IN THE SUPREME COURT OF THE STATE OF DELAWARE

STEVEN DRAKE,l §
§ No. 461, 2016
Petitioner/Respondent Below, §
Appellant, § Court Below_Family Court
§ of the State of Delaware
v. §
§ Pile No. CK15-0217l
CATI-IERINE J. ORLANDO, § Petition Nos. 15-24079,

§ 15-25848 and 16-06581
Respondent/Petitioner Below, §
Appellee. §

Submitted: February 24, 2017
Decided: April 19, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.
0 R D E R

This 19'h day of April 2017, upon consideration of the parties’ briefs and the
record below, it appears to the Court that:

(1) The appellant, Steven Drake (“the Father”), filed this appeal from a
Family Court order dated August 23, 2016. The Family Court order granted the
parties’ joint custody of their two minor children, granted the appellee, Catherine J.
Orlando (“the Mother”), primary placement of the children with the Father having
visitation rights, and granted the Mother’s petition for permission to relocate to
Arizona. We find no error or abuse of discretion in the Family Court’s decision.

Accordingly, we affirm the Family Court’s judgment

 

l The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).

(2) The parties are the parents of two minor sons. They are also the
parents of an older son. On August 7, 2015, the Mother filed a petition for
custody seeking primary placement of the minor sons. On August 19, 2015, the
Father filed a petition for custody. The parties were subject to cross orders of
protection from abuse (“PFA”) based upon petitions they had filed against each
other.

(3) In an interim consent custody order entered on December 29, 2015,
the parties agreed to joint legal custody of the minor children with shared
placement. On January 22, 2016, the Mother filed a petition for permission to
relocate outside of Delaware so she could find employment as a pharmacist. The
Family Court denied the petition and held relocation would be addressed at the
custody hearing. In March 2016, the Mother filed a petition for a rule to show
cause alleging the Father Was in violation of the December 29, 2015 interim
custody order.

(4) The Family Court held hearings on the cross petitions for custody and
the Mother’s petition for a rule to show cause on April 15, 2016 and May 27, 2016.
The Family Court heard testimony from the parties, the minor children, the parties’
older son, and several of the minor sons’ teachers. In an order dated August 23,
2016, the Family Court granted the parties’ joint custody of their two minor

children, granted the Mother primary placement of the children with the Father

having visitation rights, and granted the Mother permission to relocate to Arizona
so she could obtain employment as a pharmacist there. This appeal followed.

(5) This Court’s review of a Family Court decision includes a review of
both the law and the facts.2 Conclusions of law are reviewed de nova3 Factual
findings will not be disturbed on appeal unless they are clearly erroneous." We
will not substitute our opinion for the inferences and deductions of the trial judge if
those inferences are supported by the record.5

(6) Under Delaware law, the Family Court must determine legal custody
and residential arrangements for a child in accordance with the best interests of the
child. The criteria for determining the best interests of a child are set forth in 13
Del. C. § 722. The best interest factors include: (i) the wishes of the parents
regarding the child’s custody and residential arrangements; (ii) the wishes of the
child regarding her custodians and residential arrangements; (iii) the interaction
and interrelationship of the child with her parents, grandparents, siblings, persons
cohabitating in the relationship of husband and wife with a parent of the child, and
any other residents of the household or persons Who may significantly affect the
child’s best interests; (iv) the child’s adjustment to her home, school, and

community; (v) the mental and physical health of all individuals involved; (vi) past

 

1 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).

3 Id.

" 1a

5 Wife (J.F. V.) v. Husband (0. W. V., J,-.), 402 A.zd 1202, 1204 (Del. 1979).

3

and present compliance by both parents with their rights and responsibilities to the
child under 13 Del. C. § 701; (vii) evidence of domestic violence; and (viii) the
criminal history of any party or any resident of the household6

(7) On appeal, the Father argues that the F amin Court failed to consider a
July 2015 police report describing a physical altercation between the Mother and
the Father, the Mother’s past abuse of the Father and the minor sons, the Mother’s
use of drugs and treatment of the minor sons with medicine not prescribed by a
doctor, and the Mother’s termination from pharmacist jobs in Delaware. The
August 23, 2015 order reflects that the Family Court did consider the parties’
differing accounts of the July 2015 incident, as well as the nolle prosequi of the
subsequent charges against the Mother, the Father’s claims of abuse and treatment
with non-prescribed drugs by the Mother, and the parties’ differing accounts of the
Mother’s inability to find pharmacist work in Delaware. The Mother argues that
the Father’s failure to provide a transcript of the custody hearing prevents this
Court from reviewing the factual findings of the Family Court.

(8) Although the Father had the burden of supplying a transcript of the
custody hearing,"' he chose not to obtain one after the Family Court denied his

motion to waive the transcript fee. A civil litigant does not have an absolute right

 

6 13 Del. C. § 722.
7 Supr. Ct. R. 9(e)(ii); Supr. Ct. R. l4(e); Trioche v. Sm!e, 525 A.2d 151, 154 (Del. 1987).

4

to obtain a copy of a transcript at State expense.8 Even an appellant who is
permitted to proceed in forma pauperis on appeal is required to make his own
financial arrangements to obtain the necessary transcripts.° In the absence of a
transcript of the custody hearing, this Court lacks an adequate basis for evaluating
the Father’s claims that the Family Court failed to consider certain evidence.'0

(9) After a careful review of the parties’ briefs and the record, we find no
error or abuse of discretion in the Family Court’s ruling. The Family Court
correctly applied the law and considered the best interest factors under 13 Del. C. §
722. We therefore affirm the Family Court’s decision that it was in the minor
sons’ best interests for the parents to have joint legal custody with the Mother
having primary placement of the minor sons in Arizona.

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

Court is AFFIRMED.

BY THE COURT:

 

 

3 Mahan v. Mahan, 2007 WL 1850905, at *1 (Del. June 28, 200?).

9 ld.

10 See, e.g., Burton v. Burton, 2005 WL 1950214, at *1 (Del. July 19, 2005) (holding the father’s
failure to provide transcripts of Family Court hearing precluded appellate review of his claim
that the Family Court erred in awarding sole custody of the child to the mother).

