Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, January 17, 2006

Case Law Development: Delaware Supreme Court Affirms Trial Court's 2-2-3 Parenting Plan and Transfer of Medical Decision-making to Third Party

The Delaware Supreme Court affirms a trial court’s denial of Mother’s motion to modify custody in a case involving a 2-2-3 parenting plan and a transfer of medical decision-making to a health institution. 

The trial court's original order, entered upon the parent's stipulation, provided that the couple's two children (7 and 9 years old) would spend alternate two days, plus the entire weekend with each parent, e.g., Monday and Tuesday with Father, Wednesday and Thursday with Mother,  Friday through Sunday with Father, the following Monday and Tuesday with Mother, etc.  The original order also required all family members to attend counseling. After counseling failed to improve parent's ability to communicate and cooperate with one another and continued disagreements over issues relating to the children's healthcare and extracurricular activities, mother moved for sole legal custody.  Father answered, requesting the same.

The shared custody arrangement originally entered by the trial court is increasing appearing in parenting plans across the country as it gives exactly equal parenting time for both parents.   However, as the testimony of three different experts in this case proved, the constant shifting of this custody arrangement is stressful for the children.  Nonetheless, the trial court maintained the 2-2-3 schedule, but provided some greater clarity by ordering that Mother would always have Mondays and Tuesday and Father always would have Wednesdays and Thursdays, with parents alternating the weekend.   The court gave great weight to the children’s wishes to continue the shared custody arrangement, and to the testimony of experts that the children were “thriving under the current shared arrangement,” so that the Supreme Court found no error.

The court also affirmed the trial court’s resolution of the primary issue over which the parents had been disagreeing: the health of their son.  The parents could not agree on whether their son had asthma nor whether he should receive medication for a diagnosed behavioral disorder.  Rather than grant medical decision-making custody to either parent, the trial court ordered that legal medical custody should remain joint, and that “all disputes over treatment will be submitted to the Alfred I. DuPont Institute doctors, whose recommendations shall be followed.”  The Supreme Court upheld the trial court’s resolution: “Given the depth and intensity of the parents' disagreements, and the parents' inconsistent treatment of Hunter's medical issues, the Family Court's solution was orderly and logical….” The Supreme Court found no error in the trial court’s refusal to hear additional witnesses from Mother designed to prove her view of the child’s medical condition, given that the trial court had removed medical decision-making from either parent.

Poe v. Poe, 2006 Del. LEXIS 9 (January 10, 2006)
Opinion is available on the web (last visited January 17, 2006 bgf)

Custody (parenting plans) | Permalink


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