Jones v. Galloway

927 A.2d 1009, 2006 WL 4668269
CourtDelaware Family Court
DecidedDecember 14, 2006
DocketNo. CS00-04531
StatusPublished

This text of 927 A.2d 1009 (Jones v. Galloway) 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
Jones v. Galloway, 927 A.2d 1009, 2006 WL 4668269 (Del. Super. Ct. 2006).

Opinion

HENRIKSEN, J.

On December 7, 2006, the Court held a trial to determine the custody and visitation of the above-named 6 year old child. Mother and father never married. They lived together for approximately 1-1/2 years and separated when the child was approximately 1 year old.

Through the mutual agreement of the parties, they have always shared joint cus[1010]*1010tody with mother having primary placement. Father has had frequent and liberal visitation. Following father filing his Petition on April 18, 2005, the parties entered into a Temporary Consent Order whereby they shared joint custody, physical placement remained with mother, and father was ' awarded visitation somewhat along the standard guidelines of the Court, but recognizing the 4-1/2 hours between the parties’ residences, with mother living in Seaford, Delaware and father living near Harrisburg, Pennsylvania.

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 childrens’ 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 fine, and even, imprisonment.4

In making its decision as to the placement of this child, the Court did not presume that one (1) parent, because of his or her sex, was better qualified than the other parent to act as the primary residential parent.5

The Court is required to consider each of the factors set forth in Title 13, Section 722 as well as any other relevant factors the Court may deem appropriate. The Court must consider each factor independently and then give each individual factor “its due weight and importance relative to the other factors in a manner reflecting the best interest of the child in question.”6 The Court does not adopt a “mechanical or perfunctory approach” whereby each factor is weighed equally, and the child’s best interests are resolved by placing the child with the parent who prevailed on the most factors.7

In making its decision on the proper placement for Darren, the Court considered all relevant factors to determine the best interest of the child, including the following factors set forth in Title 13, Section 722 (a):

Parents’ wishes and residential arrangements: Both parents agreed to share joint custody of the child and each parent would like to have primary placement of the child. Also, each parent agreed that the non-placement parent should have the visitation which father presently has under the Temporary Consent Order dated June 7, 2005. In summary, the visiting parent, except during time periods identified as winter and spring breaks, as well as summer visitation, would see the child every other weekend and the parties would exchange the child at Friendly’s Restaurant on Route 896 North in Newark, Delaware. [1011]*1011Mid-week visitation was not applicable. The schedule sets forth a sharing of holidays and school breaks, and also provides for the usual 5 weeks of summer visitation, in increments of no greater than 2 weeks nor less than 1 week at a time.

Twenty-seven year old father resides in a townhouse he purchased along with his 26 year old wife, Megan, in May of 2005. The townhouse is a two story building located in a community of 500 other townhouses. The community contains a fenced-in pool, several playgrounds, and is mostly occupied by young people with children who are buying starter homes. The child has made many friends in the community.

Father has been working for the past 3 years as a UPS delivery person. His hours are generally Monday through Friday from 9 to 5. At the present time, he is working extra hours which should conclude around December 31st. Father and Darren have known father’s wife for at least 5 years. Father and Megan married in September of 2005. Megan is employed in web and graphic designs for the Pennsylvania House of Representatives, where she has worked for the past 3 years. Megan’s work hours are Monday through Friday from 9 to 4:30. Father is pursuing a 4-year college degree and has attained junior status. He anticipates receiving his Bachelor of Science degree in Computer Technology in May of 2008. The Court notes, that in addition to father thus far having achieved his junior year in college, that his wife, Megan, has a 4 year Bachelor of Arts Degree from Penn State University.

Father left the Delaware area for a better job and to pursue his education so that he could better provide for his son.

For the past year, mother has been renting a 1 bedroom apartment in Seaford, Delaware. The child sleeps in the living room on a fold-out bed or on the couch. At times when the living room ceiling has leaked, mother had the child sleep in bed with her or stay at the home of maternal grandmother who lives in Bridgeville, Delaware. Mother described concerns about her apartment where ceilings have fallen down in other units and she also has concerns that the landlord was slow in fixing areas where cold air blew in.

Mother has been employed for the past 3-1/2 years at Rose’s Department Store. She works Monday, Thursday, Friday and Saturday from 9 to 5 and Tuesday from 1 to 9. Mother has Wednesday and Sunday off. While father is presently earning approximately $38,000 a year and his wife, Megan, is earning approximately $33,000 a year, mother earns approximately $12,000 a year. Mother is a high school graduate.

The Court observed a considerable difference in the grammatical quality of speech of father and Megan as compared to mother.

Mother is 25 years of age and has a 19 year old boyfriend named Dion Howard. According to mother, Dion works at Per-due. Mother testified that Dion did not have a criminal record. According to mother, Dion comes and goes as he pleases and does not necessarily present a father figure for the child.

Child’s wishes: Although the Court interviewed 6 year old Darren, it was difficult to determine Darren’s wishes as to his placement. He stated he wanted a telescope for Christmas. Darren said his stepmother, Morgan, taught him how to tie his shoes, and his mother taught him how to ride a bicycle. Although mother said that her boyfriend does not sleep over every night, Darren stated that he did. The child’s statements indicated a clear connection between himself and his stepmother, in addition to his parents. Darren said he likes school and that he was doing [1012]*1012well in school. When asked about the type of music he likes, the child noted certain Christmas carols, such as Feliz Navidad and Rudolph the Red-Nosed Reindeer. His mother and relatives had taken him to see a Christmas parade this year.

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Bluebook (online)
927 A.2d 1009, 2006 WL 4668269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-galloway-delfamct-2006.