IN THE SUPREME COURT OF THE STATE OF DELAWARE
KATHLEEN GILLIS,1 §
§
Respondent Below- § No. 394, 2017
Appellant, §
§
v. § Court Below—Family Court
§ of the State of Delaware
THOMAS HUGHES, JR., §
§ File No. CK14-01534
Petitioner Below- § Petition No. 14-14230
Appellee. §
Submitted: February 9, 2018
Decided: April 25, 2018
Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
Upon consideration of the parties’ briefs and the record below,2 it appears to
the Court that:
(1) In this appeal from a child custody order and the denial of a motion to
relocate, the appellant, Kathleen Gillis (“Mother”), argues that the Family Court’s
factual findings are not supported by the record because the Family Court dismissed
the testimony of the educational expert and ignored evidence of Thomas Hughes’
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
2
On March 29, 2018, after briefing on appeal was completed, Mother filed a request to provide
additional information to the Court. This Court, however, will not consider evidence on appeal
that was not presented to and considered by the trial court in the first instance. Zappa v. Logan,
2013 WL 4538215 (Del. Aug. 23, 2013).
(“Father”) past abusive behavior. Mother also argues that the Family Court erred in
its application of the best interest factors under the Model Relocation Act.3
(2) Our review of an appeal from a custody decision extends to both the
facts and the law, as well as to the inferences and deductions made by the Family
Court after considering the weight and credibility of the testimony. 4 To the extent
the Family Court’s decision implicates rulings of law, our review is de novo.5
Findings of fact will not be disturbed unless they are found to be clearly erroneous
and justice requires that they be overturned.6 The judgment below will be affirmed
“when the inferences and deductions upon which [the decision] is based are
supported by the record and are the product of an orderly and logical deductive
process.”7
(3) Custody matters are inherently difficult cases, and this case is
particularly complicated because one of the parties’ two young sons is autistic. It is
clear from the testimony that, despite their difficulties in dealing with each other at
times, both parties love their children and are involved in their lives. Although the
educational expert’s testimony in this case provides some support for Mother’s
contention that her move to Florida would provide their special needs son with
3
10 J. Am. Acad. Matrim. Law. 1, at 18 (1998).
4
Devon v. Mundy, 906 A.2d 750, 752 (Del. 2006).
5
Id. (citing In re Heller, 669 A.2d 25, 29 (Del. 1995)).
6
Id. (citing Solis v. Tea, 468 A.2d 1276, 1279 (Del. 1983)).
7
Id. at 752-53.
2
access to expanded services and specialized in-school learning support that he is not
receiving in the Delaware public school system, this testimony was one piece of
information among many that the Family Court was required to take into account in
determining the best interests of both children.8
(4) Contrary to Mother’s contentions, the Family Court considered all of
the relevant evidence in this case, including the testimony of Mother’s educational
expert and the evidence of the consent PFA entered against Father in 2014. The
Family Court weighed all of the relevant evidence bearing on the best interest factors
under 13 Del. C. § 722,9 as it was required to do, and also considered the best interest
factors under the Model Relocation Act, which it was permitted to do in its
discretion.10
8
See 13 Del. C. § 722.
9
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 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 household. 13 Del. C.
§ 722.
10
Potter v. Branson, 2005 WL 1403823, at *2 (Del. June 13, 2005) (holding the Family Court has
discretion to consider additional factors like the Model Relocation Act factors as long as it
considers the mandated Section 722 factors). The Model Relocation Act factors include: (i) the
nature, quality, extent of involvement and duration of relationship of the child with each parent;
(ii) the age, developmental stage, needs of the child, and the likely impact the relocation will have
on the child’s physical, educational, and emotional development; (iii) the feasibility of preserving
the child’s relationship with the non-custodial parent; (iv) the child’s preference, considering age
and maturity level; (v) whether there is an established pattern of the person seeking relocation
either to promote or thwart the child’s relation with the other parent; (vi) whether the relocation of
3
(5) After careful consideration of the parties’ respective positions on
appeal and after a thorough review of the record, the Court has determined that this
appeal should be affirmed on the basis of the Family Court’s well-reasoned decision
dated August 31, 2017. It is clear that the trial judge considered the evidence under
the appropriate legal standards and reasoned in a logical way in determining that
shared residential placement was in the best interests of both children and in denying
Mother’s motion to relocate. We recognize that this is a close case, and that Mother
presents issues affecting in critical ways the lives of all concerned. Regrettably, this
is a sad case, like many our Family Court must decide, in which there is no easy or
obviously correct outcome. Our duty on appeal is to defer to a difficult decision
made by our trial courts when it is supported by the record and the law, as it is here.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
the child will enhance the general quality of life for both the party seeking the relocation and the
child, including but not limited to financial, emotional, or educational opportunity (including
cultural opportunities and access to extended family); (vii) the reasons for seeking relocation; and
(vii) any other factor affecting the interest of the child.
4
Gillis v. Hughes
Combined Opinion