R.W.T. v. T.L.C.

855 A.2d 1084, 2003 WL 23718327
CourtDelaware Family Court
DecidedDecember 29, 2003
DocketFile No. CK93-3232; Petition No. 03-11041
StatusPublished

This text of 855 A.2d 1084 (R.W.T. v. T.L.C.) 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
R.W.T. v. T.L.C., 855 A.2d 1084, 2003 WL 23718327 (Del. Super. Ct. 2003).

Opinion

HENRIKSEN, J.

On December 23, 2003, the Court held a trial on the cross petitions for modification of custody filed by the parents of almost twelve (12) year old B.T.T. In addition to hearing the testimony of each of the parties, the Court heard very brief testimony from the child’s paternal grandmother, Ba. G. With'the permission of the parties, the Court conducted a private, tape-recorded interview of B.

BACKGROUND

T.L.C. (“mother”) and R.W.T. (“father”) were never married. Mother is presently thirty-three (33) years of age, and father is presently forty-five (45) years of age. They lived together since B.’s birth until they separated somewhere between October and December of 1996.

On January 18, 2002, the parties entered into a Consent Order which basically provided for shared custody and placement.

In December of 2002, mother moved from Kent County to Bear, Delaware. From December of 2002 to early February of 2003, the child lived primarily with father and attended school in the Lake Forest School District.

In February of 2003, father was arrested during a drug raid at his brother’s home. Mother immediately obtained an Emergency Protection From Abuse Order awarding her placement of the child. The PFA application by mother was eventually dropped. However, the child remained with mother and she was enrolled in the Pleasantville Elementary School. The parties entered into an Interim Consent Order on April 2, 2003, which provided primary placement with mother, visitation to father of alternate weekends, every Wednesday evening, and alternate weeks in the summer, as well as requiring father not to use any drugs and also attend counseling.

Both parties filed cross petitions for modification of custody and visitation.

FACTS, LAW, AND REASONING

Pursuant to Title 13, Section 701(a), a father and mother are the joint natural guardians of their minor children, [1086]*1086and are equally charged with their chil-drens’ 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.1 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 ...”2 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.3

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.4

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.”5 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.6

In making its decision on the proper placement for B. 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 are seeking primary placement of their daughter. Because father continues to live in Harrington, Delaware, and mother now lives in Bear, Delaware, nearly an hour and fifteen minutes apart, the possibility of shared placement no longer exists.

Father resides in a three (3) bedroom home located in Harrington, Delaware. This was the home in which B. had lived from seven (7) months of age until the parties’ separation in the fall of 1996. No other persons reside in the home. The home is located in the rural downtown area of Harrington.

Father has been employed as a driver since June of 2003. He works five (5) days a week from 7:00 a.m. to 5:00 p.m. However, his hours are flexible. If he gets primary placement of the child, he indicated he will be able to change time for arrival at work to 7:30 a.m. in order that he can be sure B. gets on the school bus.

Mother resides in a rented home in Bear, Delaware. She resides there along with her husband of seven (7) years, S., along with their two (2) children, six (6) year old St. and soon-to-be two (2) year old Sa. Mother and her family began renting [1087]*1087the present residence in Bear two (2) weeks prior to Christmas of 2002. Prior to that, mother and her family resided in a shelter for two (2) weeks in Dover, Delaware because they were homeless. They lived for the three (3) months preceding that in the Dover Inn in Dover, Delaware. Prior to that, mother and her family resided with her father in Dover, Delaware. Before that, the parties rented at West-view Terrace for about a year.

Mother’s husband, S., now works as a truck driver. According to mother, her husband’s job allows him to be home approximately four (4) days every four-and-a-half (4-1/2) months. He is presently taking a vacation for the month of December 2003. Mother projects that S. will soon have some additional flexibility in his job so that he will only be gone two (2) to four (4) weeks at a time.

Mother has a web-based business marketing products and services. She began this in September of 2003 when her husband was on the road. Mother’s web-based business requires her to meet with clients almost nightly, leaving the house at 7:00 p.m. and usually arriving back home by 9:30 p.m. Her youngest child, Sa., goes to sleep at 7:00 p.m. B. is then responsible for putting her six (6) year old sister to bed at 7:30 p.m., and is responsible for watching over her two (2) younger sisters while mother is working.

Child’s wishes: B. very clearly indicated her desire to live primarily with her father. According to B., she does not do anything at her mother’s house except watch over her two (2) younger sisters. In B.’s mind, she is required to do much of the housework in mother’s home.

At father’s home, B. also has chores, but no where near the number of chores as at mother’s house. With father, she is also allowed to take karate lessons, participate in sports and cheerleading, and be with her little dog, Skippy, who B. said she loves dearly.

B. also indicated that, although she likes the Fairwinds Christian School, a private school she now attends, she also likes the Lake Forest school which she attended almost all of her life, and where she has many friends.

B. also indicated that mother has no interaction with extended family members. On mother’s side, B.’s grandmother resides in California.

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Related

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

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Bluebook (online)
855 A.2d 1084, 2003 WL 23718327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rwt-v-tlc-delfamct-2003.