Opinion
CPI 21-15330CN15-01320
02-22-2022
D. C. Petitioner v. C. A. Respondent
Date Submitted: 12/1/2021
ORDER - PETITION TO MODIFY CUSTODY
JANELL S. OSTROSKI JUDGE
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition to Modify Custody filed on July 1, 2021, by D------C------ (herein "Father"), self-represented, against C------A- (herein "Mother"), self-represented, in the interest of --------, born------, --------, (herein "minor child"). The Court held a hearing on December 1, 2021 and heard testimony from both parties, as well as-------- herein "the child's principal") and--------(herein "the president of the child's school").
PROCEDURAL HISTORY
The Court entered a Custody Order after a contested hearing on June 12, 2019 and gave Mother sole legal custody and primary residence. Father was given visitation every other weekend and every Wednesday overnight so long as Father continues to drop the child off at school on time.
Father filed the Petition to Modify Custody on July 1, 2021. The Court held a Case Management Conference on September 29, 2021, at which time a hearing was scheduled. The hearing was held on December 1, 2021 and the Court reserved its decision. This is the Court's final written decision.
FACTUAL FINDINGS
The Court will not restate all of the facts in this case as the record is a more accurate reflection of the facts. Description of the relevant facts are discussed in the analysis of the best interest factors below.
LEGAL STANDARD
The parties' current Order was entered on June 12, 2019 (herein "2019 Custody Order"). The instant Petition was filed on July 1, 2021, more than two (2) years after the most recent Order. As such, the Court will follow the criteria set forth in 13 Del. C. § 729(c)(2), which provides that 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 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 Dd. C. § 722 provides:
(a)The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all of the relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabitating in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
DISCUSSION
A. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification;
In its prior Order, this Court found that these parents were unable to co-parent. For the reasons set forth herein, the Court finds there was no evidence presented at the instant hearing to prove that the parents' ability to co-parent has improved. As such, the Court must find that it is more likely than not that modifying this Order to allow the parents to have joint legal custody will cause the child harm.
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
Father alleged that Mother violated the prior Order by using physical discipline on-------and failing to put-------into a summer school program. However, while the Court may not condone physical discipline, there is no Court Order preventing the parties from using physical discipline. Furthermore, the 2019 Order states that "[s]ummer school which is necessary for a child must be attended, regardless of which parent has the child during the summer school period." (Emphasis added.) It is undisputed that-------'s school did not require him to attend summer school. Therefore, the Court cannot find that Mother has violated a Court Order.
To the contrary, Father has violated the prior Order. As discussed herein, Father unilaterally enrolled the child in a new school and attempted to enroll him in a Charter school despite the fact that Mother had sole legal custody.
At this point, neither party has been subjected to sanctions for failing to comply with their rights and responsibilities.
C. The factors set forth in § 722 of this title.
1.The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father is seeking joint legal custody, with final decision-making authority regarding the child's education. He is also seeking shared residence with a 2/2/3 schedule. Father proposes that Mother have Monday and Tuesday overnight, Father have Wednesday and Thursday overnight, and that the parties alternate weekends. Father is also seeking a week on/week off schedule during the summer.
Mother is requesting that the terms established in the 2019 Custody Order remain in place with the exception that Father's overnight visitation on Wednesday be converted to a dinner visit. She gave no testimony or evidence as to why Father's contact with the child should be reduced.
2.The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Court did not interview------as neither party asked the Court to interview him. ------is quite young and the Court would not necessarily have interviewed him even if one of the parents had asked the Court to interview him.
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;
There was very little evidence presented by either party related to this factor. Father testified that he had concerns that------'s older half-brother (-----, d.o.b. --/--/--) was hitting------in October 2020. When Father discussed his concern with Mother, the parties agreed that "that's what brothers do." Mother testified that------and-----would often "play fight" and, after Father notified Mother in October 2020 about his concerns, she held a family meeting with both children and then talked to----- alone about appropriate behavior. There was no evidence that this behavior continued after October 2020. It appears the issue of conflict between the brothers has been resolved. There was no other evidence presented by either party related to this factor.
Father's Exhibit 3.
Id.
4.The child's adjustment to his or her home, school and community;
Neither party presented evidence on------'s adjustment to his home. The Court will assume he is adjusted to both homes.
------is in -"" grade at --------. --------- ---------- -------. The parties do not agree that he is adjusted to his school and Father would like------to attend a different school. Father claims that------is not doing well in this school. To support his position, Father argued that------is scoring below average on standardized tests. However, contrary to Father's testimony,------'s reading test score from February 22, 2021 (submitted by Father) showed he was performing in the average range. Father also provided two other test scores; one showed------performed below average on reading and average on math. The test scores do not have dates but Father claimed that these tests were after February 22, 2021. Mother, on the other hand, provided the Court with------'s recent report card which shows that------is performing at least satisfactorily in all categories but phonics. Given that the most recent records show that------is performing satisfactorily in the majority of his subjects, the Court finds Father's argument in this regard to be without merit.
Mother's Exhibit 2; Mother's Exhibit 4.
Father's Exhibit 13.
Id.
Mother's Exhibit 12.
Father also alleges that------has had multiple incidents at school where------was either bullied or a teacher "placed their hands on------." However, all of the testimony surrounding these circumstances centered on the parties' actions during meetings with school faculty and not whether the alleged incidents actually occurred. Even if the Court assumes that each incident actually occurred, Father failed to prove that these incidents negatively impacted------'s adjustment to his school. As such, the Court finds Father's argument in this regard to be without merit in this regard.
Father alleged that a teacher "placed their hands on-------" twice and that-------was being bullied.
------participates in soccer, basketball, and boxing. The Court will assume he enjoys these activities and is adjusted to his community.
5. The mental and physical health of all individuals involved;
Neither party presented any evidence regarding their health or the other party's health nor did they present evidence on------'s current health except that Father indicated that he would like------to attend counseling. However, the Court is not sure why Father believes------needs counseling.
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."
This factor is of most concern to the Court. Both parties claim that they are unable to coparent with the other parent. The parties agree that they do not communicate well, and the same is clear to the Court after reviewing the evidence provided by the parties.
See Father's Exhibit 10; Mother's Exhibit 1; Mother's Exhibit 8; Mother's Exhibit 11.
Mother has had sole legal custody of------since 2019. Father alleges that Mother has not kept him informed of decisions she has made for the child. Father failed to provide evidence of his position in this regard. To the contrary, Mother and Father have provided numerous documents showing that Mother has updated Father on------'s health, education, and welfare. Father also alleges that Mother refuses to allow------to participate in extracurricular activities that Father requests outside of Father's time but fails to provide the Court any reason as to why Mother should be required to allow the child to participate in activities that would interfere with her time with------, Mother testified that she prefers that------only participate in one (1) sport at a time so that he can also focus on school. The Court finds Mother's position reasonable in this regard considering Father's allegation, whether it is true or not, that the child is not "doing well" in school.
Father's Exhibit 6 (Mother informed Father of-------'s appointment at the orthodontist); Mother's Exhibit 11 (Mother informed Father of-------'s COVTD-19 Vaccination).
Father's Exhibit 7.
Father made unilateral decisions despite Mother having sole legal custody. For example, Father enrolled------at------- ---------- ------in late 2019 and failed to inform Mother. Mother was informed that if she did not cancel------'s enrollment, he would be considered truant. Father also applied for - --- to attend------- ------ -------in 2020 without informing Mother. It is clear to the Court that Father's unilateral decisions in this regard when Mother had sole legal custody proves that it is more likely than not that Father would be unwilling to coparent with Mother if the parties had joint legal custody. It is significant to the Court that these parties are unable to coparent. If the Court awards the parties joint legal custody, they would be required to coparent. Therefore, the Court cannot find that joint legal custody is in the child's best interest. When considering which parent should have sole legal custody, it is significant to the Court that Mother has complied with all the requirements that accompany having sole legal custody as she has provided updates to Father on------'s health, education, and welfare. Meanwhile, Father has attempted to circumvent Mother's sole legal custody and provided no evidence that he will work with Mother if awarded joint legal custody, as he requests.
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 any evidence on this factor.
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 history for both parties and has no concerns.
CONCLUSION
There was not sufficient evidence presented in this hearing to change the status quo. The Court entered an Order in June 2019 and neither party presented evidence at the instant hearing that would support changing the Order. The Court continues to have concerns regarding the parents ability to co-parent. While Mother may not always speak to Father appropriately, as evidenced by her text messages, the Court finds the parents' inability to co-parent is much more related to Father's behaviors than Mother's behaviors. Father has not abided by the prior Order in that he attempted to enroll the child in new schools without Mother's consent when Mother had sole legal custody. Father has not shown the Court that he has made any effort to co-parent with Mother. He accuses Mother of not abiding by her responsibilities as the sole legal custodian but, for the reasons set forth above, the Court finds no merit in his argument. As such, the Court finds that it more likely than not that Father will not co-parent with Mother if the parties are granted joint legal custody. Furthermore, neither party presented evidence that would support modifying the contact schedule as they suggest.
WHEREFORE, the Court enters the following Order:
A. Mothe is awarded SOLE CUSTODY of the child. As the sole custodian, Mother shall have the exclusive right to make all decisions and give all consents for matters affecting the child, including but not limited to the child's care, nurture, welfare, medical consents under 13 Del. C. § 707, and education decisions under Title 14 of the Delaware Code. It is the responsibility of the sole custodian to provide upon request 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, unless specifically restricted in this Order.
B. Mother shall have primary residence.
C. Father shall have the following visitation:
1. Every other weekend from Friday after school until Monday morning when he returns------to school on time. The parties will following their current schedule as to weekends. For example, whoever is supposed to have visitation with------this upcoming weekend shall keep their visitation.
2. Every Wednesday overnight from after school until Thursday morning when he returns------to school on time.
3. If Father fails to get------to school on time more than three (3) times in any semester without a note from a doctor or other professional excusing the lateness, Father's weekend visits shall end on Sundays at 7:00 p.m. and his Wednesday visits shall change to a dinner visit ending at 7:30 p.m. during the school year.
D. Neither party shall smoke around------or in the house when------is present. Both parties shall make every effort to avoid exposing------to secondhand smoke.
E. In the event of conflicting dates and times, priority is given first to holidays (including Mother's and Father's Day), then to school breaks, then to summer vacations, and then to regularly scheduled weekly contact.
F. Unless the parties agree otherwise, the following guidelines apply:
1. Holidays: Mother 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. Father 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:
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. If the parties cannot agree, Mother shall have Spring Break and Winter Break in odd calendar years and Father shall Spring Break and Winter Break in even calendar years.
4. Summer Vacation: 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. Exchanges shall take place on Sundays at 7:00 p.m. with the exception of the last week which will end on Friday. The parents shall alternate contact weeks in the summer. Father shall select his weeks first in odd numbered years and Mother shall select her weeks first in even numbered years. The parent whose choice it is that year shall give the other parent written notice of his/her summer week by March 15th. The parent who has the child for the week shall be responsible for taking the child to his or her extracurricular activities, summer school, and providing summer care for that week
5. Late pick-up: Both parents shall have the child ready for pick-up at the start of all contact periods. The child and the parent have no duty to wait for the other parent to arrive for contact more than thirty (30) minutes, unless notified. The parent who arrives more than thirty (30) minutes late without prior notification for a particular contact, forfeits that contact, unless the other parent agrees otherwise.
6. Drop-off: Neither parent shall return the child early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to the child must be present when the child is returned from contact.
7. Canceling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
8. Medical treatment and emergencies: If the child becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the child becomes ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.
9. Communication: Both parents shall be entitled to reasonable communication with the child while the child is in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between the child and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
10. Transportation: Unless otherwise ordered or mutually agreed, parents shall have shared responsibility for transportation of the child to and from their home for contact periods and may use another adult well-known to the child for picking up or dropping off the child when necessary. Any person transporting the child shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All child restraint and seat belt laws must be observed by the driver.
11. School work: Parents shall provide time for the child to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the child. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for a child must be attended, regardless of which parent has the child during the summer school period.
12. Extracurricular activities: Regardless of where the child is living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom the child is staying shall be responsible for providing transportation to activities scheduled during contact with that parent. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address and telephone number of the activity leader, if available.
13. Relocation: Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the child's school, travel time to school or extracurricular activities or otherwise may adversely affect the child's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
14. Notice of change of address: Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the
mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.
G. 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.