Opinion
File No.: CN17-06409 Petition No.: 19-03387
02-20-2020
RE: S----------- S--- v. B-------- D----
S---------- S--- B-------- D----.
LETTER, DECISION AND ORDER
Petition to Modify Custody Order: E--------- D----- (DOB: 08/15/17) Dear Ms. S--- and Mr. D----,
This is the Court's decision regarding the Petition to Modify Custody Order filed by S-------- S--- ("Mother") on February 7, 2019, against B------- D---("Father") in the interest of their minor child E------- D----- ("Child") born August 15, 2017. Mother is represented by V-------L----, Esq. and Father is represented by J--- J----, Esq. Pursuant to a Permanent Consent Order issued on February 26, 2018, following the parties' participation in Court-ordered mediation, the parties received joint legal custody, primary residence with Mother, and every other weekend from Thursday afternoon to Sunday afternoon with Father.
The Court held a final hearing on Mother's Petition to Modify Custody on November 22, 2019, with the April 30, 2019 Interim Custody Order in effect pending a final decision.
PROCEDURAL HISTORY
On April 5, 2019, Mother filed for a Protection from Abuse Order ("PFA") and was granted an Ex Parte PFA Order. On April 25, 2019, the Court held a Case Management Conference on Mother's Petition, participated in by both Mother and Father. Mother reported that she is requesting that Father's visitation be from Thursday afternoon to Monday morning every other weekend with all pick up and drop off occurring at Child's daycare. Mother is also requesting sole decision making authority over Child's medical needs. Father reported that he wants to share residential placement of Child on a 2-3-3-2 basis.
On May 15, 2019, a Default PFA Order was entered against Father listing only Mother as a protected victim. The PFA Order is set to expire on May 15, 2021.
The Court held a final hearing on Mother's Petition to Modify Custody on November 22, 2019. At trial, the Court took testimony from Mother, B----- S--- ("Maternal Aunt"), Father, and C------- D---- ("Paternal Uncle").
BACKGROUND FACTS
Mother, 24 years old, lives in Wilmington, Delaware in a three bedroom home with Child, and M------- L----, a family friend. Mother is employed as a patient coordinator at ENT Allergy of Delaware. Mother works four days a week, on Mondays and Wednesdays from 8 AM and 4:30 PM and Tuesdays and Thursdays from 8 AM to 2 PM. Mother also attends classes at Delaware Technical Community College, where she is majoring in nursing. Her class schedule varies. Mother tries to schedule her classes during the day, so that she is available for Child in the evenings. After completing her classes, Mother plans to be accepted into a yearlong clinical program beginning in August 2021 and then become a registered nurse.
Father, 28, lives in a two-bedroom apartment in Wilmington, Delaware with a roommate M----- R----------. Father is currently dating A----------- L----- and has been for seven months. Ms. L----- has met Child. Father is employed as a paraprofessional educator at Saint Georges Technical High School. Father works from 7:30 AM to 3 PM Monday through Friday. When Father has Child he will drop Child off at 7:30 AM at daycare and pick up Child at 3:30 PM. Father previously also coached wrestling at Saint Georges but has since stopped. Father works on Sundays as a bouncer at XFINTY Live in Philadelphia to supplement his income. Father no longer works at Kelly Logan house. Father is also a professional mixed martial arts fighter, Father has fights three times a year. In preparation for a fight Father has a rigorous training schedule. Monday through Wednesday Father will train from 6 PM to 8 PM, Thursdays he takes off, Friday he trains before work and Saturdays mornings from 10 AM to 12 PM when he is off and from 12 PM to 1 PM when Father has Child. Father says his training schedule is flexible. When Father has Child his sister in law, J----- D----, will watch Child while Father trains. Father's trainer's Wife will also watch Child while Father is training.
Mother and Father were never married and have no other children in common.
DISCUSSION
For the sake of judicial economy, the Court will not repeat in detail all of the testimony it can obtain from the record, but it will note the salient testimony as it pertains to the required statutory analysis. Pursuant to 13 Del. C. § 729(b) , in making a determination on a request to modify the legal custody and residential arrangements for a child set out in a prior order entered by the Court by consent of the parties, the Court must consider all relevant factors including those set forth in 13 Del. C. § 722. . The Court has held that some factors may be given more weight than others in Court's analysis. The factors are as follows: 13 Del. C. § 722(a) provides: 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.
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.
See 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.")
(1) The wishes of the child's parent or parents as to her custody and residential arrangements;
Mother advised the Court she is requesting that Father's visitation continue to be from Thursday afternoon to Monday morning every other weekend with all pick up and drop off occurring at Child's daycare. Mother is also requesting sole decision making authority over Child's medical concerns. Mother is requesting the Interim Order visitation scheduled be entered as a final order. Mother expressed concerns over the parties' ability to communicate and co-parent in particular when reaching decisions with regard to Child's medical care due to Father's lifestyle choices and views on medicine. Child gets sick often including monthly ear infections and a lot of fevers and Father does not believe in vaccinations.
Father wants share residential placement of Child on a 2-3-3-2 basis and either to retain joint decision making with regard to Child's medical needs or for him to have sole decision making authority over medical decisions. Father believes Mother and Father can work on their communication and is open to co-parent counseling. The Court finds this factor to be neutral as to residential placement as parties have taken opposing positions.
(2) The wishes of the child as to his custodian(s) and residential arrangements;
No testimony was presented on this issue as Child is only two years old. Accordingly, this factor is inapplicable to the Court's analysis.(3) The interaction and interrelationship of the child with his 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 person who may significantly affect the child's best interests; Child's Relationship with Mother: Mother and Child have a strong relationship. Mother spends time with Child going through their daily routine. On a typical day, Mother gets Child up between 6:45 AM to 7:00 AM. Mother feeds him breakfast and prepares his supplies for the day before dropping him off at daycare. After picking Child up from daycare, Mother spends time with Child when making dinner, helping Child pick out what he wants to eat. Mother gives Child baths and gets Child ready for bed by watching movies and has Child in bed by 8 PM. Mother describes Child as being very playful and energetic. When playing, they will wrestle, play hide and seek, or play with Child's toy car. Mother also enjoys taking Child into the community to engage in local activities going on. Child's Relationship with Mother's Family Members:
Maternal Aunt, B------, watches Child when there's no school, when Child is sick and cannot attend daycare, while Mother has class every other Thursday or when Mother needs to study. Maternal Aunt has been involved in Child's life since Child was born. When Child is over at Maternal Aunt's house, Child will also visit with maternal cousins, their children and Maternal Grandmother. Maternal Aunt will play with Child, give Child medicine if he is sick and get Child ready for bed prior to Mother picking him up. Child's Relationship with Father:
Father and Child have a strong relationship. Father enjoys playing games with Child, likes going to the park, going to museums, going to the pool and water parks and is working on potty training with Child. Mother says Father loves Child and is very playful towards him. Mother believes it is important for Child to spend time with Father. Child's Relationship with Mother's Roommate:
Mother explained that her roommate, Mr. L----, has taken on a Father like role in her life. Mother testified that Mr. L------- loves Child, plays with Child, and looks at Child as if Child was his grandchild. Mr. L------ also goes on walks with Child and accompanies Mother and Child to the park. Child's Relationship with Paternal Uncle:
Will see Child approximately once a month and will see Child when Paternal Grandmother is watching Child.
(4) The child's adjustment to his home, school and community;
Mother has primary residence. Mother and Child live in the finished basement of Mother's home. When Child is with Father, Child stays with Father is Father's room.
Child is enrolled in daycare at Aspira Academy. Mother and Father mutually agreed to send Child to daycare and the particular daycare program due to the fact Child is bilingual and Maternal Aunt works at the school. The Court finds this factor neutral to its analysis.
(5) The mental and physical health of all individuals involved;
Mother has no physical or mental health concerns.
Father has no physical or mental health concerns.
Child would suffer from monthly ear infections and fevers. Mother took Child to see Dr. C-----, an ENT. Dr. C----- suggested Child have ear tubes placed to which Father opposed. Parties delayed having the surgery, but Child continued to get sick. Mother decided to move forward with the surgery. While Father initially opposed, Father did provide Mother with Child's insurance information and was aware of when the surgery was occurring. Child also catches viruses frequently, has had Croup, and Hand Foot and Mouth disease. Child's primary care physician is Dr. Mases, however, due to how frequently Child gets sick, Child also regularly sees a nurse practitioner. Child's doctor expressed concerns over Child how often gets sick and that Child does not have vaccinations. Mother contends Child has only received a vitamin K shot. In addition to his primary care physician, Child sees a homeopathic doctor, Dr. Hall, due Father's beliefs on medicine. Mother selected Child's doctors, takes Child to all of his appointments and fills Child's prescriptions. Father only attends Child's appointments with the homeopathic doctor.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
No evidence was presented that either party fails to meet their obligations and responsibilities with regard to Child. The Court finds this neutral to its analysis.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
Pursuant to 13 Del. C. §706 A (a), any evidence of a past or present act of domestic violence, whether or not committed in the presence of Child, is a relevant factor that must be considered by the Court in determining the best interests of the child. There is evidence of past domestic violence perpetrated by Father against Mother, outside the presence of Child.
There is an active PFA entered against Father due a domestic violence incident where Father threatened Mother that he had a "hit" out on her. The PFA is for two years with exceptions for parties to communicate verbally and by email with regard to Child.
(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.
A review of parties' DELJIS records indicates none of the parties have any criminal history of concern. Accordingly, this factor is inapplicable to the Court's analysis.
Conclusion
Based on the evidence presented, the Court finds that factors one (1), two (2), four (4), six (6) and eight (8) are neutral as to residential placement; that factor three (3) favors shared residency. Upon consideration and weighing of the above factors and the evidence presented, the Court finds shared residency to be in Child's best interest. Parties will continue to make joint medical decisions. ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS:
1. Parties shall continue to exercise joint legal custody of E------- D---- born August 15, 2017.
2. Parties shall engage in co-parenting counseling.
3. Residential arrangement : Parties shall have shared residence of Child.
4. Visitation : Mother will have Child every Monday and Wednesday. Father shall have Child every Tuesday and Thursday. Parties will have alternating weekend visitation. Weekend visitation will be from Friday at 3:30 PM until Monday morning drop off at Child's daycare. In the event Child does not have daycare, the parent whose respective day it is will be responsible for Child care.
5. Summer Vacations : Both parties may have two non-consecutive weeks, Friday to Friday, of summer vacation with Child. The party takin the vacation shall give the other parent at least two weeks' notice prior to each vacation period selection.
6. While the Order Protection from Abuse Order remains active, the parties may only contact each other regarding the well-being of the Child.
7. The parties may modify regularly scheduled visitation upon mutual agreement.
8. The parties may split holidays and winter and spring school recesses, on a mutually agreed upon schedule.
9. Holidays: If parties cannot reach an agreement, regardless of whose day it is supposed to be, Mother shall have Child on holidays in Column 1 in odd-numbered years and holidays in Column 2 in even-numbered years. Father shall have Child on the holidays in Column 1 in even-numbered years and the holidays in Column 2 in odd-numbered years:
| Column 1 | Column 2 |
|---|---|
| Easter or other religious holidays | Memorial Day |
| Fourth of July | Labor Day |
| Halloween | Thanksgiving Day |
| Christmas Day | Christmas Eve |
With the exception of Christmas and Halloween, Holiday contact shall be from 9AM until 6 PM the day of the holiday (unless the holiday falls on your normal residential custody, then there is no change). Halloween contact shall begin at 5 PM until 9 PM. Christmas Eve contact shall begin at 6 PM on December 24th and end at noon on December 25th. Christmas Day contact shall begin at noon on December 25th and end at 6 PM on December 26th.
10. Mother's Day/Father's Day : On Mother's Day and Father's Day, regardless of whose day it is supposed to be, the parent whose holiday is being celebrated shall be entitled to spend the day with Children from 9 AM until 6 PM.
The Court reminds the parties that each parent is entitled by statute to have reasonable access to his or her child by telephone, mail, and other means of communication and to receive all material information concerning the child. Each party shall foster a feeling of affection and respect between the child and the other parent. Moreover, neither party shall do anything that may estrange the child from the other party, injure his or her opinion of the other party, or hamper the free and natural development of his or her love and respect for each party.
See 13 Del. C. § 727(a):
Whether the parents have joint legal custody or 1 parent has sole legal custody of a child, each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child's progress in school, medical treatment, significant developments in the child's life, and school activities and conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The Court shall not restrict the rights of a child or a parent under this subsection unless it finds, after a hearing, that the exercise of such rights would endanger a child's physical health or significantly impair his or her emotional development.
IT IS SO ORDERED.
/s/ _________
Robert Burton Coonin, Judge RBC/dnn
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