Opinion
CN13-05930 Petition 20-24264
01-20-2022
J.G. v. C.G.K.
Petition to Modify Visitation: N----- G-------- (M) (DOB: --/--/----)
Trial concluded and child interview conducted, ready for decision: December 17, 2021
LETTER DECISION AND ORDER
Robert Burton Coonin, Judge
Dear Mr. G -------- and Ms. G --------- K -----, This is the Court's decision regarding the Petition to Modify Visitation filed by J---- G-------- ("Father") against C ------ G --------- K ----- ("Mother") in the interest of minor child N ----- G--------, born ------- --, ---- ("Child").
Procedural History
In March 2019, this Court granted Mother and Father shared residential placement of Child. Due to concerns related to transportation, Father filed to modify his visitation with Child in July 2019, by using a Petition to Modify Custody. This Court issued a decision modify the parties arrangement on May 8, 2020, following trial. On May 18, 2020, Father filed a Motion for Reargument seeking for the Order to reflect that the modification request was in fact for visitation and not for custody and therefore not subject to a 13 Del. C. § 729 review, among other requested modifications. In the Order on the Motion for Reargument dated July 30, 2020, the Court acknowledged that those proceedings were to modify the visitation schedule and not the custodial arrangement.
Father filed his Petition to Modify Visitation on November 2, 2020. On December 8, 2021, the Court held a final hearing on the Petition. The Court took testimony from Mother, Father, and Father's wife, J ------- G -------- . At the conclusion of the hearing, the Court determined it was necessary to interview the Child. The Court interviewed N ----- G -------- on December 17, 2021.
Background Facts
Mother and Father have an extensive history before this Court. The parties were in a relationship previously and had one child during that time, the Child subject to these proceedings. The parties previously held a shared placement arrangement whereby Father had Child every other weekend and every Monday through Wednesday morning, and Mother had every other weekend and every Wednesday through Friday morning. Father then sought to modify that arrangement due to difficulties he was having transporting Child. This Court then modified the parties visitation in 2020. During the school year when school was fully remote, the parties were to maintain that shared arrangement. The parties also maintained that shared arrangement during the summer months. During the school year when school was in person, Mother was to have Child primarily, while Father had visitation every other weekend. Father now contends that his prior issues regarding transportation have resolved, and Father seeks to revert back to the prior shared schedule.
Discussion
For the sake of judicial economy, the Court will not repeat in detail all of the testimony it can obtain from the record, but it will note the salient testimony as it pertains to the required statutory analysis. Father's Petition is again requesting to modify the visitation schedule of Child, as he did back in June 2019. Following a hearing on that Petition and subsequent Motion for Reargument, this Court found that that type of request is treated as a modification to visitation, not to the custodial arrangement, and thus was not subject to the higher standards of analysis under 13 Del. C. § 729(c). The Court treats this present action the same, as a modification of visitation. Pursuant to 13 Del. C. § 729(a) , in making a determination on a request to modify parental visitation, the Court must consider the best interests of the child and whether they would be served by a modification in accordance with the standards set forth in 13 Del. C. § 728(a) . In determining the best interest of the child, the Court utilizes the factors set forth in 13 Del. C. § 722. The Court has held that some factors may be given more weight than others in Court's analysis. The factors are as follows:
13 Del. C. § 729(a): An order concerning visitation may be modified at any time if the best interests of the child would be served thereby in accordance with the standards set forth in § 728(a) of this title.
13 Del. C. § 728(a): 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.
(1)The wishes of the child's parent or parents as to his custody and residential arrangements;
Mother is seeking to maintain her primary residential placement during the school year. Father is seeking to reestablish the 2/2/3 shared residential placement schedule during the school year, as previously existed.
The Court finds this factor is neutral as the parties have taken opposing positions.
(2)The wishes of the child as to his custodian(s) and residential arrangements;
The Court interviewed the Child involved in this matter, N ----- G -------- . In the child interview, N ----- indicated to the Court that he is comfortable going back and forth between Mother and Father. N ----- further indicated that he would really like more time at Father's home, as he would have more time with his father that way. N ----- indicated that he feels the same level of comfortability in both Mother and Father's home. N ----- continued stating that the two homes do not feel different, it is just that there are different family members in each house.
The Court finds this factor weighs in favor of Father having increased visitation with Child by way of a shift back to the shared residential placement arrangement during the school year.
(3)The interaction and interrelationship of the child with his 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 person who may significantly affect the child's best interests;
Child's Relationship with Mother and Mother's Household:
Mother currently has primary residential placement of Child during the school year. Little testimony was presented at trial about Mother and Child's relationship. Child spoke well of his Mother in the child interview. When at Mother's house, Child will play video games, and on the trampoline. Child also plays cards with Mother occasionally.
Child also spoke well of Mother's husband A ----- . Child did indicate that sometimes A----- plays too rough with him, which he does not particularly like.
Child's Relationship with Father and Father's Household:
Father has shared residential placement of Child during the summer months and then has Child every other weekend during the school year. Child spoke well of Father and Father's Wife. Child indicated that he and Father have similar interests in comics, television, and music. Child also stated to the Court that he speaks with Father almost daily over the phone. Father also has other children, whom Father believes have been impacted by seeing less of Child.
The Court finds this factor weighs in favor of Father having increased visitation with Child by way of a shift back to the shared residential placement arrangement during the school year.
(4) The child's adjustment to his home, school, and community;
The parties have maintained an arrangement whereby Mother would have primary residential placement during the school year and Father would have every other weekend visitation, while during the summer months the parties would revert to the 2/2/3 shared schedule. This arrangement has been ongoing for over a year now at this time. By all accounts, the present arrangement has been going well, though Father would like additional time with Child.
Mother testified that she recently permitted Child to begin to participate in a bowling league, but that when Child is at Father's home, he has not been able to participate in that activity. Mother continued stating that she has reached out to Father to see if Father would take Child to bowling, but Father did not respond. Child began bowling in the three weeks prior to the hearing. Bowling takes place every Saturday, but should Child miss a Saturday, he is able to participate in bowling on Wednesday of that week. Child also has playdates after school and goes to his friend's house after school when at Mother's home.
When Child is at Father's home, he is not permitted to have his cell phone. Father explained this is because he does not like how Child acts when he has his phone around, Child appears anxious when he has his phone, and Father does not believe it is necessary for Child to have it. Father has acknowledged the possibility of a shift in attitude towards a cell phone for Child in the future, based on his age. Child is permitted unrestricted access to his cell phone at Mother's home, whereas he has been told not to bring his phone to Father's. N ----- indicated that it does not bother him that he is not permitted to have his phone at Father's home.
The Court finds this factor slightly favors maintaining the present arrangement given Child's adjustment to it and Child's access to extracurriculars at Mother's, however the Court notes Child's indifference to the lack of his cell phone at Father's home.
(5)The mental and physical health of all individuals involved;
No evidence of the parties, Child's, or other household members mental and physical health has been presented by either party that would impact the Court's determination as it relates to Father's visitation. Therefore, the Court finds this factor neutral to its analysis.
(6)Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
The current school year residential arrangement arose due to transportation issues Father was having, that required a shift in the school year arrangement to Mother having primary placement during the school year. Father testified that those previous issues have now been resolved. Father stated that he is now permitted to transport Child in his work vehicle, as such was approved by his employer's Vice President of Operations. Father's Wife also is now able to transport Child to and from school as her job has transitioned fulltime to remote work from the home.
Child is currently attending -- ------ ------ ------ in the --- ---- ------ --------, an estimated 45 minutes from Father's home and an estimated 15 minutes from Mother's home. Depending on traffic, Father will either take Child directly to school, as the school's doors open early, or will take Child to his bus stop near Mother's home and wait for Child to be picked up by the bus. On days that Father takes Child to the bus stop, they leave Father's house around 6:50 AM. On days that Father takes Child straight to school, they leave Father's house around 8 AM. Regardless of when or how Child gets to school, Father informed the Court that Child has not been late to school when Father transports. Father elaborated that Father's Wife would typically drive Child straight to school and only on certain occasions would Child be dropped off at his bus stops. After school, Father or Father's Wife picks Child up directly from school.
Father's Wife testified that her job with the ---------- -- ----, based out of Aberdeen, Maryland, has allowed her to permanently work from home. Father's Wife's work schedule is typically 7 AM to 3:30 PM, however she has a flex schedule that allows her to shift her hours earlier or later, as well as take days off and extend her workday, should she need to do so. Father's Wife testified that dropping off and picking up Child to and from school is not an issue when it comes to coordinating the schedules of the other children in her household. Father's Wife further testified that should she be unable to pick up or drop off Child, Father is able to do so, otherwise they have family, friends, and neighbors who are able to assist them.
Father claims to have been unaware of Child participating in any extracurricular activities, so he has not been transporting Child to those during his recent visitation, although Mother testified that she had emailed Father about the activities. Father claims to have no issue with Child participating in extracurricular activities, or in transporting Child to those activities. Both parents appear to recognize the value of Child participating in extracurriculars. Father indicated that Child has not mentioned bowling to him. During Father's visitation time however, Father's main priority is spending time together as a family, and that includes making trips to New Jersey to spend time with extended family. Father believes that Child's extracurricular activities such as bowling takes away from Father's time with Child, whereas taking trips to see extended family does not take away from Father's time. The Court believes Father has a skewed view of parenting time. It is this Court's opinion that spending time with a child by taking them to events or activities that the Child enjoys, where the parent gets to watch and participate in their child's enjoyment, is an appropriate exercise of parenting time. Pro-social peer group activities, such as sports, are important to a child's development, especially as a child enters adolescence.
The parties continue to have major communication issues, as Mother is purportedly not allowed to text Father. Mother elaborated that she is only allowed to text in an emergency, she is not allowed to call Father at all, and she is allowed only to email Father for regular communications. Mother has reached out to Father about medical decisions for Child, as well as with information regarding Child's extracurriculars, but Mother often receives no response. Father disagrees, believing that he has ample communication with Mother and that he prefers emails because text messages are harder to keep a record. Father further testified that he does respond to Mother's emails, just not as soon as she sends them. The parties continue to have clear communication problems. Neither party appears willing to communicate but both parties are prepared to blame the other for their communication issues. It is clear to the Court that the parties cannot and refuse to communicate effectively.
The Court has had previous concerns with both parents' compliance with their rights and responsibilities to their Child. The Court does express concerns over Father possibly depriving Child of age-appropriate activities of Child's own liking, in the name of family time during Father's time. The Court finds this factor overall is neutral to the analysis.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
No evidence of domestic violence has been presented that would impact the Court's determination as it relates to Father's visitation. Therefore, the Court finds this factor neutral to its analysis.
(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.
No testimony was presented regarding this factor. Accordingly, this factor is inapplicable to the Court's analysis.
Conclusion
Based on the evidence presented, the Court finds that factors one (1), five (5), six (6), seven (7) and eight (8) are all neutral. Factors two (2) and three (3) favor granting Father's increased visitation by way of a shift back to the shared residential placement arrangement during the school year. Factor four (4) slightly favors maintaining the present arrangement. It is clear to the Court that Child desires to have more time with Father and the issues that justified the change to the presently existing schedule no longer exist, as Father is capable of providing consistent and reliable transportation. The Court does express concern over the continuing communication issues between Mother and Father, and Child being deprived of the ability to consistently participate in enrolled extracurriculars. Therefore, the Court finds that reverting back to the originally ordered shared schedule is in the best interest of Child, with the proviso that extracurricular activities not be unduly restricted.
The Court reminds the parties that each parent is entitled by statute to have reasonable access to his or her child by telephone, mail, and other means of communication and to receive all material information concerning the child. Each party shall foster a feeling of affection and respect between the child and the other parent. Moreover, neither party shall do anything that may estrange the child from the other party, injure his or her opinion of the other party, or hamper the free and natural development of his or her love and respect for each party.
See 13 Del. C. § 727(a):
Whether the parents have joint legal custody or 1 parent has sole legal custody of a child, each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life, and school activities and conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The Court shall not restrict the rights of a child or a parent under this subsection unless it finds, after a hearing, that the exercise of such rights would endanger a child's physical health or significantly impair his or her emotional development.
ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:
1. Residential Placement: Parties shall resume the shared residential/visitation schedule during the school year and continue to maintain that arrangement during the summer months.
a. Placement with Mother: Mother shall have Child every other weekend beginning Fridays after school until Monday mornings. In addition, Mother shall have Child every Wednesday and Thursday overnight, beginning on Wednesdays after school until Friday mornings.
b. Placement with Father: Father shall have Child every other weekend beginning Fridays after school until Monday mornings. In addition, Father shall have Child every Monday and Tuesday overnight, beginning on Mondays after school until Wednesday mornings.
2. Extracurricular Activities: Child's reasonable participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom child is visiting shall be responsible for providing transportation to activities scheduled during visitation with that parent to ensure Child's participation. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address, and telephone number of the activity leader, if available.
3. The parties are to communicate with each other using the mobile application, "Our Family Wizard" or a similar service jointly selected by them. The cost of such service is to be shared between the parties.
4. Notwithstanding the provisions of this Order, the parties may modify the visitation schedule by mutual agreement in writing.
IT IS SO ORDERED.