      IN THE SUPREME COURT OF THE STATE OF DELAWARE

JORDAN LAWRENCE MILLER- §
HOWARD,1                §                       No. 655, 2015
                        §
     Petitioner Below-  §
     Appellant,         §
                        §                       Court Below—Family Court
     v.                 §                       of the State of Delaware
                        §
JANE MASON,             §                       File No. CN09-04640
                        §                       Petition No. 15-11181
     Respondent Below-  §
     Appellee.

                             Submitted: May 6, 2016
                             Decided:   July 21, 2016

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                       ORDER

       This 21st day of July 2016, upon consideration of the opening brief2

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

       (1)    The appellant, Jordan Lawrence Miller-Howard (“Father”),

filed this appeal from the Family Court’s judgment, dated November 10,

2015, which denied his petition for sole custody of the parties’ two minor

children (“the Children”). Having reviewed Father’s arguments on appeal



1
 The Court assigned pseudonyms to the parties under Supreme Court Rule 7(d).
2
 The appellee, Jane Mason (“Mother”), did not file an answering brief on appeal. The
Clerk of the Court informed the parties that the matter would be considered solely on the
basis of Father’s opening brief and the record below.
and the record below, we conclude that the Family Court erred by not

awarding Father sole custody. Accordingly, we reverse.

      (2)    The parties were married in 2005 and divorced in 2010. They

are the parents of a son, born on February 7, 2002, and a daughter, born

December 13, 2003. Since the parties’ divorce, the Children have resided

primarily with Father but have visited with Mother in Mexico, where she

lived primarily between 2009 and 2014. On April 2, 2015, Father obtained a

Protection from Abuse Order (“PFA”) against Mother. On April 22, 2015,

Father petitioned for sole custody of the Children. Mother filed an answer

on June 4, 2015.

      (3)    Both parties appeared at a pretrial conference held on July 10,

2015. At that conference, the Family Court informed the parties that trial

would be held on October 14, 2015. The Family Court also entered an

interim visitation order allowing Mother to visit with the Children on

Tuesdays from 9 AM to 2 PM and on Saturdays from 10 AM to 4 PM. On

July 27, 2015, with the Family Court’s permission, Father filed an amended

petition for custody. Mother did not file an answer to the amended petition.

On September 30, 2015, Father filed a motion requesting the Family Court

to interview the children.




                                     2
      (4)    Trial was held on October 14, 2015.       Father appeared and

presented several witnesses. Mother failed to appear. At the start of the

trial, the Family Court asked Father’s counsel if Father still wished to have

the Children interviewed. Father’s counsel asked to defer responding to the

question until the end of the trial.

      (5)    The trial record reflects that Father has lived in the United

States for eighteen years and is employed building houses. After the parties

divorced, the Children lived with Father in the former marital home, which

Mother and Father continued to own jointly. Between 2009 and 2014,

Mother spent most of her time living in Mexico. In 2009, with Father’s

consent, Mother traveled to Mexico with the parties’ daughter, where she

stayed for several months before returning the daughter home to Father.

Several years later, again with Father’s consent, Mother took both Children

to Mexico for several months. Father paid the Children’s travel and living

expenses while they were with Mother.

      (6)    After Mother returned to the United States with both Children,

Father learned that she was pregnant with another man’s child. Mother

stayed in the United States with her own mother to give birth but later

returned to Mexico with her newborn. Twice more, Mother returned to the

United States from Mexico temporarily in order to give birth to two more



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children. In 2014, Mother moved from Mexico back to the United States

with her three young children. Because she had no other place to live,

Father allowed Mother and her three young children to move in with him

and their Children. Father testified that Mother, at that time, had expressed

fear for her safety because she had witnessed a murder in Mexico, for which

her boyfriend had been arrested.

      (7)    Father testified that shortly after moving in, Mother began

smoking marijuana daily and became very moody and aggressive toward

Father and their Children.     She would call the Children “dumb” and

“stupid.”   Father became concerned about Mother’s mental health after

Mother told him that she had been sent by God to save the world. Father

came home one day in July 2014 to find Mother and the Children gone and

no note explaining their absence. Later that day, Father was contacted by

the police informing him that Mother had been found with the Children in

Virginia. She had been behaving erratically and had been arrested. Father

immediately drove to Virginia to retrieve the Children.

      (8)    Mother was admitted to a mental hospital in Virginia, where

she stayed for several weeks. After she was released from the hospital, she

and her three younger children moved out of Father’s residence and moved

in with her mother. In early 2015, however, Father allowed Mother and her



                                      4
three children to move back into the former marital residence. Father and

the parties’ two Children moved out and went to live with Father’s family.

       (9)    In March 2015, Mother became physically aggressive to Father

in front of the Children. She tried to hit him and yelled obscenities at him.

As a result, Father filed a PFA petition. On April 2, 2015, the Family Court

entered a PFA ordering Mother to have no contact with Father for a period

of two years. The Family Court also awarded Father temporary custody of

the Children and did not provide Mother with any visitation rights.

Nonetheless, after the scheduling conference in July 2015, the Family Court

entered an interim order granting Mother daytime visitation with the

Children two days per week. Father and his sister both testified at trial that,

despite being granted interim visitation rights, Mother often picked the

Children up late and dropped them off early and sometimes failed to appear

for visitation at all.

       (10) In addition to Father, the Family Court also heard testimony

from Father’s sister and two of his neighbors. This additional testimony

corroborated Father’s testimony that the children are happy and well-

adjusted where they are living and that Father is a good parent who provides

for the Children, participates in their schooling, and oversees their medical

care. There also was evidence that the Children are doing well in school. At



                                      5
the end of the testimony, Father’s counsel stated that he would make the

Children available for an interview if the Family Court believed it would aid

its decision-making. Because the record was uncontroverted, however, the

Family Court determined that it was not necessary to interview the Children.

       (11) The Family Court issued its decision on November 10, 2015. It

analyzed each of the eight “best interest” factors under 13 Del. C. § 7223 and

concluded that six of the eight factors favored Father’s petition and that the

other two factors did not apply. Nonetheless, the Family Court concluded

that the “record lacks sufficient basis to award Father sole legal custody.”


3
 Section 722(a) provides:
        The Court shall determine the legal custody and residential arrangements for a
child in accordance with the best interests of the child. In determining the best interests
of the child, the Court shall consider all relevant factors including:
    (1) The wishes of the child’s parent or parents as to his or her custody and residential
        arrangements;
    (2) The wishes of the child as to his or her custodian or custodians and residential
        arrangements;
    (3) The interaction and interrelationship of the child with his or her parents,
        grandparents, siblings, persons cohabitating in the relationship of husband and
        wife with a parent of the child, any other residents of the household or persons
        who may significantly affect the child’s best interests;
    (4) The child’s adjustment to his or her home, school and community;
    (5) The mental and physical health of all individuals involved;
    (6) Past and present compliance by both parents with their rights and responsibilities
        to their child under § 701 of this title;
    (7) Evidence of domestic violence as provided for in Chapter 7A of this title; and
    (8) The criminal history of any party or any other resident of the household including
        whether criminal history contains pleas of guilty or no contest or a conviction of a
        criminal offense.


                                             6
The Family Court thus denied Father’s petition. Although Father continued

to have primary residential placement of the Children, the Family Court’s

order increased Mother’s visitation to include overnights every Wednesday

and every other weekend.

         (12) Father raises two issues in his opening brief on appeal. First, he

contends that the Family Court abused its discretion when it disregarded its

own factual findings, reflecting that the best interest factors overwhelmingly

and solely favored Father, and granted the parties’ joint legal custody in

default of Mother’s appearance. Second, Father contends that the Family

Court abused its discretion when it increased Mother’s visitation over

Father’s objection and in the absence of any evidence that increased

visitation with Mother was in the Children’s best interests. Mother did not

filed an answering brief on appeal.

         (13) Under Delaware law, the Family Court must determine legal

custody and residential arrangements consistent with the best interests of the

child.4 The criteria for determining the best interests of the child are set

forth in 13 Del. C. § 722. The Family Court must balance those criteria

according to the factual circumstances presented in each case. The weight

given to one factor or combination of factors will be different in any given


4
    13 Del. C. § 722(a).


                                        7
proceeding.5     Because it is possible that the weight of one factor will

counterbalance the combined weight of all other factors and be outcome

determinative in some situations, we have held that the Family Court must

address each aspect of Section 722 explicitly rather than implicitly.6

       (14) Our review of a Family Court custody decision includes

questions of both fact and law.7 We have the duty to review the sufficiency

of the evidence and to test the propriety of the findings.8 We will uphold the

Family Court’s factual findings unless those findings are clearly wrong.9 We

will not substitute our opinion for the inferences and deductions of the trial

judge if those inferences are supported by the record.10 We review questions

of law, including the interpretation of statutes, de novo.11 If the Family

Court has properly applied the law to the facts, then our standard of review

is abuse of discretion.12

       (15) In this case, the Family Court properly reviewed the legal

framework of 13 Del. C. § 722. In its opinion, the Family Court recounted

testimony from the hearing relative to each best interest factor and reached

5
    Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997).
6
   Id.
7
  Clark v. Clark, 47 A.3d 513, 516 (Del. 2012).
8
  Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
9
  Clark v. Clark, 47 A.3d at 516-17.
10
   Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).
11
    Clark v. Clark, 47 A.3d at 517.
12
    Id.


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the following conclusions: As to factor 1—the wishes of the parents—the

Family Court noted that Father wanted full custody of the Children and that

Mother had failed to appear. Thus, the Court had no evidence of her wishes.

The Family Court concluded that this factor “favors placement with

Father.”13 As to factor 2—the wishes of the children—the Family Court

concluded that this factor was inapplicable because the Court did not

interview the Children. As to factor 3—the Children’s interaction with their

parents and other family and household members—the Family Court found

that the Children have a positive and loving relationship with Father and his

family and that the record was devoid of any evidence of Mother’s

relationship with the Children and the members of her household. The

Family Court concluded that this factor favored Father’s petition for full

custody.

      (16) As to factor 4—the Children’s adjustment to their home,

school, and community—the Family Court found that the Children have

primarily resided with Father all of their lives and are happy, healthy, and

well-adjusted to their home, school, and community. The Family Court

concluded that this factor favored Father’s petition for full custody. As to

factor 5—the parties’ mental and physical health—the Family Court found

13
   Miller-Howard v. Mason, File No. CN09-04640, Pet. No. 15-11181, at 5 (Del. Fam.
Ct. Nov. 10, 2015).


                                        9
no concerns with Father’s mental or physical health, but stated that it was

“concerned that Mother suffers from mental health issues.”14 The Family

Court concluded that this factor favored Father’s petition.

          (17) As to factor 6—the parties’ past and present compliance with

their parental rights and responsibilities—the Family Court found that Father

has been the primary caregiver and sole financial provider for the Children

since the parties divorced.      Mother’s only financial contribution to the

Children’s care was $100, which she gave to Father after the Family Court

scheduling conference in July 2015. The Family Court also found that

Mother had not taken full advantage of the visitation rights afforded by the

Family Court’s interim order. The Family Court expressed concerned that

Mother had taken the Children out of Delaware without providing Father

any notice.       The Family Court found Father to be a credible witness and

further found “that Mother lacks the ability to carry out parental

responsibilities due to mental health concerns.”15 The Family Court

concluded that this factor favored Father’s petition for full custody.

          (18) As to factor 7—evidence of domestic violence—the Family

Court found no concerns with respect to Father but found that Mother had

been both verbally and physically abusive. The Family Court also found
14
     Id. at 11.
15
     Id. at 13.


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two particular incidents of concern—Mother’s unannounced trip to Virginia

with the Children in July 2014, where she was later arrested and placed in a

mental hospital, and the March 2015 incident that resulted in the PFA Order

against her. The Family Court found “that Mother has been aggressive and

used inappropriate language in the presence of [the] Children. Due to the

July 2014 Virginia and March 2015 visitation incidents, Mother has shown

signs of violent behavior.”16 Thus, the Family Court concluded that this

factor “slightly”17 favored Father’s petition. Finally, with respect to factor

8—criminal history—the Family Court found no criminal record of import

for either Mother, Father, or members of Father’s household, and therefore

concluded that this factor was inapplicable.             The Family Court noted,

however, that it did not have the identification of the members of Mother’s

household18 and, thus, could not perform an appropriate background check.

       (19) Notwithstanding its findings and conclusions with respect to the

applicable factors, which exclusively and conclusively favored Father’s

petition, the Family Court denied the petition, holding that “the record lacks

sufficient basis to award Father sole custody.” The Family Court’s only



16
   Id. at 14.
17
   Id.
18
   At the scheduling conference, Mother had indicated to the Family Court that her sister
and her sister’s children lived with her.


                                           11
arguable rationale for its holding was grounded in its citation to 13 Del. C. §

701(a), which states:

             The father and mother are the joint natural guardians of their
      minor child and are equally charged with the child’s support, care,
      nurture, welfare and education. Each has equal powers and duties
      with respect to such child, and neither has any right, or presumption of
      right or fitness, superior to the right of the other concerning such
      child’s custody or any other matter affecting the child.

      (20) We conclude that the Family Court incorrectly applied the law

to the undisputed facts of this case. The general language of Section 701(a)

simply recognizes that every parent has equal rights and responsibilities with

respect to their children, and that neither parent is entitled to a presumption

of fitness superior to the other parent. That general language, however, is

not outcome determinative, but must be considered in light of the specific

factors set forth in Section 722 whenever the Family Court is required to

determine the best interests of the children in their custodial and residential

arrangements.

      (21) All of the evidence presented at trial favored Father’s petition

for full custody of the Children. That evidence was undisputed by Mother

because she failed to appear.      The Family Court noted that it had no

evidence of the Mother’s wishes with regard to custody of the children, had

no evidence of Mother’s relationship with the children or whether the

Children wanted a relationship with Mother, had no evidence concerning


                                      12
Mother’s living arrangements for the children, had no evidence concerning

the other members of Mother’s household, had undisputed evidence that

Mother suffered from mental health issues and had exhibited violent

behavior, and had undisputed evidence that Mother had not fulfilled her

financial responsibilities toward the Children and had not fully exercised her

rights with respect to visitation with the Children.

      (22) Because the Family Court improperly applied the law to the

undisputed facts of this case, and the undisputed facts supported Father’s

petition for sole custody, the Family Court erred when it concluded that joint

custody was in the children’s best interests. Accordingly, we reverse.

      NOW, THEREFORE, IT IS ORDERED that the decision of the

Family Court is REVERSED. The matter is REMANDED to the Family

Court for the sole purpose of entering an order granting Father full custody

and maintaining Mother’s visitation schedule as previously set forth in the

Family Court’s interim visitation order. Jurisdiction is not retained.

                                        BY THE COURT:

                                        /s/ Collins J. Seitz, Jr.
                                                Justice




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