IN THE SUPREME COURT OF THE STATE OF DELAWARE
PAIGE WORTHINGTON,1 §
§ No. 499, 2016
Respondent Below, §
Appellant, § Court Below—Family Court
§ of the State of Delaware
v. §
§ File No. CK15-01875
GAVIN E. BACHMAN, § Petition No. 15-29606
§
Petitioner Below, §
Appellee. §
Submitted: March 24, 2017
Decided: May 31, 2017
Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.
ORDER
This 31st day of May 2017, upon consideration of the opening brief and the
record below, it appears to the Court that:
(1) The appellant, Paige Worthington (“the Mother”), filed this appeal
from an August 23, 2016 Family Court order granting the petition for custody filed
by the appellee, Gavin E. Bachman (“the Father”), and denying the Mother’s
counterclaim for custody and relocation and a September 14, 2016 order denying the
Mother’s motion for reargument. We conclude that the Family Court did not err in
awarding the parents joint custody and shared residential placement of their son, but
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
did err in failing to enter a daily or weekly residential schedule and vacation schedule
in the event the parties were unable to agree upon a schedule. Accordingly, we
affirm in part and reverse in part.
(2) The parties are the parents of a three-year old son (“the Child”). On
September 18, 2015, the Father filed a petition for custody. The Father sought shared
custody of three days a week and full custody if the Mother moved out of state. In
her answer and counterclaim to the petition, the Mother sought residential and
primary custody of the Child. The Mother also requested permission to relocate to
Florida with the Child. In an interim consent custody order, the parties agreed to
joint custody with the Father having the Son for two overnight visits every week and
every other weekend.
(3) The Family Court held a hearing on the Father’s petition on June 29,
2016. The Family Court heard testimony from the parties, the maternal
grandmother, and the girlfriend of the Mother’s brother. In an order dated August
23, 2016, the Family Court concluded that it would be in the Child’s best interests
for the Mother and the Father to have joint custody and shared residential placement.
The Family Court denied the Mother’s petition to relocate with the Child to Florida,
finding that the negative impact of the relocation on the Child’s relationship with the
Father outweighed the benefits of relocation and would not be in the Child’s best
interests.
2
(4) On September 2, 2016, the Mother filed a motion for reargument. The
Father filed his response to the motion on September 13, 2016. The Family Court
denied the motion for reargument on September 14, 2016. This appeal followed.
(5) This Court’s review of a Family Court decision includes a review of
both the law and the facts.2 Conclusions of law are reviewed de novo.3 Factual
findings will not be disturbed on appeal unless they are clearly erroneous.4
(6) Under Delaware law, the Family Court must determine legal custody
and residential arrangements for a child in accordance with the best interests of the
child. The criteria for determining the best interests of a child are set forth in 13 Del.
C. § 722.5 In deciding a request for permission to relocate with a child, the Family
Court may, but is not required to, consider the factors set forth in the Model
Relocation Act.6
2
Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
3
Id.
4
Id.
5
The best interest factors include: (i) the wishes of the parents regarding the child’s custody and
residential arrangements; (ii) the wishes of the child regarding her custodians and residential
arrangements; (iii) the interaction and interrelationship of the child with her parents, grandparents,
siblings, persons cohabitating in the relationship of husband and wife with a parent of the child,
and any other residents of the household or persons who may significantly affect the child’s best
interests; (iv) the child’s adjustment to her home, school, and community; (v) the mental and
physical health of all individuals involved; (vi) past and present compliance by both parents with
their rights and responsibilities to the child under 13 Del. C. § 701; (vii) evidence of domestic
violence; and (viii) the criminal history of any party or any resident of the household. 13 Del. C.
§ 722.
6
Potter v. Branson, 2005 WL 1403823, at *2 (Del. June 13, 2005) (holding the Family Court has
discretion to consider additional factors like the Model Relocation Act factors as long as it
considers the mandated Section 722 factors). The Model Relocation Act factors include: (i) the
nature, quality, extent of involvement and duration of relationship of the child with each parent;
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(7) On appeal, the Mother first argues that the Family Court’s decision was
not the result of an orderly and logical deductive reasoning process. Specifically,
the Mother contends the Family Court’s analysis of the Section 722 and Model
Relocation Act factors failed to consider that the Father’s testimony was
uncorroborated, Mother had previously lived in Florida for six years, the Father was
aware the Mother wished to move to Florida before the Child was born, the Mother
had family in Florida, the Child’s siblings would be relocating to Florida with the
Mother, the Mother was scheduled to take the Florida Real Estate Brokers License
test, and there would no need for the Mother to obtain daycare in Florida because
she could set her own schedule as a real estate broker. The Mother also notes that
the Child has extensive contact with numerous relatives on her side of the family,
while the Father testified that the Child only had limited contact with one of his
relatives (his adult daughter). The Mother further contends the Family Court should
have given more weight to the fact that the Father had not obtained a bed or room
for the Child until shortly before the June 29th hearing. The Mother also emphasizes
(ii) the age, developmental stage, needs of the child, and the likely impact the relocation will have
on the child’s physical, educational, and emotional development; (iii) the feasibility of preserving
the child’s relationship with the non-custodial parent; (iv) the child’s preference, considering age
and maturity level; (v) whether there is an established pattern of the person seeking relocation
either to promote or thwart the child’s relation with the other parent; (vi) whether the relocation of
the child will enhance the general quality of life for both the party seeking the relocation and the
child, including but not limited to financial, emotional, or educational opportunity (including
cultural opportunities and access to extended family); (vii) the reasons for seeking relocation; and
(vii) any other factor affecting the interest of the child. Proposed Model Relocation Act § 405, 10
J. Am. Acad. Matrim. Law 1, at *18 (1998).
4
that the Father has a good relationship with the Child due to the Mother’s flexibility
in the face of the Father’s constantly changing work schedule and that she would
make sure the Child had frequent contact with the Father if she relocated to Florida.
(8) After a careful review of the Mother’s arguments and the record, we
find no error or abuse of discretion in the Family Court’s ruling. The Family Court
correctly applied the law and considered the best interest factors under 13 Del. C. §
722. The Family Court concluded that joint custody and shared residential
placement was in the best interests of the Child because the factors did not weigh
heavily in either party’s favor and both the Mother and the Father appeared able to
provide a loving, supportive relationship for the Child. As to the Mother’s request
to relocate to Florida with the Child, the Family Court recognized there were some
benefits to the proposed relocation, but that those benefits were outweighed by the
negative impact of the relocation on the Father’s relationship with the Child.
(9) The Mother’s disagreements with the Family Court’s findings do not
justify reversal of its decision. It is apparent from the Family Court order that the
Family Court carefully reviewed the evidence before it, made factual findings that
are supported by the record, and applied the correct legal standard. When the
determination of facts turns on a question of credibility and the acceptance or
rejection of the testimony of witnesses appearing before the trial judge, this Court
5
will not substitute its opinion for that of the trial judge.7 We must therefore defer to
the Family Court’s decision that it was in the Child’s best interests for the parents to
have joint custody and shared residential placement.8 We also find no error in the
Family Court’s denial of the Mother’s motion for reargument.
(10) Finally, the Mother argues that the Family Court erred in not specifying
a complete visitation schedule between the parents and the Child as required by 13
Del. C. § 728(a). The Family Court encouraged the parents “to create an agreed
equitable written visitation schedule that fits their circumstances and their child’s
life, with the following serving as a schedule when the parents cannot agree.”9 The
schedule entered by the court covered holidays, birthdays, and school breaks, among
other things, but did not provide a daily or weekly residential schedule or vacation
schedule in the absence of the parties’ agreement. The Family Court should enter a
daily or weekly residential schedule and vacation schedule to apply if the parties
cannot agree on a schedule.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED in part and REVERSED in part. The matter is REMANDED
7
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
8
See, e.g., Price v. Boulden, 2014 WL 2014 WL 3566030, at *9 (Del. July 14, 2014) (deferring to
the Family Court’s decision where the record reflected that the Family Court made factual findings
supported by the record and applied the correct legal standard); Clark v. Clark, 47 A.3d 513, 517–
21 (Del. 2012) (deferring to the Family Court’s factual finding that a custody arrangement was in
the best interests of the children).
9
G.B. v. P.W., File No. CK15-01875, Petition No. 15-29606, Order at 6 (Del. Fam. Ct. Aug. 23,
2016).
6
to the Family Court to enter a daily or weekly residential schedule and vacation
schedule. Jurisdiction is not retained.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
7