The date of the filing of a petition for modification of a custody order can be important for many reasons. For example, it sets the burden of proof. It can also provide parameters for the arguments at trial. Consider the recently decided case of Newman v. Newman, No. 119, 2016 (Nov. 29, 2016).
Michael Newman and Sarah Newman are the parents of two children. After their divorce in 2010 the Newman's were party to a series of child custody orders. These orders include a stipulation entered on January 26, 2011, a stipulation dated August 7, 2012 ("2012 Order") and an order dated March 20, 2013 ("2013 Order"), which was entered after a hearing on the merits. The 2013 Order provided that the parties would have joint legal custody and shared residential placement of their children. A short time later, on August 27, 2014, Mr. Newman filed a petition to modify the 2013 Order. The Family Court held a hearing on his petition. Both parties appeared for the hearing and provided testimony. In addition, the Court interviewed the children. In its twenty-six-page opinion dated February 15, 2016 ("2016 Order"), the Family Court denied Mr. Newman's petition. Mr. Newman appealed the 2016 Order.
In his appeal Mr. Newman raised two arguments. First, he appeared to argue that the Family Court erred in its ruling because it did not enforce a provision of the 2012 Order. The Supreme Court dispatched that argument concluding that "[a]ny issues related to the 2012 custody order are moot ... because the 2012 judgment was superseded by the 2013 order and the 2016 order, which is currently before the Court on appeal." Id. at *3.
Mr. Newman also argued that with regard to the 2016 Order the Family Court erred when it did not accept his evidence that Ms. Newman had been evicted from several properties, her utilities had been cut off with some frequency, that she was causing the children stress by making false allegations in custody proceedings and that the children's grades were declining. Id. at *3. This argument was similarly unsuccessful.
The Supreme Court noted that because Mr. Newman's petition was filed within two years of the entry of the 2013 Order Delaware law provides that the Family Court "shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child's physical health or significantly impair his or her emotional development." Id. at *3 – 4. The Supreme Court was mindful that based on the evidence presented at the hearing the Family Court found that,
[a]lthough [Ms. Newman] had moved several times in a short period, she had never been homeless or subjected the Children to inappropriate housing arrangements. The court noted that, while both parties cared for the Children, their joint conduct contributed to the Children's feelings of anxiety and their fluctuating grades. In ordering the parties to maintain joint custody with shared residential placement, the Family Court gave great weight to the Children's expressed wishes to continue the existing custody arrangement so that they could spend equal time with both of their parents.
Id. at 5.
The Court held that the Family Court's findings were supported by the record. Further, the Court held that the Family Court properly applied the law to the facts of the case in reaching the conclusion that Mr. Newman did not meet his burden to establish that continued enforcement of the March 2013 Order endangered the children's physical health or significantly threatened their emotional development.
The decision may be read in its entirety here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
