Petitions for third-party visitation, including requests for visitation made by grandparents and other relatives, are heard in the Family Court.  In the case of Samuels v. Jowers, No. 237, 2015 (Nov. 10, 2015), the Family Court heard and granted a petition for visitation filed by the maternal great-grandmother and grandmother of two minor children.  The children’s father, Mr. Samuels, challenged the Family Court decision.  On appeal Mr. Samuels argued that,

Family Court erred because: (i) the Maternal Grandmother has been involved in altercations in front of the Children with members of his family before and after the April 2015 hearing; (ii) the Maternal Grandmother bothered and upset the Children when she picked up her grandson at their daycare in May 2015; (iii) the Children have asthma and the Maternal Grandmother smokes; (iv) the Children never mentioned the Grandmothers to their counselor or to the Father; and (v) the Family Court ignored the Father’s concern that the Grandmothers would allow the Mother to see the Children during their monthly visits.

Most of these claims could not be considered on appeal because Mr. Samuels did not raise them at trial.  The only issue considered by the Supreme Court was the claim that the trial court erred in granting visitation because children did not mention the grandmothers to their counselor.

The Supreme Court was not persuaded by this argument and affirmed the decision below.  In doing so, the Court found that the Family Court did not err in concluding that visitation was in the best interests of the children and that the grandmothers provided  clear and convincing evidence that the objection to visitation raised by Mr. Samuels was unreasonable. The decision may be read in its entirety here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

 

 

 

 

Prior posts have explored the best interest factors that the Family Court must consider in connection with a petition for custody or visitation.  If a parent is incarcerated, however, the Court must also consider the factors set forth in 13 Del. C. § 728(d).  That subsection provides:

(d) Before entering an order for visitation to be conducted in a correctional facility the Court shall in addition to other relevant factors consider the following:

(1) The parent seeking visitation in a correctional facility had a substantial and positive relationship with the child prior to incarceration;

(2) The nature of the offense for which the parent seeking visitation is incarcerated;

(3) Whether the victim of the offense is the child, a sibling of the child, stepsibling, half sibling, parent, stepparent, grandparent, guardian or custodian of the child; and

(4) Whether the child seeks a relationship with the incarcerated parent.

In the recent appeal in Scott v. Kraft, No. 78, 2015 (Sept. 15, 2015), the Delaware Supreme Court was asked to determine if the Family Court abused its discretion when it denied incarcerated father, Evan Scott, visitation with his young daughter.  The Family Court decision stated:

After hearing the testimony and for the reasons announced on the record, and after consideration of 13 Del. C. § 728(d), the Court cannot find that it is in [the Child’s] best interest to have visits in a prison setting. [The Child] has no memories of [Father] as he was incarcerated when she was six months old. He is incarcerated on drug related charges. The conditions under which the visits will occur do not enhance the relationship between [the Child] and Father. Id. at 3.

The Supreme Court affirmed the Family Court decision, concluding that the trial court’s application of Section 728 was appropriate and the findings were the product of an orderly and logical deductive process.

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leslie_SpoltoreLeslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.