Opinion
File No. CN14-02237 CPI No 16-26548 CPI No 16-26224
06-12-2018
R--- G----- ---- ------- ----- ----------- -- ----- Petitioner v. L--- G------ --- ------- ----- ---------- -- ----- Respondent
Petitioner Attorney Self-represented Respondent Attorney Michael Corrigan, Esquire
Nature of Proceeding
Cross Petitions to Modify Custody Petitioner Attorney
Self-represented Respondent Attorney
Michael Corrigan, Esquire FINAL ORDER - CROSS PETITIONS TO MODIFY CUSTODY
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, are the cross Petitions to Modify Custody. The first Petition (16-26224) was filed on August 29, 2016, by R--- G------ (herein "Father"), self-represented, against L--- G------(herein "Mother"), represented by Michael Corrigan, Esquire, in the interest of Z------ G------, born --------- --, ----, and S----- G------, born ------- -, ----, (herein "minor children"). Mother filed her Petition (16-26548) on August 30, 2016. After the Court held a hearing in August, 2017, the Court entered an Interim Order pursuant to 13 Del. C. § 727(b)(1) and scheduled a Review Hearing for April 17, 2018.
13 Del. C. § 727(b)(1) provides:
(b) Any custody order entered by the Court may include the following provisions:
1. Granting temporary joint or sole custody for a period of time not to exceed 6 months in duration to give the parents the opportunity of demonstrating to the satisfaction of the Court their ability and willingness to cooperate with the custodial arrangement ordered. Following a timely review of this temporary order by the Court either at the end of this temporary period or sooner upon the application of any party to the proceeding, the Court shall have the authority to continue or modify the temporary order on a permanent basis.
PROCEDURAL HISTORY
The Court addressed the parties' procedural history in the Interim Order entered on November 14, 2017, and incorporates same herein by reference.
FACTUAL FINDINGS
The Court issued an Interim Order on November 14, 2017, providing that the parties Stipulation and Order entered in February, 2015, was to remain in place. The Stipulation and Order provided the parties with joint custody and shared residence with a week on/week off schedule. The Court's Interim Order also provided that the children were to remain in counseling and the parties were to share the cost of the counseling. And finally, the Interim Order provided that the Court would schedule a Review Hearing so the Court could hear evidence of Father's willingness and ability to co-parent.
Further description of the relevant facts in this case are discussed in the analysis 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.
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.
§ 722 FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother wants sole custody and primary residence of the children. Mother proposed that Father visit the children every other weekend from Friday evening until Sunday evening.
Father wants joint custody and primary residence of Z------ and shared residence of S-----. Father proposed that Mother visit with Z------ whenever the two of them work it out.
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 the children before entering the Interim Order. The Court was not asked to interview the children again. Based upon the previous interview with the children, Z------ wanted to primarily reside with Father and visit with Mother when her boyfriend was not around. S----- told the Court that she wanted to reside with Father. The Court determined that this factor supported Father having primary residence of Z------. S----- indicated that she wanted to live with Father as well. But, given S-----'s young age and concerns the Court had regarding her statements during the interview, the Court gave her statements little weight. The Court also found this factor had no bearing on 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;
At the initial hearing, Z------ indicated that he did not get along with Mother's boyfriend. Since the initial hearing, Z------ and Mother's boyfriend attended counseling. According to Mother, Z------ and the counselor agree that Z------ and Mother's boyfriend have no issues to resolve. The Court finds this factor is neutral as it relates to legal custody and supports shared residence of the children.
4. The child's adjustment to his or her home , school and community;
Z------ continues to attend Skyline Middle School and S----- continues to attend Brandywine Springs Elementary.
Since the first hearing in this matter, Z------ was kicked off the school's soccer team because he had Fs, Ds, and a C for the first quarter. After he was kicked off the team, Father wanted Z------ to continue playing soccer and signed him up for another team without Mother's knowledge or consent. Mother indicated that she would not have supported Z------ joining another team. Being removed for the school's soccer team was a consequence for not maintaining satisfactory grades. Father signing Z------ up for another team not only failed to teach him that there are consequences for his actions but inhibited his ability to improve his grades because he was then busy with practices and games for the new team.
Mother worked with Z------ to improve his grades and, since then, they have improved. Mother helps both Z------ and S----- with their homework to ensure that it is completed. To the contrary, Father trusts Z------ when he says that his homework is done and does not check online to see if the homework is done.
Z------ has been diagnosed with severe Attention Deficit Disorder and has a 504 Plan at school. The counselor at school suggested that Z------ have a psychoeducational evaluation done. This issue was discussed at the 504 Plan meeting that Father did not attend, but Mother did attend. The cost of the evaluation is $800. Father did not pay his share of this cost, but Mother admitted that she did not ask Father to share in the cost either.
Based upon Father's lack of involvement and participation in the children's education, the Court finds this factor supports Mother having sole custody and primary residence of the children.
5. The mental and physical health of all individuals involved;
The children have been in counseling with Dr. M----- B-------- since March, 2017. The children have continued to attend counseling every other week during Mother's time. Father has not scheduled a counseling session on his time. The parties disagree as to whether Father has contacted the counselor to see how the children are doing. Father admitted that he has not paid for anything regarding the children's counseling.
Mother reports that while the children are with the counselor, they exhibit good behavior. But, when Z------ comes home, he acts differently. According to Mother, Z------ presents a "thug" image at home. She saw a video of Z------ on Instagram that he posted stating that he wishes he could join the people behind him and get high with them. Z------ also continues to have a lack of respect for authority and does not listen to Mother.
At the child interview, Z------ told the Court that he was not comfortable living with Mother and her boyfriend. Z------ indicated that Mother's boyfriend gave him "weird vibes". Since the last hearing, Z------ and Mother's boyfriend went to counseling together. According to Mother, Z------ and the counselor agreed that Z------ and Mother's boyfriend have no issues to resolve.
As the issues between Z------ and Mother's boyfriend appear to have been resolved, Father has not been involved in the children's counseling, and Father has not complied with the Interim Order requiring the parties to share in the cost of the counseling, the Court finds this factor supports Mother having sole custody and primary residence of the children.
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."
Mother alleged that since the last hearing, Father has planned things for the children on Mother's time without discussing it with her first. She testified as to a few examples. In November, 2017, Mother received a text from Father asking if he could have the children on Thanksgiving, when he knew it was Mother's holiday. When Mother inquired about what Father had planned, Father declined to give Mother any information. Before asking Mother about the change in the schedule, Father had told the children that he was going to take them to a friend's home for Thanksgiving. Then in December, 2017, Mother had planned to decorate the Christmas tree with the children, but Father let the children go caroling without asking her permission to extend his weekend time after 7:30 p.m. Father brought the children home between 8:30 p.m. and 9:00 p.m. Father also did not tell Mother that he signed the children up for a play at Church that runs late into the evening on her days with the children.
Not only does Father plan things for the children on Mother's time, he also plans things and signs the children up for things without telling Mother. Mother described an incident involving a travel soccer team. Z------ had an opportunity to participate in an out of state soccer tournament. Father told the children to not tell Mother about the tournament and to also not tell Mother that he was going to sign them out of school early. Father arranged for Z------ to go to the tournament without first discussing it with Mother. Instead, after the child had left with another family, Father asked Mother to call him on her lunch break and he told her about it then. Mother is concerned that Father has encouraged the children to lie to her.
Father has also filled out the paperwork to choice Z------ into Conrad without Mother's knowledge. Father did not put Mother's information on the forms. When Mother asked him about it, he said that it was filled out months before. Father also signed Z------ up for tutoring in December, 2017, and did not discuss it with Mother. The tutoring ended after three sessions.
Mother is also concerned about Father's ability to discipline the children. Z------ was suspended from school for five days for lighting hand sanitizer that was on his hand on fire. The parties agreed to punish Z------ and not allow him to play soccer for three weeks, but Father took him to practice any way. Father told Z------ to not tell Mother that he took him to practice because Mother would get mad at Father. Also, Z------ was suspended from school for this incident and he and the parties were supposed to have a meeting with the fire marshal. Father did not attend the meeting.
Father acknowledges that he was once angry at Mother and her boyfriend. However, he asserts that he is no longer angry and can communicate with Mother. Father has been going to counseling with D-- A-------- with Child, Inc. He has been attending counseling every week since January 19th and working on his attitude and anger. Mother admitted that while Father's angry outbursts have improved, he did become angry when her boyfriend helped S----- with her Math homework. Mother explained that she and her boyfriend have to help the children with their homework because homework does not get done at Father's home. Father did not have an explanation as to why the homework is not done at his home.
In February, 2018, S----- broke her arm during gymnastics. It was Father's week with the children. Father texted Mother to inform her of what had happened. But the following day, after she had been through surgery to repair her arm, Father let S----- go to a play date with her friend. Mother believed that S----- should have stayed home and rested. Father did not consult Mother before allowing her to go to her friend's home.
Finally, Mother asserted that Father does not pay for the children's needs. Z------ is on a medication that costs $248/month and Mother has asked Father to pay for half. Father has not responded to Mother. However, Mother admits that Father does pay for the children's extracurricular activities.
Based upon the above information, the Court finds that Father has not shown a willingness and ability to co-parent with Mother. While the Court is pleased that Father is making improvement with his anger issues, Father continues to schedule things for the children on Mother's time without discussing it with Mother, tells the children to lie to Mother, enrolls the children in activities without discussing it with Mother, and does not co-parent with Mother when it comes to disciplining the children. Further, Father has not been involved in the children's counseling. For all of the foregoing reasons, the Court must find that this factor supports Mother having sole custody and primary residence of the children.
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.
No additional information was presented to the Court at the Review Hearing regarding domestic violence. As discussed in the Interim Order, in 2000, Father either pled guilty to or was convicted of Offense Touching. The victim was Mother's son from another relationship. On February 21, 2014, Father was charged with Offensive Touching and Mother was the victim of the charge. Father pled guilty and a Probation Before Judgment plea was entered. Upon Father's successful completion of probation, the charge was dismissed. In the Interim Order, the Court found that this factor favors Mother's position that she should have sole custody and primary residence of both children. As no additional information was presented to change this finding, the Court finds this factor supports sole custody and primary residence with Mother.
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.
For the reasons stated in factor (7), the Court finds this factor supports sole custody and primary residence with Mother.
CONCLUSION
The Court analyzed the issues of custody and residence separately.
As to legal custody, based upon its analysis of the best interest factors, the Court finds factors (1), (2), and (3) are neutral and factors (4), (5), (6), (7) and (8) support Mother's position that she should have sole custody. None of the factors support Father's position that the parties should have joint custody.
As to residence, based upon its analysis of the best interest factors, the Court finds factor (1) is neutral; factor (2) favors Father's position that the parties should have shared residence of S----- and primary residence of Z------; factor (3) supports the parties having shared residence of the children; and factors (4), (5), (6), (7), and (8) support Mother's position that she should have primary residence of both children.
Five (5) of the eight (8) factors support Mother's position. Furthermore, the Court places great weight on factor (6). Father's unwillingness to co-parent or inability to recognize that he is not co-parenting causes the Court great concern. The Court is disappointed that Father has not made progress and is still scheduling things for the children without first discussing the matters with Mother. Father has not kept Mother informed of things going on in the children's lives and has not shown that he can make joint decisions with Mother. Further, Father is not co-parenting with Mother with respect to disciplining Z------. Therefore, the Court must find that it is in the children's best interest for Mother to have sole custody and primary residence of both children. Notwithstanding the Court's concerns regarding Father's inability to co-parent the children, the Court finds it is appropriate for Father to have meaningful visitation with the children and will set forth a schedule herein.
WHEREFORE, the Court enters the following Order:
A. Mother shall have sole custody of both children.
B. Mother shall have primary residence of both children.
C. Father shall have visitation with the children every other weekend consistent with the parties' current contact schedule. Father shall also visit one day during the week beginning the end of the school day and ending when he returns the children to school the following day. The day Father visits during the week shall be agreed upon by the parties. If the parties cannot agree, Father's weekday overnight shall be on Wednesdays.
D. Unless the parties agree otherwise, the following guidelines apply:
1. Holidays: Mother shall have the children on the holidays in Column 1 in odd-numbered years and the holidays in Column 2 in the even-numbered years. Father
shall have the children 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 | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
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 children 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 children 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: The parents shall alternate contact weeks in the summer with the schedule beginning the first Friday in June and concluding the last Friday in August with the exchanges taking place on Fridays. For the summer of 2018, the parties shall continue with their weeks as currently scheduled. Beginning with the summer of 2019, Father shall select his weeks first in odd numbered years and Mother shall select her weeks first in even numbered years. The parent whose choice it is that year shall give the other parent written notice of his/her summer week selection by April 1st. The parent who has the children for the week shall be responsible for taking the children to his or her extracurricular activities, summer school, and providing summer care for that week.
5. Late pick-up: Both parents shall have the children ready for pick-up at the start of all contact periods. The children 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 children early from contact unless the parents agree to a different drop-off time in advance. The parent or other
adult well-known to the children must be present when the children are 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 one or more of the children become seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the one or more of the children become 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 children while the children are 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 children 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 children to and from their home for contact periods and may use another adult well-known to the children for picking up or dropping off the children when necessary. Any person transporting the children 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 children to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the children. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for the children must be attended, regardless of which parent has the children during the summer school period.
12. Extracurricular activities: Regardless of where the children are living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom the children are 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 children's school, travel time to school or extracurricular activities or otherwise may adversely affect the
children'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 12th day of June , 2018.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, Counsel, File