S R v. E R
| Decision Date | 14 October 2020 |
| Docket Number | File No.: CK18-01142,Petition No.: 19-13631 |
| Parties | Re: S---- R---- v. E--- R---- |
| Court | Delaware Family Court |
Bruce A. Rogers, Esquire
12 South Front Street
P.O. Box 876
Georgetown, DE 19947
brucer-law@attyrogers.com
David J. Bever, Esquire
Barros, McNamara, Malkiewicz & Taylor, P.A.
2 West Lookerman Street
P.O. Box 1298
Dover, DE 19903
djb@firststatelawyers.com
Dear Mr. Rogers and Mr. Bever,
This Court held a virtual hearing on July 15, 2020, regarding the Petition to Modify Custody filed by S---- R---- ("Father") against E--- R----, "(Mother") in the interest of the parties' children, G--- R------ (born --/--/----), B---- R---- (born -/--/----) and R---- R---- (born -/--/----), (the "Children"). Appearing before the Court were Father, represented by Bruce A. Rogers, Esquire ("Mr. Rogers"), and Mother, represented by David J. Bever, Esquire ("Mr. Bever"). In addition to the parties, the Court heard testimony from Father's fiancée, J-- G----- S---- ("Ms. G-----S----"), and her mother, Dr. V---- G-----S---- ("Dr. G-----S----").
The parties entered into a consensual custody arrangement which this Court signed as a stipulated order on June 12, 2018 ("Consent Custody Order"). Under the Consent Custody Order, Mother and Father have joint legal custody of their three minor children and Mother has primary physical placement of the children. Father has visitation on alternating weekends starting at 5:00pm on Friday until 5:00pm on Sunday and every Wednesday from 5:00pm to 8:00am on Thursday. During the summer, Father would also have Monday evening visitation. Father also has up to three additional visits with the children each month, which do not include overnights, at a time agreed upon by the parties. The parties have structured these three monthly contacts as individual time for Father and one child per visit. The parties agreed to a right of first refusal if they are going to need third-party childcare to allow the other parent the opportunity to provide that care. The parties agreed that the parent who has the children is responsible for their attendance for extracurricular activities. Both parents have the ability to participate in extracurricular activities with the children whether it is their time to have the children or not.
The parties agreed that Mother would have the children with her on Easter, the Fourth of July, Labor Day, Halloween, New Year's Eve, and Christmas Day. Father will have the children the day before Easter, Memorial Day, Thanksgiving, Thanksgiving Friday, New Year's Day, and Christmas Eve. The parties agreed that:
The parties agreed that the children would be with Mother on Mother's Day and Father on Father's Day from 9:00am to 8:00pm. The children's birthdays would include a shared dinner with only the children and the parties. School breaks were to be split between the parties. The parties agreed to not impede the ability for the children to communicate with the other parent and agreed that the parents are entitled to reasonable communication while the children are in the care of the other parent.
Father filed a Petition to Modify Custody Order on May 9, 2019 to alter the Consent Custody Order. A full day hearing was scheduled for January 16, 2020; however, on January 14, 2020, Mother filed an emergency ex-parte Protection from Abuse petition. By Order dated the same, a Temporary Ex Parte Order of Protection from Abuse was entered by the Court, and a PFA hearing was scheduled for January 21st. On January 15th, an emergency Motion for Continuance was filed by Mr. Bever, requesting that the January 16th custody hearing be continued due to potential implications from the PFA. Without objection by Mr. Rogers, this Court granted the continuance request by Order dated January 15th. The custody modification hearing was rescheduled to May 18, 2020. On April 20, 2020, due to COVID-19 restrictions on in-person hearings, the Court issued an Order rescheduling the instant hearing for July 15, 2020. On May 21, 2020, a Commissioner accepted the parties' stipulation for dismissal of the Protection from Abuse Petition without prejudice.
Due to the ongoing COVID-19 pandemic, a case management conference was held on June 29, 2020 to discuss the potential for a video hearing instead of an in-person hearing. Mr. Rogers informed the Court that the parties had made "significant progress" toward a resolution. However, Mr. Bever stated that there was still some uncertainty related to the placement schedule due to continued pandemic related closures. Counsel was instructed to submit a status report by Friday, July 10, 2020 to inform the Court if a hearing was necessary and if the hearing could proceed virtually. Mr. Rogers and Mr. Bever informed the Court that a hearing was necessary and could proceed virtually.
During the instant hearing the parties stipulated to joint legal custody. However, in his opening statement, Mr. Bever clarified that because of uncertainty related to the pandemic, Mother did not wish to stipulate to equal shared placement. Mother clarified that she would be comfortable with equal shared placement while Father was working from home, but seeks the ability to parent the children in the event that Father's schedule changes and he is unavailable.
Father is -- years old and resides with his fiancée, J-- G-----S---- (DOB: -/--/----) in F-----, Delaware. He and Ms. G-----S---- entered into a relationship in June, 2018 and will be married December 12, 2020. Father is employed by ---- ---- in --- ------, Delaware where he works as a ------- --------- Coordinator and typically works from 7:00am until 3:30pm. The Court was not advised whether Father has a traditional Monday through Friday work week. Father has been working from home exclusively since March 2020 during the pandemic. When he reports to work in person, his commute is approximately an hour. His employer has not provided information regarding when work will resume in person. However, Father indicated that his employer is "willing to work with him" to develop a flexible schedule to allow him to drop the children off for school in the morning and pick them up in the afternoon. Father stated that there is potential for his work to be done remotely in the future.
Father testified that if for some reason he is unavailable, his fiancée, Ms. G-----S----, can be available to care for or transport the children. Ms. G-----S---- is employed as an ---------- --------- at ------ -------. She stated that her workday starts at 8:30am and Father indicated that she typically works until 4:00pm and her commute is approximately 20 minutes to downtown ----- when she works from her office. She is working from home four days a week and goes into work on Tuesdays. She too will be working from home until further notice. Father stated that Ms. G-----S---- also has flexibility with her work schedule.
Mother resides in ------, Delaware with the children and her mother, S---- M----- ("Maternal Grandmother") (DOB -/--/----). Mother is employed as a -------- ------- ------- which involves buying and delivering groceries, primarily to elderly or infirmed people. She has worked in this role since October 2018 and is able to work at her discretion and set her own hours. This means that Mother can work around the children's pick up and drop off times and choose not to work during the days they have been home related to the pandemic.
Under 13 Del. C. § 729(b), "[a]n 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."
The Court must analyze the factors under 13 Del. C. §7221 to create an Order that is in the best interests of the children. Both parents shall be granted frequent and meaningful contact "unless the Court finds, after a hearing, that contact of the child with one parent would endanger the child's physical health or significantly impair his or her emotional development."2
As stated earlier, the parties have stipulated to a joint legal custody and shared residential arrangement, but disagree regarding how placement should be shared and the residential schedule.
§ 722 Factors
(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements;
Father would like to equally share placement of the children with Mother on a week on/week off basis to reduce the number and frequency of transitions for the children.Father sought modification because he believes the Consent Custody Order "was not working". He stated that both he and Mother noticed that the children were "constantly" tired and Mother brought to his attention that G--- was falling asleep in school on a Thursday after spending the night before with Father.3 Father stated that communication between himself and Mother is not "what it should be" for them to work together as parents. Father described an incident in October 2018 in which Halloween, Mother's holiday, fell on a Wednesday. He requested that they arrange to switch his overnight to Thursday, November 1, 2018 to avoid the children going ten days without an overnight with Father, but Mother refused and the parties were unable to resolve this issue.4 Father believed...
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