Opinion
File No. CK09-02787 CPI No(s) 14-02787
07-30-2015
N.S. Petitioner v. Z.K. Respondent
Petitioner Attorney Pro se Respondent Attorney Melissa Hopkins, Esq.
CIVIL DISPOSITION
Nature of Proceeding
Petition to Modify Custody Petitioner Attorney
Pro se Respondent Attorney
Melissa Hopkins, Esq. [×] Announced in Court [ ] Decision Reserved ORDER
Before the HONORABLE JOELLE P. HITCH, JUDGE of the Family Court of the State of Delaware:
PROCEDURAL HISTORY
This is the Court's decision on a Petition to Modify Custody filed on February 10, 2014 by N.S. ("Mother"), pro se, against Z.K. ("Father"), represented by Melissa Hopkins, Esquire, in the interest of their minor children, G.K. ("G."), born April 4, 2005, and T.K. ("T."), born March 10, 2009 (collectively "the children"). The parties entered a Stipulation regarding custody on July 1, 2013 whereby the parties shared joint legal custody and residential placement on a "week on/week off" basis. On March 12, 2014, Father filed an Answer to Mother's Petition. Also before the Court is Father's Motion to Relocate to Hawaii filed on July 13, 2015.
On April 23, 2014, Mother filed a Motion to Consolidate the Petition to Modify Custody with a separate Petition - Rule to Show Cause filed by Father, which the Court granted on June 12, 2014. On June 3, 2014, Mother filed a Motion for Testimony by Telephone for the custodian of records at the Ophthalmology Department at A.I. DuPont Hospital. On June 5, 2014, Mother filed a Motion to Compel Discovery, which Father responded to on June 18, 2014. On June 30, 2014, the Court issued an Interim Order continuing a scheduled hearing on the Petitions from June 24, 2014 to December 11 and 12, 2014. Also, on June 30, 2014, the Court issued an Interim Discovery Order, detailing required disclosures pursuant to Mother's original Motion to Compel. On September 16, 2014, Mother filed a Motion for Specific Relief, requesting a Default Order arising from Father's alleged failure to co-parent with Mother. On September 29, 2014, Father filed a Response to Mother's Motion for Specific Relief. On October 1, 2014, the Court issued an Interim Default Order against Father, granting Mother temporary sole placement and custody of the children. On October 8, 2014, the Court issued an Order staying its October 1, 2014 Interim Order following late-receipt of Father's Response to Mother's Motion for Specific Performance.
The Petition - Rule to Show Cause was resolved by Chief Judge Chandlee Johnson Kuhn by Order dated March 4, 2015.
On October 9, 2014, Father filed a Motion for Continuance of a review hearing, which was granted by the Court on October 10, 2014. Following a review hearing on October 30, 2014, the Court issued an Order on November 7, 2014 continuing the hearing on the Petition to Modify Custody to April 30, 2015 and May 1, 2015. On April 13, 2015, the Court issued an Order rescheduling the hearing due to a scheduling conflict. On June 19, 2015, the Court issued a Letter Decision and Order scheduling the hearing for July 27 and July 28, 2015. On July 10, 2015, Mother filed a Motion to Permit Telephonic Testimony of Dr. Jody Williams, the parties' co-parent counselor. On July 13, 2015, Father filed a Motion to Address Relocation at the hearing on July 27 and July 28, 2015. At the hearing, the Court granted both of Father's Motions.
The parties' litigation began in 2009, originating in Family Court in Kent County. On July 18, 2011, the assigned Judge recused himself due to a conflict, following which the remaining Judges in Kent County likewise recused themselves. Chief Judge Kuhn thereafter served the parties until April 2015. The case was then reassigned to this Judge in June 2015, at which time trial was scheduled to resolve the outstanding Petitions on July 27 and 28, 2015.
Although the Court granted Father's request, the witness was unavailable for trial.
DISCUSSION
The Court held a hearing on the Petition for Custody Modification on July 27, 2015 for which Mother appeared pro se and Father appeared represented by Melissa Hopkins, Esquire. Because the Court's most recent Order was entered by agreement of the parties, the Court is guided by the modification standard set forth in 13 Del. C. § 729(b). Furthermore, in deciding the residential arrangements of a child, consideration must be given to all relevant factors, including those set forth below in 13 Del. C. § 722. In determining the nature and extent of visitation between a parent and a child, the Court shall make a determination pursuant to 13 Del. C. § 728(a).
Title 13 Section 729 (b) reads: "An 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."
13 Del. C. § 728(a) reads: "The Court shall determine, whether the parents have joint legal custody of the child or 1 of them has sole legal custody of the child, with which 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 denial or restriction."
Father's Motion to Relocate requests the Court's permission to move to Hawaii with the parties' children. As Father expressed his intention to move regardless of whether the Court granted his request, the Court addressed Father's Motion before considering the merits of Mother's request for custody modification. When considering a parent's request to relocate, in addition to considering the factors of §722, the Court may also consider the factors enumerated in the Model Relocation Act. As the Model Relocation factors are similar in some respects to the § 722 factors, the Court will incorporate any relevant findings under those factors with its other findings below. For reasons detailed in the conclusion of this Order, the Court only took testimony and evidence from Father on his Motion and Mother's Petition.
Potter v. Branson, No. 477, 2005 WL 1403823, at *2 (Del. June, 13 2005). See also R.M.M. v. T.B., No. CN99-09632, 2002 WL 32121308, at *3-4 (Del. Fam. Ct. Dec. 19, 2002). The Model Relocation Factors include:
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 interest of the child.
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father testified he would like to move to Hawaii with G. and T. and requested primary residential placement of the children with him. Instead of shared custody, he requested Mother receive visitation with the children over the summer, holidays, and other school breaks. Father testified he and his wife have secured employment in Hawaii and he believes his children's quality of life will be enhanced while living there. Father asserted the children will suffer emotional stress if they remain with Mother in Delaware. Father also testified his Mormon faith is very important to his family and if the children reside with him, in Hawaii, their religious education will continue. Father expressed concern Mother would interfere with the children's religious faith if they were not permitted to relocate with him. With that being said, Father stated he was open to maintaining contact and visitation for Mother. He is amenable to splitting transportation costs with Mother because he cannot afford the costs for her visitation.
Father claimed multiple ties to the island of Hawaii. He stated he attended college there and the parties lived there for a number of years before their divorce. According to Father, G. was born in Hawaii and T. is eager to visit. Father claimed Mother and her family have timeshares on the island and they vacation there at least once a year. Father stated his home in Delaware is being sold and he and his wife will be traveling to Hawaii whether or not the Court grants his request.
Mother requested primary residential placement to give the children greater "cohesion" so that they may participate in activities "more consistently."
Pursuant to a previous Order, the children only participate in one extracurricular activity per parent. The participation does not extend to the custodial time of the other parent.
(2) The wishes of the child as to his or her custodian(s) and residential arrangements;
The Court did not interview G., nine years old, or T., six years old. The Court determined that such an interview was unnecessary as even if the children had testified to a desire to reside in Hawaii with Father, based upon the facts of this particular care, it would not have changed the Court's decision.
(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;
Father testified his family is very close and participates in "high-adventure" activity together. Father stated he has very close relationships with his children and that he, his children, and the rest of the family are devout in the Mormon faith. Father stated he enjoys watching G. grow and participate in school and church activities. With T., Father roller skates, wrestles, and shares stories.
Father testified G. and T. also have a phenomenal relationship with his wife, J. K. According to Father, G. and T. call his wife "Mom" and they enjoy doing activities with her. Father stated G. and T. have a great relationship with their paternal grandparents, whom they see on weekends at least once a month. The children also have frequent dinner visits and gatherings with extended family that live in Delaware and Pennsylvania.
Father stated his relationship with Mother is very contentious. He claimed she is sarcastic and hostile toward him. Father testified they mostly communicate via email and their communications are limited. As an example of their struggles, Father stated Mother caused confrontations at G.'s baptism and T.'s recent graduation from kindergarten. Father highlighted negative interactions with Mother's wife, M. R., during exchanges and two incidents of trespass on Father's property.
(4) The child's adjustment to his or her home , school and community;
The children live with both parents on a 50/50 shared arrangement on a weekly basis. G. is going into fifth grade and T. is going into first grade. By all accounts, the children do very well in school and have no issues succeeding. Father testified he did research on schools in Hawaii and he believes the children would have a "seamless transition" to Hawaii. Father stated he would determine which school the children would attend once he accepted one of several employment offers.
Father testified T. enjoys horseback rides, swimming, rock climbing, and wrestling. G. enjoys doing artwork with his wife for her business and dancing. Father testified G. and T. are very involved in their religious upbringing and that G. decided to become baptized in the church recently. G. and T. are involved in services and "primary" services, which are akin to a bible study. Father stated his entire family attends the Church of Latter Day Saints and church services are an integral part of the children's lives.
Despite the many positive aspects of their lives in Delaware, Father believes the children are stressed because of Mother's involvement in their lives. Father alleged Mother causes instability in the children's lives, lies frequently, and uses the children against him.
(5) The mental and physical health of all individuals involved;
Father testified his mental and physical health are good, though he has had Crohn's disease for about twelve years, for which he is on disability and cannot work forty hours a week. He has had multiple surgeries to address "flare-ups" and other symptoms of the disease, but he has been doing well for the past eighteen months or so and not required any additional surgeries. Father testified his wife has no mental or physical problems.
According to Father, the children have no mental or physical problems. However, Father highlighted his perception that the children suffer from stress because of Mother's actions. G. currently attends counseling and Father believes it might be necessary for T. to attend counseling as well.
(6) Past and present compliance by both parents 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."
Currently, Father collects disability for Crohn's disease. However, he also works as his schedule allows at an outdoor recreation component of Dover Air Force Base. When he moves to Hawaii, Father testified he has the option of working in a similar capacity at Hickam Air Force Base or at a resort. Father also avers he has his tutoring certification and he has been offered a part-time position as a tutor. Father expects to earn $34,000 while receiving free housing in a three bedroom and two bathroom home in Hawaii. Father stated his new employment would allow him to set his own hours. Father testified he has Medicaid, but the children are covered on Mother's insurance plan. Father stated his Wife has already moved to Hawaii and is providing day care services for a military officer's child. She is also an artist and will be selling paintings and obtaining art contracts for employment.
Father attested he has complied with Court's Orders by attempting to attend co-parenting counseling with Mother, obtain counseling for G., and have the children make phone calls to Mother during his custodial time. Conversely, Father alleged Mother has not consistently complied with the Court's Orders and cancelled co-parenting counseling, despite the Court's Orders. Father testified he attempted to reschedule co-parenting counseling, but was denied. Father also claimed Mother has not had the children call him at the scheduled time; rather, he must initiate calls to speak to the children. Father stated he recently paid an outstanding balance for G.'s counseling without assistance from Mother so she could resume counseling. Father attributed Mother's failure to split the cost of the unpaid balance as the reason G. did not attend counseling for approximately a year. Father also detailed disputes with Mother over the children's passports.
The Court notes both parents were held in contempt of the Court's July 1, 2013 Order by Order dated March 4, 2015.
See Z.K. v. N.S., CK09-02787, Pet. No.14-04109, C.J. Kuhn (Mar. 4 2015) (Petition - Rule to Show Cause).
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Section 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."
Father testified he has no history of domestic violence with his current wife. However, Father stated Mother struck him during two separate incidents - once in 2006 and once in 2008. No further evidence was presented on this point.
(8) The criminal history of any party or adult member of a household and shall take into consideration whether a party or adult member of a household has pled guilty or no contest to or was convicted of a criminal offense.
The Court reviewed the Delaware criminal histories of Mother and Father. Aside from traffic offenses, Mother has no criminal history. Aside from traffic offenses, Father has no criminal history.
CONCLUSION
The Court is required to preserve the rights of a parent to receive "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 the parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The Court shall not restrict the rights of a child or a parent . . . unless it finds . . . that the exercise of such rights would endanger a child's physical health or significantly impair his or her emotional development." Father failed to present a prima facie case that his relocation to Hawaii with the children is in the children's best interests. After Father's direct testimony, the Court questioned Father and counsel whether any additional evidence existed to support his Motion to Relocate. Specifically, the Court questioned whether Father could present any evidence that the children would be neglected or abused in Mother's care to otherwise justify such a drastic change in the custodial arrangement of the children. Father could provide no such evidence. The Court summarily denied Father's request. Because Father relayed his intention to move to Hawaii without the children, a hearing on Mother's underlying Petition to Modify Custody requesting primary residential placement was rendered moot. By default, Mother will receive primary residential placement in accordance with her request since Mother will be remaining in Delaware and Father will be moving to Hawaii.
13 Del. C. §727(a). (Emphasis added).
While the Court does not fault Father for seeking, what he believes to be, a better life for himself and his family, Mother has been a very active participant in the children's lives via a shared custodial arrangement. Section 728 of Chapter 13 of the Delaware Code reads: "The Court shall encourage all parents . . . to foster the exercise of a parent's joint custodial authority and the maintenance of frequent and meaningful contact, in person, by mail and by telephone, between parents and children." Given the distance and time difference between Delaware and Hawaii, Father's relocation would for all intents and purposes amount to a termination of Mother's parental rights as she would be left with virtually no influence and involvement in her children's daily lives. Mother would have essentially no input regarding choice of school, medical care, or daily activities. Mother would have little to no information regarding the children's friends, their community, or their mental health or general happiness. Although Father offered Mother visits with the children over summer and holiday breaks, such a schedule would not make up for her otherwise complete removal from their lives. In addition, Mother does not have the funds to pay for half of the travel costs that Father likewise requested the Court burden her with.
13 Del. C. § 728. (Emphasis added).
Father presented no circumstances justifying the move other than the fact that he had "a connection to the islands" of Hawaii and the fact that he had found employment there. There is no evidence to suggest Father had lost his employment in Delaware and could not find other suitable employment in Delaware, or that other circumstances necessitated his move. Although Father testified to medical care he could receive in Hawaii, there was no evidence that equivalent care was unavailable in Delaware. In addition, Father testified his health has been stable for a significant amount of time. Somewhat surprisingly, Father testified the reduced stress in not having to deal with Mother and the shared custody might improve his health. The Court has no doubt most divorced couples would prefer not to have continued contact with their ex, however such an argument is irrelevant in a custody case where parents are required to continue to interact civilly with each other for their children's sake.
The Court is tasked with considering the children's best interests - not Father's. The Court has no intention of limiting Father in the pursuit of his goals, but when the parties voluntarily present their custody dispute before the Court for a disposition, the obligations of the parties are molded, in part, by the rights and responsibilities granted to each parent by the Court's determinations in the child's best interests.
If anything, Father harmed his cause by highlighting how successful the children were in school and how they are active in extracurricular activities, here, in Delaware. Father also detailed at length the children's involvement with his family members, who purportedly live almost exclusively in Delaware and Pennsylvania. In addition, Father stated the children saw paternal grandparents frequently on a monthly basis and they attended church services together, a contradiction to his argument that the children's continued religious upbringing in the Mormon faith would be better protected by their relocation to Hawaii. Indeed, regardless of Mother's alleged interference, it appears Father's relocation would remove the children from their church in Delaware and their paternal grandparents.
After considering the § 722 factors and those found in the Model Relocation Act, the Court finds it must deny Father's request to relocate to Hawaii with G. and T.. The Court is empowered to utilize its discretion and balance the best interest factors as it sees fit. The amount of weight given to one factor or combination of factors will be different in any given proceeding. At times, the weight of one factor will counterbalance the combined weight of all other factors and be outcome determinative in some situations.
Powell v. Dep't of Servs. for Children, Youth & their Families, 963 A.2d 724, 735 (Del. 2008)(citing Fisher v. Fisher, A.2d 619, 622 (Del. 1997)).
Id.
Here, the Court finds Father has not presented evidence sufficient to demonstrate it is in the children's best interests to relocate. Because Mother presently has shared custody with the children, the Court finds it would have a negative effect on the children's emotional development to remove them from their Mother for such extended periods of time. Frequent and meaningful contact with both parents is essential for the children's development. Even if the Court were to accept Father's testimony as an accurate representation of Mother's behavior, the Court would still not find relocation to Hawaii to be in the children's best interests. Such relocation would require the children to leave both maternal and paternal relatives, and their homes, schools, and communities absent any showing of detriment to them presently or benefit to them in Hawaii. Father simply asserts it would enhance their quality of life yet offers no basis to support such a position and avers such a move would provide them with a "normal" life, completely discounting the proposition that life in their mother's home is "normal". Finally, by virtue of Father's decision to relocate regardless of whether the Court allows the children to go with him, it appears he either has little concern for the well-being of his children, or, more likely, he is satisfied they will be appropriately cared for by their Mother.
Accordingly, the Motion to relocate is DENIED.
VISITATION
When determining the custody of a child, the Court shall also determine a schedule of visitation consistent with the child's best interests and maturity, designed to permit and encourage the child to have frequent and meaningful contact with the non-custodial parent. Following the Court's decision on the record, the Court addressed Father's visitation with the children following his move to Hawaii. The parties reached a series of agreements. Father and Mother agreed he would receive visitation every summer, with Mother reserving one week either at the start or end of the children's break period for her own vacation. Father would also receive winter breaks. Mother agreed to have the children contact Father every Sunday anytime between 5 p.m. and 7 p.m. EST. The Court directed Mother to provide Father with brief email updates every week regarding the children's life developments. The parties agreed to continue G. in counseling and T., as necessary. Pursuant to the parties' agreement, Mother may exercise the school "choice" program to move T. to Allen Frear Elementary School so he can attend the same school as G.. Following concern expressed by Father that the children will no longer attend Mormon services on alternating Sundays, at the Court's suggestion Mother agreed to permit paternal grandparents visitation on alternating Sundays from 10 a.m. until 5 p.m. to take the children to church services.
See 13 Del. C. §728 (a).
Mother expressed some concern that eleven weeks would be too long for the children but was agreeable to trying such a schedule. The Court advised she could file to modify the length of summer visitation if it adversely affects the children and is not in their best interests. --------
Father had initially requested transportation costs for visitation be split. From the view point of fundamental fairness, it is unrealistic for Father to expect Mother to contribute half the costs of transporting the children for visitation between Hawaii and Delaware. Mother does not have the funds and she should not be held responsible for costs resulting from Father's elective decision and not necessitated by her actions. Therefore, Father shall pay the costs of all air travel to and from Delaware for the children's transportation.
Accordingly, the Court Orders the following:
1. Father's Motion to relocate is DENIED.
2. Mother's Petition to Modify Custody is GRANTED.
3. Mother and Father shall have joint legal custody of G.K., born April 4, 2005, and T.K., born March 10, 2009.
4. Mother shall have primary residential placement of G. and T. effective September 11, 2015. Until that time, the parties shall continue to follow the shared custody schedule already in place.
5. Effective September 11, 2015, Father shall have visitation with the children during the entirety of their summer breaks excluding one week, which Mother shall elect at either the beginning or end of the children's summer break.
a. Mother shall notify Father of her summer vacation week by April 1st of each year.
b. Mother's week of vacation shall commence either the first Saturday after the last day of school and end the following Saturday, or the second Saturday prior to the first day of school and end the Saturday prior to the first day of school.
6. Father shall also have visitation during the children's winter breaks from school. During odd years, Father's winter break visitation shall commence on December 24th and end the day before the first day of school. During even years, Father's winter break visitation shall commence on December 26th and end the day before the first day of school.
7. Father shall arrange and pay the costs of transportation between Delaware and Hawaii. However, Mother shall be responsible for travel and travel costs from her home to the airport. Father may schedule flights anytime after 8:00 a.m. EST if the originating airport is either Baltimore-Washington Thurgood Marshall International or Philadelphia International. If Father schedules any flights at a different airport, he shall schedule the flight after 1:00 p.m. EST. Father shall provide Mother with the planned itinerary for the children's visitation trips at least sixty (60) days in advance. Father's ticket purchases shall include the services of an "adult chaperone" provided by the airline, unless it is otherwise mutually agreed that another adult shall accompany the children or if the children are old enough to travel alone.
8. Absent emergency circumstances, Mother must ensure the children are ready to travel and have boarded the flight purchased by Father to start the scheduled visitation period. In the event Mother fails to send the children to Father at the appropriate time, she shall be responsible for reimbursing Father the cost of his purchased tickets and purchasing tickets immediately to send the children to Father. Likewise, if Father fails to return the children at the appropriate time (absent an emergency), the Court may assess a fine against him for twice the value to the tickets purchased.
9. Mother shall ensure the children contact Father every Sunday anytime between 5 p.m. and 7 p.m. EST. Telephone, Skype, and/or Face Time contact is acceptable and shall last up to thirty minutes in duration. This provision shall not limit the children from seeking additional contact with Father as they so desire as long as it does not conflict with Mother's reasonable pre-planned activities for them.
10. G. shall continue to attend counseling. T. shall begin counseling if necessary.
11. Pursuant to the agreement of the parties, Mother may exercise the school "choice" program to enroll T. in Allen Frear Elementary School.
12. Mother shall provide Father with weekly updates via email regarding the children's well-being, health, and schooling.
13. Pursuant to the agreement of Mother, paternal grandparents may have visitation with G. and T. for the purposes of attending church services every other Sunday from 10 a.m. until 5 p.m. This arrangement will start on September 20, 2015 and remain in place for six (6) months. At their discretion, paternal grandparents may file a Petition for Third Party Visitation to establish a permanent visitation schedule. If they choose to exercise this contact, Paternal Grandparents shall be responsible for pick-up and drop-off from Mother's residence.
14. Each parent is entitled by statute to have reasonable access to G. and T. by telephone, mail, and other means of communication and to receive all material information concerning them, regardless of the joint or sole legal custodial status of the child or the primary residence. The parties shall exert every reasonable effort to maintain free access and unhampered contact with their children. Moreover, each party shall foster a feeling of affection and respect between the children and the other parent. Neither party shall do anything that may estrange them from the other party, injure their opinion of the other party, or hamper the free and natural development of their love and respect for each party.
IT IS SO ORDERED.
/s/ _________
JOELLE P. HITCH, Judge JPH/krp
xc: Parties, File
Date mailed to parties: __________