Opinion
File No.: CN05-05455 Petition No: 15-27793
11-14-2016
RE: N----- R---- v. M----- L. W------, --
James Gaspero, Esq.
----- ------ --
--- ----- ------ -----, ----- ----
----------, -- ----- Laura Brooks, Esq.
---- ------- -----, ----- --
----------, -- ----- LETTER, DECISION AND ORDER Petition to Modify Custody Dear Counsel:
Before the Court is a Petition to Modify Custody (hereinafter "Petition") filed on September 8, 2015 by N----- R---- (hereinafter "Mother"), represented by James Gaspero Esq., against M----- L. W------, -- (hereinafter "Father"), represented by Laura Brooks, Esq., in the interest of their minor child, S------- W----------- born ---------- --, 2002 (hereinafter "Child"). In her Petition, Mother requested that the Child remain in her home during the Child's school nights due to Father's recent move to New Jersey. On September 30, 2015 Father filed a Counterclaim requesting that sole legal custody as to Mother be modified to joint legal custody. On November 9, 2016, the Court held a hearing on the merits in which testimony was presented by Mother, Father, I------ R---- (hereinafter "Step-Father"), and J---- C------- (hereinafter "Ms. C-----"). The Court also conducted an interview with the Child on the same day, November 9, 2016.
PROCEDURAL HISTORY
On September 12, 2007, the parties reached an agreement in mediation with regard to the custody and visitation of the Child. The parties agreed that Mother would have sole custody and that residency of the Child would be shared equally, alternating weekends and weekdays. On September 8, 2015, Mother filed a Petition to Modify Custody Order, requesting that Father return the Child on Sunday evenings and pick the Child up on Friday evenings. On September 30, 2015, Father filed an Answer and Counterclaim to Mother's Petition to Modify Custody, requesting joint legal custody and continuing the shared residential arrangement. On December 7, 2015, the parties appeared for mediation. On December 23, 2015, an Interim Custody Modification Order was entered, granting Mother continued sole custody and a 2-2-3 residential placement schedule, with Father having the Child every Monday and Tuesday overnight, Mother having the Child every Wednesday and Thursday overnight, the parties alternating the weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m., and the parties alternating holidays.
DISCUSSION
For the sake of judicial economy, the Court will not repeat in detail all of the testimony that can be obtained from the record, but will note the salient testimony as it pertains to the required statutory analysis. On September 12, 2007, the parties executed the aforementioned agreement regarding the custodial, residential, and visitation arrangements for Child. Pursuant to 13 Del. C. § 729(b), a Court order by consent of all parties concerning the legal custody of a child or his or her residence may be modified at any time by the Court in accordance with the standards set forth in 13 Del. C. § 722. Additionally, pursuant to 13 Del. C. § 729(a), an order concerning visitation may be modified at any time if the best interest of the child would be served thereby in accordance with the standards set forth in 13 Del. C. § 728(a). Therefore, in determining whether the Consent Order should be modified with regard to Child's custodial, residential, and visitation schedule, the Court must consider the best interests of Child by an analysis of the factors listed in 13 Del. C. § 722.
Best Interest Factors
(1) The wishes of the child's parents as to his or her custody and residential arrangements;
At the hearing, both Mother and Father expressed a desire for the other parent to remain active in the Child's life. However, Mother seeks to retain residential placement of the Child on school nights. According to testimony, Father recently moved from Delaware to New Jersey, which now requires the Child to travel from Father's home in New Jersey to her school in Wilmington, Delaware, and back to New Jersey during Father's visitation days. Child attends school at the Delaware Military Academy (DMA) and is extensively involved in extracurricular activities and sports. Mother contends that the travel time to Father's home is draining for the Child, particularly on school nights when she has after-school activities. Furthermore, Mother is concerned that the Child sometimes does not have her uniforms, clothes, sports items, and books that she needs for her school and activities as she travels back and forth from school, Mother's home, and Father's home. Therefore, Mother requested that she retain custody of the Child on all school nights in order for the Child to retain a consistent home base while she is in school.
Conversely, Father desires to continue to share residential placement of the Child. Father contends that the travel time provides an opportunity for him to spend time with his daughter and speak with her about the events of her day. Father also states that the Child is an important part of his family and that visitation only on the weekends would disrupt his family dynamic. Father further states the problem of the Child not having her needed things at his house could be addressed by Mother providing him with a uniform for the Child to keep at his house, but Mother has refused.
Finally, Mother requested that she retain sole legal custody of the Child. Mother claimed that she shares information with Father with regard to the Child's medical records and appointments, the Child's education, and the Child's activities. However, Father disputes that Mother shares this information with him and requested that Mother's sole legal custody be modified to joint legal custody to reflect both parties' continued and active involvement with the Child.
The Court finds that this factor is neutral with regard to the Court's analysis as to the Child's primary residential placement and legal custody. The parties are each opposed to the other's position on this factor, although both indicate a desire to maintain the other parent's active involvement in their Child's life.
(2) The wishes of the child as to his or her custodians and residential arrangements;
The Court conducted an interview with the Child on November 9, 2016. Throughout the interview, the Court was impressed with the Child's articulation and confidence. The Court found the interview a joy to conduct due to the Child's pleasant manner, bright personality, and sincere love for each of her parents, their respective households, and all of her siblings.
During the interview, the Child stated that she liked going to both her Mother's home and her Father's home. She expressed that she liked all of her siblings and got along well with everyone in both her Father's home and her Mother's home. When asked if she could change anything about either household, the Child indicated that she would change nothing about either home. However, the Child stated that she wished her Father still lived in Delaware, because that was where her friends and family were and where her school was located.
Upon inquiry by the Court, the Child expressed that although she enjoyed being at both homes, she wanted to be at her Mother's home on school nights. She said that this would "make everything easier" and affirmed that sometimes she does not have everything she needed at each home. The Child stated that it was difficult to remember everything she needed to bring with her as she travels between her Mother's home, Father's home, and her school. However, the Child stated that she wanted to see her Father on weekends and in the summer. Finally, the Child stated that it would be nice if her Father could come see her on weeknights that she is with her Mother, such as attending her school functions or games or going to dinner.
Therefore, the Court finds this factor favors primary residential placement with Mother, with extensive holiday, summer, and weekend visitation set aside for Father. The Court found that the Child clearly loves both of her parents and enjoys spending time with each of them and their respective households. However, the Child finds it difficult, now that Father has moved out-of-state, to travel to and from her school and her parents' respective homes, while also remembering the clothing, books, and equipment she needs for her activities, school requirements, and sports functions.
Additionally, this Court finds this factor favors joint legal custody. In the interview, the Child clearly expressed a strong bond with both her parents, and indicated that both were active in all aspects of her life. The Child desires a continued active relationship with both of her parents. Accordingly, the Court finds that this factor favors joint legal custody between the parents, with primary residence during school nights with Mother. (3) The interaction and interrelationship of the child with his or her parents , grandparents , siblings , person 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;
The parties currently maintain a shared residential arrangement between Mother and Father, and the Child expressed that she enjoyed being at both households. The Child has an excellent relationship with Mother. Mother works as a pharmacy technician at C--------- H-------, and works varying evening and day shifts, sometimes on weekends. Mother schedules her work weekends to fall primarily on days when the Child is with Father. Mother resides in N-- C-----, Delaware, with her husband of five (5) years, Step-Father, and their son, J---, who is eight (8) years old. At times when Mother works on weekends or an evening shift, Step-Father is home with J--- and the Child if she is not at Father's home. According to testimony by Mother, Father, and the Child, the Child has a great relationship with her Mother, Step-Father, and J---. When asked by the Court about J---, the Child stated that she "loved him," and loved spending time with him. J--- is on the autism spectrum, and according to Mother, he is incredibly close to his sister. Mother stated that when the Child is away from home, J--- misses her deeply and asks when she will be home. Accordingly, the Court finds that the Child has a wonderful and loving relationship with her Mother and everyone in Mother's household.
Similarly, Child also has an excellent relationship with her Father and everyone in Father's home. Father works from 9:00 a.m. to 5:00 p.m. from Monday to Friday at A--- L-------- in New Jersey. He resides in V--------, New Jersey, with his girlfriend, Ms. C-----, Ms. C-----'s three (3) children, and Father's two (2) children from another relationship. Father's other two (2) children, J------- and S----, also have a shared residential placement with their own mother. The Child's visitation days with Father align with the visitation days for her two paternal siblings so that she can see them while in Father's home. Father stated that the Child was the "leader" of the home and that she was an integral part of that household. The Child shares a room with Ms. C-------'s daughter, A--, with her own bed, dresser, and closet. Testimony from Father and Ms. C------ indicated that the Child got along well with them and all the other children in the home.
The Court finds that the Child has a good relationship with both her Mother's and Father's households. The Court finds that neither parent's work schedule conflicts with their respective abilities to parent the Child appropriately. Therefore, this factor is neutral with regard to the Court's analysis. (4) The child's adjustment to his or her home , school and community;
The Child is well-adjusted to her home, school, and community. As analyzed above, the Child loves being at both her Father's home and Mother's home. However, the Child expressed that she wished her Father still lived in Delaware, as that was where her school and family were located.
The Child currently attends school at Delaware Military Academy in Wilmington, Delaware. In the Child Interview, the Child stated that it was her idea to attend school there after hearing about it from a friend on her basketball team. The Child said that she "loved" her school, particularly because "everyone goes dressed to learn." Child is involved in numerous after-school activities and sports, including field hockey and basketball. The Court finds that the Child is well-adjusted to her school.
The Child is also well-adjusted to her community in Delaware. The Child stated that she had not had an opportunity to make new friends in New Jersey, with the exception of a week-long summer camp. She expressed that all of her friends were in Delaware, as well as her maternal and paternal relatives.
The Court finds that the Child has several ties to Delaware, including her family, friends, and school community. Therefore, the Court finds that this factor favors Mother's request for primary residential custody.
(5) The mental and physical health of all individuals involved;
No concerns were presented with regard to Mother's, Father's, or Child's mental and physical health. Therefore, this factor is neutral with regard to the Court's analysis.
(6) Past and present compliance by both parents with their rights and responsibilities to the child under §701 of this title;
Pursuant to 13 Del. C. § 701, parents are responsible for the support, care, nurture, welfare, and education of their child. The Court finds that both parents have fulfilled their responsibility for the support, care, nurture, welfare, and education of their Child. The record is devoid of substantial evidence that either parent is not an involved or active parent with regard to the care of their Child. For example, the Child stated that both of her parents had been involved in her activities and sports functions. She said that her Mother goes to her games and that her Father had been a coach for her basketball team. Father stated that he attends the Child's school functions, and Mother stated that she schedules all of the Child's doctor's appointments. The Child's love and affection for both of her parents was apparent in the Child Interview and testifies to each parent's profound efforts and care for their daughter.
However, at the hearing, there were several issues brought up between the parties with regard to the other parent. Mother testified that soon after Father moved to New Jersey, he missed several of his visitation weekends with the Child. Mother also stated that Father missed a dental appointment for the Child and that Father missed a cadet orientation for the Child at DMA. On the other hand, Father testified that Mother missed a team BBQ for the Child. Mother also testified that sometimes Father was late in taking the Child to school at her middle school, which Father disputed.
Finally, there was conflicting testimony as to whether Mother and Father had agreed to allow the other parent to meet each other's new partners before allowing the Child to meet him or her. Mother stated that there had been an agreement, which Father disregarded when he allowed the Child to meet Ms. C---- without Mother meeting her first. However, Father testified that he did ask if Mother wanted to meet Ms. C----, and that there had not yet been an opportunity for them to meet.
The Court finds that the above issues indicate the parties' ongoing communication problem, rather than a lack of fulfillment of their respective parental duties.
At the hearing, there was also conflicting testimony between Mother and Father as to whether the Child's doctor had changed since the Child was younger. Mother stated that the Child's doctor had remained the same; however, Father stated that the Child had told him her doctor has changed. Upon inquiry by the Court, the Child stated that her doctor had remained the same since was born. The Court finds that Father misunderstood the identity of the Child's doctor.
The Child further stated that she spoke with her Mother at her Father's home and her Father at her Mother's home, usually through texted messages. Although the parties disagreed about whether the other encouraged the Child to return calls and text messages from the other parent while in the other parent's care, the Child stated that she tried to return all calls and text messages as soon as she could. The Court finds that neither parent restricts the other parent's access to the Child by phone when at the other parent's home.
The Court finds that both parents have fulfilled their respective rights and responsibilities to the Child. The issues brought up in the hearing reflect the parties' continued problems with communicating with each other, rather than a lack of fulfillment of parental responsibility of either party. Indeed, neither Mother nor Father presented any evidence that the other parent lacks appropriate parenting skills or has in any way conducted themselves in any manner other than that of loving, nurturing parent. The difficulty lies in Mother and Father's relationship with each other, not with their daughter. Therefore, the Court finds that this factor is neutral with regard to the Court's analysis.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Pursuant to 13 Del. C. § 706A(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 visitation arrangements for the child in accordance with the best interests of Children. Domestic violence is defined by 13 Del. C. § 703A(a), as including, but not limited to, physical or sexual abuse or threats of physical or sexual abuse and any other offense against the person.
The record was void as to any information regarding domestic violence and the parties. Therefore, this factor is inapplicable to the Court's 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.
The Court finds no criminal record of any import for Mother, Father, Step-Father, or Ms. C-----. Accordingly, this factor is inapplicable to the Court's analysis.
CONCLUSION
Pursuant to Title 13 Del. C. § 701, Mother and Father are the joint, natural guardians of their minor child and are equally charged with Child's support, care, nurture, welfare, and education. After considering all relevant factors, the Court finds that it is in the best interest for Mother and Father to have joint legal custody over Child. The record is devoid as to any substantial evidence that Father is not an active parent with regard to his daughter, and Father has always been an involved and active Father. Accordingly, he shall be afforded the same decision making authority as Mother as to the Child's education, medical issues, and fundamental decisions that concern her welfare and well-being. Parents will need to work to communicate more effectively with each other to reach joint decision making for the benefit of their daughter.
However, the Court also finds that Mother should have primary residential placement with Father having weekend visitation and extended summer visitation. The Court finds factors two (2) and (4) favor granting Mother having primary residential placement and factors one (1), three (3), five (5), six (6), seven (7), eight (8) are neutral or inapplicable to the Court's analysis. The Child indicated that she desired to reside at one home primarily during the school nights, which is emphasized by her significant ties to her school and community in Delaware. Accordingly, the Court finds that Mother shall have the Child on school nights from Sunday at 9:00 p.m. to Friday at 6:00 p.m. Father shall have every other weekend with the Child, beginning on Friday at 6:00 p.m. and ending on Sunday at 9:00 p.m. Additionally, in any month that there are five Fridays in a month, Father shall be granted a third weekend with the Child, in order to provide him an additional weekend. Father shall be granted this weekend even though it may provide him with three consecutive weekends with the Child. Father shall also have the Child on her Spring and Winter school breaks, with exceptions for Easter and Christmas, as outlined by the holiday schedule below. Additionally, in any weekend in which Father has visitation and there is no school on Monday due to a holiday or an "in-service" day, the return time for the Child shall be Monday at 9:00 p.m. rather than Sunday. Likewise, in any weekend in which Father has visitation and there is no school on Friday due to a holiday, he may pick up the Child on Thursday at 6:00 p.m. rather than waiting until Friday. Father's weekends shall begin on the next weekend after the issuance of this Order that he has visitation with the Child's siblings, to ensure that Child and her paternal siblings continue to be on the same weekend visitation schedule with Father. Father shall be responsible for picking up and dropping off the Child on his weekend visitation.
Additionally, Father may also exercise the option of visiting with the Child in Delaware during the school nights. During these visits, Father and the Child shall remain in Delaware, and Father shall ensure that the Child is returned to Mother's home by 9:00 p.m. Father may exercise this visitation no more than once a week, and shall provide Mother with one (1) week advance notice. Should Mother have a prescheduled activity with the Child, Mother and Father shall work together to arrange for another day for Father to visit the Child. Father shall continue to be aware of Child's many extracurricular activities and attempt to plan these visits around the Child's busy schedule.
Mother and Father shall alternate holidays, as outlined below. Father shall also be afforded increased summer visitation. The Child has approximately twelve weeks of summer vacation. Mother shall have the last full or partial week of the Child's summer visitation, as well as three (3) additional weeks during the summer of her choosing. Mother shall notify Father of the weeks of her choosing by May 1st of each year. Father shall have the other eight (8) weeks of summer. The parties shall plan any respective vacations to coincide with their respective summer weeks with the Child. For purposes of summer visitation, week-long visitation shall begin at 6:00 p.m. on Friday and end at 6:00 p.m. the following Friday. Father's regular bi-weekly weekend visitation shall remain on the same schedule after the summer as existed before.
The Court finds that the parties have substantial difficulty communicating, which inhibits their ability to appropriately co-parent their Child as is in her best interests. The Court found from the Child Interview that the parties have much to be proud of in their Child, as she is bright, kind, and confident. Additionally, the record is devoid as to any indication that either parent is not devoted to the Child, indicating that both parents have been responsible for their Child's success. Accordingly, the Court encourages the parties to view the other parent in a positive light in order to seek outcomes that are best for their daughter and effectuate the other parent's bond with the Child, all of which are crucial to her continued success and development.
The Court reminds the parties that each parent is entitled by statute to have reasonable access to Child by telephone, mail, and other means of communication and to receive all material information concerning Child, regardless of the custodial or residential arrangement. Additionally, each party shall foster a feeling of affection and respect between Child and the other parent. ACCORDINGLY, IT IS HEREBY ORDERED THAT THE MAY 4, 2015 CONSENT ORDER IS MODIFIED AS FOLLOWS:
1. Mother, N----- R----, and Father, M----- L. W------, -- shall have joint legal custody of Child, S----- W------ born ------ --, 2002, with Mother having primary residential placement and Father having visitation as outlined below.
2. Visitation: Father shall have every other weekend with the Child, beginning on Friday at 6:00 p.m. and ending on Sunday at 9:00 p.m. Additionally, in any month that there are five Fridays in a month, Father shall be granted a third weekend with the Child. Father shall also have the Child on her Spring breaks and Winter breaks. Additionally, in any weekend in which Father has visitation and there is no school on Monday due to a holiday, the return time for the Child shall be Monday at 9:00 p.m. Likewise, in any
weekend in which Father has visitation and there is no school on Friday due to a holiday, the pick-up time for the Child shall be Thursday at 6:00 p.m. Father's weekends shall begin on the next weekend after the issuance of this Order that he has visitation with the Child's siblings, to ensure that she and her paternal siblings continue to be on the same weekend visitation schedule.
Additionally, Father may also exercise the option of visiting with the Child in Delaware during the school nights. During these visits, Father and the Child shall remain in Delaware, and Father shall ensure that the Child is returned to Mother's home by 9:00 p.m. Father may exercise this visitation no more than once a week, and shall advise Mother of when he will exercise this visitation no less than one (1) week in advance. Should Mother have a prescheduled activity with the Child, Mother and Father shall work together to arrange for another day for Father to visit the Child. Father shall continue to be aware of Child's many extracurricular activities and attempt to plan these visits around the Child's busy schedule.
3. Summer: Mother shall have the last full or partial week of the Child's summer visitation, as well as three (3) additional weeks during the summer of her choosing. Mother shall notify Father of the weeks of her choosing by May 1st of each year. Father shall have the other eight (8) weeks of summer. The parties shall plan any respective vacations to coincide with their respective weeks with the Child. Weekly summer visitation shall begin at 6:00 p.m. on Friday and run to the following Friday at 6:00 p.m. Once school begins, Father's visitation shall resume the regular bi-weekly schedule as before the summer. Father shall be responsible for picking up and dropping off the Child during the summer visitation.
4. Transportation: Father shall be responsible for all pick-ups and drop-offs.
5. Parental Communication: The parties shall communicate directly with one another regarding the well-being of Child, whether by telephone, text, or email. Furthermore, each parent shall advise the other parent of Child's health and welfare, including the date, time, and location of any medical appointments, which both parents may attend.
6. Telephone Access: All parties shall have telephone access when Child is in their presence. Additionally, each party shall be entitled to frequent telephone and electronic communication with Child when in the care of the other parent.
7. Holidays: At such time as the residential schedule becomes shared, Mother shall have Child on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Father shall have 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 holidays | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
With the exception of Christmas and Halloween contact, holiday contact shall be from 9:00 a.m. until 6:00 p.m. the day of the holiday. Halloween contact shall begin at 5:00 p.m. and end at 9:00 p.m. on Halloween. Christmas Eve contact shall begin at 6:00 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 6:00 p.m. on December 26th. All holiday contact shall supersede Father's regular visitation schedule.
8. Mother's/Father's Day: At such time as the residential schedule becomes shared, on Mother's Day and Father's Day, no matter whose turn for contact, Child shall be with the parent whose holiday is being celebrated from 9:00 a.m. until 9:00 p.m..
9. The parties may modify the visitation/holiday schedule by mutual agreement in writing.
IT IS SO ORDERED.
/s/ _________
ROBERT BURTON COONIN, JUDGE RBC/cap cc: Counsel
File
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.