            IN THE SUPREME COURT OF THE STATE OF DELAWARE

    RAYMOND C. ANDERSON, 1                     §
                                               §   No. 55, 2014
          Respondent-Below,                    §
          Appellant,                           §
                                               §   Court Below: Family Court
          v.                                   §   of the State of Delaware,
                                               §   in and for Kent County
    ANGELA R. ANDERSON,                        §   File No. CK03-07039
                                               §   Pet. No. 13-22355
          Petitioner-Below                     §
          Appellee.                            §

                               Submitted: June 6, 2014
                                Decided: August 21, 2014

Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.

                                           ORDER

         This 21st day of August 2014, upon consideration of the parties’ briefs and

the record on appeal, it appears to the Court that:

         (1)     The appellant, Raymond Anderson (“the Father”), filed this appeal

from the Family Court’s order granting the parties joint legal custody of their

minor son with primary residential placement with the appellee, Angela Anderson

(“the Mother”). On appeal, the Father asserts that the Family Court erred in not

allowing him to participate in the custody hearing by telephone.               He also

challenges the Mother’s credibility and asserts that it is not in his son’s best



1
    The Court previously assigned pseudonyms to the parties.
interests to live with the Mother. We find no basis on the record before us to

overturn the Family Court’s judgment. Accordingly, we affirm.

      (2)    The record reflects that the Mother filed a petition for modification of

custody in July 2013.2 At the time, the parties’ son was ten years old and was

living with the Father in Louisiana under a default custody order entered in 2009.

The Mother asserted in her petition that the Father was not attentive to their son’s

emotional and medical needs and that, because of the Father’s work schedule, their

son was spending more time with the Father’s mother. The Father did not file a

response to the Mother’s petition. On January 17, 2014, the Family Court held a

hearing on the Mother’s petition. The Mother appeared at the hearing. The Father

did not. At the conclusion of the hearing, the Family Court held, based on the

Mother’s uncontroverted testimony, that it was in the child’s best interests for the

parties to share joint custody with the Mother having primary residential

placement. This appeal followed.

      (3)    In his opening brief, the Father contends, among other things, that he

wrote to the Family Court before the scheduled custody hearing to request if he

could participate by telephone.      He attaches a copy of an undated letter he

allegedly sent to the Family Court expressing a desire to attend the hearing by

teleconference because he lived in Tennessee and could not afford to take time off
2
  Mother also requested an emergency ex parte order for custody, which the Family Court
denied.


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from work and travel to Delaware. The Father asserts that he called Family Court

several times to find out if his request was received and whether it had been

granted. He contends that Family Court personnel informed him that the court

would contact him. The Father also asserts in his opening brief that the Mother is

not credible, that it is not in his son’s best interests to live with the Mother, and that

his son was doing well in school in Tennessee.

         (4)     We are not in a position, however, to make a factual determination

about whether the Father’s non-participation at the hearing was the result, as he

alleges, of an error by the Family Court staff or the Father’s own lack of diligence.

Nor can we make factual determinations as to the Mother’s credibility or the best

interests of the child. The factual issues raised in the Father’s opening brief were

not presented to the Family Court in the first instance and, therefore, are not

properly a part of the record that can be considered by this Court on appeal.3

Rather, these issues must be presented to and determined by the Family Court in

the first instance through a motion to reopen the judgment by the Father under

Rule 60(b), which must be properly supported by facts justifying relief from the

default judgment (e.g., by attaching a sworn affidavit of his version of events).4



3
 See Del. Supr. Ct. R. 9; Delaware Elec. Co-op., Inc. v. Duphily, 703 A.2d 1202, 1207 (Del.
1997) (holding that materials not offered into evidence and considered by the trial court are not
part of the record on appeal).
4
    See Fam. Ct. Civ. R. 60(b) (2013).


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      (5)   In so ruling, we recognize that the circumstances of this case are

unusual because the life of the parties’ son, who was living with the Father in

Tennessee, has been fundamentally altered on the basis of a default judgment

entered following a hearing at which only the Mother’s side of the story was

considered and there was no independent representation of the child’s interests. If

the reasons for the Father’s failure to appear at the hearing are as the Father

alleges, then a default judgment was inappropriate because the determination of the

best interests of the child should have been made after a hearing at which the

Father could be present by teleconference to present his side of the story. On the

limited record properly before us, however, the hearing below was properly

noticed and the Father did not appear.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED.

                                         BY THE COURT:
                                         /s/ Leo E. Strine, Jr.
                                         Chief Justice




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