Morrisey v. Morrisey
Morrisey v. Morrisey
Opinion of the Court
A father filed a motion to modify a child custody and visitation agreement in the Family Court. The trial judge denied the father’s motion, holding that contract principles govern the agreement and bar the trial court from modifying unambiguous contract language. On appeal, the father claims that the trial judge erroneously applied contract principles to a custody and visitation agreement instead of applying the best interests of the child test as required under 13 Del. C. § 722. Since the modification requested here should have been reviewed under the best interest of the child test, we reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
Kenneth Morrisey and Lorraine Morri-sey have been divorced and sharing custody of their three children since 2008. The original custody and visitation agreement did not allow for international travel and the father wanted to travel to Scotland and Jamaica with the children. After negotiation, the parties modified the visitation agreement to allow either parent to travel with the children outside the United States, so long as they visited only countries that were signatories to the Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Also, under the modification, the children could not be taken to countries where the United States government had issued travel restrictions or warnings. When the Family Court judge approved the modification, the parties could not agree on whether the father could take the children to Jamaica, which was not a signatory to the treaty and had previously been subject to travel warnings. The agreement stated, “the parties shall continue to address the issue of traveling to Jamaica on their own, and will attempt to reach an agreement to allow Father to travel to Jamaica by next summer.”
Six months after the modification, the parties still had not reached an agreement on whether the children could travel to
II. DISCUSSION
In this appeal we are asked to determine whether a motion to modify a custody and visitation agreement, which contemplated change, should be reviewed based on the contractual analysis set forth in Rockwell v. Rockwell
As an initial matter, we recognize the importance of encouraging parental agreements on child custody and visitation. Among other benefits, parental agreements provide predictability and consistency. However, contract principles do not bar a court from modifying parental agreements on visitation issues when the contesting party can meet its burden of persuasion and proof. Therefore, we hold that the party requesting the modification of a parental agreement concerning child visitation carries the burden of proving by a preponderance of the evidence that the agreement should be modified because the agreement, as written, is not currently in the best interest of the child. If this burden is met, then a Family Court judge must modify the visitation agreement to satisfy the best interest of the child test as set forth in 13 Del. C. § 722.
A. The Family Court Can Review the Right to Travel with One’s Children Because Travel Falls under the Manner of Visitation.
The Family Court has the authority under 13 Del. C. § 1519 to modify Court Orders regarding child support, custody and visitation, and alimony.
For instance, in Peterson v. Simpler we upheld a Family Court order which applied the child’s best interest test to the manner of visitation and concluded that a child’s extracurricular activities should not be interrupted regardless of where the child lives. Therefore, the court ordered that the mother had to take her son to T-ball activities on Saturdays.
Also, in Prodromidis v. Burman we held that Family Court judges had the power to modify the parties’ child custody order at any time in the best interest of the child.
A visitation schedule includes not only when visitation occurs but also how it occurs. Therefore, a Family Court judge has discretion to resolve conflicts over travel with one’s children because travel is an integral part of parental visitation rights.
B. Delaware Statutes Require that the Best Interest of the Child Test be used to determine Child Visitation Agreement Modification Requests.
Statutory language identifies that the best interest of the child test controls the review of a visitation modification request. As stated above, the Family Court has the authority under 13 Del. C. § 1519 to modify Court Orders regarding visitation.
When the trial judge conducts the best interest of the child test review, the contract is still relevant and the trial judge should consider it. For instance, the agreement shows the wishes of the parties at the time the agreement was made. Furthermore, the agreement at issue here presents a special situation because the agreement itself contemplated that the circumstances could change. Specifically, permission to travel with the children could change based on Hague Convention signatories and United States travel restrictions. Also, the parties themselves specifically contemplated change regarding travel to Jamaica. According to the agreement, “the parties shall continue to address the issue of traveling to Jamaica on their own, and will attempt to reach an agreement to allow Father to travel to Jamaica by next summer.”
The contract is also relevant under the best interest of the child test analysis because the moving party must show that the existing agreement is currently not in the best interest of the child. If the movant fails to meet this burden then the modification is not appropriate and the agreement should be enforced as written.
C. Rockwell Is Distinguishable and Therefore Inapplicable.
The mother argues that Rockwell ’s contractual analysis should apply to agreements for child custody and visitation agreements the parties negotiate, draft and sign. However, Rockwell’s contractual analysis applies to, and only resolves, modification requests for certain types of alimony agreements. Since the issue here does not involve an alimony agreement, Rockwell does not apply. In Rockwell the parties entered into a separation agreement which provided that husband would
Rockwell is not applicable to custody and visitation agreements. Our holding in Rockwell is limited to agreements made by the parties regarding alimony.
III. CONCLUSION
For the foregoing reasons, the judgment of the Family Court is reversed and remanded for action consistent with this Opinion.
. App. to Opening Brief at A-9.
. 681 A.2d 1017 (Del. 1996).
. Potter v. Branson, 2005 WL 1403823, at *2 (Del. June 13, 2005).
. Hunter v. Hunter, 2006 WL 3455213, at *7 (Del. Nov. 30, 2006).
. L.M.H. V. D.S.H., 2005 WL 3662348, at *2 (Del.Fam. June 14, 2005).
. Ellis v. Ellis, C.A. No. 07-03739, at *2 (Del. Fam. Apr. 23, 2008) (Letter Decision & Order).
.Id.
. Id.
. In re the Marriage of N.F.B. and L.E.B., 2003 WL 22476194, at *1 (Del.Fam. Sept. 15, 2003) (holding child could not travel with the mother to Paraguay after reviewing the mother’s request under the best interest of the child analysis.)
. 2004 WL 77865, at *1 (Del. Jan. 15, 2004).
. 2004 WL 300456, at *1-3 (Del. Feb. 9, 2004) (Order).
. L.M.H. v. D.S.H., 2005 WL 3662348, at *2 (Del.Fam. June 14, 2005).
. 13 Del. C. § 1519(a)(2).
. 13 Del. C. § 728 (emphasis added).
. 13 Del. C. § 729(a) (emphasis added).
. 13 Del. C. § 722(a) (emphasis added).
. 13 Del. C. § 722(a) states, “The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including: (1) The wishes of the child’s parent or parents as to his or her custody and residential arrangements; (2) [t]he wishes of the child as to his or her custodian or custodians and residential arrangements; (3) [t]he 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; (4) [t]he child’s adjustment to his or her home, school and community; (5) [t]he mental and physical health of all individuals involved; (6) [p]ast and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title; (7) [ejvidence of domestic violence as provided for in Chapter 7A of this title; and (8) [t]he 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.”
.App. to Opening Brief at A-9.
. 681 A.2dat 1018.
. Solis v. Tea, 468 A.2d 1276, 1280 (Del. 1983) (holding that the Family Court may reform a parent’s contractual obligation for child support upon an appropriate showing. We refused to interpreted section 1519(a)(4) to control a separation agreement which required the ex-husband to provide children with a private school education. We stated, "we find clear legislative intent to restrict the scope of § 1519 to the revision of support and alimony payments contained in judicial decrees, orders or separation agreements merged therewith.” We pointed out, "since the focus of this dispute is an educational clause for the children’s benefit, the 'best interest of the child’ rule governs this case” regardless of the contractual agreement of the parties. Therefore the "agreement will be evaluated according to a ‘best interests of the child’ criteria with the terms of the contract being enforced only where they appear to be reasonable and fair.”) Solis was decided pri- or to, but not overruled by, Rockwell.
Reference
- Full Case Name
- Kenneth W. MORRISEY, Below v. Lorraine B. MORRISEY, Below
- Cited By
- 1 case
- Status
- Published