Y. L. S. v. E. I. D.

Full title: Re: Y. L. S. v. E. I. D.

Court: Family Court of the State of Delaware

Date published: Feb 9, 2018

File No.: CN16-02507 (Del. Fam. Feb. 9, 2018)

Opinion

File No.: CN16-02507 Petition No.: 16-10649

02-09-2018

Re: Y. L. S. v. E. I. D.

FELICE GLENNON KERR JUDGE

Jill Spevack DiSciullo, Esquire
Morris James, LLP
500 Delaware Ave., Suite 1500
P.O. Box 2306
Wilmington, DE 19899-2306 Michelle R. Skoranski, Esquire
Gonser & Gonser
3411 Silverside Road
Springer Building, Ste. 203
Wilmington, DE 19810

LETTER DECISION AND ORDER

Petition Type: Petition for Custody Dear Counsel:

This Court held a Custody Review Hearing on October 4, 2017, following the entry of a temporary custody order dated February 20, 2017. The parties did not complete their case in the allotted time on October 4, 2017, and as such, the Court continued the hearing on November 20, 2017. The Review Hearing was regarding the Petition for Custody filed by Y. L. S. ("Mother") against E. D. ("Father") regarding the parties' children, Y. D. ("Y. ") (born , 2014) and C. D. ("C. ") (born , 2015) (collectively "the Children"). Mother attended both hearings and was represented by Jill DiSciullo ("Ms. DiSciullo"), Esquire. Father attended both hearings. Father was represented by Norman E. Levine, Esquire on October 4, 2017. Before the November 20, 2017 Hearing, Mr. Levine filed a Motion to Withdraw as Counsel, which the Court granted. Father then hired Michelle R. Skoranski ("Ms. Skoranski"), Esquire, who entered her appearance on the matter and represented Father at the Hearing on November 20, 2017. On October 4, 2017, the Court heard testimony from Dr. Samuel Romirowsky ("Dr. Romirowsky"), Rick Hogan ("Mr. Hogan"), Esquire, Officer Echevarria, and Shavonni Honwad ("Ms. Honwad"), Esquire. Dr. Romirowsky did complete an updated Custody Evaluation, however he was not able to complete the updated evaluation until August 10, 2017. As a result, the report was not allowed to be admitted into evidence as it was not provided by the scheduling order deadline regarding the exchange of exhibits. Dr. Romirowsky was still allowed to testify concerning the updated evaluation. On November 20, 2017, the Court heard testimony from both parties.

Procedural History/Factual Background

Due to the number of pleadings filed in this case, the Court is only going to address the most relevant pleadings in regards to the current custody case. For a more through procedural history, the parties can refer to prior orders and the file itself.

The parties have two children together, Y. and C. . Mother and Father married on September 20, 2013, in Vancouver, Canada, separated in April of 2016, and divorced by final decree on November 3, 2016. The parties migrated to the United States (U.S.) from Canada, in 2014, as a result of Father obtaining employment with J.P. Morgan Chase ("JPMC"). Father is a citizen of Turkey and Canada. Mother is a citizen of Taiwan and Canada. Both parties and Y initially obtained status to be present in the U.S. through Father's employment with JPMC. Father gained status pursuant to an H-1B Visa. Mother and Y obtained status through an H-4 Dependent Visa, available to spouses and children of an H-1B Visa holder.

Father worked at JPMC from April 21, 2014, through August 25, 2016. Sometime thereafter, Father obtained employment with TD Bank. TD Bank transferred the Visas pursuant to Father's new employment. Prior to the divorce, Mother sought legal assistance from an immigration attorney, Ms. Honwad. After the divorce, Ms. Honwad filed for a modification of Mother's status, to obtain a different Visa. Mother now enters the United States either under a visa waiver or under a B-1/B-2 Tourist Visa. These visas allow Mother to stay in the United States under a limited purpose, such as tourism. Mother cannot be paid to work while in the United States under the B-1/B-2 Visa.

On April 12, 2016, Mother filed an Order for Protection from Abuse ("PFA"), a Petition for Custody, and a Motion for Permission to Relocate and For Priority Scheduling. On April 13, 2016, Father filed a Motion to Rescind the Ex Parte PFA. Father filed a Response to Motion to Relocate and Cross-Motion for Escrow of Passports on April 21, 2016. On April 22, 2016, Father filed a Response to Motion for Priority Scheduling. On April 29, 2016, a PFA Order was entered by consent of the parties, requiring Father to have no contact with Mother and to stay 100 yards away from her. On April 29, 2016, pursuant to the PFA Consent Order, the parties agreed to have joint custody and Father was permitted visitation every Wednesday, from 5:00 p.m. until 7:00 p.m., every Saturday, from 9:00 a.m. until 6:00 p.m., and every Sunday from 9:00 a.m. until 12:00 p.m. The exchanges on Wednesday and Saturday were to occur at the Hudson Visitation Center and the exchanges on Sunday were to occur at the New Castle County Police Station. Following these initial pleadings, Father filed a series of pleadings, the majority of which were denied or dismissed. A Stipulation and Order to Modify the Visitation Provision of the PFA was entered on August 12, 2016, allowing Father to have visitation with Y for lunch two days each week, while she attended summer camp. On October 19, 2016, Father filed a Motion for Temporary Visitation. A new Stipulation to Modify the PFA was entered on November 22, 2016, modifying Father's visitation to every Saturday from 10:00 a.m. until 5:00 p.m. and every Sunday from 2:00 p.m. until 6:00 p.m. In addition, the exchange location was modified to the Newark Police Station.

On February 20, 2017, the Court entered an Interim Custody Order giving Mother and Father joint legal custody of the Children. Mother was given primary residency with Father having visitation every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Father was also given two dinner visits a week, every Tuesday and Thursday, from after 5:00 p.m. until 8:30 p.m. Each parent was entitled to two (2) non-consecutive weeks of vacation. A parent was to give a minimum of thirty (30) days written notice to the other parent prior to that parent exercising his or her vacation. The Court stated that a Review Hearing would be scheduled in six (6) months from the date of the February 20, 2017 Order. The Order also stated that if Mother left the United States to search for employment, the parties should have attempted to work out a schedule for the Children while Mother was away based on the Children's adjustment to Father's home. If the parties could not agree on a schedule, Mother would have the Children for two (2) weeks and then Father would have the Children for a week. The parties were to split the costs of transportation equally, including the airline ticket for the traveling parent. Mother and Father were to engage in co-parent counseling and comply with the counselor's recommendations as to the frequency and duration of counseling. Lastly, the Children were not permitted to travel outside of the U.S. or Canada without the consent of both parents. The Court did not enter a final order at that time, primarily due to Father's limited time with the children outside the visitation center since separation and the uncertainly surrounding Mother's visa status.

As noted above, a PFA was entered against Father on behalf of Mother on April 29, 2016 and was set to expire on April 29, 2017. On April 27, 2017, the Court held a hearing on a Motion for Contempt and to Extend the Protection from Abuse Order. The Court issued two orders on April 28, 2017. In the first Order, the Court found that Father had violated the order when he called the police again, after the Court found in the February 20, 2017 Order that his conduct violated the PFA. The Court found that Father's behavior as a whole had been designed to harass Mother. Father chose to completely ignore the findings in the custody order, which he believed were wrong. However, the Court did not extend the PFA. The Court stated that Father's conduct since the PFA Order was entered has been irritating and annoying to Mother but there had not been any new violence that rose to the level where an extension of the restraining order was warranted. The Court noted that the parties had two young Children and need to find a way to deal with one another and co-parent in a productive manner. The Court also issued an Order in the Ancillary Matters, on April 28, 2017, excluding Father from the marital home pending the final ancillary order. The Court noted that it previously found Father's behavior in contacting the police numerous times harassing to Mother. The Court stated that the language in the custody order would have put any reasonable person on notice that calling the police yet again was crossing the line. The Court excluded Father from the home pursuant to 13 Del. C. § 1509, which stated that a party may be excluded from their home upon a showing that emotional harm may result.

On July 31, 2017, the Court issued a Letter and Decision Order regarding Ancillary Matters. Please refer to that order for more information concerning ancillary matters.

Legal Standard

Pursuant to 13 Del. C. § 729,¹ an interim order entered by the Court may be modified at any time by the Court so long as the modification is in the best interests of the child under 13 Del. C. § 722. In the present case, the previous Order in place is an Interim Order entered by the Court and was issued on February 20, 2017. Therefore, in coming to a determination regarding custody, the Court must consider only the best interest of Y. and C. as set out by 13 Del. C. § 722.² The statutory factors are discussed below.

1 Pursuant to 13 Del. C. § 729(b):

b) 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.

2 Pursuant to 13 Del. C. § 722:

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

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.

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.

Best Interests of the Child Factors

The Court must analyze the factors under 13 Del. C. § 722 to create an order that is in the Children's best interests. In the interest of judicial economy, the Court will not recite all of the testimony that can be obtained from the record.

(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;

Mother expressed that she desires to have primary residency of the Children and wishes to relocate to Vancouver, Canada. Mother is not a U.S. citizen and, as a result of the divorce, she no longer qualifies for the H-4 Dependent Visa, which initially granted her legal status. Ms. Honwad testified that Mother can come into the U.S. under a visa waiver or a B-1/B-2 Tourist Visa. However, she will not be permitted to work or apply for employment within the U.S. during that period. Ms. Honwad further testified that Mother would need a work visa, such as a TN Visa, to apply for a job. Ms. Honwad stated that the TN Visa is contingent upon finding an employer-sponsor. According to Ms. Honwad, since Mother does not have a work visa, she has to leave the country to apply for a job. Father submitted into evidence a memo written by Mr. Hogan which discussed Canadian citizens and U.S. visa options.³ Mr. Hogan testified that Mother could remain in the United States under a B-1/B-2 Visa and apply for jobs here in the United States. Mr. Hogan stated that B-1, stands for business and all the visa prevents Mother from doing is getting paid to work while here under that visa. According to Mr. Hogan, the tourist visa does not prohibit or prevent Mother from applying for jobs while in the U.S. Ms. Honwad disagreed. Ms. Honwad testified that if one looks at the purpose under the B-1/B-2 Visa, Mother is not to be looking for employment while on a temporary or tourist visa. Ms. Honwad also expressed her concern that with the current administration if Mother is stopped and is found to have been applying for jobs while in the US on a B-1/B-2 Visa, Mother could be banned from entering the United States. The Court need not rule on which legal expert is correct. Mother should be able to follow the advice of her own legal counsel and not counsel retained by Father. As there may be two different interpretations of the law, Mother cannot be faulted for taking precautions expressed by her attorney.

3 See Respondent's Exhibit #1 from the October 4, 2017 Hearing.

Mother wishes for Father to consider relocating to Vancouver as well. Mother has a better support system in Vancouver and she has friends and family that live there. If Mother is allowed to relocate, she believes she will receive support and assistance from her friends and family, particularly Maternal Grandmother. Mother does not have a Visa to remain in the United States for more than tourism. As such, Mother cannot look for employment in the United States while in the U.S. on a tourist visa.

Mother proposes that she and Father take turns traveling. Mother specifically proposes that Father fly from the U.S. to Vancouver to see the Children every three (3) months. Mother would fly with the Children from Vancouver to the U.S. ever three (3) months a well. If the parties coordinated their schedule, Father would then be able to see the Children every six (6) weeks, with each party and the Children only having to travel once every three (3) months. Mother suggested that in the summer Father would have three (3) weeks to a month visitation with the Children. Mother also suggested that the Children can use Skype and the telephone in between visitations to maintain their connection with Father. Alternatively, if Mother is not permitted to relocate, she still wishes to have primary residency.

Father expressed that he wishes for the Children to continue living in Delaware and for the Court to implement a 2-2-3 schedule or a week on/week off schedule. Father stated that he desires to spend more time with the Children. Father does not want the Children to travel to Taiwan.

Dr. Romirowsky testified that he no longer feels that Mother and Father need to reside in the same community. Dr. Romirowsky expressed his concern that if Mother and Father reside in the same community, the Children could experience and be exposed to high conflict, which could be more damaging to the Children. Dr. Romirowsky does not believe that Father and the Children's attachment can be broken now by periods of absence. Father and the Children have been together enough to form an attachment. Dr. Romirowsky testified that the Children's bond with Father is "sufficiently solid" that it would take a strong estrangement to break that attachment. Dr. Romirowsky does not feel that the two (2) week/one (1) week schedule is ideal but he stated that it would not damage the Children's relationship with Father as when the Children do get to see Father, they are with him for a full week. Dr. Romirowsky testified that while it is emotionally sustainable, he was not sure if it would be financially sustainable for the parties. Dr. Romirowsky noted that Mother's initial proposal of three (3) months with Mother and one (1) week with Father would be too long of a period between Father's visits. If both parties were to remain in Delaware, Dr. Romirowsky supports the Court's contact schedule as laid out in the February 20, 2017 order with Mother having primary residency and Father having the Children for two dinner visits a week and every other weekend.

Factor (1) does not weigh in favor of Mother or Father. Mother and Father have different wishes at this time as it relates to relocating and visitation.

(2) The wishes of the child as to his or her custodian(s) and residential arrangements;

Y. is three and a half (3 ½) years old and C. is two (2) years old. Thus, the Children are too young to express their wishes in this matter and were not interviewed. Therefore, Factor (2) does not carry any weight in this case.

(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 ;

Dr. Romirowsky observed Mother and the Children together in his office. Dr. Romirowsky noted that the Children were playful and had objects that they were familiar with. Dr. Romirowsky testified that the Children were very physical with Mother.

The Children interact with Maternal Grandmother frequently. Mother testified that Maternal Grandmother typically spends six (6) months in Vancouver and six (6) months in Taiwan. Mother testified that she has a sister and brother-in-law who reside in Canada near Maternal Grandparent's home.

Dr. Romirowsky observed Father in the former marital home with the Children. Paternal Grandmother was also present. Dr. Romirowsky asked to speak with Father without the Children. Dr. Romirowsky expressed concern that Father had the Children stay in another room alone, a room that could not be seen from the kitchen where Father and Dr. Romirowsky talked. Dr. Romirowsky noted that Father seemed to be easily agitated that C. would not keep eye-contact with Father when he was talking to him. Dr. Romirowsky also noted that Father did not ask Paternal Grandmother to keep an eye on the Children while Father and Dr. Romirowsky talked. During their talk, C. began to cry. Dr. Romirowsky testified that Father did not go to C. to see what was wrong, rather Father yelled to C. from the kitchen and told him to stop crying. Dr. Romirowsky had to suggest that Father go and check on C. . Dr. Romirowsky noted that Father was then able to comfort C. .

Father testified that it had been a "tremendous change" now that he has the Children for a full week. Father stated that he is more involved with the Children as a result of having them 24-7 for a full week. Father believes that he has adapted to the change. Father feels that the Children are thriving and are happy with him. Father testified that he likes having the Children for a full week at a time, but stated that he feels two (2) weeks without seeing the Children is too long. Father testified that when he has the Children he works from home. Father used to go to the office but has the flexibility to work from home during the week that he has the Children. Father testified that when he does not have the Children he does go into work more often. Father likes having the Children for a week at a time, Father fees that it allows him to interact with the Children more. During that week, with Father working from home, Father can eat lunch with the Children and they can go for a quick walk. Father testified that on a typical day they eat breakfast, lunch, and dinner together, and they have reading time. Father stated that he has not had any issues managing his job and having the Children.

Dr. Romirowsky found that the Children are bonded with Father even during the two (2) week/ one (1) week schedule. Dr. Romirowsky noted that the Children do need a little time to get settled into Father and his home. However, the Children are familiar with Father's home, as it was the former marital home.

The Children have interacted with Paternal Grandmother. Paternal Grandmother lives in Istanbul, Turkey. Father testified that at the time of the hearing, Paternal Grandmother was staying with Father. Paternal Grandmother arrived in October of 2017 and Father testified that Paternal Grandmother was to return to Turkey in December of 2017. Father testified that the Children like spending time with Paternal Grandmother. Y. told Father that she likes Paternal Grandmother, that Paternal Grandmother is "very good" and helpful. Paternal Grandmother speaks only Turkish which initially was a barrier to the Children and Paternal Grandmother communicating. Dr. Romirowsky testified that Father teaches the Children Turkish when they are with him, which is a great way for the Children to learn about their heritage. They can also pick up Turkish by Paternal Grandmother speaking with them. Father would like to take the Children to Turkey.

Dr. Romirowsky also observed a transition of the Children from Mother to Father on September 11, 2017, in his office. Dr. Romirowsky noted that the Children did cry when it was time to transition to Father. Y. clung to Mother and did not want to go with Father. Dr. Romirowsky testified that Father did try to comfort Y. . Father kept repeating "don't do this."

Factor (3) weighs slightly in favor of Mother.

(4) The child's adjustment to his or her home , school and community;

The Children are too young to attend school. Dr. Romirowsky noted that the Children speak English, Mandarin, and some Turkish words.

If Mother is allowed to relocate to Vancouver, she plans to reside in Maternal Grandparent's home. Mother testified that the home is 2700 square feet with four (4) bedrooms and three (3) bathrooms. Mother testified that she would like to eventually rent or own her own home, close to Maternal Grandparent's home. Mother told Dr. Romirowsky that she had identified a pre-school in Vancouver that is close to Maternal Grandparent's home. Mother also advised Dr. Romirowsky that the public school is also close to Maternal Grandparent's home.

Father currently resides in the marital home. However, the marital home is being sold. Dr. Romirowsky observed Father in the former marital home with the Children. Paternal Grandmother was also present. Father gave Dr. Romirowsky a tour of the home and the Children followed. Dr. Romirowsky testified that the Children share a bed in a bedroom. Dr. Romirowsky noted that there are enough beds and bedrooms in the home, however the Children like to sleep together. Dr. Romirowsky also stated that there were toys in the family room and Dr. Romirowsky found the home to be appropriate.

Father testified that a Turkish family lives in his neighborhood and they have two (2) young grandchildren. The families get together and the Children play with one another. Father testified that he also has friends from Pennsylvania and New Jersey that come over that have Children the same age as Y. . They attend Church and go to the YMCA. Father testified that he and the Children go to the Please Touch Museum. Father would like to put the Children in daycare and preschool. Father believes it would be good for the Children to interact with other Children and improve their social skills. Father testified that he had enrolled Y. in ballet and they were going to New York for classes. Father testified that having a set daily schedule has been helpful for both Father and the Children as it "manages expectations."

Dr. Romirowsky noted that the Children at this age do not have a relationship to their community, rather they have a relationship with the people in their lives.

Factor (4) weighs in favor of both parties.

(5) The mental and physical health of all individuals involved;

Neither Mother nor Father presented any new evidence concerning their physical and mental health. At the prior hearing, Mother and Father described their physical health as good. Father testified that the Children did well at the dentist and C. did well at his two (2) year well visit.

Mother and Father appear to be in good physical health and the Children are healthy and active. At the prior hearing, both parties exhibited symptoms of depression, and no further evidence was presented at this hearing concerning either parties' depression.

Factor (5) is neutral and does not carry any weight.

(6) Past and present compliance by both parents with their rights and responsibilities to their child under §701 of this title; ⁴

4 Pursuant to Del. Code Ann. tit. 13, § 701: (a) 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.

Mother testified that on January 29, 2017, Father took Y. to the emergency room as Y. had a scratch on her head.

Mother testified that she was following the February 20, 2017 Court Order. The parties were initially following the order, which allowed Father visitation every other weekend and two dinner visits, on Tuesday and Thursday, a week. Mother then gave Father thirty-two (32) to thirty-four (34) days notice that she would be using the provision in the order that would allow her to return to Vancouver to seek employment. The provision allowed Mother to take the Children to Vancouver for two (2) weeks while she was seeking employment and then would return the Children to the U.S. for one (1) week for them to be with Father.

Mother also addressed Father's noncompliance with the February 20, 2017 Order, which stated that the parties were to split the costs of transportation, including the cost of Mother's airline ticket. Mother testified that she has made between six (6) and seven (7) trips and Father's share of the costs of travel is approximately $3700. Mother testified that at the time of the hearing, Father had yet to reimburse her for his half of the travel costs. On cross-examination Mother admitted that she did include a parking receipt when she sent Father the receipts for the travel expenses. Father advised Mother that parking was not an expense Father was responsible for. The Court ordered that Father pay for half of the travel expenses and specifically included airline costs for the Children and Mother. The Court did not indicate that the airline costs were the only costs. Mother believes that Father has the money to pay for his half of the travel costs as he has significant savings. Mother testified that her travel costs consist of: $120 in parking for 2 weeks; flights $300-$500 round trip, per person; and hotel $50 per night, with a weekly rate. Mother also testified, as will be discussed later, that Father had given her a hard time about where she parked her car.

Father testified that he would reimburse Mother for fifty (50) percent of the travel expenses as ordered by the Court. Father testified that his finances are tight. Father is paying the majority of the Children's out of pocket medical bills. Father testified that he has more expenses than income. Father stated that his benefits and medical costs at work increased and he is currently paying child support and alimony. Father testified that he also pays for toys, presents, and clothes for the Children. Father testified that he asked Mother to pay for thirteen (13) percent of the Children's out of pocket medical expenses as laid out in the Child Support order. Father reported that Mother did not want to pay her thirteen (13) percent.

Mother testified that Father was late for pick up at the Newark Police Station for the first visit under the February 20, 2017 Order. The Court does not give this much weight, as the first transition under a new order can be difficult for all parties.

On April 13, 2017, the parties were to meet at Newark Police Station to exchange the Children. When Mother arrived, Father was inside with the Children as there was a scratch on Y. 's head and as such, Father called the police on Mother. Mother expressed concern and frustration that as a result, the Children were kept out and awake hours after their bedtime. Mother testified that no investigation was opened. Mother also believes that Father attempted to open a case with DSCYF that same night and was denied. Mother testified that the officer told her that Father stated he had called DSCYF. Father testified that he asked Mother if Y. was hit as she had scratches, swelling, three (3) scabs, and bruising. Father wanted an explanation from Mother concerning how Y. got the scratches. Father testified that he asked if Maternal Grandfather had hit Y. as Maternal Grandfather is known to "hit in the past and is a heavy drinker." Father stated that he involved the police as he was not getting a response from Mother about what had happened to Y. .

On April 20, 2017, Father brought both Children to the emergency room to check out a sty that C. had in his eye and also had Y. 's "privates" examined. Father told Mother that the Children advised him that Maternal Grandfather hit C. , which is why he had redness and scratches around his eye. Mother testified that Maternal Grandfather has been out of the United States since April 12, 2016. Father spent his dinner visit with the Children at the emergency room. Father testified that there were scratches, swelling, and redness above C. 's eye. Father noted that it had previously happened in the same area. Father testified that he went to Nemours to have C. checked out, but decided that since they were there to also have Y. examined. According to Dr. Romirowsky Father was concerned that Y. was sexually molested at Mother's because Y. was dancing in a sexual manner. Y. is three (3). This had occurred a couple months earlier. Father explained that his delay in getting Y. examined was due to the nature of his visitation with the Children. Father stated that at the time, he was only seeing the Children for two (2) dinner visits a week and every other weekend. Father explained that he took the Children to Nemours as the Children's pediatrician did not have night or weekend hours. Father testified that he had personally examined Y. 's genital area in February of 2017 after the alleged sexy dancing. At that time, Father also asked Mother to examine Y. . Father decided to have Y. examined when he was at Nemours with C. as he had not received a response from Mother and felt that a professional should examine Y. .

Mother returned to Vancouver with the Children on May 31, 2017. Mother testified that she advised Father of her need to return to Vancouver between thirty-two (32) and thirty-four (34) days before her scheduled flight on May 31, 2017. Mother testified that she did not provide Father with the flight itinerary, as she was afraid that Father would harass her. Mother testified that even when she does not provide Father with a flight itinerary, Father knows her flight information. Mother believes that Father has obtained Mother and the Children's itinerary directly from the airline.

Mother alleges Father's attempt to thwart her travels. On May 30, 2017, Mother alleges that Father went to a physician's office and obtained a doctor's note stating that as C. had had an ear infection a year ago, and as such, he was not able to travel. Father filed an Emergency Ex Parte on May 30, 2017, which was denied. On May 31, 2017, Mother's flight was at 7:00 a.m., two Philadelphia police officers were waiting for Mother at the gate of the airline. Mother claims that the officers had Mother's flight itinerary in their hands, it appeared to have been emailed from United Airlines to Father directly. Mother was allowed to board the flight as she was in compliance with the Court's February 20, 2017 order.

In June of 2017, Mother informed Father that she scheduled a dentist appointment for the Children and asked Father to take the Children to the appointment as it was during his scheduled visitation time. Mother testified that Father "exploded" and sent Mother a nasty email.⁵ Father refused to take the Children and told Mother to reschedule the appointment on her time. Father stated in the email that he was a working professional and could not take time off from work and that Mother should not be using his time for such things. Mother admitted that she did not consult Father when she scheduled the appointment. Mother rescheduled the dentist appointment for sometime in September. Father then agreed to take the Children to the dentist appointment in September. Mother also admitted that Father was upset in the email has Mother had miscalculated the dates and originally only gave Father six (6) overnights instead of the seven (7) that was ordered. Mother noted that once Father pointed it out, she did give him another overnight that week to ensure that he got the seven (7) overnights as ordered.

5 See Petitioner's Exhibit #1 from the November 20, 2017 Hearing.

On June 22, 2017, the Vancouver police showed up to Maternal Grandparent's residence after Mother and the Children arrived there on their second trip to Vancouver. Mother testified that she always advised Father of the pick up and drop off date and time for when he would have the Children for the week in the United States. Mother testified that Father emailed her asking if their flight had landed. Mother replied to Father's email stating, "yes." Mother testified that the Vancouver police then appeared at Maternal Grandparents' house around 9:00 p.m. The Police appeared to check on the Children's wellbeing and to ensure that Mother was there.⁶ In an email Father sent to Mother, he admits that he called the police to ensure that Mother and the Children landed in Vancouver as Mother did not provide him with travel itinerary. Father testified that he was concerned Mother took the Children to Asia. Father did admit that Mother has gone and returned from Vancouver to date as ordered by the Court. Mother has not taken the Children outside of the U.S. or Canada.

6 See Petitioner's Exhibit #2 from the November 20, 2017 Hearing.

On June 28, 2017, Father also sent Mother and email, asking her what state she would to live and work.⁷ Father listed various states: WA, CA, CO, TX, NC, FL, NY, PA, DC, and other. Father testified that he never indicated in that email that he would move. Father felt that those states would be easier for Mother to obtain employment and places that also have good schools for the Children. Father stated that he would still need to travel back to Delaware for work even if he did move to another state. Father testified that he has been employed with TD Bank for fourteen (14) to fifteen (15) months at the time of the hearing. Father testified that his employment was stable.

7 See Petitioner's Exhibit #3 from the November 20, 2017 Hearing.

In early July of 2017, Father advised Mother that he would be applying for an E2 visa stating that it was better than the H1 he currently had. Father's H1 visa was set to expire in 2018 and switching to the E2 visa would allow Father to remain in the United States. Mother testified that from August 9, 2017 to August 20, 2017, Father was in Vancouver. Father stayed in a hotel in downtown Vancouver. Mother allowed Father to visit the Children. Father saw the Children for one (1) hour every other day at a playground. Mother would bring the Children and stayed for the hour and then took the Children home. Father also had one Saturday overnight and a daytime visit. During that time, Mother and Father worked on filling out the necessary paperwork to formalize C. 's Canadian citizenship and went to passport office to sign paperwork for C. 's passport. Mother testified that C. is a Canadian citizen by birth as he is first generation born outside of Canada. While C. is a citizen by birth, his citizenship needed to be formalized. In order to do so, Mother and Father had to submit paperwork, showing proof of C. 's citizenship, like C. 's birth certificate, so that C. could get a social insurance number (similar to a social security number in the US) and so that C. could receive a Canadian passport.

Father expressed concern that Mother proceeded with C. 's Canadian citizenship without including Father. Mother entered into evidence an email from Father to her, addressing C. 's Canadian citizenship.⁸ In the email, Father expressed his position that it would be beneficial for C. to apply for Canadian citizenship. Father suggested that they sign off and send the application when Father was there. Father testified that Mother then went and filled out the paperwork without Father. Mother then advised Father that she obtained C. 's social insurance number, again without Father. Father also believes that Mother filled out C. 's Canadian passport application without Father. Father testified that Mother filled in Father's information on the application, Mother then sent in the application with only her signature. Father believes this application was denied as it did not contain Father's signature. Father testified that he was in favor of formalizing C. 's citizenship, getting him a social insurance number, and passport. However, Father wanted to do these things with Mother. Father believes they should have been done with in his presence.

8 See Petitioner's Exhibit #4 from the November 20, 2017 Hearing.

On September 6, 2017, Father again called the police on Mother when she dropped off the Children. Father wanted the police to warn Mother to not travel as the February 20, 2017 Order stated there would be a review hearing in six (6) months. Father believed that the February 20, 2017 Order would expire at the end of the six (6) months.

On October 9, 2017, Mother appeared at Newark Police Station to pick up the Children from Father. Father was not there. Mother waited fifteen (15) minutes and then texted Father. Father responded stating that Mother did not send him a pick up time and Father suggested he return the Children at 6:00 p.m. However, Mother noted that Father did arrive on time to pick up the Children for his visitation. Mother admitted that she did not provide Father with the flight itinerary, however, Mother claims that she sent the pickup and drop off times for the October visit in September via email. Father testified that he sent Mother an email the night before asking for a plan for pick up. Father stated that Mother did not respond to his email. Mother then had to call the police to retrieve the Children from the marital home, which took time. Mother was able to make their scheduled flight with the Children as the flight had been delayed. Father testified that he was unaware Mother had a flight that night, which is why he suggested a later pick up time.

November 16, 2017 was C. 's second year wellness check. The appointment again occurred during Father's visitation time as it is the only time the Children were in the United States. Father agreed to take C. . Mother indicated that she also wanted to attend the appointment. Mother testified that Father told her that she could not attend the appointment as it was during his time and was not an emergency.

Mother noted that that marital home is now up for sale, but that it was not listed for sale on May 31, 2017, as ordered. Mother testified that Father originally wanted to buy Mother out of the house, but on May 26, 2017, Father informed Mother that he desired to sell the home. Father listed the house on Zillow without making any repairs.⁹ Father listed the house himself and did not use the realtor the parties had agreed upon. Mother testified that it took Father six (6) months to list the house. Repairs were eventually made and the parties signed the contract for the house on October 3, 2017 and that the house has been on the market since October 6, 2017. Father has been paying the mortgage on the marital home.

9 The Court notes that it did not order that repairs be made to the home. The Court only ordered that the house be listed for sale as was agreed upon by the parties at the ancillary hearing. The parties could agree to make repairs, but the Court did not require it.

Mother testified that she has received various emails from Father that contain racial slurs, calling Mother a "whore", insulting Mother and her family, stating that Mother is emotionally abusing the Children. Mother alleged that these same things sometimes occur in front of the Children. Mother entered into evidence an email Father wrote to her on June 24, 2017.¹⁰ In the email Father stated that Mother has been abusing him and the Children, "mentally and emotionally." Father also stated in the email that he has "no intention to believing [Mother] and especially [Mother's] family and find my children taken to that cesspool country of Taiwan . . . ." Mother testified that she has received many nasty emails from Father. Mother alleges that Father curses her in the emails, accusing Mother of abusing the Children, and abusing the Court system'. She claims that Father told her "while you are whoring outside, me and my Mother are caring for your Children for you." "Even your kind didn't want you. I took you in. I accepted you." "No white or yellow husband would ever take you, a woman like this." Mother testified that Father has cursed Mother to struggle and die from cancer or to be old and lonely, with Children who hate her. Father has told Mother that she has emotionally abused the Children and cannot provide stability.

10 See Petitioner's Exhibit #2 from the November 20, 2017 Hearing.

Mother noted that Father plays the "language loophole." Mother provided two examples. The first was the even though Mother was awarded the car in the ancillary hearing, Father advised Mother that she did not have his permission to park her car at a third party's house. Father admitted that he did tell Mother she could not park the car there as Father did not know whose house it was. Mother testified that she was parking her car at a friends' house so that she did not have to pay for parking at the airport. Mother's friend allowed Mother to park her car at their residence and that friend would then drive Mother and the Children to the airport. Mother now parks her car at the airport long term parking lot and has to take the shuttle from the lot to the airport with the Children. Mother also now incurs the cost of parking at the long-term parking lot. Mother stated that she feels she has to park at the long term lot so that Father does not harass her friend. Mother testified that it costs $120 to leave her car in the long term parking lot for two (2) weeks. Father testified that his concern is that his name is still on the title of the car. Father is concerned that if Mother were to get a ticket or something would happen to the car, Father would be responsible and it could affect his credit. The Court noted that Mother was awarded the car in the Ancillary Order. As such, Mother has exclusive use and possession of the car. Mother is allowed to park the car anywhere it can legally be parked.

The second example of the language loophole, Mother also alleged that Father called the police on Mother, on September 6, 2017. Father advised the police that Mother was no longer able to travel as the Court's February 20, 2017 Order was to be in effect for six (6) months and then another hearing and order would be issued. Father advised the police that as the six (6) months had passed, the order was no longer effective. At that time, Father was advised that the February 20, 2017 Order was to remain in effect until a new Order was issued. Mother was then able to travel.

Mother believes that Paternal Grandmother cares for the Children when the Children are with Father. Father responded that Paternal Grandmother did not come to the United States from Turkey until October of 2017. As such, Father had been caring for the Children from May of 2017 until October of 2017 on his own. Mother testified that when the Children return from being with Father they are clothed and healthy. However, Mother feels that the Children are always hungry when they return from being with Father. Mother testified that she keeps snacks with her so that the Children can eat in the car after a visit with Father.

Mother expressed concerns with Father's behavior during skype sessions with the Children. Mother testified that Father has between three (3) and four (4) skype sessions with the Children a week. Mother testified that during a skype session between Father and the Children in early July of 2017, Father stated directly to Y. , "[y]our psychopath Grandma has done more than enough." Mother also testified that during every skype sessions, Father tells Y. "You are mine. You belong to me." Mother noted that skype sessions can be difficult as the Children struggle to sit still. Mother testified that Father does not have patience with the Children when on Skype, especially when the children do not sit still. Mother admitted that the Children do not sit still for the Skype sessions for very long, which is what makes skyping difficult. Father testified that he does not feel that the Skype sessions are the best way to communicate with the Children. Father stated that Mother tried to Skype Father when the Children were taking a bath but Father stated he could not see the Children then. Father stated that Skype is difficult as the Children will not sit down, do not sit still, and they have little attention spans.

Mother currently has no income and testified that she is trying not to take money from her parents. Mother testified that Maternal Grandparents allow her to reside in their home in Vancouver with the Children rent-free. Father admitted into evidence a Vocational Assessment/Earning Capacity Report completed by Jose Castro, dated December 4, 2016.¹¹ The Court notes that it finds Mother is employable, she is capable of work. Mother herself admitted this. The Courts concern is rather Mother's visa status, her ability to stay in the United States, and finding a job in the United States. Mother testified that she could provide for the Children if she could work, but she cannot find employment in the United States. Mother admitted that Father is currently the one providing financial care for the Children. Father testified that money is tight, but he is supporting "everyone." Mother advised Dr. Romirowsky that she does not work for Maternal Grandfather but she does accept monetary help from him. Mother testified that she has private health insurance for the Children in Canada. Father noted that he has asked Mother for proof of the Canadian insurance and Mother has yet to provide it to him. Mother currently pays around $200 a month for the insurance. Mother is seeking to get free medical insurance for the Children in Canada. Father covers the health insurance for the Children in the United States.

11 See Respondent's Exhibit #1 from the November 20, 2017 Hearing.

Father expressed his concern with Mother's proposed schedule. Father believes that Mother's proposed schedule will not provide the Children with any consistency or permanency as they will be constantly traveling and living out of a hotel. Father is also concerned that it will not allow the Children to have a routine. Father testified that in his own experience round trip airline tickets to Vancouver cost around $700 per person. Father believes that monetarily Mother's proposition is financially unfeasible. Father further testified that even a direct flight to Vancouver takes a full day. Father stated that the Children are exhausted from the travel and that the Children are often sick after traveling. Father testified that it can take two (2) days out of his week visitation for the Children to recover from their travel.

Father owns a condo in Canada. Father testified that two people are currently living in the condo and renting it from Father. Their tenancy ends on February 28, 2018, however, Father noted that they have renewed their lease for the past two (2) years and Father believes they will renew again. Father testified that the condo had been rented since 2014 when the parties left Canada to come to the United States.

Mother also advised Dr. Romirowsky that Father had told her that he is open to the idea of moving to Canada after he had been at his job for a more extended period of time. Father testified that while he is not required to go into the office and that it is acceptable for him to work from home, he stated that he would need to remain on the east coast due to time zone issues. Father further stated that he could not work from Canada or another country as there are regulations concerning working outside the United States.

Father expressed his concern that he has twice run into Mother at the YMCA during his time with the Children, once in September and once in October. Father believes that Mother's friends are spying on Father and the Children at the YMCA and are reporting back to Mother to advise her that Father and the Children are there. Father testified that when they run into Mother at the YMCA, the Children appear to be startled and confused. Father was very upset that one of Mother's friends took a photo of Father and C. at the YMCA and sent it to Mother. Father admitted into evidence an email Mother sent to Father on October 6, 2017, where Mother admits that she asked her friend to take the photo.¹² Father testified that he had contacted the police concerning the photo as he feels it was a gross violation of his and his Child's privacy. Father stated that he may be taking civil action concerning the photograph. The Court expects all the adults to act like adults and to be civil if they are in a public place at the same time. This may happen again, that Mother and Father could run into one another in a public place with the Children, and of course the Children will want to be able to run over to the other parent and say hello without having to worry about hurting the other parent. At most this may take a few minutes of the other parent's time.

12 See Respondent's Exhibit #2 from the November 20, 2017 Hearing.

Mother expressed her concern to Dr. Romirowsky that Father was denigrating Mother in front of the Children. Mother showed Dr. Romirowsky a video where one of the Children can be heard saying that Mother is "not trouble," because of this video Mother believes Father was telling the Children that Mother was trouble. Father told Dr. Romirowsky that he feels Mother is very dependent on Maternal Grandparents but denied denigrating them. Father does feel that Mother mocks Paternal Grandmother and treats her disrespectfully. Father feels that Mother is interfering with his relationship with the Children. Father testified that Y. has advised him that Maternal Grandparents' and Mother talk badly about Father. Father believes that Maternal Grandmother in particular belittles and is demeaning towards Father.

Father does not feel that he is getting any information from Mother. Mother advised Dr. Romirowsky that her relationship and communication with Father are not well. Mother stated that Father is angry and harassing. Mother and Father went to one co-parent counseling session. Father testified that it is difficult to schedule the sessions as they must occur on the week Mother and the Children are in the U.S. Father stated that the co-parenting session would be useful but he feels Mother would need to remain in Delaware for the co-parenting to work.

Dr. Romirowsky testified that Father told him that Y. had been dancing sexually and because of that, Father felt that Y. may have been sexually molested. Father then advised that he had examined Y. . Father did take Y. to Nemours to be examined, but did so two (2) months after Father brought the issue up with Mother. Dr. Romirowsky also reviewed text messages that Father sent to Mother concerning this issue. Dr. Romirowsky felt that in the text messages Father was implying that Mother had sexually assaulted Y. . Dr. Romirowsky expressed concern that Father rushed to this judgement with no consideration as to other possibilities. As a result, Dr. Romirowsky felt that Father did not understand Child Development and that this was perfectly normal behavior for a child that age. Dr. Romirowsky expressed similar concern regarding the scratch incident. Dr. Romirowsky again felt that Father rushed to judgement that because there was one scratch, there was head trauma and didn't recognize that that was one of many possible scenarios.

Dr. Romirowsky suggested that Father take a course in parenting two (2) and three (3) year-olds. Father completed the parent education course through Child Inc. Father testified that he found the class helpful, especially in working on his communication with Mother. When asked why he did not take a class on Child Development, Father testified that he took the only parenting class that was available. Father stated that he did not take any classes on child development or any anger management classes. Father further stated that he was never forced or even asked to take an anger management class. Dr. Romirowsky testified that various people have claimed Father has anger issues, even those who have only met Father one time. Father stated that he felt that Dr. Romirowsky focused on Father's anger and stated that his temper is quick to flare. While Father has not attended any anger management classes, he did attend a work place violence workshop. Father further testified that he works out, does meditation, and visits friends to manage his anger. Father feels that all of these things are helping.

Dr. Romirowsky testified that he feels Father is developing a pattern of control. Father admitted to Dr. Romirowsky that he had instructed Mr. L. , Ms. S. 's brother in law's parents, to stay away from the Children unless Father gave his permission for them to see the Children. As discussed above, Father told Mother that she was not authorized to park her car at a third parties home. Father made various police reports and calls against Mother and Father choose to examine Y. himself rather than taking her right to a physician.

When questioned, Father testified that he does not believe that the Children seeing the police frequently is traumatizing to them. Father stated that the Children are used to being in the police station and all exchanges occur at the police station, as requested by Mother. Father testified that he does not believe the police meeting Mother and the Children before their flight, or showing up to Maternal Grandparent's home in Vancouver was traumatizing to the Children. Father does not feel that any of the parties' schedules or the Children's activities were interrupted by the police during those incidents. Father also stated the he does not believe that the emergency room was traumatizing to the Children either. Father stated that Nemours is kid friendly and they have a playroom for the Children. The Court noted that in the previous order the Court stated that "[b]y calling the police to Mother's residence five times, Father has demonstrated an insistence upon harassing Mother." Despite this language, Father repeated the pattern of calling the police over minor issues without any allegations of crimes being committed.

This factor weighs in favor of Mother. While it appears that fault and praise could be attributed to both parents as it relates to their rights and responsibilities to the Children, Father has continued his pattern of harassment without regard for the children either due to an inability to understand children that age or a refusal to change. Father is giving Mother reasons to relocate closer to her family and support system by engaging in this behavior.

(7) Evidence of domestic violence as provided for in Chapter 7A of this title;

The Court takes judicial notice that there was a PFA Order which expired on April 29, 2017. At the prior hearing, Mother testified that the parties were engaged in a disagreement in their master bedroom when the argument escalated. Father turned over a table, pushed Mother onto the bed, and placed his hands on her neck. Mother called the police, who arrived at the home and arrested Father. Father was charged with offensive touching. Mother testified that Father had displayed abusive behavior prior to that incident, although she did not file any prior PFAs. Mother stated that in 2014, around Christmas, they were arguing in the study and Father threw a pen at her. Sometime between July of 2015 and September of 2015, Mother and Father were arguing when Father approached Mother, put his forehead up against Mother's forehead and pushed with some force. On another occasion, Father grabbed Mother's neck with his left hand and raised his right hand as if he were going to slap her in the face. Father did not slap her.

Father testified at the prior hearing that the parties were arguing in the Master Bedroom after Y. pinched her brother. Father indicated that Mother was on Skype with her parents at the time and that Mother and her parents were yelling at Father. Father acknowledged losing his temper and turning over the nightstand and the Pack'n Play. Father stated that he went to put his hand over Mother's mouth but he put his hand on her neck instead. He pushed her back on the bed. Neither party testified that he cut off her airway. There was some debate over whether it was one hand or two but neither described a situation where Father's actions were an attempt at strangulation.

On April 27, 2017, the Court held a hearing on a Motion for Contempt and to Extend the Protection from Abuse Order. As discussed in the procedural history above, the Court found Father in contempt but did not extend the PFA.

Officer Echevarria testified that on April 29, 2017, he reported to the former marital home after receiving a report of a domestic incident. At the time, Mother was residing in the marital home. Both Mother and Father were present when Officer Echevarria arrived. Mother had a PFA against Father that was to expire on April 29, 2017, but it did not list a time that it expired. Officer Echevarria questioned if the PFA was still in effect. Officer Echevarria called the Court and a Judge advised him that the PFA would be in effect until 11:59 p.m. on April 29, 2017. At that time, Father was placed under arrest as he was in violation of the PFA. Father advised the Officer that he was unaware the PFA was still active. Father stated that he had called the police station the night before and he was advised from them that the PFA would expire at 11:59 p.m. on April 28, 2017. Father stated that he was just moving back into the residence to save money and he was not attempting to hurt or affront Mother. A warrant was drafted for Father's PFA violation. The Judge at that time was uncomfortable signing the warrant as the PFA did not state the time it was to expire, making it unclear if it expired on April 28, 2017 or not until April 29, 2017. The warrant was dismissed and Father was then released. Officer Echevarria testified that he then called Mother to advise her that Father had been released and he transported Father back to the tow yard where his vehicle was located. The Court notes that while the PFA may technically have expired, the April 27, 2017 hearing put Father on notice that his actions were considered to be harassing and any reasonable person would have been aware that an attempt to move back into the marital home the day the PFA expired was a problem. Additionally, the Court had verbally expressed an intent to deny the extension of the PFA but to enter an Order under 13 Del. C. 1509 which would give Mother exclusive use and possession of the marital home. Thus while Father's actions were not clearly criminal in nature, they violated the spirit of the discussion at the hearing on the Motion to Extend the PFA and the language in the prior Custody Order which addressed Father's harassing behaviors.

Officer Echevarria also testified that the department received eight (8) "prevent breach of peace" calls from Father. Officer Echevarria explained that these are when a party, usually subject to a PFA, calls to have an officer will escort them to retrieve their property. Usually only one (1) or two (2) request can be made, Father made eight (8).

Factor (7) weighs in favor of 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.

Father does not have any criminal history relevant to this matter. The offensive touching charge against him was dismissed and expunged. Mother does not have any criminal history relevant to this matter.

Factor (8) does not carry any weight.

Model Relocation Act

The parties provided testimony and evidence under the factors set forth in the Model Relocation 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 remains close to the Children. Mother was previously the Children's primary caregiver as she was a stay at home Mother and Father worked full time. Mother is still the primary caregiver as the children are with Mother more than Father and she is still not working. Currently, Mother spends two (2) weeks with the Children and then the Children spend one (1) week with Father.

Since the February 20, 2017 Order, Father has been more involved in the Children's lives. Father has since had overnights with the Children. Father initially had visitation twice a week for dinner visits and every other weekend. Since May 31, 2017, Father has had the Children for a week at a time, every third week. This has allowed Father to become more involved in the Children's lives as he is their sole caregiver during his week-long visitation. Father testified that during the week he has the Children, he works from home so that he can spend more time with the Children and care for them. Father stated that they have a set schedule which helps him and the Children. Father and the Children eat all of their meals together, go for walks and have reading time. Father further testified that he and the Children attend Church, the YMCA, and the Please Touch Museum. Dr. Romirowsky testified that the Children have a "sufficiently solid" attachment and that it would take a strong estrangement to break that attachment.

Both Paternal Grandmother and Maternal Grandmother have spent time with the Children and help their respective child with caring for the Children when they are in town. This factor favors Mother as she has been with the children more than Father by virtue of the restrictions on his visitation. Mother was also the primary caregiver as she stayed home with them when the parties were together.

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;

The Children are at very young; Y. is three and a half (3 ½) years old and C. is two (2) years old. Dr. Romirowsky still expressed concerns with Father's anger stating that his temper is "quick to flare." Dr. Romirowsky also recommended that Father take a course on Child Development or a parenting class specially geared towards two (2) and three (3) year olds as was discussed above as he does not seem to understand children at that age. Father also seems to have difficulty understanding how his actions impact the children. The Court was previously concerned with Father caring for the Children for extended periods of time, however, Father has been caring for the Children for a full week, every third week since May 31, 2017.

Dr. Romirowsky testified that he no longer feels that Mother and Father need to reside in the same community. Dr. Romirowsky expressed his concern that if Mother and Father reside in the same community, the Children could experience and be exposed to high conflict, which could be more damaging to the Children. Dr. Romirowsky does not believe that Father and the Children's attachment can be broken now by periods of absence. Father and the Children have been together enough to form an attachment. Dr. Romirowsky testified that the Children's bond with Father is "sufficiently solid" that it would take a strong estrangement to break that attachment.

Dr. Romirowsky does not feel that the two (2) week/one (1) week schedule is ideal but he stated that it would not damage the Children's relationship with Father as when the Children do get to see Father, they are with him for a full week. Dr. Romirowsky noted that Mother's initial proposal of three (3) months with Mother and one (1) week with Father would be too long of a period between Father's visits.

Dr. Romirowsky testified that the Children at the age of Y. and C. do not have a relationship to their community, rather they have a relationship with the people in their lives, which in this case is primarily their parents and grandmothers.

The Court finds that factor (2) weighs in favor of granting Mother's Motion to relocate as Mother is the primary caregiver and requiring Mother to remain long-term in the United States may not be possible.

3. The feasibility of preserving the child's relationship with the non-custodial parent;

Vancouver is very far from Delaware. Mother suggest that Father and the Children can maintain their attachment when the Children are in Vancouver via Skype and phone calls. However, both Mother and Father testified that the Children, who are only 2 and 3 years old, have trouble sitting still for a period of time and as such, Skype is difficult. This would improve as the children get older.

Mother also argues that Father owns a condo in Vancouver that is currently being rented out and proposes that he move back to Vancouver to eliminate the issues presented by her relocating. Or at a minimum, Mother suggests that Father also travel to see the Children in Vancouver so that Mother and the Children are not the ones always traveling. Mother seemed to suggest that Father could stay in his condo when he came to visit the Children in Vancouver. While testimony was presented that the lease term ends in late February of 2018, Father testified that the current tenants plan to renew their tenancy. Father also testified that the condo had been rented since the parties moved to the United States in 2014. No evidence was presented concerning the financial feasibility of leaving the condo unrented so that Father could use it as a place to stay for when he visits Vancouver. Father was also adamant that he could not move to Vancouver at this time, not with his current employment.

Dr. Romirowsky does not believe that Father and the Children's attachment can be broken now by periods of absence. Father and the Children have been together enough to form an attachment. Dr. Romirowsky testified that the Children's bond with Father is "sufficiently solid" that it would take a strong estrangement to break that attachment. Dr. Romirowsky does not feel that the two (2) week/one (1) week schedule is ideal but he stated that it would not damage the Children's relationship with Father as when the Children do get to see Father, they are with him for a full week.

As stated above, if Mother were to relocate, the ability for either parent to enjoy the necessary frequent contact with the Children, given their age and vulnerability, would be difficult, but not impossible as the Children have a strong bond with each parent, so periods of separation would not break their attachment to either parent. While Mother is currently unemployed, she testified that she does have job offers in Canada, but has been waiting to accept them pending the outcome of the Custody Hearing and her Motion to Relocate. The Court was concerned that the current schedule of traveling to the United States every third week was not financially feasible for the family. Both parties testified that traveling to and from Vancouver can be expensive, that both parties' money is already tight, and they are spending their savings to make ends meet.

Accordingly, the Court finds that factor (3) weighs against granting Mother's Petition to Relocate. While it is possible to maintain the attachment with Father and the children it is expensive.

4. The child's preference , considering age and maturity level;

The Children are too young to express a preference with respect to relocating. 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;

No evidence was presented to suggest that there is an established pattern of Mother attempting to thwart the relationship between the Children and Father other than Mother's attempt to relocate. This does not suggest a pattern. Dr. Romirowsky testified that Mother had remained consistent that she wants the Children to have a relationship with Father. Mother proposed a visitation schedule where in essence, the Children would spend six (6) weeks with Mother then one (1) week with Father. Mother does not appear to want to take the Children from Father, rather Mother herself does not want to be separated from the Children and she cannot find employment in the United States and according to her immigration attorney she cannot search for employment while in the United States. Mother and Father are both Canadian citizens and neither is a United Stated States' Citizen. Without employment Mother cannot support herself or the Children. Mother testified that she believes that it is important for the Children to maintain a relationship with Father and that she wishes for Father to move back to Vancouver as well.

The Court also notes however that Father had only recently begun seeing the Children outside the visitation center when the first hearing occurred and her original position regarding visitation if she relocated was insufficient according to Dr. Romirowsky.

The Court finds factor (5) to be neutral as Mother has neither thwarted nor promoted the relationship with Father.

6. Whether the relocation of the child will enhance the general quality of life for the party seeking the relocation of the child , including but not limited to , financial or emotional benefit or educational opportunity;

Mother asserts that she can live with Maternal Grandparents rent free in Vancouver. Mother testified that Maternal Grandmother lives in Vancouver for six (6) months out of the year and will help Mother care for the Children. Mother also stated that her sister and brother in law live near Maternal Grandparent's home. Mother will have a support system in Vancouver. In addition, Mother will not have to be concerned with her citizenship status or having an appropriate visa to work as Mother is a Canadian citizen.

Mother testified at length regarding her job search in the United States. Mother testified that at the time of the hearing, she had sent 287 resumes. Mother also testified that she tailors her resume to the specific job positing and provides a cover letter if requested by the posting. Mother has been applying for jobs in Delaware, Pennsylvania, New Jersey, Maryland, and New York. Father also sent Mother job positing. Mother testified that she applied to the positions she was qualified for. Mother only got three (3) interviews. All of the positions were for project manager positions. One of the interviews was for a project coordinator for lighting automation in Elkton, MD. The salary was $45,000 plus benefits. Mother also has an interview with the University of Penn Mental Health Department; the salary was $55,000 plus benefits. Mother also had an interview for Mandarin Interpreter Services, with a guaranteed salary of $36,000 plus some other commissions. Mother did not hear back from any of the companies after her interviews. Mother also submitted an application to Kodak, her previous employer, for a remote position based out of Rochester. Mother also contacted her old boss and a former colleague to advise them that she was applying for the position. Mother testified that her application was denied the next day. Mother was shocked as she applied for the same position that she previously held and was not even offered an interview.

Mother testified that all of the companies were aware that she would need employer sponsorship to obtain a work visa in order to be able to work in the United Stated. Mother believes that her difficulty obtaining employment in the U.S is due to her visa status. Mother testified that she is qualified for the jobs that she has applied to, yet she has only gotten three (3) interviews. Mother noted on cross that the three (3) jobs she got interviews for were not TN1 positions. Mother testified that her experience has been in project management and that is not a job title listed on the TN1 list under NAFTA. Mother has a bachelor's in economics and has a master's in business administration. Father believes that Mother would be eligible for many jobs on the TN1 list. Mother noted that her focus was in management not marketing. Mother did get a TN visa when she worked for Best Fit. Mother testified that she also submitted some resumes to a headhunter and never heard back. Mother noted that she sent out only twenty-four (24) resumes in Vancouver and got seven (7) interviews: three (3) construction companies, disaster restoration company, music school, online English teacher for Chinese student beginning to learn English, international trading company. Mother turned down all of the opportunities as she was waiting for her relocation to be approved by the Court.

No evidence was presented as to educational benefits to the Children if Mother were to relocate, since the Children are too young for school. Father testified that he continues to support the family financially. Mother believes that if she is able to relocate she will be able to obtain employment and help support the family financially. She would also have the benefit of housing provided by her parents. The Court finds that this factor does support Mother relocating.

The Court finds that factor (6) weighs in favor of granting Mother's Motion.

7. The reasons of each person for seeking or opposing the relocation.

Mother testified that she seeks to relocate to Vancouver as that is where her support system and family is located. Mother no longer has legal status in the U.S., as a result of the divorce. While Mother can temporarily remain in the U.S. under a visa waiver or a B1-B2 tourist visa, Mother cannot search for employment in the United States while on this Visa. Mother would have to leave the country. It is Mother's belief that Father can relocate to Vancouver as well, Father's company, TD Bank, has offices in Vancouver and Father has a condo there. Father also suggested moving to other locations in the United States.

Mother has been searching for employment in the United States for months without any luck. Mother testified that she had sent out over 200 resumes, from those resumes Mother was only offered three (3) interviews. Mother was not contacted after the interviews. Mother believes that her visa status is deterring people from hiring her. Without work, Mother cannot support herself or the Children. Also, without employment, Mother's visa status remains as a visa waiver of B1-B2 tourist visa. Under those visas Mother can enter the United States but cannot remain indefinitely. Mother sent out less than 30 resumes in Vancouver and had seven (7) interviews. Mother was offered positions in Canada but turned them down as she does not want to leave without the Children.

The Court notes that both Mother and Father were aware that their divorce would terminate Mother's visa. Now the parties have to deal with the situation that is before them, it is not anyone's fault; rather it is just the reality of the situation.

Father opposes Mother's Motion because he testified that he could not return to Vancouver at this time. Father stated that while he can work from home, he would need to stay on the east coast due to time zone issues and he cannot work outside the United States due to regulations. Father asserts that Mother has sufficient education and business experience to find employment in the U.S. Father does not believe relocating the Children to Vancouver is in their best interests. Father does not want to be separated from the Children and is concerned that if Mother is allowed to relocate with the Children, he will not be able to be involved in the Children's lives as he is now.

This factor is neutral as both parents have valid reasons for their positions.

Discussion

The Court noted that the parties have a difficult situation, especially with Mother's immigration status and difficulty finding a job in the U.S and the significant distance between Vancouver and Delaware. In deciding issues pertaining to custody and visitation under 13 Del. C. § 722, this Court must balance the best interest factors.¹³ The Court has also held that some factors may be given more weight than others.¹⁴ The Court finds that it is in the best interests of the Children for Mother's Motion to Relocate to be GRANTED, as the best interest factors support a joint custodial arrangement and primary residence with Mother, and they support Mother's request to relocate to Canada. The Court finds the best interest and the Model Relocation Factors support the Children moving to Vancouver with Mother

13 See Ross v. Ross, 992 A.2d 1237, 2010 WL 1404220 (Del. Apr. 7, 2010) (unpublished table decision).

14 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 considers Factor (1) as neutral, as each party laid out their wishes regarding the custody and residential placement of the Children. Factor (2) does not carry any weight as the Children are too young to express their wishes in this matter.

Factor (3) weights slightly in favor of Mother. While the Children have gotten much closer to Father under the two (2) week/one (1) week schedule, Dr. Romirowsky testified to some concerns he had after observing Father with the Children. Factor (4) weights equally in favor of Mother and Father. Dr. Romirowsky testified that the Children at this age do not have a relationship to their community, rather they have a relationship with the people in their lives. The Court finds that the Children have a relationship with both Mother and Father. The Children are adjusted to Maternal Grandmother's residence where they stay in Vancouver and the marital home where they reside with Father. The marital home however is going to be sold. Both homes seem appropriate for the Children. Both parents also engage the Children in activities like the YMCA. The Court also notes that Father has only been at his current employer for a little over a year at the time of the hearing and that Father had issues with his former employer. Since Father's employment is really the reason for any of the parties being in Delaware, how stable his employment is remains to be seen. Father once again demonstrated his lack of self-control when he angrily objected (although represented by counsel) to pictures taken of the Children at the YMCA by a friend's Mother. First of all the photographs were not prejudicial to him and Dr. Romirowsky, who was simply listing the information provided to him at the time of the outburst, did not cite the photograph as proving any information of value. Also, there is nothing wrong with a friend's mother taking a picture of the children at the YMCA for Mother. Parents take pictures of their children with their friends all the time without requiring them to sign legal waivers. Father also had an attorney at the hearing and as he has been to numerous hearings is aware that the attorneys make evidentiary objections.

Factor (5) weights equally in favor of Mother and Father. The Court has no concerns in regards to the Children's mental or physical health. The Court has no concerns in regard to Mother and Father's physical and mental health. Factor (6) weighs in favor of Mother as Father has chosen to ignore the Court's directive regarding calling the police on Mother. Mother and Father both believe that the other party speaks negatively about them in from of the Children. Mother and Father both need to work on communication and co-parenting with one another.

Factor (7) weighs in favor of Mother. The Court noted that a PFA was entered against Father. In addition, Father has called the police numerous times on Mother, which the Court previously found to be harassing towards Mother. After being advised that it was harassing, he called the police several more times. He also tried to come back to the marital home the day the PFA expired although the Court had a hearing and advised Father and Father's counsel that there would be an Order entered giving Mother exclusive use and possession of the martial home. Any reasonable person would not have entered the marital home on April 29, 2017. Father still continues to call the police on Mother. Factor (8) is also neutral since the Court does not have evidence that either Mother or Father has any significant or relevant criminal history.

Ms. Skoranski presented the Court with a copy of N.S. v. Z.K.¹⁵ In her closing, Ms. Skoranski stated that the case supports Father's position that Mother should not be able to relocate with the Children. In the case, Father desired to take the Children and relocate to Hawaii. The Court found that Father did not meet his burden and failed to present a prima facie case that his relocation to Hawaii was in the Children's best interest. The Court stated that "[g]iven 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 the children's daily lives." The Court distinguishes the facts in N.S. v. Z.K. from the current case. In N.S. v. Z.K., the Court found that

15 N.S. v. Z.K., 2015 WL 13424755, *1 (Del. Fam. Ct. July 30, 2015).

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 other circumstances necessitated the move.¹⁶

16 Id. at *6. --------

In the present case, Mother did present circumstances justifying her move to Vancouver. Mother is not an American citizen. Father is not an American Citizen. When the parties divorced, Mother lost her visa status here in the United States. Mother testified at length that she cannot find employment in the United States. Mother is a citizen of Canada and so are Father and the Children. Mother would not have visa concerns if she relocated to Vancouver. In addition, Mother testified that she had been offered employment in Canada. Mother does not have the financial or the emotional support in Delaware that she would have in Vancouver. The need for this support becomes more of a factor due to Father's controlling and harassing behavior. Mother's emotional stability impacts the Children. Mother came to Delaware for Father's job and not due to her own connections with Delaware. Given the pattern of harassment, the Court finds that Mother needs the support of her family and needs to have the ability to provide financial support outside of the monies provided by Father. Lastly, Dr. Romirowsky testified that the Children are bonded to Father and it would take something great to break that attachment. There has now been a pattern of visitation between Father and the Children such the Court is not as concerned about Father being with them for extended periods of time. When the Children are with Father, they will get to see him for two (2) full weeks, every eight (8) weeks.

Conclusion

Accordingly, the Court finds that it is in the Children's best interest for Father and Mother to have joint legal custody with Mother having primary residency. For the reasons previously set forth, the Court GRANTS Mother's Motion to Relocate with the Children at this time.

Mother and Father need to improve upon their communication so that there are not additional problems in the future. As the parties have joint legal custody, both parties need to keep the other parent informed on a regular basis about what is happening with the Children. Mother must send Father the flight itineraries so that he has the information and can check to ensure that the flight arrived safely. Neither parent shall speak poorly or negatively about the other parent or the other parent's family in front of the Children. Keep in mind that the family you could be speaking negatively about is the Children's family and speaking poorly about them only hurts the Children. The Court notes that the Children are currently three and a half (3 ½) and two (2) years old and as such the parties still have at a minimum sixteen (16) years where they will need to communicate and co-parent. It is in Children's best interest to spend as much time as possible with both parents and both parties need to be supportive of the other parent. There may be issues during the transition between homes, but the Court notes that is normal and a reality of having divorced parents.

ORDER

THEREFORE, in consideration of the above factors, the Court finds that it is appropriate to enter the following Order:

IT IS HEREBY ORDERED this 9th day of February, 2018 that:

1) Mother's Motion to Relocate is GRANTED.

2) Mother and Father shall have joint legal custody of Y. and C. . Mother shall have primary residency.

3) Until the Y. is enrolled in school (kindergarten) Father shall have the Children every ninth and tenth week. Thus, the Children shall spend eight (8) weeks with Mother and then two (2) weeks with Father. Mother shall bear the costs for the Children's transportation and shall provide Father with an itinerary once flights are scheduled. The parties shall communicate regarding scheduling flights.

4) Father may choose to visit the Children in Vancouver during Mother's eight (8) weeks. Father must provide Mother with reasonable notice of when he would like to visit the Children. Father would bear the costs of his transportation.

5) In the event that Father also relocates to Vancouver, the Children shall visit with Father every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. The Children shall have two dinner visits during the week with Father, every Tuesday and Thursday, from after 5:00 p.m. until 8:30 p.m.

6) When Y. begins kindergarten, if Father is still in Delaware, Mother shall have the Children during the school year. Father shall have the Children for both winter and spring break. During the summer, Mother shall have the Children the week before school begins and the week after school ends. Father shall have the Children for the remainder of the summer.

7) Father shall complete a class or program on child development or parenting young children. Father can either take a parenting class geared toward young children Y. and C. 's ages, or Father can audit a class on child development at DelTech or another college.

8) The Court suggests that Mother and Father use a program such as Talking Parents or My Family Wizard to assist with communication and scheduling.

9) The Children shall not be permitted to travel outside the U.S. or Canada without the consent of both parents or further order of the Court.

10) The parties shall follow the other provisions of the contact guidelines listed below:

(a) Late pick-up: Both parents shall have the children ready for pick-up at the start of all contact periods. The children and the parent have no duty to wait for the other parent to arrive for contact more than thirty (30) minutes, unless notified. The parent who arrives more than thirty (30) minutes late without prior notification for a particular contact, forfeits that contact, unless the other parent agrees otherwise. This section would apply if and when the parties are all in the same location and there is a definitive beginning and ending time to visitation.

(b) Drop-off: Neither parent shall return the children early from contact unless the parents agree to a different drop-off time in advance. The parent or other adult well-known to the children must be present when the children are returned from contact.

(c) Canceling contact: Except in emergency situations, parents must give one another at least twenty-four (24) hours advance notice when canceling a contact period.

(d) Medical treatment and emergencies: If the children become seriously ill or injured, each parent shall notify the other parent as soon as practicable. If the children become ill or injured during contact, the parent shall contact the other parent to secure treatment unless the situation is a medical emergency.

(e) Communication: Both parents shall be entitled to reasonable communication with the Children while the children are in the other parents' care (including but not limited to telephone, e-mail, mail and text messaging). Neither parent shall interfere with the communication between the children and the other parent.

(f) Transportation: Unless otherwise ordered or mutually agreed, parents shall have shared responsibility for transportation of the children to and from their home for contact periods and may use another adult well-known to the children for picking up or dropping off the children when necessary. Any person transporting the children shall not be under the influence of alcohol or drugs, and must be a licensed, insured driver. All child restraint and seat belt laws must be observed by the driver.

(g) School work: Parents shall provide time for children to study and complete homework assignments, even if the completion of work interferes with the parent's plans for the children. Both parents are responsible for providing all of the school assignments and books to the other parent. Summer school which is necessary for a child must be attended, regardless of which parent has the child during the summer school period.

(h) Extracurricular activities: Regardless of where the children are living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. The parent with whom the children are staying shall be responsible for providing transportation to activities scheduled during contact with that parent. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address and telephone number of the activity leader, if available.

(i) Notice of change of address: Both parents shall give written notice to the other parent immediately upon any impending change of address and/or phone number. The written notice must include the new mailing address and phone number (in the event the mailing address is a Post Office Box, the written notice must include a physical address and/or directions to the new residence), unless a restrictive order has been obtained from the Court. A copy of the notice shall also be provided to the Family Court in the appropriate county.

IT IS SO ORDERED.

Very truly yours,

/s/_________

FELICE GLENNON KERR, Judge FGK/pmw cc: Y. L. S.

E. I. D. Date mailed: __________