Opinion
File No. CN15-05281 CPI No(s) 18-35552
07-23-2019
J--- I------ ---- ---------- --- --------, -- ----- Petitioner v. C----- G------ ---- --- ---- ---- ----, -- ----- Respondent
Petitioner Attorney Self-represented Respondent Attorney Self-represented
Nature of Proceeding
Petition to Modify Custody Date of Decision:
Date Mailed/Emailed: Petitioner Attorney
Self-represented Respondent Attorney
Self-represented ORDER - PETITION TO MODIFY CUSTODY (originally filed as a Petition for Custody)
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition for Custody filed on November 26, 2018, by J--- I------ (herein "Father"), self-represented, against C----- G------ (herein "Mother"), self-represented, in the interest of A--- I------, born June --, 20--, (herein "minor child"). While Father originally filed a Petition for Custody, the Court is sua sponte converting the Petition to a Petition to Modify Custody as there is a Custody Order issued from the State of Maryland which has been registered with the State of Delaware. The Court held a hearing on April 3, 2019, and heard testimony from both parties, as well as G----- M------- (Father's girlfriend), O---- A---- (Mother's boyfriend), and B---- G------ (herein "Maternal Aunt"). The Court interviewed the child on April 4, 2019.
PROCEDURAL HISTORY
The parties' first Custody Order was entered by consent on July 27, 2009, in Montgomery County, Maryland. On September 21, 2015, Mother filed an Affidavit and Request to Register the Foreign Custody Order in Delaware. As Father still resides in Maryland, Maryland would retain jurisdiction of this matter pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. The Court held a teleconference with Judge Cynthia Callahan of the District Court for Montgomery County, Maryland on June 19, 2019. During the teleconference, Judge Callahan found that Maryland was an inconvenient forum and this Court agreed to accept Jurisdiction. Also during the teleconference, this Court learned that the parties agreed to a second Consent Order in August, 2015, in the same Maryland Court after Mother moved to Delaware. However, Mother registered the first Consent Order instead of the more recent second Consent Order.
13 Del. C. § 1901 et al.
The parties were given thirty (30) days to contest the findings made during the June 19, 2019, teleconference pursuant to 13 Del. C. § 1910. Neither party contested Delaware accepting jurisdiction.
Father filed the instant Petition to Modify Custody in Delaware on November 26, 2018. Mother filed her Answer on December 19, 2018. The Court held a Case Management Conference on February 28, 2019, at which time the Court scheduled the instant hearing. After hearing all of the testimony, reviewing the evidence, and interviewing the child, the Court entered an Interim Order on April 4, 2019, giving Father primary residence of the child in Maryland and permitting the child to be registered for school in Maryland. This is the Court's final written Order.
FACTUAL FINDINGS
The parties were never married. When the parties stopped living together, Mother was 17 years-old, Father was 26 years-old, and A--- was 5 months old. After the parties separated, Mother continued living in Maryland until 2016 when she moved to Delaware after she lost her job. Father remains a Maryland resident.
When Mother lived in Maryland, she lived twenty (20) minutes from Father. Father visited A--- every other weekend and had regular visits during the week. When Mother moved to Delaware and prior to the Interim Order entered in this matter on April 4, 2019, Mother had primary residence of A--- and Father had visitation every other weekend.
On Wednesday, March 27, 2019, there was an incident that occurred in Mother's home after A--- returned from school. A--- reported that his Mother received a document regarding Father's allegations that Mother and her boyfriend, O----, were verbally and physically abusing A---. These documents upset O---- who allegedly grabbed A---'s chin and made him look at the papers. This contact by O---- offended A---.
The day after this incident, A--- woke up early before school and walked to his friend's house. A--- called his Father while he walked to his friend's house. Father asked A--- whether or not he wanted to call the police or if he wanted Father to call the police. A--- decided that he would call the police. The police responded to A---'s friend's home to discuss the situation with A--- and then took A--- to school. After school, Father called the police because Father was concerned for A---. The evening of March 28, 2019, the police reported to Mother's home. A--- was apparently already asleep when the police arrived. Mother was not present at that time, but she arrived to find multiple police cars at her home with the lights flashing. At that point, O---- had been arrested for Offensive Touching of a Police Officer and Resisting Arrest. The police asked Mother what she wanted to do. Mother decided that A--- should go to Father's house. Mother called Father and asked him to come get A---. Father agreed. Father's home in Maryland is about 2 hours away from Mother's home. A--- went to live with Father and was out of school beginning 3/29/19 and the entire week of 4/1/19. The Court entered the Interim Order indicating Father had primary residence so that Father could enroll A--- in a Maryland high school. Father indicated that he would enroll him by April 8, 2019.
The Interim Order gave the parties joint custody, Father primary residence, and Mother visitation every other weekend from 7:30 p.m. on Friday through 7:30 p.m. on Sunday.
Father lives in a four-bedroom townhouse in Damascus, Maryland. He has worked at the S---------- I---------- as a machine operator for six (6) years. He works Tuesday through Saturday from 6:00 a.m. to 2:30 p.m. Father lives with his girlfriend, G----- M-------, with whom he has one child, R--- (d.o.b. -/-/--). Ms. M------- also has two other children from a previous relationship, K------- (d.o.b. --/--/--) and C---- (d.o.b. --/--/--).
Mother lives in a four-bedroom home in Bear, Delaware. Mother has worked in an Insurance Office for four (4) years. Mother presumably works Monday through Friday during normal business hours. Mother lives with her boyfriend, O---- A----, with whom she has one child, N------ (d.o.b. --/--/--). Mother also has one other child from a previous relationship, T------ (d.o.b. --/--/--).
These parties have one child together, A---. A--- is 14 years old and was in 9th grade at W------ P--- High School prior to the Interim Order being entered. The Court interviewed A--- and his wishes are set forth in factor 2 below.
Further description of relevant facts in this case are discussed in the analysis of the best interest factors below.
LEGAL STANDARD
The parties' current Order was entered by agreement. Pursuant to 13 Del. C. § 729(b), the Court may modify an Order entered by consent of all parties concerning the legal custody or residence of a child at any time in accordance with the best interest factors. Neither party objected to Delaware taking jurisdiction of this matter under the Uniform Child Custody Jurisdiction and Enforcement Act.
13 Del. C. § 722 provides:
(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 of the 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 or custodians and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabitating 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.
13 Del. C. § 1901 et al.; 13 Del. C. § 1910.
DISCUSSION: §722 FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father is seeking sole custody and primary residence of the child. Father proposes that Mother visit with the child every other weekend and two weeks during the summer.
Mother wants to continue with the parties having joint custody and Mother having primary residence. Mother proposes that the parties continue alternating every other weekend and that Father could come to Delaware to visit A--- during the week. Mother also proposed that the child could spend summers with Father.
The Court finds this factor is neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Court interviewed A--- who is fourteen (14) years old. He arrived for the interview with notes because he said he has a bad memory. A---'s first questions to the Court were regarding Mother's boyfriend and whether or not he is allowed to "put his hands on me". A--- explained that on the evening of Wednesday, March 27, 2019, a letter from the Court arrived at Mother's home. He indicated that the letter caused him "to cry on the floor". The documents apparently upset O---- who grabbed A---'s chin and made him look at the papers. A--- was offended when O---- put his hands on A---'s face.
A--- woke up early the following morning and called Father while walking to a friend's house. He and Father talked about calling the police to report O----. A--- called the police on his cellphone. The police responded to A---'s friend's home to discuss the situation with A--- and then took A--- to school. On the evening of March 28, 2019, the police reported to Mother's home to investigate the allegation of abuse by A---. O---- was arrested for Offensive Touching of a Police Officer and Resisting Arrest but it does not appear that he was charged with any crime related to A---. The same evening, A--- went to stay with Father at Father's home in Maryland.
A--- was clear that he does not want to live at his Mother's house anymore because he does not want to be around O----. A--- explained that he does not like O---- anymore because he knows how he is when he gets mad. O---- curses at A--- about his grades or if A--- disrespects his Mother. According to A---, O---- screams whenever A--- does something wrong. A--- also reported to the Court a time when A--- overheard O---- telling his friends on Xbox or PlayStation that A--- is a "snitch". This upset A---. A--- indicated that he does not want to remove Mother from his life entirely. He suggested during the interview that he wants to "flip" the current schedule in order to live primarily with his Father and visit every other weekend with his Mother. The Court asked if he would still want to live primarily with his Father if O---- did not live with Mother. He stated that he would still want to live with Father because his Mother has not treated him well in the months leading up to the hearing. He recalled his Mother yelled at him, punched his shoulder, slapped his mouth, and hit him with a belt as well as a clothes hanger.
It was very clear that A--- wants to live with his Father and looks forward to the possibility of moving to Maryland and changing schools. He was also clear that he wants to continue having contact with Mother and his siblings in Mother's home. The Court found A--- to be a mature young man whose decision was well thought out and not the product of a passing whim. Therefore, the Court finds that this factor supports Father having primary residence and Mother having frequent and meaningful visitation. The Court gives this factor little weight as to how it relates to legal custody.
3. The interaction and interrelationship of the child with his or her parents , grandparents , siblings , persons cohabitating 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;
A--- reported that he has a good relationship with his Father. A--- said his Father helps him and buys him clothes. A--- did not comment on his relationship with Father's girlfriend. A--- gets along with his step-siblings in Father's home and appeared excited at the thought of attending school in Maryland with his step-sister. A--- also told the Court that he has not been able to see his Father's side of the family. A--- seemed to indicate that he wanted to develop a stronger relationship with his Father's extended family.
Father did not specifically testify about his relationship with A---. The Court infers from Father's actions that he loves and cares for A--- and his well-being. Father's girlfriend testified that she is fine with A--- staying in their home and that he gets along well with the other children in their home. It does not appear that it would disrupt Father's home life if A--- were permitted to move to Maryland to live with Father.
A--- spoke with the Court about his relationship with his Mother. It appears A--- and his Mother have a strained relationship. A--- reported that his Mother would curse at him and makes up lies about his Father so that he would not want to live with his Father. A--- also told the Court that he does not like Mother's boyfriend, O----, anymore because he knows how O---- is when he is mad. A--- told the Court he was afraid of O---- after the incident when O---- grabbed his face. A--- also said he does not like when O---- curses at him about his school work or for disrespecting Mother. A--- reported that he overheard O---- telling his friends on Xbox or PlayStation that A--- is a "snitch". A--- acknowledged that he previously got along with O---- and they would play basketball together but things appear to have changed from A---'s perspective.
Mother testified that she had a good relationship with A--- until she felt Father put a "shield between her and [A---]". Mother testified that she raised A--- and she knows his needs. Mother reported that A--- requires patience. Mother's sister testified that A--- is happy with his Mother. Mother's sister also said that she has a great relationship with A---. She has known A--- for his entire life. She stated that she would drive to Gaithersburg, Maryland to see A--- and his siblings. Mother's sister testified that O---- was influential in A--- playing football, basketball, and lacrosse. She never heard A--- talk about anyone being inappropriate in Mother's home. Lastly, O---- testified that he has known A--- since he was three years old. He likens his relationship with A--- to a father-son relationship.
A--- clearly has a good relationship with Father and the members of his household. A---'s relationship with his Mother and her boyfriend is strained given recent events. Therefore, at this time, the Court finds that this factor supports the parties having joint custody, Father having primary residence in Maryland, and Mother having frequent and meaningful visitation provided A--- is comfortable being around O---- or O---- is not around.
4. The child's adjustment to his or her home , school and community;
A--- said he likes his Dad's house and he wants to live with his Father. A--- wants to attend D------- High School near Father's house and indicated that he has a few friends from when he previously lived there that he is looking forward to seeing. A--- did not speak much about school during the interview with the Court, but he did mention that his grades were affected because of what had been happening in Mother's home. Specifically, A--- said that he does not get enough breaks to rest in Mother's home and his grades suffered as a result.
It is clear to this Court that A--- is adjusted to Father's home in Maryland. Father wants A--- to attend D------- High School near his home. Father believes that the school in Maryland will be able to meet A---'s needs and implement his IEP.
It is also clear that A--- was adjusted to Mother's home and his school in Delaware. A--- was in 9th grade at W------ P--- High School. He has friends in Delaware but he is fine not seeing his friends from Delaware as often if he moves to Father's home to attend high school in Maryland. Mother expressed her desire for A--- to remain at W------ P--- because A--- has been in special education classes since 2010. Mother testified that A--- finally has teachers, psychologists, and counselors who are aware of A---'s diagnosis and how to help with his learning disability and short term memory issues.
It is clear to the Court that A--- is more comfortable in Father's home due to the recent events in Mother's home but that A--- wants to and should maintain contact with Mother. While Mother testified that she wants A--- to remain in Delaware so he can continue to attend W------ P--- High School where his IEP was started, Mother presented no evidence that D------- High School in Maryland won't also be able to meet his needs by implementing his IEP. And, D------- is required to implement the IEP under Federal Law until such time as they conduct a review of his IEP and determine that it should be changed. Therefore, the Court finds that this factor supports the parties having joint custody, Father having primary residence in Maryland, and Mother having frequent and meaningful visitation
5. The mental and physical health of all individuals involved;
When the Court interviewed A--- he appeared physically healthy. A--- told the Court he wrote down notes for the interview because he has a bad memory. He also told the Court he has considered suicide on two occasions. He said that the thoughts of harming himself began one year ago. A--- has two therapists. He sees Ms. H---- at School and a therapist at home for Parent/Child Intensive Therapy (PCIT) who works with him and Mother. A--- admitted that he has not told either therapist about his suicidal thoughts. The Court advised A--- to speak with either one of his therapists regarding this issue.
Father testified that A--- has a slight problem with his weight but that A--- is slowly trying to lose weight. Father believed the issues with Mother have affected A---'s ability to sleep. Father testified that his own health is very good. He has no health problems that prevent him from caring for the child.
Mother testified that she believes A--- is going through a rebellious stage of his life and that is why they have been having problems. He has a learning disability and short term memory issues but he has resources that are available to help him in Delaware. Mother explained that A--- sees psychologists at school that are part of his special education program. The Court will assume Mother was referring to the counselor that A--- sees at school. Mother also stated that she has a therapist from Children and Families First who visits her home for A--- on a weekly basis. The Court will assume this is the PCIT therapist who A--- referenced. Mother indicated that they have been working with the therapist since December, 2018.
The Court commends Mother for seeking additional help and arranging the in-home therapeutic sessions for A---. It is significant to the Court that Mother has taken A---'s mental health seriously. Therefore, the Court finds that this factor supports joint custody, primary residence with Mother, and Father having frequent and meaningful visitation.
6. Past and present compliance by both parties with their rights and responsibilities to their child under § 701 of this title;
13 Del. C. § 701(a) states in relevant part: "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."
Father has been complying with his rights and responsibilities as the child's parent. Father has consistently exercised his visitation as well as provided child support payments to Mother. Father has also remained in the child's life even when Mother relocated to Delaware with the child nearly two hours from his home.
Mother has partly complied with her rights and responsibilities as a parent. Mother has made a good faith effort to address A---'s mental health. She arranged in-home therapeutic sessions for A--- (see factor 5). Mother takes A---'s mental health seriously. As A---'s primary caretaker for the majority of his life, Mother knows what A--- needs in order for him to be physically and mentally healthy. However, A--- is now reporting that Mother has allowed her boyfriend to inappropriately discipline him. Furthermore, A--- told the Court that Mother hits him and curses at him. Specifically, A--- told the Court that Mother hit him with a belt and a clothes hanger. He also said that she punched his shoulder and slapped him in the mouth. The Court recognizes that A---'s interview took place after the hearing and Mother did not have an opportunity to defend these allegations. Therefore, the Court will give A---'s allegations the proper weight.
As both parents have been complying with their rights and responsibilities as parents and the Court is giving A---'s abuse allegations little weight given the fact that Mother was not able to defend the allegations, the Court finds that this factor supports the parties having joint custody and must find this factor has little bearing on the Court's decision regarding the child's residence.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and
13 Del. C. § 706A in relevant part states:
(a) Any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the court in determining the legal custody and residential arrangements in accordance with the best interests of the child.
Father testified that there was no domestic violence during the parties' relationship. Father also testified that there is no domestic violence between him and his girlfriend.
Mother alleged that she suffered from domestic violence when she lived with Father after A--- was born. Mother said when Father was 26 years-old and she was 17 years-old Father would come home drunk and make Mother have sex with him. Mother said Father threatened her stating that if she left the home he would take A---. Mother indicated that when she left Father, she and A--- had to sleep in a car for a year because they were homeless.
Father testified on re-direct and denied everything Mother stated regarding abuse. Father testified that Mother left their home voluntarily because she had a relationship with someone from work.
While the Court is concerned about the parties' inability to get along, the Court cannot find that it was proven by a preponderance of the evidence that Father committed an act of domestic violence against Mother. Therefore, the Court finds that this factor supports the parties having joint custody. This factor has little bearing on the Court's decision regarding the child's primary residence and contact with the other parent.
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.
The Court has reviewed the criminal histories of all parties involved. At the time of the hearing, Mother's boyfriend, O---- A----, had pending charges for Resisting Arrest and Offensive Touching of a Police Officer. The Court has no concerns with Mother's Delaware criminal history, Father's criminal history from Maryland, and Father's girlfriend's criminal history from Maryland. Although Mother's boyfriend had pending charges at the time of the hearing, his charges do not involve the child or impact his ability to care for the children in his home. Therefore, the Court finds that this factor supports the parties having joint custody. This factor has little bearing on the Court's decision regarding the child's primary residence and contact with the other parent.
CONCLUSION
Based upon the Court's analysis of the best interest factors and for the reasons set forth herein, the Court finds, as to custody, factors (1) and (2) are neutral and all remaining factors support the parties having joint custody. There is no factor that supports Father having sole custody. Therefore, the Court finds that it is in A---'s best interest for the parties to have joint custody.
With respect to residence, the Court finds factors (1), (6), (7), and (8) are neutral; factors (2), (3), and (4) support Father having primary residence with Mother having visitation; and factor (5) supports Mother having primary residence and Father having visitation. It is clear that the majority of the factors support Father having primary residence. But, the Court also that finds that it must give the most weight to the factors that support Father having primary residence of the child. When weighing the best interest factors, the weight assigned to each relevant factor and considerations varies with each unique factual situation. Depending on the child's age, lack of maturity, or inability to articulate reasons for selecting one parent over the other, the Court may give little to no weight to the child's wishes. However, in other cases, the child's wishes could be the determinative factor in the custody decision.
DLK v. CS, 1986 WL 9029, at *2 (Del. Super. Ct. Aug. 5, 1986).
Id.
Id.
In duPont v. duPont, 216 A.2d 674 (Del. 1966), the Delaware Supreme Court held that, "if other considerations are equal, the desire of the child may be decisive." In order to reach this conclusion, the Court must determine if, "child has reached an age of sufficient discretion to form an intelligent preference, and whether or not the preference is expressed because of some temporary dissatisfaction or passing whim." In duPont, a sixteen year old child expressed her wishes and desire to remain living with her father, but her wishes were ignored and characterized as being influenced by father. The Supreme Court ultimately stated that it was an error of law to give no weight to the express desire of the child to remain with her father. And since all other considerations were equal, her preference should have been followed.
duPont v. duPont, 216 A.2d 674, 681 (Del. 1966).
Id.
Id.
Id.
Id.
In some respects, this case is similar to the duPont case. Here, the Court found A--- to be mature young man who was able to clearly articulate that he wants to live with Father. A--- told the Court reasons why he wants to live with Father and the Court finds the reasons were not the product of a "passing whim". A---'s relationship with his Mother and her boyfriend is strained. Regardless of whether the Court were to find that Mother or her boyfriend had abused A---, it is clear that their relationship is so strained right now that A---'s health and education are suffering. A--- is struggling to get along in his Mother's home and has made the difficult decision to leave his siblings in that home and his friends in school in Delaware to move to Maryland with his Father. The Court places great weight on the decision of this mature 15 year old. He is excited about the possibility of living with Father, spending more time with Father's extended family, and seeing his old friends from grade school. As such, the Court gives great weight to factor (2). The weight the Court is giving to factor (2) coupled with the fact that there was no evidence that indicated A--- would be harmed by living with his Father has convinced the Court that it is in A---'s best interest for Father to have primary residence of A--- in Maryland. Notwithstanding the Court's decision regarding residence, the Court finds it is also in A---'s best interest for Mother to have frequent and meaningful contact and Father appears to agree with that finding as he proposed that Mother continue having contact with A---.
WHEREFORE, the Court enters the following Order:
A. The parties shall have joint custody and shall make decisions jointly regarding the child's health, education, and welfare.
B. Father shall have primary residence in Maryland.
C. Mother shall visit every other weekend from Friday at 7:30 p.m. until Sunday at 7:30 p.m. continuing with the weekends the parties are currently enjoying. Unless they agree otherwise, the parties shall meet in Baltimore for the exchange. A--- shall not be left alone with Mother's boyfriend unless he indicates to both parents that he is willing to be left alone with him.
D. Unless the parties agree otherwise, the following guidelines apply:
1. Holidays: Father shall have the child on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Mother shall have the child on the holidays in Column 1 in the even-numbered years and the holidays in Column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holiday | Memorial Day |
| Fourth of July | Halloween |
| Labor Day | Thanksgiving Day |
| Christmas Eve | Christmas Day |
With the exception of Christmas and Halloween contact, holiday contact shall be from 9 a.m. until 6 p.m. the day of the holiday. Halloween contact shall begin at 5 p.m. and end at 8 p.m. on Halloween. Christmas Eve contact shall begin at 6 p.m. on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6 p.m. on December 26th. When a holiday falls on a Monday immediately following a contact weekend, the parent that had contact for the weekend shall be entitled to keep the child continuously from 6 p.m. Friday until 6 p.m. Monday.
2. Mother's/Father's Day: On Mother's Day and Father's Day, no matter whose turn for contact, the child shall be with the parent whose holiday is being celebrated from 9 a.m. until 6 p.m.
3. School Breaks (Winter and Spring): Winter and Spring Breaks shall be shared equally between the parents by dividing the breaks equally or rotating the breaks.
4. Summer Vacation:
a. For the summer of 2019, the parties shall continue with the schedule referenced above. Mother may have two (2) weeks of vacation with A--- provided that she give Father at least one weeks' notice of her vacation and her vacation does not interfere with any vacation plans that Father has already scheduled.
b. Beginning with the summer of 2020 and every summer thereafter, A--- shall reside primarily with Mother in the summer time and shall visit with Father every other weekend from Friday at 7:30 p.m. until Sunday at 7:30 p.m. For purposes of this Order, summer shall begin with the Sunday following the last day of school and shall end the Friday before school starts. Father may have two (2) weeks of vacation with the child each summer to be taken in one (1) week increments. Father shall select his weeks and give Mother notice of his summer week selection by March 15th each year. Father's plans shall not interfere with summer school, if applicable.
5. Late pick-up: Both parents shall have the child ready for pick-up at the start of all contact periods. The child and the parent have no duty to wait for the other parent to arrive for contact more than thirty (30) minutes, unless notified. The parent who arrives more than thirty (30) minutes late without prior notification for a particular contact, forfeits that contact, unless the other parent agrees otherwise.
6. Drop-off: Neither parent shall return the child early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to the child must be present when the child is returned from contact.
7. Canceling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
8. Medical treatment and emergencies: If the child becomes seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the child becomes ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.
9. Communication: Both parents shall be entitled to reasonable communication with the child while the child is in the other parents' care (including but not limited to
telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between the child and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
10. Transportation: Unless otherwise ordered or mutually agreed, parents shall have shared responsibility for transportation of the child to and from their home for contact periods and may use another adult well-known to the child for picking up or dropping off the child when necessary. Any person transporting the child shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All child restraint and seat belt laws must be observed by the driver.
11. School work: Parents shall provide time for the child to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the child. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for a child must be attended, regardless of which parent has the child during the summer school period.
12. Extracurricular activities: Regardless of where the child is living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom the child is staying shall be responsible for providing transportation to activities scheduled during contact with that parent. 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.
13. Relocation: Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the child's school, travel time to school or extracurricular activities or otherwise may adversely affect the child's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
14. Notice of change of address: Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.
E. This is a Final Order entered after a full hearing on the merits. Therefore, any future modifications shall be made pursuant to 13 Del. C. § 729(c).
13 Del. C. § 729(c) provides: 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 this 23rd day of July, 2019.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Judge Cynthia Callahan, File