Opinion
CK18-01329 Petition 21-14980
08-04-2021
KS, PETITIONER, v. CS, RESPONDENT. In the Interests of: AS (DOB: -/--/2013) BS (DOB: -/--/2016)
ORDER
MOTION FOR PRIORITY SCHEDULING
MOTION TO BYPASS MEDIATION
JAMES G. MCGIFFIN, JR., JUDGE
Before the HONORABLE JAMES G. McGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
On August 4, 2021 the Court convened a hearing on Motions related to the Petition to Modify Custody Order filed by K ------- S---- (Mother) against C ---------- S---- (Father) in the interests of A -----, born ----- --, 2013, and B -----, born ---- -, 2016. Mother appeared with counsel, Edward Curley. Father appeared with counsel, Sean Lynn.
In February 2018 these parties resolved the original custody dispute with a Stipulation and Order Regarding Custody, Placement and Contact. The Stipulation and Order includes this provision:
16. Relocation. The Parties understand and agree that Father serves in the United States Air Force, and, as such, is subject to a mandatory relocation outside of the State of Delaware. The Parties understand and agree that Father shall be permitted to relocate, with the Minor Children, should he receive Order [sic] mandating he relocate outside the State
of Delaware. The Parties understand and agree that Mother may relocate with Father and the Minor Children, should she so elect.
Father has informed Mother that he has received orders requiring his relocation to Norfolk, Virginia. He is to report in September. Mother asks the Court to intervene on a priority basis and prevent the relocation. A full hearing on the merits of her petition is logistically impossible before a date well into the autumn.
Mother argues that Father is barred from relocating the children by the automatic preliminary injunction that operates by statute. She maintains Father was bound by that injunction when he received service of her Petition to Modify Order of Custody. Mother further argues that the children are adjusted to their present circumstances and the disruption from a move to Virginia is contrary to their best interests.
Father argues that there is no impediment to his relocation with the children, as he secured Mother's prior permission and leave of the Court in the 2018 Stipulation and Order. He also argues that the statutory preliminary injunction applies only at the filing and service of an initial custody petition. Father recognizes that the Court will make a "best interest" determination after a hearing on the merits and at the same time resolve the relocation question.
The automatic preliminary injunction statute is not so narrow as Father suggests. It refers to "petition for custody" in a generic, not a specific, sense. The injunction attaches to the Petition to Modify Order of Custody. But Father correctly points out that he secured Mother's prior written consent to relocate in these circumstances. The automatic preliminary injunction does not prevent the relocation of the children.
I presume that the Stipulation and Order entered in 2018 satisfied the best interests of the children in the minds of the parents at the time it was executed. I recognize that a best interest analysis might now have a different result. The children may relocate to Virginia only to return to Delaware after the trial. Such moves are often disruptive, but there is no serious claim that either of the children is at risk of immediate and irreparable harm because of relocation.
This Court will not prevent Father from relocating the children to the Norfolk, Virginia area at this time. The matter will be set for trial.
IT IS SO ORDERED.