S L. M v. C E. M

LOUANN VARI, JUDGE

Cross-Petitions for Custody and Petition for Rule to Show Cause

CUSTODY ORDER In The Interests Of: D----N C. M----- (DOB 7/18/06) D---- E. M-----(DOB 11/28/10) D------ M. M-----(DOB 11/28/10)

S----- L. M----- ("Mother") and C-------- E. M----- ("Father") met as teenagers, married as young adults and had three children together: D----n C. M----- ("D----"), born on ---- --, -------, and her brother and sister, twins D---- E. M----- ("D----") and D------ M. M----- ("D------"), born on ------------- --, ---- (collectively, "the children"). Mother and Father separated their residences in June 2014. Litigation over the children's custody began in this Court in March 2016. After various interim proceedings and orders, the Court held a hearing to address Mother and Father's competing Petitions for Custody and Mother's Petition for Rule to Show Cause/Specific Performance.

The hearing was held on four separate days. Mother and Father were represented at the hearing by their attorneys, Laura A. Yiengst, Esquire, and Glynis Gibson, Esquire, respectively. The Court heard testimony from more than twenty witnesses and received substantial documentary evidence. The Court interviewed D----, D------ and D----, who are happy, well-adjusted children despite their parents' disagreements. The pending Petitions are now resolved by confirming the arrangements for the children's school already in effect and adopting a 2-2-3 shared living arrangement for them.

Specifically, July 27, 2017, September 6, 2017, September 8, 2017 and October 3, 2017.

The Court interviewed D-----, D---- and D------ on October 6, 2017.

ADDITIONAL BACKGROUND AND PROCEDURAL HISTORY

Mother and Father's competing Petitions for Custody were both filed in March 2016. Both were later amended and timely responses were filed by both parties. Mother and Father have been able to agree on many matters concerning their children, and on March 15, 2016, the Court entered their Interim Stipulation for Custody and Visitation as an interim Order ("the Placement Order"). The March 2016 Placement Order established that the children would spend a little more time with Mother than Father on a one- or two-day rotating schedule. The Placement Order worked well, or at least remained in place, until it was time to enroll D------ and D---- in kindergarten.

Mother filed the pending Petition for Rule to Show Cause/Specific Performance in June 2016. Among other things, she asked that Father be required to follow the Placement Order or be found in contempt of it, asserting Father stopped following the Order when he learned she had enrolled the twins in kindergarten in the school district where she lived. Father timely answered the Petition and filed a Motion for Interim Relief requesting authority to continue D----'s attendance in the school district where he lived, and to enroll the twins in kindergarten there as well.

The Court scheduled a hearing to address Father's motion. Mother and Father temporarily resolved the school enrollment issues by stipulating that for the 2016-2017 school year, D---- would continue to attend school in Father's district of residence, and the twins would be enrolled in the district where Mother lives. Their stipulation also addressed issues about D----'s counseling. The Court entered their agreement as another interim order on October 5, 2016 ("the School Order"). The children continue to attend school under this arrangement for the 2017-2018 school year: D---- attends school in the Lake Forest School District, and D------ and D---- attend school in the Caesar Rodney School District.

The Court has also addressed various motions and entered procedural and pretrial orders as Mother and Father prepared their Petitions for trial. Most pertinently, the Court entered a Letter Decision and Order (the "Scheduling Order") after a case management conference held on February 21, 2017. Among other things, the Scheduling Order directed Mother and Father to exchange "[a]ll trial exhibits, except those to be used for impeachment..." at least seven days before the trial date and required the parties file motions in limine a "reasonable time in advance of the hearing." The Scheduling Order bears on the Court's decision to prevent Mother using audio recordings to cross-examine Father after his direct testimony in his case in chief on October 3, 2017. The Court permitted Mother to submit written argument about its exclusion of the audio recordings. She did so by timely filing a Motion for Reconsideration of Acceptance of Evidence on October 13, 2017. Father responded to the Motion. The Court reaffirms its decision to exclude Mother's audio recordings, but corrects its reason for doing so.

Motion for Reconsideration of Acceptance of Evidence

Father testified for the first time in his case in chief on the final day of testimony, October 3, 2017. The following exchange occurred during Father's cross examination by Mother's attorney:

Q: And you did put her down quite a few times during your marriage, correct?
A: Examples?
Q: I'm asking you. Did you put her down during your marriage?
A: No.
Q: Not at all, ever?
A: Not that I recall, no.
Q: And your testimony is that she chose to live—leave her infant twins in the bedroom with you and did not want to bring them to the bedroom she was moving into?
A: That's correct.
Q: Have you ever referred to S----- as a 'dumb mother' to D----?

A.: No, I have not.
Q: So, if I had a tape of you screaming and yelling with D---- telling her that her 'dumb mother must have put it somewhere,' that's—that wouldn't be you? [Pause] Do you want a chance to think about your answer?
A: Well, who, whose recording these, with these—
Q: Sir, I'm just asking if—have you ever referred to S-----—
A: I don't recall referring to her as her 'dumb mother,' no.
Q: Were you aware that S----- had taped you a couple of times prior to separation when you were screaming at D----?
A: No, I did not.
Q: I'm going to play something and please tell me if this is your voice.
A: Your Honor, I'm going to object to the playing of this tape....

Father's objection to the audio recording was based on discovery exchanges between the parties. Specifically, Mother identified several audio recordings to Father on June 28, 2017 when she responded to Father's Request for Production of Documents. She also told Father the audio tapes could not be reproduced, but could be reviewed in her attorney's office. On July 20, 2017, as required by paragraph 7 of the Court's Scheduling Order, Mother provided Father copies of the exhibits she intended to use as exhibits at the trial. She did not produce a copy of the audio recordings. Rather, Mother reminded Father that the tapes existed and she intended to rely on them as potential exhibits at trial.

While Mother's post trial motion mentions she sought to introduce "recordings" into evidence, the trial request and objection was to one tape, not others.

The following day, July 21, 2017, Father responded that he would prefer Mother provide a copy of the audio recordings and asked how long the recordings were so he and counsel could arrange adequate time to review them. This was the final exchange between the parties about the audio recordings until Mother sought to introduce one of them into evidence. Father then objected on the ground that the recording had not been produced as part of discovery. The Court indicated it was likely to exclude the recording on that ground, but took a recess to permit the parties to confer. When the hearing resumed, Father renewed his objection on the basis that the audiotape was not produced during discovery; Mother contended she had complied with discovery by identifying the recording to Father. Mother again confirmed she was unable to make a copy of the audio recording. She asserted she was not required to provide a copy of the recording to Father under the scheduling order because she sought its admission to impeach Father's denial he had called Mother a "dumb mother" in conversation with D----. The Court excluded the recording from evidence because Mother did not respond to Father's July 21, 2017 request for information about the recording so he could arrange to review it. Father's testimony resumed as follows:

Q: Mr. M-----, I'm going to ask you again. Were you aware that Ms. M----- had recorded interactions between you and D----?
A: No, I was not.
Q: Have you ever referred to Ms. M----- as a quote 'dumb mother'?
A: Not that I recall, no.
Q: So, it's possible you did?
A: It's possible.
Q: Okay.
A: I'm sure there's name calling back and forth.
Q: Sir, I'm not—I'm only asking the names that you called...
A: Yes, ma'am.
Q: ...I'm not—I'm asking what you called her in front of the children. Okay, and you're saying it is possible that you called...
A: It is, yes.
Q: ....her a 'dumb mother?'

The Court first notes that Mother's Motion for Reconsideration of the Court's decision to exclude the audio recordings, and Father's response, are predicated on the assertion that Mother sought to introduce the audio recording during Mother's rebuttal testimony. Specifically, Mother's Motion contends she sought to introduce the tapes as "rebuttal evidence of Father's behavior and interactions with the minor children...." As noted above, however, Mother requested to play the recording during her cross examination of Father during his testimony in his case in chief and specifically asserted a right to impeach him with it. Mother later testified in rebuttal that Father had referred to her as a "dumb mother" during a conversation she—Mother—recorded between Father and D----. She also credibly testified that the audio recording confirmed this.

Otherwise, the Court re-analyzes its ruling about the admissibility of the audio recording this way: Mother complied with her discovery obligation to Father when she identified the existence of the tapes in her June 28, 2017 response to his discovery request: Family Court Rule of Civil Procedure 34(b) required Mother make the recordings available for inspection and that is what she did. Rule 34 then required Father to finalize arrangements to inspect and copy the recordings if he wanted to learn about their contents. Father chose not to make these arrangements until Mother identified the tapes as trial exhibits. As a result, he lost any advantage he might have gained by reviewing them ahead of time. However, Mother then disclosed that she intended to rely on the recordings as exhibits at trial. In doing so, it became her obligation under the Scheduling Order to provide Father copies of the recordings. She did not do so, again explaining to him the recordings could not be duplicated. When Father responded on July 21, 2017 that he wanted a copy, Mother did not respond. She also did not file a motion in limine, or otherwise bring the matter to the Court's attention from July 21, 2017 until October 3, 2017 when she sought to impeach Father's testimony through one of the tapes.

For example, Father's initial trial testimony on this subject may have been different had he listened to the recordings. He also may have learned about other areas of inquiry, including, for example, the circumstances under which Mother believed it was appropriate to record his conversations with D----.

The Court recognizes that paragraph 7 of the Scheduling Order did not require Mother to produce exhibits used for impeachment. Here, however, Mother planned to use the tapes at trial, knew she had not duplicated the recordings, and knew from Father's July 21, 2017 letter that he was likely to object to their admission because she had not provided him a copy of them—as the Scheduling Order required her to do for non-impeachment exhibits. Under these circumstances, the Scheduling Order also required Mother to bring this evidentiary matter to the Court's attention through a motion in limine before the last day of a four day hearing. Mother did not do so, and also did not bring the issue to the Court's attention until the last day of trial. She then questioned Father on cross examination about a statement Mother herself later confirmed he made once on the recordings—and immediately sought to impeach his testimony by introducing the audio recording. The Court incorrectly characterized Mother's obligations as a discovery violation when it excluded the audio recording. It was rather a violation of Mother's obligation under the Scheduling Order to bring the evidentiary problem to the Court's attention in a way that would have permitted it to be resolved promptly and fairly to both parties.

Finally, the Court notes that after it excluded the audio recording, and on further cross examination, Father admitted he called Mother a "dumb mother" in front of the children. He also denied doing so until confronted with the reality of extrinsic evidence to the contrary—a denial running against his credibility. To the extent Mother wanted to impeach Father's testimony and establish that he degraded her on that occasion, she did so through cross examination, eliminating any prejudice to her from the Court's decision to exclude the audio recording. For these reasons, Mother's Motion for Reconsideration of the decision to exclude the audio recording is denied. The Court turns to its findings.

FINDINGS OF FACT

Mother and Father were married for about seventeen years. Mother worked as probation officer for the State of Delaware for most of it. Father worked in the family business, a funeral home located not far from Mother and Father's marital residence in Harrington, Delaware. Mother moved from the marital residence when she and Father separated households in June 2014. She lived briefly with her parents in Milford, Delaware, and then moved to her own home in Dover, much closer to her workplace. Father continued to live in the former marital residence for a few years; he moved to a new home nearby during the trial. Mother and Father's divorce was finalized in September 2015.

The last several years of Mother and Father's marriage were difficult. Mother moved into a separate bedroom in 2011, when D---- and D------ were about a year old. Father did not recognize this as serious a step as Mother intended it; Mother continued participating in the marriage and family for three more years, perhaps contributing to Father's misapprehension. Father and Mother's marital separation was also difficult. Mother and Father's marriage and family life were deeply entwined with Father's family and the family business. Much evidence was presented about the difficulties in the marriage, and the hard feelings Mother, Father and their respective families continue to harbor over the failure of it. Mother's boyfriend, C---- T------- ("Boyfriend"), worked with Mother for many years and became friendly with Father and his family. Father and his family believe Mother began her intimate relationship with Boyfriend before separating from Father. Mother insists they did not, and complains that Father's family tolerated Father's bad behavior during the marriage and "took his side" after it despite the closeness she shared with them during the marriage.

These issues remain emotionally important to Mother and Father and their families. In this case, they are also largely inconsequential to deciding the children's care arrangements: whatever the difficulties in their intimate relationship, Mother and Father continued functioning well as parents while they lived together, both individually and as a unit. They have gone through predictable post-separation adjustment, confusion and power struggles, but have also largely continued as loving, competent and effective parents to their children. With this background, the Court addresses some of the specific concerns raised at trial.

Living arrangements under the Placement Order

Mother continues to work as a probation officer in Dover. Her home is in the Caesar Rodney School District. Father continues to live in the Lake Forest School District and work in the family business in Harrington. In March 2016, Mother and Father negotiated temporary arrangements for the children's care and the Court entered their agreement as the interim Placement Order. Under it, the children are with Father from Monday until Tuesday, from Wednesday until Thursday, and from Saturday to Sunday each week. The children are with Mother from Sunday until Monday, from Tuesday until Wednesday and from Thursday until Saturday. The Placement Order includes a schedule for sharing holidays and school breaks and provides time for the children to vacation with each of their parents in the S-----. It also confirms that Mother and Father are free to adjust the children's living schedule as long as they mutually agree to do so. The evidence establishes that Mother and Father were reasonably flexible with each other about changes to the Placement Order for several months after it was entered depending on the children's needs, wishes and their own schedules.

School Enrollment

D---- is four years older than D------ and D----. She began school in the Lake Forest School District and continued to attend there after Mother and Father physically separated. The twins attended an early childhood learning center in Dover, near Mother's work place, before they became eligible for kindergarten enrollment for the 2016-2017 school year. By then, Mother had moved to her home in the Caesar Rodney School District and wanted to enroll the younger children there in part to ease transportation difficulties. Mother also believed D---- wanted to transfer to the Caesar Rodney School District. Mother's belief is understandable: D---- told Mother she wanted to change schools. Mother did not find this unusual because D---- knew several Caesar Rodney students from a martial arts class and other Dover-based activities in which she participated. She also had had become good friends with A---- H----, the daughter of one of Mother's friends, and A---- attended Caesar Rodney. Father wanted the twins to attend school with D---- in his school district of residence, Lake Forest.

Mother began the process of enrolling D------ and D---- in the Caesar Rodney School District for the 2016-2017 school year. In April 2016, the District screened the twins for kindergarten enrollment. Mother did not tell Father about the screening until it was complete. Caesar Rodney's screening revealed D----'s school readiness was lagging. The District offered to have him attend its two week "Camp Aloha" program during the S----- of 2016 to help him prepare for kindergarten in the autumn. Mother agreed, and D---- attended. In the meantime, at Father's request, the Lake Forest School District screened D---- and D------ for kindergarten. Father did not tell Mother about Lake Forest's screening until it was complete. Lake Forest's testing concluded both twins were ready for kindergarten enrollment without preparatory services.

Significant trial time was spent on the difference between the two Districts' screening techniques and approaches to instruction. In all, the evidence presented in these proceedings establishes that each District is well-versed in its responsibilities to its students and has organized its curriculum, instructional methods and interventions consistent with those responsibilities. Put another way, neither Mother nor Father established that either District is superior to the other or better equipped to meet the twins (particularly D----'s) learning needs. The Court also concludes the parties' respective preferences for one District over another are influenced as much by other natural, understandable factors as by academic superiority, including school-to-home distance, familiarity with the school and comfort with its staff, and the availability of extracurricular offerings consistent with their own preferences for the children.

In any event, Mother and Father were unable to resolve their differences about the children's school attendance in the spring and S----- of 2016. Neither was particularly cooperative or supportive of the other. Mother took the position that the Placement Order gave her the right to determine the children's school enrollment or, more specifically, that the Districts themselves required the children be enrolled in Caesar Rodney. There is no evidence she considered whether the children could attend Lake Forest or discussed with Father whether they should. For his part, Father assumed without discussing it with Mother that D---- would continue in Lake Forest and the twins would begin there, too. Caesar Rodney began evaluating D----'s eligibility for special education services after the Camp Aloha program ended. Mother assumed the District would send Father a developmental questionnaire and other papers about the evaluation process. It did not, and only Mother's background input was included in the assessment.

The District then held a meeting on August 29, 2016—just a day or two before school began—to confirm D----'s eligibility for special services and develop an Individualized Education Program ("IEP") for him. The District notified Mother about the meeting but not Father. Mother told Father about the meeting a few days before it, not long after she learned of it. Both Mother and Father attended the meeting. School district staff testified Father questioned the difference between Caesar Rodney and Lake Forest's earlier screenings about D----'s kindergarten readiness and his need for an IEP. While Father ultimately agreed to Caesar Rodney's determination that D---- was eligible for special education services, he did not sign the IEP the District developed for D----, noting the custody litigation and his desire that the children attend Lake Forest. Mother and Father both credibly testified that neither really understood the purpose of the August 29^th meeting or the process of developing D----'s IEP. Each blames the other for this. The Court concludes both were simply faced with an unfamiliar and complex situation—special education services—compounded by their mutual fear and concern for D---- and their mutual distrust of each other. In any event, D----'s IEP was implemented by Caesar Rodney during the 2016-2017 school year without further objection by Father.

Tensions between Mother and Father over the children's education continued. In the spring of 2017, Caesar Rodney scheduled a meeting to review D----'s IEP in preparation for first grade, initially contacting only Mother to schedule it. Mother forwarded the District's email to Father, who then complained to the District's special education coordinator that he was not included on the original communication. Father's email was direct and professional—but he did not copy it to Mother. The coordinator responded to Mother and Father, blaming Father for not telling her that he wanted to be copied on "all email"—despite his attendance at the August 2016 eligibility meeting and the importance of the upcoming IEP meeting. Mother then proposed dates for the IEP meeting by email. She left Father off her response and apologized to the coordinator about Father's "attitude"—suggesting, of course, that there was something inappropriate about his complaint. Without copying Father, the coordinator then personally commiserated with Mother about Father's behavior.

Mother also enrolled D---- in Caesar Rodney for the 2016-2017 school year. Father apparently learned about this change of schools from either Mother's attorney or his own. By this time, D---- had begun counseling with Ms. Tara Adams. Mother and Father met with Ms. Adams to discuss their disagreement. The conversation was heated. Ms. Adams suggested Mother and Father would benefit from co-parent counseling to keep their conflicts away from their daughter. Mother scheduled a co-parent session with another provider; Father initially agreed to attend, then backed out. D---- attended school in Caesar Rodney for a few weeks at the beginning of the 2016-2017 school year. She confirmed in her interview with the Court that it was not like she had hoped: she and A---- were in different schools; she thought Caesar Rodney's rules were too strict and did not understand all of them; and she missed her friends in Lake Forest. By early September 2016, Mother and Father stipulated that at least temporarily, D---- would return to and attend school in Lake Forest and the twins would remain in Caesar Rodney. As noted, these arrangements have remained in place since.

Mother and Father's ongoing relationship

Much trial time was spent on other ways Mother and Father struggle over things they previously agreed about. For example, Father's parents lived in a spacious apartment over the family funeral home business for many years. The children spent significant time at their residence and in the funeral home itself when Mother and Father were married. Mother now suggests it is inappropriate for the children to be at the funeral home so much because they see "people in crisis all the time." Mother's work day ended later than Father's during their marriage, an arrangement that benefitted the entire family. Mother's employment and hours have not changed significantly and she now uses a Boys and Girls Club program to care for the twins after school until her workday ends. Father complains Mother's work hours make D------ and D----'s day too long and that she has taken D------ to her workplace—something Mother occasionally did with all the children when she and Father were married.

Mother's job also contributes significantly to the children's welfare. The Court takes notice, for example, of a Permanent New Support Order entered in March 2017. It is based on Delaware Child Support Calculations confirming that Mother contributes at least 44% of the income used to support the children and enhance their lifestyle.

Mother and Father are suspicious of each other's motives about simple, routine life changes and choices. Mother believes that Father has tried to inappropriately influence the children by adding play equipment at the funeral home; Father thinks Mother tried to sway them by giving them a new puppy. Father and Mother shared the children's care when they lived together as a family: Father tended to do more of some chores and Mother more of others. Mother now complains about how Father brushes the girls' hair and Father criticizes Mother for sometimes permitting the children to wear the same clothes more than once.

Father and Mother also have reported the other to the Division of Family Services ("DFS" or "the Division"). In May 2016, Mother reported that Father had thrown a television remote control at D----, causing a bruise on her thigh. She added that Father had previously bruised D---- by grabbing her arm too hard. A few weeks later, Father told the Division Mother had punished D---- by confining her to her bedroom all night without dinner and denying her use of the bathroom. Father also reported Mother has left the children alone at Funland, an amusement arcade; exposed the children to profanity on the internet; and permitted Boyfriend to roughhouse with them. The evidence establishes kernels of truth in each report—and that all were overblown. Father did throw a remote at D----—after she threw it at him and struck him. Father quickly apologized, D---- accepted his apology and there remains doubt about whether the remote actually caused the small bruise on D----'s leg. Father did hold and spank D----, causing bruising on her arm—years before, in an incident when Mother and Father were married and Mother was present.

Mother reasonably believed she was required to report this incident to the Division because of her belief it caused a bruise. The Division's records show Mother supplemented her mandatory report with many other concerns about the children's wellbeing, including her belief that Father was manipulating the children, particularly D----, and the environment at his home was not healthy.

DFS records also indicate Mother and Father both sometimes used corporal discipline with the children.

Similarly, Mother did send D---- to her room after an argument—D---- then fell asleep and missed dinner. Mother did catch the children looking for prohibited videos on their electronic devices—and added controls to stop them. Mother did leave the children alone briefly at Funland while she went to look for her purse, left at an earlier ride; the children were nervous but never out of Mother's line of vision. Mother's boyfriend, Mr. T-------, did roughhouse with the children—in an appropriate way the children all confirmed they enjoyed. In short, the trial evidence on these points mostly established Mother and Father's mistrust of each other and the toll the litigation has taken on the family.

Sexual misconduct concerns

Finally, in July 2017, D---- and Girlfriend's older daughter, E-----, told Father and Girlfriend that D------ and then six-year-old K---- had undressed and touched each other's genitals while playing at Father's house. Father and Girlfriend immediately talked to the younger children. D------ denied inappropriate contact with K----, and denied telling D---- there was any; she eventually suggested she and another child at school had shown each other their private parts. Father and Girlfriend explained to the girls it was wrong to touch each other this way, and that it was wrong to say they were if they were not. Father and Girlfriend did not report what D---- told them to DFS. Father also did not tell Mother about it. D---- did. Mother contacted the Division. A criminal investigation was opened and D------ and K---- were interviewed at the Children's Advocacy Center.

D------ denied sexual contact with K---- during her forensic interview. In the car afterward, Mother asked D------ why she had "not told what happened with K----?" D------ was surprised, admitted to Mother she and K---- had touched each other and suggested D---- was involved. Mother immediately returned the children to the Advocacy Center and reported D------'s statements to the investigating detective (and later, to D----'s therapist, Ms. Adams). D---- was then interviewed by Center staff and confirmed what she had told Father and Girlfriend: D------ had told her that she and K---- were touching each other, but she had not seen it. During her interview, D---- disclosed she had heard people talk about sex on television shows like "The Big Bang Theory" at Mother's house, but denied seeing people having sex anywhere. The criminal investigation was closed without criminal charges. The Division of Family Services has not contacted Father since the children's forensic interviews. Father and Girlfriend continue to make sure the children are always in earshot and check on them often when they are playing together.

D---- told the Court the same thing.

Mother hints Father's household is likely the source or reason for D------'s sexualized play. Mother asked D------ again shortly before the hearing where she had "seen sex." D------ mentioned a show at Father's house where people "undress." Mother testified she awoke one night when she and Father were married to find pornography playing on the television in their bedroom. She also searched and found pornography on Father's phone around the time she moved into a separate bedroom. Mother also attempted to establish Father's sister accused their father (D----, D------ and D----'s paternal grandfather) of sexually abusing her. The evidence stops well short of proving any inappropriate sexual behavior by Father, at his home or among his family. Father's adult use of pornography does not prove he has, or is likely, to expose his children to it. The children have mentioned seeing adult-themed shows, not pornography, at both their parents' homes—not surprising given its proliferation and the children's ages.

Finally, there is no evidence that the children's paternal grandfather has ever treated them inappropriately, sexually or otherwise, and Mother's evidence that he sexually abused Father's sister is based entirely on Father telling Mother his sister wrote a letter to that effect more than twenty years ago. Father's sister testified to deny writing such a letter. Even if she did, Mother herself acknowledges it was when Father's family was in turmoil over his sister's decision to marry a much older man, raising doubt about the truthfulness of any accusation she did make. Most compelling, D----, D------ and D---- spent significant time in their paternal grandparents' care when Father and Mother were married. The Court is satisfied Mother would not have permitted this had she herself believed her former father-in-law presented any risk to them.

Additional findings are included in the Discussion below.

LEGAL STANDARD AND ANALYSIS

Mother and Father's Petitions request an initial determination of the children's custody and care arrangements. The Court determines a child's legal custody and residential arrangements according to what is in the child's best interests, a decision made after considering all relevant factors, including several specific ones identified by statute.

DEL.CODE ANN. tit.13, §§ 722(a) and 722(b)(2009).

(1) The wishes of the child's parent or parents as to his or her custody and residential arrangements.

The parties' positions at the hearing were slightly different than in their pleadings. As the Court understands it, Mother requests sole legal custody of the children, or at least final decision making authority over educational and extracurricular decisions concerning them. Father asks that he and Mother maintain joint legal custody of the children, but that he have final decision-making authority over their educational and extracurricular activities. Mother wants the children to live primarily with her, particularly during the school week. Father requests a shared placement arrangement on a 2-2-3 schedule (two nights with one parent, followed by two nights with the other, followed by three overnights on alternating weekends). If shared placement is awarded, Mother agrees that a 2-2-3 schedule (versus, for example, week-on, week-off) would be best for the children, particularly given D------ and D----'s ages. And, of course, Mother and Father each want all three of the children to attend school in the school district in which they reside—Caesar Rodney for Mother and Lake Forest for Father. Mother and Father's wishes explain the litigation, but do little to help resolve it.

(2) The wishes of the child as to his or her custodian or custodians and residential arrangements.

The Court has already noted that D----, D------ and D---- are happy and well-adjusted. They are also out-going, enthusiastic and emotionally open. All know that their Mother and Father do not get along. Nonetheless, each was comfortable sharing good and bad things about both their parents, and the pros and cons of their respective households. For these reasons, the Court discounts Mother and Father's concerns that any of the children are being improperly influenced by the other parent and accords significant weight to the children's statements and wishes

D------ and D---- like their schools, like spending time with both Mother and Father and feel safe wherever they are. They do think their afterschool program is "a little boring" and runs too long; they look forward to being picked up early by Father. D---- confirmed that while she initially wanted to change schools, she quickly learned that she enjoyed Lake Forest better and wants to stay there. D---- also wants the 2-2-3 schedule Father suggests: she thinks it is "fairer" to Father and would be easier on Mother than the current one-or-two-day schedule. The Court is concerned that Father has discussed his child support obligation with D----: while D---- initiated the conversation, Father could have handled it better.

Finally, the Court detected no sense that D---- is afraid of Father or tries to protect him. D---- confirmed, for example, that Father yells more than Mother—and also that it does not particularly bother her and they are able to talk through their differences. Further proof of D----'s independence from Father is that she shares with Mother important information about is household, including the explosive news about D------ and K----'s sexual contact.

D---- knows Alana is fearful of Father and believes it is because she is intimidated by Father's stature. Father is very tall and solidly built. D---- shared nothing suggesting Father has done anything to otherwise cause Alana's discomfort.

(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.

D----, D------ and D---- told the Court they get along with each other "most of the time." Observing them, and considering the other evidence presented about them, the children appear to share a solid and typical sibling bond. D---- tends to look out for D------ and D----, not surprising given their age difference. D---- is "all about electronics," and while D------ is quieter, she is comfortable exerting herself to both her big sister and her brother. The children's other family relationships are discussed as follows:

Mother and Father. D---- shared that if she had a really big problem, she would go to Mother with it because she yells less than Father: for example, D---- recently got a bad grade and told Mother because she knew Father would be angry. Still, D---- confirmed she loves Father and feels safe with him. The twins agree Father yells but they like being with him and look forward to Father picking them up from their afterschool program. D------ does appear a little closer to Mother. Based on all the evidence, including Mother and Father's own admissions about the roles the other has played in the children's lives, the Court is satisfied the children share strong, healthy, loving bonds with both their parents.

This may be partly so they can go home early. Still, the twins trust Father to pick them up and the Court has no doubt they are also eager to see him, not just to leave aftercare.

Grandparents and other extended family. All the children's grandparents are living. Father has moved from the former marital residence; his parents have moved from their residence at the funeral home; and Mother's parents have moved from their home in Milford. All are now living in the same housing development near Harrington, Delaware, making it easy for the children to see all their grandparents when they are with Father. In the past, the children have spent more time with their paternal grandparents than with Mother's parents, mostly because of Father's role in his family business. The children nonetheless feel comfortable and secure with all their grandparents and are happy they all now live nearby. They also see Father's sisters, their aunts, for family gatherings and sometimes at the funeral home.

The children also shared they feel very safe at the funeral home and did not seem to experience it as a place of sadness or discomfort.

Mother's boyfriend and Father's girlfriend. Mother and Father have both been responsible about exposing the children to their new intimate relationships. D---- and D------ love Boyfriend, believe he and Mother get along "really well" and feel that he helps keep them safe; D---- particularly likes the way Boyfriend plays with him. Father's girlfriend is "a lot of fun," and despite Mother's concerns, Father and Girlfriend have maintained appropriate boundaries in their relationship in front of the children. In all, D----, D------ and D---- appear to be forming positive, sustaining bonds to their parents' new partners.

(4) The child's adjustment to his or her home, school, and community.

As noted, Father stayed in the former marital residence when he and Mother separated. Mother soon purchased a home in Dover and has remained there; Father recently moved to a new home in Harrington, not too much farther from Mother than where he previously lived. All three children have adjusted well to these changes: they have their own rooms and pets at both their homes. Under the existing schedule, the children are with Father each Sunday and typically attend church and Sunday school with him and his family.

D---- has attended school in the Lake Forest School District since kindergarten (except for the few weeks she transferred to Caesar Rodney at the beginning of the 2016-2017 school year.) She is now in the 6th grade, does well academically, has no special needs, presents no disciplinary concerns and has participated in many school-based activities, including drama club and playing the saxophone. D---- has played soccer with community clubs in Dover; while Mother is concerned that Father removed her from this activity, D---- explained her interest shifted to softball after a knee injury; she plans to play for her school team in the spring of 2018. By her own description, D---- has "lots of friends" including A----, who is very mature and inspiring to her, and M----- and E--------, with whom she attends school. Mother in particular has ensured D---- the opportunity to explore many different interests: she has attended a martial arts class and participated in a variety of S----- camps during her school break in 2017. Mother enrolled D---- in an afterschool 4-H program for the days she is in Mother's care; D---- enjoyed it at first, but finds it a little boring now.

D------ and D---- are now in first grade at Reilly Brown Elementary School in the Caesar Rodney School District. They are in separate classes, but next door to each other. Their kindergarten teacher credibly testified both children made "tremendous growth" their first year in school, academically and socially. While D------ is a little more emotional and required more help to separate from Mother, both twins made friends easily and were often used as peer models to their classmates. D---- continues to receive special education services and is making progress on his IEP goals. The twins like their school, but have mixed feelings about their afterschool program at the Boys and Girls Club: it was fun at first, but it makes their day long. According to D----, his "whole life is about technology"—namely, his phone and his tablet. D------ has participated in a gymnastics program and loves reading and fashion.

In short, all three children are well-adjusted to their homes and to their schools—even though they attend different Districts.

(5) The mental and physical health of all individuals involved.

There is no evidence that Mother, Father or any of the other adults important to the children have any mental or physical health concerns that impact their ability to care for the children. D---- is physically healthy but continues to receive special education services for some learning delays; he is making solid progress with additional classroom supports as developed in his IEP. D------ is more emotional and anxious than her siblings and has been experiencing some gastrointestinal issues. Otherwise, their kindergarten teacher confirmed the Court's impressions of the twins: they are sweet, well-behaved and social children.

D---- began therapy with Tara Adams in July 2016, but did not attend sessions from September 2016 until March 2017. Biweekly sessions then resumed, with Mother and Father alternating attendance with D----. Ms. Adams believes D----'s relationship with both her parents is "wonderful." There has been no indication in her treatment that D---- has been asked to keep secrets from Mother or from Ms. Adams. Rather, Ms. Adams persuasively testified D---- has begun to address the split loyalty issues flowing from her parents' separation and divorce and has begun to set appropriate boundaries to protect herself from their disagreements. D----'s pediatrician is also concerned she is overweight and Mother in particular is encouraging her to address this through additional exercise. Otherwise, D---- is also physically healthy.

Overall, the Court concludes Mother has a more nuanced understanding of D----'s special education needs and is more accepting than Father that D---- requires additional academic supports—a belief the evidence supports. D------ confirmed she feels a little closer to Mother and the Court is satisfied she requires regular contact with Mother more than D---- or D---- do. On the other hand, the evidence does not support Mother's concern that Father has too much influence on D---- because she is afraid of him. The Court is persuaded by Ms. Adams's testimony and its own interview that D---- is emotionally well-adjusted, has a strong, healthy relationship with both her parents, and sees both of them realistically and with surprisingly mature compassion and insight.

(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title.

In pertinent part, Section 701 of Title 13 provides that Father and Mother are "[t]he joint natural guardians of their minor child and are equally charged with the child's support, care, nurture, welfare, and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child's custody or any other matter affecting the child. If either parent should die, or abandon his or her family, or is incapable, for any reason, to act as guardian of such child, then, the custody of such child devolves upon the other parent. Where the parents live apart, the Court may award the custody of the minor child to either of them and neither shall benefit from any presumption of being better suited for such award."

Mother and Father each see the children about half the time. Each has been about equally respectful of the other's right to participate in decision-making for the children. Each has been forthcoming at times, each has failed to share information they should at other times, and each blames the other for their communication failures—all as demonstrated by their struggle over where the children would attend school in 2016. Without objection from the parties, the Court took notice of a Permanent New Support Order entered against Father on March 7, 2017. It directed Father to pay Mother $794.00 each month in support for the children. Father waited until the attachment of his wages took place to make payments under the Support Order. While Mother was concerned that Father's payments by wage attachment are delayed because his sister is the bookkeeper for the family business, account records from the Division of Child Support Services show a regular pattern of payments. Father also paid off accumulated arrearages once he learned about the balance during the hearing. In all, the evidence establishes each of the parties has largely complied with their responsibilities to the children, but have let their feelings about the other interfere with their co-parenting.

M----- v M-----, Del. Fam., C.A. No. CK15-02149, 16-06774, Jones, C., (March 7, 2017).

(7) Evidence of domestic violence as provided for in Chapter 7A of this title.

Mother contends Father has twice physically hurt D----, has disparaged Mother to the children and been emotionally abusive of her and the children in other ways. Father acknowledges he threw a television remote at D---- and struck her. According to D----, Father asked for the remote; she threw it at him and hit him; he threw it back and hit her. It hurt, D---- cried and Father apologized. Mother was upset when D---- told her about the incident the next day; D---- shared with the Court that she felt sorry for getting Father "in trouble" with Mother. Father also once grabbed D---- for misbehavior, leaving finger bruising on her arm, during the time he and Mother still lived together. Mother was in another room during the incident; she took a picture of D----, but did not seek treatment for her or report the incident as abusive. While unwise, Father's physical discipline has not been so excessive as to limit his rights concerning the children.

The Court has already found that Father sometimes yells at the children, either in anger or as a form of discipline. Father admits he referred to Mother as "dumb mother" in a conversation with D----; given that he denied saying this until confronted with the existence of an audio recording, the Court also finds credible Mother's testimony about some of the other things Father has called her, including "stupid" and "trailer trash." Father continued to call Mother "phat'" after she told him she did not like it, and briefly identified Mother's cell phone number as "My Bitch," a message his friends once heard when Mother called Father.

On the other hand, Mother has herself used physical discipline with the children, including spanking and kicking D---- in the buttocks. In an incident at D----'s school, D---- wanted to go home with Father after a band concert; Mother attempted to remove him from Father's vehicle over Father's objection and with D----'s friends present. Mother has also yelled at Father in anger, and has called him an "idiot" in front of the children. Mother has told Father he was "sick" and an "ignorant ass" in text messages, and told staff to "look for the creepy guy" to pick up D---- from fashion camp.

In short, the evidence shows that the parties had an unsuccessful and unhappy marriage, at least near its end, and both have engaged in unloving and unkind treatment of the other. It stops short of showing that either Father or Mother exerted the sort of controlling, coercive behavior that would interfere in their ability to share custodial rights or make them unsafe caregivers for the children.

(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.

Mother and Father have no criminal history that impacts their ability to care for their children.

*****

In weighing these factors, the Court is particularly swayed by the positive adjustment D----, D------ and D---- have made to their schools, to their homes with each of their parents and to their community under the temporary Placement Order (factor 4). They also have healthy, positive relationships with their family members on both sides of their family and with Mother and Father's new partners (factor 3). Mother has done more to promote the twins' educational needs, particularly D----'s special education needs, and this factor weighs in support of Mother's request that he and D------ remain in the Caesar Rodney School District. D----'s request to remain in the Lake Forest School District is entitled to significant weight: but for a brief time, she has always attended school in Lake Forest and is happy there and doing well.

Father and Mother have both exposed the children to their conflict. The Court hopes this will abate with the pain of their divorce and the difficulties of litigation. To speed that process, the Court will also require the parties to participate in a brief period of co-parenting counseling to enhance the many strengths they have as parents. The record also supports Ms. Adams's assessment that D----, who has been exposed to more than her siblings, has begun to separate herself from her parents' conflict, and that D------ would also benefit from counseling to help her toward that end. Finally, D---- gave thoughtful, mature reasons for her desire to continue to share her time with her parents. For this reason, the Court also gives significant weight to the schedule D---- prefers, D------ and D---- also confirming they want to continue to spend lots of time with each of their parents (factor 2). For these reasons, Mother and Father will continue to share joint legal custody of the children; Mother will be permitted to continue the twins in the Caesar Rodney School District; D---- will continue in the Lake Forest School District; and the children will share their time between Mother and Father's household on a 2-2-3 schedule.

PETITION FOR RULE TO SHOW CAUSE/SPECIFIC PERFORMANCE

Mother's Petition for Rule to Show Cause/Specific Performance was filed shortly before D------ and D---- began kindergarten. It asserts Father tried to enroll the twins in his district of residence even though they were living primarily with Mother and was manipulating her, the children and the visitation schedule to make it appear as though they lived mostly with him. The Petition asserted the children needed counseling; Father needed an evaluation; and the parties needed a more secure location for visitation exchanges. Father filed an Answer which denied Mother's allegations; levelled similar allegations against her; and indicated he had already agreed to counseling for the children.

To the extent Mother requested Specific Performance of the Placement Order, the Petition was resolved by the entry of the School Order. To the extent Mother still seeks a finding of contempt against Father, she must establish the following by clear and convincing evidence:

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.

Watson v
. Givens, 758 A.2d 510, 512 (Del. Fam. Nov. 10, 1999) (citing sources).

Here, there is no dispute about the validity of the Placement Order: it was entered with Mother and Father's consent and was in effect at the times important to Mother's Petition. Father does not deny he had the ability to follow the Placement Order: he asserts that he did follow it. Paragraph 18a. of the Placement Order permits the parties to change the children's schedule by mutual agreement. The evidence presented at the hearing confirms that Mother and Father were often able to make such changes, often at the children's own requests. Father and Mother were struggling to implement their respective wishes about the children's education in the S----- of 2016. The evidence does not establish, however, that Father coerced or bullied Mother, or the children, to stay with him when they should have been with Mother. Finally, the Placement Order did not expressly give Mother or Father the right to enroll the children in one school district or another. To the extent Mother had the authority to enroll the children in her district of residence because they were with her more often, her right arose from the education laws, not the Placement Order. Because the evidence does not clearly establish a violation of the Placement Order, Mother's Petition for Rule to Show Cause/Specific Performance will be denied, as will be the parties' respective requests for fees and costs related to it.

See DEL. CODE ANN. tit. 14, § 202(e)(1)(2015). --------

ORDER

IT IS HEREBY ORDERED that the legal care and custody of D---- C. M-----, born on July 18, 2006, and her brother and sister, twins D---- E. M----- and D------ M. M-----, born on November 28, 2010 is awarded jointly unto S----- L. M----- ("Mother") and C-------- E. M----- ("Father").

IT IS FURTHER ORDERED that Mother and Father shall share the children's placement on a rotating schedule in which the children are with one parent on Monday and Tuesday; with the other parent on Wednesday and Thursday; and with the other parent on alternating Friday, Saturday and Sundays. Visitation exchanges shall occur at the Arby's Restaurant in Woodside, Delaware.

IT IS FURTHER ORDERED that notwithstanding their other joint custodial authority, Father may continue to enroll D---- in the Lake Forest School District so long as she is eligible to attend there, and Mother may continue to enroll D------ and D---- in the Caesar Rodney School District so long as they are eligible to attend there. Unless Mother and Father both expressly agree otherwise, the children shall be enrolled in activities and after school care within their respective school districts.

IT IS FURTHER ORDERED that D---- shall continue in counseling with Tara Adams or a similar provider until the counselor recommends. To the extent not already begun, D------ shall begin counseling with Ms. Adams or a similar provider and continue until the counselor recommends.

IT IS FURTHER ORDERED that Mother and Father shall attend and participate in at least six (6) sessions of co-parent counseling as further directed by the counselor. Mother shall give Father a list of three suggested co-parent counseling providers within thirty (30) days of this Order. Father shall select a provider from the list and notify Mother of his selection within ten (10) days thereafter. Mother shall then contact the provider Father selected to arrange an initial appointment. The parties shall share the cost of co-parent counseling evenly (50/50).

IT IS FURTHER ORDERED that paragraphs 3 through 18 of the Interim Stipulation and Order for Custody and Visitation dated March 15, 2016 are incorporated herein.

IT IS FURTHER ORDERED that Mother's Petition for Rule to Show Cause/Specific Performance is DENIED.

IT IS FURTHER ORDERED that all requests for attorney's fees and costs are DENIED.

SO ORDERED this 9th day of APRIL, 2018.

__________

/s/
LOUANN VARI, JUDGE LV:mg Date distributed: __________
cc: Counsel