Opinion
File No. CN14-03122 CPI No(s) 18-15239
05-23-2019
V------ M--- -- ---------- ---- ---- ----, -- ----- Petitioner v. A----- M--- ---- --------- ---- ----------, -- ----- Respondent
Petitioner Attorney David Gagne, Esquire Respondent Attorney Kara Swasey, Esquire
Nature of Proceeding
Motion for Correction of Clerical Error & Counterclaim Petitioner Attorney
David Gagne, Esquire Respondent Attorney
Kara Swasey, Esquire Date of Hearing
N/A Date of Decision:
Date Mailed/Emailed: AMENDED ORDER - PETITION TO MODIFY CUSTODY
This Order is being amended pursuant to the Court's Order regarding Father's Motion for Correction of Clerical Error and Mother's Counter Motion thereto which is being issued simultaneously herewith.
Before the HONORABLE JANELL S. OSTROSKI, Judge of the Family Court of the State of Delaware, is the Petition to Modify Custody filed on May 23, 2018, by V------ M--- (herein "Father"), represented David Gagne, Esquire, against A----- M--- (herein "Mother"), represented by Kara Swasey, Esquire, in the interest of K--- M---, born ------- --, 20--, and J------ and E--- M---, twins born ------ --, 20--, (herein "minor children"). The Court held a hearing over the course of three (3) days and heard testimony from both parties as well as T---- D------ (--- CCD Supervisor), Alberta Crowley (Mother's Counselor), J----- M--- (herein "Paternal Grandfather"), and M------ H---- (Mother's friend).
PROCEDURAL HISTORY
The parties were married on September 13, 2003, and divorced on January 9, 2015. All three children were born during the marriage. The parties lived together with the children as a family until they separated in 2014. The parties entered a Stipulation and Order Resolving Custody and Visitation on October 23, 2014. The Order gave the parties joint custody, Mother primary residence, and Father visitation.
Father filed a Petition to Modify Custody and a Motion and Affidavit for Emergency Ex-Parte Order on May 23, 2018. Father's request for an Ex-Parte Order was denied, but an expedited hearing was scheduled for June 14, 2018. Mother filed her Answer to the Petition to Modify Custody on June 6, 2018. The parties entered an Interim Stipulation and Order on June 13, 2018. The Custody hearing was held on November 1, 2018, and November 30, 2018, with closing arguments on January 28, 2019. The Court interviewed the parties' oldest child, K---, on December 14, 2018.
FACTUAL FINDINGS
The parties were married in 2003. During their marriage, the parties were a social couple and drank alcohol multiple nights per week. Father admitted that he drank frequently during the marriage, but has since reduced his frequency and number of drinks per week. After the marriage ended, Mother's drinking increased in frequency and in number of drinks per day.
After the parties separated in 2014, Mother remained in the marital residence. Father lived in an apartment in Wilmington for one year and then moved to Philadelphia, Pennsylvania. Father remained in Philadelphia until June, 2018, when he purchased a home in Blue Bell, Pennsylvania.
Prior to May 14, 2018, Mother had primary residence of the children. Father had visitation every other weekend and one or two overnights during the week. The parties were amicable and able to co-parent their children. The children went to live with Father in Blue Bell after Mother was admitted to Christiana Care on May 14, 2018, due to symptoms of Cirrhosis of the liver and malnutrition related to alcohol abuse. After her discharge from the hospital, Mother participated in outpatient treatment at the Phoenix Center for alcohol abuse.
During the transition to Father's home, the children were worried about their Mother. Father did not know what to say to the children because, while he now knows why Mother was admitted to the hospital, he did not know why Mother was in the hospital at the time and Mother provided him with limited information. Mother claims that she did not realize her drinking was a problem until she found out she was sick. As of the date of her testimony, Mother still had not told the children why she was in the hospital or explain to them that she is a recovering alcoholic and what that means.
The parties are currently abiding by the custody and residential arrangement set forth in the Interim Stipulation and Order for Custody Modification dated June 13, 2018, where the parties have joint custody, Father has primary residence, and Mother has visitation every other weekend from 5:00 p.m. on Friday through 5:00 p.m. on Sunday. By agreement of the parties, Mother also has two (2) weekday dinner visits.
Father lives in a four-bedroom home in Blue Bell, Pennsylvania. He moved into this home in June, 2018. He works for R----- H----- doing commercial operations supporting marketing and sales. He works Monday to Friday with a flexible schedule. Father lives with his girlfriend, L---- A-------. Father represented that the travel time between his home and Mother's home is as short as 35 minutes or as long as one (1) hour depending on traffic.
Mother lives in the former marital residence in Wilmington, Delaware. Mother is an engineer. Mother's schedule is flexible. She works from home two to three days per week depending on her work obligations. If she is in the office, she works 9:15 a.m. to 2:30 p.m.
The parties have three children. K--- is 11 years old and is 5th grade at S---- G---- Elementary. J------ and E--- are 8-year-old twins and they are in the 3rd grade at S---- G---- Elementary. After Mother went into the hospital in May, 2018, and the children moved to Father's home, Father transported the children to and from their schools in Delaware so there was no disruption in their school year. The children began attending school in Pennsylvania with the start of the current school year after the parties entered an Interim Stipulation.
Further description of the relevant facts in this case are discussed in the analysis of the best interest factors below.
LEGAL STANDARD
The parties' current Order was entered by agreement. Pursuant to 13 Del. C. § 729(b), the Court may modify an Order entered by consent of all parties concerning the legal custody or residence of a child at any time in accordance with the best interest factors.
13 Del. C. § 722 provides:
(a)The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all of the relevant factors including:
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabitating in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child's best interests;
(4) The child's adjustment to his or her home, school and community;
(5) The mental and physical health of all individuals involved;
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child's primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.
§ 722 FACTORS
1. The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father is seeking primary residence of the children in Pennsylvania and, after considering K---'s recommendations, proposes that Mother have visitation three out of four weekends from Friday to Monday as well as one weekday dinner visit to be decided based on the children's schedule. During the summer, Father suggested a week on/week off schedule with the exchange taking place on Fridays.
Mother is seeking shared residence of the children and requests that the children attend school in Delaware. Mother proposed two schedules. If the children attend school in Delaware, Mother proposed a visitation schedule where the parents have every other weekend. Mother would have every Monday and Thursday and Father have every Tuesday and Wednesday. This schedule is contrary to what K--- suggested the Court as K--- believes that it is not possible to have overnight visits during the week due to the distance between the parents' home and the amount of time it would take to get to school. If the children continue to attend school in Pennsylvania, Mother wants visitation every Thursday and two weekends in a row from Friday to Monday. Furthermore, after Father's weekends, Mother wants visitation on the following Monday. With the second proposed schedule, Mother wants the Summer divided with Mother having six (6) weeks and Father having four (4) weeks.
The parties agreed to joint custody. The Court finds this factor is neutral as to residence and visitation.
2. The wishes of the child as to his or her custodian or custodians and residential arrangements;
The Court interviewed K--- but not the twins. K--- is eleven (11) years old. The Court found him to be an intelligent and mature young man. He was very clear that he wants to continue living with his Father and continue going to school in Pennsylvania but that he wants to see his mom more than he is currently seeing her. He told the Court that he overheard his siblings talk about wanting more time with their Mother as well. In order to see his Mother more often, K--- proposed two weekends in a row with Mother and then one weekend with Father. During the week, he was fine staying with his Father. He wanted more weekend time with Mother. When the Court asked about the Tuesday and Thursday dinner visits, K--- indicated they go well. He and his siblings go out to eat with their Mother and, if they have extra time, they go to the mall. It was clear to the Court that he had spent a lot of time thinking about the schedule he was proposing.
Initially, when asked about his schools, K--- said S---- G---- in Pennsylvania and F------ in Delaware are both good. He said, "They are the same". When asked which school he preferred, he said he likes his current school (in Pennsylvania) more than F------ (in Delaware). The Court asked him if he thought he could stay at his current school and commute from Mother's home. He did not think it was possible because of the distance from Mother's house to his current school.
When asked about his friends, he said he has friends at his current school. He also has friends at F------ that he sometimes sees when he is at Mother's house. He indicated that he is comfortable that he has friends at both his Mother's house and Father's house with whom he plays on the weekends.
When he was asked about his Father's house, he said he likes his Dad's house. He told the Court his Father moved in June, 2018, and that it was a surprise for him and his siblings. K--- said he gets along with L---- and his Father. When he is at Father's house, they are engaged in different activities. He told the Court that when football is on television, they watch football together. They have game night and they play with their toys before dinner. Overall, there is nothing at his Father's house that he doesn't like. In the fall, K--- participates in cross country and his sister is enrolled in gymnastics. A few days after school, he and his siblings have a babysitter. Sometimes Father is around, but K--- said Father is still working and taking calls so the babysitter takes care of him and his siblings. K--- told the Court that his babysitter drives him and his siblings to where they meet their Mother for visitation.
When the Court asked about his Mother's house, he said they like to watch football and hang around the house. He likes having sleep overs with his best friend. When he was in school at F------, he participated in cross country, basketball, and baseball after school. When asked about living full-time at Mother's house, K--- could not recall any time that he felt scared or uncomfortable.
Despite the parents telling the Court that there was much discussion about the children's diet, K--- indicated that he is satisfied with what he is eating at his Mother and Father's house. He explained that his Father cook's dinner and takes them out to dinner for special occasions like their birthdays. When he is at his Mother's house, she cooks dinner for them. He does not appear to be aware of any conflict over the children's diet.
It is clear to the Court that K--- wants to continue living with Father and continue attending his current school in Pennsylvania but wants to increase his contact with Mother. His decision in this regard appears to be well thought out and not the product of a passing whim. The Court found K--- to be mature for his age who was expressing his own opinions and does not appear to have been influenced by anyone. Therefore, the Court finds this factor supports Father having primary residence and Mother having frequent and meaningful visitation.
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;
According to Father, he and the children are close and the children are close to each other. Father described each child. He said he has a sweet relationship with K--- who is sensitive and well behaved. They bond over sports. He said he gets along great with J--- and he believes that J--- models his own behavior after Father. He described E--- as goofy but tough. She is imaginative and they spend time drawing faces together. Father testified that his girlfriend gets along well with the children and does trivia with K---, board games with the J--- and E---, and scavenger hunts with all three.
Paternal grandfather testified that he lives a half-hour from Father's home and indicated that he and paternal grandmother are available as a resource for Father. Paternal grandfather said that he gets along well with the children. He testified that the children are responsive to the boundaries and discipline set by their Father. During their extended family vacation to Maine in summer, 2018, paternal grandfather said that the children got along well with their cousins. The children's cousins live less than an hour from Father's home.
Mother testified that she has a great relationship with the children. Mother said the children get along and have a good relationship with each other. Mother frequently communicates with K--- via text message. She described their conversations as normal and said that she is happy if he is happy. Mother said he is a great older brother. Mother described J--- as very active and a little brut. She said he is slow to warm up, but a very sensitive child. Mother described E--- as very much a girl and a social butterfly. Mother testified that the children have a good relationship with maternal grandparents and Mother's extended family.
Given the children are appropriately attached to both parents and the children have a good relationship with Father's girlfriend and extended family members on both sides, the Court finds this factor supports shared residence.
4. The child's adjustment to his or her home , school and community;
K--- said he likes his Dad's house. The new house was a surprise for him and his siblings. K--- attends school from his Father's house. K--- likes both his old school and his new school. He enjoys the academic and social aspect of school. It is clear to the Court that he has adjusted well to his new school because he indicated to the Court that he likes his current school more than his former school in Delaware. K--- likes his Father's neighborhood and he has friends there.
According to Father, the children's transition to the new home was harder than their transition to their new school because the children were very concerned about Mother. Father testified that the children initially asked about their Mother suspecting something was wrong with her. He did not know how to answer them because Mother had not provided any information to him. After the initial adjustment period, Father said that the children are now doing well in his house. Father explained that he provides structure and routine for the children. He said his home is a safe space and the children have their own rooms. During the week, Father helps the children get ready for school in the morning. When they return home, they play together, complete their homework, and perform their nighttime routine. On Monday evenings there are no activities planned. In one of E---'s school workbooks, she was instructed to circle her favorite day of the week. According to Father, E--- circled Monday because it's a day where no activities were planned and it was family time in Father's home. Tuesday evenings in the fall, K--- participated in cross country. Also, all three children had religion class from 6:30 p.m. until 8:00 p.m. On Wednesday evenings, E--- has gymnastics and K--- had cross-country during the Fall sport's season.
See Petitioner's Exhibit 3
The children attend S---- G---- Elementary School. K--- is in the 5th grade and J--- and E--- are in 3rd grade. Father testified that the children love their new school and he believes they are adjusted to their new community. Father testified that his neighborhood is small and secluded with only seven (7) homes and there are other children in the neighborhood similar in age to these children and they all play together.
As Mother continues to reside in the marital home, it is likely the children are well adjusted to Mother's home. Mother lives alone. In Mother's home, K--- and J------ share a room while E--- has her own room. Mother expressed her desire for the children to return to their old school. In Mother's neighborhood, she testified there are children of mixed ages. Mother testified that the children have friends from their neighborhood who are different from their school friends. However, they still see their friends from their former school when they visit mother on the weekends.
There is no evidence under this factor that would support Mother's request that the children stop attending school in Pennsylvania to resume their education in Delaware in the middle of the school year. The children have adjusted to Father's home and their school in Pennsylvania. Presumably, it would be detrimental to the children to change their school in the middle of the school year and the Court is very reluctant to do so. Furthermore, in this instance, the evidence does not even support changing the children's school at the end of the school year as they are well adjusted to their school in Pennsylvania and appear to like it there. Therefore, the Court finds this factor supports primary residence with Father and visitation with Mother.
5. The mental and physical health of all individuals involved;
Father testified that his health is excellent, but he does take medication for high blood pressure. He has no health problems that prevent him from caring for the children. Father testified the children are healthy although he admits they missed their annual physicals after they began living with him.
Mother is a recovering alcoholic and only recently started her recovery after she was hospitalized in the Spring of 2018. Father argued that he suspected that Mother may have been drinking excessively and that Mother hid her alcohol abuse from those close to her. He believes the alcohol affects Mother's ability to responsibly parent their children. Father asserts that their children's health and safety are at risk under Mother's care.
Alberta Crowley, a licensed chemical dependency professional, testified that she worked with Mother at the Phoenix Center. Mother attended an intensive outpatient program at the Phoenix Center three days per week and three hours at a time for five months after being released from Christiana Care in the Spring of 2018. Ms. Crowley testified that addiction is a "hindsight assessment" in which she relies solely on the information provided to her by the patients. When Ms. Crowley started treating Mother, she believed Mother's alcohol abuse was so serious that she wanted to refer her to a 30-day in-patient program, but Mother's physical health prevented her from being accepted. The in-patient facility would not accept Mother after her discharge from the hospital because her stomach was significantly distended due to complications with her liver. Mother's health was such a liability that the in-patient facility was not able to meet her needs. Therefore, Mother's only choice was to participate in intensive outpatient.
Mother's Counsel argued that Mother is now sober and there is no reason to believe that Mother will not remain sober as she was able to remain sober for at least nine months at a time when she was pregnant. Mother's argument is without merit as there was no evidence that Mother was an alcoholic prior to being pregnant. Furthermore, Mother's medical records consistently show Mother's drinking habits increased in the last five to six years as she was consuming 4 to 5 glasses of wine per night. The medical records indicate "likely double glasses based on the size description." On cross-examination of Ms. Crowley, it was revealed that, until recently, Mother's longest period of sobriety was two weeks. Similarly, Mother repeatedly tried to minimize the severity of her alcoholism when she testified. For example, she told the Court her liver problems were related to Hepatitis C. Only after the Court asked her how she thought she contracted Hepatitis C did she admit that she contracted Hepatitis C from drinking too much alcohol. However, the Court found Mother credible when she testified that she attends AA meetings two to three times per week and that her usual schedule is to attend meetings on Tuesdays, Thursdays, and Sundays. However, the Court does note that Mother had dinner visits with the children on Tuesdays and Thursdays and that the AA meetings often conflicted with Mother's visits. The Court is somewhat concerned that Mother would choose to attend meetings that conflicted with her visits with the children and not elect to attend meetings on other nights or during the day when she had a flexible work schedule. Finally, as of the time of the hearing, Mother had not had a conversation with the children to explain to them what happened to her and why she was in the hospital. It appears to the Court that she has not fully accepted the extent to which her alcoholism has affected the children.
See Petitioner's Exhibit 2, 21st page.
See Petitioner's Exhibit 2, 23rd page.
While the Court commends Mother for seeking help and getting sober, it is significant to the Court that it appears that Mother has not yet fully grasped the seriousness of her alcoholism. For the past five or six years, Mother successfully hid her addiction from her work, peers, children, friends, and ex-husband. She will face the challenge of her sobriety every day for the rest of her life. According to Ms. Crowley, first time rates to recidivate when attempting sobriety are between 70% and 80%. While it appears Mother is seeking support for her alcoholism with AA meetings and perhaps a mental health counselor, the Court is not confident that Mother is fully stable in her recovery and must find that this factor supports primary residence with Father and visitation with Mother.
6. Past and present compliance by both parties with their rights and responsibilities to their child under § 701 of this title;
13 Del. C. § 701(a) states in relevant part: "The father and mother are the joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare, and education."
Father testified that he is actively involved in his children's lives and education. He helps them with their homework and participates in activities with the children. Father asserted that Mother has not fulfilled her rights and responsibilities as a parent and provided several instances where Mother's alcohol abuse affected her ability to parent their children. Father alleged that sometime between August and October, 2015, Mother was sleeping on the couch while the children were outside unsupervised. Mother told Father that she was sick and took some medication that made her drowsy. On another occasion, Father was concerned when he discovered Mother had fainted and hit her eye on a door. According to Father, the children were instructed by their Mother not to tell Father. During one of the children's baseball games in 2018, Father testified that he was concerned that Mother arrived at the game struggling to walk straight and slurring her words when talking with other parents. Father said he asked Mother if she was alright and she responded affirmatively and drove away in her car. Father also expressed concern regarding the February 27, 2018, incident when Mother arrived 45 minutes late to pick up the children from their religious education class. Ms. D------ from I--------- H---- of M--- parish (herein "I--") testified that the children were supposed to be picked up by 8:00 p.m. According to Ms. D------, Mother arrived at 8:45 p.m. distraught and claiming that her car broke down and she had lost her phone. Father testified that one of his children told him Mother's phone was in the car that evening.
Mother was the children's primary caretaker after the parties separated in 2014. However, since being admitted to the hospital on May 14, 2018, the children have lived primarily with Father. Mother denies Father's allegations and denies that alcoholism affected her ability to parent the children. Mother did not recall the event where she was allegedly found sleeping on the couch while the children were unsupervised outside and allegedly told Father that she was sick and took some medication that made her drowsy. Regarding the pickup from I--, Mother explained that she dozed off watching television and woke up a little after 8:00 p.m. She testified that she could not find her phone which had fallen between the seats and she had trouble starting her car. Furthermore, Mother denied she was ever drunk at a Little League game and Father's testimony was the first time she heard about the allegation. Finally, Mother explained that she did not faint the night the children were all in her room. She thinks she lost her balance when she got up too fast. The children asked if they should call their Father and Mother said no because she was fine. The Court questioned Mother about the night she was admitted to the hospital. Mother said it was a night she had a friend in town. When Mother started feeling sick, her friend suggested she go to the hospital to get bloodwork done. Mother explained to the Court that she had been telling this friend for months how she was not feeling well. When she was asked why her friend's first suggestion was to get bloodwork done at the hospital, Mother did not seem to understand that a person who was not feeling well would not typically go to the hospital for bloodwork before seeing her primary care physician for a simple check-up.
It is clear to this Court that Mother's alcoholism has affected her ability to responsibly parent her children. Father testified about numerous allegations with incidents that have occurred between 2015 and 2018. Mother admitted to medical providers on more than one occasion that, during this time, she was drinking four (4) to five (5) glasses per night six (6) to seven (7) nights per week. Yet, Mother wants the Court to believe that each night that something happened it was a night when Mother was not drinking. Mother's position in this regard is not credible. The Court commends Mother for getting the help she needed. However, the Court still has concerns about Mother's failure to fully appreciate the effect her alcoholism has had on her ability to responsibly parent these children. For all of the foregoing reasons, the Court finds this factor supports Father having primary residence and Mother having visitation. Despite the Court's concerns, the Court does not find that there was any evidence submitted that would suggest that Mother's visits needed to be restricted in any way.
7. Evidence of domestic violence as provided for in Chapter 7A of this title; and
13 Del. C. § 706A in relevant part states:
(a) Any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the court in determining the legal custody and residential arrangements in accordance with the best interests of the child.
Neither party presented evidence of domestic violence. Therefore, the Court finds this factor supports shared residence.
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 Pennsylvania criminal histories of Father and his girlfriend, L---- A-------, and has no concerns. To the contrary, Mother was charged with driving under the influence in October 25, 2014, lending support to Father's position that Mother has been struggling with an alcohol addiction for quite some time. Mother plead guilty and entered the First Offenders Program. The Court finds this factor supports Father having primary residence with Mother having visitation.
CONCLUSION
The parties agree to continue having joint custody. Therefore, the Court's analysis has focused on the children's residence and a visitation or contact schedule.
Based on the Court's Analysis of the best interest factors and for the reasons set for forth herein, the Court finds factor (1) is neutral; factors (3) and (7) support the parties having shared residence; and factors (2), (4), (5), (6), and (8) support Father having primary residence of the children in Pennsylvania. No factors support Mother having primary residence. However, notwithstanding the Court's concern with Mother's status as it relates to her recovery, Father appears comfortable that Mother is able to care for the children for brief periods of time when visiting. And, at this time, the Court agrees. There is no evidence that the children are not safe in Mother's care for visitation purposes. Therefore, the Court finds that Mother is entitled to frequent and meaningful visitation and the Court will establish a schedule consistent therewith.
WHEREFORE, the Court enters the following Order:
A. The parties shall have joint custody and shall make decisions jointly regarding the children's health, education, and welfare.
B. Father shall have primary residence in Pennsylvania.
C. Mother shall have the following visitation:
1. During the school year:
a. Two out of every three weekends beginning March 22, 2019, from Friday after school until Monday when she returns them to school. If the children do not have school on any Monday following Mother's weekend, Mother may keep the children until 7:00 p.m. or Mother shall return the children to school on Tuesday. Mother shall decide when she returns the children to Father and notify him of same at least one week in advance. If the children do not have school on the Friday before Mother's weekend, Mother's visit may begin at 7:00 p.m. on Thursday night. On these instances, Mother shall provide the transportation.
By agreement of the parties, they shall meet at a midpoint between their homes to exchange the children for Mother's weekend visits in all other instances; and
b. One mid-week dinner visit from after school until 7:30 p.m. so long as it does not interfere with the children's activities or their ability to get their school work completed.. in Pennsylvania at a location chosen by Mother. Parents shall discuss the children's schedules by the 20th of each month and Mother may choose the day of the week she wishes to visit the children for the upcoming month. Mother shall make her decision by the 25th of the month. If Mother does not designate a day, her visits shall take place on Thursdays. Mother shall provide transportation for these visits.
2. During the Summer:
a. For purposes of this Order, Summer begins the Sunday of the first full week after the last day of school and ends on the Friday of the last week before the first day of school. Unless otherwise agreed upon, exchange of the children shall take place on Sundays at 7:00 p.m.
b. Mother shall have six (6) weeks with the children and Father shall have four (4) weeks with the children each Summer. If there is a Summer with less than ten (10) weeks, Mother shall retain her six (6) weeks with the children and Father shall have the remaining number of weeks. If there is a Summer with eleven (11) weeks, Father shall have five (5) of the weeks. If there is a summer with twelve (12) weeks, each parent shall have an additional week.
c. Unless otherwise agreed upon, the parties shall adhere to the following schedule when choosing their vacation weeks:
i. In odd years, Mother shall select two (2) weeks by March 1, Father shall select two (2) weeks by March 15, and Mother shall select her remaining four (4) weeks by April 1.
ii. In even years, Father shall select two (2) weeks by March 1, Mother shall select two (2) weeks by March 15, and Father shall select his remaining two (2) weeks by April 1.
iii. If there is a time during any Summer that one parent has the children for more than two consecutive weeks, the other parent shall be entitled to have one overnight with the children during each week that exceeds two
consecutive weeks on a night to be agreed upon by the parties. If they cannot agree, preference shall be given to the choice of the parent who is entitled to have an overnight with the children so long as it does not interfere with the children's activities or a scheduled out-of-town vacation.
d. The parent who has the children for the week shall be responsible for taking the children to his or her extracurricular activities, summer school, and providing care for that week.
D. Unless the parties agree otherwise, the following guidelines apply:
1. Holidays: Father shall have the children 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 children 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 children 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 children 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: See above.
5. 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.
6. 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.
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 one or more of the children become seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the one or more of 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.
9. 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.
10. Transportation: Unless otherwise ordered or mutually agreed, parents shall have shared responsibility for transportation of the children to and from their home for contact periods and 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.
11. School work: Parents shall provide time for the 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 the children must be attended, regardless of which parent has the children during the summer school period.
12. Extracurricular activities: 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.
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 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.
14. Notice of change of address: Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.
E. This is a Final Order entered after a full hearing on the merits. Therefore, any future modifications shall be made pursuant to 13 Del. C. § 729(c).
For 2019, unless otherwise agreed upon, Mother shall select two (2) weeks by April 15, Father shall select two (2) weeks by April 30, and Mother shall select her remaining four (4) weeks by May 1.
13 Del. C. § 729(c) provides: An order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:
(1) If the application for modification is filed within 2 years after the Court's most recent order concerning these matters, the Court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair his or her emotional development.
(2) If the application for modification is filed more than 2 years after the Court's most recent order concerning these matters, the Court may modify its prior order after considering:
--------a. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification;
b. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and
c. The factors set forth in § 722 of this title.
IT IS SO ORDERED this 23rd day of May, 2019.
/s/ _________
JANELL S. OSTROSKI, Judge cc: Parties, Counsel, File