Opinion
File No.: CN10-02833 Petition No.: 15-05404
09-30-2016
Re: W. H. v. S. M.
Jill S. DiSciullo, Esq. Morris James, LLP 500 Delaware Avenue, Suite 1500 P.O. Box 2306 Wilmington, DE 19899 Achille Scache, Esquire Giordano, DelCollo, Werb & Gagne, LLC 5301 Limestone Road, Suite 210 Wilmington, DE 19808-1265 Mr. S. M.
Jill S. DiSciullo, Esq.
Morris James, LLP
500 Delaware Avenue, Suite 1500
P.O. Box 2306
Wilmington, DE 19899 Achille Scache, Esquire
Giordano, DelCollo, Werb & Gagne, LLC
5301 Limestone Road, Suite 210
Wilmington, DE 19808-1265 Mr. S. M.
LETTER DECISION AND ORDER
Dear Counsel and Mr. M. :
This is the Court's decision on the Visitation Review and W. H. 's ("Mother") Petition to Relocate with minor child, G. T. ("G. "), born July 26, 2006. S. M. ("Father") opposes relocation. A hearing was held on September 13, 2016. Present were: Mother, represented by Jill DiSciullo, Esquire ("Ms. DiSciullo"), Father, representing himself, and Achille Scache, Esq. ("Mr. Scache"), the Guardian Ad Litem. The hearing began at 1:25 p.m. and all parties were present.
The Court received testimony from the parties.
Procedural History
The parties have one child together, G. . The Court entered an Order, dated September 24, 2012, granting the parties joint legal custody of G. and shared residency on an alternating weekly basis. The parties followed the visitation schedule until DFS received a hotline call with allegations against Father. On February 26, 2015, Mother filed a Motion for Emergency Ex Parte order and Petition to Modify Custody Order. The Court held an emergency hearing on March 10, 2015, and Father agreed to a temporary suspension of visitation. The Court granted Father liberal phone contact with G. .
H. v. M. ; M. v. H. , Cross-Petitions for Custody. (Order dated September 24, 2012).
H. v. M. , Custody Modification Order (Order dated April 29, 2016).
Id.
Id.
Id.
On June 1, 2015, DFS received another report with allegations against Father. On July 14, 2015, the Court entered an Order permitting Father to visit with G. at the Family Visitation Center or under the supervision of E. H. , J..
Id.
Id.
On February 10, 2016, the court held a hearing on Mother's Petition for Modification of Custody and Father's Rule to Show Cause Petition. The Court interviewed G. following the hearing, on March 1, 2016. On April 29, 2016, the Court entered an order allowing Mother to retain primary residency of G. and granting Father visitation once a week for at least two hours, in a public place, and liberal phone contact. The Court amended its Order on May 11, 2016, to exclude visitation in the park outside Father's apartment unless the parties agreed. At the time Father became aware that an Order had been entered.
Id.
H. v. M. , Order on Motion to Supplement the Record and Reargument (Order dated May 11, 2016).
H. v. M. , Custody Modification Order (Order dated April 29, 2016).
H. v. M. , Order on Motion to Supplement the Record and Reargument (Order dated May 11, 2016).
On June 29, 2016, Mother filed a Motion to Relocate. Mr. Scache filed a Response to the Motion to Relocate on July 8, 2016. On July 20, 2016, the Court received Father's request for additional time to respond to Mother's motion. On July 29, 2016, the Court held a teleconference and issued a Letter Decision and Order, noting that neither party had communicated with the other to set up visitation between Father and G. aside from one text message sent by Mother. The Court further noted that there was no attempt by either party to initiate reunification counseling. The Court ordered visitation between Father and G. to take place on August 13, 2016, at Claymont Public Library, and reserved future visitation for determination at the September 13, 2016, hearing.
Legal Standard
This Court must issue an Order that is in the best interest of G. pursuant to 13 Del. C. § 722. In addition, the Court must be cognizant of the statutory obligation for Father to have frequent and meaningful contact with his child. Finally, the parties presented evidence under the American Academy of Matrimonial Lawyers' Model Relocation Act ("Act"). This Court has discretion to consider evidence under this Act as long as it fulfills its statutory obligation to analyze the evidence under 13 Del. C. § 722.
Pursuant to 13 DEL. C. § 722 (2004),
(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;
(2) The wishes of the child as to his or her custodian(s) 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.
In pertinent part, 13 DEL. C. § 728(a) (2009), states that the "Court shall determine, whether the parents have joint legal custody of the child or one of them has sole legal custody of the child, with which parent the child shall primarily reside and a schedule of visitation with the other parent, consistent with the child's best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child's physical health or significantly impair his or her emotional development. The Court shall specifically state in any order denying or restricting a parent's access to a child the facts and conclusions in support of such a denial or restriction."
See, e.g., Anderson v. Anderson, 755 A.2d 836 (Del. 2000)(affirming Family Court decision which considered Model Relocation Act factors in evaluating custody matter), D.M. v. J. M. L., 2004 Del. Fam. Ct. LEXIS 139 (June 15, 2004)(using Model Relocation Act as guideline in custody case), Loman v. Dobbins, 878 A.2d 461 (Del. 2005)(holding Family Court "has discretion to 'supplement[ [ its best-interest analysis under the statutory factors with those from the Model Act...'" (citing Potter v. Branson, 877 A.2d 52 (Del. Supr.)), and Potter v. Branson, 877 A.2d 52, (Del. Supr.)(holding that because the law provides that Family Court will consider "all relevant factors," the Court has the discretion to use the Model Relocation Act to supplement its best interests analysis).
Best Interests Analysis
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Mother shares joint legal custody with Father and has primary residential placement of G. . According to the record, it appears that Mother already relocated with G. to Euless, Texas, before the Motion was heard, sometime in July, 2016. Mother wishes to maintain primary residency of G. and offers to fly to Delaware with G. to facilitate visitation with Father and G. . As an employee of American Airlines, Mother can fly with G. at-will, on a standby basis, at no cost.
Father has only had one visitation with G. in the past year. On July 14, 2015, the Court entered an Order permitting Father to visit with G. at the Family Visitation Center or under the supervision of E. H. , J.. Father did not avail himself of this visitation due to his medical issues and as he believed that it would not set a good example for G. to see that her Father did not stand up for his rights as he had not done anything to warrant supervision. More recently, on April 29, 2016, the Court granted Father visitation once a week, for at least two hours, in a public place, with liberal phone contact. Father indicated that he did not receive the Court Order in the mail which gave him the two hours of visitation in a public place. The Order, which had been mailed to the same address as all other Court documents, was sent again. Father did not initiate any visitation with his daughter from April of 2016 until the Court's order, dated July 29, 2016. G. sent a text message to Father on May 13, 2016, inviting him to Talley Day Park for visitation, but Father did not respond. Before the Court's Order, Father had only sent one text message to G. . Mother attempted to contact Father three times in June, but at a number different from the one Father used to text G. . Father and Gabrielle had text contact on Father's Day which was negative in content. Father criticized G. for texting him instead of calling him, thus further hurting his relationship with her. Father testified that he attempted to call G. several times last year, but the calls did not go through. These calls were before the last hearing. Father further stated that he did not respond to G. 's text messages because he thought he would violate court rules and he also did not think it was respectful of G. to text him instead of calling him. Father desires in-person contact with G. and is opposed to G. moving to Texas.
Although Mother's wishes potentially deprive Father of frequent and meaningful contact with G. , Mother is willing to bring G. back to Delaware to facilitate visitation with Father and Father has not availed himself of visitation that was available to him in the past. Father regularly puts his pride before his visitation by refusing to go to the visitation center and by not responding in a loving or even pleasant manner to G. 's text. Father has not engaged in frequent contact with G. in the past 1.5 years. As the parties' wishes are opposite this factor does not weigh in favor of either party.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
G. is only ten years old, and the Court did not believe it was necessary to interview G. again to ask her about relocating to Texas. The Court would not expect a ten year old to understand the complications of the relocation and at ten her wishes would not carry significant weight in this type of decision. When the Court interviewed G. before she wanted to live with Mother and visit Father in a public place. Therefore, this factor favors Mother.
(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 ;
G. lives with Mother in a 1200 sq. ft. apartment and has her own room. Mother's new work schedule affords her more time with G. . Mother works from 7:00 a.m to 3:00 p.m. and has weekends off.
G. spends time with her paternal grandmother, P. T. , when she is with Mother. Mother has established a relationship with Father's Mother for the past year so that she can see her grand-daughter. G. is also sometimes watched by a family friend, N. R. " who she refers to as Abuela". Abuela flies to Texas whenever Mother needs her. Ms. T. was taking care of G. while Mother attended the hearing on September 13, 2016.
Over the past year, Father has had minimal interaction with G. . G. attempted to contact Father on May 13, 2016, and June 10, 16, and 19, 2016. Father responded once, on June 16, 2016, by texting G. :
If you have something to say to me or want to talk, at least show me enough respect to call me instead of treating me as some sort of 'service' and just leaving me a text message. I am not a milkman that you just leave a note with what you want like 'extra yogurt' I am your father...That is if you still want one, as you have seemingly thrown me to the garbage as you have said before. G. , I love you and miss you, and lay here every day and night with the phone in front of me waiting for your call which never comes. One day you will regret not cherishing have a father when you had the chance!
This factor weighs in favor of Mother since G. primarily lives with Mother has established more of a relationship with Mother, while Father has placed the onus on G. to establish the relationship between Father and G. .
(4) The child's adjustment to his or her home , school and community;
G. lives with Mother and attends Bear Creek Elementary School, in Mother's community. She is in the fifth grade. G. has new friends and is doing well in school so far. G. 's grade report for her core subjects is as follows:
| SUBJECT | GRADE |
|---|---|
| Math | 83 |
| Social Studies | 80 |
| Science | 86 |
| Reading | 77 |
G. attends before-care at the school. Mother or Abuela drop G. off to school at 7:15 a.m. Mother picks up G. from school. G. plans to engage in extra-curricular activities in the future. Mother said the increased income from her new employment will enable G. to do so.
Prior to moving to Texas, G. lived primarily with Mother and attended School in North Wilmington, near both parents' residences. G. was attending a lunch group which was positive.
Given the short period of time that G. has been in Texas, this factor weighs against relocation.
(5) The mental and physical health of all individuals involved;
Mother is in good physical health. Mother testified that she feels that she should not be involved with the relationship between Father and G. and that she does not believe that she should have to reach out to Father to facilitate the contact between Father and G. .
Mother testified that G. became stressed out from Father's recent phone calls and that Mother has procured therapy for G. . Mother also testified that G. became upset after her visitation with Father, on August 13, 2016, when she learned that Father discarded some of G. 's sentimental items. Mother also stated that she lets G. vent when G. is stressed, cuddles with her on the couch, or takes G. swimming. G. is scheduled for counseling with Dr. Turnbull.
Father has testified that he suffers from post-traumatic stress disorder and RSD. However, no documentation has been introduced by Father to establish these conditions. Father's body movements in the courtroom suggest he is in pain but the Court has no medical training to determine if this is or is not the case. Father testified that his inability to contact G. last year caused him stress and increased his pain. The Court has no way of knowing if this is true or not Father stated that he does not like to communicate with G. via text messaging and that he wants for G. to learn respect by placing a phone call. Father feels G. should contact him and that he does not want to impose on her. The Court advised Father that at least as of the last interview G. wanted Father to contact her. Father should also realize that text messaging is a popular and convenient form of contact among adolescents now and that, in order to foster more interaction and a relationship with G. , Father may have to make some compromises; especially when such communication will not undermine G. 's respect for Father. Father responded to one text from G. in a very critical way, which appeared to be an attempt at making G. feel guilty about her lack of relationship with him.
This factor weighs in favor of Mother because Mother is in good health and has been available to care for G. 's emotional needs.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title;
Mother testified that Father does not pay child support. Father has only had one visitation with G. in the past year and that visit had to be ordered by the Court. On July 14, 2015, the Court entered an Order permitting Father to visit with G. at the Family Visitation Center or under the supervision of E. H. , J.. On April 29, 2016, the Court granted Father visitation once a week, for at least two hours, and liberal phone contact. Father did not visit with G. until August 13, 2016. Since the Court's teleconference on July 29, 2016, Father has had four phone calls with G. and one text message. It is unlikely that this limited communication constitutes support, care, or nurture for G. . Furthermore, Father does not contribute monetarily toward G. 's needs.
Mother testified that she has not been active in the past in facilitating contact between Father and G. . Other than the one text which was sent by G. , Mother made no effort to arrange visitation between Father and G. until being told to do so. Mother is in a superior position to initiate contact than Father and has placed G. in the middle of the communications rather than doing it herself. Mother further testified that after speaking with Mr. Scache she began making the telephone calls to Father for G. every other night. However, this only began happening shortly before the hearing. Also, Mother moved to Texas with G. before she obtained an Order allowing her to relocate.
Father testified that Mother has not contacted Father with G. 's school information or consulted him with regard to moving G. to Texas. Mother alleges that she tried to contact Father from February 2016 through May 2016 to advise Father of her plan to move. None of the phone records that Mother introduced evidence calls to Father during this time period.
See Petitioner's Exhibit #1.
This factor is neutral since both parties can do more to comply with the rights of the other parent and their responsibilities to G. .
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
According to G. , as noted in the last custody order, the Court found that Father pointed a gun to his chest and threatened to shoot himself when she was not doing her math correctly. Therefore, Factor (7) favors Mother.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Neither Mother nor Father has any new criminal history relevant to this matter. Therefore, Factor (8) carries no weight in this case.
Model Relocation Act
The parties provided testimony and evidence under the factors set forth in the Act published by the American Academy of Matrimonial Lawyers. While this Court cannot consider these factors exclusive of its statutory obligation to perform an analysis under 13 Del. C. § 722, it has discretion to consider these factors in addition to the § 722 factors as guidance. This Court has previously used the Act in analyzing the facts of a particular case.
1. The nature , quality , extent of involvement , and duration of the relationship of the child with each parent;
Mother shares joint legal custody with Father and has primary residential placement of G. . G. lives with Mother in a 1200 sq. ft. apartment and has her own room. Mother's new work schedule affords her more time with G. . Mother works from 7:00 a.m to 3:00 p.m. and has weekends off.
Over the past year, Father has had minimal interaction with G. . From the record, it appears that prior to Father's contact being temporarily suspended on March 10, 2015, due to Father's own actions, Father had shared residence of G. . On July 14, 2015, the court granted Father supervised visitation, but Father did not exercise his visitation rights. Following the entry of the April, 2016 Order, neither party made any real effort at establishing visitation. The onus was placed on a ten year old with no control over her own schedule or transportation to arrange visitation. Father testified that, since the end of July, he has had four phone calls with G. . During one telephone conversation, G. was eating and Father ended the conversation because he wanted G. to learn respect and preferred that she not eat while talking to him on the phone. It should be noted that the phone call was initiated from Mother's home and it was during dinner while G. was eating. Thus, Mother could have waited until dinner was done to call Father without distractions.
The Court finds this factor weighs in favor of granting Mother's Motion.
2. The age , development state , needs of the child , and the likely impact the relocation will have on the child's physical , educational , and emotional development;
G. is ten years old. Mother has sought counseling for G. to help G. cope with her relationship with Father. Mother provides G. with her primary care and emotional support. In relocating to Texas Mother has a less strenuous work schedule and has greater opportunity to provide support to G. . Mother testified that G. 's school district received an eight out of ten rating. G. is making new friends and doing well in school so far. Although relocation will deprive Father of more frequent contact with G. , Mother is willing to bring G. back to Delaware to facilitate visitation with Father. If relocation is allowed, Father's visits would be longer as they would be less frequent.
See also Petitioner's Exhibit # 2.
Mother is active in all other aspects of G. 's life. As stated above Father has had only limited involvement in G. 's life in the past 1.5 years.
The Court finds this factor weighs in favor of Mother's Petition to Relocate.
3. The feasibility of preserving the child's relationship with the non-custodial parent;
Mother is planning to relocate to continue employment in Texas. Father is disabled and currently unemployed, with limited financial resources. However, Mother offers to fly to Delaware with G. to facilitate visitation with Father and G. . As an employee of American Airlines, Mother can fly with G. at-will, on a standby basis, for free. Additionally, Father and G. have not had much of a relationship recently and the visitation offered by Mother is more than Father has been experiencing. The Court would make up the visitation by ordering longer visits as they would be less frequent.
Additionally, Mr. Scache located a counselor, Dr. William F. Northey, Ph. D., LMFT who is available to do long-distance reunification counseling. Dr. Northey is a licensed marriage and family therapist who has a location in Bellefonte, which is close to Father's residence. He has experience in parent coordination and high conflict families. Dr. Northey would also be able to accept Medicaid for Father's services.
The Court finds that this factor weighs in favor of Mother's Petition to Relocate.
4. The child's preference , considering age and maturity level;
G. is ten years old, and the Court did not believe it was necessary to interview G. again to ask her about relocating to Texas as she would not understand all the adult factors that coincide with moving, including economic factors. Therefore, the Court will not consider this factor.
5. Whether there is an established pattern of the person seeking relocation either to promote or thwart their child's relation with the other parent;
Father testified that G. told Father that she is inhibited from making phone calls to Father and suggested that Mother monitors G. 's calls to Father. Father also testified that the recent supervised visitation was problematic because it prevented Father and G. from open and free conversation. Father has not presented sufficient evidence that Mother has prevented G. from contacting Father. While Mother has not promoted a relationship, she has not thwarted it either. Father's own choices and style of parenting has inhibited his relationship with G. . G. still loves Father and cares about him which is a sign that Mother is not alienating Father.
The Court finds this factor weighs in favor in granting Mother's Motion.
6. Whether the relocation of the child will enhance the general quality for both the parties seeking the relocation of the child , including but not limited to , financial or emotional benefit or educational opportunity;
Mother stated she is seeking to relocate so that she could accept a promotion and continue her full-time employment with American Airlines, with whom she has been employed for seventeen years. Mother previously worked in the company's Philadelphia office for thirteen years, holding various positions. When the opportunity arose for the position in Texas, Mother was told to make a decision quickly. Mother testified that a total of seventy five people applied for the job, fifteen people were interviewed, and that Mother was the first choice. Mother was offered the job at the end of May.
Mother testified that the headquarters for American Airlines is in Texas and that her responsibilities are on a larger scale than her position in Philadelphia. Mother received a 23% income raise and gets a yearly bonus. Mother stated that her new position has better hours which provide more time for her to spend with G. and the financial ability to enroll G. in extra-curricular activities. By improving Mother's standard of living, G. 's standard of living also improves.
Mother is the primary financial support for G. .
The Court finds that this factor weighs in favor of Mother.
7. The reasons of each person for seeking or opposing the relocation.
Mother plans to relocate to Texas to accept a promotion and further her career. There is nothing to suggest that Mother is moving to avoid Father's limited visitation. Mother seeks to improve her financial situation and her hours, both of which benefit G. . Father opposes the relocation because he wants G. to remain in Delaware to keep it simple. Father continues to assert that Mother has taken steps to keep him from G. and that supervised visitation has prevented him from having meaningful contact with G. .
The Court finds this factor weighs in favor of Mother.
Conclusion
In deciding issues pertaining to custody and visitation under 13 DEL. C. § 722, this Court must balance the best interest factors. The Court has also held that some factors may be given more weight than others. The Court must balance and weigh the § 722 factors and finds the factors pursuant to the Model Relocation Act persuasive.
See Ross v. Ross, 992 A.2d 1237, 2010 WL 1404220 (Del. Apr. 7, 2010) (unpublished table decision).
Ross citing Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997) (noting that "[t]he amount of weight given to one factor or combination of factors will be different in any given proceeding. It is quite possible that the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations.") --------
The Court has considered all evidence at this stage in the proceedings affecting G. 's interests. The Court would further note that both Mother and Father have an obligation to facilitate communication between Father and G. .
For the reasons previously set forth, the Court GRANTS Mother's Motion to Relocate with G. . A balance of the best interest factors favor relocation. The Model Relocation Factors as a whole strongly support relocation. The move provides financial and social benefits to Mother and G. . Given how limited the visitation has been with Father and Mother's ability to arrange free flights, Father's visitation may actually increase with this move from what it had been.
ORDER
THEREFORE, IT IS HEREBY ORDERED this 30th day of September, 2016 that:
1. Mother's request to relocate G. to Texas is GRANTED.
2. The parties shall maintain joint legal custody and Mother shall maintain primary residency.
3. Father shall have visitation one weekend per month, for six hours, at a public place in Delaware, to be arranged by the parties in advance. After the first two months, visitation shall be increased to one weekend per month, for eight hours, at a public place in Delaware. Mother shall provide the transportation for G. to and from the visitation. The Court expects the parties to work together to come up with activities for Father and G. which can occupy the duration of the visit keeping in mind any limitations of Father's due to lack of transportation. Given Father's limited transportation and the financial advantages the move provides Mother, the Court also will Order Mother to reimburse Father for any transportation to the public place if he uses Uber or Taxi services.
4. The parties shall engage in reunification counseling with William F. Northey, PhD, LMFT. Dr. Northey's contact information is as follows: Q3 Analytics & Consulting, LLC, 811 Brandywine Blvd., Wilmington, DE 19809; 302-660-8325; northey@comcast.net.
5. Pursuant to 13 DEL. C. § 727 Father has the right to receive, on request, from Mother, whenever practical in advance, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life, and school activities and conferences, special religious events and other activities in which parents may wish to participate.
6. Mother and Father shall communicate with each other to facilitate communication between G. and Father. The communication shall occur during normal hours 8 a.m. until 9 p.m. at least three times per week. The Court recognizes that Mother and G. are in a different time zone; however Father is unemployed and, thus, is not prejudiced by the one hour differential.
7. This is a FINAL ORDER.
IT IS SO ORDERED.
Very truly yours,
FELICE GLENNON KERR, Judge FGK Date mailed:
(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.