Opinion
File No. CN20-03062 Case No. 20-14209
07-31-2020
K B , Petitioner v. J D. R , SR. Respondent
K B , self-represented J D. R , self-represented,
ORDER ON PETITION RULE TO SHOW CAUSE K B , self-represented J D. R , self-represented, ARRINGTON, Judge.
On July 30, 2020, the Court conducted a hearing on the Petition of K B ("Maternal Grandmother") alleging contempt by J D. R , Sr. ("Father") of a Third-Party Visitation Order entered by consent on December 21, 2018. Both parties participated in the hearing self-represented. Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
On December 21, 2018, the parties dismissed the Maternal Grandmother's petition for Guardianship in favor of an agreed Third Party Visitation Order. As provided by consent in the Order dismissing the Guardianship petition, Child would "visit with Maternal Uncle and Maternal Grandmother every other weekend beginning December 20, 2018, from Thursday after daycare until the following Monday morning before daycare."
Dkt. #6. (File No: CN18-06355)
Maternal Grandmother filed the Petition Rule to Show Cause on July 14, 2020. In the Petition, Maternal Grandmother alleged that "she has not seen her grandson in spite of numerous attempts at calling father." On the same day, Maternal Grandmother filed a Motion and Affidavit for Emergency Ex Parte Order. In the Motion, Maternal Grandmother alleged that she "has not seen [her] grandson since March 20, 2020."
Dkt. # 1.
The Court conducted a hearing on the Petition Rule to Show Cause on July 30, 2020. Father appeared for the hearing and acknowledged that he received a copy of the petition. The final Order is as follows.
LEGAL STANDARD
The purpose of a civil contempt is to coerce compliance with a court order and to remediate damages caused by the failure to comply. In order to bring the coercive power to bear on a respondent, three criteria must be met: (1) a valid order must be in existence; (2) the alleged contemnor must have had the ability to abide by the order; and (3) the alleged contemnor must have disobeyed the order without valid or legal excuse. The burden of proof in applying these criteria originates with the petitioner showing by clear and convincing evidence that a violation of a court order has occurred.
See Delaware State Bar Ass'n v. Alexander, 386 A.2d 652, 665 (Del. 1978).
Watson v. Givens, 758 A.2d 510, 512 (Del. Fam. Ct. 1999).
Id. --------
DISCUSSION
At issue in this case is the uncontroverted fact that Maternal Grandmother has not had visitation with Child since March 20, 2020. Maternal Grandmother testified that she has attempted to contact Father on several occasions but has not received a reply.
Father acknowledged that Child has not seen maternal relatives since March 2020. Father testified that the missed visits are not out of ill-will, but rather are due to safety concerns regarding the Child in midst of the COVID-19 pandemic. Father explained that due to the COVID-19 pandemic, he has been keeping all three of his children, including Child at issue, quarantined in his home. Additionally, Father testified that he resides with Paternal Grandparents and did not want to risk anyone becoming seriously ill due to Child leaving the home for visits.
Father testified that he obtained a new cell phone within the last three weeks and has not received any of Maternal Grandmother's messages. The Court ensured that the parties exchanged their updated phone numbers during the hearing. Father testified that he understands why Maternal Grandmother wants to see Child and has no problem resuming visitation given Maternal Grandmother follows proper COVID-19 precautions.
In this case, there is a valid visitation order entered by consent on December 21, 2018. Father had the ability to comply with the order. Consequently, the first two prongs of the analysis are met. However, due to the COVID-19 situation, Father was not comfortable sending the Child to daycare. Father noted that his parents are approximately 50 years old and are at risk. Father does not disagree that visitation, if safe, should occur but is acting in the best interests of the Child and his family. Therefore, prong three is not met. Father acted as a responsible parent in restricting the Child's contact with others outside of his household.
While the Court cannot find Father in contempt, it is clear that the existing schedule can be altered as Delaware moves to lesser phases of restrictions. Father can ensure that Child has video contact with Maternal Grandmother every other day. Further, Father is comfortable adjusting the schedule of contact for the remainder of the summer. Since Father does not work on weekends, the schedule will be adjusted to provide Maternal Grandmother with visitation on an alternate schedule
CONCLUSION
The Court does not find that Father is in contempt of the existing order. Father was protecting the safety of the Child in light of the COVID-19 pandemic. Since March 2020, several "Stay Home" Orders have been issued by the Governor of Delaware. In light of such orders, the Court finds that Father had a valid excuse for not allowing visitation.
While Father is not in contempt of the Order, the Court does find that there is a need to alter the visitation schedule. Commencing on August 3, 2020, Maternal Grandmother shall have visitation with Child on alternating weeks from Monday at 9:00 a.m. until Wednesday at 6:00 p.m. Maternal Grandmother will be responsible for transportation of Child for her visits. At the start of the 2020-2021 school year, the parties shall revert to the visitation schedule as provided in the December 21, 2018 Order. IT IS HEREBY ORDERED this 30th day of July 2020 that:
1. The Petition Rule to Show Cause is hereby DISMISSED.IT IS SO ORDERED this 31st day of July 2020.
2. Commencing August 3, 2020, Maternal Grandmother shall have visitation with Child on alternating weeks from Monday at 9:00 a.m. until Sunday at 6:00 p.m. Maternal Grandmother is responsible for all transportation of Child for her visitation.
3. Child shall have video contact with Maternal Grandmother on alternate days until the visitation period has begun and at all reasonable times thereafter.
4. At the start of the 2020-2021 school year, the parties shall revert to the Third Party Visitation Order entered on December 21, 2018.
/s/Michael W . Arrington
Honorable Michael W. Arrington
Judge Date of Written Order: July 31, 2020
Date Mailed: July 31, 2020