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J T W v. D J

Family Court of the State of Delaware In and For New Castle County
Dec 22, 2016
File No(s) CN01-08231 (Del. Fam. Dec. 22, 2016)

Opinion

File No(s) CN01-08231 CPI No(s) 16-29955

12-22-2016

J- - - - - T- - - - - - - - - - - - - - - - - - - W- - - - - - , DE - - - - - Petitioner v. D- - - - - J- - - - - - - - - - - - - - - - - - - V- - - - - - -, VA - - - - - Respondent

Petitioner Attorney Pro se Respondent Attorney Pro se


CIVIL DISPOSITION

Nature of Proceeding
Petition - Rule to Show Cause Petitioner Attorney
Pro se Respondent Attorney
Pro se

Before the HONORABLE JENNIFER B. RANJI, JUDGE of the Family Court of the State of Delaware:

INTRODUCTION

Pending before the Court is a Rule to Show Cause Petition filed on September 29, 2016, by Petitioner, J- - - - - T- - - - - - ("Mother"), pro se, against Respondent, D- - - - - J- - - - - - ("Father"), pro se. Father lives with the parties' two daughters in Virginia, while Mother lives with her mother in Delaware. Mother alleges Father is in contempt of the Order entered August 5, 2016, for not allowing her to talk on the phone with the parties' daughters M- - - - - - T- - - - - - ("M- - - - - -"), born - - - - - - - - 1999 and R- - - - - - T- - - - - - ("R- - - - - -"), born - - - - - - - - - -, 2001, (collectively, "the children" or "the girls") on Wednesday evenings in August and September 2016. Along with her Petition, Mother filed a Motion and Affidavit for Emergency Ex Parte Order, which was denied. The Court, in denying the ex parte request, gave the parties thirty days to submit their position on whether the Court should transfer jurisdiction to Virginia. Neither party did so. Father filed an Answer to Mother's petition on October 24, 2016.

PROCEDURAL HISTORY

The parties have a significant history with the Court. On June 26, 2008, the Court entered a Custody Order granting the parties joint custody of the children and awarding Father primary physical residence of the girls in Virginia. This Order followed the removal of custody of the children from Mother by the Delaware Division of Family Services ("DFS"). The Order allowed Mother to have supervised visitation in Virginia one weekend per month, a one week supervised visit in Virginia during the day but not overnight during every summer, and phone contact with the children. Since the June 26, 2008 Order was issued, the Order has been modified several times, one of which occurred on November 4, 2013. In the November 4, 2013 Order, the Court awarded Father primary residency and permitted Mother visitation the third weekend of every month from September through June, with visits alternating between Virginia and Delaware. Mother was permitted visitation with the children for the full month of July and the Order stated neither parent was to prevent telephone contact with the other parent. On August 5, 2016, the Court issued an Order, modifying the previous Order to allow Mother phone contact with the children every Wednesday at 7:00 p.m. The Court, in addition, no longer required Father to travel to Delaware for Mother's visitation with the children. Mother was required to travel to Virginia each time.

See J- - - - - T- - - - - - v. D- - - - - J- - - - - - , CN01-08231; 16-06622 (Del. Fam. Ct. Aug. 5, 2016)(Order)(J. Ranji).

Since the entry of the original custody order in this matter, Mother has filed 16 Rule to Show Cause Petitions and Father, on two occasions, filed requests to transfer jurisdiction to Virginia, where he and the children have lived for over 8 years now. The most recent hearing on a Rule to Show Cause filed by Mother was just six months ago, on June 21, 2016, during which the Court considered allegations quite similar to those in the current Rule to Show Cause Petition regarding Father's alleged refusal to permit the children to visit or speak on the telephone with Mother. For that hearing, in addition to Father traveling to Delaware, the Court required that Father bring the girls so that the Court could interview them regarding Mother's allegations. In light of the girls' ages and nature of the allegations, the Court was reluctant to make a finding without hearing from them. The Court also wished to speak with the girls about their positions on the ongoing claims by Mother that Father was withholding the children from her.

Following the June 21st hearing, the Court did not find Father in contempt, noting that it could not find that Father had failed to follow through with the Order's provisions. The Court further noted its concerns regarding Mother's credibility and the consistency of the testimony by Father and the children regarding Mother's constant failure to follow through on her part, which meant not calling at the scheduled time or showing up for visitation.

Given the significant volume of Rule to Show Causes filed in this case, the nature of Mother's claims, and the importance of the children's statements at their ages, the Court returns to the question raised twice previously by Father, regarding whether jurisdiction over this Rule to Show Cause, and future Rule to Show Cause and custody related actions, is more appropriate in Virginia.

DISCUSSION

Jurisdiction over child custody matters is governed by the Delaware Uniform Child Custody Jurisdiction Enforcement Act ("UCCJEA"), codified in Chapter 19 of Title 13 of the Delaware Code. Pursuant to the UCCJEA, despite the fact that the children have not lived in Delaware for over 8 years, Delaware has continuing home state jurisdiction over this custody matter, as Mother continues to live in Delaware. Title 13, Section 1921 of the Delaware Code states, in relevant part:

(a) Except as otherwise provided in § 1923 of this title, a court of this State which has made a child custody determination consistent with § 1920 or § 1922 of this title has exclusive, continuing jurisdiction over the determination until:
(1) A court of this State determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) A court of this State or a court of another state determines that the child, the child's parents and any person acting as a parent do not presently reside in this State.
13 Del. C. § 1921 (emphasis added).

Delaware, therefore, continues to have exclusive continuing jurisdiction over modification of the custody petition, absent, inter alia, an Order by this Court under Section 1926 that Delaware will relinquish jurisdiction due to a finding that Delaware is an inconvenient forum.

13 Del. C. § 1926 states, in part,

(a) A court of this State which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.

Importantly, however, the Court notes that the current action is not one for modification of the underlying Custody Order but for enforcement of it. Therefore, based on the UCCJEA's definition of "child custody proceeding," Section 1926's inconvenient forum provisions do not apply to this action.

See 13 Del. C. § 1902(4); see also In Interest of Shockley, 611 A.2d 508, 513-515 (Del. Fam. Ct. 1992).

The Court, however, may dismiss the Rule to Show Cause petition under general forum non conveniens principles, as opposed to those explicitly outlined in the UCCJEA. The factors to be considered in deciding whether to invoke the doctrine of forum non conveniens are set forth in General Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964). These factors are: (1) The applicability of Delaware Law; (2) the relative ease of access to proof; (3) availability of compulsory process for witnesses; (4) dependency or non-dependency of a similar action or actions in another jurisdiction; and (5) all other practical considerations which would make the trial easy, expeditious, and inexpensive. The Court will consider each in turn.

Richard C.L. v. Lalette C., 1990 WL 34699, at *5 (Del. Fam. Ct. Feb. 13, 1990).

I. Applicability of Delaware Law

Regarding the first factor, applicability of Delaware Law, as it relates to the enforcement of the Custody Order, the applicable law would be that of the State in which the Order is enforced. This means that Virginia law would govern the enforcement of the underlying Custody Order, since Father and the children reside in Virginia. There is no issue, therefore, with a court of another state needing to interpret and apply Delaware law.

See 13 Del. C. § 1932(b). --------

II. and III. Relative Ease of Access to Proof and Availability of Compulsory Process for Witnesses

The second and third factors - relative ease of access to proof and availability of compulsory process for witnesses - weigh heavily in favor of transferring jurisdiction to Virginia. As noted above, the underlying issue in virtually all of Mother's Rule to Show Cause Petitions has been whether Father is obstructing contact or Mother is failing to comply with the Order by not calling or visiting the children. Given the nature of Mother's accusations in this and prior Rule to Show Cause Petitions, the testimony of Father and interviews with the children are critical to the Court's consideration of this and likely future Petitions. The travel to and from Delaware for Father and the girls is quite clearly more burdensome than the burden on Mother to travel to Virginia. First, the number of travelers is different, with three people having to travel to Delaware versus one party having to travel to Virginia. Second, Mother has been unemployed throughout most of the children's lives, while Father is employed and the children are in school, making travel for Mother less disruptive than it is for Father and the girls. Third, and perhaps most important, is the fact that requiring two young girls to travel multiple hours each way to attend a Court hearing creates a significant burden. The girls must either miss school or the hearing must be scheduled on a day that they are off from school. If the need to respond to a Rule to Show Cause Petition was something that only occurred a couple of times over the full course of the custody order being in effect, such travel would not be a significant issue. But, as noted above, Mother has averaged two Rule to Show Cause Petitions per year for eight consecutive years. While the girls have not needed to participate in each hearing, and in fact not every petition went to a hearing, the fact remains that Mother engages in a significant amount of litigation that, if it continues, will require that the girls travel to Delaware for multiple hearings between now and the time that they turn 18.

In addition, given that Father and the girls have lived in Virginia for eight years, and given the nature of the allegations which are based on actions (or inactions) in Virginia, there are other witnesses and evidence located in Virginia which the Court believes would be helpful to making a decision in this and other Rule to Show Cause Petitions. For example, Mother has at various times alleged that R- - - - - - has run away from Father's home. Father has stated that R- - - - - - does not run away, but stays over her friend's house for periods of time. This is a circumstance in which it would be helpful for the Court to hear directly from Child Protective Services in Virginia and perhaps order the provision of certain services to address any issues identified. The Court could also benefit from hearing from R- - - - - -'s friend's parents to gain their understanding of the situation. Mother also stated in a former Rule to Show Cause that she has had to call Virginia police to assist in obtaining the children from Father and she has made allegations for which it would be helpful to hear from the children's school and Father's current wife. All of the aforementioned individuals or agencies are located in Virginia.

Given the volume with which Mother files Rule to Show Cause petitions, the need to hear testimony from witnesses located in Virginia and, most notably, the fact that two key witnesses are young girls who are in school and must travel several hours to Delaware for any hearing the Court holds, the Court finds that factors two and three weigh heavily in favor of a transfer to Virginia.

IV. Dependency or Non-Dependency of a Similar Action in Another Jurisdiction

Regarding the fourth factor, dependency on a similar action, throughout the 8 years of significant litigation regarding enforcement of the Court's Orders, only one hearing on a Petition to Modify Custody has been held, and neither party has filed a Petition to Modify Custody since 2013. While child support matters have been heard in Delaware, those matters are quite separate and distinct from the matters related to custody and are not heard by a Family Court Judge but by a Family Court Commissioner, such that there is no overlap between the child support and custody cases. There are not any pending matters, therefore, that would be impacted by or that would impact the transfer of this case.

V. Practical Considerations Which Would Make the Trial Easy, Expeditious, and Inexpensive

The Court finds that any trial or hearing on the Rule to Show Cause would be easier, more expeditious and less expensive if held in Virginia, where three of the four parties live and where records and other witnesses can more easily be obtained to substantiate or refute Mother's concerns.

CONCLUSION

The Court recognizes the import of a plaintiff's right to have their choice of jurisdiction upheld, as well as the UCCJEA's rejection of the notion that jurisdiction must be transferred simply because the child(ren) and one parent live elsewhere. On the unique facts of this case, however, this Court concludes, after consideration of the factors set forth in General Foods, 198 A.2d 681 (Del. 1964), that the doctrine of forum non conveniens should be applied and the Petition should be dismissed. To not apply the doctrine would mean that two young girls will, for the second time in less than one year, accompany their father on a multi-hour trip to Delaware for a hearing on issues very similar to those on which they were questioned at the prior hearing, while evidence and resources that could be helpful to the Court and to the parties remain in Virginia.

The Court, therefore, declines jurisdiction over this matter, finding that Delaware is a forum non conveniens for enforcement of the Custody Order. This matter is hereby DISMISSED.

IT IS SO ORDERED.

/s/ _________

JENNIFER B. RANJI, JUDGE JBR/jls
Xc: file, parties,
Date Mailed: 12/22/2016


Summaries of

J T W v. D J

Family Court of the State of Delaware In and For New Castle County
Dec 22, 2016
File No(s) CN01-08231 (Del. Fam. Dec. 22, 2016)
Case details for

J T W v. D J

Case Details

Full title:J- - - - - T- - - - - - - - - - - - - - - - - - - W- - - - - - , DE - - …

Court:Family Court of the State of Delaware In and For New Castle County

Date published: Dec 22, 2016

Citations

File No(s) CN01-08231 (Del. Fam. Dec. 22, 2016)