Opinion
FILE NO. CKXX-XXXX PETITION NO. XX-XXXX
01-11-2018
S--------- S----------, PETITIONER, v. C--------- L---------, RESPONDENT.
JAMES G. MCGIFFIN, JR JUDGE FINAL ORDER
PETITION TO MODIFY CUSTODY IN THE INTEREST OF:
T----------- L-----------
DOB: XX/XX/XXXX
Before the HONORABLE JAMES G. McGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
The Court convened on the Petition to Modify Custody in the interest of the minor child T--- L-----, born XX/XX/XXXX filed by S------ S------ (Mother) against C------ L---- (Father). Mother appeared represented by counsel, Erin K. Fitzgerald. Father appeared represented by counsel, Craig T. Eliassen. The Court held hearings on January X, 2018 and on January X, 2018. The Court reserved decision. This Order is the Court's decision.
BACKGROUND
Custody, placement and visitation of this minor child have been governed by the Order of Judge Walls entered on June X, 201X. The family was intact and living in Delaware until July 2012, when Mother removed the child to K--------. Judge Walls determined that the child's best interests were served by placing the child in Father's home and providing visitation with Mother. Judge Walls was persuaded that Father's Delaware home offered an established support system for the child, while Mother's K------- home was untested, and that Father was in a better financial position to support the child than was Mother.
L---- v. S-------, Pet. No. XX-XXXXX (Del. Fam. Ct., June x, 2013)
The parties have complied with the existing Order, and the evidence adduced indicates that Mother has secured a stable home and reliable employment.
BEST INTERESTS
The Court determines the legal custody and residential arrangements in this case by analyzing the facts under the "best interests" standards. What follows is my analysis using those statutory factors.
13 Del. C. § 722(a) and, because this is a modification action, 13 Del. C. § 729 (c) (2).
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Each parent seeks residential placement of the child. Because each home offers a great deal of benefit to the child, this family would be well served by a shared placement arrangement. Unfortunately, the distance between the homes makes a shared placement arrangement unworkable. This factor is neutral.
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
The child is young, only 5 years of age when this order issues. I spoke with her on the record and out of the presence of the parties and counsel. I am left with the impression she enjoys her time in both homes. 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;
Mother lives in a home with her daughter K-------- who, at age 12, is "the perfect kid," according to Mother. I spoke with K---- on the record and outside the presence of counsel and the parties. She seemed mature for her age, poised and articulate. She expressed real love and affection for the child and advised me that her own friends all adore the child. K---- is very much a part of the child's life when the child is with Mother. K---- described the child as "smart, beautiful and talented." The three do many fun things together, and I am persuaded that K---- is a positive influence on the child.
The evidence also indicates that Mother makes the most of her time with the child. Her work schedule is flexible enough to accommodate the child's requirements for Mother's time and attention.
Mother lives on the same 45-acre property with, but in a separate unit from, the child's maternal grandparents and two uncles. A maternal aunt lives nearby, and the child lives near several cousins. The entire family gets together for cook-outs and play dates.
Father lives alone with the child. Father works a night shift and is away from home Tuesday, Wednesday, Thursday and Friday nights. On those nights, the child is watched primarily by her paternal grandfather and, to a lesser degree, by paternal grandfather's wife, and that care takes place at the paternal grandfather's home in M----------, Delaware. That is a large and busy home. The occupants include the adult grandson and daughter of paternal grandfather's wife, J---- K---- and T--- M----, along with K-----'s children I-------- and G--------, and M-----' husband and their son, C-----.
T------ has the great good fortune to be part of two nurturing households. This factor is neutral.
(4) The child's adjustment to his or her home, school and community;
The child is enrolled in school at M------------ E-------- in the kindergarten. She benefits from an Individualized Education Program. The child loves school. She has a friend at school and a friend at church, and she considers I--- and G---- friends, as well. The children have formed a musical band that plays at home. T------ is also part
of a church community for which her paternal grandfather's wife is pastor. She participates in services twice weekly.
T------- is well adjusted to her present circumstances. Although it seems likely that she would adjust to the home, school, and community at Mother's environs, as her extended stays there have gone well, history is more reliable than speculation. This factor favors Father's position.
(5) The mental and physical health of all individuals involved;
The health of all individuals involved is sound to the degree it is not significant in this analysis. Mother raised her concern about Father's stay at D--- B—H-- facility in 2012. That issue was addressed by Judge Walls in his 201X decision and is not an issue in this case. This factor is neutral.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
Delaware statutory law describes parental rights and responsibilities in this way: "[t]he father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare and education."
Mother has paid no support to Father for the care of the child. She testified that she incurs support expense when the child stays with her and that she sent clothing for the child when school began and on other occasions. Father did not formally petition for support, but that fact does not relieve Mother of her duty.
This factor favors Father's position, to a small degree.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Mother suggested that she had experienced domestic violence at Father's hand when she lived with him in Delaware. This claim was presented to Judge Walls during the custody hearing in 201X. Judge Walls found that the evidence supported no conclusion that domestic violence was present in this relationship. I will not revisit the claim. This factor 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.
Father's conviction for carrying a concealed dangerous instrument in 201X was addressed by Judge Walls in the original custody decision. It will not be considered again in this custody modification application. There are no other significant criminal histories of persons in this case. This factor is neutral.
This schedule was in place at the time Judge Walls entered his June X, 201X Order.
Six bedrooms.
G---- is apparently K---'s stepson.
STANDARD IN CUSTODY MODIFICATION
When a parent seeks to modify a Custody Order entered after a full hearing on the merits of the original petition, and when over two years have passed since the entry of that Order, these considerations control:
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.
Will T----- suffer any harm if she relocates to K----- from Delaware? The evidence from this trial indicates that T----- has thrived in her present circumstances. She lives in the warm embrace of a large family and her Father and paternal grandfather, with help from paternal grandfather's wife, have provided that which she needs for her physical, emotional, psychological, educational, personal and moral development. Separating her from this circumstance would cause harm.
Would there be any advantage in T--------------'s relocation to K---- from Delaware? The evidence from this trial indicates that in Kentucky, T----- could develop a deeper relationship with Mother and with her sister, K----, by all indications an exceptional young lady. Moving T------ to Mother's home would afford to her some advantage.
Does the harm outweigh the advantage? Does the advantage outweigh the harm? There is simply insufficient evidence to come to a conclusion. As it is Mother's burden to demonstrate that the advantage outweighs the harm, this factor favors Father's position, the status quo ante.
The custody modification statute also requires the Court to evaluate this mandate:
Each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life including school activities, conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail.
The evidence adduced makes a clear point that Father has done a poor job of sharing information with Mother. He laments the poor state of communication between them, but he also admits that he has not made good communication a priority. This factor favors Mother's position.
Father has also been inflexible in allowing T---- contact with Mother and Mother's family when they have been in the area twice. That attitude suggests Father sometimes focuses on what he wants instead of what is best for T----. This factor favors Mother's position, to a small degree.
I have reviewed this case in light of the Model Relocation Act Relating to the Relocation to the Principal Residence of a Child promulgated by the American Academy of Matrimonial Lawyers. Such a review is permitted, but not required, in a case like this one. I do not find that the enumerated factors add anything to the best interests analysis I have undertaken.
§ 405. Factors to Determine Contested Relocation In reaching its decision regarding a proposed relocation, the court shall consider the following factors: (1) the nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the non-relocating person, siblings, and other significant persons 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 non-relocating person 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 person seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating person; (6) whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including but not limited to, financial or emotional benefit or educational opportunity; (7) the reasons of each person for seeking or opposing the relocation; and (8) any other factor affecting the best interests of the child.
See Loman v. Dobbins, Del. Sup., A.2d 461 (Table), 2005 WL 1653631 (June 28, 2005).
CONCLUSION
T---- is a fortunate child because she has two parents who love and care for her with competence and commitment. As Judge Walls observed, "[i]t is unfortunate that the parties are separated by such a great distance because otherwise, it would be easier for the parents to facilitate a split custody arrangement." When I consider the best interests factors, the harm/advantage analysis, and the other issues, I conclude that Mother has not proven that modification of the exiting Custody Order, on the residential placement of the child and Mother's visitation with the child, is appropriate.
L--------- v. S--------, at 8. --------
IT IS HEREBY ORDERED that the Petition to Modify a Custody Order is DENIED except for the following addition.
The Order entered on June X, 201X is supplemented by this provision:
IT IS FURTHER ORDERED that Father shall provide to Mother all material information about the child's progress in school, medical treatment, significant developments in the child's life, and school activities, on a timely and regular basis.
IT IS SO ORDERED this XXth of JANUARY, A.D. 2018.
/s/ _________
JAMES G. MCGIFFIN, JR., JUDGE JGM/dea cc: Erin K. Fitzgerald
Craig T. Eliassen
Parties