Opinion
CK12-02496
02-27-2024
J. B., Petitioner, v. M. B., Respondent. In the Interest of: C. B. (DOB __/__/08)
Petition for Specific Performance Petition No. 22-25820
ORDER
JAMES G. MCGIFFIN JR., JUDGE
Before the HONORABLE JAMES G. MCGIFFIN, JR., JUDGE of the Family Court of the State of Delaware:
On January 3, 2024, the Court convened on a Petition for Specific Performance Under a Separation Agreement, which the parties agree to treat as a Petition - Rule to Show Cause. J. B. (Father) filed the petition against M. B. (Mother). Father appeared represented by Erin Fitzgerald. Mother appeared represented by Felicia Brownell.
At issue is Mother's compliance with the August 9, 2021 Custody Stipulation and Order, specifically regarding Father's parenting time schedule and Mother's unilateral decision to move the youth from her home school district to a different school district.
A summary of testimony.
MOTHER
Mother and daughter had little contact between April 2020 and October 2020. On February 23, 2021, the parties entered an Interim Stipulation and Order vesting Father with sole custody and placement of the youth. After that period of Mother-daughter separation the parties entered the August 9, 2021 Order. That order requires the youth to alternate parenting time weeks with Mother and Father. Mother did not press for strict adherence to the Order but allowed the youth to decide when she would spend time with Mother, as an accommodation to the youth because 15 months of little to no contact had passed. In October 2021, while with Father, the youth called Mother to pick her up from Father's home. The youth reported that she and Father needed a break. Father allowed the youth to leave. She did not return to Father's home.
Father's attempts to resume contact with the youth have failed.
The youth complained to Mother she was bullied at school in S.. In November 2021 the youth broached the subject of changing schools with Mother. Mother mentioned the issue to Father in February 2022. Mother enrolled the youth in the A.. District June 21, 2022.
Mother maintains that she encouraged the youth to communicate openly with Father about the school issue.
FATHER
The parties entered an agreement, which became an order, on August 9, 2021. That order requires the youth to alternate parenting time weeks with Father and Mother. When the order entered the youth was enrolled in the S. School District. The parties stopped honoring the week on/week off schedule in October 2021.
The youth began to express to Father her interest in attending school in the A.. District, where her siblings attend school. These conversations did not go well. He refused to discuss the subject with the youth. Father pursued his parenting time, but the youth resisted. When Father looked to Mother for assistance in resuming the agreed and ordered plan, Mother denied responsibility for involvement in Father's parenting time issues. She advised Father that the youth decided for herself whether she would spend time with Father. Mother refused to act as a "facilitator" for Father's contact with the youth.
Father and Mother communicated to a limited degree about the youth's issues with her present school and interest in a different school. Father clearly indicated he did not agree to a change in schools. He advised Mother he did not discuss this "adult issue" with the youth, as he decided such a conversation was inappropriate. But Father complained to the youth about his difficulties in co-parenting with Mother in an October 6, 2022, text message exchange, violating his own rule.
Father indicated he does not seek to move the youth back to the S. schools.
Father and the youth have participated in two remote joint therapy sessions. Father wants to return to the shared placement schedule and hopes that the therapist can assist with this process.
Father claims he is a victim of systematic parental alienation.
THE YOUTH
On January 3, 2024, I interviewed C. B., in person and away from counsel and the parties. C. did not appear comfortable with the idea or the setting of the interview when we began, but she appeared more comfortable as we talked.
C. is in the 9th grade at O. High School. Her favorite subject is English and Language Arts. Her least favorite subject is biology. She played volleyball for the school last fall and participated in the Business Professionals organization. C. also likes to draw.
When I asked if she knew why we were talking, she explained that she understood she was to voice her opinion. I asked her to do so. She wants to live with Mother full-time and to see Father as she chooses. Why does she feel this way? Father "triggers" her. I asked her to explain what she meant by "trigger." During the 15 months she lived with Father she "went through a lot." Father "shipped her off to New York" for a week at a time. Father left her in the care of her maternal relatives or paternal grandparents. She engaged in self-harming behavior. Father's response to her behavior was to express disappointment in her.
C. pointed out that Mother's response to her was comfort. Mother arranged for therapeutic support, which has been very helpful.
C. complained that Father spends time with his girlfriend instead of with her. C. is comfortable with the girlfriend, though not with the girlfriend's children, who also live in Father's home.
C. advised me that Mother encourages her to visit with and contact Father.
I found C. a mature, thoughtful, and articulate youth. I note she presents with a skin pigmentation issue on her face that looks to me like Vitiligo, which may explain some of what happened on the S. school bus when she experienced an altercation with other students who called her "a white girl."
I am not competent to make any diagnosis.
DISCUSSION
Mother is in the wrong for something she did and something she did not do.
Mother registered the child in a new school without Father's consent. Mother reached out to Father once, on February 7, 2022, and asked to discuss this issue. The child reported experiencing racial discrimination by other students. Father agreed to discuss the matter and offered thoughts on the pervasive nature of racism. He indicated he would research the event. On June 27, 2022, Father advised Mother he would not "allow" the child to change schools. The parents had no discussion. Mother made the change unilaterally. Neither parent put the youth's best interest to the fore on this question. Mother was happy to acquiesce to the youth's desire. For Father, the issue was respect for his authority.
Mother must do something to involve Father before making a decision to change schools. She did not make the case for change to Father. She did not arrange any facilitated discussion about the question. She did not organize a family meeting. She did not send Father information about the proposed school. She did nothing. That course violates the spirit of the statutory law.It also violates the joint custody arrangement and order.
13. Del. C. § 701(a): 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. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child's custody or any other matter affecting the child.
"When an asserted violation of a court order is the basis for contempt, the party to be sanctioned must be bound by the order, have clear notice of it, and nevertheless violate it in a meaningful way."Upon the showing of a prima facie case, the contemnor has the burden to demonstrate the reason they were unable to comply. Mother had notice of the order, which she signed, and which bound her. She violated the order in a meaningful way. Mother offered no reason she could not comply.
TransPerfect Global v. Pincus, 278 A.3d 630, 644 (Del. 2022).
Id., at 645.
Mother was wrong to change the child's school. Mother is in contempt.
On the issue of Father's parenting time, I note that the August 9, 2021 Order set the wrong tone for the parenting schedule. It provided that the child was responsible for deciding where she would live for the last three weeks of August 2021. She was twelve years old at that time.
Father's suggestion that he is the victim of systematic parental alienation rings hollow in light of the fact that he was complicit in original burdening of the youth with decision authority.
The parenting time decision is a burden from which a child should be spared. And once the child understands that the authority and responsibility for choosing is their own, demanding the child relinquish that power is problematic.
Despite making the child's compliance with the parenting schedule a challenge, both parents are bound by that schedule, and bound by the statutory mandate to "foster the exercise of a parent's joint or sole custodial authority and the maintenance of frequent and meaningful contact, in person, by mail and by telephone, between parents and children . . .." Mother committed to the path of least resistance with her daughter. She did nothing, and she was wrong to do nothing. She transferred to the youth the responsibility for organizing Father's parenting time schedule, notwithstanding the existence of an ordered schedule.
Mother did not empower the youth when she abdicated her responsibilities under the parenting time order. She burdened the youth with responsibility beyond what is reasonable for a person of that age. Sadly, we cannot turn back the clock.
Mother's failure to encourage the child to spend time with Father impeded Father's visitation rights. In this circumstance, the statute requires fee shifting.
13 Del. C. § 728(b): If the Court finds, after a hearing, that a parent has . . . impeded the rights of a parent or a child with respect to the exercise of . . . visitation . . . with the child, the Court shall order such person to pay the costs and reasonable counsel fees of the parent applying for relief under this section.
Father is also at fault in agreeing to transfer some authority to the youth and in failing to diligently pursue parenting time.
IT IS ORDERED that M. B. is in civil contempt of court.
IT IS FURTHER ORDERED that M. B. impeded J. B.'s visitation with their daughter.
The Court encourages B., B., and the youth to engage a behavioral or mental health professional to help them pave the way to an improved relationship between Father and daughter allowing the youth to share her time equally with both parents.
B. shall be responsible for 66% of B.'s reasonable attorney fees for preparing and prosecuting this action.
Ms. Fitzgerald shall submit the appropriate affidavit.
IT IS SO ORDERED.