Johns v. Cioci

865 A.2d 931 (2004)

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Nature of the Case

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Facts

Jones (M) and Cioci (F) were divorced in Delaware in 1994 after four years of marriage and one child. They shared legal custody, with M having primary physical custody, and F having partial physical custody. M moved to Pennsylvania with permission of the Delaware court, but F has continued to reside in Delaware. M's current husband accepted new employment in Virginia in January 2004. M now wishes to relocate to that state with the child. F filed a petition to modify custody, and M filed a petition for relocation. The proposed new home in Virginia is approximately two hours from F's approximately a doubling of the distance between their current residences. M and F met with Dr. Mapes as part of the custody evaluation. Dr. Mapes had detected no mental pathology in either party. At trial, a good number of witnesses were called. The court did not directly ask the child her preference with regard to custody but did seek information from her regarding her relationship with her parents and her interactions within their two households. When out of court negotiations were engaged, the judge indicated that he was inclined to award primary custody to F and to deny M's petition for relocation. The court subsequently received a letter signed by the child and dated April 12, 2004, expressing her desire to live with M. The court returned the letter to the child, advising her that such information, being ex parte, could not appropriately be seen by the judge and that any other correspondence should be directed to M's attorney. The court issued its order to give F primary custody, and eventually M appealed after a flurry of motions, emergency petitions and allegedly the child running away from F’s home and doing poorly in school.