Opinion
21-29454 CN11-03023
03-24-2022
R--------- D--------, Petitioner, v. E------- H--------, Respondent.
Alyssa G. Kelly, Esquire, 2055 Limestone Road, Wilmington, DE 19808, akelly@rahaimsaints.com, Attorney for Petitioner E---- H-------, [redacted], Winchester, Kentucky, e---------@live.com, selfrepresented
Date Submitted: March 18, 2022
Alyssa G. Kelly, Esquire, 2055 Limestone Road, Wilmington, DE 19808, akelly@rahaimsaints.com, Attorney for Petitioner
E---- H-------, [redacted], Winchester, Kentucky, e---------@live.com, selfrepresented
ORDER ON PETITION FOR CUSTODY
ARRINGTON, JUDGE
On March 18, 2022, the Court conducted a hearing on the Petition for Custody in the interest of R ------ D --------, Jr. (born --/--/2009) ("Child"). Petitioner R ------- D ------- ("Father") together with his Counsel, Alyssa G. Kelly, Esquire; and Respondent E ------ H --------- ("Mother"), participated in the hearing.
Based upon the evidence presented, the Court's decision is as follows.
PROCEDURAL HISTORY
Father filed the Petition for Custody on December 21, 2021. In the Petition, Father listed several allegations and a prayer for relief seeking joint custody and primary residential placement of Child.
Dkt. #22.
Mother was served on December 29, 2021. Mother filed an Answer and Counterclaim to the Petition on January 19, 2022. In the Answer, sought joint custody and shared residential placement. Mother recommended a "50/50" contact schedule.
Dkt. #27.
Father filed an Answer to Counterclaim on February 2, 2022. In the Answer to Counterclaim, Father denied it was in Child's best interest to have shared residential placement due to Mother's relocation and its impact on Child's education schedule and contact with Father.
Dkt. #30.
On March 2, 2022, Father filed a Motion to Interview the Child. The Court granted Father's Motion on March 3, 2022. At trial, the parties stipulated to the fact that Child wishes to remain in Delaware with Father obviating the need for the Child interview.
Dkt. #32.
Dkt. #33.
On March 3, 2022, the Court entered the Decision and Order requiring that Mother file an Amended Answer to meet the standards of 13 Del. C. § 734 for relocation by March 11, 2022. Mother failed to file her Amended Answer by March 11, 2022. Mother made a verbal Motion to relocate Child at trial.
Father's Petition for Custody was filed on December 21, 2021. Mother relocated to Kentucky shortly after the Petition was filed.
The Court held the final hearing on the Petition for Custody and Mother's Motion to relocate Child on March 18, 2022.
JURISDICTION
The Petition was filed on December 21, 2021. Child has resided in Delaware since birth. Father resides in New Castle County, Delaware. Mother relocated to Winchester, Kentucky on January 13, 2022. Delaware has jurisdiction to make an initial child custody determination as Delaware is the home state.
Dkt. #22.
TESTIMONY OF THE PARTIES
The parties testified at trial. Neither party presented any additional witnesses. Both parties submitted intended exhibits and introduced those exhibits at trial. The facts listed below are limited to those which are relevant to a custody proceeding and to this case in particular.
Father's Testimony
Father is thirty-eight years old and works at H & R Heating and Cooling, Inc. in New Castle, Delaware. Father works Monday through Friday from 7:00 a.m. through 3:30 p.m. In addition to his custodial time with Child, Father has had guardianship of his thirteen-year-old nephew for three years. Father resides in three-bedroom home in Newark, Delaware with his nephew and Child. Child has his own room.
Father and Mother have been separated for eleven years. For eight years, the parties both resided in New Castle County, Delaware and shared a "2-2-3" custody schedule. Mother relocated to Winchester, Kentucky on January 13, 2022. Father testified that Mother failed to consult with Father before deciding to relocate to Kentucky. About six to eight weeks before Mother's relocation, Mother mentioned to Father that she might want to move to another state. In October 2021, Mother asked Child to keep the relocation decision secret from Father. Father explained that Child felt anxious and nervous about the relocation. Child eventually revealed to Father that Mother planned to move to Kentucky. Father filed this Petition to prevent Child's relocation outside the State of Delaware.
The parties stipulated that Child wishes to remain in Delaware with Father.
Father introduced into evidence a text message thread between the parties dated November 8, 2021. Father reached out to Mother to talk about Child's potential relocation to Kentucky. Mother responded that the parties had discussed the potential relocation to Kentucky during a prior conversation about Child's behavioral concerns in school. Mother introduced and the Court admitted into evidence an email between the parties. On October 19, 2021, Child had written a message in school that a teacher "sucked", and the teacher informed the parties. Father testified that he believes Child's behavior stemmed from his anxiety about the relocation. In the November 8, 2021, text thread, Father informed Mother that he did not consent to Child's relocation and requested that Child remain with him in Delaware.
Father Ex. #1.
Mother Ex. #1.
On November 10, 2021, Mother reached out to Father via text message to discuss the relocation. Father reitered his request that Child remain with him in Delaware. Mother indicated that the relocation would take place with or without Father's consent. Father informed Mother that he had decided to contact an attorney. Any further communication between the parties did not involve discussion on the relocation.
Father Ex. #1.
Father testified that he has a good relationship with Child. He has been involved in Child's life since birth. Father testified that he pays Mother child support of $286 per month even though Child lives exclusively with Father. Father transported Child to activities like karate when the parties both lived in Delaware. Father testified that he would ask Mother about Child's doctor's appointments.
Child has lived with Father in Delaware since Mother relocated to Kentucky in January 2022. Child loves to read and has an established routine in Father's household. Child has a phone with parental safety features that Father uses to communicate with Child. At Father's home Child plays, helps make dinner, rides his bike around the neighborhood, has neighborhood friends, and eats his meals with Father and his cousin.
Child attended Everett Meredith Middle School in Middletown in Mother's feeder-pattern before Mother's relocation to Kentucky. After Mother's relocation, Child began attending Shue-Medill Middle School in Father's feeder pattern. Father introduced into evidence Child's transcripts from both schools. Father testified that Child has adjusted well in his new school and attends the same school as his cousin. Father testified that Child was in a Spanish immersion program and took American Sign Language, but Child discontinued the classes when school became virtual during the pandemic. Child now attends school in-person and loves it. Father testified that he wants Child to develop his social skills, attend school functions, and participate in extracurricular activities by attending public school. Father testified that he did not agree with Mother's plan to homeschool Child.
Father Ex. #2.
Father has an adequate co-parenting relationship with Mother. Father testified that he and Mother have worked well together in the past. Apart from Mother's relocation, the parties have never had a major conflict regarding Child. The parties communicate mainly via text message and occasional phone calls. Father has a workable relationship with Mother's husband. Father and Stepfather had past issues that they have worked through, and Father acknowledges that Stepfather loves Child.
Father's nephew lives with Father. Child and his cousin have a great relationship. The children are only seven months apart in age and they love living together. Child has helped his cousin develop his reading skills and grow his vocabulary. The children hold each other accountable. Child has good relationships with Father's brother and uncle. Child has a good relationship with Mother's sister who resides in Delaware. Child has relationships with Father's friends, neighbors, and paternal aunts.
In past years, Mother had informed Father that she and Child were moving within Delaware without consultation. For example, Mother moved from northern New Castle County to Middletown, Delaware without consulting Father. Child had to switch schools, make a longer commute, and stop extracurricular activities.
Several times a week Child and Mother have videocalls since Mother moved to Kentucky. Father testified that he does not interfere with Mother's communication with Child. Mother and Child talk and text each other. Father is willing to provide Mother with regular updates on Child, give her access to school records, communicate via email, and continue to co-parent.
Father testified that Child is in good health. Child experienced some anxiety about the relocation, but Child has adjusted and feels better. Father testified that he is in good physical and mental health.
There is no domestic violence between the parties. There is no domestic violence in Father's home.
Father testified that he has no recent criminal history. Father received a DUI seventeen years ago when he was twenty-one years old. Father testified he "has paid his dues" and "learned his lesson" following the conviction.
Father requests joint custody and primary residential placement of Child. Father suggests a contact schedule where Father would have Child in the summer the weeks before Father's Day, Father's Day week, and the few weeks before school. Father suggests that the parties alternate Child's spring breaks, winter breaks, Thanksgiving breaks, and Easter breaks. Mother could visit with Child whenever she was in Delaware. Father requests that the Court order Mother to cover the cost of transportation.
Mother's Testimony
Mother is thirty-seven years old. Mother stopped working outside the home when she moved to Kentucky and plans on homeschooling all of her children. Mother resides in a four-bedroom home in Winchester, Kentucky with Child's Stepfather and Child's maternal sisters. Mother is under contract to purchase a five-bedroom home in Lawrenceburg, Kentucky.
Mother testified that her relationship with Father is poor. Prior to Mother's relocation to Kentucky on January 13, 2022, Mother and Father communicated regularly and exercised shared residential placement of Child. Mother and Father had a "2-2-3" contact schedule by mutual agreement. Mother had requested a "week-on, week-off" schedule in the past. Mother testified that she "gave up" on communication with Father because their prior relationship was "toxic." Mother stated that she had to "push" Father to have a relationship with Child.
Mother testified that she did inform Father about Mother's relocation to Kentucky with Child, Stepfather, and Child's sisters. Mother conceded that she did not consult Father about Stepfather's intention to apply for jobs in Kentucky. Mother asked Child to not inform Father about the relocation until Mother spoke with Father.
Mother testified that she decided to relocate for economic, familial, and geopolitical reasons. Mother testified that the cost of living in Kentucky was almost 30% lower than the cost of living in Delaware. Stepfather and Mother earned a combined $110,000 per year in Delaware. In Kentucky, Mother does not work. Stepfather works and earns approximately $55,000 per year. Mother explained that her brother and her parents live in Kentucky. Maternal Grandparents plan to remain in Kentucky for at least two years. Mother plans to grow and store her own food. Mother explained that she moved to Kentucky for geopolitical reasons and wished to live in a like-minded community. Mother considered relocating to West Virginia and South Carolina before choosing Kentucky. Mother explained that West Virginia did not have adequate employment opportunities for Stepfather and that South Carolina was close to Stepfather's family in North Carolina. Mother and Stepfather selected Kentucky because Stepfather was offered and accepted a job there.
Mother testified that the relocation would not have a significant physical impact on Child. Child would still engage in physical activity and other activities such as going to the park, visiting the public library, and engaging in outdoor activities with a homeschool peer group. Child would continue to eat nutritious meals at home and receive education from Mother via homeschooling. Mother testified that she plans to homeschool Child and her younger children. Mother would homeschool her children per Kentucky's educational requirements and work with a "co-op," which consists of homeschooling families. On questioning from the Court, Mother confirmed that her family has not been accepted into a co-op group. Mother plans to use resources such as the co-op group, books, and supplemental tutoring services to fulfill Child's educational needs. Mother testified that she does not speak Spanish, she has not taught American Sign Language, and has completed college-level algebra. Mother testified that she has not taken any calculus course and is just starting to learn some sign language.
Mother wishes to homeschool Child because of concerns about Child's exposure to certain topics covered in a public-school curriculum. Mother testified she was concerned about Child's exposure to "Critical Race Theory" and other "Progressive" topics, defined by Mother as gender/sexual nature studies. Mother was unable to provide any specific examples of these topics being taught in Child's Delaware public school.
Mother has a good relationship with Child. Child has a good relationship with members of his maternal family. Mother has been married to Stepfather for almost seven years. Child has adjusted well to Stepfather and has a good relationship with Stepfather. Child has a typical sibling relationship with his younger sisters. Child's maternal grandparents have known Child since birth. Maternal Grandparents provided Child a lot of support and helped Mother care for Child when they all lived in Delaware. Maternal Grandparents and Maternal Uncle currently reside in Kentucky, but Child has not had much contact with Maternal Uncle.
Mother stated that she has a good support system. Mother testified that she receives $286 per month in child support. Mother still collects the support and has not returned any of Father's payments that she received for January 2022 or February 2022 despite not having the Child with her.
Mother testified that she is in good health. Child is in good physical health. Child was in therapy a few years ago because of anxiety and disrespectful behavior towards female authority figures.
Mother testified that there was no domestic violence between the parties in the last five years. There is no domestic violence in Mother's home.
Mother has minor traffic charges and an assault charge from 2005. Mother does not have a criminal history of concern for the Court in a custody proceeding.
Mother requests Joint Custody and Shared Residential Placement of Child. Mother requests that the parties each have 26 weeks of custodial time. However, Mother stated that her plan was that Mother would have Child for five to six weeks and then Father would have Child for two to three weeks. According to Mother, Father would have Child for "extended time in the summer" and on holidays but could not explain how this schedule would equate to shared placement. Mother plans to homeschool Child virtually during Father's custodial time. Mother testified that Shared Residential Placement means Child would benefit physically, emotionally, and financially from an equal relationship with both households.
LEGAL STANDARD
Since the Court has never entered a final order on custody, residency, and visitation for the child after a full hearing on the merits, the Court must analyze the factors under 13 Del. C. §722 to create an Order that is in the child's best interest. Additionally, the Court is required by statute to award both parents frequent and meaningful contact unless the Court finds, after a hearing, that contact of the child with one parent would endanger the child's physical health or significantly impair his or her emotional development. Since Respondent has proposed relocation of the child for period of sixty days or more outside the State of Delaware, the Court must further consider the relocation factors under 13 Del. C. §734 to create an Order that is in the child's best interest.
13 Del. C. § 722(a): The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interest of the child. In determining the best interests of the child, the Court shall consider all 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 cohabiting 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.
13 Del. C. § 734: When in the course of litigation involving custody or visitation, there is a proposed relocation of a child for a period of 60 days or more involving either a move outside the State of Delaware or a move that materially affects the current custodial and residential arrangement or order, the Court must consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child's relationship with the individual proposing to relocate and with the nonrelocating individual, siblings, and other significant individuals in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the individual seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating individual;
(6) Whether the relocation of the child will enhance the general quality of life for both the individual seeking the relocation and the child, including financial or emotional benefit or educational opportunity.
(7) The reasons of each individual for seeking or opposing the relocation.
(8) Any other factor affecting the best interest of the child.
CUSTODY FACTORS
The Court is required to consider the eight best interest factors in determining the custody and residential placement of children. While parties may introduce evidence on other issues supporting their claims or defenses, analysis of the eight custody factors is required and carry great weight.
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father seeks joint custody and primary residential placement of Child. Father requests that Child remain in Delaware with him. Father proposes a shared holiday schedule.
Mother seeks joint custody and shared residential placement of Child. Mother suggests a "50-50" contact schedule where the parties would exchange Child half-way between Delaware and Kentucky. Mother proposes each party have 26 weeks with Child. Mother suggests that she have Child for five to six weeks and Father have Child for two to three weeks. In summer, Father would have "extended time" with Child.
Both parties agree on joint custody but differ as to residential placement. Mother's stated goal of shared placement was not supported by her offered schedule.
Factor one is neutral.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
Child is twelve-years old and is able to adequately express his wishes as to his custodial and residential arrangements. The parties stipulated to the fact that Child wishes to remain with Father in Delaware.
Factor two favors Father.
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 testified that he has a good relationship with Child. Father has cared for Child since Child's birth. Child has resided exclusively with Father since January 13, 2022. Child requested that Child reside with Father in Delaware. Child has a good relationship with his paternal cousin and other members of the paternal family.
Mother testified that she has a good relationship with Child. Mother has cared for Child since Child's birth. Mother testified that Stepfather, Child's maternal sisters, and maternal family members have a good relationship with Child.
Child has some stress related to whether Mother would have Child relocate with her to Kentucky. The stress and anxiety have subsided since Child has continued to reside in Delaware
Factor three is neutral.
4. The child's adjustment to his or her home, school and community;
Father resides in a three-bedroom home in Newark, Delaware. Residing in the home is Father, Child's cousin, and Child. Father testified that Child has resided with Father since January 13, 2022. Child was born and raised in Delaware. He is well-adjusted to Father's home and his grades have improved since residing primarily with Father. Child attends school in Father's feeder-pattern. Child is accustomed to Father's home and has a spent a significant amount of time there.
Mother resides in a four-bedroom home in Winchester, Kentucky and is planning on moving within Kentucky. Residing in the home is Mother, Stepfather, and Child's maternal sisters. Mother's relocation to Kentucky was her third choice after West Virginia and South Carolina.
Child has not spent time in Mother's home in Winchester, Kentucky and is facing another move within the state. Child has not had an opportunity to adjust in Kentucky but is well-adjusted to Delaware and his school. Mother's plan to homeschool all of her children, from a newborn through Child's teen years, would remove Child from his school to which he is well-adjusted.
Factor four strongly favors Father.
5. The mental and physical health of all individuals involved;
Both parties testified that they are in good mental and physical health. Child is in good mental and physical health. Child has had a counselor in Delaware but there were no significant issues of concern presented to the Court.
Factor five is neutral.
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 testified that the parties had a cordial relationship until Mother's relocation to Kentucky in January 2022. Mother did not consult with Father about her relocation and attempted to hide her unilateral decision from Father until shortly before she moved. While in Delaware, both parties provided care for Child. Since Mother moved to Kentucky in January 2022, Father has continued to pay Mother child support even though Child has not been with Mother for two months. Mother has not offered to return the child support payments to Father. Father intends on Child continuing his current routine in Delaware.
Mother testified that she and Father had a troubled, yet workable, co-parenting relationship until Mother's relocation to Kentucky in January 2022. Mother wishes to have Child removed from school so that she can homeschool all of her children from a newborn through a twelve-year-old. Mother has no experience, education, or training in teaching. Mother's highest level of math was college-level algebra. Mother has not taken calculus and does not speak Spanish. Child was enrolled in the Spanish Immersion Program until school went on remote status, and has "some American Sign Language instruction". Both these would be lost if Child is homeschooled. Mother has not been accepted to her homeschooling co-op group which reviews applicants in April. By her own admission, Mother's concerns about education in Delaware are not applicable to the Appoquinimink District. Mother's stated concerns about Critical Race Theory and "Progressive" theories were stated in very general terms and were not supported by any specific examples.
Mother's plan of "shared placement" is not well considered. Mother proposed five t0 six weeks with Mother and two to three weeks with Father during the school year, and "some additional time with Father in the summer." Even if Father were to receive the entire summer, Mother's plan still does not come close to a shared placement. The plan also would have the child spend fifteen weeks with Father during the school year where Child would not be in school while Father works.
Both parties take good care of Child during their custodial time. However, Mother's educational plan would not adequately provide for Child's educational needs and would greatly affect both his relationship with Father and his adjustment to school.
Factor six very strongly favors Father.
7. Evidence of domestic violence as provided for in Chapter 7A of this title;
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.
There was no evidence of domestic violence that would cause the Court concern in deciding custody and visitation of Child. Factor seven is neutral.
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.
Neither party has a criminal record that would cause the Court concern in deciding custody and visitation of Child.
Factor eight is neutral.
RELOCATION FACTORS
Since Mother has proposed the relocation of the child, the Court is required to consider the eight relocation factors in determining whether the relocation of the child is in the child's best interest. While parties may introduce evidence on other issues supporting their claims or defenses, analysis of the eight relocation factors is required and carry great weight.
1. The nature, quality, extent of involvement, and duration of the child's relationship with the individual proposing to relocate and with the nonrelocating individual, siblings, and other significant individuals in the child's life.
Mother moved to Kentucky. Child has a significant relationship with his cousin who is close in age to Child and has lived with Child and Father for a number of years under a guardianship order. There was no meaningful testimony on Child's relationship with his half-sisters who also moved to Kentucky other than stating that Child has a normal sibling relationship. Allowing Child to relocate to Kentucky would harm the relationship with Child's cousin as well as the good relationship that Child shares with Father.
Factor one favors remaining in Delaware.
2. The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
Child is currently twelve years old and is developmentally appropriate for his age. Child is enrolled in public school and is performing well in school. Child's relocation to Kentucky would not only remove Child from his current school, but also from all schools as Mother desires to homeschool Child. Father is not in favor of homeschooling their Child. Allowing Mother's schedule would allow Mother alone to make the decision on education which is counter to the principles of joint legal custody. Relocation would have a negative impact on Child's educational and emotional development.
Factor two favors remaining in Delaware.
3. The feasibility of preserving the relationship between the nonrelocating individual and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
Child had significant time in Delaware with Father when the parties practiced a "2-2-3" contact schedule. Mother's plan would have Child in Delaware not more than 15 weeks during the school year when Child would not be in school. This would mean that Child is with Mother 75% of the time. Additionally, Mother's plan to homeschool Child during his fifteen weeks with Father was not explained in any meaningful way. Father works full time and Child would be out of school and on his own during his time with Father. The logistics of Mother's plan do not consider this factor.
Factor three favors remaining in Delaware.
4. The child's preference, taking into consideration the age and maturity of the child.
Evidence on this factor was particularly compelling. The parties stipulated to the fact that Child wishes to remain in Delaware with Father. Child is twelve years old and has adequate maturity to state his wishes.
Factor four favors remaining in Delaware.
5. Whether there is an established pattern of conduct of the individual seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating individual;
Mother's move was made for her own benefit with little to no consideration for Child or Father's thoughts on the relocation. However, there was no evidence that Mother's move was primarily intended to thwart Child's relationship with Father.
Factor five is neutral.
6. Whether the relocation of the child will enhance the general quality of life for both the individual seeking the relocation and the child, including financial or emotional benefit or educational opportunity.
Mother testified that her move to Kentucky would provide Child with more financial benefit and would increase his educational opportunities. However, Mother's plan would not enhance the general quality of Child's life. Mother's family income decreased from $110,000 to $55,000 with her move to Kentucky. Child would lose his school and associated relationship with the school. Child does not want to be in Kentucky and already exhibited stress when the relocation was being considered by Mother and Stepfather.
Factor six favors remaining in Delaware.
7. The reasons of each individual for seeking or opposing the relocation.
Mother stated that her reasons for relocation included economics, familial relationships, "more acreage," and "geopolitical" reasons. Mother did not discuss the intended move with Father and did not consider Father's thoughts before relocating.
The economics argument was not supported by her testimony. Mother stated that it is approximately 30% cheaper to live in Kentucky but they cut their income by 52%. Mother testified that her move was motivated by a desire to be closer to family. Mother later testified that Child has not interacted much with his Maternal Uncle who was living in Tennessee. The Maternal Grandparents are in Tennessee but Mother testified that they are moving to Florida. Mother's testimony on the search for a home was telling. Mother first looked at West Virginia where there are no relatives. She next looked at South Carolina where there also are no relatives but stated that it is close to North Carolina where Stepfather has family.
The message from Mother's testimony was that the move was more related to her "geopolitical" interests than the Child's best interests. This conclusion is supported by Mother's unsupported testimony that, by remaining in Delaware, Child would be taught Critical Race Theory and "Progressive" life styles even though she conceded that neither was being taught in the Child's school.
Factor seven favors remaining in Delaware.
8. Any other factor affecting the best interest of the child.
Neither party offered testimony or evidence on this factor.
CONCLUSION
In determining custody, no single factor is determinative. Rather, the Court must weigh the totality of the circumstances and reach a decision that will best serve the Child. From the evidence presented during the hearing on March 18, 2022, and upon consideration of the enumerated best interest factors, the Court finds that Best Interest Factors 2, 4, and 6 weigh in favor of Father of which factors 2 and 6 carry the most weight. Factors 1, 3, 5, 7, and 8 are neutral. None of the factors favor Mother.
Both parties are capable parents in they that are able to provide Child with a safe relationship, not only with the parties but also with their respective families. Child is extremely fortunate to have two loving parents and families. It is unfortunate that Mother decided to relocate as it forces the Court to make a decision that otherwise would not have been necessary.
From the evidence presented during the hearing on March 18, 2022, and upon consideration of the relocation factors, the Court finds that Relocation Factors 1, 2, 3, 4, 6, and 7 favor Child remaining in Delaware. Factor 5 is neutral. None of the factors favor relocation.
Both parties could provide Child an adequate home. However, Child and the parties agree that Child wishes to remain in Delaware. Mother moved to Kentucky as her third choice for relocation and is moving again in the near future. Mother unilaterally decided to homeschool Child which is opposed by Father and is inconsistent with the parties' past course of action. Further, homeschooling in Kentucky would not meet Child's educational background and would negatively affect his established relationships.
The parties are deeply concerned about Child and clearly want to continue to be involved in Child's life. The parties have had a successful co-parenting relationship and are believe they are concerned with Child's best interest. However, the parties have proposed significantly different residential placements and contact schedules. The parties have significantly different ideas about the educational standards and objectives required for Child. In this case where a rift in the education plan for Child has arisen, the Court finds that continuing the current pattern for Child will provide Child with the education and emotional stability that will enable him to grow into a productive young man.
At the request of the parties, the Court awards JOINT LEGAL CUSTODY of Child. As joint custodians, the parties must discuss all of the major decisions in Child's life before reaching a decision. These decisions include, but are not limited to Child's support, care, nurture, welfare and education. Mother should actively utilize Delaware's Home Access Center for information on Child's education. With the exception of in-person attendance at parent-teacher meetings, Mother should be able to fully participate in her son's education.
Father shall have PRIMARY RESIDENTIAL PLACEMENT of Child. Child shall continue to reside in Delaware with Father. Mother will be granted as much parenting time with Child as is practical in light of the 580 miles of physical separation between Delaware and Kentucky.
Effective immediately, and unless the parties mutually agree otherwise, Mother shall have six uninterrupted weeks with Child during the Summer. Father will have approximately two weeks after school ends and approximately two weeks before school begins.
In all even numbered years, Mother shall have Child from the Friday after Thanksgiving until the Sunday after Thanksgiving, returning to Delaware by 8:00 p.m. In all odd numbered years, Mother shall have Child from the Wednesday before Thanksgiving until the Sunday after Thanksgiving, returning to Delaware by 8:00 p.m.
In all even numbered years, Mother shall have Child from the day after school ends for Christmas break until December 30, returning to Delaware by 8:00 p.m. In all odd numbered years, Mother shall have Child from December 26 until December 31, returning to Delaware by 8:00 p.m.
Mother shall have the entire Spring Break every year. Additionally, Mother shall have the ability to spend time with Child in Delaware in January, February, and May upon forty-eight hours' notice to Father provided that Child does not miss any school during those visits.
Mother shall be responsible for Child's transportation. Child shall have unlimited phone and video contact with each parent while in the other parent's care. Holidays shall be shared according to the schedule provided and as the parties may mutually agree.
ORDER
IT IS HEREBY ORDERED this 24th day of March 2022:
1. The parties shall have JOINT LEGAL CUSTODY of R --------- D --------, Jr., born --/--/2009.
2. Father shall have PRIMARY RESIDENTIAL PLACEMENT of Child.
UNLESS MUTUALLY AGREED OTHERWISE:
3. Summer. Mother shall have Child every year from June 27 until August 8.
4. Thanksgiving. In all even numbered years, Mother shall have Child from the Friday after Thanksgiving until the Sunday after Thanksgiving, returning to Delaware by 8:00 p.m. In all odd numbered years, Mother shall have Child from the Wednesday before Thanksgiving until the Sunday after Thanksgiving, returning to Delaware by 8:00 p.m.
5. Christmas. In all even number years, Mother shall have Child from the day after school ends for Christmas break until December 30, returning to Delaware by 8:00 p.m. In all odd numbered years, Mother shall have Child from December 26 until December 31, returning to Delaware by 8:00 p.m.
6. Spring Break. Mother shall have the entire Spring Break every year.
7. Other Custodial Time. Mother shall have the ability to spend time with Child in Delaware in January, February, and May upon forty-eight hours notice to Father, provided that Child does not miss any school during those visits.
8. Transportation. Mother shall be responsible for the costs of all transportation for Child.
9. Phone and Video Contact. Child shall have unlimited phone and video contact with each parent while in the other parent's care.
10. 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).
IT IS SO ORDERED.