Tuesday, April 11, 2006
The Delaware Supreme Court affirmed a trial court's decision to continue an alternating year placement of a child between parents in two states, denying Father's petition to modify the stipulated arrangement. The opinion clarifies two important aspects of review of this type of case.
First, Father had argued that the trial court erred in failing to consider six non-statutory factors developed by case law to be applied in shared custody cases.
The Father's first argument is that the Family Court failed to consider its own mandatory precedents, which require the consideration of six non-statutory factors in determining whether a shared placement arrangement is appropriate in a joint custody decree. Those factors are:
"(1) that the parents communicate effectively; (2) that the children need not make adjustments from one parent's home to the other's because the parents have a "uniform pattern of child rearing;" (3) that the parents are flexible; (4) that it would be beneficial for the children; (5) that the children are biologically and physically capable of making such a change; and (6) that there is uniformity in the children's education and religious upbringing."
The court held, however, that these non-statutory factors are always discretionary considerations - only statutory factors must be considered.
Second, the court noted that these factors were inapplicable to the custody arrangement here, distinguishing alternating primary placement from shared placement. The court affirmed the authority of the trial court to order custody alternating the child's primary residence on an annual basis. However, the court noted that a review of the case law from other states indicates that "such arrangements are unique and constitute an exception to the general preference for one continuous primary placement even when custody is joint."
Mundy v. Devon, 2006 Del. LEXIS 162 (April 6, 2006)
Opinion on the web (last visited April 10, 2006 bgf)