Opinion
16-29673 16-32253
07-25-2017
A----- A------W---, PETITIONER/RESPONDENT, v. M------ D-------, RESPONDENT/PETITIONER.
JAMES G. MCGIFFIN, JR JUDGE FILE NO. CKXX-XXX
PETITION NOS. XX-XXX
XX-XXX FINAL ORDER
CROSS PETITIONS TO MODIFY CUSTODY & A PETITION FOR A RULE TO SHOW CAUSE IN THE INTEREST OF:
D---- A------D-------
DOB: 02/09/2012
Before the HONORABLE JAMES G. McGIFFIN JR., JUDGE of the Family Court of the State of Delaware:
Delaware law has designed a statutory scheme to resolve custody disputes that requires the balancing of the competing interests of the parties (parents and children) while prioritizing the interest of the child or children affected. Individual parents have their own biases. A parent's objectivity can be clouded by emotion. It is a judge's duty to discern from the evidence presented the balance addressed by the statute. When a parent fails to be candid with the Court about fundamental issues to the balance as the status of that parent's home and intimate relationships, that lack of candor disrupts the process contemplated by the statute. That happened in this case.
On July 1, 2013, this Court entered an Order resolving cross Petitions for Custody filed in the interest of D---- A------D-------, born February 9, 2012. The petitions were filed by A----- A------W--- (Mother) and M------ D------- (Father). Mother filed a Petition to Modify Custody on September 13, 2016 alleging that she and the child had moved from Maryland to Delaware by agreement of Father. Father responded with a Petition - Rule to Show Cause alleging that Mother's move violated the existing Order. Father also filed an Answer and Counterclaim seeking "primary residency." Mother answered the Petition - Rule to Show Cause and Counterclaim. The hearing in this matter began on May 31, 2017, resumed on June 13, 2017 and was completed on June 23, 2017. The parties presented testimony of L---- C------, a daycare provider, M---- M-----, a preschool teacher, E---- G----- A-----, D---- 's Maternal Grandfather, M--- S------, Mother's fiancé, B----- K----, daughter of Mother's fiance, K-- B---, Mother's Grandmother, C-------- L-----, Father's former paramour, Mother and Father.
FACTS
The essential facts are these. The parties shared placement of D---- while both lived in Kent County, Delaware. D---- attended daycare, and the daycare site was the usual exchange site when D----'s placement changed. Ms. Collins, D----'s daycare provider, became concerned about D----'s inability to focus and his delay in speech development. She discussed with both parents her thought that D---- would be better served in a preschool setting with more structure. While Mother was receptive to this idea, Father indicated his preference that D---- remains in his daycare.
In March 2016, Mother began dating Mr. S------. That relationship developed substantially and Mother began to consider relocating to Mr. S------'s home in T-----, Maryland. Mother mentioned this thought to Father in April or May of 2016. Father was noncommittal in response.
Mother decided to move to Maryland in the spring of 2016. Father did not sign a written form of consent to the move of D---- to Maryland and to S------'s home. When Mother presented Father with such a consent document, Father either indicated that his signature was unnecessary and that she could "trust" him (Mother's version) or that he would not "sign shit" (Father's version). As Father's lack of candor has marred these proceedings, I resolve this credibility issue in Mother's favor. And while Father did claim to object to that move, initially he showed more interest in persuading Mother to rent her Delaware house to his friend than to any other issue related to this move. This fact bolsters Mother's version of the event.
Additionally, Father was apparently in no position to move D---- into his home full time, and he made no such suggestion. He was living at Dover Air Force Base. He only began cohabiting with Ms. L----- in July 2016, according to his own testimony. Father did not voice any objection until after Mother's move was complete. The parties maintained compliance with the existing order and exchanges of D---- continued to take place at the C------' daycare, resulting in increased driving time for both sides, and for D----.
Mother investigated preschool opportunities in Maryland and advised Father that she was open to his suggestions about preschool opportunities and Delaware. Mother's research convinced her that the Kinder Garden school in E----- would best suit D----'s needs. Father recommended consideration of some schools in Delaware and Maryland which Mother investigated but found either wanting or unavailable. Father told Mother he would look at Kinder Garden, but he did not do so. Mother decided to enroll D---- in Kinder Garden without Father's consent. Father did not promote a comparable alternative choice.
Father presented evidence suggesting that Mother wrongly made several unilateral decisions about D----'s health and dental care. I find this evidence unpersuasive. It is clear that Mother, a trained nurse, is far more invested in D----'s dental and medical treatment. Father testified that his standard first response to a health-related complaint by the child is to, "give him a Dimetapp." In making treatment decisions about the child, Mother simply did what she had always done.
Modification of Custody
When deciding on an application to modify custody decision entered on the merits and after hearing more than two years ago, the Court will determine whether any harm caused to the child will be outweighed by advantages of the change. The Court will also examine the compliance of the parents will prior orders and with the statutory directive about sharing information by both parents and making the child accessible to both parents by telephone and mail. The Court is also directed to apply the best interest standard to the question.
The Harm/Advantage Balance
Father's Petition to Modify the prior custody Order and place himself in the position of the residential placement parent would likely cause harm to D----'s emotional development. Father's housing situation has been tenuous for the last several years. If up to Father, D---- might be moving frequently from home to home. His approach to school selection for D---- is based on his own convenience rather than D----'s needs. Although there is likely an advantage for D---- in developing a better relationship with Father, that advantage is outweighed by the potential harm. Mother's application to the Court presents great advantage to D----. Mother demonstrated in this hearing that she has worked hard to insure that D----'s educational needs are being addressed in the best way available. Her home life has been stable and her move to T----- will likely introduce a greater level of stability with both her family situation and her housing. These advantages outweigh the harm that will result from the slightly greater physical distance between Father and son that is concomitant with Mother's move. Leaving the Order unchanged would require D---- to spend more time traveling for exchanges and less time for the things he must do to grow and develop. In this situation, that is not a good option.
Compliance Records
The record in this case has no indication that either party has been found by this Court to be non-compliant with any orders entered. Father testified that Mother failed to share with him information about D----'s educational activities, a claim which Mother denies. The Court received and reviewed a large number of text messages, but I find those text messages inconclusive on this question.
Best Interest Factors
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Each parent seeks residential placement of D----.
This factor favors neither petition.
(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;
D---- is five years of age. The Court did not interview D----.(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;
This factor favors neither petition.
D---- has a good relationship with both of his parents. He also has a good relationship with Mother's fiancé, Mr. S------. D---- has also developed a relationship with Mr. S------'s daughter and her children, who were of similar age to D----. Father initially testified
that he lived with Ms. L----- and Ms. L-----'s mother. He also testified that Ms. L----- and her mother provided a support system for him as a parent. On the final day of the hearing it became clear that Father's relationship with Ms. L----- had ended. Ms. L----- testified that she told Father to leave her home by July 1, 2017. She conveyed that message to him in mid-May, prior to the commencement of the hearings in this matter. Father's cynical lack of candor is particularly relevant to this factor.(4) The child's adjustment to his or, school and community;
This factor favors Mother's petition.
Father testified that he has rented dwelling in M-------, Delaware as of July 1, 2017. D---- has had no opportunity to adjust to Father's new home, and to the occupants of that home, if any, or to any school he would attend if living in that home. Mother presented evidence that D---- has integrated well into the S------ home. Evidence is clear that D---- did well while at the Kinder Garden. Mother has taken a number of steps with the preschool staff to see that D---- may successfully matriculate to kindergarten.
This factor favors Mother's petition.
(5) The mental and physical health of all individuals involved;
Mother suffered some physical injury in a recent automobile accident, but there is no evidence to suggest that Mother's condition negatively impacts her parenting. Father underwent a biopsychosocial assessment by order of this Court after the evidence revealed that he made suggestions of his own suicide while in conflict with his former paramour. The assessment was done by provider of Father's choosing. According to that assessment, "[a]djustment disorder with depressed mood would be his working diagnosis." D---- is healthy and dealing with any developmental delay. There is no suggestion of any physical or mental health issue with respect to Mr. S------.
This factor favors Mother's petition.
(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;
Father has paid child support as ordered, but for a period of time when he was unemployed. He is not in arrears. The evidence revealed no noteworthy failure of either parent to comply with the law. This factor favors neither petition.
(7) Evidence of domestic violence as provided for in Chapter 7A of this title;
Father's recent conflict with Ms. L----- and his behavior in her home prompted Ms. L----- to file a Petition for Order of Protection from Abuse against him. I will take judicial notice of the fact that this PFA petition was resolved with a consent order. That consent order does not constitute evidence of domestic violence, but Father's admission that he
made two separate suggestions to Ms. L----- about suicide would meet the definition of abuse in that it is a course of alarming and distressing conduct causing Ms. L----- fear and emotional distress.
This factor favors Mother's petition.
(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.
Neither party has a criminal history of any consequence.
This factor favors neither petition.
Conclusion on Custody Modification Petitions
The decision on the competing applications to modify the prior custody order is based on my assessment of the statutory factors, including the best interest factors, which reveal the fundamental difference in the approach of these parents to parenting after separation. Father's primary concern is the protection and vindication of his rights as a parent. Mother is clearly driven by her commitment to do what she thinks is best for the child.
Mother's Petition to Modify Custody is granted. Mother's relocation of D---- to the T-----, Maryland area is affirmed as a move in the best interest of D----. Father will exercise visitation on alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Visitation exchange will take place at the R---- F---- location in F-----, Delaware. A schedule for other visits with other instructions is appended to this order and incorporated into the order by this reference. The parties are free to change any of the terms of the visitation protocol by mutual, written agreement.
RULE TO SHOW CAUSE
A party may file a Rule to Show Cause if that party believes the other party is in contempt of an existing Family Court Order. This Court has previously explained that three criteria must be met to support a finding of contempt: 1) there must exist a valid mandate, judgment or order; 2) the alleged contemptor must have had the ability to abide by the valid mandate, judgment or order; and, 3) the alleged contemptor must have, in fact, disobeyed the mandate, judgment, or order without just cause. In a contempt action, a petition must prove the violation of the court order by clear and convincing evidence.
Father asks this Court to hold Mother in contempt because she made a unilateral decision to move the child to Maryland and because she made a unilateral decision to enroll the child in the Kinder Garden School. The evidence adduced at trial, and the credibility of Mother's testimony, make clear that the move to Maryland was not a unilateral decision. And given that D---- lived in Maryland, the decision to send him to a preschool in Maryland was only reasonable, while Father's insistence on a Delaware program that he could not identify until the last moment was unreasonable.
Conclusion on Rule to Show Cause
Mother is not in contempt of the Order.
For the reasons stated above,
IT IS HEREBY ORDERED that Mother's Petition to Modify Custody is GRANTED.
IT IS FURTHER ORDERED that Father's Petition to Modify Custody is DENIED.
IT IS FURTHER ORDERED that Father's Petition - Rule to Show Cause is DENIED.
IT IS SO ORDERED this 25th of JULY A.D. 2017.
/s/ _________
JAMES G. MCGIFFIN, JR., JUDGE JGM/dea cc: Laura Yiengst
Judith Jones Date mailed: __________