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D. C. v. L. S.

Family Court of the State of Delaware
Aug 11, 2016
File No.: CN07-05530 (Del. Fam. Aug. 11, 2016)

Opinion

File No.: CN07-05530 Petition No.: 16-00002 Petition No.: 16-00038

08-11-2016

Re: D. C. v. L. S. L. S. v. D. C. In Re: A. C. (d.o.b. )


D. C. Julie H. Yeager, Esq.
The Yeager Law Firm
1211 N. King St., 2nd Fl.
Wilmington, DE 19801

LETTER DECISION AND ORDER

Petition for Modification of Custody Order
Rule to Show Cause Petition Dear Mr. C. and Counsel:

This Court held a Hearing on August 1, 2016, to address D. C. 's ("Father") Petition for Modification of Custody Order filed against L. S. ("Mother") on January 22, 2016. The Court also addressed Mother's Rule to Show Cause Petition filed against Father on January 5, 2016. The Petitions under consideration concern the parties' daughter, A. C. ("C. "), born on October 5, 2007. Mother was present in Court represented by Julie H. Yeager, Esq. Father was not present for the Hearing. Father's attorney Renee D. Duval, Esq. ("Ms. Duval") made an oral Motion to Withdraw as Father's counsel due to his absence and the fact that she had never spoken to him since she received the case from her colleague, Mr. Facciolo. The Court granted Ms. Duval's Motion.

Procedural History

This Court issued a Custody Order in this matter on June 7, 2013. The Order gave the parties joint custody of C. with primary residence awarded to Mother. The Order also indicated that Mother and Father were to engage in co-parenting counseling via telephone with a counselor selected by Mother. Father seeks modification of this Order while Mother's claim is that Father is in contempt of the Order. In response to Father's Petition for Modification of Custody Order, Mother told the Court that she would also like to modify the 2013 Order and maintain sole custody of C. . The Court takes judicial notice of all prior pleadings in this matter.

Factual Background

Of particular concern in this case is an instance described by Mother which occurred during the winter holiday of 2015/2016. Mother lives in Belvedere, Illinois, and Father lives in Clayton, Delaware. Mother and Father made arrangements for C. to fly from Illinois to visit Father in Delaware between the dates of December 19, 2015, and January 2, 2016. Plane tickets were purchased, and the parties shared and discussed C. 's itinerary via email. The plan was that B. C. ("Paternal Grandmother") would escort C. back to Illinois on January 2, 2016.

When Mother arrived at the airport on January 2, 2016, to meet Paternal Grandmother and pick up C. as planned, C. and Paternal Grandmother never got off the plane. Concerned, Mother attempted to contact Father and Paternal Grandmother, but she was unable to reach either of them. It wasn't until January 4, 2016, that Mother was finally able to speak with Father over the phone. Father informed Mother that C. was still with him in Delaware and provided no explanation as to why he had not sent her back to Mother in Illinois as agreed upon. On January 8, 2016, S. S. ("Maternal Grandfather"), who lives in Delaware, retrieved C. from Father's home and put her on a plane back to Illinois. Mother picked C. up from the airport on January 9, 2016. Mother presented the Court with an email evidencing the parties' agreement that C. would be flying back to Illinois on January 2, 2016.

PETITIONER'S EXHIBIT #1

Legal Standard

The standing Custody Order in this matter was issued on June 7, 2013. Since more than two years have passed since the issuance of this Order, the Court may modify the standing custody provisions under DEL. CODE ANN. tit. 13, § 729(c)(2). This statute dictates that before making any changes to a Court Order, the Court must consider the degree of compliance of the parties with the current Order and any potential harm that modification would cause to the child. The Court must also conduct a best interest analysis under DEL. CODE ANN. tit. 13, § 722 to determine what is most beneficial for the wellbeing and development of the child.

Pursuant to Del. Code Ann. tit. 13, § 729(c)(2):

(c) 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:
(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.

Pursuant to Del. Code Ann. tit. 13, § 722:

(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
(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 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.

Compliance of Each Parent

The Court finds that Mother has adhered to the Custody Order in place, while Father has not been compliant. The Court, therefore GRANTS Mother's Rule to Show Cause Petition and finds Father in contempt of the June 2013 Order.

In her Petition, Mother indicated that Father violated the Custody Order when he failed to return C. to her on January 2, 2016, as agreed after the 2015/2016 winter holiday. Mother also pointed out that Father's visitation and phone contact with C. was contrary to the Court Order being limited and sporadic due in part to time spent in prison for money laundering. Mother told the Court that C. had not spoken with Father via telephone for about a month. Lastly, Mother alleged that Father had failed to pursue co-parent counseling with the counselor of her choosing as ordered. Based on Mother's testimony and the evidence presented, the Court finds Father in contempt of the Court's June 2013 Custody Order.

Best Interests Analysis

(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;

Mother explained to the Court that she would like sole custody of C. . Mother would like visitation between C. and Father to be at the parties' discretion as it is currently. She would also like the ability to monitor phone contact between C. and Father and Paternal Grandmother. Mother testified that she sometimes monitors C. 's phone conversations with her paternal relatives, and sometimes the conversations are negative and potentially harmful to C. . Mother expressed that Paternal Grandmother tries to convince C. that Mother is keeping her from her paternal relatives. Father often talks to C. about money and his issues with Mother and makes promises to come to Illinois and take C. to Delaware. Mother's biggest concern is the frequent promises that Father makes to that he fails to follow through on and the consequent disappointment that this causes C. .

Father was not present in Court to present his wishes. Father's Petition to Modify Custody filed on January 4, 2016, illustrates concern regarding allegations that C. was molested sexually by H. S. ("Maternal Great-Grandfather"). The allegations were thoroughly investigated, declared unfounded, and subsequently dismissed. Father's Petition makes reference to these allegations, but does not present Father's preferences or give any suggestions as to what kind of custody and visitation arrangement he thinks would be best for C. .

Mother strongly presented her preferences both in writing and before the Court at the hearing. Father did not share his preferences despite having the opportunity to do so. Factor (1), therefore, weighs in favor of Mother.

(2) The wishes of the child as to his or her custodian(s) and residential arrangements;

C. is eight (8) years-old and too young to present an opinion in this matter. Therefore, Factor (2) carries no weight in this case.

(3) The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabiting in the relationship of husband and wife with a parent of the child , any other residents of the household or persons who may significantly affect the child's best interests ;

Mother testified that she maintains a good relationship with C. . C. also gets along with W. S. ("Maternal Grandmother") who lives in the home with her in Illinois. Father's relationship with C. is not as close. Mother testified that his visitation and contact with C. has been sporadic. As of the date of the hearing, C. had not heard from Father for almost a month. C. does not often have the opportunity to see Father and paternal relatives due in part to the distance at which they live.

Since C. shares a much closer relationship with Mother and Maternal Grandmother than she does with Father and paternal relatives, Factor (3) weighs in favor of Mother.

(4) The child's adjustment to his or her home , school and community;

C. is well adjusted to her home, school, and community in Belvedere, Illinois. She is eight (8) years-old and has lived in her home for the past five (5) years. Mother explained to the Court that C. is going into the fourth grade this fall at a school that she has attended since Kindergarten. C. regularly makes A's and B's with the occasional C received during her third grade school year. C. has never attended school in Delaware, and she has lived in Illinois for the majority of her life. With all of the above in consideration, it is clear that C. is well adjusted to her life and community in Illinois and has little connection to Delaware. Therefore, Factor (4) weighs in favor of Mother.

(5) The mental and physical health of all individuals involved;

No evidence was presented to indicate that Mother, Father, or C. are anything but healthy. Mother explained to the Court that C. attends counseling bi-monthly at Mediation Counseling in Rockford Illinois. The purpose for this counseling is for C. to learn to cope with any strain caused by the issues between her parents and also to manage any stress that may have been caused by the incidents taking place between C. and Maternal Great-Grandfather. Mother testified that she enrolled C. in counseling immediately after perceiving that it might be useful to her. Father, however, refused to participate in co-parenting counseling with Mother in attempt to better his abilities to effectively parent and provide for C. . As such, Factor (5) weighs in favor of Mother.

(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;

Pursuant to Del. CODE ANN. tit. 13, § 701:

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.

Mother testified that she has always cared and provided for C. . Father, has never paid child care and is in noncompliance with the Court's June 2013 Custody Order. Father visits and calls C. sporadically and infrequently. Furthermore, Father failed to attend the co-parenting counseling ordered by the Court in C. 's best interests. Even more egregiously, Father did not return C. to Illinois after the winter break of 2015/2016 on January 2, 2016, as the parties had agreed. Father failed to even notify Mother than C. was not returning thus causing fear and concern for C. 's whereabouts. Lastly, Father presented the Court with a concern in the Petition that he filed on January 4, 2016, but failed to appear in Court to support it. This shows a lack of concern and responsibility on Father's part. For these compelling reasons, Factor (6) weighs in favor of Mother.

(7) Evidence of domestic violence as provided for in Chapter 7A of this title;

There is no evidence of domestic violence in this case. Therefore, Factor (7) carries no weight.

(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.

Father has a lengthy criminal history that has interfered with his contact with C. . Mother has few convictions with the last one occurring in 2008. Factor (8) weighs in favor of Mother.

Potential Harm of Modification

Responsible modification of the current Custody Order issued in June of 2013 would not be harmful to C. . Under DEL. CODE ANN. tit. 13, § 728(a), it is statutorily encouraged that a child maintain "frequent and meaningful contact" with both parents unless the Court finds this to be dangerous to the child's health or emotional wellbeing. Currently, C. does not see or speak with Father regularly or consistently. A change in the June 2013 Court Order as suggested by Mother will not alter the amount of time available to Father to spend with C. or the contact that she currently has with him. Therefore, careful and precise modification of the current Court Order will not be detrimental to C. .

Pursuant to Del. Code Ann. tit. 13, § 728(a):

(c) The Court shall determine, whether the parents have joint legal custody of the child or 1 of them has sole legal custody of the child, with which parent the child shall primarily reside and a schedule of visitation with the other parent, consistent with the child's best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child's physical health or significantly impair his or her emotional development. The Court shall specifically state in any order denying or restricting a parent's access to a child the facts and conclusions in support of such a denial or restriction.
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Analysis/Conclusion

In accordance with the above analysis, modification of the Court's June 2013 Order is warranted. Father has not been compliant with the Order, nor has he consistently provided for C. 's needs. A review of the best interest factors strongly favors Mother. While factors (2) and (7) do not carry any weight in this case, Factors (1), (3), (4), (5), (6), and (8) all clearly weigh in Mother's favor. None of the factors weigh in Father's favor. Furthermore, Father's absence in Court and lack of communication in regards to his daughter is concerning.

The Court relinquishes jurisdiction of this matter noting that Mother and C. have resided in Illinois for the past five (5) years. Moving forward, all claims will be brought forth in Rockford, Illinois. The Court Order is detailed below.

ORDER

THEREFORE, in consideration of the above factors, the Court finds that it is appropriate to enter the following Order:


IT IS HEREBY ORDERED this 11th day of August, 2016 that:

1. Mother shall maintain sole custody of C. and primary residence.

2. Father is in noncompliance with the Court's previous June 2013 Order.

3. Father shall have visitation with C. at Mother's discretion.

4. This Court relinquishes jurisdiction of this matter.

5. Mother shall be reimbursed by Father for the expense of airfare incurred for
attending this hearing and for the airline fare she lost when C. was not returned for a total of $551.00.

6. Ms. Yeager may submit an affidavit of attorneys' fees within ten days of the mailing of this Order.

7. The terms of this Order may be altered at any time by mutual agreement of both parties.

IT IS SO ORDERED.

Very truly yours,

Felice Glennon Kerr, Judge cc: D. C.

Julie H. Yeager, Esq. Date emailed: __________


Summaries of

D. C. v. L. S.

Family Court of the State of Delaware
Aug 11, 2016
File No.: CN07-05530 (Del. Fam. Aug. 11, 2016)
Case details for

D. C. v. L. S.

Case Details

Full title:Re: D. C. v. L. S. L. S. v. D. C. In Re: A. C. (d.o.b. )

Court:Family Court of the State of Delaware

Date published: Aug 11, 2016

Citations

File No.: CN07-05530 (Del. Fam. Aug. 11, 2016)