Dukes v. Betts

843 A.2d 725, 2003 WL 23269512
CourtDelaware Family Court
DecidedDecember 12, 2003
DocketNo. CS93-3761
StatusPublished

This text of 843 A.2d 725 (Dukes v. Betts) is published on Counsel Stack Legal Research, covering Delaware Family Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dukes v. Betts, 843 A.2d 725, 2003 WL 23269512 (Del. Super. Ct. 2003).

Opinion

HENRIKSEN, J.

On December 8, 2003, the Court held a trial on the motion filed April 8, 2002 by Stacy J. Dukes, formerly known as Stacy J. Grant (“mother”), against Jason W. Betts (“father”) seeking to modify their prior Custody Order dated November 8, 1999. In addition to hearing the testimony of each of the parties, the Court also heard testimony from Tom Dawson the child’s stepfather; Tori Price the child’s fifty (50) year old maternal grandmother who resides in Frankford, Delaware; Jason Betts, Sr., the paternal grandfather; Debbie Betts, the paternal grandmother; and Sharon Oliver, the mother of Aaron Oliver who has been a close friend with Toby since kindergarten, and with whom Toby often skateboards. With the consent of the parties, the Court also interviewed Toby a private tape recorded session.

BACKGROUND

The parties married on February 6, 1993. The separated in late January, 1994.

On August 24, 1994, with the Order being signed August 25, 1994, the parties entered into a Consent Order which provided joint custody with physical placement of the child with mother. This Order basically provided father with visitation of every other weekend, Wednesday until Friday in alternate weeks, three (3) weeks summer vacation, and a sharing of holidays. At the time of the entry of this Order, both parties resided in Sussex County, Delaware, and neither party had remarried.

The parties were divorced on December 1,1994.

By Order dated November 8, 1995, a Commissioner of this Court changed visitation to a more conventional scheme of alternating weekends with one (1) evening [727]*727each week, noting that most of the prior weekday visitations for father were primarily spent by the child in the care of the paternal grandmother; whereas, mother was home all day with her children. The Commissioner’s Order was affirmed by a Judge of this Court in an Order mailed January 30,1996.

On April 18, 1997, mother filed a motion seeking permission of the Court to relocate. Because father filed no response to the motion, a Judge of this Court granted mother’s Motion to Relocate by Order dated May 1, 1997. However, the same Judge reopened the Motion for Relocation based upon father’s representation that he had • not received a copy of the motion. Father also filed at that time a motion requesting a change of placement. Despite a provision in the parties’ Consent Order of August 24, 1999 that stated “Parties agree that the child, will not move out of the State of Delaware without the consent of the other parent or upon Order of the Court”, mother unilaterally took the child with her to Monroeville, Pennsylvania, a suburb of Pittsburgh, Pennsylvania. This was done despite both parties having filed petitions concerning the possibility of mother’s relocation, with both petitions filed in the mid to late summer of 1998. Mother’s request for expedited scheduling of her motion to allow her to relocate was denied. Despite the denial, the mother chose to relocate the child with her to the Pittsburgh, Pennsylvania area. As a result, following father’s filing of an emergency motion, a Commissioner of this Court granted an Emergency Order awarding temporary sole custody and guardianship of the child to father and requiring mother to return the child to the State of Delaware for placement with father. This Emergency Order was issued October 16, 1998. Mother’s Motion for Reargument to the Commissioner was denied on February 8, 1999. Mother’s Request for Review of Commissioner’s Order of February 8, 1999 was denied by a Judge of this Court on March 31,1999.

All of the foregoing led to an eventual trial before a Judge of this Court where both parties sought to modify the original 1994 Consent Order based upon mother’s relocation to the Pittsburgh, Pennsylvania area. The child was seven (7) years of age at the time of the November 1999 hearing. At that time, the trial Judge found that the child had a good relationship with both parents but expressed an interest in living with his mother. The trial Judge noted, however, that the “Reasons for that decision were, not, concrete nor directly related to [the child’s] feelings towards his mother over his father. ” The Court’s decision also commented on mother’s lack of cooperation in obeying prior Court Orders which centered around her initial decision to unilaterally take the child to Pennsylvania, and then her less than cooperative approach in returning the child to the State of Delaware. The Court’s Order also noted a prior conviction of father for Offensive Touching involving his then wife. However, the Court also noted that father had successfully completed a program of rehabilitation, successfully completed probation, and had committed no additional acts of domestic violence.

The trial Judge’s Order of November 8, 1999 also noted that father had remarried, “... and it appears that his relationship with his present spouse and new child is going well.” The decision also reflected that “The natural mother also remarried, but is now going through divorce proceedings with her second husband. It appears that the natural mother is the least stable of the parents.

In summary, it appears that the trial Judge’s Order of November 8, 1999, which awarded primary placement to father, honed in on the following critical findings:

[728]*7281. The seven (7) year old child, although expressing a desire to reside with his mother, was not able to concretely articulate his reasons.
2. At the time, father offered a much more stable environment where he had remarried, and his marriage seemed to be going well; whereas, mother was in the middle of a divorce.
3. Although father had earlier problems with domestic violence, he had gone through the appropriate rehabilitative process, and had no further incidences.
4. Mother had made a major mistake when she took the child to Pennsylvania, thereby defying the Order of the Court, and placing her child in the middle of the turmoil and adjustment pressures, which mother had apparently not considered.

An Order of the Delaware Supreme Court dated June 9, 2000 eventually Affirmed the trial Judge’s Order of November 8,1999.

LAW, FACTS AND REASONING

Pursuant to Title 13, Section 701(a), a father and mother are the joint natural guardians of their minor children, and are equally charged with their children’s support, care, nurture, welfare, and education. Where the parents live apart, it falls upon the Court to determine with whom the children shall primarily reside, and to also set forth the schedule of visitation consistent with the childrens’ best interest and maturity, which is designed to permit and encourage the children to have frequent and meaningful contact with both parents.2 Regardless of who is awarded placement, all parents and other persons are encouraged to foster ... frequent and meaningful contact, in person, by mail and by telephone, between parents and children ...”3 If the Court finds that this obligation is violated, the Court has the power to remedy this violation by awarding, among other things, extra visitation, a temporary transfer of custody or primary residence, a fíne, and even, imprisonment.4

Free access — add to your briefcase to read the full text and ask questions with AI

Related

William H. Y. v. Myrna L. Y.
450 A.2d 406 (Supreme Court of Delaware, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
843 A.2d 725, 2003 WL 23269512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dukes-v-betts-delfamct-2003.