- (Paternal Grandmother).
PROCEDURAL HISTORY
The parties were never married. Mother filed a Petition for Custody in April, 2017, which was dismissed for her failure to pay the filing fee. Mother then filed the instant Petition on June 21, 2017. Father filed an Answer to the Petition which included a Counterclaim. The parties attended mediation and did not reach an agreement. The mediator sent this Judge a Request for Interim Order of Contact, which this Judge declined to sign and scheduled a Case Management Conference (herein "CMC"). After the Court held a CMC in December, 2017, the Court entered an Interim Order providing the parties with joint custody, Mother with primary residence, and Father with visitation every other weekend from Friday at 4:00 p.m. until Sunday at 6:30 p.m. At the conclusion of the evidence, the parties agreed to an Interim Order until the end of the summer. That Order is incorporated herein by reference. Both parties have taken the Parent Education class.
FACTUAL BACKGROUND
When the child was born in 2012, the parties resided together in Paternal Grandparents' home in Whiteford, MD. They remained together until August, 2015, when the parties ended their relationship. At that time, the parties agreed the child would live with Mother and the maternal aunt in Oxford, Pennsylvania. While in Pennsylvania, Mother supported the child by working at Rite Aid. The child attended Little Lift Enrichment daycare. Father and Mother met halfway every other weekend so that Father could have visitation with the child. In October, 2016, Mother and the child moved to North Carolina with Maternal Grandmother. While Father admits that he did not object when Mother told him she was moving to North Carolina, he alleges that he didn't understand that Mother had made a final decision to move until he learned that Mother had already moved. In North Carolina, Mother worked at Subway and the child attended Madeers Daycare. To facilitate Father's visitation, Mother drove to Maryland every three (3) weeks and Father had the child from Friday until Sunday. Mother and the child's final move was in January, 2017, when they moved to Delaware to live with Maternal Grandfather and Maternal Step-grandmother. Once Mother moved to Delaware, Father resumed visiting every other weekend.
In June, 2017, Father presented Mother with a "parenting plan" that he drafted on his own. The "plan" provided that the parties would have joint custody, Father would have primary residence, and Mother would have visitation with the child every other weekend and every Wednesday. Mother would also have two (2) weeks with the child in June and three (3) weeks in July and August. Mother declined to sign the agreement and filed the instant Petition. When Mother filed the instant Petition, she stopped Father's visitation with the child, with the exception of allowing Father to Facetime with the child one (1) to two (2) times per week. Mother admits that she had no legal authority to stop Father's visits but alleges she did so because she was afraid he would keep the child from her. Father's visitation began again in October, 2017, after the parties attended mediation.
A------ is now five (5) years old and attends daycare at Mary Moppets Child Care. She is doing well in daycare and has made friends there. Mother recently enrolled A------ with the Girl Scouts and she participates in weekly meetings with her Daisy troop on Tuesday evenings. She does not have any health problems or concerns.
Mother is twenty-four (24) years old. She currently resides with Maternal Grandfather and Maternal Step-grandmother in a home in Wilmington, Delaware. Mother recently started working for Dollar Tree earning $8.75/hour. Mother had not yet received her final schedule but believes that, once she completes training, she will be working Monday through Friday from 8:00 a.m. until 5:00 p.m. and every other weekend. Mother asked her employer to have off every other weekend so that she can spend those weekends with the child. In addition to the Maternal Grandfather and Maternal Step-grandmother, Mother has a lot of family members in the area with whom the child enjoys spending time. Mother's family is also a resource for Mother when she needs help with the child.
Father is twenty-six (26) years old. His residence in Whiteford, Maryland is over one (1) hour from Mother's home in Wilmington, Delaware. He currently resides in the same home where the couple resided together with the child when she was born. He lives with Paternal Grandmother, Paternal Step-grandfather, and his two (2) brothers (B---- who is twenty-four (24) years old and W---- who is twenty-three (23) years old). Father has been employed with Tigua Enterprises since July, 30, 2017, as a maintenance mechanic. He earns $32.73/hr. Father works Thursday through Sunday from 9:00 p.m. until 7:00 a.m. which means he is working on the weekends when visits with the child. On his visitation weekends, Father alleges he leaves work earlier than 7:00 a.m. Father commutes more than one (1) hour each way to his job. Father expects that his work hours will change once his company's current contract is up and negotiations take place for a new contract. Father was not sure when the contract ends, but believes it is in May or June of this year. It is not unknown what schedule Father will have after the new contract is negotiated. Paternal Grandmother and Paternal Step-grandfather help Father care for the child on his visitation weekends. The child enjoys spending time with her grandmother and step-grandfather as well as her uncles, grandfather, step-grandmother, and great aunt.
LEGAL STANDARD
To determine custody, residential placement, and visitation, the Court must analyze the factors under 13 Del. C. § 722 to create an Order that is in the child's best interests. Additionally, the Court shall award both parents frequent and meaningful visitation "unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child's physical health or significantly impair his or her emotional development."
13 Del. C. § 722 provides:
(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 of the 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 or custodians and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabitating 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.
The parties agreed to have joint custody of the child. They also agreed that, until the end of the current school year, Father's visits would move to Mondays, Tuesdays, and Wednesdays overnight provided Father could get the child to day care and that they would alternate weeks for the upcoming summer. Therefore, the Court's analysis will focus on the child's residence and a visitation schedule beginning in September.
§ 722 FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
The parties have agreed that for the summer of 2018, they will have share residence of the child by alternating weeks. They also agreed that Father would visit Mondays, Tuesdays, and Wednesdays overnight until the end of the current school year so long as Father is able to get the child to and from day care.
Going forward, Mother is seeking primary residence of the child during the school year. She argues that the child has always lived primarily with her and she believes it is in her best interest to remain with Mother. She proposes that Father have visitation with the child every other weekend, Friday through Sunday and up to two (2) dinner visits per week. Mother asserts that the child is currently in daycare and she has made friends there. If Mother were to be awarded primary residence, the child would attend kindergarten with the same friends she has made at daycare. If the Court grants Mother primary residence during the school year, Mother proposes that the residential arrangement be reversed in the summer with Father having primary residence and Mother visiting every other weekend and having up to two (2) dinner visits per week.
Father is also seeking primary residence. He has concerns about Mother's stability because Mother has moved a lot and the child has attended multiple daycares. Father proposes that Mother have visitation with the child three (3) weekends per month. For the summer, Father proposes that the parties alternate contact with the child with Mother having two (2) weeks with the child and Father having one (1) week with the child.
The Court finds this factor is neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The child is too young for the Court to consider her wishes. The Court finds this factor is neutral.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabitating 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;
Neither party disputed that the child has a good relationship with both parties. When the child is with Mother, Mother takes the child to the park and to different stores. When Father has the child they play with puzzles, go to the park, and watch movies. Both sets of grandparents also enjoy doing activates with the child. It was clear to the Court that the child also has a good relationship with her grandparents and the parties' extended family members.
The Court finds that this factor does not support one (1) party having primary residence over the other party. And, but for the parties living over one (1) hour away from each other, this factor would support a shared residence arrangement. Therefore, the Court finds this factor to be neutral in this case.
4. The child's adjustment to his or her home , school and community;
The child is well adjusted to both homes. She has a routine in both homes.
The child attends Mary Moppets Child Care. She has made friends at her daycare. The child is also involved in Girl Scouts. If Mother is awarded primary residence, Mother will choice the child into Marbrook Elementary School. The children in her daycare now will also be attending Marbrook. The child will be able to attend Mary Moppets for before and after school care.
If Father were awarded primary residence, he would have the child attend North Hartford Elementary School. Father stated that he would help the child get ready in the morning and she would take the bus to school. He would then be there in the afternoon when she gets home from school. Father would plan on sleeping during the day when the child is at school. If he needs help, he plans on asking Paternal Grandmother or his aunt for help.
While the child would likely adjust to Father's home, the Court must find that this factor support Mother's position that she should have primary residence at least during the school year. Mother may have moved a lot since separating from Father but she appears to have settled down and has a plan for the child now that she will be starting kindergarten next school year. The child will be able to attend public school with the children in her day care and continue the friendships and the routine she has come to know over the past year.
5. The mental and physical health of all individuals involved;
Neither party nor the child have any mental or physical health problems. Both parties are able to care for the child. However, as Mother has been the parent primarily caring for the child's medical needs since the parties separated, the Court must find that this factor supports Mother having primary residence.
6. Past and present compliance by both parties with their rights and responsibilities to their child under § 701 of this title;
13 Del. C. § 701(a) states in relevant part: "The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare, and education."
When Mother and Father resided together, the parties worked opposite hours so that when one was working, the other would be available to care for the child. Both parties also participated in doctor's visits. Since Mother moved out of Father's parent's home, the child has primarily resided with her and she has been the parent who has been attending to the child's daily needs. She is also the one who takes the child to the doctor and to the dentist.
Father complains that Mother has moved a lot and he is concerned about her stability. However, Father never contested Mother's moves. Although the parties dispute whether or not Mother discussed her move to North Carolina with Father prior to her moving, Father never contested that move. Despite Mother being in Pennsylvania or North Carolina, she continued to facilitate Father's visitation.
The parties have worked together to determine Father's visitation with the child. The only time Mother withheld visitation from Father was after he presented her with the "parenting plan" and she filed the instant Petition. Mother explained that when Father presented her with the "plan" he stated that she could either sign it or things were going to happen the "hard way". Mother did not know what Father meant by his statement and, therefore, she decided to withhold visitation. She now knows that she should not have done so and would not do so in the future.
Mother recently started working at Dollar Tree earning $8.75/hr. Mother receives purchase of care to assist her with paying for the child's daycare and food stamps in the amount of $167/month. Her only other expense is rent of $75/week. Father has been regularly giving Mother $150 every two (2) weeks, but increased the amount to $200 the two (2) payments prior to the hearing.
The parties seem to communicate well with one another. The parties usually communicate via text messaging. The child is able to talk to the other parent when she is in one parent's home. The parties had a misunderstanding regarding the Christmas Eve visit in 2017, but were able to work out the confusion without the Court being involved. Overall, the parents are co-parenting well.
During the hearing, Father stated that he had some concerns regarding Maternal Grandfather's temper. The Court reviewed Grandfather's criminal history and he has convictions which might be related to a person who has trouble controlling his anger. However, Father admitted that he has never been mistreated by Maternal Grandfather and neither has the child or Mother. Mother testified that she is always home when the child is home. Ultimately, Father admitted that he did not have concerns with the child being at the residence and Mother being there.
The Court finds that the parties have been doing well effectively co-parenting this child. Both parents have been complying with their rights and responsibilities. As such, the Court finds that this factor does not support one (1) party having primary residence over the other party. And, but for the parties living over one (1) hour away from each other, this factor would support a shared residence arrangement. Therefore, the Court finds this factor to be neutral in this case.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and
13 Del. C. § 706A in relevant part states:
(a) Any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the court in determining the legal custody and residential arrangements in accordance with the best interests of the child.
Neither party presented evidence of domestic violence between them. In 2000, Maternal Grandfather pled guilty to or was found guilty of Assault 3rd degree. The Court was not presented with evidence during the hearing that it was proven that this conviction was domestic related to make him a perpetrator of domestic violence. Therefore, the Court has insufficient evidence to find Maternal Grandfather is a perpetrator of domestic violence which might prevent the Court from giving Mother primary residence.
The Court finds that this factor does not support one (1) party having primary residence over the other party. And, but for the parties living over one (1) hour away from each other, this factor would support a shared residence arrangement. Therefore, the Court finds this factor to be neutral in this case.
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 has reviewed the Delaware criminal histories of the parties and the members of their households. No one in Father's home has a Delaware criminal history. Paternal Grandmother denied having a criminal history. The Court does not have information regarding Paternal Grandfather's or Father's brothers' criminal history in Maryland. The Court is not concerned with Maternal Step-grandmother's Delaware criminal history. However, she testified that she was charged with Theft by Deception in Pennsylvania five (5) years ago. She alleges she had to complete community service and pay a fine and then the charge would be "dropped" off of her record. She is currently still paying the fine so the charge is still on her record.
In 2010, Mother pled guilty to Shoplifting under $1,500 and a Probation Before Judgment plea was entered. Upon successful completion of probation, the charge was dismissed. Mother testified that in July, 2016, she was charged with Theft by Deception and Receiving Stolen Property in Pennsylvania. As a part of her sentence, Mother had to complete community service and pay a fine. Mother has completed her community service but she is on a payment plan for her fine.
The Court is not concerned with Father's Delaware criminal history. Father testified that he does have a criminal history in Maryland. Father stated that when he was in high school, he had a hunting bow in his truck on school property. He was charged with a deadly weapon on school property. Father indicated that he had the charge expunged.
Maternal Grandfather has an extensive criminal history. But, he only has two convictions since the child was born. In 2013, he pled guilty to Theft of a Motor Vehicle and Conspiracy 2nd degree and pled guilty to or was found guilty of Disorderly Conduct. The Court has already discussed above that in 2000, Maternal Grandfather pled guilty to or was found guilty of Assault 3rd degree. Given Father's admission that he is not concerned about Maternal Grandfather being around the child, the Court places little weight on Grandfather's criminal history.
The Court finds that this factor does not support one (1) party having primary residence over the other party. And, but for the parties living over one (1) hour away from each other, this factor would support a shared residence arrangement. Therefore, the Court finds this factor to be neutral in this case.
CONCLUSION
The parties agreed to have joint custody. Therefore, the Court's analysis focused on the issues of the child's residence and a visitation schedule. Based upon the Court's analysis of the best interest factors, the Court finds factors (1), (2), (3), (6), (7), and (8) are neutral and factors (4) and (5) favor Mother having primary residence, at least during the school year. Notwithstanding the fact that two factors favor Mother's position, but for the distance between the parties' homes, the Court could have found that most of the factors would support a shared residence arrangement. However, as a shared residence arrangement is not practicable in this case, the Court finds that the two factors supporting Mother's position are persuasive and that it is in the child's best interest to remain in the primary care of her Mother. The difficult part of this case is determining an appropriate contact schedule for this family. Both parents work weekends. Before the child starts kindergarten, the parents can share time with her on their days off. Once she starts school, the schedule gets more difficult. Making the case even more difficult is that Father expects his work schedule to change and he does not know what his schedule will be. Therefore, the Court sets forth a contact schedule herein based on the current information available but encourages the parties to make changes to the schedule as appropriate based on their changing schedules.
WHEREFORE, the Court enters the following Order:
A. The parties shall have joint custody.
B. Beginning with the start of the 2018/2019 school year:
1. Mother shall have primary residence.
2. Father shall have visitation every other weekend beginning after school on Friday until Monday morning if he is able to get her to school on time. If he cannot get her to school on time, his visit shall end Sunday evening by 7:30 p.m. If the child does not have school the Friday or Monday before or after Father's weekend, Father's weekend may be extended to include these days.
3. Father may have up to two (2) dinner visits during the week in Delaware provided he gives Mother notice of his dinner visits by the Friday before.
C. Beginning with the summer of 2019:
1. Father shall have primary residence.
2. Mother shall have visitation every other weekend beginning Friday after summer camp ends until Monday morning if she is able to get her to camp on time. If she cannot get her to camp on time, her visit shall end Sunday evening by 7:30 p.m. If Mother is not working the Friday or Monday before or after her weekend, her weekend visit may be extended if the extension does not interfere with Father's plans with the child or the child's camp activities.
3. Mother may have up to two (2) dinner visits during the week in Maryland provided she gives Father notice of her dinner visits by the Friday before.
4. Mother may also have one (1) week of vacation time with the child if she notifies Father of the vacation dates by April 1st of each year.
D. Unless the parties agree otherwise, the following guidelines apply:
1. Holidays: Father shall have the child on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Mother shall have the child on the 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 | Thanksgiving Day |
| Christmas Day | Christmas Eve |
With the exception of Christmas and Halloween contact, holiday contact shall be from 9 a.m. until 6 p.m. the day of the holiday. Halloween contact shall begin at 5 p.m. and end at 8 p.m. on Halloween. Christmas Eve contact shall begin at 6 p.m. on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6 p.m. on December 26th. When a holiday falls on a Monday immediately following a contact weekend, the parent that had contact for the weekend shall be entitled to keep the child continuously from 6 p.m. Friday until 6 p.m. Monday.
2. Mother's/Father's Day: On Mother's Day and Father's Day, no matter whose turn for contact, the child shall be with the parent whose holiday is being celebrated from 9 a.m. until 6 p.m.
3. School Breaks (Winter and Spring): Winter and Spring Breaks shall be shared equally between the parents by dividing the breaks equally or rotating the breaks.
4. Summer Vacation: Summer vacation is addressed above.
5. Late pick-up: Both parents shall have the child ready for pick-up at the start of all contact periods. The child and the parent have no duty to wait for the other parent to
arrive for contact more than thirty (30) minutes, unless notified. The parent who arrives more than thirty (30) minutes late without prior notification for a particular contact, forfeits that contact, unless the other parent agrees otherwise.
6. Drop-off: Neither parent shall return the child early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to the child must be present when the child is returned from contact.
7. Canceling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
8. Medical treatment and emergencies: If the child becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the child becomes ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.
9. Communication: Both parents shall be entitled to reasonable communication with the child while the child 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 the child and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
10. Transportation: Unless otherwise ordered or mutually agreed, parents shall have shared responsibility for transportation of the child to and from their home for contact periods and may use another adult well-known to the child for picking up or dropping off the child when necessary. Any person transporting the child shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All child restraint and seat belt laws must be observed by the driver.
11. School work: Parents shall provide time for the child to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the child. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for a child must be attended, regardless of which parent has the child during the summer school period.
12. Extracurricular activities: Regardless of where the child is living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom the child is staying shall be responsible for providing transportation to activities scheduled during contact with that parent. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address and telephone number of the activity leader, if available.
13. 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 the child's school, travel time to school or extracurricular activities or otherwise may adversely affect the child's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
14. 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.
E. This is a Final Order entered after a full hearing on the merits. Therefore, any future modifications shall be made pursuant to 13 Del. C. § 729(c).
13 Del. C. § 729(c) provides: An order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:
(1) If the application for modification is filed within 2 years after the Court's most recent order concerning these matters, the Court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair his or her emotional development.
(2) If the application for modification is filed more than 2 years after the Court's most recent order concerning these matters, the Court may modify its prior order after considering:
--------a. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification;
b. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and
c. The factors set forth in § 722 of this title.
IT IS SO ORDERED this 15th day of Mar , 2018.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, File