IN THE SUPREth COURT OF THE STATE OF DELAWARE

CHARLES FRANKLIN,‘ §
§ No. 602, 2014
Respondent Below- §
Appellant, §
§ Court Below—Family Court
v. § of the State of Delaware,
(5 in and for New Castle County
CASSIE FRANKLIN, § File No. CN12-04097
§ Pet. No. 14-19088
Petitioner Below- §
Appellee. §

Submitted: April 17, 2015
Decided: June 22, 2015

Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
M
This 22'1d day of June 2015, upon consideration of the parties’ briefs
and the record below, it appears to the Court that:
(1) I The appellant, Charles Franklin (“Father”),2 ﬁled this appeal
from a Family Court order modifying a prior visitation order. We ﬁnd no
error or abuse of discretion in the Family Court’s decision. Accordingly, we

afﬁrm the Family Court’s judgment.

I The Court has assigned pseudonyms to the parties and their minor daughter under
Supreme Court Rule 7(d).

2 The Court recognizes that Father is a transgender woman, but we use the term “Father”
for purposes of this order because that is the term used by the Family Court in its order.
It also is the term used by both parties to identify Charles Franklin in their briefs on
appeal.

(2) Father and Cassie Franklin (“Mother”) are the parents of one
daughter, Ellen, who was born on April 2, 2009. By order dated December
19, 2012, Mother was awarded sole legal custody of Ellen. Father was
awarded visitation, which allowed Father to have Ellen, on an alternating
weekly basis, from Wednesday to Friday one week and Thursday to Monday
the following week. Thus, in any two week period, Father had Ellen for six
nights (or 43% of the time).

(3) On July 16, 2014, Mother ﬁled a petition to modify visitation.
Mother asserted that Ellen would begin full-time kindergarten in the fall.
Mother alleged, among other things, that Father had not provided a
consistent schedule for Ellen during her preschool years and would bring
Ellen to preschool at odd times or, sometimes, not at all. Mother requested
that: (i) during the school year, Father’s visitation would be reduced to
Wednesday nights, over night, and every other weekend; (ii) during Ellen’s
summer break, the parties would alternate visitation on a weekly basis
beginning and ending on Sunday; (ii) pick-ups and drop—offs would occur at
Mother’s or Mother’s parents’ house; and (iv) Father would be required to
notify Mother if Father intended to leave Delaware with Ellen and that travel

would be restricted to 50 miles unless Mother consented.

(4) Father ﬁled an answer to the petition on August 6, 2014. Father
denied Mother’s allegation that Ellen’s schedule was inconsistent. Father
requested the Family Court to modify the prior visitation schedule to allow
the parties to have share residential custody equally on an alternating weekly
basis, from Thursday to Thursday, and to allow pick~ups and drop—offs to
occur at Ellen’s school. Father also requested additional modiﬁcations to
the prior visitation order, including modiﬁcation of the vacation and holiday
schedules.

(5) The Family Court held a hearing on Mother’s petition on
September 19, 2014. Both parties appeared pro 33. Neither party presented
any witnesses other than themselves. After considering the evidence and the
statutory factors under 13 Del. C. § 722, the Family Court concluded that
Father’s visitation should be modiﬁed slightly to have pick—up occur on
Wednesday each week in order to avoid confusion regarding Ellen’s
transportation home from school. The total amount of Father’s Visitation did
not change. The Family Court ordered the Visitation schedule to remain the
same in the summer, although each party was awarded two non-consecutive
weeks of vacation. The Family Court directed non-school day pick-ups to

occur at Delaware State Police Troop 9.

(6) The Family Court noted testimony from both parties reﬂecting
their difﬁculties in communicating with one another. The Family Court also
cited to testimony from both parties reﬂecting Ellen’s confusion about
Father’s gender transition, including an incident where Ellen refused to take
medicine when she was sick because she was afraid it would turn her into a
boy. In light of the testimony, the Family Court concluded that it was in
Ellen’s best interest for the parties to obtain counseling for their daughter.
The Family Court ordered both parties to participate in the counseling but
ordered Father to bear the cost.

(7) Father raises several issues on appeal. First, Father contends
that the Family Court erred in refusing the parties’ mutually agreed upon
summer visitation schedule. Second, Father asserts that the Family Court
erred in denying a 50/50 shared arrangement and in accepting Mother’s
testimony that Ellen’s school would be confused by such an arrangement.
Finally, Father asserts that the Family Court’s decision was unlawfully
discriminatory because Father is a transgender individual.

(8) Our standard of review of a decision of the Family Court
extends to a review of the facts and law, as well as inferences and deductions

made by the trial judge.3 We have the duty to review the sufﬁciency of the

3 Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983).

evidence and to test the propriety of the ﬁndings.4 Findings of fact will not
be disturbed on appeal unless they are determined to be clearly erroneous.5
We will not substitute our opinion for the inferences and deductions of the
trial judge if those inferences are supported by the record.6 When the
determination of facts turns on the credibility of the Witnesses who testiﬁed
under oath before the trial judge, this Court will not substitute its opinion for
that of the trial judge.7

(9) Father challenges Mother’s credibility and faults the Family
Court for accepting Mother’s testimony on certain issues. Father also
contends that the Family Court exhibited bias because of Father’s gender
transition. Father, however, failed to provide this Court with a copy of the
transcript of the Family Court hearing in order to support those claims.
Without an adequate record, the Court has no sufﬁcient basis to review
Father’s challenge to any of the Family Court’s factual ﬁndings or

credibility determinations.8

4 We (.IF. V.) v. Husband (0. W. V., Jr. ), 402 A.2d 1202, 1204 (Del. 1979).
5 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).

6 Wife (M. V.) v. Husband (0. W. V., Jr.), 402 A.2d at 1204.
7
Id.

8 Burton v. Burton, 2005 WL 1950214 (Del. July 19, 2005).

m

(10) Moreover, we ﬁnd no error in the Family Court’s application of
the law. Under 13 Del. C. § 728(a),9 the Family Court may modify a
visitation order at any time if the best interests of the child would be served
in doing 30.10 The record in this case reﬂects that the Family Court reviewed
the applicable factors in performing a best interest analysis under 13 Del. C.
§ 722(a) and determined that it was in Ellen’s best interest to keep the
visitation schedule the same with only slight modiﬁcations.

(11) The Family Court found that both parties were adequate
caregivers for Ellen, but they had problems in communicating directly and
civilly with one another. The Family Court ordered that Father’s visitation
with Ellen should be modified slightly so that visitation periods would begin
on Wednesday each week to reduce any confusion and that non-school pick-
ups and drop—offs would occur at the police station. In almost all other

respects, the Family Court denied Mother’s petition to modify visitation.

9 DEL. CODE ANN. tit. 13, § 728(a) (2009) provides in part, “The Court shall determine,
whether the parents have joint legal custody of the child or 1 of them has sole legal
custody of the child, with which parent the child shall primarily reside and a schedule of
visitation with the other parent, consistent with the child’s best interests and maturity,
which is designed to permit and encourage the child to have frequent and meaningful
contact with both parents unless the Court ﬁnds, after a hearing, that contact of the child
with 1 parent would endanger the child’s physical health or signiﬁcantly impair his or her
emotional development. ...”

‘0 DEL. CODE ANN. tit. 13, § 729(a) (2009).

(12) Under the circumstances, we find no basis to disturb the Family
Court’s factual ﬁndings, and we conclude that the Family Court correctly
applied the law to the facts. Moreover, the allegation that the Family
Court’s decision reﬂects discrimination against Father as a transgender
person is completely unsupported by the record. Accordingly, we afﬁrm the
Famin Court’s judgment.

NOW, THEREFORE, IT IS ORDERED that the judgment of the
Family Court is AFFIRMED.

BY THE COURT:

/s/ Randy .I Holland
Justice

