Kenneth W. Morrissey v. Lorraine B. Morrisey

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 Morrisey 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.”1



Six months after the modification, the parties still had not reached an

agreement on whether the children could travel to Jamaica. At this time, the father

petitioned for a second custody modification, requesting that the children be

allowed to travel to Jamaica with him. After a hearing, the Family Court judge

denied the father's petition and held that contract principles govern court orders

which are entered into by stipulation or agreement. The trial judge also held that

contract principles do not permit a trial court to modify an agreement unless the

contract language is ambiguous. The father filed a Motion for Reargument arguing

that the modification request should have been determined by applying the best

interest of the child test. The Family Court judge denied the father's Motion for

Reargument; this appeal followed.



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. Rockwell2 or by the

statutory best interests of the child test. We review a trial judge's denial of a

motion to modify a child custody and visitation order for abuse of discretion.3

However, questions of law, including matters of statutory interpretation, are

reviewed de novo.4 Since resolution here requires statutory interpretation, we

review de novo.



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.5 Travel

during parental visitation time is an issue that concerns visitation and therefore

subject to judicial review. When parents have joint custody, the parents must

communicate and try to reach an agreement regarding the major decisions

concerning their children.6 If the parents cannot agree on the determination of a

major decision, the parties can submit their dispute to a court for resolution.7 In

Ellis v. Ellis, a Family Court judge declared that travel constitutes a major

decision.8 Other Family Court judges have also resolved the issue of whether

children in a joint custody arrangement could travel with one parent.9 We have

previously supported trial judges' discretion concerning determinations made

regarding the manner of visitation.



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 Tball

activities on Saturdays.10 Mandating that one parent had to do certain things

during that parent's time with the child is an example of the court determining a

manner of visitation.



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.11 The father wanted to travel with his daughter to Greece, but her mother

refused. The father filed a Motion for an Emergency Ex Parte Order and Rule to

Show Cause for the mother's refusal. The father left the United States before the

scheduled hearing. At the rescheduled hearing the Family Court judge found that

the father had not met his burden and dismissed his motion for a Rule to Show

Cause. The court also, sua sponte, entered a temporary order permitting the father

to have liberal visitation with his daughter in Delaware but denying him

permission to take his daughter to Greece. We held the Family Court judge did not

abuse his discretion by limiting where visitation could occur until a full hearing

could be held and completed.



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.12 Subsection (a)(2) of § 1519 states that custody or visitation

agreements should be modified or terminated "only as provided in Chapter 7 of

this title, or otherwise.”13 Sections 722(a), 728(a), 728(c), and 729 of Chapter 7

cover custody and visitation. According to § 728, "the court may modify a

parent's custodial authority if it believes that it is in the best interest of the

children.”14 Also, § 729 states, "[a]n order concerning visitation may be modified

at any time if the best interest of the child would be served thereby in accordance

with the standards set forth in §728(a) . . . .”15 Finally, 13 Del. C. § 722(a) states,

"[t]he Court shall determine the legal custody and residential arrangements for a

child in accordance with the best interests of the child.”16 The statute then lists the

eight best interest factors that the court must consider.17 The statutory language is

clear and unambiguous that the best interest test must be applied for decisions

involving child custody and visitation. Therefore, the best interest test must be

applied during judicial review of a modification request.

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.”18



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 pay wife alimony.19 The agreement also stated that the terms of the

agreement could not be modified or waived except by a writing signed by both

parties. Upon dissolution of the marriage, a Superior Court judge incorporated the

parties' separation agreement into the final divorce decree. Seventeen years later,

the former wife filed a petition for modification of alimony alleging that there had

been a substantial change in circumstances justifying an increase in alimony. A

Family Court judge granted the modification after concluding that the Family

Court had jurisdiction to modify the agreement and that former wife proved a

substantial change in circumstances. On appeal we reversed and remanded,

holding that when the parties agreed to the original alimony provision that

agreement can only be modified in accordance with contract principles. On the

other hand, when alimony has been judicially determined, then the statutory

standard of real and substantial change governs. In reaching this determination, we

interpreted 13 Del. C. § 1519(a)(4) and § 1519(b), which addresses only the

modification or termination of alimony.



Rockwell is not applicable to custody and visitation agreements. Our holding

in Rockwell is limited to agreements made by the parties regarding alimony.20



Because alimony does not directly affect the children, we decline to extend

Rockwell's contract principles analysis to parental agreements involving child

visitation.



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See: http://courts.delaware.gov/opinions/%28sbeil3yi1m2kwcrcmuqdoj55%29/download.aspx?ID=171430

For the foregoing reasons, the judgment of the Family Court is reversed and

remanded for action consistent with this Opinion.