Opinion
File No. CN18-01718 CPI No(s) 18-33512
04-05-2019
R ------ A-------- ---- ---- --- ------ ----------, -- ----- Petitioner v. N---- A------ --- ------ ---- -----, -- ----- Respondent
Petitioner Attorney Self-represented Respondent Attorney Self-represented
Nature of Proceeding
Petition to Modify Custody Petitioner Attorney
Self-represented Respondent Attorney
Self-represented Date of Decision:
Date Mailed/Emailed: ORDER: PETITION TO MODIFY CUSTODY
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition to Modify Custody filed on November 7, 2018, by R------ A-------- (herein "Father"), self-represented, against N---- A------ (herein "Mother"), self-represented, -in the interest of P-------- A--------, born November --, 20--, (herein "minor child" or "P----"). The Court held a hearing on February 7, 2019, and heard testimony from both parties as well as D---- A------ (herein "Maternal grandmother") and T---- C--- A------ (herein "Maternal grandfather").
PROCEDURAL HISTORY
On February 15, 2018, Father filed a Petition for Protection from Abuse (herein "PFA") and Affidavit for Emergency Ex Parte Order. The Court granted the Ex Parte Order and scheduled a Hearing for February 28, 2018. The hearing was continued to March 14, 2018, because the Court was unable to obtain jurisdiction over Mother. Due to Court error, the hearing was rescheduled to March 28, 2018. Mother did not appear for the hearing on March 28, 2018. Father's request for a PFA was granted by default. Mother filed a Motion to Reopen the PFA on April 23, 2018, and alleged she did not receive proper notice of the PFA filed by Father. The Court granted Mother's Motion to Reopen the PFA. After a hearing before a Commissioner, Father's PFA was granted on May 18, 2018. The PFA Order expires on May 18, 2019. Said Order limits Mother's contact with Father to no contact except to discuss issues relating to custody or visitation of P-------.
On April 26, 2018, Father filed a Petition for Custody and a Motion and Affidavit for Emergency Ex Parte Order. The Court denied Father's request for an emergency Order because he already had Custody under the Default PFA. Mother filed her Answer to the Custody Petition on April 30, 2018. The Court scheduled a hearing for July 26, 2018. Prior to starting the hearing, the parties reached an agreement on the record. Pursuant to the parties' agreement, the parties had joint custody, Father had primary residence, and Mother had visits every Saturday at 9:00 a.m. until Sunday at 10:00 a.m. and every Tuesday overnight until Wednesday morning when she returned her to daycare.
Father filed the instant Petition to Modify Custody and a Motion and Affidavit for Emergency Ex Parte Order on November 7, 2018. The Court scheduled an Emergency Hearing on November 19, 2019. At the Emergency Hearing the parties agreed to an Interim Order and a Case Management Conference was scheduled for January 8, 2019. The matter was scheduled for a conference instead of a hearing because Mother was indicating that she was planning on admitting herself to inpatient treatment for a drug addiction and the Court wanted to allow her time to complete the inpatient treatment before scheduling a trial. Mother filed a Motion to Modify the Interim Order on November 28, 2018. Mother's Motion was denied. On November 29, 2018, Father filed a Petition - Rule to Show Cause alleging Mother had violated the Interim Order. Father's Petition - Rule to show Cause was consolidated with the instant Petition to Modify. At the Case Management Conference on January 8, 2019, the Court learned that Mother had not entered inpatient treatment and scheduled both matters for trial on February 7, 2019.
FACTUAL FINDINGS
The parties were never married but lived together in Maryland after the child was born until June 16, 2017, when Mother incurred criminal charges and Father was the alleged victim. Mother left Maryland and moved in with her parents who reside in Dover, Delaware. Subsequently, Father also moved to Delaware to live with his mother in Wilmington. Mother's whereabouts were unknown from June, 2017, through February, 2018. At the hearing, Mother admitted that during that time period she was "selling her body to survive." Mother resumed regular contact with the child after the parties' reached an agreement in July 28, 2018. Father was facilitating contact for Mother with the help of maternal grandparents. The parties were amicable until November, 2018, when Father alleges that Mother resumed her drug addiction, went missing for several days without contacting family or friends, and missed her visitation with P----. The series of events prompted Father to file the instant Petition to Modify Custody.
Father lives in a three-bedroom house in Wilmington, Delaware with P------- and paternal grandmother. Father works for P--- P---------- A--- T--- Monday through Friday from 7:30 a.m. to 5:00 p.m. Additionally, Father has side jobs on Saturdays at J--'- C-- S----- & S------- and S----- C----- M-----. Father admitted that he was addicted to pain medication years ago but received the help he needed and has been sober for some time including all of the time since P---- was born.
Mother resides with maternal grandparents in a four-bedroom home in Dover, Delaware with Mother's sister and Mother's niece and nephew. Mother was recently hired by M-------'s as a cashier. Mother is still waiting for her orientation and hopes to work the mid-day shift and mostly weekdays. Mother testified that she had been sober for 53 days as of the date of the hearing. Mother's aforementioned charges in Maryland were still pending as of the date of the hearing. She has been charged with Assault and Theft. Father is the alleged victim for both charges.
The parties have one child. P------- is two (2) years old and currently attends C------- D------ in Wilmington. Father receives Purchase of Care to help him with the cost of day care.
Further description of the 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.
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;
The parties agreed to primary residence with Father. Father wants sole custody and proposes that Mother have visitation every other weekend from Friday until Sunday. Mother is seeking joint custody and proposes she have visitation every week from Thursday to Saturday.
The Court finds this factor to be neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
P---- is too young to be interviewed by the Court. However, Father reported that he knows P---- loves her mother and that she is always excited to see her. Therefore, the Court finds this factor is neutral as it relates to legal custody but supports mother having frequent and meaningful visitation with the child.
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;
Father lives with paternal grandmother and P----. Father testified that he has a great relationship with P----. He also testified that paternal grandmother has a great relationship with the child. Father has four brothers who live in the area and act as his support system. Father testified that P---- visits with her paternal cousins frequently and has a great relationship with them. Father worries about the relationship between Mother and her parents. Father was concerned with the amount of "accountability" in maternal grandparents' home. Father alleged the maternal grandparents' are less strict with Mother after their son died in a car accident.
Mother lives in maternal grandparents' home with Mother's sister and her niece and nephew. She testified that the people residing in maternal grandparents' home have a good relationship with P----. Maternal grandmother testified that Mother has a very strong, loving relationship with the child. Maternal grandmother told the Court that she misses P---- every day. Maternal grandfather also testified that Mother has a good relationship with the child and that he has a good relationship with the child. As both parties and the members of their households have a good relationship with the child, and both parties are involved with the child, the Court finds this factor supports joint custody and Mother having frequent and meaningful visitation.
4. The child's adjustment to his or her home , school and community;
The child has lived primarily with Father since June, 2017. It would seem she is adjusted to that home and there was no evidence to the contrary. Father testified that P---- enjoys her day care and the day care provider is wonderful.
P---- visits with Mother in the maternal grandparents' home. There was no evidence presented that she is not adjusted to that home. Therefore, the Court will assume she is adjusted to the home.
The Court finds that this factor is neutral as it relates to legal custody but supports Mother having frequent and meaningful contact with the child.
5. The mental and physical health of all individuals involved;
Father testified that P---- is a healthy child. Father reports good physical health and no mental health issues. Father admitted that he was addicted to prescription drugs six (6) years ago after he was the victim of a hit and run accident in 2011 and his doctor's prescribed pain medication. Father further explained that he was able to get into recovery with the help of his family. In addition, Father claimed that after he plead guilty to Burglary in 2014 and later was found in violation of his probation, he asked the State of Delaware for help with his addiction and the judge sentenced him to the Crest Program. Furthermore, Father claims that he voluntarily participated in Project Engage before P---- was born.
Father believes Mother's drug addiction affects her ability to responsibly parent their child. Father asserts that their child's health and safety is at risk under Mother's care. Father commends Mother for getting help and is happy that she is currently sober, but he wants to see a longer period of sobriety before P---- spends more time with Mother.
In preparation for this hearing, Father paid for hair follicle testing of Mother. After paying for the test to be completed at LabCorp in Dover near Mother's home, Father texted Mother the morning of January 29, 2019, and told her where to go. Mother bleached her hair that same day. Father argued that Mother bleached her hair after learning that she had to take a hair follicle test. Mother claims that she was already in the process of bleaching her hair when she saw the text from Father. The maternal grandmother testified that she remembered Mother bleaching her hair and that it was in the evening. After considering the grandmother's testimony, the Court finds it is more likely than not that Mother bleached her hair only after learning she had to complete a hair follicle test in an attempt to alter the drug test results. Mother submitted to the hair follicle test two days later on January 31, 2019. As of the date of the hearing, Father did not have the results of the test and indicated that he was advised that Mother had not signed the HIPPA release for Father to get the results. Mother reported that she thought she had signed everything on the day of the test but returned to the lab the morning of the hearing and signed the release. Father was permitted to file a Motion to Accept the drug test results if he obtained them after the hearing. The Motion was filed and, after no objection was received, the Court granted the Motion. Mother's drug test results showed she was positive for Cocaine and Benzoylecgonine. The Court cannot tell from the test results when Mother last used either drug. Mother had admitted that she was involved with the methadone clinic for her heroin addiction but had not advised the Court that she had previously used cocaine as well.
The Court has concerns regarding Mother's stability in her recovery. Mother is only recently in recovery from a heroin addiction. She takes methadone daily from the methadone clinic. Maternal grandfather testified that, if Mother misses her daily dosage of methadone, Mother gets fidgety and jumpy leading the Court to believe that there are actual days when Mother fails to take her methadone. At the hearing, Mother testified that she had been sober for 53 days. The Court notes that if Mother's testimony is true, her sobriety didn't start until December 16, 2018. The parties were in Court on December 12, 2018, and Mother was indicating at that time that she was exploring in-patient treatment. Mother did not supply the Court with evidence that she ever received in-patient treatment. Father also questioned maternal grandparents about Mother's mental health. According to maternal grandmother, Mother takes Prozac for anxiety and other medication to help her sleep. Maternal grandmother does not monitor Mother to confirm that she is taking her medication as prescribed.
As the Court has concerns regarding Mother's stability in her recovery, the Court finds that this factor supports sole custody with Father but would not prevent Mother from having frequent and meaningful visitation if she maintains her sobriety and is supervised.
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 had the sole care-taking responsibility for the child on a daily basis since June, 2017, with the exception of assistance from paternal grandmother or visits with maternal grandparents. Father's job requires him to be at work by 7:30 a.m., but he is still able to get the child ready for daycare.
Father reports that he has a great relationship with P---- but that she also loves her mom. Father testified that P---- gets excited when he drives to the Wawa parking lot where the parties conduct the exchange for visitation because she knows she is going to see her Mother. Therefore, when Mother and Maternal Grandmother arrived at the meeting spot without a car seat for a recent visit, Father was sure to make accommodations because he knew how much his daughter enjoys spending time with Mother. Father lent Mother his car seat so she could exercise her visit. The Court commends Father for putting the child's needs first in this regard.
Mother has not complied with her rights and responsibilities as a parent. Mother admitted that she was out of the child's life from June, 2017, through February, 2018. During that time and since resuming contact with the child, Mother has not provided Father with any child support. Furthermore, prior to removing herself from the child's life, Father alleged in June, 2017, Mother injected herself with heroin in their bathroom while P---- was in her care. Mother did not refute Father's claims that she previously cared for their child while under the influence of heroin.
Based on the information above, the Court finds that Father has consistently complied with his rights and responsibilities as a parent. While Mother has had a difficult time since P---- was born struggling with an addiction, she appears to be on the right path and the Court commends her in this regard. As she is sober at this time, the Court could find that this factor would support joint custody with Mother having frequent and meaningful visitation. However, given the fact that Mother is only recently in recovery, the Court will give this factor the appropriate weight.
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 has an active PFA against Mother. After a full hearing on the merits, Mother was found to have committed acts of domestic violence against Father. Mother is to have no contact with Father except when discussing issues relating to P---- or visitation. The PFA is in place until May 18, 2019.
Mother has pending criminal charges in Maryland. Her pending charges were the basis for Father's PFA Order. Since Mother's criminal charges in Maryland were pending, the Court advised Mother of her Fifth Amendment right against self-incrimination. Mother acknowledged her right and only spoke to provide the Court with the correct trial date of February 22, 2019.
Given the finding of abuse and the active PFA entered against Mother, the Court finds this factor supports Father having sole custody. If there is a way to assure that P---- would not witness any domestic violence, it appears that there would be no harm in Mother having frequent and meaningful visitation.
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.
A review of Father's criminal history shows a long history of guilty pleas. Father plead guilty to the following criminal offenses: Burglary Third Degree on September 23, 2014; Resisting Arrest on January 13, 2014; two counts of Possession of a Controlled Substance on September 5, 2013; and various other crimes that occurred before the Child was born. Father admitted he struggled with addiction (see factor 5 for discussion). After his most recent guilty plea, he requested the Court's assistance to help manage his addiction. He was sentenced to the Crest Program. The Court notes that all of the guilty pleas took place prior to P---- 's birth.
There is no dispute that Mother has pending charges in Maryland that were set for trial on February 22, 2019. Father is the alleged victim of the charges. Regarding Mother's Delaware criminal history, Mother plead guilty to Conspiracy Third Degree on April 30, 2018. As part of a plea agreement regarding the charge, a nolle prosequi was entered on the arresting charge of Prostitution. Mother also plead guilty to the following criminal offenses: two counts of Theft under $1,500 on July 28, 2014; Possession of Drug Paraphernalia on July 25, 2014; Selling Stolen Property under $1,500 on March 14, 2014; and various other crimes that occurred before P---- was born.
The Court also reviewed the Delaware criminal histories of the other adults who reside in the parties' respective homes and has no concerns.
Given the amount of time since Father's convictions and the fact that he has had no convictions since the child was born, the Court gives Father's criminal history the appropriate weight. On the contrary, the Court is concerned with Mother's pending charges in Maryland and Mother's recent guilty plea to conspiracy in April, 2018, where the related charge was Prostitution. Therefore, Court finds this factor supports sole custody with Father. Notwithstanding Mother's criminal history, the Court also finds that there would be no harm in Mother having frequent and meaningful visitation.
CONCLUSION
The parties agree Father should have primary residence. Therefore, the Court's analysis focused on legal custody of the child and a visitation or contact schedule.
Based on the Court's analysis of the best interest factors set for forth above as they relate to legal custody, the Court finds factors (1), (2), and (4) are neutral; factors (3) and (6) support or could support the parties having joint custody; and factors (5), (7), and (8) support Father having sole custody. In this instance, the Court places great weight on Mother's recent drug history, criminal history, and PFA history. While the Court commends Mother for enrolling in treatment, the Court has no evidence that she is consistent with her treatment. Apparently, all of her plans to get inpatient treatment fell through and she did not bring any evidence from Connections who she claims is currently treating her that she is consistent with her treatment. It is also significant to the Court that Mother has been found to abuse Father in the context of a PFA and that Mother still has pending charges in the state of Maryland where Father is the victim. The Court does not expect a parent who has been abused by the other parent to be able to effectively co-parent with the perpetrator. Therefore, the Court finds that it is in the child's best interest for Father to have sole custody.
The Court has concerns regarding Mother's credibility in general and as it relates to her sobriety. When Mother was late for the hearing, she initially claimed that she had left a message for the Court that she was stuck in traffic. However upon questioning by the Court she admitted that she never left a message. Mother wanted the Court to believe that she was in the process of dying her hair prior to receiving notice from Father that she needed to complete a drug test. However, the evidence indicated that it was more likely than not that she bleached her hair only after learning that Father was requesting a drug test. Those drug test results showed positive results for cocaine which Mother had never admitted using. The Court acknowledges that it has no information as to when Mother used cocaine. Finally, Mother has been evasive with respect to her plan for treatment. The Court has no evidence of when Mother started her sobriety with the exception of her testimony. And, during Case Management Conferences, Mother admitted that she thought she needed inpatient treatment but there is no evidence that she ever received inpatient treatment. Actually, there is no evidence that she received any treatment other than her testimony that she went to Neurofeedback and Connections. But, the Court is glad to hear that she is participating in the methadone clinic and recognizes that she would not be involved in the clinic if she were not receiving treatment somewhere.
Notwithstanding the Court's concerns with Mother's credibility, the Court finds that all factors, with the exception of factor (2) which is neutral, support Mother having frequent and meaningful contact with the child so long as she remains sober and refrains from committing acts of domestic violence in front of the child. It is significant to the Court that Father supports P---- having a relationship with Mother and believes it is important for P---- to maintain that relationship provided Mother is sober. Therefore, the Court will set an appropriate contact schedule. Unfortunately, because Mother lives in Dover it appears that it will be difficult for her to get the child to daycare every day and it is important that P---- attend daycare every day because Father receives Purchase of Care to pay for the daycare and she cannot miss days without risk of Father losing the Purchase of Care. And, given that the Court is not convinced that she is stable in her recovery, the Court finds it appropriate that her visits be supervised at this time.
WHEREFORE, the Court enters the following Order:
A. Father shall have sole custody. He shall make decisions regarding the child's health, education, and welfare and keep Mother informed of those decisions.
B. Father shall have primary residence.
C. Mother shall have the following visitation:
a. Every other weekend from Friday at 3:30 p.m. until Sunday at 7:00 p.m. Unless otherwise agreed upon, Mother shall pick up the child from day care on Fridays. The parties shall meet in Smyrna to exchange the child on Sundays;
b. If Mother is able to travel to New Castle County, Mother may have an evening visit with the child during the week when she may pick up the child from daycare any time after 3:30 p.m. and return the child to Father's home by 7:00 p.m. Mother may choose which day she visits during the week and shall notify Father by Sunday at 7:00 p.m. which day she is choosing. If she fails to notify Father in a timely manner, she shall forego her visit that week unless Father agrees otherwise. Her visit shall not interfere with any of the child's activities if there are any;
c. Unless Father agrees otherwise, all of Mother's contact with the child shall be supervised by a member of Mother's family; and
d. Nothing herein prevents parties from agreeing upon Mother having additional contact.
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 | 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 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: Each party may have two (2) weeks of vacation with the child each summer to be taken in one (1) week increments. Mother shall select her weeks first in odd numbered years and Father shall select his 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 March 15th and the second parent shall choose his/her week by April 15th. The parent who has the child for the week shall be responsible for taking the child to his or her extracurricular activities, summer school, and providing summer care for that week. For the summer of 2019, Mother shall notify Father of her vacation weeks by May 15 and Father shall notify Mother of his vacation weeks by June 1.
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 5th day of April, 2019.
/s/ _________
JANELL S. OSTROSKI
Judge cc: Parties, File