Opinion
File No.: CN16-02507 Petition No.: 18-22681 Petition No.: 18-18456
01-10-2019
Re: E. I. D. v. Y. L. S.
Jill S. DiSciullo, Esquire
Morris James LLP
500 Delaware Ave., Suite 1500
P.O. Box 2306
Wilmington, DE 19899 Keith M. Horner, Esquire
Horner Law, LLC
P.O. Box 558
Claymont, DE 19703
LETTER DECISION AND ORDER
Petition Type: Custody Modification Dear Ms. DiSciullo and Mr. Horner:
BACKGROUND INFORMATION
The Court held a teleconference regarding the above-referenced petition, which seeks modification of the Court's February 9, 2018 Custody and Visitation Order. The Court requested that the parties submit legal memoranda on the issue of whether E. I. D. 's (hereinafter E. D. is referred to as "Father") request to amend the travel restrictions in the February 9, 2018 Order was a modification of custody or of visitation. Since the last Court Order was issued on February 9, 2018 and Father filed his Petition to Modify Custody on August 6, 2018, there would be a significant difference in the legal standard applied for the petition. Father filed the Petition as a modification of custody but the only relief requested was a lifting of the travel restrictions to allow Father to travel to Turkey with the parties' children Y. , born , 2014 and C. , born , 2013. Father argues that the travel restriction is a part of the visitation provisions and that his request is a modification of visitation while Y. L. S. (hereinafter Y. L. S. is referred to as "Mother") argues that international travel requiring passports and visas is a custody decision and therefore modification is a custody issue.
ANALYSIS
The Court suggested that the parties to start by looking at the Supreme Court decision in Morrissey v. Morrissey, 45 A.2d 102 (Del, 2012). In Morrissey, the Court dealt with the issue of whether a stipulation and order signed by the parties and the Court concerning limitations placed on international travel was modifiable by contract principles or by the best interest of the child standard of 13 Del. C. §722. The Court concluded that the modification language of §729 and §722 applied. In that case, since the original order was done by consent, the "best interest" standard would apply regardless of whether or not the provision was a visitation or a custodial provision. However, in arriving at the conclusion that the statutory modification language and not contract principles applied, the Court discussed the nature of travel restrictions in a custody agreement.
Specifically, the Delaware Supreme Court stated:
Travel during parental visitation is an issue that concerns visitation and therefore subject to judicial review. When parents have joint custody, the parents must communicate and try to reach an agreement regarding the major decisions concerning their children. If the parents cannot agree on the determination of a major decision, the parties can submit their dispute to the Court.The Morrisey Court goes on to state that "a visitation schedule includes not only when visitation occurs but how it occurs." The Delaware Supreme Court also noted that Family Court has held that travel is a major decision. The Court uses language that suggests that it is both custody and visitation.
Morrisey v. Morrisey, at 104.
Id. at 105.
Id.citing dicta in D.E.W. v. R.W.E., Del. Fam., File No. CN07-03739; 07-19392 (April 23, 2008), Newell, J.
There are aspects of travel that relate to custody and there are aspects of travel that relate to visitation. "Pursuant to 13 Del. C. §728, the Court may modify a parent's custodial authority if it believes that it is in the best interest of the children." Generally, the Court does not place restrictions on travel, provided the parties can meet the schedule set forth in the custody and visitation order. However, the State Department of the United States requires that both parents apply for passports if they have joint legal custody, and other countries' visa requirements may require written authorization for travel for entry into certain countries, even with joint custody and a valid passport. In the present case, the children's passports were held by Wife's counsel on an interim basis by agreement. Due to Father's concerns about Mother taking the Children to Taiwan, and due to both parties possessing dual citizenship with Canada and another country, the Court entered the travel restriction on both parties, after analyzing the best interest of the child factors and assessing the potential risk involved in permitting travel outside the United States and Canada. Thus, the Court entered the February 9, 2018 Order, restricting the parties' custodial authority regarding international travel, after applying §728. Father's argument that this is only a modification of where his visitation takes place does not take into consideration the fact that Mother's travel is also limited by this provision. If read as proposed by Father, the parties would be subject to two different modification standards on this issue. The restriction was not solely regarding Father's travel but also regarding Mother's travel. Mother does not have visitation; she has primary residence. Neither party reargued this restriction and this issue was not raised in the appeal filed by Father to the Delaware Supreme Court.
D.E. W. v. R.W.E., at 5.
Id. (noting that the Court will not insert itself into day-to-day issues). --------
Pursuant to 13 Del. C. §729(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 residence may be modified only as follows:
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.
Since the international travel restriction apples to both parties, and as traveling internationally generally requires the consent of both parents to obtain or renew a passport, international travel restrictions are a legal custody matter. Since the Court just issued a written decision and order following a full custody hearing on the merits four months before this petition was filed, the §729(c)(1) standard applies.
CONCLUSION
As international travel is a joint legal custody decision and as the Court, based upon a concern raised by Father, previously restricted the parties' custodial authority pursuant to 13 Del. C. §728 following a full hearing on the merits, and as the February 9, 2018 decision and order was reargued and appealed on numerous other grounds and affirmed, the Court will apply the heightened standard set forth in §729(c)(1) to the pending Modification of Custody petition.
IT IS SO ORDERED this 10th day of January, 2019.
Very truly yours,
FELICE GLENNON KERR, Judge FGK:vm Date emailed: 1/10/19
Date mailed:__________