Opinion
File No. CN09-03471 CPI No(s) 17-27402
07-11-2018
C-------- H----- - ------ ----- ------------- -- ----- Petitioner v. D---- W-----, --. -- -------- ---- ----------- -- ----- Respondent
Petitioner Attorney Self-represented Respondent Attorney John Macconi, Jr., Esquire
Nature of Proceeding
Petition to Modify Custody Petitioner Attorney
Self-represented Respondent Attorney
John Macconi, Jr., Esquire 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 6, 2017, by C-------- H-----, (herein "Mother"), self-represented, against D---- W-----, --. (herein "Father"), represented by John Macconi, Jr., Esquire, in the interest of D---- W-----, --., born -------- --, ---, and B------ W-----, born -------- -, ----, (herein "minor children"). The Court held a hearing on May 16, 2018, and heard testimony from the parties as well as K---- H----- (Mother's husband), R---- J---- (Maternal Grandmother), and K---- W----- (Paternal Grandfather). The Court interviewed the child on the same day as the hearing.
The Petition was filed as to both children. However, both parties agreed to not modify the previous Custody Order for D---- W-----, --. Therefore, the Petition is dismissed as to him and will only address B------.
PROCEDURAL HISTORY
The parties were married on April 28, 2000, and divorced March 8, 2010. Mother filed a Petition for Custody after the parties separated in June, 2009. The Petition was resolved on November 3, 2009, when an Order was entered after a hearing providing Father with primary residence and Mother visitation every other weekend from Friday until Sunday and a dinner visit with the children if she gave Father 48 hours' notice. The Order also provided that Mother was able "to spend two consecutive weekends every third month starting in January 2010. Every third month thereafter, she shall be entitled to have the boys for the first two weekends."
Judge Conner's November 3, 2009, Order, p.7.
In November, 2011, Mother filed a Petition - Rule to Show Cause and a Petition to Modify Visitation. Both Petitions were resolved by an Order entered by Judge Conner on March 9, 2012. Father was not found in contempt. The Court "expand[ed] the school year weekend visitation to allow the boys to spend the first (2) weekends every other month or five times a year with their Mother. ... During the summer starting the first full week at the conclusion of the school year, the boys shall make their primary residence with Mother, and visit with their Father every other weekend."
Judge Conner's March 9, 2012, Order, p. 3-4.
Mother filed the instant Petition on September 6, 2017. The Court held a hearing on May 16, 2018. After Mother presented all of her evidence and rested, Father made an Oral Motion to dismiss pursuant to Family Court Civil Rule of Procedure 41(b). The Motion was denied.
Family Court Civil Rule 41(b) provides: Involuntary dismissal: Effect thereof. -- For failure of the petitioner to prosecute or to comply with these Rules or any order of court, a respondent may move for dismissal of an action or of any claim against that respondent. After the petitioner has completed the presentation of evidence, the respondent, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the petitioner has shown no right to relief. The Court as trier of the facts may then determine them and render judgment against the petitioner or may decline to render any judgment until the close of all the evidence. Unless the Court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this Rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.
Both parties have completed the parent education class.
FACTUAL FINDINGS
B------ was born in 2006 and is now twelve (12) years old. The parties resided as a family until June, 2009, when the parties separated and Mother moved to New Jersey. B------ continued to reside with Father in Delaware.
B------ is in sixth grade at Springer Middle School and is doing well in school. The child has a 504 Plan to help with his Attention Deficit Hyperactivity Disorder (herein "ADHD") and concentration. B------ plays an instrument in school and plays soccer outside of school.
Mother is a school psychologist and performs assessments and evaluations of children in the Willingboro School District. Father works for Kelly Educational Services as a teacher in the Brandywine School District in Delaware.
Further description of the relevant facts in this case are discussed in the analysis below.
LEGAL STANDARD
The parties' current Order was entered on March 9, 2012, by Judge Conner, after a hearing. Therefore, as the instant Petition was filed over two (2) years after the current Order, pursuant to 13 Del. C. § 729(c)(2), [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.
As Mother is seeking to relocate the child to the state of New Jersey, the Court may also consider the Model Act's Relocation Factors. However, the Court is not mandated to use the Model Act but the factors can provide "guidance" to the Court. The Court's analysis of the factors below also incorporates analysis pertinent to the Model Relocation Factors.
§ 405, Proposed Model Relocation Act ("Model Act"), 10 J. Am. Acad. Matrim. Law 1, *18 (1998). In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons in the child's life;
(2) the age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
(3) the feasibility of preserving the relationship between the non-relocating person and the child through suitable [visitation] arrangements, considering the logistics and financial circumstances of the parties;
(4) the child's preference, taking into consideration the age and maturity of the child;
(5) whether there is an established pattern of conduct of the person seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating person;
(6) whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to, financial or emotional benefit or educational opportunity;
(7) the reasons of each person for seeking or opposing the relocation; and
(8) any other factor affecting the best interests of the child.
See Loman v. Dobbins, 878 A.2d 461 (Del. 2005).
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 indicating that the child would be harmed by a modification of the current Order.
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 indicating that the other party has not been complying with the Court's Order or has been subject to sanctions.
C. § 722 FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
The parties did not ask the Court to modify their current Order as it relates to legal custody.
Mother wants primary residence of the child year round. She believes that Father and the child have a contentious relationship and that she is better equipped to handle the child's needs. She proposed that Father have visitation with the child every other weekend.
Father is seeking to keep the current schedule and have the child primarily reside with Father during the school year and Mother during the summer. Mother visits every other weekend during the school year and Father visits every other weekend in the summer.
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 Court interviewed B------. B------ knew he came to Court to talk about where he wants to live. He told the Court that he wants to live with his Mother. According to him, he has told both Mother and Father that he wants to live with Mother. He asserted that he has been saying that he wants to reside with Mother since he was in third grade. He believes that he is now old enough that he can "have a say" in what happens and where he lives. He indicated that Mother told him last year that he was "underage" but now he is old enough to have a "say in things".
B------ believes that Mother understands him better than Father does and she knows how to "keep him in school" and for him to "do better in school". The Court was confused by his statement because when the Court asked him how he was doing in school, he told the Court that he made honor roll.
B------ currently lives with Father and B------'s older brother during the school year. He and his brother argue sometimes but they have a good relationship. B------ indicated that he would miss his brother if he moved to his Mother's home and he is okay with not seeing him as much. B------ plays soccer. He enjoys playing and would like to continue playing. He is also interested in trying a different sport.
If he moves to Mother's home, he will live Mother and his step-father and would see his brother when he visits on the weekends. B------ enjoys relaxing at Mother's home. He told the Court that when he is with Father, Father "drags" him and his brother around to do things. B------ knows that if he moves to Mother's home, he will have to change schools. He and Mother have discussed the school he will attend. He is okay with changing schools because the friends he has at Mother's home also attend the school that he would attend.
B------ was clear to the Court that he wants to reside with Mother. Therefore, the Court finds this factor supports Mother having primary residence.
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;
Mother did not describe her relationship with the child. The Court will assume they have a good relationship because B------ indicated that he has wanted to live with Mother for some time. According to Mother, the child has a "beautiful" relationship with his step-father.
Father described his relationship with the child as very good. Father stated that he and the child may argue sometimes, but that is because the child is stubborn and procrastinates with his assignments. To the contrary, Mother believes the child and Father have a "contentious" relationship and that Father struggles to get the child to do the things that he needs to do. Mother asserted that Father and B------ went to counseling to resolve their issues in the past. Father denies that they went to counseling because they had a contentious relationship and alleged that B------ went to counseling because he was having separation anxiety when leaving Father. The Court did not have enough information to determine why B------ went to counseling but it appears that those sessions were several years ago and the issues have been resolved.
Everybody agrees that B------ and his brother have a good relationship, but they argue like typical siblings.
While Mother alleges that Father and child have a contentious relationship, she presented no evidence other than her broad statements alleging that Father and child do not have a good relationship. The Court finds that this factor would support shared residence if it were possible. However, because these parties live in different states and too far apart from one another to get B------ to school in the morning, shared residence would not be appropriate. Therefore, the Court finds this factor to be neutral.
4. The child's adjustment to his or her home , school and community;
B------ is in sixth grade and attends Springer Middle School in the Brandywine School District from Father's home. He is doing well in school. He has been diagnosed with ADHD and has a 504 Plan. B------ plays an instrument in school because it is required of all students. He was playing the viola but is now playing the base. Outside of school, he plays soccer and Father is his coach. B------ enjoys playing soccer.
Mother is concerned because B------ is "somber" when it is time to return to Father's home. Mother believes that Father and the child have a "contentious" relationship as Father tries to control the child and struggles with making the child listen to him. Father explained that he and the child do argue sometimes, but that is because the child procrastinates about his work and does not want to do things when he has to do them. For example, Father described that he has had to put the child on a "project management schedule" to assist the child in getting his assignments done. Father also stated that the child does not like to brush his teeth and pick out his clothes. Therefore, Father has to brush his teeth for him and pick out his clothes. Father admits that it is not ideal for Father to do these chores for B------ but, at times, B------ will not do these chores on his own.
While with Father, B------ spends time with the Paternal Grandparents, who live in Lewes, DE and sees them on a regular basis during the year. He also spends time with them during the holidays when he is with Father.
B------ indicated that he enjoys spending time at Mother's home because he likes not doing anything and just relaxing. Mother testified that B------ and her husband enjoy spending time together as they are "sport buddies".
The Court finds that this factor would support shared residence if it were possible. Given that shared residence is not possible, this factor does not persuade the Court to give one parent primary residence over the other and, therefore, the Court finds this factor neutral.
5. The mental and physical health of all individuals involved;
Mother's health is "fine". Father did not present evidence of his health. The Court will assume he is in good health.
The child has allergies and asthma. The child was in counseling with J---- C--------, but is no longer seeing her. Mother was under the impression that B------ was in counseling to address his relationship with Father because he struggled with making the child listen to him. Father testified that B------ started counseling in September, 2014, because he was showing signs of separation anxiety when Father was taking him to school. The counseling sessions also addressed his concentration issues and ADHD. B------ stopped counseling in May, 2015. He began again in the fall of 2017 because he was fearful of the orthodontist and dentist. Father has since stopped taking him to counseling as the orthodontia work has been delayed and there is no reason to go. B------ confirmed that he went to counseling most recently because of his fear of the dentist and orthodontist. The Court is not clear as to why B------ started counseling in 2014 but it seems the issues that caused the counseling to start may have been resolved and now B------ only sees a counselor related to his fear of the dentist and orthodontist.
The Court finds that this factor would support shared residence if it were possible. Given that shared residence is not possible, this factor does not persuade the Court to give one parent primary residence over the other and, therefore, the Court finds this factor neutral.
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."
At some point, the parties had discussed the child living with Mother. According to Mother, she asked Father if the child could live with her and Father agreed but then later told her that he spoke to an attorney and changed his mind. Father asserted that he never agreed to the child moving to live with Mother, but told her that he would talk to his attorney and see if they could come up with a "proposal". Father indicated that they did not discuss it anymore after that conversation.
Mother argued that Father does not communicate with her. Father denied Mother's assertion and characterized their communication as "stagnant". He stated that sometimes he misses Mother's phone calls, but he does return them or text message her back. To support his position that the parties communicate with one another, Father stated that the parties have worked out different schedules and have been flexible with one another about changing days.
Mother also alleged that Father enrolled the child in counseling without her knowledge. Father did not dispute this. However, once Mother knew the child was in counseling, she still did not contact the child's therapist to see how the child was doing or why he was in counseling.
As Father has primary residence during the school year, he is primarily responsible for checking homework and ensures that assignments are complete. Father has attended school conferences as well. There is no dispute that Father has fulfilled this responsibility appropriately.
The Court finds that Father has been fulfilling his rights and responsibilities. He is involved in the child's education and ensuring that he receives the necessary counseling. On the other hand, Mother has not been involved in the child's counseling. Even though she alleged that Father put the child in counseling without her knowledge, she did not contact the child's therapist to see how the child was doing. Mother could be more active in the child's education and medical needs. Therefore, the Court finds that this factor supports Father's position that their current Order should not be modified. The Court notes, however, that Mother has the ability to be more involved in both his education and his counseling as she is a school counselor herself. The Court has no concerns that she would be able to address his needs if she were give primary residence of B------ during the school year.
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. Therefore, the Court finds this factor is neutral.
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 child's Step-father. The Court is not concerned with Father's history and neither Mother nor the Step-father have a criminal history in Delaware. Both Mother and Step-father denied having a criminal history in New Jersey. The Court finds this factor is neutral.
CONCLUSION
Based upon its analysis set forth above, the Court finds that factors (1), (3) (4), (5), (7), and (8) are neutral, factor (2) supports Mother's position and factor (6) support Father's position that the Order remain the same. While the factors are evenly divided in this case, the Court places great weight on factor (2), the child's wishes.
When weighing the best interests factors, "[i]t is quite possible that the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations." The weight assigned to each relevant factor and considerations varies with each unique factual situation. Depending on the child's age, lack of maturity, or inability to articulate reasons for selecting one parent over the other, the Court may give little to no weight to the child's wishes. However, in other cases, the child's wishes could be the determinative factor in the custody decision. The Court has the ability to assign greater or lesser weight to some factors than others to create a custody Order that is in the best interests of the child.
Clark v. Clark, 47 A.3d 513, 517 (Del. 2012).
DLK v. CS, 1986 WL 9029, at *2 (Del. Super. Ct. Aug. 5, 1986).
Id.
Id.
Id.
In duPont v. duPont, 216 A.2d 674 (Del. 1966), the Delaware Supreme Court held that, "if other considerations are equal, the desire of the child may be decisive." In order to reach this conclusion, the Court must determine if, "child has reached an age of sufficient discretion to form an intelligent preference, and whether or not the preference is expressed because of some temporary dissatisfaction or passing whim." In duPont, a sixteen year old child expressed her wishes and desire to remain living with her father, but her wishes were ignored and characterized as being influenced by father. The Supreme Court ultimately stated that it was an error of law to give no weight to the express desire of the child to remain with her father. And since all other considerations were equal, her preference should have been followed.
duPont v. duPont, 216 A.2d 674, 681 (Del. 1966).
Id.
Id.
Id.
Id.
In this case, when the Court interviewed B------, it was apparent to the Court that he was mature and was aware of why he was there to talk to the Court. B------ clearly articulated that he wants to live with Mother. B------ was also clear that he has told both parents of his desire to live with Mother and apparently has been telling both parents this since he was in third grade. B------ told the Court reasons why he wants to live with Mother and the Court believes these reasons were not the product of a "passing whim". It seemed that wanting to live with Mother was something he had thought about for some time as he had considered that moving to Mother's home would mean that he would change schools, spend less time with his brother, and would be able to attend school with his friends at Mother's home. As such, the Court gives great weight to factor (2) and finds it to be determinative in this case.
WHEREFORE, the Court enters the following Order:
A. The parties shall have joint custody.
B. School year:
1. Beginning with the 2018-2019 school year, Mother shall have primary residence;
2. Father shall have visitation every other weekend from Friday after school until Sunday at 8:00 p.m.;
3. Father shall also have the right to visit four (4) additional weekends during the school year. Father shall give Mother thirty (30) days' notice of his intention to exercise his right to the additional weekend visits; and
4. If B------ is not in school on Friday or Monday on any of Father's weekends, including the additional weekends Father may choose, Father shall have the right to extend his visit to begin Thursday after school or ending Monday at 8:00 p.m.
C. Summer:
1. Beginning with the Summer of 2019, for purposes of this Order, Summer begins the Sunday of the first full week after the last day of school and ends on the Friday of the last week before the first day of school;
2. Father shall have primary residence;
3. Mother shall have visitation with the child every other weekend beginning immediately following his summer activity on Friday until Sunday at 8:00 p.m.; and
4. Mother may have one (1) week of vacation with the child each summer. Mother shall select her week by April 1st of each year. Mother's vacation week shall not interfere with the child's extracurricular activities or summer school, if applicable.
D. If the parties agree, nothing herein prevents the parties from modifying the terms of this Order on a temporary or permanent basis. The parties are encouraged to address any changes to this Order in writing to decrease the possibility of a misunderstanding. However, the parties are hereby notified that neither party can be held in contempt unless a provision is included in a Court Order.
E. 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 Summer schedule 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.
F. 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 11th day of July , 2018.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, File