Opinion
CS13-02354 Petition 21-05039/21-14342
06-15-2022
P. F., Petitioner/Respondent, v. G. F., Respondent/Petitioner. In The Interests Of: T. F. (DOB --/--/09), K. F. (DOB -/--/15)
Petition to Modify Custody Rule to Show Cause
ORDER
JAMES G. MCGIFFIN JR., JUDGE
Before the HONORABLE JAMES G. MCGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
On April 20 and May 20, 2022, the Court convened a Zoom hearing on the Petition to Modify Custody Order filed by P ------ F ------- (Father) against G-- F ------- (Mother) and the Petition - Rule to Show Cause filed by Mother against Father. Both actions relate to the Stipulation and Order Resolving Custody and Visitation entered January 22, 2020. The children who are the subject of the Order are T -----, born -------- --, 2009, and K---, born ----- --, 2015.
Father appeared represented by counsel, David Weidman. Mother appeared represented by counsel, David Gagne.
PROCEDURAL HISTORY
Father filed his Petition to Modify Custody Order on March 1, 2021. Mother filed her Answer, on May 22, 2021. Mother filed her Petition - Rule to Show Cause on June 15, 2021, and Father filed his Answer on July 8, 2021. These matters were consolidated by Order of July 27, 2021.
The time for the Answer was extended by stipulation of the parties.
THE ISSUE
Father asserts that the custody order should be modified because the provision addressing parenting coordination has been abused by Mother and the parent coordinator, and because the provision is unnecessary. To prevail Father must prove his factual claim and that modifying the Order serves the best interests of the children.
13 Del. C. § 722(a)(2) & 13 Del. C. § 729(b).
The Stipulation and Order states:
Parent Coordination. The parties agree to engage Dr. Mary Vaughn as a coparent coordinator to resolve impasses or disagreements that may arise so as to avoid unnecessary litigation. Dr. Vaughn shall have the authority to determine the protocol to resolve such disagreements. Dr. Vaughn's determination is binding on the parties unless one files a petition for judicial resolution of a particular issue in which case Dr. Vaughn's determination shall serve as an interim order until/unless modified by the Court. Dr. Vaughn shall have the power (but not the obligation) to allocate her fees between the parents in the event that she believes her services were invoked improperly on a particular issue. The Parenting Coordinator shall attempt to have the parties agree but may make decisions resolving conflicts between the parents which do not affect the Court's exclusive jurisdiction to determine fundamental issues of custody and visitation if parents cannot agree. Each party specifically agrees that the Parenting Coordinator may make decisions regarding possible conflicts they may have and that such decisions are binding on the parties when made and will continue in effect, unless modified by the parties or the Court or set aside by a Court of competent jurisdiction. No therapist-patient privilege is created by entry of this Order.
Father's case is built on four claims. Father asserts that Dr. Vaughn overstepped her authority to define an impasse or disagreement, that she is functioning as a coparent counselor instead of a coparent coordinator, that Dr. Vaughn was not engaged to facilitate communication between the parties, and that Dr. Vaughn demonstrates bias against him.
THE FACTS
Father testified that he entered the agreement believing that the parent coordinator would become involved only in a "very serious matter." He and Mother communicate through the web-based Our Family Wizard program.
The parties did not call upon Dr. Vaughn for several months after the Stipulation and Order entered. When a disagreement arose about exchanges of the children at the change of parenting time, they turned to the parent coordinator and that issue, along with other issues, was quickly resolved.
Father took exception to Dr. Vaughn's decision to participate in the parties' selection of a mental health counselor for the children. He thought the parties could accomplish this task without Dr. Vaughn's help (and the resulting fee). He rejected Dr. Vaughn's direction to follow the process she established for making the decision. Dr. Vaughn responded to Father with a detailed explanation of her role and of the reasons for her involvement on this issue. Father disregarded Dr. Vaughn's direction and went directly to Mother about the counselor selection issue. Mother responded by sharing with Father her observation that the couple cannot "communicate in a healthy manner." Mother also pointed out to Father that the flurry of email messages between the parties did not resolve the issue but demonstrated a disagreement for which they agreed to use the services of Dr. Vaughn.
Eventually, Mother capitulated to Father's demand she send to him the names of three counselors. He selected a counselor and notified Mother. The parties discovered the selected counselor was unavailable. Father then criticized Mother for her adherence to Dr. Vaughn's process, saying, "You failed to respond to any of the counsellors I provided." The parties did not agree on a counselor for the children.
Father rejects the notion that Dr. Vaughn's role includes helping the parties learn to co-parent. In his testimony he speculated that Mother would call in Dr. Vaughn on trivial issues with a frequency he cannot afford.
Father rejects that he and Mother have a conflict if only one of them perceives a conflict.
Father brought in counsel to represent Father's position with Dr. Vaughn on her role as parent coordinator. This was unhelpful. The communication between lawyer and psychologist showed that they do not share an understanding of the words "conflict," "communication," and "disagreement."
Ultimately Father professed that he is unwilling to use any parent coordinator, as he finds the assistance unnecessary. The only problem he could identify is Mother's failure to communicate effectively. He believes that he communicates with Mother without problem.
The record indicates otherwise. Father's communication with Mother includes his use of vulgarity with her, calling her "asshat" and "miserable C."
Father confirmed when he used the letter "C" he meant to convey "cunt."
Father applied to a week-long summer camp for the older child without consulting Mother. After the child was accepted and scheduled for the camp, Father notified Mother that the camp was to take place during one of Mother's weeks. This notice was two months before the camp week. Father explained that he gave Mother time to "make arrangements." Father also told the child she was to attend the camp.
Mother was considering a trip with the children to see their maternal grandmother the same week.
Mother testified to several outstanding issues requiring resolution by the parties. She mentioned the need for rules to govern communication, extra-curricular activities and sharing the costs of those activities, vacation scheduling, children's use of phones, and Father's use of images of the girls on his social media dating sites.
DISCUSSION
Parent Coordinator's authority and role
Father disputes Dr. Vaughn's definition of the role of a parent coordinator. The language of the Stipulation and Order provides direction on this question. It requires the parent coordinator to:
• resolve impasses or disagreements that may arise so as to avoid unnecessary litigation
• determine the protocol to resolve such disagreements
• allocate her fees between the parents in the event that she believes her services were invoked improperly
• make decisions resolving conflicts between the parents which do not affect the Court's exclusive jurisdiction to determine fundamental issues of custody and visitation if parents cannot agree
• make decisions regarding possible conflicts These directions correspond to the guidance promulgated by experts in parent coordination.
The American Psychological Association developed Guidelines for the Practice of Parent Coordinating. The guidelines describe "best practices for ethical and competent functioning in this unique role." The guidelines describe the role this way:
Am. Psychol Ass'n, Guidelines for the Practice of Parenting Coordination, https://www.apa.org/practice/guidelines/parenting-coordination (last updated 2011).
Id.
Parenting Coordination is designed to help parents implement and comply with court orders or parenting plans, to make timely decisions in a manner consistent with children's developmental and psychological needs, to reduce the amount of damaging conflict between caretaking adults to which children are exposed, and to diminish the pattern of unnecessary re-litigation about child related issues.
Id.
The Association of Family and Conciliation Courts published the Guideline for Parent Coordination in 2019. The Guideline defines parent coordination this way:
AFCC, Guidelines for Parent Coordination (2019).
Parenting coordination is a hybrid legal-mental health role that combines assessment, education, case management, conflict management, dispute resolution, and, at times, decision-making functions.
Id.
Guideline VII of the document outlines the roles and function of the parent coordinator. Among those roles is that of "education."
A [parent coordinator] shall educate coparents about child development,
separation/divorce research, the effects of conflict and impact of coparents' behavior on the children, parenting skills, communication, and conflict resolution skills. A [parent coordinator] may model or teach coparents skills and provide direction/redirection to assist coparents in the acquisition of those skills.
The guideline also addresses the parent coordinator's role in "communication."
A [parent coordinator] serves as a conduit for communication between the coparents. A [parent coordinator] should establish communication protocols and rules of engagement in order to facilitate respectful, child-focused communication between coparents.
Father's view of the parent coordinator's authority and role conflicts with the Stipulation and Order and with the APA and AFCC guidelines. Father argues that a condition precedent to calling in the parent coordinator is the existence of an actual and articulated disagreement about a decision that must be made by parents. Father's view is too narrow.
The parties have worked through a few actual, articulated issues (exchanges, children's use of phones). Through that process Dr. Vaughn observed the parties experience problems in communication. Mother "shut down" and Father became "loud and aggressive." As Dr. Vaughn explained in her testimony, the communication between these parents is, itself, conflict. These parents require skills to resolve the communication conflict.
Mother accepted Dr. Vaughn's process but Father rejected it. That. too, is a disagreement.
Father's unilateral decision to book a camp for the oldest child promotes conflict.
The Stipulation and Order empowers Dr. Vaughn to identify and work with the parties to resolve actual and possible conflicts. The guidelines require that she "reduce the amount of damaging conflict" between the parents and "educate coparents about communication [] and conflict resolution skills." Dr. Vaughn is charged with serving "as a conduit for communication between coparents." These things Dr. Vaughn has done, begun to do, or tried to do, with these parents.
Father's rejection of Dr. Vaughn's work is not supported by the record in this case and his actions and attitude make it clear that a parent coordinator is necessary to help these parents learn to coparent effectively.
Bias
Father asserted that Dr. Vaughn demonstrated bias against him during her work as a parent coordinator and as a witness during the hearing.
The record has no support for Father's claim that Dr. Vaughn is biased against him. Despite Father's unreasonable demands and obvious misunderstanding of the parent coordination process, Dr. Vaughn dealt with him in a patient, yet firm, and fair manner.
Father's counsel argued that Dr. Vaughn's responses to his trial examination questions revealed bias. I do not agree. Counsel was frustrated over Dr. Vaughn's manner of responding to his questions, but Dr. Vaughn's answers were not the problem. At the early stage of the examination, after establishing the preliminary and uncontroverted details, counsel questioned Dr. Vaughn about her understanding of her role as described in the Order. Dr. Vaughn explained she understood the Order to be the means by which the Court entrusted her to do parent coordination within the limits she had been taught. Counsel asked Dr. Vaughn if she realized that Order was an agreement by the parties and that the Court, "doesn't say anything in here?" His question was confusing to Dr. Vaughn because it is based on a false premise. In later responses, Dr. Vaughn was careful to answer each question only after she understood it. She did not trust the questions asked of her. Her answers did not conform to the questions asked in form but they were not substantively inappropriate.
Another example of an unfair question occurred when counsel asked Dr. Vaughn about a February 18, 2021 email message she sent to Father with this information:
We need to meet to agree to which counselor, since either you both need to agree or I just need to decide if you cannot agree. I also wanted to check in on how exchanges are going. If you would rather that we don't meet and I do this via email or OFW, we can do that, too, and I can charge per email or whatever. Typical parenting coordination focuses on conflicts, but tends to have an initial period where communication is improved and initial issues are worked out, which often requires more appointments in the beginning. Let me know your preference in how to proceed.[1:46:04]
Father responded by email message indicating he had a different process for selecting a counselor in mind. Counsel questioned Dr. Vaughn about why Father's response did not satisfy Dr. Vaughn's request to "[l]et me know your preference in how to proceed." Dr. Vaughn's inquiry about "how to proceed" was about the choice of working through the counselor selection by meeting, email or OFW. Counsel's question assumed the "how to proceed" reference applied to using the parent coordinator to resolve the issue. By taking Dr. Vaughn's request out of the context of the whole message, counsel asked an unfair question. Dr. Vaughn recognized the problem with counsel's question and answered appropriately.
Dr. Vaughn demonstrated no bias against Father or Father's counsel during her interaction with Father and during the hearing.
Best Interests
Our statute describes the authority of this Court to modify a consent order of custody this way:
13 Del. C. § 722(a)(2) & 13 Del. C. § 729(b).
An order entered by the Court by consent of all parties, . . . may be modified at any time by the Court in accordance with the standards set forth in § 722 of this title.
These are the best interest standards:
(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 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.
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. 13 Del. C §701.
As Father seeks to change the Order and Mother does not, this first factor is neutral.
Neither party presented evidence relevant to standards 2, 4, 7, and 8. The evidence that implicates standard 3 is the testimony about Father's unilateral decision to send the oldest child to camp on Mother's week, putting Mother in the position of disappointing the child if Mother decides to travel with the children that same week. Standard 3 favors Mother's position. The evidence relevant to standard 5 is the testimony of the parties and Dr. Vaughn about Father refusing to follow Dr. Vaughn's direction for selecting a counselor for the girls. A counselor has not been engaged. This standard favors Mother's position. The evidence adduced also addresses standard 6 because the parties are bound by an order to employ a parent coordinator and Father has not complied with the Order. This standard favors Mother's position.
The best interest standards militate against modification of the Order.
Contempt
A party may file a Petition - Rule to Show Cause if that party believes the other party is in contempt of an existing Family Court order. This Court has explained that:
[t]hree criteria must be met to support a finding of contempt: 1) there must exist a valid mandate, judgment or order; 2) the alleged contemptor must have could abide by the valid mandate, judgment or order; and, 3) the alleged contemptor must have, in fact, disobeyed the mandate, judgment, or order without just cause.
Watson v. Givens, 758 A.2d 510, 512 (Del. Fam. Ct. Nov. 10, 1999) (citations omitted).
In a contempt action, the petitioner must prove the violation by clear and convincing evidence.
Watson, 758 A.2d at 512.
A motion to show cause why defendants should not be held in contempt is addressed to the discretion of this Court. This Court must use the contempt power in a manner appropriate to the situation so as to resolve the conflict at hand.
While in a criminal contempt proceeding any penalty for contumacious behavior is punitive in nature, this is a proceeding for civil contempt. The only purpose for finding the defendants in contempt and assessing a penalty here would be to coerce them to obey the Order. In order to bring this coercive power to bear on the defendants, this Court must first find by clear and convincing evidence that a violation of the Court Order has taken place. For a party to be found in contempt for violation of the Court's Order that violation must not be a mere technical one, but must constitute a failure to obey the Court in a "meaningful way." Even if a finding of contempt is made, the Court need not impose sanctions for a failure to comply with its Order if it perceives that the party is making a good faith effort to remedy the problems which necessitated the action.
Dickerson, et al., Civ. A. No. 10256, 1991 WL 208467, at *4 (Del. Ch. Oct 15, 1991) (Mem. Op.) (citations omitted).
Father does not contest the validity of the Order. Father had the ability to comply with the Order. He speculates that his resources will be insufficient to comply with the Order in the future, but he demonstrated no inability to comply in the circumstances upon which this case is focused. Father disobeyed the Order. The evidence of his disobedience is clear and convincing. His failure to follow the Order is not a mere technical failure. It has disrupted the progress this family must make to allow the children to grow up healthy and happy. Father's speculation that use of the parent coordinator will exceed his ability to pay for her services is not evidence of just cause. It is not evidence at all.
CONCLUSION
Father seeks to modify the January 22, 2020 Stipulation and Order Resolving Custody and Visitation by striking from it the provision addressing parent coordination. Father did not prove that a factual basis exists to strike that provision and he did not prove that the best interests of the children will be served by striking that provision. The petition is DENIED.
Father is in CONTEMPT for failing to obey the January 22, 2020 Stipulation and Order by refusing to cooperate in parent coordination. As a sanction, Father shall be responsible for a portion of the attorney fees incurred by Mother drafting and filing in this action. Mr. Gagne shall submit an affidavit to support the fee award. Father shall also be responsible for the fee Dr. Vaughn is due for her participation on May 20, 2022.
IT IS SO ORDERED.