Opinion
No. 130, 2007.
Submitted: August 8, 2007.
Decided: August 20, 2007.
Court Below — Family Court of the State of Delaware, in and for Kent County File Nos. CK05-02420, 05-29202 06-31685 and 06-34972.
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.
This 20th day of August 2007, it appears to the Court that:
1) The petitioner-appellant, Allison Wright Clark (the "Mother"), appeals from the Family Court's final judgment granting the respondent-appellee, Richard Wright (the "Father"), primary residential placement of the parties' daughter, S., and providing the Mother with standard visitation. On appeal, the Mother contends that the Family Court's award of primary custody to the Father constitutes an abuse of discretion because the inferences drawn concerning the Mother's remarriage and relocation are not supported by the record, nor are they the product of an orderly and logical deductive process. Alternatively, the Mother contends that the Family Court's award of primary custody to the Father constitutes an abuse of discretion because it relied solely on unsupported inferences to the exclusion of other relevant established facts, including evidence that the child was being primarily cared for by the paternal grandmother and great grandmother while in the Father's custody.
2) We have concluded that the record evidence does not support either of the Mother's arguments. The record reflects that the Family Court properly exercised its discretion in applying established law to the facts of this case. Consequently, the judgment of the Family Court must be affirmed.
3) The parties are the parents of a three-year-old child born on November 6, 2003. The Mother is twenty-six years old and is employed as an Information Manager with the United States Air Force. The Father is twenty-nine years old and is employed by Comcast Cable. In September 2005, the Mother filed petitions for divorce and custody with the Family Court, seeking primary residential placement of S.
4) After being served with the Mother's petition for custody, which the Father answered on October 5, 2005, the Father refused to return S. to the Mother at the next scheduled exchange on advice of his Maryland counsel. The Mother then moved for Emergency Relief, which the Family Court granted. The Family Court's order reinstated the 50/50 shared placement arrangement between the parties, which remained in place from the parties separation in February 2005 until the Family Court's February 2007 Order for Custody — a period of two years.
5) The Mother and the Father divorced in October 2005. On August 20, 2006, the Mother remarried George C. ("George"), who is a member of the United States Air Force. By the time of trial, George had transferred from his base in Florida to Maguire Air Force Base in New Jersey to be with the Mother in Yardley, Pennsylvania. The Mother, who was residing in Delaware, testified that she intended to move to Pennsylvania. The Father resided in Baltimore, Maryland. Thus, there was a hundred mile distance between the parents, who were dividing residential custody of S. equally between their residences. The Mother's new residence in Yardley, Pennsylvania added twenty-three additional miles from her former residence in Dover, Delaware to the Father's residence in Baltimore.
6) A hearing on the Mother's petition for custody was scheduled for January 31, 2006. The Mother appeared with counsel and was prepared to go forward, but the Father requested a continuance to retain counsel and the hearing was rescheduled to April 21, 2006. On the Mother's request, a review hearing was scheduled for December 6, 2006. At the hearing, both the Father and the Mother requested an award of primary residential custody.
7) The testimony at the December 6, 2006 hearing established that the Mother works Monday through Friday from 8:00 a.m. to 5:00 p.m., and that the Father works Monday through Friday from 8:00 a.m. to 4:30 p.m. In addition to his Comcast employment, the Father runs a real estate business rehabilitating properties. He also takes courses twice a week from 6:00 to 10:00 p.m. Although the Father lives alone, his mother and grandmother live 200 yards away. While in the Father's care, S. attends daycare. The Father takes S. to daycare at 6:30 a.m. and S.'s paternal grandmother picks her up when the Father cannot get off work in time to do that himself. According to the paternal grandmother, S. called her (the grandmother) S.'s best friend. Both S.'s grandmother and her great grandmother were. involved in taking care of S. from time to time.
8) The evidence at trial disclosed that both parents love and care for the child in their own way, and both were adamant that they wanted the Family Court to decide who would have primary placement of their minor child. The Mother testified that she wanted primary residential placement of S. because she and the Father do not communicate well and they have two different styles of rearing the child. The Mother was also concerned about the Father's use of physical discipline. The Mother testified that she noticed several marks on S. that concerned her, including a large red bruise like mark on the child's face and scratches and bruises on the child's buttocks. The Mother also testified that she had found ringworm on child's leg approximately two weeks before trial. The Father explained that the large red mark on S.'s face was a "something bite" and that the marks on S.'s backside were caused by "wood chips" on the slide at the playground. The Father admitted that he had spanked S. once, but was able to speak with her in a stern voice to make certain she behaved.
Family Court's Order, dated February 26, 2007, at 6.
9) On February 26, 2007, after considering the eight interests-of-the-child factors under 13 Del. C. § 722(a), the Family Court awarded primary residential placement of S. to the Father, with standard visitation rights awarded to the Mother.
13 Del. C. § 722(a) provides that:
(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 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(s) and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents siblings, persons cohabiting in the relationship of husband and wile 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.
13 Del. C. § 722(a) (1999 Supp. 2004).
10) The Mother first claims that the Family Court's award of primary residential custody to the Father was an abuse of discretion because the inferences drawn concerning the mother's remarriage and relocation are not supported by the record and are not the product of an orderly and logical reasoning process. We review the Family Court's decisions concerning child custody for abuse of discretion. The judgment of the trial judge will not be disturbed if it is a product of a logical and orderly reasoning process. "It is only when the rulings of law or the findings in the Family Court are clearly wrong and the doing of justice requires their overturn that we are free to make contradictory findings."
Jones v. Lang, 591 A.2d 185, 186 (Del. 1991).
Delong v. Stanley, 702 A.2d 925, 1997 WL 673713, at *1, 1997 Del. Lexis 374, at *2 (Del. Oct. 9, 1997), citing Levitt v. Bouvier, 287 A.2d 671 (Del. 1972).
11) In this case, the Father has continuously resided in Maryland, within walking distance of his mother and grandmother, both of whom have significant relationships with S. At one point, the paternal great grandmother provided care for S. until a recent surgery. The paternal grandmother also picks up S. from daycare if the Father cannot get off from work on time. According to the Father, he, his mother, his grandmother and S. usually eat dinner together. In addition (according to S.'s grandmother) S. called the grandmother her best friend. There was also evidence showing that S.'s great grandmother was accustomed to spending significant time at the Father's home to take care of S. before she recently became too ill.
12) Thus, the facts of record support the Family Court's finding that: (i) a close and tender relationship exists among the Father, S.'s grandmother and S.'s great grandmother, and the child herself, and (ii) the child integrated into the Father's home and extended family very well. Moreover, the child was evidently happy and doing well in Kindercare in Baltimore, Maryland, when the Father took custody of the child.
13) In contrast (the record reflects), had the Mother been awarded primary residential placement of S., the child's life could be more uncertain and unpredictable. First, the Mother's new husband and S.'s stepfather — George — had never resided with the Mother and S. Second, George had only seen S. about five times. George testified that he had never been alone with S. Third, if primary placement of the child were granted to the Mother, the Mother would change the child's day-care again in the near future, since she planned to relocate to Pennsylvania in February 2007.
14) The record does not support the contention that the Family Court improperly inferred that the Mother's remarriage to George and her impending relocation from Dover to Yardley, Pennsylvania could detrimentally affect S. The Family Court balanced the Father's home, which affords the child a permanent, secure, and stable environment, against the Mother's home, which would be unpredictable and uncertain, and reached its conclusion based on that evidence. That is, based on the evidence and the relevant factors of 13 Del. C. § 722(a), the Family Court reasonably determined that moving S. from Father's home to an unknown, tenuous situation in Mother's home was not in the child's best interests.
See B.A.S. v. J.E.S., 2006 WL 2389561, 2006 Del.Fam. Ct. Lexis 49 (Del.Fam. Apr. 3, 2006), in a decision regarding child custody, the court considered the factors of 13 Del. C. § 722, finding that it was important for the children to enjoy a consistent, stable environment, and that the children should continue to make their primary residence with the mother.
15) Alternatively, the Mother claims that the Family Court's award of primary residential custody to the Father was an abuse of discretion because it relied solely on unsupported inferences to the exclusion of other relevant facts. The standard of review of a Family Court's child custody determination is abuse of discretion. The Mother contends that there were nine "relevant factors" with ample evidentiary support, that outweighed all the other factors relevant to the custody determination.
Jones v. Lang, 591 A.2d 185, 186 (Del. 1991).
The nine "relevant factors" Mother claims are:
1. Father's failure to comply with his obligations as a custodian by wrongfully keeping and retaining the child for one month and preventing contact with Mother in complete disregard for the child's emotional health.
2. Father's failure to communicate with Mother regarding the selection of day-care for S. in Baltimore.
3. Father's failure to inform Mother that he moved his residence.
4. Father's overzealous use of discipline and his unrealistic expectations for his daughter's behavior.
5. Father's flimsy explanation for the numerous bruises or scratches on his daughter's buttocks that were so alarming to cause Mother to take child for a pediatric examination.
6. The generally poor condition the child is in when returned to Mother's care.
7. Father's complete delegation of responsibility of care of S. to his mother and grandmother when the child is with him.
8. The child's attachment to Mother.
9. Mother's greater availability to care for the child after her regular work hours.
(16) None of the nine factors relied upon by Mother are statutory factors set forth in 13 Del. C. § 722. However, we have held that "a Family Court judge `has discretion to consider additional factors as long as it considers all of the statutory enumerated factors' mandated in section 722." Here, the record reflects that all the factors claimed by the Mother were refuted by the Father in his testimony. It was for the Family Court to view the witnesses and weigh their credibility. There was no abuse of discretion by the Family Court for failing to specifically address each of the non-statutory factors upon which the Mother claims to have relied in this case.
Mundy v. Devon. 906 A.2d 750, 753 (Del. 2006), citing Potter v. Branson, 877 A.2d 52, 2005 WL 1403823, at *2, 2005 Del. Lexis 219, at *2 (Del. June 13, 2005).
17) Finally, the Mother contends that the Family Court's decision improperly permits the paternal grandmother and great grandmother to have an involvement in the day-to-day care of S. superior to that of the Mother, based upon speculative and unfounded concerns regarding the Mother's remarriage and relocation. The record reflects that the paternal grandmother and great grandmother are involved in raising and caring for S. and that a good, close and loving relationship exists between them. However, those relationships are only one of the relevant statutory factors that the Family Court took into account in reaching its decision. The Family Court also considered each of the eight "best interest" factors under 13 Del. C. § 722(a), none of which is solely determinative. The primary residential placement of the child was granted to the Father, not to the Father's mother or grandmother. Thus, Family Court did not hold that the role of the paternal grandmother and great grandmother in caring of S. took precedence over the natural mother's right to custody.
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the Family Court is AFFIRMED.
BY THE COURT:
/s/ Randy J. Holland Justice.