Opinion
FILE NO.: CN13-05930 CPI NO.: 17-16206 (Mother-Custody Mod.; Father-Crossclaim) CPI NO.: 18-24679 (Mother- RTSC)
02-25-2019
C------ G---------K-----, Petitioner, v. J---- G--------, Respondent. In the Interest of: N----- G-------- (M) (DOB --/--/10)
ORDER AND DECISION ON PETITION TO MODIFY CUSTODY AND PETITION- RULE TO SHOW CAUSE
Before the Court is a Petition to Modify Custody, filed on May 30, 2017 by C------ G---------K----- (hereinafter "Mother"), by and through her former attorney, Shauna Hagan, Esquire, against J---- G-------- (hereinafter "Father") in the interest of their minor child, N----- G-------- (hereinafter "Child"), born ------- --, 2010. In her Petition, Mother requested to modify the February 2, 2015 Order of this Court, which granted joint legal custody of Child to Mother and Father with primary residential placement of Child with Father and the January 25, 2016 Order which increased Mother's visitation with Child. Also before the Court is the Answer and Crossclaim for Custody, filed on June 22, 2017, by Father, by and through his former attorney, Jennifer Ellsworth-Aults, Esquire. In his Crossclaim, Father requested that the parties maintain the current custody and visitation arrangement.
Additionally, before the Court is the Petition-Rule to Show Cause filed by Mother on August 21, 2018, by and through her current attorney, Patrick Boyer, Esquire. In her Petition-Rule to Show Cause, Mother alleged that Father unilaterally moved and changed Child's school without consulting Mother or informing her in advance. Father filed an Answer to Mother's Petition- Rule to Show Cause denying that he had violated the Court's Order because he always kept Mother apprised of his plans to move and transfer Child to a new school.
PROCEDURAL HISTORY
February 13 , 2015 Custody Order On February 13, 2015, after a full hearing on the merits, the Court issued a final Decision and Order on Custody which granted joint legal custody of Child to both parents, primary residential placement with Father, and visitation to Mother every other weekend, in addition to every other week during Child's summer vacation. The Order further directed Mother and Father to engage in co-parent counseling due their demonstrated inability to communicate with one another, to the detriment of Child. Specifically, the Court noted that conflicts between Mother and Father had resulted in issues regarding Child's school enrollment and ability to seek necessary medical attention. The Court further reminded the parents of their rights and obligations, including their right to receive all material information concerning Child, regardless of the custodial or residential arrangement. January 25 , 2016 Order on Petition for Visitation
On January 25, 2016, the Court issued a Decision and Order on a Petition for Visitation Modification filed by Mother as well as several Petitions- Rule to Show Cause filed by Father. The Order reminded Mother and Father that, by having joint legal custody of Child, they were to work together to make decisions regarding on all major aspects of Child's life, including his education and health care. In addition, the Court cautioned the parties that unilateral decision making is not in conformity with this Court's grant of joint legal custody, not even in situations where Mother and Father cannot reach an agreement on a particular decision. The Court went on to reiterate that hindering Child's access to education and health care is not in conformity with 13 Del. C. § 701. Father was also ordered to ensure that Mother receives full and unfettered access to all of Child's school and medical appointment records.
The Court further granted Mother's Petition for Visitation Modification and increased Mother's visitation to every other weekend from Friday evening to Tuesday morning, in addition to a Wednesday overnight visit every week. The Court noted that this particular schedule was ordered so that Child's visitation with Mother would largely coincide with the times Child's step-brother (hereinafter "Step-Brother") was also in Mother's home because the two boys did not have the opportunity to spend as much time with one another under the previous visitation schedule. All pick up and drop offs were to occur at school, but, in the event that an exchange was scheduled to occur when school was not in session, parents were directed to have a third-party party, who was not a stepparent, facilitate the pick-up and drop off. The requirement was imposed on the parents in light of the co-parent counselor, Dr. Samuel Romirowsky's recommendation that parents minimize their interactions with one another while in Child's presence due to high conflict and tension between Mother and Father. As such, the Court permitted this third-party exchange provision to be lifted if the parents can obtain a letter from their co-parent counselor indicating that they can amicably be around one another in the presence of Child.
On May 3, 2016, in response to Motions for Reargument filed by both parents, the Court amended certain portions of the January 26, 2016 Order. Among other changes were the addition of a right of first refusal provision which provided that on non-holidays when Child does not go to school, Child should go to the parent who has the overnight scheduled for that day. If the parent who is scheduled to have the overnight is working that day, the parent who had Child for the previous overnight may keep Child with them. If both parents are working and unable to watch Child during the day, the parent with the scheduled overnight has the responsibility of obtaining child care for that day.
Mother's Petition to Modify Custody
On May 25, 2017, Mother filed the instant Petition to Modify Custody. In her petition, Mother alleged, among other things, that despite being ordered to give Mother full access to Child's education and medical records, Father continues to prohibit Child's daycare and extracurricular programs from releasing Child's records to Mother. Mother also expressed concerns regarding the extent to which Father's Wife (hereinafter "Step-Mother") is involved in parenting and decision making concerning Child. Mother further contended that Father continues to exercise unilateral decision making in Child's life, including refusing to locate a new dentist for Child and unreasonably interfering in Child's participation in extracurricular activities. In light of these numerous concerns, Mother requested that the Court award her sole legal custody and primary residential placement so that Father can no longer prevent Mother from exercising her parental rights and responsibilities as to Child. In addition, Mother also requested an award of counsel fees and court costs.
On June 22, 2017, Father filed an Answer and Crossclaim to Mother's Petition to Modify Custody which stated, among other things, that Father has never prohibited Mother from having access to Child's records and claimed that Mother is listed as a parent for Child's school and doctor's office. Father also denied that Step-Mother is overly involved in parenting and decision making for Child.
With regard to the concerns regarding Child's dental care, Father alleged that Mother is the person who has made it difficult for Child to obtain dental care because she unilaterally chose a dentist in Bensalem, Pennsylvania, which is over 70-90 minutes away from Father's home. Father also alleged that Mother has unilaterally signed Child up for extracurricular activities, which is in direct violation of provisions in previous Court Orders which required the parties to mutually agree upon any extracurricular activities for Child. As such, Father requested that the parties retain joint legal custody but that Mother's visitation with Child be reduced to every other weekend, as it was in the parties' initial February 2015 Custody Order, as this arrangement would be in Child's best interest. On July 24, 2017, Mother filed a brief Answer to Father's Answer and Counterclaim which merely denied that Father's request regarding custody and visitation would be in Child's best interests.
Mother's Petition- Rule to Show Cause
On August 21, 2018, Mother, through her current attorney, Patrick Boyer, Esquire, filed the instant Petition- Rule to Show Cause and Motion for Emergency Ex Parte Order alleging that Father is in Contempt of Court for unilaterally changing Child's school without discussing the matter with Mother beforehand and obtaining her approval. In addition, Mother also claimed that Father has violated previous Orders issued by this Court by incorrectly listing her contact information, including her last name, date of birth, address, and e-mail, thus preventing her from receiving information from Child's school.
On September 10, 2018, Father filed an Answer to Mother's Petition- Rule to Show Cause claiming that Mother was made aware of Father's potential move much earlier than she contends and, furthermore, suggested that Child would not have been able to remain in his previous school anyway, as both Mother and Father had moved outside of that school district in summer 2018. Father further claimed that he and Mother had, in fact, discussed Child transferring schools both amongst each other and through their respective attorneys. Father, therefore, requested that Mother's Petition be denied as Mother was always aware of Father's desire to change Child's school and never expressed any objections or concerns regarding this plan. Father too requested an award of counsel fees and court costs associated with the filing of his answer.
The parties stipulated to consolidate Mother's Petition-Rule to Show Cause with the already pending Cross-Petitions for Custody and the Court, therefore, held a consolidated hearing on November 21, 2018. Present for the hearing were Mother and her attorney, Patrick Boyer, Esquire, as well as Father and his attorney, Michelle Skoranski, Esquire. In addition to herself, Mother also called Dr. Samuel Romirowsky and her husband, Andrew Krezel, as witnesses. Father only called himself as a witness.
With regard to her Petition for Custody Modification, Mother indicated that she was now willing to continue sharing joint legal custody with Father but requested that she be granted final decision-making authority in the event that she and Father are unable to reach a mutually agreed upon decision concerning Child. In addition, Mother requested primary residency with Father having five overnight visits every fourteen days, which includes every Tuesday overnight and every other weekend from Friday evening until Monday morning. With regard to her Petition-Rule to Show Cause, Mother requested that Father be found in contempt, that she be granted the ability to make all decisions regarding Child's school in the future, and that Father be ordered to do all or most of the transportation for Child to and from school as a sanction, in light of how much farther away Child's new school is from Mother's home. Mother further requested attorney's fees and court costs associated with the filing of her Petition-Rule to Show Cause.
With regard to his Crossclaim for Custody Modification, Father requested that the parties retain the current custody arrangement which grants joint legal custody to both parents and primary residential placement of Child with Father. Father also requested that the Court maintain the same visitation schedule for Mother as was set forth in the January 25, 2016 Court Order. With regard to the Petition-Rule to Show Cause, Father requested that Child remain at his current school, C---- L--- E---------, and that he be awarded attorney's fees and costs. Father further suggested that the Court consider the possibility of requiring parties to engage with a parent coordinator, so that the coordinator can make any final decisions for the parties when they are not able to reach an agreement themselves.
The Court will discuss the Crossclaims for Modification of Custody and the Petition-Rule to Show Cause separately, but acknowledges that there is significant overlap in both factual allegations and testimony and, the Court will, therefore, make reference to any relevant evidence discussed elsewhere in this decision.
MODIFICATION OF CUSTODY
For the sake of judicial economy, the Court will not repeat in detail all of the testimony that can be obtained from the record as to custody modification, but will instead note only the salient testimony as it pertains to the required statutory analysis. In making a determination whether to modify a custody Order previously entered by this Court more than two years ago after a full hearing on the merits, the Court must first consider:
(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.
Likelihood of Harm to Child by Modification and any Advantages
Under the current Orders, Mother and Father share joint legal custody with primary residential placement of Child granted to Father. Both parents are requesting that they continue to share joint legal custody, as previously ordered by this Court on February 13, 2015. However, in addition to joint legal custody, Mother has requested that she be granted final decision-making authority so that she would be able to make final decisions for Child in the event that she and Father are unable to mutually reach an agreement.
Pursuant to the previous Orders regarding residential placement and visitation, the current arrangement grants primary residential placement with Father and visitation with Mother every other weekend from Friday evening to Tuesday morning and every Wednesday overnight. With regard to the instant requests for modification, Father has requested that the residential schedule remain as is. Mother is requesting that she be granted primary residential placement and that Father have visitation every Tuesday overnight and every other weekend from Friday evening to Monday morning. Mother indicated that she would like this schedule, in large part, because it coincides with the visitation schedule that Step-Brother has with Mother's husband (hereinafter "Step-Father") and his ex-wife. Because Child and Step-Brother have such a close bond, Mother requested that Child's visitation schedule overlap with Step-Brother's so that the two boys can be together in her home as much as possible, which is the primary advantage to modifying the current visitation schedule.
Compliance of Each Parent with Prior Orders and § 727 Duties and Responsibilities
The Court finds that neither parent has fully complied with either prior Court Orders or their duties and responsibilities under 13 Del. Code § 727 .
13 Del. Code. § 727 provides in relevant part:
(a) Whether the parents have joint legal custody or 1 parent has sole legal custody of a child, each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life, and school activities and conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The Court shall not restrict the rights of a child or a parent under this subsection unless it finds, after a hearing, that the exercise of such rights would endanger a child's physical health or significantly impair his or her emotional development.
Due to concerns noted by the Court regarding Mother and Father's inability to communicate and co-parent with one another, the Court initially ordered the parents to engage in co-parenting counseling in the February 13, 2015 Custody Order. Following a hearing on Mother's Petition to Modify Visitation, on January 25, 2016, the parents were, again, ordered to continue engaging in co-parenting counseling after the co-parent counselor, Dr. Samuel Romirowsky, testified that the parents had made only slight progress in co-parenting counseling and could benefit from additional sessions. The parties were further directed that "neither party may cancel or fail to attend more than one co-parenting session consecutively without good cause."
Mother called the parties' co-parent counselor, Dr. Samuel Romirowsky, to testify about the co-parenting counseling sessions which occurred between December 2015 and April 2016. Dr. Romirowsky described the parties' interactions with one another as frustrated, annoyed, and angry which resulted in ineffective communication. He further testified that there was a high likelihood of disagreement between Mother and Father on any topic that was raised during co-parenting counseling sessions. Specifically, Mother and Father disagreed on Child's school, extracurricular activities, primary care physician, dentist, allergist, passport, and visitation schedule with Mother. Dr. Romirowsky explained that some of these disagreements were "good faith" disagreements wherein the parties simply could not reach an amicable resolution due to their genuine differences in opinion. On the other hand, Dr. Romirowsky also noted that there were several disagreements between Mother and Father which appeared to be motivated by feelings of spite and passive aggression. During these disagreements, a parent, oftentimes Father, would take a position on an issue simply to "thwart" the other parent. One example of this latter type of disagreement was the issue of Child's school enrollment in 2015. Although Mother and Father were actively involved in ongoing discussions and arguments as to where Child would be enrolled in school, Father unilaterally enrolled Child at the school of his own choosing without informing Mother in advance that he intended to do so then, having changed the child's school, failed to promptly so advise her. Similarly, Mother and Father also disagreed on whether or not Child should be immunized. Rather than reaching an amicable resolution on the issue, Father allowed Step-Mother to take Child to the doctor to receive his immunizations without informing Mother or obtaining her consent. Dr. Romirowsky further testified that Father was generally the parent who engaged in this type of unilateral "spiteful" decision-making.
Dr. Romirowsky testified that in the eleven months he spent working with both parents, they only made slight progress in a small number of issues. For example, the parents ultimately reached an agreement regarding Child's participation in baseball near Mother's home and were further able to work together to ensure that Child had his passport in advance of vacation to Jamaica with Father. Dr. Romirowsky further observed, however, that even these "small triumphs" had turned to disagreements which led Dr. Romirowsky to question whether future sessions would benefit the parents at all. Father asked Dr. Romirowsky to continue scheduling sessions in order to see if the parents could benefit from these additional sessions and so these sessions continued.
In the months following Father's request to continue sessions, Father insisted that Child's step-parents be allowed to participate in co-parenting counseling as well. Dr. Romirowsky reluctantly agreed to allow the step-parents to participate as he was concerned that Father would have been unwilling to continue engaging in co-parenting counseling if Dr. Romirowsky did not not permit the parent's spouses to also participate in these sessions. Dr. Romirowsky stated that after Step-Mother began participating in co-parenting counseling with Mother and Father, the sessions became even less productive than they had previously been as there was greater tension between Mother and Step-Mother than there was between Mother and Father. In April 2016, Step-Mother became particularly angry during a session and stormed out, vowing not to return to co-parenting counseling. Shortly thereafter, Father informed Dr. Romirowsky's office that he would no longer participate in co-parenting counseling sessions. Due to Father's refusal to attend further counseling, Dr. Romirowsky was ultimately forced to cancel all future sessions.
In the January 25, 2016 Order, this Court specifically informed the parties, and particularly Father, of their rights and responsibilities as set forth in 13 Del. Code § 727. In light of Mother's previous testimony that Father made unilateral decisions regarding Child's health and education, the Court cautioned the parties that unilateral decision making, hindering Child's access to education and health care, and hindering the other parents' access to Child's records, are not actions that are in conformity with the Court's Order granting joint legal custody. The Court then ordered the parties to comply with their rights and responsibilities under 13 Del. Code § 727 and directed Father to ensure that Mother has full and unfettered access to Child's records.
Mother testified that Father continues to take steps that preclude Mother from having full and unfettered access to Child's records. In August 2018, Father transferred Child from his previous school, E--- W----- E---------, to a new school, C---- L--- E---------. Mother testified that, not only was she not consulted regarding this decision, but Father also listed Mother's personal and contact information incorrectly on Child's registration forms, thus precluding her from receiving updates and information about Child's education. While Mother acknowledged that Father later apologized and corrected the mistakes, Mother reported that the errors, nevertheless, prevented Mother from receiving information from Child's school.
In addition, Mother testified that Father took steps to ensure that Mother was not able to receive information from Child's afterschool care program at The Goddard School and summer camp program at the YMCA. In January 2017, Mother requested a copy of Child's attendance record from his after school program at The Goddard School. A staff member at the school responded to Mother and informed her that, per Father's instruction, all requests regarding Child would either need to come from Father or through "legal channels" and, as a result, the school was unable to give Mother any information regarding Child. In July 2017, Mother also reached out to the YMCA where Child was participating in a summer camp program. Mother was informed that the YMCA was unable to provide her any information about Child because she was not listed as a parent or guardian in their paperwork. Despite Mother providing the Court with proof of these e-mails, Father still denied that he had failed to list Mother as a parent or guardian in any registration paperwork
Both Mother and Father alleged that the other parent has acted in ways which have hindered Child's access to medical and health care. One particular area of concern, which was discussed at great length by both parties, was Child's lack of access to routine dental care. As early as 2015, Mother and Father disagreed on which dentist Child should see. Since Child was three years old, Child has been seen by the same dentist in Bensalem, Pennsylvania, where Mother previously resided. However, when Mother moved to Delaware in 2015, the parties agreed that it would make sense to find a Delaware dentist for Child. Since 2015, the parties have not been able to reach an agreement on Child's new dentist. Over the past three years, Mother has proposed at least three potential dentists in Delaware. Father has not agreed to Child seeing any of these dentists, due to the fact that the dentists proposed by Mother usually did not accept his insurance or have operating hours conducive to Father's work schedule. In response, Father has repeatedly suggested that Child go to Gentle Touch Smiles. Mother did not want Child to be seen at Gentle Touch Smiles due to the fact that Father's other child also sees that dentist and Mother was concerned about Step-Mother having access and involvement in Child's dental care if he were seen by the same dentist.
As a result of the parents not reaching an agreement on Child's new dentist, Child has not received routine dental care and cleanings for over three years. Although Child has not had scheduled appointments, Mother has still allowed Child to be seen by a dentist when she or other family members were at the dentist's office for appointments of their own. For example, Mother asked Child's former dentist to perform a check-up on Child in October 2016 and December 2017, while Mother was at the dentist's office for herself and her other son. The dentist found cavities during both of these appointments and recommended that Child receive regular treatments to prevent these cavities from getting any worse. This was not done. In addition, Child's dentist also made a referral for Child to see an orthodontist which Mother followed up with by scheduling several appointments for Child to have an orthodontic consultation without informing Father. Father expressed his frustration that Mother has unilaterally taken Child to his previous dentist, as well as to a new orthodontist, without his permission or approval and has repeatedly suggested that Child to be seen at Gentle Touch Smiles going forward.
Mother testified that Father continues to make unilateral decisions regarding Child's education without her knowledge or input, a claim which is also the basis for her Petition-Rule to Show Cause. During the summer of 2018, both Mother and Father moved to new school districts. In July 2018, Mother sent an e-mail to Father informing him of her upcoming move and asked to discuss the possibility of Child transferring to a better elementary school in her new school district. Although Father told Mother he would discuss this possibility once he retained a new attorney, Father never responded to Mother's request. Instead on July 31, 2018, Father, through his attorney, informed Mother's former attorney that Father was also moving to a new school district and wanted to transfer N----- to the local school, C---- L--- E---------. On August 6, 2018, Father enrolled Child in this new school without consulting Mother or obtaining her approval. Mother did not even learn of Child's enrollment in a new school until a few days later when she received a text message from Child's new school district.
Father also claimed that Mother makes decisions which hinder Child's access to education and medical care. Father testified that Mother unnecessarily kept Child home from school in May 2017. While Mother claimed that Child was still recovering from a recent ear infection, Father expressed skepticism of Mother's true intentions as believed that Child was been running around Mother's home the day prior. Father also claimed that Mother again unnecessarily kept Child home from school a few days after Child underwent surgery to have tubes put in his ears in February 2018. While Father acknowledged that Child had been suffering from serious illnesses both of these times, he still maintained that it was unnecessary for Mother to keep Child home from school because Child should have been fully recovered by that time. Father also noted that it unusual for Mother to keep Child home from school so often because when Child has been in Father's care, Child has never been so ill as to cause Father to keep Child out of school. Father also had concerns regarding Child's attendance at school within the first month of this current school year. On September 19, 2018, Mother took Child out of school a few hours early because she had a meeting near Child's school that afternoon. Mother did not think she would have had enough time to drive back to her neighborhood to get her younger son and return to the area around Child's school by the end of the day so she decided to take Child out of school a few hours early instead. In addition, Child also missed another day of school in September in order to go on a family trip to New Jersey with Mother, which Father also found to be problematic.
Father also indicated that Mother has not always complied with the Court ordered visitation schedule. Specifically, Father suggested that Mother was did not comply with the visitation schedule in July 2016 because she failed to transport Child to Father's home or make arrangements for a third-party to do so. Mother testified that she was unable to transport Child at that time because she was in the hospital giving birth to her younger son, which she explained to Father in a text message well in advance of the scheduled exchange time. Father, nevertheless demanded that Mother make alternative arrangements to ensure Child was dropped off in time. Father continued to justify this response during the hearing by stating that he expected Mother to plan accordingly and her failure to ensure Child was timely exchanged demonstrated her lack of consideration for the time Father is supposed to spend with his son.
Father also testified that Mother has regularly made it difficult for Child to have access to necessary medical care. In support of this claim, Father described how Mother unnecessarily delayed Child receiving x-rays and surgery to have tubes put in his ears. Although Mother did not ultimately inhibit Child receiving this necessary medical attention, Father noted that Mother often seeks out multiple professional opinions and claimed that Mother only did this to make things more difficult for Father.
Considering the above evidence, the Court has serious concerns as to both Mother and Father's compliance with previous Orders and their rights and responsibilities under 13 Del. Code § 727. Father unilaterally discontinued the Court Ordered co-parenting counseling after his wife, who was not required to participate in this counseling, indicated she was no longer willing to attend the sessions. While the Court is aware that the co-parenting counseling was frustrating and largely unsuccessful for both parties, in no small part due to the animosity and tension between Mother and Father, the Court also finds that Father was responsible for many of these disagreements by taking positions which appeared to have been made largely out of spite rather than a consideration of Child's best interest. The Court further finds that Father has disregarded the provisions in previous Court Orders directing Father to give Mother full and unfettered access to Child's records. While it appears that the inaccuracies in Mother's contact information on Child's school registration paperwork may have been the result of genuine mistakes on Father's behalf, it is highly unlikely that Mother was not listed as a parent and guardian for both The Goddard School and the YMCA by pure mistake on Father's part. Furthermore, despite the Court prohibiting parents from making unilateral decisions regarding Child's education, Father still took it upon himself to transfer Child to a new school without first obtaining Mother's approval to do so.
Although Father presented several concerns about Mother keeping Child home from school unnecessarily and delaying Child's access to medical care, the Court does not find that these actions rise to the level of noncompliance by Mother. The Court also does not find that Mother violated the visitation provisions by being late to drop Child off while she was in the hospital giving birth to her son. Instead, the Court finds that Father's response, and continued justification of his response, to be completely unreasonable and contrary to the spirit of joint legal custody.
However, the Court is most concerned by the actions of both parents with regard to Child's dental care. There is no excuse for the parents allowing Child to go over two years with a cavity simply because the parents cannot reach an agreement on a new dental provider. Both Mother and Father have allowed their own hostility towards one another to take priority over Child receiving basic and necessary medical care, which is completely antithetical to the parents' rights and responsibilities under 13 Del. Code § 727.
Best Interest Factors
(1) The wishes of the child's parent or parents as to the child's custody and residential arrangements;
Both Mother and Father expressed a desire to continue sharing joint legal custody of Child. Mother, however, also expressed that she would like to be granted final decision making authority so that she can make decisions regarding Child in the event that she and Father cannot reach an agreement. Father, on the other hand, requested that the parties work with a parent coordinator who would act as an arbitrator between Mother and Father and make any final decisions regarding Child when Mother and Father cannot reach an agreement.
Mother requested that she be granted primary residential placement of Child with Father having visitation every Tuesday overnight and every other weekend beginning after school Friday until Monday morning. Mother testified that she believes this visitation schedule would be in Child's best interest because it would enable Child to maximize the amount of time that he spends with Step-Brother who has a 50/50 shared residential placement schedule with his mother and Mother's husband. Step-Brother's schedule allows him to be at Mother's home every Wednesday after school until Friday morning and every other weekend from Friday after school to Monday morning. Mother testified that Child and Step-Brother have an extremely close bond and Mother's proposed schedule would coincide with Step-Brother's schedule, with the exception of Monday overnights when Child would have an extra night in Mother's home without Step-Brother. Father expressed his desire to maintain the current visitation schedule as set forth in the January 25, 2016 Order which grants Father primary residential placement and Mother visitation with Child every Wednesday overnight and every other weekend from Friday after school to Tuesday morning. Father has had primary residential placement of Child since February 13, 2015 and merely indicated that he would like to maintain the consistency of this schedule.
Mother and Father also expressed a desire for several smaller modifications to their current visitation and holiday schedule. Both Mother and Father requested that exchanges occur at Child's school or, on days when the school is closed, at the Bear Delaware Troop 2 Station. Father also asked that the Court remove the provisions in the previous order which required a third-party, who is not a step-parent, to pick up and drop off Child during exchanges which were not at school. Mother stated that she would like to maintain this third-party exchange provision for all pick ups and drop offs which do not occur at Child's school in light of a history of inappropriate and concerning behaviors of Step-Mother. Specifically, Mother testified about a particularly concerning incident involving Step-Mother which occurred on May 16, 2017. Mother had visitation with Child the previous day and was supposed to drop Child off at school so that Father could pick him up and begin his overnight visitation with Child after school. However, Child was sick with an ear-infection and Mother decided to keep Child home from school as a result. Pursuant to the Order issued by this Court on May 3, 2016, if Child does not attend school, Child should go with the parent who is scheduled to exercise the overnight visitation that day. If that parent is unable to take Child at that time, the other parent should have the opportunity to keep Child until the time that school would ordinarily conclude. If neither parent is able to have Child, then the parent who is scheduled to have the overnight visit that day shall make alternative arrangements for child care.
On this particular day, Mother informed Father that Child was sick but Father indicated that he was at work and would not be able to pick Child up until later in the day. Mother told Father that she planned to stay home from work that day and would, therefore, be able to stay with Child until Father could come to get Child after he left work. Rather than allow Mother to do this, Step-Mother came to Mother's home and demanded that Mother allow Child to go with her. Mother refused because she believed that, under the Court Order, she had the right to keep Child that day since Father was unable to and Step-Mother was not permitted to pick Child up under the third-party exchange provisions. In response, Step-Mother called the police to Mother's home and demanded that they allow Child to return home with her. During the hearing, Mother played a video recording of this entire altercation as captured by the police officer's body cam. Step-Mother appeared very frustrated during the video and became angry and loud with the police officer when he informed her that he was not able to force Child to go with her as the Court Order he was provided did not support Step-Mother's position. Step-Mother further criticized the police officer for not doing his job and threatened to report him. In addition, Step- Mother loudly claimed that Mother was "digging herself a grave" by acting this way and that she would see the consequences of her actions when the parties went back to Court. Step-Mother's behavior, in the Court's opinion, was abusive towards the police officer, hostile towards Mother, and totally uncalled for under the circumstances. Mother testified that the hostile behavior of Step-Mother in the video is typical of her interactions with Step-Mother which is why she believes it is best to maintain the provisions which prohibit a step-parent from being a third-party who is able to exchange Child. By comparison, Father did not appear to find anything wrong with Step-Mother's behavior in the video and, instead, requested that the Court remove this right of first refusal provision, due to the confusion he claimed it caused on this particular day.
Notwithstanding her desire to retain the third-party provision as written, Mother did request that both parents and step-parents be allowed to attend any and all school, extracurricular, and sporting events for Child, provided that they maintain a respectful distance and minimize interaction as much as possible. While Mother expressed her frustration about past interactions with both Father and Step-Mother, she ultimately believes it is more important that neither parent be forced to miss events for Child simply because Parents cannot get along. Father also agreed with this request and reiterated Mother's request that the parties keep distance between them during any events.
With regard to holidays, Mother requested that the Court modify the current holiday schedule to allow Child to spend all summer holidays with whichever parent they are scheduled to be with during the week of the holiday. Father agreed that he would also like this change. In addition, Mother also expressed a desire to change the Halloween holiday visit to be an overnight holiday visit which Mother and Father alternate each year, rather than the current arrangement which allows one parent to spend Halloween with Child from 5:00 P.M. to 8:00 P.M. Father agreed that he would like this change as well. Mother also requested that the Court alter the provisions concerning Child's winter break. The current Order allows one parent to have Child from the beginning of Christmas break until noon on Christmas day. Instead, Mother would prefer that the winter break be split evenly with each parent, much like the current visitation provisions for Child's spring break. Finally, Mother explained that Easter, particularly Easter afternoons, especially important for her family. Mother, therefore, requested that she be permitted to have every Easter afternoon with Child (while continuing to alternate Easter morning with Father every other year) and, in exchange, would allow Father to spend every Thanksgiving with Child. Father was not in support of Mother's wishes regarding either winter break or Easter but did not provide an explanation for his opposition.
Because both Mother and Father agree to share joint legal custody, the Court will not modify this aspect of the current custody Order. In addition, Mother and Father also agree on modifications to the pick up and exchange locations, summer holidays, and Halloween. However, the parents disagree on whether Mother should be granted final decision making authority and which parent should be granted primary residential placement of Child. While Mother provided detailed explanations and rationale for each of her requests, Father merely reiterated the current Court Order and expressed his desire to maintain the "status quo" without further elaboration. The Court finds that Mother best supported her wishes with reasonable explanations and justifications and, therefore, this factor weighs in favor of modifying the existing custody Order to reflect Mother's concerns and wishes.
(2) The wishes of the child as to his custody and residential arrangements;
The Court did not interview Child. The parties acknowledged that Child has a good relationship with both parents and Mother testified that Child has requested that his time with both parents be fair and equal. Therefore, this factor is inapplicable to the Court's analysis. (3) The interaction and interrelationship of the child with his parents , grandparents , siblings , person cohabiting in the relationship of husband and wife with a parent , any other residents of the household or a person who may significantly affect the child's best interest;
The Court has previously found in the February 13, 2015 Custody Order that Child has a loving and good relationship with both parents. Neither party presented any evidence that would lead the Court to conclude otherwise at this time. Father testified that he has a good relationship with Child. In addition, Child also gets along very well with Step-Mother who often helps Child with his schoolwork. Father also testified that Child has aa very loving relationship with his four-year old half sister. In addition, Step-Mother is currently expecting another Child and expects Child will also have a good relationship with his new younger sibling as well.
Mother also testified that she has a close relationship with Child. Step-Father has also developed a strong bond with Child, who he has known since he was three years old, and spends time with Child by coaching his baseball team and playing around the house. Since the previous hearings in this case, Mother has had another Child and Mother testified that Child is very doting and patient with his two-year old half-brother. Mother testified that the most important and strongest relationship in Child's life is his relationship with Step-Brother. Mother described the boys as best friends and stated that the two boys share a bedroom by choice and play baseball together. Mother described Step-Brother as more "feminine" but indicated that Child goes above and beyond to maintain a good relationship with Step-Brother. For example, Child recently used his own money to buy an American Girl doll, one of Step-Brother's favorite toys, just so that he would be able to play with Step-Brother. Mother indicated that this relationship is the primary reason why she is requesting primary residential placement and an adjustment to the schedule so that Child will be able to maximize the amount of time he spends with Step-Brother while in Mother's home.
Due to the testimony regarding Child's strong relationship with Step-Brother, the Court finds that this factor weighs in favor of modifying the current custody Order to maximize the amount of time that Child is able to spend with Step-Brother. (4) The child's adjustment to his home , school and community;
The Court has previously found that Child is well adjusted to both parents' homes. Although Mother and Father previously resided in the same community, during the summer of 2018, both Mother and Father moved to new neighborhoods and now live farther apart from one another as a result. Neither parent indicated that Child has had any difficulty adjusting to his new homes and the family composition in each of these respective homes has remained largely the same. Furthermore, although both parents have moved, Child is still able to participate in his favorite extracurricular activities in the community, including baseball, flag football, and swimming.
Mother and Father both testified that Child has had difficulty adjusting to his new school. With regard to Child's change in school, Mother testified that Child was a model student in his previous school and regularly earned good grades and awards. Mother believes that Child has not transitioned well to his new school in Father's neighborhood. Specifically, Mother has noticed a serious change in Child's enthusiasm towards school and presented copies of Child's most recent grades which demonstrated a decline in his grades, particularly in reading and writing. Mother was also concerned that Child has only made one friend at his new school even though he was extremely popular at his previous school. Because of how close Child's previous school was to Mother's home, Mother was able to be actively involved in Child's education, and even served on the board of his Parent Teacher Association. Now, because Child's school is over thirty minutes away, it is difficult for her to maintain the same level of involvement in Child's education which Mother worries may have an adverse effect on Child's performance going forward. As such, Mother believes it would be in Child's best interest to attend her new neighborhood school instead so that she could continue to be actively involved in his academic progress.
Father similarly noted that Child struggled with the transition to his new school and agreed that there was a decline in Child's academic performance but testified that Child has recently improved his grades substantially. Ultimately, Father believes that Child will continue to make progress and improvements in his new school because he is an adaptable child and also has a best friend at school to help him navigate his new social environment.
Because Child appears to be well-adjusted to both of his new homes, this factor is neutral to the Court's analysis.
(5) The mental and physical health of all individuals involved;
The Court previously found that none of the individuals involved had health issues which impacted Child's best interest with regard to care. Neither party presented any evidence to lead the Court to conclude otherwise at this time. While the parents testified regarding certain situations involving Child's health in the past, the testimony did not indicate that Child is currently suffering from any health issues or concerns which would have a bearing on this Court's decision on custody modification. Therefore, this factor remains neutral to the Court's analysis.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under Section 701 of this title;
The Court has discussed the parties' compliance with both their rights and responsibilities under § 701 above and will not repeat these considerations here. As noted above, the Court is very concerned about both parents' compliance with their rights and responsibilities under § 701. Both parents have allowed their own feelings of animosity towards one another to interfere with their responsibility to co-parent Child and ensure he is provided with necessary medical care, which includes taking Child to a dentist for regular check-ups and to have a two-year old cavity filled. However, there is considerably more evidence demonstrating Father's failure to comply with his rights and responsibilities as a parent with joint legal custody. Specifically, despite being explicitly ordered to ensure that Mother has full and unfettered access to Child's records, Mother was still prohibited from accessing Child's records and information at two separate daycare programs and provided documentary evidence of e-mails to corroborate this claim. In addition, Father unilaterally decided to transfer Child to a new school without first consulting and discussing the matter with Mother. Furthermore, the Court has observed that Father often lets his own wishes and feelings take precedence over Child's best interest, which was corroborated by Dr. Romirowsky's testimony that Father often made decisions simply to spite or thwart Mother.
Therefore, while the Court remains alarmed by both parents' inability to effectively comply with their responsibilities as co-parents with joint legal custody, the Court has greater concerns with regard to Father, which weighs in favor of increasing the amount of time Mother spends with Child.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Pursuant to 13 Del. C. § 706A(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 visitation arrangements for the child in accordance with the best interests of Children. Domestic violence is defined by 13 Del. C. § 703A(a), as including, but not limited to, physical or sexual abuse or threats of physical or sexual abuse and any other offense against the person.
Father filed a Petition for Order of Protection of Abuse against Mother in 2015 but filed a Motion to Rescind Order of Protection from Abuse a few weeks later. The Court then entered an Order of Dismissal shortly thereafter. Both Mother and Father testified that their spouses do not have any history of domestic violence. Therefore, this factor is inapplicable to the Court's analysis. (8) The criminal history of any party or other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Father's Delaware criminal history is limited to motor vehicle offenses and a DUI in October 2017. Mother had a DUI charge in 2012 which has since been expunged. Both Mother and Father testified that their spouses do not have any criminal history. As the Court does not find that any individual in this case has any criminal history of import, this factor is inapplicable to the Court's analysis.
Petition- Rule to Show Cause
The purpose of a Petition- Rule to Show Cause seeking to hold someone in civil Contempt of Court is to enforce compliance with the court's order. The standard for a Petition RTSC is well-established in this Court. "In order to find someone in civil contempt of the Court's Order the Court must first find by clear and convincing evidence that a violation of its Order has taken place." Specifically, the Court must find that 1) a valid mandate, judgment or order exists; 2) the alleged violator had the ability to abide by the valid mandate, judgment or order; and 3) the alleged violator disobeyed the valid mandate, judgment or order. The failure to obey the Court's Order must not be a mere technicality but must be done in a "meaningful way." Because the purpose of levying a civil contempt fine is to coerce compliance with a Court Order, subsequent compliance with the Order may purge the finding of civil contempt.
J.T.D. v. B.N.D, No. CN07-04006, 2010 WL 2708610, at *4 (Del. Fam. Ct. May 5, 2010) (citing Feliciano v. Colon, 697 F. Supp. 26, 34 (D.P.R. 1987).
See Watson v. Givens, 758 A.2d 510, 512 (Del. Fam. Ct. 1999).
J.T.D. v. B.N.D., 2010 WL 2708610 at *4.
DiSabatino v. Salicete, 671 A.2d 1344, 1350 (Del. 1996) (citing Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829 (1994)). --------
Child was previously choiced into E--- J. W----- E--------- School in the Christina School District, where both parents resided at the time. On July 19, 2018, Mother moved into a new home in the Red Clay School district, approximately four miles North of her previous home. In August 2018, Father also moved to a new home in the Appoquinimink School District, approximately twenty miles South of his previous home.
Prior to Mother's move, on June 29, 2018, Mother e-mailed Father informing him of the date of her upcoming move and requesting that they discuss the possibility of Child transferring to a school in her new district. Father responded to Mother's e-mail on July 11, 2018 and informed her that once he retained a new attorney he would consult with them and be in contact with Mother at that time. On July 31, 2018, Father's attorney sent an e-mail to Mother's former attorney informing her of Father's upcoming move and stating that because Father has primary residential placement, Child would have to be transferred to C---- L--- E--------- School, the feeder school in Father's new district. However, due to an oversight by Mother's attorney, this e-mail was not forwarded to Mother until approximately two weeks later, along with a copy of Child's registration paperwork at C---- L--- E---------.
Mother testified that she did not learn of Child's enrollment in C---- L--- E--------- until she received a message from the Appoquinimink School District around August 8, 2018. Mother contends that Father never discussed with her the possibility of Child transferring schools nor did she agree to the change. Father claims that he first alerted Mother to his move and his desire to transfer Child's school during a teleconference in this matter in February 2018. Father further testified that his attorney also spoke with Mother's attorney about the issue in-person and Mother never expressed any objections or concerns with Father transferring Child's school until she filed the instant Petition-Rule to Show Cause. Father did concede, however, that he never spoke to Mother directly about transferring Child to Cedar Lane until after Child had already been enrolled in the new school.
Mother has further expressed that she has difficulty providing transportation for Child to and from Cedar Lane as a result of Father's decision to transfer schools. Mother's new home is approximately forty minutes away from Child's new school and, although Mother has some flexibility in her work schedule, she is also responsible for dropping her younger son off at preschool on a daily basis. Mother further explained that Step-Father would not be able to assist with transporting Child to and from school as he works in Pennsylvania and has to be at work several hours before Child's school day starts and has obligations of his own to provide transportation for Step-Brother on certain days. Father testified that he has some flexibility with his work schedule and Step-Mother oftentimes works from home. Notwithstanding this flexibility in Father and Step-Mother's work schedules, Father does not believe that Child could attend another school, including his previous school or N----- S--- E--------- school, the school in Mother's neighborhood, without having to attend some form of before or after school care on the days Father is responsible for providing transportation. The parties further suggested that it may not be possible for Child to even return to his previous school since both parents have moved out of the school district and may not be able to "choice" Child back into the school as a result.
By way of relief for her Petition-Rule to Show Cause, Mother has requested that Father be found in contempt, that she be awarded attorney's fees and costs associated with the filing of this petition, that she have the ability to make decisions regarding Child's school going forward and that Father bear most, if not all, of the responsibilities for transporting Child to and from school. Father also requested that the Court award him attorneys' fees and costs associated with answering this Petition because he does not believe he has violated any Order of the Court.
The Court finds that a valid mandate, judgment and order exists. The parties were first granted joint legal custody on February 13, 2015. Pursuant to the Court's Order of January 25, 2016, the parties were expressly cautioned that "unilateral decision making is not in conformity with this Court's grant of joint custody." The parties were further directed to comply with both the Court Order and 13 Del. C. § 701 and 13 Del. C. § 727(a). Thus, the Court finds that a valid Order exists which required the parents to comply with the rights and responsibilities inherent in joint legal custody, which includes working together to make major life decisions for Child, including where he will receive his education. The Court further finds that Father had the ability to abide by this Order. While the Court observes how difficult it is for both parents to reach agreements with one another, Father nevertheless had the responsibility to discuss and consult Mother about his plans to transfer Child to a new school. If the parties could not reach an agreement on this issue, Father should not have changed Child's school in the first place as Child most likely could have remained at E--- W----- E--------- because the parties both agreed that Child was "choiced" into that school to begin with. While Father suggests that he has satisfied his obligations under the Court's Order and statute by informing Mother of his plan to transfer Child to a new school, this is not enough. Both parents would have needed to discuss the issue and reach an agreement on whether or not to transfer Child to a new school together before Father would have been permitted to make this change. Father, by his own admission, did not even speak with Mother directly about transferring Child to C---- L--- E--------- until after he had already filled out the registration paperwork. While Father claims it is not his fault that Mother did not get this information sooner, the Court finds that this point is irrelevant because joint custody requires more than merely informing the other parent of a plan to make a major decision for Child and then unilaterally making that decision just a few days later. As such, the Court finds that Father had the ability to abide by this Court's Order and failed to do so.
CONCLUSION
With regard to the likelihood of harm that may arise by the Court modifying the current custody Order, the Court finds that it would be harmful if the Court were to grant Mother's request to have final decision making authority. Both Mother and Father have an extensive history of disagreements which has spanned several years. Despite participating in co-parenting counseling for a period of time, Mother and Father continue to demonstrate that they are unable to amicably reach agreements regarding Child's care, as evidenced by their disputes regarding school enrollment, medical care, and dental care. Granting Mother final decision making authority would be tantamount to granting her sole legal custody as it seems almost certain that Mother and Father will continue to disagree on decisions going forward, which would then allow Mother to make the final decision anyway. That said, the overarching issue in this case is that Mother and Father are not able to reach decisions to the detriment of their child. However, granting one parent final decision-making authority would in no way alleviate this concern as it would essentially give one parent the ability to make unilateral decisions, which is not appropriate in this case.
However, with regard to modifying the residential arrangements for Child, the Court finds that the benefits of increasing Child's time with Mother outweigh any potential detriment. Although Father did not suggest any specific ways in which Child would be harmed by changing the residential placement schedule, Father merely reiterated that the current schedule has become a consistent routine for Child. However, the Court is persuaded by the testimony of Mother regarding Child's relationship with Step-Brother. Because modifying the current residential placement schedule would maximize the time Child spends with Step-Brother, thus fostering this important relationship for Child, the Court views this as a dispositive advantage to granting Child additional time in Mother's home. The Court also notes that, while Mother cites Child's relationship with Step-Brother as her primary motivation for changing the current visitations schedule, Mother has ultimately requested a schedule that does not perfectly coincide with Step-Brother's time in Mother's home and, instead, grants Child more time in Mother's home than in Father's. The Court does not find that there is any advantage to Mother having more time with Child than Father, as the evidence suggested that Child has a good bond and relationship with both parents which would be benefitted by maximizing the amount of time Child is able to spend with both parents. The Court also finds that it is in Child's best interest to modify the current custody arrangement in a way that maximizes Child's time with each parent for the reasons stated above.
However, the Court cannot overstate how concerning both Mother and Father's behaviors and interactions with one another are. Child has had to live with a decaying tooth for over two years simply because Mother and Father could work together to reach an agreement on finding a new dental provider for Child. This is unacceptable and not at all in conformity with the Court's grant of joint legal custody. The parties will need to find a new dentist for Child immediately. Each parent must begin putting Child's needs ahead of their own for all decisions going forward because the Court will not tolerate unilateral decision making by either parent. While the Court understands the co-parenting counseling has failed, this is largely due to the fact that Mother and Father simply cannot reach agreements together no matter what supports are in place. That said, the Court does agree with Father that the parties could benefit from working with a parent coordinator who would be able to act as a neutral third-party and make a final and binding decision for the parents when they are unable to reach an agreement. Perhaps when faced with the financial reality of paying someone every time they are unable to reach agreement regarding the care of their child that the two of them should have made in the first place, parents will be motivated to try harder to work together.
As has been repeatedly stated by this Court in previous decisions, the Court remains alarmed by both parties' inability to communicate and work together to effectively co-parent Child. While there is clearly animosity and tension between Mother and Father, which appears to be exacerbated by the presence and involvement of Child's stepparents, particularly Step-Mother, Court was somewhat relieved that the evidence did not suggest that the tension between the parents has had an adverse impact on Child. Nevertheless, Child is undoubtedly aware of his parents' inability to behave civilly and respectfully towards one another and Mother and Father should bear in mind the example they are setting for Child with their current actions and behaviors. ACCORDINGLY, IT IS HEREBY ORDERED THIS 25th DAY OF FEBRUARY 2019 THAT THE FEBRUARY 13, 2015 ORDER, THE JANUARY 25, 2016 VISITATION ORDER, AND THE MAY 3, 2016 ORDER ARE MODIFIED AS FOLLOWS:
1. The Petition to Modify Custody filed by C------ G---------K-----is granted in part.
2. Legal Custody: Joint legal custody of N----- G-------, born ------- --, 2010, continues to be granted to C------ G---------K-----, Mother, and J----- G-------, Father. The parties are to comply with this Court Order and 13 Del. C. § 701 and 13 Del. C. § 727(a). Neither parent shall engage in unilateral decision-making for Child except as provided below.
3. Residential Placement: Mother and Father shall have shared residential placement, with each parent having equal time with Child, pursuant to the following schedule:
a. Placement with Mother: Mother shall have Child every other weekend beginning Fridays after school until Monday mornings. In addition, Mother shall have Child every Wednesday and Thursday overnight, beginning on Wednesdays after school until Friday mornings.
b. Placement with Father: Father shall have Child every other weekend beginning Fridays after school until Monday mornings. In addition, Father shall have Child
every Monday and Tuesday overnight, beginning on Mondays after school until Wednesday mornings.
c. The above schedule is designed to ensure that Child maximizes the amount of time he spends with both parents as well as with Step-Brother. Therefore, Mother's alternating weekend shall coincide with the weekend Step-Brother currently resides in Mother's home.
d. Visitation Exchanges: Pick up and drop offs shall occur at school or Child's before/after school care. On days when school is not in session, pick up and drop offs shall occur at the Bear Delaware Troop 2 Station. Either Mother, Father, or a third-party who is not a step-parent may pick-up and drop-off Child at the Bear Delaware Troop 2 Station. However, the Court suggests the parents mutually agree in writing on an alternative public location, perhaps the Bear Public Library, for example, as exchanges at the police station can present a threatening environment to some children.
4. School Breaks: The previous provisions regarding summer and spring break remain in effect with the following modifications:
a. Summer Holidays: For the summer holidays of Memorial Day, the Fourth of July, and Labor Day, Child shall spend the holiday with whatever parent is scheduled to have Child that week, pursuant to the previous alternating week schedule for Child's summer vacation.
b. Halloween: Halloween contact shall begin after school on Halloween, or at 5:00 P.M. when Halloween falls on a non-school day, and shall end the following morning when Child is dropped off at school, or no later than noon when the day after Halloween is a non-school day. The parents shall alternate this holiday with Father having the overnight Halloween visit in even-numbered years and Mother having the visit on odd-numbered years.
c. Winter Break: Child's winter break holiday should be split and shared equally between Mother and Father. In even-numbered years, Father shall spend the first half of Child's winter break with Child and in odd-numbered years Mother shall spend the first half of Child's winter break with Child. This does not include Christmas Eve and Christmas Day, the schedule for which is outlined below.
d. Christmas/Christmas Eve: Christmas eve contact shall begin at 6:00 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 6:00P.M. on December 26th. Father shall have Child for Christmas day in even-numbered years and Christmas eve in odd-numbered years.
e. Easter and Other Holidays: Except as provided for above, the Court will not alter any previous Court Order provisions concerning other holidays, including
Easter. Therefore, Father shall have Child on the holidays in column 1 in even-numbered years and the holidays in Column 2 in the odd-numbered years. Mother shall have Child on the holidays in Column 1 in the odd-numbered years and the holidays in Column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holidays | Thanksgiving Day |
f. Mother's/Father's Day: On Mother's Day and Father's Day, no matter whose turn for contact, Child shall be with the parent whose holiday is being celebrated from 9:00 A.M. until 6:00 P.M.
g. Summer Vacation: Visitation shall remain on an alternating week schedule to begin the week after school ends and ending the week before school starts.
h. Non-Break School Closings/Child's Sick Days: When school is closed on days not designated as a holiday in the two column designations or Winter, Spring, or Summer Break, exchanges shall continue as scheduled, such that Child shall spend the day with whatever parent is scheduled to exercise overnight visitation that night. However, if the parent who is scheduled to exercise overnight visitation is unavailable to spend the day with Child, the other parent shall have the opportunity to keep Child until school would normally conclude or Child would be dropped-off at the bus stop. If neither parent is available to spend time with Child during the day, then the parent who is scheduled to exercise overnight visitation that night shall arrange Child care during the day. Regardless of which parent actually spends the day with Child, the parent who is scheduled to exercise overnight visitation that day shall facilitate the pick-up, whether it be in the morning or afternoon, through a third-party who is not a step-parent, in accordance with this Order.
5. School Activities/ Extracurricular: Both parents, and step-parents, shall be permitted to attend any and all of Child's school or extracurricular events but should minimize any interactions with one another during these events.
6. RTSC: Mother's Petition Rule to Show Cause is granted. While the Court has expressed concern regarding granting such authority, the Court will do so with a caveat. In light of Father's disregard for his responsibilities as a joint legal custodian of Child, particularly when it comes to the issue of Child's education and schooling, Mother shall be granted final decision-making authority with regard to any disagreements between the parties regarding Child's schooling and education. Notwithstanding this grant of authority, Mother and Father remain obligated to make a good faith attempt to first resolve any issues regarding Child's education and, only when these efforts are unsuccessful, may Mother make a final decision so as to not hinder Child's access to education. In the event that Mother's decisions regarding Child's educational placement require Father to enroll Child in before or after school care, Father shall be solely responsible for any costs associated with these programs, however, any such expenses
incurred on his part may be included for calculation purposes in any determination of Child support.
7. Dental Care: Mother and Father must obtain a Delaware dentist for Child. Father shall submit to Mother , within thirty (30) days of the issuance of this Order, a list of THREE dental providers. Mother, within thirty (30) days of receiving this list, must then select one provider and inform Father of her selection. Father should then schedule an appointment for Child as soon as possible. If Father fails to provide Mother with a list of dentists within thirty days of the issuance of this Order, then Mother may select any Delaware dentist of her choosing. If Mother fails to select a dentist from the list provided by Father, Father may select a dentist from the list.
8. Parent Coordinator: Mother and Father shall obtain a parent coordinator who will act as a neutral third-party and make binding decisions for the parents when Mother and Father are unable to amicably reach an agreement of their own( with the exception of school/educational placement as set out in paragraph 6, above). Father shall submit to Mother , within thirty (30) days of the issuance of this Order, a list of THREE potential parent coordinators. Mother, within thirty (30) days of receiving this list, must then select one provider and inform Father of her selection. Father should then reach out to the parent coordinator and make the arrangements for the parents to work with them. If Father fails to provide Mother with a list of parent coordinators within thirty days of the issuance of this Order, then Mother may select any parent coordinator of her choosing. If Mother fails to select a coordinator from the list, Father may do so. The cost of the coordinator's services shall be shared equally by Mother and Father.
9. Medical Treatment and Emergencies: If Child becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If Child becomes ill or injured while in their care, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency. Both parents may be present during any medical procedures.
10. Telephone Access: Child has a right to reasonable access to the other parent by telephone or mail. The Parents must define what reasonable access means to them and agree on the terms thereof. Absent an agreement otherwise, the parent who is not in physical care of Child may have up to thirty (30) minutes of communication through telephone or other electronic means.
11. Mother's request for attorney's fees is granted. The Court shall consider Mother's request for attorney's fees, pursuant to 13 Del. C. § 728(b), upon her attorney's submission of an affidavit attesting to her fees. Father shall have 10 days thereafter to respond to the request for fees.
IT IS SO ORDERED.
/s/ _________
Robert Burton Coonin, Judge Cc: File, parties' attorneys
Date Mailed to Parties' attorneys: __________ RBC/jr