Opinion
File No.: CK18-01142 Petition No.: 19-13631
10-14-2020
Re: S---- R---- v. E--- R----
Bruce A. Rogers, Esquire 12 South Front Street P.O. Box 876 Georgetown, DE 19947 brucer-law@attyrogers.com David J. Bever, Esquire Barros, McNamara, Malkiewicz & Taylor, P.A. 2 West Lookerman Street P.O. Box 1298 Dover, DE 19903 djb@firststatelawyers.com
Bruce A. Rogers, Esquire
12 South Front Street
P.O. Box 876
Georgetown, DE 19947
brucer-law@attyrogers.com David J. Bever, Esquire
Barros, McNamara, Malkiewicz & Taylor, P.A.
2 West Lookerman Street
P.O. Box 1298
Dover, DE 19903
djb@firststatelawyers.com
LETTER DECISION AND ORDER
Dear Mr. Rogers and Mr. Bever,
This Court held a virtual hearing on July 15, 2020, regarding the Petition to Modify Custody filed by S---- R---- ("Father") against E--- R----, "(Mother") in the interest of the parties' children, G--- R------ (born --/--/----), B---- R---- (born -/--/----) and R---- R---- (born -/--/----), (the "Children"). Appearing before the Court were Father, represented by Bruce A. Rogers, Esquire ("Mr. Rogers"), and Mother, represented by David J. Bever, Esquire ("Mr. Bever"). In addition to the parties, the Court heard testimony from Father's fiancée, J-- G----- S---- ("Ms. G-----S----"), and her mother, Dr. V---- G-----S---- ("Dr. G-----S----").
Procedural History
The parties entered into a consensual custody arrangement which this Court signed as a stipulated order on June 12, 2018 ("Consent Custody Order"). Under the Consent Custody Order, Mother and Father have joint legal custody of their three minor children and Mother has primary physical placement of the children. Father has visitation on alternating weekends starting at 5:00pm on Friday until 5:00pm on Sunday and every Wednesday from 5:00pm to 8:00am on Thursday. During the summer, Father would also have Monday evening visitation. Father also has up to three additional visits with the children each month, which do not include overnights, at a time agreed upon by the parties. The parties have structured these three monthly contacts as individual time for Father and one child per visit. The parties agreed to a right of first refusal if they are going to need third-party childcare to allow the other parent the opportunity to provide that care. The parties agreed that the parent who has the children is responsible for their attendance for extracurricular activities. Both parents have the ability to participate in extracurricular activities with the children whether it is their time to have the children or not.
The parties agreed that Mother would have the children with her on Easter, the Fourth of July, Labor Day, Halloween, New Year's Eve, and Christmas Day. Father will have the children the day before Easter, Memorial Day, Thanksgiving, Thanksgiving Friday, New Year's Day, and Christmas Eve. The parties agreed that: "Christmas Eve visitation shall begin at 5pm on December 23rd and end at 4pm on December 24th. Christmas Day visitation begins at 4:00pm on December 24th and ends at 4:00pm on December 25th. All other holidays shall be from 9:00am until 8:00pm, except Thanksgiving during which Father shall have the children from 5pm the day before Thanksgiving Day until 9:00am on the Friday. If it is Father's weekend, the children will be returned to him Saturday at 9:00am, otherwise the normal visitation schedule will resume."
The parties agreed that the children would be with Mother on Mother's Day and Father on Father's Day from 9:00am to 8:00pm. The children's birthdays would include a shared dinner with only the children and the parties. School breaks were to be split between the parties. The parties agreed to not impede the ability for the children to communicate with the other parent and agreed that the parents are entitled to reasonable communication while the children are in the care of the other parent.
Father filed a Petition to Modify Custody Order on May 9, 2019 to alter the Consent Custody Order. A full day hearing was scheduled for January 16, 2020; however, on January 14, 2020, Mother filed an emergency ex-parte Protection from Abuse petition. By Order dated the same, a Temporary Ex Parte Order of Protection from Abuse was entered by the Court, and a PFA hearing was scheduled for January 21st. On January 15th, an emergency Motion for Continuance was filed by Mr. Bever, requesting that the January 16th custody hearing be continued due to potential implications from the PFA. Without objection by Mr. Rogers, this Court granted the continuance request by Order dated January 15th. The custody modification hearing was rescheduled to May 18, 2020. On April 20, 2020, due to COVID-19 restrictions on in-person hearings, the Court issued an Order rescheduling the instant hearing for July 15, 2020. On May 21, 2020, a Commissioner accepted the parties' stipulation for dismissal of the Protection from Abuse Petition without prejudice.
Due to the ongoing COVID-19 pandemic, a case management conference was held on June 29, 2020 to discuss the potential for a video hearing instead of an in-person hearing. Mr. Rogers informed the Court that the parties had made "significant progress" toward a resolution. However, Mr. Bever stated that there was still some uncertainty related to the placement schedule due to continued pandemic related closures. Counsel was instructed to submit a status report by Friday, July 10, 2020 to inform the Court if a hearing was necessary and if the hearing could proceed virtually. Mr. Rogers and Mr. Bever informed the Court that a hearing was necessary and could proceed virtually.
During the instant hearing the parties stipulated to joint legal custody. However, in his opening statement, Mr. Bever clarified that because of uncertainty related to the pandemic, Mother did not wish to stipulate to equal shared placement. Mother clarified that she would be comfortable with equal shared placement while Father was working from home, but seeks the ability to parent the children in the event that Father's schedule changes and he is unavailable.
Factual Background
Father is -- years old and resides with his fiancée, J-- G-----S---- (DOB: -/--/----) in F-----, Delaware. He and Ms. G-----S---- entered into a relationship in June, 2018 and will be married December 12, 2020. Father is employed by ---- ---- in --- ------, Delaware where he works as a ------- --------- Coordinator and typically works from 7:00am until 3:30pm. The Court was not advised whether Father has a traditional Monday through Friday work week. Father has been working from home exclusively since March 2020 during the pandemic. When he reports to work in person, his commute is approximately an hour. His employer has not provided information regarding when work will resume in person. However, Father indicated that his employer is "willing to work with him" to develop a flexible schedule to allow him to drop the children off for school in the morning and pick them up in the afternoon. Father stated that there is potential for his work to be done remotely in the future.
Father testified that if for some reason he is unavailable, his fiancée, Ms. G-----S----, can be available to care for or transport the children. Ms. G-----S---- is employed as an ---------- --------- at ------ -------. She stated that her workday starts at 8:30am and Father indicated that she typically works until 4:00pm and her commute is approximately 20 minutes to downtown ----- when she works from her office. She is working from home four days a week and goes into work on Tuesdays. She too will be working from home until further notice. Father stated that Ms. G-----S---- also has flexibility with her work schedule.
Mother resides in ------, Delaware with the children and her mother, S---- M----- ("Maternal Grandmother") (DOB -/--/----). Mother is employed as a -------- ------- ------- which involves buying and delivering groceries, primarily to elderly or infirmed people. She has worked in this role since October 2018 and is able to work at her discretion and set her own hours. This means that Mother can work around the children's pick up and drop off times and choose not to work during the days they have been home related to the pandemic.
Legal Standard
Under 13 Del. C. § 729(b), "[a]n order entered by the Court by consent of all parties, an interim order or a written agreement between the parties concerning the legal custody of a child or his or her residence may be modified at any time by the Court in accordance with the standards set forth in § 722 of this title."
The Court must analyze the factors under 13 Del. C. §722 to create an Order that is in the best interests of the children. Both parents shall be granted 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."
13 Del. C. § 722(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 relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;(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.
(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.
As stated earlier, the parties have stipulated to a joint legal custody and shared residential arrangement, but disagree regarding how placement should be shared and the residential schedule.
§ 722 Factors
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father would like to equally share placement of the children with Mother on a week on/week off basis to reduce the number and frequency of transitions for the children. Father sought modification because he believes the Consent Custody Order "was not working". He stated that both he and Mother noticed that the children were "constantly" tired and Mother brought to his attention that G--- was falling asleep in school on a Thursday after spending the night before with Father. Father stated that communication between himself and Mother is not "what it should be" for them to work together as parents. Father described an incident in October 2018 in which Halloween, Mother's holiday, fell on a Wednesday. He requested that they arrange to switch his overnight to Thursday, November 1, 2018 to avoid the children going ten days without an overnight with Father, but Mother refused and the parties were unable to resolve this issue. Father believed this decision was made out of spite because he would not allow Mother to take the children to an event during his visitation weekend. Father stated that this type of communication was typical. Father noted that under their schedule in the Consent Custody Order there were several instances in which he went six consecutive days without an overnight with the children.
The Court admitted text message exchanges surrounding the children being tired without objection as Father's exhibit #9a, and 9m.
The Court admitted text message exchanges surrounding the arrangements for Halloween visitation without objection as Father's exhibit #9n, 9q, 9r, and 9s.
The Court admitted a calendar reflecting overnight visitation that occurred with the children in 2019 without objection as Father's exhibit #4.
Father testified that the last week of March 2020 the parties agreed to deviate from the Consent Custody Order and have consistently followed what he refers to as a 3:2:5:4 schedule. Under their pandemic schedule, Mother has the children Sunday through Tuesday overnight until they transition to Father for Wednesday overnight at 5:00pm where they stay until Friday at 5:00pm. Mother then has the children from 5:00pm on Friday until 5:00pm Wednesday when they return to Father. The children stay with Father until 5:00pm Sunday.
The Court admitted a calendar of the 2020 visitation as it occurred until the date of the hearing without objection as Father's exhibit #1.
Father believes that a week on/week off schedule would create stability for the children. He stated that the children struggle to adjust when they spend shorter amounts of time with him and by the time they have adjusted to his home they are preparing to leave. He therefore believes the two or three day transitions are not beneficial to the children and limit the quality of their time in his home. Father stated that he and Mother communicate solely through text messages and experience communication issues like those referenced above. Father testified that he and Mother have disagreed regarding what is permissible under the Consent Custody Order with regard to vacation time with the children and how winter and spring breaks should be divided. Father believes that a longer period of time between transitions could resolve some of the communication issues between the parties because there would be fewer interactions between them. His proposed schedule would also reduce the amount of negotiation necessary for visitation dates and changes to the schedule. Father provided a calendar applying his preferred alternating week placement and applied the Family Court Contact Guidelines for holiday division.
This issue is discussed in detail under factor (4).
The Court admitted text message exchanges surrounding arrangements for Christmas vacation without objection as Father's exhibit #9y - 9bb, The Court admitted text message exchanges surrounding arrangements for summer vacation without objection as Father's exhibit #9i and #9j.
The Court entered a calendar of the 2021 year using a 2:2:5:5 schedule without objection as Father's exhibit #2.
The Court entered a calendar of the 2020 year using an alternating week schedule without objection as Father's exhibit #8, the Court entered a calendar of the 2021 year using an alternating week schedule without objection as Father's exhibit #7.
Mother testified that she voluntarily gave Father additional time during the COVID-19 pandemic around March 26, 2020. Prior to that change, Mother has complied with the requirements of the Consent Custody Order. She requests a placement schedule which mirrors the parties' pandemic schedule which she describes as a 2:2:5:5. Mother believes this offers stability for the children and allows the children "good chunks of time" with each parent without too long between visits. This schedule allows both parents to have two consecutive week days, alternate weekends, and allows for continued involvement in extracurricular activities weekly. However, given the uncertainty about the children's school schedule and Father's work schedule in light of the COVID-19 pandemic, Mother would prefer to provide educational support and after school care herself rather than rely on a third party or family member.
Mother mentioned that Father continues to work in the same job he had during their marriage which required him to leave for work around 5:30am or 6:00am and sometimes not return until 5:00pm. Mother recalled that Father had two weeks of vacation time he could use or the occasional half day, but did not have much flexibility with his work schedule. Under the Consent Custody Order, Mother agreed to transport the children to school at 8:30am and pick them up between 3:30pm and 3:45pm, even on Thursday mornings after they spent the evening with Father. Mother stated that she offered to have Father drop them off, but he could not be late to work in the morning. Mother is content with continuing with the shared placement schedule the parties have relied upon since March if Father is present, working from home, or can take the children to school on Thursday and Friday when they resume in-person classes. However, Mother requested the inclusion of a right of first refusal to allow her to provide child care if Father returns to work in person and the children would regularly be in the care of someone other than Father. She believes that a right of first refusal would allow the parties to prioritize quality time for a parent in the event that the other parent is unavailable.
With regard to Father's communication exhibits, Mother stated that they are representative of their communication which consists of messages that are "informative and relate to the children." Mother stated that the parties communicate when the children are sick, or when they have an appointment. Mother stated that she schedules appointments for doctor and dentist visits on her days and sends Father a report afterward, to which Father has never objected. Father confirmed that Mother typically schedules appointments for the children during her time, but stated that he has attempted to be involved. Recently, there was a podiatric appointment for the removal of plantar warts, but Mother only told Father after the procedure. With regard to their communication, Mother stated that usually issues can be resolved, but they may take longer than Father would prefer.
Mother believes there are some "grey areas" in the Order, specifically as it relates to school breaks and holidays. Mother believes a specific order would be beneficial to the parties and has seen that the current schedule has worked better and reduced the need for communication between the parties. With regard to the division of holidays, Mother mentioned that she would prefer Halloween because they have a family tradition with her aunt and uncle, to which Father has been invited and declined to attend. Mother supports the holiday division in the Consent Custody Order, but would like more specificity related to holiday transitions. Mother further requested a week long period of undivided time with the children for summer vacations.
Both parents request shared placement, but have conflicting preferences for the schedule. Additionally, Mother would like a right of first refusal in the event Father returns to work and the children are engaged in remote school to allow her to have quality time with the children during the day in lieu of a family member or third-party. Both parents recognize that communication and interpretation of the Consent Custody Order has been challenging for them and a more specific order would provide clarity and reduce the need for communication between the parties. This factor does not favor either party.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
Father stated that under the Consent Custody Order the children were aware of the fact that they saw him only on alternating weekends and one evening a week. The children were aware of the unequal division in the time spent with Mother and Father. Father testified that the children would not want to leave his home, or would request to stay an additional night. Father stated that in November 2018, the children, without prompting, requested a week on/week off schedule. The children "often" relayed their frustration about not seeing Father as much. Father stated that the children asked why they were leaving his home and would feel as though they just arrived. The children expressed confusion to Father related to frequent movement.
Mother agreed that the children have expressed a preference for time with both parents. Mother stated that the children have adjusted to the pandemic 2:2:5:5 schedule they have used since March 2020. She stated that the children have told her they are happy with the modified schedule and do not wish to go long periods of time without seeing Mother or Father. Mother stated that the children benefit from a detailed order.
The testimony provided indicates that the children are pleased with the current schedule as it provides equal amounts of visitation and allows them to spend time with both parents each week. The parties disagree about which shared placement schedule addresses the needs of the children. Therefore, this factor is neutral.
(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;
The children have positive relationships with both of their parents. Dr. G-----S---- is the mother of Father's fiancée, Ms. G-----S---- and testified as a fact witness regarding the interactions she has witnessed between Father and the children. She mentioned that the children also have a good relationship with each other and interact among themselves. Dr. G-----S---- stated that the children are close to Father. She has seen that the children trust Father and there is a strong bond between them. Ms. G-----S----, Father's fiancée, also testified to her impression of the children's relationship with Father. She has also seen the positive relationship between Father and the children. She stated that Father likes to talk about Star Wars with G--- and talks to him more like an adult. B---- is a Daddy's girl and enjoys spending time with him. She noted that Father and R---- have a special connection in which Father understands him and knows what to ask to help R----. Ms. G-----S---- has seen Father treat all three children with respect and has noticed that the children respond well.
Father stated that the children also have a good relationship with Ms. G-----S----. Father testified that the children knew her before they were in a relationship because she was the Sunday School director at their church. The children are comfortable with Ms. G-----S---- and she has taken cues from the children to move their relationships forward. Ms. G-----S---- purchased step-parenting books to prepare herself to meet the children and learn what she needed to give the children in a step-parent role. Dr. G----- S---- noticed that the children quickly bonded with Ms. G-----S----. She has seen that her daughter has a special bond with each child and the children quickly became comfortable with her.
Ms. G----- S---- stated that she has seen G--- grow in affection as he has become more comfortable with her. He jokes around and asks her to come say goodnight to him and to give him a hug. B---- is affectionate, welcoming, and feels comfortable asking Ms. G-----S---- questions. Ms. G-----S---- stated that she and R---- have a close connection and he enjoys cuddling with her. She and Dr. G-----S---- stated that the children and Father typically spend time with the G-----S---- family for dinner once a week, they have celebrated holidays, and went on vacation together. Father testified that the children refer to Ms. G---- S----'s parents as "Papa" and "Gigi" and treat them like grandparents and are treated like grandchildren by the G-----S---- family. During the pandemic, Dr. G-----S---- and Mr. G-----S---- have been able to communicate with the children by video chat and Mr. G-----S---- reads stories to the children.
Father stated that the children have relationships with his father, step-mother, and his step siblings that live nearby. They get along well with them when they have family events. The children also have positive relationships with Father's brother and sister-in-law who have a son the same age as G--- and a daughter.
Mother stated that in addition to her relationship with the children, Maternal Grandmother lives in her home and sees the children on a regular basis. Mother stated that the children spend time with her brother and sister-in-law who have children ages 5 and 2, with whom the children have close relationships. Mother's Aunt G--- and Uncle L---- also live nearby and spend time with the children. When asked during cross examination, Mother stated that the children briefly interact with R----- S---- when they go to his home to use the swimming pool. The children have seen him about eight times in the last year and a half, but have not been on any vacations or trips with him.
The Court was not advised who R---- S---- is and his relationship to Mother.
Mother has no concerns with the children spending time with Ms. G----- S---- or her parenting ability. She stated that there have been no issues with her.
Based on the children's positive relationships with Father, Mother and their extended families, this factor supports an equal shared residency.
(4) The child ' s adjustment to his or her home , school and community;
G--- and B---- attend -.-. S------ E--------- School ("S------") and R---- will join them to attend school in the fall of 2020. The children are school choiced to S------, meaning that they must be dropped off at school and cannot take the bus. Under the Consent Custody Order Mother transported the children to school.
Mother and Father live approximately 12 minutes from each other and Father's home is approximately 15 minutes from the school.
The children have participated in remote school from both homes since March 2020. Mother stated that the children worked with her to complete their lessons in the morning and completed extra work in the afternoon. In fourth grade, G--- struggled with math and worked on his multiplication tables to raise his "D" grade to an "A." The rest of the children are doing well in the school. Mother stated that remote learning went smoothly in the spring.
Ms. G-----S---- stated that the children are adjusted to Father's home and their school. She noted that there were some frustrations with remote learning, but Father was able to be more involved and communicate with teachers more frequently because he was also working from home. During remote school, Ms. G-----S---- would sit with R---- to guide him through sessions with teachers. She and Father would then alternate to work with B---- and G--- after they completed their remote classes.
The children ordinarily engage in extracurricular activities, but those have been halted because of the pandemic. Mother stated that B---- participates in Girl Scouts every other Monday, all three children participate in Cub Scouts on Tuesdays, and Wednesday they have therapy. Mother stated that B---- also participates in chorus before school and both G--- and B---- participate in E—T--- on Thursdays after school. Occasionally, the children also have additional school events. Mother stated that both parents have the opportunity to attend school events and Girl Scout or Cub Scout events even if it is not their visitation day.
Father stated that his desire for an alternating week schedule is largely based upon the difficulties the children experience adjusting immediately after transitions, as mentioned above in factor one. Father stated that it takes time for the children to adjust to his home after a period of time with Mother. When they first arrive, the children are "rambunctious" and "excited" because the rules are different in each home. Father noted that it typically takes a day or two for the children to re-acclimate to the rules in his home. R----, as the youngest child, struggles the most. Father believes that frequent transitions in the schedule are a struggle for the children. He has asked the children what would help them adjust and they informed him that they would like more time at his home. He stated that the children routinely ask why they are leaving when they feel they have just arrived at Father's home. In Father's experience, the longer the children are with him the better their behavior is.
Father stated that the children are also tired because of the transitions which was an issue that has also been raised by Mother. After a Wednesday night visit with Father, Mother requested that he forgo the mid-week overnight visits with the children in exchange for a few additional hours with the children on Sunday evenings. She stated that G--- fell asleep twice in class and struggled to accomplish school work. Father stated that in addition to struggling to adjust to his home, being tired has led to the children being more irritable.
Father's exhibit #9m.
Dr. G----- S----, who is Ms. G-----S----'s mother and until April 1, 2020 lived near Father and Ms. G-----S----, stated that it takes time for the children to adjust. The first day of their visit with Father the children seem more hesitant. She noticed that they would have more frequent "meltdowns." For example, R---- would refuse to eat, get on the floor, and run away from the table during dinner. However, by Sunday he was able to eat at the table and engage with the family. Dr. G-----S---- has observed that adjustment issues are different with B----. She has more of an attitude in the first days and will have to excuse herself because she has headaches. Dr. G-----S---- stated that G--- tends to be quieter after the transition and as time passes he becomes more willing to engage.
Ms. G-----S---- has also noticed that transitions have been challenging for the children, even with the new pandemic schedule. R---- is "moody" and "grumpier", B---- and G--- are "on each other's nerves" more, and B---- craves more one on one attention. She stated that when the children have more time, they settle and become more comfortable and less stressed.
Mother stated that the children were adjusted to the schedule under the Consent Custody Order and have adjusted to the pandemic schedule. Mother testified that the children are happy with the schedule and enjoy knowing whether it is a "two day or a five day" visit. Mother has not witnessed the issues with adjustment after transitions that Father has described. She testified that when the children return from Father's home after a longer period of time, that they are very tired the first day.
Although Mother has not noticed the behavioral issues related to transitions, she has observed, as demonstrated by the evidence provided by Father and her own testimony, that the children are tired after transitions. The testimony provided by Father, Dr. G-----S----, and Ms. G-----S---- was credible and supports the assertion that a greater number of transitions have an impact upon the adjustment of the children to their home. Therefore, this factor favors Father's position.
(5) The mental and physical health of all individuals involved;
The children have participated in therapy since the spring of 2019. Father requested that the children engage in therapy and Mother agreed. Father stated that he wanted to encourage the children to express their emotions. Father believes that G--- has difficulties identifying his feelings and expressing a range of emotions. Father testified that G--- believes he has to act okay all the time and that therapy can help him identify that it is okay to work through problems. B---- also engages in therapy, but Father noted that she is better at venting frustration with her siblings and expressing emotion.
B---- and G--- see M------ H---- from M----- E--- in D----, Delaware in sessions that now take place virtually. R---- tried therapy virtually, but struggled to focus in video therapy. Mother stated that B---- has three sessions per month and G--- has one, but that she can request more, if necessary.
Mother testified that B---- has celiac disease which requires her to eat a gluten free diet. Mother said both parents have been able to accommodate B----'s food restrictions. Mother stated that R---- had his tonsils and adenoids removed, but otherwise the children are healthy.
Father stated that there are no concerns related to his physical or mental health at this time.
Ms. G-----S---- stated that she is in good physical health and has no concerns at this time. She receives mental health treatment in the form of grief counseling related to the death of her grandfather and brother and takes 40mg of Fluoxetine for depression once a day.
Mother was diagnosed with Crohn's Disease which she has managed with changes to her diet. Mother was prescribed an anti-depressant to address postpartum depression and anxiety following the birth of G---. She continues to take Cymbalta 60mg once per day, Alprazolam as needed, usually every three days, and Trazadone 50mg for sleep. She stated that she has had no significant mental health issues since being prescribed medication and has a regular medication check every six months to ensure that the medications are working and do not need to be adjusted.
The health of all individuals involved does not appear to have an impact on the best interests of the children. Therefore, this factor does not favor either party but supports an equal shared residency.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
Pursuant to 13 Del. C. § 701, even without a Court Order, parents are responsible for the support, care, nurture, welfare, and education of their children. Father stated that he is current with child support and has overpaid. Mother admitted that child support is "under control."
Based on the testimony related to communication detailed above, the parties have difficulties communicating and interpreting the Consent Custody Order. Father stated that the parties only communicate by text messages and there are times when they struggle to reach a resolution. Mother stated that the communication between herself and Father is informative and related to the children although it may take longer to reach a resolution than Father would like. Despite their differing perspectives on the efficacy of their communication, Mother stated that a specific court order would provide clarity and reduce the need for communication. Father stated that a week on/week off schedule would reduce the need for communication about the schedule.
Father's exhibit #9y-bb.
Ms. G-----S---- testified that she has observed communication issues between Mother and Father with regard to arrangements for the children. She stated that the Consent Custody Order has a lot of "grey area" and the parents do not agree how to interpret it. She gave the example of the language used for school breaks which states that the time should be equally divided without providing examples of how to share that time and requires the parents to determine that split. Communication issues have also occurred with the schedule since March when determining when the children will be dropped off and for how long they will stay with each parent.. Ms. G-----S---- recalled a conversation in which Mother stated that they were "parallel parenting" not co-parenting and she agreed that each household agrees on the safety of the children, but otherwise operates independently of the other. Ms. G-----S---- believes that Father makes concessions to Mother because he fears losing time with the children.
The parties experience difficulties communicating and reaching agreements regarding visitation days, drop off timing, and interpretation of the Consent Custody Order. Either party's preferred schedule could provide increased clarity, but Mother's preferred schedule involves a greater number of transitions each week which would require the parties to communicate more and facilitate a greater number of transitions between their homes. Therefore, this factor favors Father's position.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Ms. G-----S---- stated that there have been no incidents of domestic violence in the home involving herself, Father, or any of the children.
There was no evidence of domestic violence presented. Therefore, this factor does not favor either party but supports each parent having equal time with their children.
(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 independently reviewed the Delaware criminal histories of the parties and household members residing with the children. There is no criminal history which impacts the best interests of the children.
Father testified that he has no criminal history. Ms. G-----S---- also stated that she has no criminal history. Mother stated that Maternal Grandmother does not have a criminal history.
There was no evidence presented to contradict each party's testimony related to their criminal histories or members of their households. Therefore, this factor does not favor either party but supports each parent having equal time with their children.
Conclusion
To make decisions pertaining to custody and visitation pursuant to 13 Del. C. § 722, the Court must balance the best interest factors above and assign them the appropriate weight. For the reasons set forth in the analysis above, the Court finds that it is in the children's best interest to grant Mother and Father JOINT LEGAL CUSTODY and SHARED PRIMARY RESIDENCY to be divided in a week on/week off schedule detailed below. Factor (4) supports this determination and factors (1), (2), (3), (5), (6), (7), and (8) do not favor either party. Although factors (3), (5), (6), (7), and (8) are neutral they support shared placement, which is encompassed in the schedules presented by both parties. However, the weight of factor (4) supports the week on/ week off schedule to satisfy the desire of the children to spend time with both parents and the statutory objective to have "frequent and meaningful contact with both parents."
Father's testimony regarding the children's behavior immediately following transitions and Mother's testimony about the children being tired after transitions demonstrates the benefit of a week on/week off schedule. An alternating weekly schedule will allow for increased meaningful contact for the children with each parent because there will be less time spent adjusting from transitions or feeling tired. Under the Consent Custody Order, the children spent six consecutive overnights with Mother approximately every other week from June 2018 until March 2020 which demonstrates their ability to tolerate nearly a week without overnight visitation with the other parent. The parties may communicate with the children by telephone and see them during extracurricular activities regardless of their overnight placement.
Although not determinative because the Family Court Contact Guidelines are not a replacement for analysis under 13 Del. C. §722, the guidelines encourage "regular and frequent contact" to satisfy the Family Court's goal "to have children spend as much quality time with each parent as possible. To effectuate this goal, the Family Court Contact Guidelines support a shared contact schedule, which may be extended to a week on/week off arrangement for children five years of age and older, which all three of the children are over the age of five. This schedule can provide stability and continue to be applied as the children grow older.
Ross v. Ross, 2010 WL 1404220, at *4 (Del. April 7, 2010). --------
The parties have experienced difficulties with communication and interpretation of the Consent Custody Order and have requested a more specific custody order from the Court. Communication difficulties will be simplified with fewer transitions in an alternating weekly schedule and there will be a reduced need to negotiate regarding contact during school breaks and vacations. Mother stated that she had no concerns with Ms. G-----S---- and the Court does not see the need for a right of first refusal because both parents are capable of arranging child care during their placement.
ORDER
THEREFORE, under 13 Del. C. § 722 the Court Orders:
1. The parties shall have joint legal custody of the children. The parties shall decide issues pertaining to the children's welfare and education together. Both shall share information related to the children.
2. The parties shall have equal shared residential placement with the children.
(a) Starting the week of October 18th, placement shall be on an alternating week basis. The week of October 18th, Father shall have the children from 5:00pm Sunday until 5:00pm the following Sunday, October 25th at which time they will go to Mother's home where they will remain until 5:00pm the following Sunday. This schedule shall alternate thereafter.
(b) The party where the children are staying on a given week will be responsible for all transportation or arrangement of transportation to school and extracurricular activities.
(c) Regardless of where the children are living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom the children are staying shall be responsible for providing transportation to activities scheduled during contact with that parent. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address and telephone number of the activity leader, if available.
(d) The party with placement of the children during the week will be responsible for any childcare needs. This may include supervision from family members, household members, or third-parties.
(e) Mother shall drop the children off at Father's home at the end of her week and Father shall drop the children off at Mother's home at the end of his week. Parents may use another adult well-known to the children for picking up or dropping off the children when necessary. Any person transporting the children shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All child restraint and seat belt laws must be observed by the driver.
(f) The parties may request childcare or transportation assistance from the other parent, but it is not required to offer a right of first refusal.
3. The parties requested a specific schedule, therefore, the Court has applied the Contact Guidelines published by the Delaware Family Court. Unless otherwise agreed upon, the parties shall have holiday contact as follows:
(a) Mother shall have even year contact with the children on the holidays in column one and Father shall have even year contact with the children on the holidays in column two. During odd years Father will have contact with the children on the holidays in column one and Mother shall have contact the holidays in column two detailed below. Following holiday contact, the schedule shall resume with whichever parent has placement on a given week. For example, Thanksgiving is Father's holiday in 2020 and occurs during Mother's placement week, the children will have contact with Father from 9am until 8pm on Thanksgiving Day and return to Mother's home for the duration of the week.
| Column 1 | Column 2 |
|---|---|
| Easter | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
(b) With the exception of Christmas, holiday contact shall be from 9am until 8pm the day of the holiday. Christmas Eve contact shall begin
at 6pm on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6pm on December 26th.
When a holiday falls on a Monday immediately following a contact week, the parent that had contact for the week and who is entitled to the holiday shall be entitled to keep the children continuously until 8pm Monday.
(c) On Mother's Day and Father's Day, no matter whose turn for contact, the children shall be with the parent whose holiday is being celebrated from 9am until 8pm.
(d) Spring and winter school breaks will be divided evenly between the parties with the parent whose placement week precedes the school break retaining placement in the first half of the break and the parent whose placement would be the following week having placement the second half of the break. The parties may agree to an alternate division of school breaks based on their other commitments and schedules.
(e) The parents shall continue to alternate placement weeks in the summer in compliance with the above detailed schedule. The parent who has the children for the week shall be responsible for taking the children to their extracurricular activities, summer school, and providing summer care for that week.
4. Late pick-up : Both parents shall have the children ready for pick-up at the start of all contact periods. The children and the parent have no duty to wait for the other parent to arrive for contact more than thirty (30) minutes, unless notified. The parent who arrives more than thirty (30) minutes late without prior notification for a particular contact, forfeits that contact, unless the other parent agrees otherwise.
5. Drop-off : Neither parent shall return the children early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to the children must be present when the children are returned from contact.
6. Canceling contact : Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.
7. Medical treatment and emergencies : If the children become seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the children become ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.
8. Communication : Both parents shall be entitled to reasonable communication with the children while the children are in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between the children and the other parent. Long distance calls from an out-of-town parent shall be at that parent's expense.
9. School work : Parents shall provide time for children to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the children. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for a child must be attended, regardless of which parent has the child during the summer school period.
10. Relocation : Prior to a parent relocating their residence, consideration shall be given to the effect the relocation may have on the existing contact schedule. If the relocation may result in a change in the children's school, travel time to school or extracurricular activities or otherwise may adversely affect the children's best interest, the parent choosing to relocate shall obtain written approval from the other parent or a Court Order prior to relocating.
11. 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.
12. The parties are free to agree to additional different terms regarding custody and visitation.
13. This is a Final Custody Order entered after a full hearing on the merits, any future modifications thereof shall be made pursuant to 13 Del. C. §729(c).
IT IS SO ORDERED.
Very truly yours,
/s/
MICHAEL K. NEWELL, Chief Judge MKN/ceg Date emailed: 10/14/2020