Opinion
File No. CN04-06890 Pet. No. 16-38458 Pet. No. 17-00921
08-18-2017
D------- I------, Petitioner, v. T------ M--------, Respondent.
Petitioner, represented by Edward Curley, Esquire Respondent, represented by Staci Pesin, Esquire
CUSTODY MODIFICATION ORDER Petitioner, represented by Edward Curley, Esquire
Respondent, represented by Staci Pesin, Esquire Buckworth, J.
INTRODUCTION
The matter before the Court is a Petition to Modify Custody Order filed on December 8, 2016, by D------- I------ ("Mother"), represented by Edward Curley, Esq., against T------ M-------- ("Father"), represented by Staci Pesin, Esq., and a Petition for Rule to Show Cause ("RTSC") filed on January 12, 2017 by Father against Mother in regards to the parties' minor child: A--------- M-------- ("L---"), born October 24, 2003.
DISCUSSION/CONCLUSION
On September 18, 2007 ("September 2007 Order"), the Court entered a Custody Order after a hearing on the merits, finding that the best interests of the child would be served by both parties continuing to hold joint custody of L--- with primary residential placement with Mother. The September 2007 Order granted Father visitation with L--- three out of four weekends per month from Friday at 5:30 p.m. until Monday at 8:00 a.m. and dinner time visitation every Tuesday and Thursday during the week prior to Mother's weekend with L---, and otherwise every Wednesday from 5:30 p.m. until 7:00 p.m.. The September 2007 Order also granted Mother final decision making authority in the event of disagreement concerning medical decisions and L---'s personal needs; and Father final decision making authority in the event of disagreement concerning religious, educational and extracurricular needs.
Modification of Custody, D.I. 133.
Mother filed her Petition on December 8, 2016, requesting the Court modify the September 2007 Order, including the award of Father of ultimate decision making authority as to certain issues, as well as a modification of the terms of visitation, alleging that the relationship between Father and L--- has deteriorated. Father filed an Answer and Counterclaim to Mother's Petition on January 12, 2017, alleging that Mother has alienated L--- from Father and requesting the Court modify the custody order so L--- has shared residential placement with both parents or so that Father has sole legal custody and primary placement. Father also filed his Petition for RTSC on January 12, 2017, alleging that Mother has failed to adhere to the terms of the September 2007 Order, including by enrolling L--- at H.B. du Pont Middle School ("H.B. du Pont") in Hockessin, DE without regard for Father's input and wishes.
A hearing was held on June 2, 2017, wherein the parties agreed on the record to an interim custody modification order ("June 2017 Interim Order"). Pursuant to the June 2017 Interim Order, the parties agreed on an interim basis to shared residential placement of L--- on a week on, week off schedule. Among the terms of the June 2017 Interim Order, the parties also agreed that custody exchange would occur at Peoples Plaza in Newark, DE on Fridays at 6:00 p.m.; that Stepfather would not to be present during custody exchanges; that L--- and Father would continue having weekly sessions with Dr. D---- T------ ("Dr. T------"); and that neither party shall initiate calls with L--- when she is with the other parent; however L--- shall have unrestricted access to the phone in order to initiate contact with either parent at any time.
Consent Interim Custody Modification Order, D.I. 197-97.
A review hearing was scheduled and occurred on August 11, 2017 and continued on August 15, 2017. The parties indicated they were not satisfied with the June 2017 Interim Order. Particularly, the parties did not believe that the shared residential placement schedule was working and disagreed regarding what school L--- would attend for 8th grade during the 2017-18 school year. The parties presented evidence and testimony on the record. Additional testimony was provided by Dr. T------, the psychologist who has been working with Father and L--- on restoring their relationship; A-- C------ ("Ms. C------"), L---'s former mental health counselor; and Mother's husband, M--- G------ ("Stepfather"). Additionally, the Court interviewed L--- on August 15, 2017, where she had the opportunity to share her preferences and opinions.
DISCUSSION
For the sake of judicial economy, the Court will not restate the testimony given at trial. Pursuant to 13 Del. C. § 729(b), an order or an interim order entered by consent of all parties concerning the legal custody of the children, may be modified by the Court at any time in accordance with the best interest factors. This Court must issue an Order that is in the best interest of Child, pursuant to 13 Del. C. § 722.
Section 729 provides:
(b) An order entered by the Court by consent of all parties, an interim order or a written agreement between the parties concerning the legal custody of a child or his or her residence may be modified at any time by the Court in accordance with the standards set forth in § 722 of this title.
Pursuant to 13 DEL. C. § 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 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 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.
BEST INTEREST ANALYSIS
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Under the June 2017 Interim Order, the parties have shared residential placement of L--- on a week on, week off schedule. Prior to the June 2017 Interim Order, Mother had primary residential placement of L--- and Father had the right to visitation with L--- three out of four weekends per month from Friday at 5:30 p.m. until Monday at 8:00 a.m. and midweek visitation. Mother has final decision making authority in the event of disagreement concerning medical decisions and L---'s personal needs; and Father has final decision making authority in the event of disagreement concerning religious, educational and extracurricular needs.
Mother wishes to have primary residential placement of L--- with Father having visitation every other weekend Friday through Monday and mid-week visits. According to the parties, in March 2015 the parties began operating under this schedule by agreement in exchange for Mother returning Father's child support payments issued to her every two weeks. Mother testified the parties agreed to this modification because the original schedule resulted in a lot of cancellation and rescheduling and because L--- was becoming frustrated about not being able to participate in extracurricular activities that conflicted with the visitation schedule. Mother indicated that L--- did well under this schedule and that she has concerns about L---'s continued success in school and in extracurricular activities should the shared residential placement continue, because Father is not agreeable to L---'s activity schedule.
Mother also requested the Court grant her final decision making power on all matters. Mother has concerns about Father having final decision making authority in education. In particular, the parties do not agree on what school L--- will attend for 2017-18, her 8th grade school year. Mother wishes for L--- to stay at H.B. DuPont, where Mother claims L--- is well-adjusted and happy. Mother is concerned about Father having ultimate decision making authority in regard to school because he has a history of leveraging "the smallest amount of power" over Mother and "maximizing it to its hilt". Finally, Mother wishes for Stepfather to be able to be involved in custody exchanges and for L--- to have continued unlimited access to her phone.
Father believes Mother has alienated L--- from him. Accordingly, Father requests the Court grant him 3 months of uninterrupted time with L--- to continue working on their reunification efforts. Subsequently, Father requests the Court grant him primary residential placement of L--- with Mother having visitation every other weekend and one midweek overnight. Father testified that he believes this arrangement will best serve L---'s interests because he is the only parent who will ensure that L--- maintains a relationship with both of her parents. Father does not think that shared residential placement can work because he and Mother do not communicate unless it is in writing.
Father agreed that the parties changed the visitation schedule in March 2015 without Court involvement, scaling back his visitation to every other weekend with midweek visits. Father alleged he agreed to do so because L--- was asking why she could not have the same number as weekends with Mother as she has with Father. Father also testified that he could tell L--- was struggling with her transition between houses, taking a few hours to warm up when she came to visit and becoming terse and argumentative near the end of the visits. Father acknowledged that Mother did begin returning the child support payments issued to her by the state at this point; however, he denies that he agreed to scale back visitation because of this.
Additionally, Father requests the Court grant him final decision making authority, including regarding educational placement. Father wishes for L--- to attend Alfred G. Waters Middle School ("A.G. Waters") near his home in Middletown. Father thinks he is in a better position to make decisions for L--- because he has been compliant with the Custody Order and provides consistency for L---. Additionally, Father alleged that he is the only parent willing to co-parent cooperatively. Finally, Father requests for Stepfather to be prohibited from being involved in custody exchanges and for the right to limit L---'s access to her phone, which he believes is undermining their reunification efforts.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
The Court interviewed L--- on August 15, 2017. L--- stated she would like to live primarily with Mother and to see Father a weekend or two each month. L--- told the Court that she does not think she could emotionally handle being primarily at Father's, because when they are together for more than 5 days they fight. L--- stated that while she is able to talk about her relationship with Father in Mother's home; she is not able to talk about Mother in Father's home because Father will become tense and agitated. L--- indicated that minor fights with Father will lead to him making disparaging or threatening remarks about Mother and as soon as he does so, she is "done". L--- also testified that she wishes to continue attending H.B. du Pont. L--- provided that she loves her school and her teachers. L--- testified she has many friends at H.B. du Pont and anticipates continuing to be involved in activities there, such as her school play and the choirs she was selected to participate in after auditioning. Further, L--- specified she does not want to go to A.G. Waters because it is too far from Mother's home and she does not want to stay at Father's more.
Based on L---'s testimony, she vehemently wishes to continue residing primarily with Mother. The Court notes that Father and Dr. T------ expressed concerns about the Court receiving L---'s testimony because they believe she is greatly influenced by Mother. However, the Court found L---'s testimony to be mature, reasoned, and credible. L--- was able to indicate what she likes and does not like in each of her homes. She provided several reasons why she preferred living primarily with Mother, which were consistent with the matters presented by the parties during the hearing. Accordingly, this factor weighs heavily in favor of Mother. (2) 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 resides in Hockessin with Stepfather and their 1-year-old child, N--- R---. Stepfather's 17-year-old daughter from his previous marriage, M---, resides primarily in Dover; however, comes to visit their home 2 to 4 days each month. Mother and L--- have an extremely close relationship. They are in constant communication with one another and L--- feels like she can talk to her Mother about how she is feeling. Stepfather and L--- also have a close relationship. Stepfather works from home and is home when L--- is home. He will get her snacks and help her with homework. Together, they will do chores, run errands, and generally enjoy spending time together. Stepfather indicated that L--- started introducing him as "Dad" and calling him "Dad" shortly after he and Mother got married without prompting. Stepfather testified that M--- and L--- have a typical sibling relationship and are "locked at the hip" when M--- is in the home. Mother also has a large extended family with whom L--- shares a close relationship, particularly with her grandfather, uncle, and cousin, Jordan, who is close to her in age.
Father lives with his significant other N----- F----- ("Father's Girlfriend"), whom he has been with for 3 years. Also in Father's home is M------, Father's Girlfriend's 13-year-old daughter; and D------, Father's Girlfriend's 10-year-old son. Father testified that L--- and M------ are inseparable when they are together; L--- testified that she and M------- are pretty close. Father observes that L--- and Demetri get along. Father stated that L--- and Father's Girlfriend also have a very close relationship; although, L--- claims Father's Girlfriend treats her differently than the other children in the home. Father has a tight knit family and L--- is particularly close with her grandparents, aunt A---, and cousins. L---'s relationship with the paternal side of her family suffered when she stopped speaking to Father between October 2016 and May 2017.
Father and L---'s relationship has been strained, but is improving. An incident occurred at L---'s dance recital in June 2016, in which Father believed Mother was sneaking L--- out of the venue to prevent him from seeing her. Mother and L--- told the Court that Father screamed at Mother who was 7 months pregnant at the time while L--- was in the back seat; Father denies that he yelled. Stepfather, upon hearing from Mother and L--- about what happened and upon seeing them crying in response, pulled up beside Father at a red light and a verbal altercation ensued between Stepfather and Father. Based on the accounts provided to the Court, it appears that Father screamed "I will fucking kill you" at Stepfather and flipped Stepfather off. L--- told the Court she observed the whole interaction between Father and Stepfather from the backseat of the car.
L--- stopped visiting and talking to Father in October 2016, after an incident occurred when Father was driving L--- to school. While there were multiple accounts for what transpired, it appears to the Court that L--- became extremely upset upon realizing she had packed a shirt that was not compliant with her school uniform. L--- called Mother, asking her to bring her the shirt, and Mother indicated she could not because she was taking care of her newborn. Father became frustrated with L--- and Mother; Mother and L--- both testified that Father was screaming. L--- was on the phone with Mother again, and Father was trying to get her off of the phone, and according to Mother, the phone call abruptly cut off. L--- told the Court that Father swatted the phone away from her, hitting her face in the process. Father denies that he made contact with L---.
After this occurred, L--- refused to see or speak to Father or anyone in his family. Father believes Mother was exercising undue influence over L--- and encouraging her to not have contact with Father. Mother testified that she would consistently tell L--- she had to see her Father, but L--- refused. L--- told the Court that she did not want to see Father because she was scared of his reaction and because he had threatened to refuse to allow her to return to Mother. Father denies making this threat. Stepfather also testified that L--- has shared concerns about Father with him, telling him there are times when she feels intimidated and frightened in Father's presence. She has told Stepfather and Mother a number of times that she would rather not go back to Father's. Stepfather and Mother both testified that they encourage L--- to maintain a relationship with her Father. L--- told the Court Mother and Stepfather never make disparaging remarks about Father in her presence.
In May 2017, Mother, Father, and L--- began seeing Dr. T------ to encourage reunification of Father and L---. Initially, L--- refused to go into Dr. T------'s office; however, upon Mother's urging, she eventually went in. L--- and Father have continued to have weekly sessions with Dr. T------, and both indicated that their communication has improved. Pursuant to the June 2017 Custody Order, L--- began to have week on, week off visitation with Father on June 9, 2017. While their relationship has improved, there are still arguments which occur regularly between them and L--- believes that Father invalidates her opinions and emotions.
L--- has a large and extended family that loves and supports her. It is evident that both parents care about her immensely. However, it is indisputable that she feels a closer bond to Mother than she does to Father. L--- and Father's relationship has been strained, not due to Mother's interference, but due to a clash between L--- and Father. L--- has observed Father behave in ways that have frightened her, such as the October 2016 incident and the dance recital incident. L--- and Father are continuing to work on their relationship with Dr. T------'s assistance. In particular, L---, Father, and Dr. T------ all indicated that there are several communication issues between L--- and Father which pose a barrier to the development of their relationship. Conversely, L--- feels that she can be open and honest with Mother. She indicated to the Court that she could not emotionally handle being primarily with Father due to the frequency with which they argue. The evidence presented is consistent with these conflicts frequently occurring and with these conflicts taking an emotional toll on L---. Accordingly, this factor weighs in favor of Mother. (4) The child's adjustment to his or her home , school and community;
Mother's family resides in a 4 bedroom home in Hockessin with a large backyard. L--- has her own room in the home. L--- told the Court that she enjoys Mother's home because she feels like she can say how she feels and can have space when she needs it. She also told the Court that Mother's home can get a bit crowded with the baby and that she can feel like she is not getting enough attention or not getting enough privacy.
Father's family resides in a 3 bedroom home in Middletown, where he has resided since July 2015. L---'s bed is in a section of the furnished basement. Father testified that L--- selected to have that room because it allowed her to have her own bathroom. L--- told the Court that she enjoys Father's home because there are no dietary restrictions and there is a television in the basement. However, L--- does not have privacy in the basement, as her room does not have doors, but instead has curtains, which L--- claims Father will often force her to keep open.
As indicated above, L--- attended H.B. du Pont last year and was on the honor roll. Mother testified that L--- is very happy there, gets good grades, and is well adjusted. L--- also testified that she enjoyed her school and wished to stay. Conversely, Father would like L--- to transfer to A.G. Waters for the 8th grade school year. Father testified that he believes it would be in L---'s best interest to meet students in Appoquinimink School District, so she can become adjusted to attend high school there for the 2018-19 school year. Father would like her to attend high school in Appoquinimink School District, because it tests higher than the high school she would attend within Red Clay School District. Additionally, Father claims H.B. du Pont did an unsatisfactory job of including him in L---'s education last year and does not have up-to-date technology. Father has not spoken to L--- about his desire for her to attend A.G. Waters since March 2016.
Upon being asked where she would like to go to school, L--- stated "anywhere but Appo". Father testified that he was concerned about what L---'s response would be upon finding out she would not be returning to H.B. du Pont and would instead be attending A.G. Waters. At H.B. du Pont, L--- is involved in clubs, was in the school play last year, and was selected to be in specialty choirs for the upcoming school year. She also has friends, although it appears she had an argument with several of her friends toward the end of the previous school year.
Based on the evidence presented, the Court believes that L--- is adjusted to both of her homes. The Court also finds that L--- is adjusted to attending H.B. du Pont, where she has friends, is involved in extracurricular activities, and receives good grades. By Father's own admission, he is concerned about L---'s reaction if she is told to change schools. It was particularly striking to the Court that Father would advocate so fiercely for L--- to switch middle schools when she will need to attend a new high school next year anyway. The reasons for Father doing so do not appear to be about L---'s best interest; but instead appear to be about his desire to have primary residential placement and his desire to exercise his final decision making authority. As addressed below, the Court does believe that Mother violated the September 2007 Custody Order by enrolling L--- in H.B. du Pont for 7th grade; however, at this point, with one year left before high school, it makes little sense to withdraw her from H.B. du Pont so she can attend a school in a community she has not primarily resided in previously, where the only individual she will know is Father's Girlfriend's daughter, and where she will not be able to participate in the activities she enjoyed last year and looks forward to this upcoming year. Father appears to not truly be considering what is best for L--- by attempting to remove her from a school to which she is adjusted. Accordingly, this factor weighs in favor of Mother.
(5) The mental and physical health of all individuals involved;
Both Mother and Father testified that they have good mental and physical health. Both parties have concerns about L---'s mental health. L--- began seeing Ms. C------ in April 2016 at Mother's initiative. Mother stated that she wanted L--- to begin seeing a counselor before she got into her teen years because she is a child of divorce and because Father was bringing multiple issues to her attention. Ms. C------ saw L--- every other week, and their last session was April 18, 2017 because L--- began seeing Dr. T------.
Dr. T------ began seeing L--- in April 2017 and met with L---'s parents prior to then. Dr. T------ claims the goal of her therapy sessions with L---, Mother and Father is to restore L---'s relationship with Father. Dr. T------ is the only therapist L--- is currently seeing. Mother believes Dr. T------ is only dealing with one portion of L---'s life and that L--- would benefit from being involved in additional therapy. Dr. T------ does not think it is necessary to meet with L--- and Father every week any longer, and recommends switching to bi-weekly and then monthly sessions. L--- told the Court that sometimes her sessions with Dr. T------ can be good; however, a lot of the time she feels shut down before she can finish getting her thoughts out.
Dr. T------ observed that L--- is slightly anxious, creative, verbal, energetic, fun, loving, and concerned about whether she can have a positive relationship with both of her parents. Ms. C------ testified that her impression is that L--- is a great, sweet, and bright girl who is very hurt and distraught about feeling pulled between her parents. Ms. C------ found that L--- was speaking about her parents in a normal way and had a pattern of speaking in extremes. Ms. C------ believes the best scenario for L--- would be spending time with both parties and not feeling any pressure from either party. Father would like L--- to have additional psychological testing; however, Father indicated that Mother has rejected this request.
On the weekend between the hearing dates, Father's Girlfriend found a note tucked into L---'s boot at Father's home, which Father characterized as suicidal. The letter stated: "If I never come back to this hellhole and someone goes through my stuff, please let me tell you a few things...Dad, I genuinely hate you and hope you die in a hole....if I'm dead, blame Dad. He genuinely makes me want to hurt/kill myself...it is not mom telling me what to say and do, and I'm fucking sick of him." Father called Dr. T------ to tell her about the letter, and she advised him to take L--- to Rockford Center for treatment immediately. L--- told the Court that she wrote the letter 2 to 3 weeks prior to it being found after she and Father got into a fight about cleaning her room. L--- stated that she was really upset about some things he said to her and she was not thinking logically.
R. Ex. 12.
The Court believes the parties have similar concerns for L---'s emotional and mental well-being. Mother testified that she would like to get L--- involved in additional therapy beyond the scope of what Dr. T------ is working on, which is compatible with Father's request for L--- to have additional psychological testing. Both Dr. T------ and Ms. C------ provided that L--- experiences anxiety and stress due to feeling stuck between her parents. The Court is concerned about the note L--- wrote and the degree of anger she feels when arguing with Father. This note aligned with the testimony presented that L--- and Father have a strained relationship and that she feels more supported and listened to by Mother. Because both parties appear to be concerned for L---'s mental health and because L--- feels more emotionally secure with Mother, this factor 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;
The parties made multiple allegations against one another concerning the other's compliance with their rights and responsibilities to L---. Mother testified to occasions where Father has behaved inappropriately and caused L--- emotional distress, such as the dance recital incident and the October 2016 incident. Mother also testified that Father has had minimal involvement with L---'s medical needs, attending only one pediatrician's appointment shortly after L--- was born. Finally, Mother alleged that Father has not been compliant with the term of the June 2017 Custody Order which restricts him from taking away L---'s phone. Mother testified that the phone has been an ongoing issue and Father will take it away or make her turn it off. Father testified that he liberally allows L--- to have her phone and has only taken it away on one occasion as a disciplinary measure when L--- did not clean her room. Father testified the phone is an ongoing issue because L--- will not get off of it and is constantly texting Mother throughout her time with Father. Father submitted evidence of extensive text messages between L--- and Mother occurring frequently throughout each day. Dr. T------ indicated that she has concerns about L--- having unfettered access to her phone because it interferes with the reunification of L--- and Father.
Father accuses Mother of alienating him from L---. Father testified that Mother did not encourage L--- to speak or visit Father between October 2016 and May 2017. Mother denies this allegation and provided that she repeatedly told L--- to talk to Father. L--- supported Mother's contention that she encouraged contact between L--- and Father. Father indicated that he made countless attempts to communicate with L--- during this time period; however, Mother would consistently respond that L--- did not wish to speak to him or anyone in his family. Mother alleged that Father contacted her a few times but not consistently.
Dr. T------ noted that Mother referred to Father as "bio dad" twice during a session, outside the presence of L---. Mother indicated that she did not mean "bio dad" to be derogatory, but that she comes from a complex family with many half-siblings, step-siblings, and in-laws and the term is often used within her family to distinguish its members. Additionally, Mother and Dr. T------ provided that Mother was using the term "bio dad" during a conversation in which comparisons were being made between L---'s relationship with Stepfather, who she also calls "Dad", and L---'s relationship with Father. Father also alleged that Mother failed to give L--- a handwritten card he sent to her for Easter 2017, during the time period when they were not speaking. L--- received a card from Father's family, but not the handwritten card from Father. L--- informed Ms. C------ that she did not receive the card when Ms. C------ asked about it. Ms. C------ e-mailed a copy of the card to Mother; Mother responded saying L--- did not receive the second card in the mail, however she would provide a printed copy of the card to L---. Ms. C------ believes Father sent the card, knowing he was desparate to talk to L--- and seeing a video recording of him putting the letter in the mailbox. Father testified he made this recording because he did not believe Mother would provide the card to L---. L--- told the Court that she received a copy of Father's handwritten card printed out by Mother, however she did not want to read it. Father also pointed to an exchange between Mother and L---, in which L--- referred to Father as "douche" and Mother seemed to ignore it.
Neither Dr. T------ nor Ms. C------ conducted an alienation evaluation to determine if Mother is an alienating parent and therefore do not have data to say that Mother is an alienating parent. However, Dr. T------ noted that L--- shows multiple signs of parental alienation.
Father also accuses Mother of refusing to co-parent. Mother alleged she does everything she can and tries to work out all concerns and issues with Father and to keep him apprised of L---'s events. The parties communicate only in writing. Father attributes this to a history of statements being used against him. Dr. T------ testified that there does not appear to be any co-parenting going on between the parties. Father particularly noted that Mother violated his right as final decision making authority on educational matters by enrolling L--- at H.B. du Pont despite correspondence from him saying his decision was A.G. Waters. Mother testified that she believed as primary residential parent she had the right to place L--- in the school within her district.
It is evident that the parties have numerous issues in co-parenting and communication. As Father did not present an alienation evaluation, the Court cannot conclude that Mother engaged in alienating behaviors. Further, the evidence suggests that Mother did not discourage L--- from visiting with Father and instead was unable to persuade their 13-year-old daughter to speak or see Father when she did not want to. The Court is not persuaded that Mother refers to Father in a derogatory way in L---'s presence nor that she withheld the Easter card from L---. The Court does agree that it is inappropriate for Mother to permit L--- to refer to Father as "douche" in their communications. The Court also agrees that the communications between Mother and L--- is excessive and at times manipulative. Several messages, including "don't forget me", "I miss hearing from you", and "your dad doesn't understand", as well as repeated mentions of it almost being time for custody exchange when L--- is telling Mother she is having a good time, insidiously impose guilt on L--- for not being with Mother or not being in constant communication with Mother. The Court believes it would be in L---'s best interest for Mother to reduce the amount of texts she exchanges during Father's custodial periods and to eliminate self-interested statements that would further cause L--- to feel guilty for being with Father. Additionally, despite Mother's interpretation of the extent of Father's final decision making authority, enrolling L--- in school when Father had selected a different school violated the spirit of the Order. The Court does not believe that Father violated the spirit of the Order regarding unlimited phone access by taking L---'s phone for a short period of time because she would not clean her room.
While the Court does not believe that Mother has alienated L--- from Father, the Court does believe Mother has engaged in undermining behaviors in violation of the Custody Order. Accordingly, this factor weighs in favor of Father.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Mother alleged Father is emotionally abusive. Dr, T------ and Ms. C------ both testified that there are no indications that Father has been physically, mentally, or emotionally abusive. Because no evidence or substantiation of domestic violence was presented to the Court, this factor is neutral. (8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Neither Mother, Father, Stepfather, nor Father's Girlfriend have a criminal history with the exception of non-DUI traffic violations. Therefore, this factor is neutral.
CONCLUSION
In deciding issues pertaining to custody and visitation under 13 D EL. C. § 722, this Court must balance the best interest factors. The Court has also held that some factors may be given more weight than others.
See Ross v. Ross, 992 A.2d 1237, 2010 WL 1404220 (Del. Apr. 7, 2010)(unpublished table decision).
Ross citing Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997) (noting that "[t]he amount of weight given to one factor or combination of factors will be different in any given proceeding. It is quite possible that the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations.")
The Court finds that it is in the best interest of the child for Mother to have primary residential placement and Father to have visitation every other weekend. According to the § 722 factors analyzed in the preceding paragraphs, the Court finds that a great majority of the factors are either neutral or weigh in favor of Mother. The Court gave particular weight to L---'s testimony, because it appeared well-reasoned and mature. Additionally, the Court considered L---'s mental health, trust in Mother, and strain with Father due to the amount that they argue and due to the behaviors she has observed in Father. Further, because Father did not offer expert testimony regarding a custody evaluation nor an alienation evaluation, there is no evidence that his request to have L--- without interruption for 3 months and to have primary residential placement thereafter are either reasonable or necessary. The Court does not believe it would be helpful for L--- to be taken from the parent she has been with primarily throughout her life while being placed in a different school in a different community with a parent she has a difficult relationship with against her wishes.
The Court also finds that it is in the best interest of the child for Mother to have final decision making authority in the event of disagreement after discussion. It is clear that the parties cannot co-parent and communicate effectively. The Court is concerned about Father's rationale for wanting to withdraw L--- from her current middle school to enroll in a new one, when she will again have to switch schools in the 9th grade. Although Father indicates this is so she can adjust to the community before high school begins, it appears to the Court that this is an exercise of control and power over Mother and L---. It is not reasonable to want to uproot L--- from her school in this manner. Accordingly, the Court does not believe that Father is making decisions in L---'s best interest, but instead is making decisions in his own. The Court therefore believes that Mother is in a better decision to make educational, extracurricular, and religious decisions in L---'s best interest. The Court does not find that Stepfather should be prohibited from being involved in custody exchanges. The PFA is no longer place and no physical violence has occurred between the parties. Finally, the Court finds L--- should continue to have reasonable phone access; however, this does not mean that she should have access to her phone 24/7. It is important that both parents are able to discipline and engage L--- without the intrusion of her phone. Therefore, pursuant to 13 Del. C. § 722 the Court orders the following:
1. Mother and Father shall have joint legal custody of L--- with Mother having final decision making authority regarding all decisions regarding medical, education, extracurriculars, and religion if an agreement cannot be reached.
2. Mother shall have primary residential placement of L---.
3. During the school year, Father shall have visitation with L--- every other weekend from Friday at 5:30PM until Monday when school begins.
a. Custody exchange location shall occur by mutual agreement of the parties.
b. Stepfather may transport L--- for custody exchange
c. Midweek visits may occur by agreement of the parties. If they cannot agree, then Father shall have Wednesday dinner visits with L--- from 5:30 p.m. until 8:00 p.m.
4. During the summer, Father and Mother shall have shared custodial time with L--- on week on, week off schedule with exchange on Friday. Father's first week custodial week during the summer shall commence on his first scheduled Friday visitation after school ends.
5. The parties shall not make disparaging remarks about the other in L---'s presence. The parties shall discourage L--- from making disparaging remarks about the other parent in their presence.
6. L--- shall have reasonable access to her phone in order to initiate contact with either parent at anytime. Both parties have the right to take her phone as a form of punishment, but not as a form of control.
a. Mother shall not initiate calls and texts with L--- when she is with Father; Father may initiate calls and texts when L--- is with Mother.
7. The attached standard visitation guidelines are continued
8. Because Mother violated the terms of the September 2007 Custody Order by enrolling L--- in a school in contradiction to Father's wishes as the parent with final decision making authority, Father's Rule to Show Cause Petition is GRANTED. Mother shall pay Father $250 in attorney's fees.
9. Since this Order is entered after a full hearing on the merits, any future modifications thereof shall be made pursuant to 13 Del. C. § 729(c).
Section 729(c) provides:
(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:
(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.
/s/ _________
Mark D. Buckworth , Judge MDB/jpg 8/18/17
cc: Edward Curley, Esq.
Staci Pesin, Esq.
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