Opinion
File No. CN08-04004 CPI No(s) 17-27944
06-18-2018
B------ C------- ----- ----- -------------- -- ----- Petitioner v. H----- R------------- --- ------ ------- -- ----- Respondent
Petitioner Attorney Joseph Wahl, Esquire Respondent Attorney Self-represented
Nature of Proceeding
Petition to Modify Custody Petitioner Attorney
Joseph Wahl, Esquire Respondent Attorney
Self-represented ORDER - PETITION TO MODIFY CUSTODY
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition to Modify Custody filed on September 9, 2017, by B------ C----, (herein "Father"), represented by Joseph Wahl, Esquire, against H----- R---------- (herein "Mother"), self-represented, in the interest of I---- R----------, born --- --, ----, (herein "minor child"). The Court held a hearing on April 18, 2018. The Court heard testimony from both parties, as well as J---- W------ (child's school principal), L------ M------- (Division of Family Services), and B----- T---- (Father's fiancé).
PROCEDURAL HISTORY
The parties have a long procedural history with more than one hundred and fifty-five (155) tabs in the Court's file. The Court has broken down the relevant procedural history into categories.
Custody:
In 2008, the parties filed cross Petitions for Custody, which were resolved by a Stipulation and Order issued on January 30, 2009.
Mother filed a Petition to Modify Custody on May 21, 2010, which was dismissed after she failed to appear.
On November 15, 2012, Father filed a Petition for Visitation. On April 22, 2014, Judge Conner entered an Order providing Father with "weekly visitation on Wednesday evenings from 5:30 p.m. until 7:30 p.m." Father was to also have visitation every other weekend from Friday until Sunday.
Judge Conner's April 22, 2014, Order, p.2.
In April, 2014, Mother filed a Petition to Modify Visitation, which was later dismissed due to Mother's failure to pay the filing fee.
One (1) year later, in April, 2015, Father filed a Petition to Modify Custody. Judge Conner entered an Order on June 12, 2015, providing that Mother was to continue having primary residence and Father's visitation was increased. Pursuant to the Order, "[the child] shall be with his Father on weekends from Friday evenings at 6:00 p.m. until Sunday evenings at 6:00 p.m., and on a mutually agreed upon mid-week evening for dinner." During the summer, Father's visitation was extended to include overnight on Sundays.
Judge Conner's June 12, 2015, Order, p.3.
Mother filed a second Petition to Modify Visitation in April, 2016, which was dismissed because Mother failed to contact the Judge's office with a telephone number for the scheduled teleconference.
In May, 2017, Father filed a Petition for Custody. After a Case Management Conference when the Court explained the burden of proof when a prior Order is less than two (2) years old, Father motioned to voluntarily dismiss the Petition. The Motion was unopposed and granted. Father filed the instant Petition on September 9, 2017.
Protection from Abuse:
On July 25, 2008, Mother filed a Petition for an Order of Protection from Abuse (herein "PFA") against Father and an Ex Parte Order was granted the same day. The Petition was resolved by a Consent Order entered on August 1, 2008. Six (6) months later in February, 2009, Mother filed a Motion to Modify, Vacate, or Extend the PFA Order alleging that the parties had reconciled. The Motion was granted on March 25, 2009, and the PFA was vacated.
Mother filed a second PFA Petition on January 27, 2010, and an Ex Parte Order was entered. The Petition was resolved when a Consent Order was issued in February, 2010. Less than one (1) month later, in March, 2010, Mother filed a Motion to Vacate the PFA Order again alleging that the parties wanted to work things out together. The Motion was granted and the PFA Order was vacated. Two (2) months later, Mother filed a second Motion to Modify, Vacate, or Extend the PFA Order, which was dismissed in June, 2010, based upon Mother's failure to appear. It is unclear to this Court how she was permitted to file a Motion for Contempt of a PFA Order that had been vacated. However, given the fact that she failed to appear, this procedural glitch has no impact on this Court's decision.
Over one (1) year later in July, 2011, Mother filed a third PFA Petition and an Ex Parte Order was entered. The Petition was resolved by a Consent Order entered on August 5, 2011, and Father agreed to an Order which included no abuse, stay away, and no contact provisions for two (2) years.
Eight (8) months later, on April 16, 2012, Mother filed a fourth PFA Petition and an Ex Parte Order was entered. The Petition was later dismissed after a hearing because Mother failed to prove by a preponderance of the evidence that Father committed an act of abuse. The Court notes that the prior Order was still active and Mother did not need to file a new PFA Petition but could have filed a Motion for Contempt of the active Order.
Mother then filed a Motion for Contempt of the PFA Order on June 6, 2012, which was granted on June 28, 2012. The Commissioner found that Father was in contempt of the PFA Order when he admitted "his failure to pay child support and failure to have supervised visitation." Five (5) months later in November, 2012, Mother filed another Motion for Contempt of the PFA Order, which was granted when the Commissioner found that Father had yet to pay any child support.
After reading the Commissioner's Order, this Court is not clear whether Father failed to visit with the child or failed to have his visits supervised.
Child Support:
On September 9, 2008, Mother filed a Petition for Child Support. A Support Order was entered on January 15, 2009, obligating Father to pay $96/month. On March 30, 2010, Mother' filed a Motion to Revoke Child Support and it was granted.
Over two (2) years later in August, 2012, Mother filed a Petition for Child Support. A Child Support Order was entered on February 7, 2013, obligating Father to pay $517/month ($487 in current support and $30 in arrears/retroactive support). Three (3) months later in May, 2013, a Petition for Child Support Arrears was filed against Father. In June, 2013, Father admitted that he was in contempt of the Order as he was not working and had not given an adequate excuse for not working. As a result, Father's Child Support Obligation was increased to $537/month ($487 in current support and $50 in arrears/retroactive support).
In April, 2015, Father filed a Petition to Modify Child Support. The Petition was dismissed after the Court found that there had not been a substantial change of circumstances.
Mother filed a second Petition for Child Support Arrears on May 6, 2016. Father was found to be in contempt again as he had failed to work and the Order was modified to require Father to pay $537/month ($437 in current support and $100 in arrears/retroactive support).
FACTUAL FINDINGS
Pursuant to the current Order, the parties have joint custody, Mother has primary residence, and Father has visitation every other weekend and one (1) night during the week. However, the parties have deviated somewhat from their current Order and Mother has agreed to Father having more time with the child. The parties agree to continue having joint custody and have also agreed to have a shared residence arrangement during the summer by alternating every other week. Therefore, the Court's analysis will focus on the child's residence during the school year.
The parties have been separated since at least 2008 when the first Petitions for Custody were filed. Given the PFA history, there appears to be periods of time when the parties attempted to reconcile but the Court is not aware of the details as to where the child was living during these times. The child is now ten (10) years old and has always primarily resided with Mother in Delaware. I---- is in 4th grade at Newark Charter School. He has some behavioral issues in school, but both parents have worked to address his issues. If the child were to primarily reside with Father, he would have to change schools and would attend Ring Factory Elementary School in Maryland. The child is active at both parents' homes. While at Father's house, they enjoy going to cross fit, watching movies, and going shopping. While at Mother's home, the child spends a lot of time outside playing basketball, riding four wheelers, and swimming in the pool.
Father is a plumber for C & D Services. He works Monday through Friday from 7:30 a.m. until 4:30 p.m. He is on call every three (3) weeks.
Mother works for Stay True Plumbing, which is owned by her boyfriend. Mother works out of her home and works Monday through Friday from 8:15 a.m. until 4:30 p.m.
Further discussion of the relevant facts is addressed below in the Court's analysis.
LEGAL STANDARD
The parties' current Order was entered by Judge Conner on June 10, 2015. The instant Petition was filed on September 9, 2017, more than two (2) years after the current Order. As such, the Court will follow the criteria set forth in 13 Del. C. § 729(c)(2), which provides that [a]n 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:
(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.
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.
DISCUSSION
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;
Neither party presented evidence that the child would be harmed if the current Order was modified. Mother asserted that the child should have consistency and stability and, therefore, the Order should not be modified. She alleged that he would be harmed if his school was changed, but she did not provide evidence of same.
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
Neither party presented evidence that either party has failed to comply with this Court's Orders concerning custody and visitation. However, a review of the Court's file indicates that Father was found in contempt for his "failure to have supervised visitation" with the child. However, after reading the Commissioner's Order, this Court is not clear whether Father failed to visit the child or failed to have his visits supervised. Therefore, the Court will give this element the proper weight.
See tab #76, 6/28/12 Commissioners' Order.
C. The factors set forth in § 722 of this title.
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
The parties agree to continue having joint custody and shared residence in the summer alternating every other week.
Father is seeking primary residence of the child during the school year. He proposed that Mother have visitation every other weekend and for Mother to have one (1) overnight every week. Father believes that the child would be happier living with him.
Mother is seeking to continue having primary residence of the child and for Father to have visitation every other weekend and one (1) night every week. Mother believes that the schedule should remain the same because it provides consistency and stability in the child's life.
The Court finds this factor to be neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Father filed a Motion for in Chamber Interview of the child on April 11, 2018. Mother was opposed to the Court interviewing the child. At the end of the hearing, the Motion was deferred so the Court could decide if the child needed to be interviewed after reviewing the evidence. During the hearing, Father asserted that the child wants to live with him. Mother did not deny that the child has said that he wants to live with Father. But, she also believes the child wants to live with her as well. After a review of the evidence, considering the child's young age, and Mother's admission that the child may say that he wants to live with Father, the Court believes that it has enough information to decide the child's residence without interviewing the child.
The Court finds this factor to be 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;
Father described his relationship with the child as "great". The two of them play baseball and spend time building things together. According to Father, his fiancé has an "amazing" relationship with the child. While at Father's home, Father, his fiancé, and the child go to cross fit, watch movies as a family, and go shopping. The child is also able to spend time with Father's family when he is at Father's home.
Mother asserted that she has a good relationship with the child. While at Mother's home, they cook and clean together, play basketball, ride four wheelers, and swim in the family pool. Mother and the child reside with her boyfriend, Kenny Zajaczkowski. Father asserted that the child does not like being at Mother's home because there are a lot of people that work for Mother's boyfriend who come in and out of the house and the workers "tease" the child. Mother did not deny this. The Court does not have any information as to the child's relationship with Mother's boyfriend but notes that there was no evidence that the child has a bad relationship with Mother's boyfriend. The child spends time with Mother's family while at her home as well.
The Court finds that the child has good relationships with the parents and gets along with the members of both households. The child is also able to spend quality time with extended family on both sides. Therefore, the Court finds that this factor supports the parents having shared residence of the child.
4. The child's adjustment to his or her home , school and community;
The child is in 4th grade at Newark Charter School. According to J---- W------, the principal at Newark Charter School, the child is on track to be promoted to the next grade. However, the child has had seven (7) behavior incidents this school year which is more than the average child in the school. The Court only has information as to two (2) of the incidents. One incident occurred on the school bus and the child was suspended for one (1) day. The other incident occurred when he showed girls in his school an encyclopedia article about the reproductive system. The Court was given no information as to the child's punishment for the second incident.
If the child were to primarily reside with Father, he would change schools and attend Ring Factory Elementary School in Maryland. According to Father it is a "blue ribbon school". Mother believes that the child is well adjusted to his school and changing it now would "harm" him but she provided no evidence of the harm she claims he would suffer.
Father alleges that the parties have deviated from the current Order and that Father has had more time with the child than Mother has had with the child. Mother agreed that Father has had extra time with the child but disagrees that he has had more time than she has had with the child. To further his position that he has had more time, Father provided the Court with a calendar of the days that he had the child overnight from July, 2017, until the date of the hearing. According to the calendar, Father had the child less than fifty percent (50%) of the time in September and October, 2017; the majority of November, 2017; fifteen (15) out of thirty-one (31) days in December, 2017; thirteen (13) days out of thirty-one (31) days in January, 2018; ten (10) days out of twenty-eight (28) in February, 2018; fifteen (15) out of thirty-one (31) days in March, 2018; and ten (10) days in April, 2018.
The Division of Family Services was involved with Mother during the month of November, 2017, when there was a hotline report made alleging that Mother had physically harmed the child. The parties entered a Safety Agreement with DFS and agreed the child would remain with Father while the investigation was pending. DFS ultimately closed its case. The Court has no information regarding DFS' findings but will assume DFS determined that no abuse occurred.
See Petitioner's Exhibit 2.
Father's evidence does not support his position that he had the child more than Mother but does support the position that the child was in each home almost 50% of the time. The Court commends the parties for amicably sharing time with the child.
The child has a routine in both homes. Both parents help the child with his homework. The child has his own room at both homes. He is able to spend time with friends at both homes. The child is involved in sports and is able to participate in them no matter which parent he is with that day. Mother asserted that the child is able to contact Father when he is at her home and vice versa. However, Father disagreed and alleged that the child is not allowed to call Father while he is at Mother's home. The Court was unable to determine whose testimony was more accurate in this regard.
Father alleged that there is a lot of conflict between Mother and the child while the child is at Mother's home. He testified that Mother yells at the child and he does not believe her yelling is healthy for the child. Mother did not deny that the child can be "difficult" at times. Mother alleged that when the child has to do chores or his homework at Mother's home, he acts out because he is spoiled at Father's home.
To further support his position that there is parent child conflict in Mother's home, Father described an incident in December, 2016, when the child threatened to jump out of a window. Father testified that this is an example of the conflict and how the child behaves at Mother's home. Father asserts the child does not behave that way in his home. Mother explained that there was an incident in December, 2016, when the child was threatening to jump out of his window. According to Mother, the child was upset because they were not going to decorate the Christmas tree that night. Prior to saying he was going to jump out of the window, he destroyed wreaths that were in the home and globes that were outside. Mother was attempting to discipline him and told him to stay in his room when the child threatened to jump out of the window. After Mother did not make a "big deal" of the situation, the child calmed down.
Father also testified about an incident he reported to DFS in November, 2017, where Mother allegedly drug the child across the carpet and pushed him down the stairs. Father claimed that he saw "abrasions" to the child's body and that the child was concerned about telling Father for fear that Mother would be upset. Father stated that he asked Mother about the marks on his body, but Mother did not respond. In Court, she explained that the child was refusing to brush his teeth and get ready for school. As she was trying to get him out the door to go to school, he threw himself on the floor and began to drag his legs. DFS investigated the incident and closed its case. The Court has no information as to DFS' finding but will assume DFS closed its case as unsubstantiated as the Court has no information to the contrary.
Notwithstanding, the fact that the child appears to challenge Mother's parental authority more than Father's authority, the Court finds this factor supports the parties having a shared residence arrangement. While the child may enjoy being at one home over the other because of the parties' different parenting styles and rules in their homes, it does not mean that the child is not adjusted to both homes. The child is able to interact with friends and family and participate in activities in both homes. The child is well adjusted to his school. Although he does have some behavioral issues in school, the Court cannot conclude that those issues are caused by being in Mother's home alone. While Father would like the Court to believe that the child's behavior problems at school are related to the child being unhappy in Mother's home, Father's evidence showed that the parties were actually sharing time with the child when he was having the behavioral issues at school. Therefore, if either party is to "blame" for the child's poor behavior, the parents share that blame. However, the Court does not place "blame" on either parent and notes that sometimes a child's poor behavior is not the result of anyone parent but can be the result of the parents failing to co-parent the child and allowing the child to manipulate his situation.
5. The mental and physical health of all individuals involved;
Neither parent has any mental or physical health issues that would prevent him or her from caring for the child.
The child does not have any physical health problems. The child was in counseling with S---- N-----, but it ended due to scheduling issues. The social worker from the Division of Family Services (herein "DFS") indicated that there were some concerns for the child's mental health, but the child does not have any diagnoses.
The Court finds that this factor supports a shared residence arrangement as both parents are able to properly address the child's mental health in their homes.
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."
Both parents asserted that they are involved with the child's education and are contacted by the school if an issue arises. Although Mother asserts that she is involved, she admits that the child could be doing "better" academically and admits that she has not been as involved this past year as she should have been. Mother explained that she has not been as involved with the child's education because this is the first time in the child's life that Father has been actively involved. Mother credits both Father and his fiancé for being involved and partaking in this responsibility.
Both parents appear to appropriately address the child's behavior and use appropriate discipline. Father stated that he talks to the child and uses a "point system" as discipline. He will also take away his game systems and will not allow the child to do activities that he wants to do. Mother claims to discipline the child in a similar manner by taking things away from him.
DFS has been involved with the parties two times. In January, 2017, a report was made to DFS for possible inappropriate discipline or spanking of the child by Mother. The case was closed and unsubstantiated. The DFS worker testified that there were concerns for the child's mental health at that time because he did not have an outlet to express how he was feeling. Shortly after, the child began attending counseling, but is no longer attending counseling. Ms. M-------, the DFS worker, wrote a letter in support of Father's Petition for Custody. However, on the stand, she admitted that she had not visited Father's home prior to writing the letter. She stated that she supported Father because Mother was the parent who had been investigated. Although she indicated that she supported Father's Petition for Custody, she admitted on the stand that she did not find a reason to remove the child from Mother's home during the investigation.
See Petitioner's Exhibit 1.
DFS became involved in the parties' lives again in November, 2017. Father alleged that Mother had harmed the child by grabbing him, dragging him, and pushing him. A safety plan was signed by both parties in November, 2017. The safety plan indicated that the child "disclosed to SW that mom physically harmed (pushed down steps, bruised) him. The safety plan also provided that the child was to remain with Father until the investigation was over. DFS investigated the incident and closed its case. The Court has no information as to DFS' finding but will assume DFS closed its case as unsubstantiated because the Court has no information to the contrary.
See Petitioner's Exhibit 3.
Id.
Mother and Father are currently both employed and are able to support the child. However, Mother alleged that Father has not had stable employment. Father has had six (6) jobs in the past year. According to Father, he left the other jobs because he was looking for "better opportunities". While having multiple jobs, Father asserted that he has "overpaid" his child support obligation. However, Father's assertion is not supported by the Court's file which indicates Father has admitted to being in contempt of the Child Support Order in 2013 and was found to be in contempt of the Child Support Order in 2016. Pursuant to an Order entered on July 14, 2016, Father is obligated to pay Mother $537/month ($437 in current support and $100 in arrears/retroactive support). Father testified that even when he was changing jobs, he paid his child support on his own. However, his fiancé testified that she has given him loans to pay his child support.
The child is fortunate to have many people in his life who support and care for him. Father and Mother may not always communicate effectively, but Mother and Father's fiancé communicate well with one another. Mother is thankful that Father's fiancé is "in the picture". Mother asserts that Father's fiancé is the reason why she has allowed Father to have more time with the child. Mother also asserted that Father's fiancé does more with the child than Father does with him. Father disputed Mother's claim and alleges that he is actively involved in the child's life. However, his fiancé testified that she is the one who sets up the child's sports and medical appointments and Father has not taken the child to his doctor's appointments.
Overall, the Court finds that both parents have exercised their rights and responsibilities with respect to the child. While neither has been perfect over the years, together they have provided for this child and made sure his needs were met. Mother has been there consistently over the years but relaxed a bit in the past year when Father's finance stepped up and helped Father. Father has not always paid his child support on time or had significant contact with the child but he has been more involved in the last year and appears to be a positive influence in the child's life now. Therefore, the Court must find that this factor supports a shared residence arrangement which the parties have been basically exercising in the recent past.
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.
Consent PFA Orders were entered in 2008, 2010, 2011, and 2012 protecting Mother from Father. As a Consent Order does not include a finding of abuse, the Court cannot consider the Order as evidence of abuse. However, the Court can consider that Father was found to be in contempt of the PFA Orders twice in 2012 but those contempt findings were based on his failure to pay child support and failure to exercise visitation and were not based on acts of violence. Therefore, the Court gives the contempt findings the appropriate weight.
However, in 2010, Father pled guilty to Criminal Contempt of a Domestic Violence Protective Order and Harassment. Mother was the victim of both charges. In 2012, Father was found guilty of or pled guilty to Criminal Contempt of a Domestic Violence Protective Order.
Therefore, the Court finds this factor supports Mother having primary residence of the child.
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.
During the hearing, Father testified that he was convicted of Theft of a Portable Device in 2017 in Pennsylvania. And in 2010, Father pled guilty to Criminal Contempt of a Domestic Violence Protective Order and Harassment. Mother was the victim of both charges. In 2012, Father was found guilty of or pled guilty to Criminal Contempt of a Domestic Violence Protective Order.
In 2017, Mother pled guilty to Driving Under the Influence and was placed in the first offender's program. The Court reviewed Mother's boyfriend's criminal history and he has a DUI conviction from 2007.
As both parties have criminal histories that might cause the Court some concern, the Court finds this factor supports the parties having shared residence of the child.
CONCLUSION
The parties agreed to continue having joint custody and to a shared residence arrangement in the summer. Therefore, the Court's analysis focused on the child's residence during the school year. The Court does not find that the child would be harmed if the current Order were modified and both parties have complied with previous Orders although Father appears to have violated the visitation schedule in a PFA Order. The Court is significantly impressed that the parties have amicably deviated from the prior Order and have essentially been sharing time with the child. Based upon the Court's analysis of the best interest factors as stated herein, the Court finds factors (1) and (2) are neutral, factors (3), (4), (5), (6), and (8) support a shared residence arrangement, and factor (7) supports Mother's position that she should have primary residence of the child. None of the factors supported Father having primary residence of the child.
While the Court is concerned about the PFA history and the criminal charges related to domestic violence, the Court notes that the incidents of domestic violence were some years ago when the parties were younger and closer in time to the parties' separation. Father appears to have matured some since the PFA filings and the criminal charges and has settled down a bit with his fiancé who is a positive influence for this child and these parties. The Court was overwhelmingly impressed with Father's fiancé, her relationship with Mother, and her ability to help these parents co-parent this child. She indicated that she considers Mother to be part of her family and Mother praised her efforts in helping raise this child. The Court is very thankful for the support of Father's fiancé and the parties should be as well.
WHEREFORE, the Court enters the following Order:
A. The parties shall have joint custody.
B. The parties shall have shared residence of the child. The parties shall alternate every other week with the exchange taking place on Friday after school unless they agree on a different day for the exchange to take place. As the parties have a week on/off arrangement in the summer, they shall continue this arrangement as the child transitions into the school year.
C. 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: The parties shall alternate weeks with the child for the summer on a schedule consistent with them alternating weeks during the school year. The parent who has the child for the week shall be responsible for taking the child to his or her extracurricular activities, summer school, and providing summer care for that week.
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.
D. 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 18th day of June , 2018.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, File