Opinion
File CN07-04977 CPI 20-15834
04-11-2022
RR Petitioner v. AH Respondent
Date of Hearings 10/25/2021; 10/27/2021; 11/30/2021; 1/31/2022
Date Submitted: 1/31/2022
Date Mailed/Emailed: 4/11/22
Nature of Proceeding Petition for Custody
ORDER- PETITION FOR CUSTODY
JANELL S. OSTROSKI, JUDGE
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition for Custody filed on July 31, 2020, by R- R--------(herein "Father"), represented by Brandon Spivey, Esquire, against A------H- (herein "Mother"), represented by Kara
Swasey, Esquire, in the interest of-------------, born-----------, - (herein "minor child"). The Court held a hearing over the course of four (4) days on October 25, 2021, October 27, 2021, November 30, 2021, and January 31, 2022. In addition, the Court interviewed the child on December 21, 2021. The Court heard testimony from both parties, as well as Dr.-----------------, Corp.---------, and------------ (herein "Mother's Niece").
Dr. was retained to conduct reunification counselor for Father and -. However, it appears Dr.--------changed her role to a co-parenting counselor after she witnessed the parties' interactions. Mother did not agree to a co-parenting counseling.
PROCEDURAL HISTORY
Father filed the instant Petition for Custody (herein "Petition") on July 31, 2020. On the same day, the parties entered an Interim Stipulation and Order (herein "2020 Stipulation") agreeing that they would have joint legal custody, Mother would have primary residence, and Father would have visitation every Tuesday overnight, every other weekend from Saturday at 10:00 a.m. until Sunday at 6:00 p.m., and additional visitation as agreed upon between Father and the child.
Since the Petition was filed there has been extensive motion practice and litigation in this matter. The Court held a Case Management Conference on September 28, 2020, and scheduled trial for February 17, 2021. The February 17, 2021 trial was continued after Father filed an unopposed Motion for Continuance on January 4, 2021. Thereafter, the parties entered a Stipulation on January 22, 2021 (herein "2021 Stipulation"). The 2021 Stipulation indicated that the parties would engage Dr. -----------for therapeutic visitation and reunification between Father and -. Father filed a Motion to Require Consent for Treatment on March 10, 2021 alleging that Mother was withholding consent for Dr.-----------to treat the child. The Motion was denied as moot on April 21, 2021 after Mother consented for treatment with the understanding that Father would pay for the services.
On July 2, 2021, Father filed a Motion for Interim Relief alleging that the child had "disciplinary issues," the "child [is] frequently not supervised," and "Mother instigated [discipline] and then refus[ed] to follow through." Mother did not file a Response. On August 5, 2021 the Court entered an Interim Order (herein "2021 Interim Order") granting Father's Motion without objection. The 2021 Interim Order required that (1) neither party leave the child alone for more than two hours; (2) if either party is unavailable for more than two hours, they shall notify the other party to allow them to care for the child; (3) the child should not stay with any friends, unless it was agreed to in writing by both parties; and (4) the parties shall install Life 360 on the child's phone and computer.
On August 23, 2021, Father filed an expedited Motion for Interim Relief requesting that the Court grant him sole legal custody or final decision-making authority concerning school. Mother filed a Response on August 25, 2021. The Court denied Father's Motion on August 26, 2021 after an emergency hearing and indicated that the Court would not change legal custody on an emergency basis to allow a parent to choose a school for a child as it is a personal choice that both parents should make together. The parents were encouraged to resolve the matter by seriously considering the child's preference. However, the Court indicated that, if the parents could not agree, they should maintain the status quo and keep the child at the same school she attended the previous year. Father subsequently agreed the child could attend-----------------.
The Court held a Case Management Conference on August 26, 2021 and scheduled trial for October 25, 2021 and October 27, 2021. On September 9, 2021, Wife filed a Petition for Protection from Abuse (herein "PFA") against Father. The Court, after an informal request from the parties, consolidated the PFA with the custody trial scheduled for October 25, 2021 and October 27, 2021. The parties did not complete the presentation of their case as to custody in the time allotted. However, at the conclusion of the testimony on October 27, 2021 but before the Court ruled on the PFA, the parties agreed to enter a Consent PFA Order. Among other things, the Consent PFA Order modified Father's contact with the child removing the provision regarding Father having additional contact by agreement of the child and Father.
Also at the conclusion of the testimony on October 27, 2021, the Court discussed the child's interview and the Court expressed concern that, based on the evidence presented, the child may incriminate herself while under oath during the interview because the parents were referencing the child's social media posts that indicated she may be using and selling drugs. Thereafter, the parties agreed to find an attorney to represent the child during the interview. The trial continued on November 30, 2021 but the parties again did not complete the presentation of their case. As such, the Court continued the trial to January 31, 2022. Jill Di Scuillo, Esquire represented - during the Court's interview on December 21, 2022. The parties concluded the trial on January 31, 2022. The Court reserved its decision at the conclusion of the evidence. This is the Court's final written decision.
FACTUAL FINDINGS
- was born on----------, -. According to the file, the parties were married on March 19, 2011. The parties separated in June of 2020. They agreed to an interim custodial arrangement whereby they would have joint legal custody, Mother would have primary residence, and Father would have contact every other weekend and every Tuesday overnight.
Mother and child currently live in the marital home in----------,--------. Father lives with his parents in----------,--------. The parties live approximately thirty (30) minutes apart from each other. - - attends-----------------, which is in Mother's school district. The parties disagree as to whether - is doing well at------. She gets on the bus at 7:25 a.m. and returns home around 3:15 p.m. Mother is a nurse manager at---------------and works Monday through Friday. Mother is typically home by 4:00 p.m. or 4:30 p.m. However, Mother is on call 24 hours a day/7 days a week. Father does not have formal working hours as he is running two (2) businesses while receiving worker's compensation. Father's business occasionally requires him to be out of state.
The Court interviewed -. She likes the current schedule but would be okay with a shared residential schedule. Further description of her interview is set forth below in factor (2).
There is a high amount of conflict between these parties. The conflict is discussed herein. Both parents have submitted their parenting course certificate. Further description of the relevant facts in this case are discussed in the analysis of the best interest factors below.
LEGAL STANDARD
To determine custody, residential placement, and visitation, the Court must analyze the factors under 13 Del. C. § 722 to create an Order that is in the child's best interests. Additionally, the Court shall award both parents frequent and meaningful visitation "unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child's physical health or significantly impair his or her emotional development."
13 Dd. 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 7 A 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
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 defense, 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;
The parties agree that they should have joint legal custody. They also agree to maintain Life 360 on the child's phone and to share the child's passwords.
Father is seeking primary residence of the child. Father proposes that Mother visits with the child every other weekend, from Friday after school until Monday when she drops the child off at school, and one weekday overnight. During the summer, Father proposes that the parties have a week on/week off schedule.
Mother is seeking primary residence of the child. Mother proposes that Father visits with the child every other weekend, from Friday after school until Sunday at 6:00 p.m., and every other Tuesday overnight.
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 - on December 21, 2021. - is fifteen (15) years old. The Court found her to be a shy but well-spoken person. She was clear that she likes the current schedule but is also "okay" with changing the schedule. She explained that she is most comfortable in Mother's home and does not feel "at home" when in Father's home because she feels as though she is just visiting her paternal grandparents. Nevertheless, she does enjoy seeing her paternal grandparents because they spoil her and "let [her] do whatever [she] wants."
- confirmed that each parent disciplines her very differently. Father will have a "long talk" and does not allow her to see friends. Mother will take away her phone at night or ground her. She is aware that Mother and Father are often "not on the same page" when disciplining her. She explained that one parent will punish her while the other parent does not. - also expressed that she has a good relationship with both parents, and neither parent has "scared her".
As - has a good relationship with both parents and appears amenable to a shared residential placement, the Court finds this factor supports the parties having shared residence.
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;
It is undisputed that - has a great relationship with Mother except when Mother attempts to discipline her. She also has a great relationship with Mother's support system, which includes Mother's father, cousin, and aunt.
- reports that she has a good relationship with Father. However, Father's evidence shows that, similar to Mother's relationship, he does not have a great relationship with -. Father presented a recording when - was very nasty and disrespectful to Father when Father attempted to discipline - by taking her phone away from her. Nonetheless, the Court gives weight to -'s statement that she has a good relationship with Father. It is undisputed that the child has a great relationship with Paternal Grandparents.
Father's Exhibit 19.
As it appears that - has a good relationship with both parents and the members of her extended family on both sides of her family, the Court finds this factor supports the parties having shared residence.
4. The child's adjustment to his or her home, school and community;
Mother lives in the marital home with -. It is a four (4) bedroom home in----------,--------. It is undisputed that the child is adjusted to Mother's home as it has been the child's home since before the parties separated. The child told the Court that she feels at home in Mother's home.
Father lives with his parents in the Paternal Grandparents' two (2) bedroom home in---------, - -------- - has her own room and Father stays in the basement. She told the Court she does not feel as comfortable in Father's home as she does in Mother's home. However, she also stated that she would be amenable to spending every other week at Father's home, despite her not feeling as comfortable in his home.
- is in 9th grade at-----------------. She attended-------------------- until 8th grade. Mother testified that - had wanted to transfer schools since 7th grade because she was struggling with academics since the COVID-19 pandemic began. Father testified that the child was an A/B student from kindergarten until 8th grade but her grades started dropping in 9th grade and she became a D/F student. Father submitted the child's report cards from 4th to 8th grade which show that, contrary to Father's testimony, the child's grades began declining in 7th which coincides with the onset of the pandemic as Mother indicated. Mother testified that - is doing well at------and is currently an A/B student who is excited for the engineering or health science path. As the documentary evidence Father presented supports Mother's testimony regarding the child's progress, the Court finds the child is adjusted to her school.
Father's Exhibit 17 (The child's lowest grade before COVID-19 began was an 82%. Once COVID-19 started, she received a 76% in her seventh (7th) grade year and received even lower grades in her eighth (8th) grade year.)
- plays travel soccer and shares this passion with Father who is actively involved in this activity with her. There was no other testimony about the child's involvement in the community.
As the child is adjusted to both homes, her school, and her community, the Court finds this factor supports the parties having shared residence.
5. The mental and physical health of all individuals involved;
It is uncontested that Mother and the child are healthy.
Father testified that his physical health is "not good." He explained that he is on worker's compensation after three years of delayed knee surgeries. He also testified that he has physical therapy for one (1) hour, three (3) to four (4) times per week. However, there was no evidence that Father's physical ailments impact his ability to parent the child.
Mother testified that Father has alcohol abuse and anger issues. Mother testified about incidents where she claims Father was drunk but did not present any clear evidence that Father abuses alcohol. Mother also testified about situations where Father exhibited his anger toward Mother and the child. To wit: Mother testified that Father kicked a hole in the child's door when he was angry and there were several incidents where Mother and Father were fighting and Father got very angry. However, - told the Court that Father has never scared her and there was no expert witness indicating that Father's alleged anger management issues interfere with his ability to parent this child.
As both parents are healthy and able to care for the child, the Court finds this factor supports share residence.
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."
Prior to the parties' separation, they shared natural legal custody. Neither party presented evidence that the other did not meet their rights and responsibilities as a parent before separation. As such, the Court will assume that both parties met their rights and responsibilities as parents prior to separation.
Since the parties separated, they have not been getting along and there is much conflict between them. They have agreed to joint legal custody but it is clear to the Court that they are struggling to co-parent. Mother calls Father names during their conversations and, at times, Father fails to timely respond to Mother when a decision needs to be made. Furthermore, for the reasons stated below in factor (7), the Court finds Father committed an act of domestic violence against Mother.
The child has been engaging in risky behaviors related to drugs and sex. She is in need of immediate interventions to avoid problems with drug use and consequences of unprotected sexual activity. The conflict between the parents is preventing them from effectively co-parenting her. They each have their own methods of disciplining her and it appears they do not support the other party when the other party disciplines -. - is a smart, young woman and clearly recognizes that her parents are "not on the same page" when it comes to discipline. There was a lot of testimony regarding Father's concerns that Mother was leaving the child unsupervised. While an unsupervised 15 year-old would not typically be a problem, it is a problem for - as this unsupervised time was allowing - to get into trouble. Mother stopped allowing the child to be home alone after an Order was entered prohibiting same. Father allows the child to manipulate him. He believes -'s statements without consulting with Mother allowing - to get away with things that she should not. It is clear to the Court that - is manipulating the parents to get what she wants. Dr.-----------confirmed that she sees the same things and Dr.-----------is very worried for -'s future if the parents do not begin to cooperate with each other.
The inability to co-parent is relevant to legal custody but the parties have agreed to joint legal custody. With respect to the child's residence, the Court is confident that both parents love - and want to do what is best for her. They are just having trouble with having the same plan. They both recognize that - needs to be disciplined but they appear too afraid to discipline her for fear that disciplining her might cause such conflict with - that their relationship with her will be jeopardized. The Court does not find either parent more at fault than the other in this regard and, therefore, must find that this factor supports the parties having shared residence.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and There is a long history of conflict between the parties. Dr.-----------confirmed that it is her understanding that the parties argue frequently and the fights often lead to pushing, shoving, or hitting. She found that these parents needed co-parenting counseling more than Father and - needed reunification and switched her focus to co-parenting counseling instead of reunification counseling. However, Mother was not in agreement given her perception that there was domestic violence between the parties. The following is a summary of the incidents the parties referenced in their testimony:
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.
a. Mother testified that, in December 2019, Father put his foot through the child's door but provided no other details or evidence regarding the alleged incident. - told the Court that neither party "has scared her". Given the limited information regarding this alleged incident, the Court cannot find that it was proven by a preponderance of the evidence that Father committed an act of domestic violence in this regard.
b. On June 13, 2020, the parties were hosting a barbecue at their home that lasted the better part of the day and into the evening. The Court notes that Father's testimony was inconsistent regarding this incident with respect to how much alcohol he drank on this date. On October 27, 2021, Father estimated that he had five (5) drinks over the entire day. On January 31, 2022, Father testified that he had ten (10) seltzers over a six (6) hour period. Mother testified that, later in the evening, Father began yelling at Mother and pushed her onto the couch. Mother's niece testified that she saw this part of the altercation through a window and ran into the home. Father claims that Mother jumped onto his back. Both parties called the police claiming they were assaulted by the other party. Father was arrested and charged with Offensive Touching. The charge was resolved when a nolle prosequi was entered after Father completed an anger management course. Mother does not have any charges stemming from this event. After considering all of the testimony regarding this event, the Court finds it more likely than not that Father committed an act of abuse against Mother in that he intentionally or recklessly placed or attempted to place Mother in reasonable apprehension of physical injury.
c. Father testified about an alleged incident between Mother and child. The child apparently told Father that Mother grabbed her and pushed her into a plant after Mother became angry when she saw a photograph of the child with a vape pen. - allegedly told Father that she was scared of Mother and asked him to come get her. Father picked her up and kept her at his house for a period of time that she was supposed to be with Mother. Father claims to have seen a "large handprint" on the child's thigh and marks on her hand but he did not present pictures of these alleged marks. Father called the police but did not file a Petition for Protection from Abuse. The Court has reviewed Mother's Delaware criminal history and she does not have any charges from this alleged event. While these allegations are concerning, the Court notes that the child told the Court that neither parent "has scared her." It is also significant to the Court that Mother had punished - for having a vape pen and, while - stayed with Father, - avoided the punishment as Father allowed her to attend her school's football game. For all of these reasons, the Court cannot find that it was proven by a preponderance of the evidence that Mother abused - in this regard.
d. On August 31, 2021, Father and - were meeting Mother at-----------------for -'s orientation. Father got upset when he picked - up from Mother's home because he did not think that she was dressed appropriately to attend a school event. Father called
Mother while they were both driving to the event and yelled at Mother. Father was still upset when he arrived at school. Mother claims that Father later pushed her. Father denied the allegation at trial but Dr.-----------testified that Father admitted to her that he "bumped into Mother." Father was arrested for offensive touching. The charges are still pending and scheduled for a Case Review on June 21, 2022. At the instant trial, Father provided video recordings of what he believes shows the interaction at the school. The video did not show Father hitting or bumping Mother. It is unknown to this Court whether the time period that was shown on the recordings was the time period when Mother alleges Father hit her. Given the conflicting testimony, the Court cannot find that it was proven by a preponderance of the evidence that Father abused Mother in this regard.
Mother's Exhibit 1 ("The State and the defendant are requesting an additional case review or control calendar date to resolve the case: Between now and then, if the defendant completes an anger management course and abides by a no unlawful contact order with the alleged victim, the State agrees to enter a nolle prosequi on the case.").
l0 Del. C. § 1041(b).
It is clear that there is much conflict between these parties and for the reasons stated herein, the Court finds that Father abused Mother on June 13, 2020. However, the parties agreed to joint legal custody and the Court will not disrupt their agreement. With respect to residence or a contact schedule, the Court cannot find that it was proven by a preponderance of the evidence that Father has abused - and - has told the Court that neither party has "scared her". Therefore, the Court finds that, despite the finding of abuse, Father is entitled to frequent and meaningful contact so long as exchanges can take place in such a way that - does not witness any more conflict between her parents.
8. The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
The Court has reviewed the Delaware criminal histories of the parties. Neither party has any convictions which concern the Court. Father's offensive touching charge which includes Mother as the victim is still pending. As such, at this time, the Court finds this factor supports the parties having shared residence.
CONCLUSION
The parties agree that they should have joint legal custody. Therefore, the Court's analysis focused on residence and a contact schedule. Based upon the Court's analysis of the best interest factors herein, the Court finds that factor (1) is neutral and all other factors support the parties having shared residence.
WHEREFORE, the Court enters the following Order:
A. By agreement, the parties shall have joint legal custody and shall make decisions jointly regarding the child's health, education, and welfare.
1. The parties agree that they shall maintain the Life 360 App on -' s phone.
2. The parties also agree to share the child's passwords with each other.
B. Beginning with the first weekend following the end of the school year, the parties shall have shared residence with a week on/week off rotation consistent with their current weekend schedule. Unless agreed in writing otherwise, exchanges shall take place on Fridays after school or at 5:00 p.m., curbside, if there is no school on the day of exchange, i.e. Whoever is scheduled to have the child for the weekend on the first Friday after the school year ends, shall begin their first full week. This schedule shall continue year-round.
C. Nothing herein prevents the parties from modifying this Order. It is recommended that any modifications be in writing (text or email would suffice) to avoid any confusion between the parties.
D. In the event of conflicting dates and times, priority is given first to holidays (including Mother's and Father's Day), then to school breaks, then to summer vacations, and then to regularly scheduled weekly contact.
E. 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: The schedule set forth above shall be a year-round schedule.
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.
F. 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.