Gifford v. Miller

IN THE SUPREME COURT OF THE STATE OF DELAWARE

AMELIA GIFFORD,1 §
§ No. 40, 2023
Respondent Below, §
Appellant, § Court Below–Family Court
§ of the State of Delaware
v. §
§ File No. CS20-01349
DYLAN MILLER, § Petition Nos. 21-15124
§ 21-08615
Petitioner Below, §
Appellee. §
§

Submitted: July 7, 2023
Decided: October 6, 2023

Before TRAYNOR, LEGROW, and GRIFFITHS, Justices.

ORDER

After consideration of the parties’ briefs and record on appeal, it appears to

the Court that:

1. The appellant, Amelia Gifford (“Mother”), filed this appeal from the

Family Court’s child-custody order dated October 20, 2022, and the Family Court’s

order awarding attorneys’ fees to the appellee, Dylan Miller (“Father”), dated

January 24, 2023. Having reviewed the parties’ respective arguments, we affirm the

Family Court’s judgment.

1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
 2. Mother and Father are the parents of a minor girl, born in April 2019

(the “Child”). Father filed a petition for custody in March 2020 seeking sole legal

custody and primary placement of the Child. Mother filed an answer and a

counterclaim seeking joint legal custody and primary placement of the Child. The

parties assembled for a hearing on December 8, 2020. After several hours of

testimony, the parties reached an agreement, the terms of which were placed on the

record and later entered as an order of the Family Court on February 22, 2021 (the

“Custody Agreement”). Among other things, the parties agreed that: (i) they would

follow a 2-2-3 custody schedule until Mother relocated to the New York City area,

after which the parties would alternate custody every other week; (ii) in the event

that either parent intended to have the Child cared for by an alternate caregiver for a

period of time exceeding 90 minutes, the parent would give reasonable notice to the

other parent, who then would have the option to keep the Child in his or her care for

up to four hours (the right-of-first-refusal option, or “ROFR”); (iii) if the Child

became seriously injured while in the care of one parent, the parent would notify the

other parent as soon as practicable; and (iv) each parent would give the other parent

written notice of any change of address.

3. In April 2021, Father filed a petition for a rule to show cause, alleging

that Mother was in violation of the terms of the Custody Agreement because, among

other things, Mother: (i) was insisting on sharing custody on an alternate weekly

2
basis even though she had not relocated to the New York City area; (ii) had not given

notice to Father of her intent to use an alternate caregiver before doing so; (iii) failed

to report to Father an injury that the Child suffered while in her care; and (iv) failed

to give Father her updated address when she allegedly relocated to the New York

City area. In June 2021, Father filed a petition to modify the Custody Agreement,

alleging that it was in the Child’s best interest for Father to have sole legal custody

and primary placement of the Child. Mother responded and also sought primary

placement of the Child.

4. On January 28, 2022, the Family Court held a hearing on Father’s

petitions. Father presented three witnesses. Father first called Courtney Mitchell,

the Child’s nanny since the Child was approximately four months old. Ms. Mitchell

testified that (i) Father was a very caring and attentive father; (ii) the visitation

schedule changed to week-to-week in March 2021 after Mother advised Ms.

Mitchell that she was relocating to the New York City area; (iii) Ms. Mitchell

babysat the Child while the Child was in Mother’s custody seven times in March

and April 2021; and (iv) Mother exercised her ROFR approximately twice a week

when the Child was in Father’s custody and Mother was living in New Jersey. Ms.

Mitchell also described various ailments from which the Child had suffered and

opined that Father had addressed the ailments with appropriate concern, whereas

Mother had not. Ms. Mitchell specifically recalled one occasion when the Child was

3
extremely lethargic after returning from a visit with Mother, and she told the court

that she believed that Father correctly decided to take the Child to the emergency

room on that occasion.

5. Kay Miller, Father’s neighbor in Dewey Beach, also testified. She

opined that Father is a very involved and caring parent—he ensures that his home is

safe for the Child, buys age-appropriate toys, and consults with Ms. Miller regarding

the Child’s health and overall well-being.

6. Finally, Father testified that (i) he has not lived in New York since

March 2020; (ii) after Mother advised him that she was moving back to New York

City in February 2021, he continued to see her around town and believed that she

was staying at a local hotel; (iii) he learned from Ms. Mitchell that Mother was using

Ms. Mitchell as an alternate caregiver when the Child was in Mother’s care; (iv)

Mother was receiving mental health services in Delaware; (v) he facilitates the

Child’s visits with his family as well as Mother’s family, from whom Mother is

estranged; (vi) he knows that Mother stays in Delaware during the weeks that the

Child is in his care because she uses her ROFR so often; (vii) when Mother is in

Delaware, she resides with Craig Colleton, who is prohibited from having contact

with Father and the Child because of a criminal conviction; and (viii) Mother and

Father disagree about the severity and proper course of treatment for the Child’s

various health issues. Father also testified that the Child participates in gymnastics,

4
story time at the library, swimming lessons, and horse-riding lessons while in his

custody.

7. Tsipy Weiss, who runs the daycare in which the Child is enrolled in

New Jersey, testified on behalf of Mother. Ms. Weiss told the court that the Child

is developmentally on-track and interacts well with Mother. On cross-examination,

Ms. Weiss acknowledged that the daycare had been cited by the State of New Jersey

for unsanitary conditions, but she claimed that the violations, which in her view were

minor, had been resolved. Finally, the Family Court heard from Hannah Lowinger,

with whom Mother has been living since she moved to New Jersey in May 2021.

Ms. Lowinger testified that there is room for both Mother and the Child in Ms.

Lowinger’s home and that the Child has not suffered from any illness, with the

exception of a minor cold, while in New Jersey. Ms. Lowinger acknowledged,

however, that she did not know that Mother had taken the Child to a doctor in New

Jersey on eight separate occasions. Following Ms. Lowinger’s testimony, the court

adjourned and advised the parties that it would schedule a second day for the hearing

as soon as practicable.

8. On February 24, 2022, the Family Court advised the parties that the

second day of the hearing would be held on July 1, 2022. On April 25, 2022, counsel

for Mother moved to withdraw, citing a breakdown in the attorney-client relationship

5
following the January hearing. Without objection from Mother or Father, the court

granted the motion.

9. On June 1, 2022, Mother, now proceeding pro se, filed a motion for the

appointment of a custody evaluator and a motion to continue the July 1 hearing,

indicating, among other things, that she needed additional time to obtain new

counsel. Father objected to both motions, and the court denied the motions on June

24, 2022. On June 30, 2022—the eve of the second day of trial—Mother filed a 44-

page “Notice of Petition; and, Verified Petition for Warrant of Removal with

Criminal Complaint upon Human Trafficking; Claim for Civil Damages” in the

United States District Court for the District of Delaware. Mother also filed a “Notice

of Removal to the United States District Court” in the Family Court. Finally, Mother

emailed personnel at the Family Court and Father’s attorney advising them that, with

the filing of the federal complaint, the parties’ custody matter had been removed to

federal district court.

10. On July 1, 2022, Father appeared for the second day of the custody

hearing, but Mother did not. At the outset of the hearing, the court addressed the

federal complaint. Father’s attorney informed the court that Mother’s attempt to

remove the action to federal court was ineffective because the federal court does not

have subject-matter jurisdiction over child-custody matters and, in any event, the

removal attempt was untimely. The court then heard limited testimony from Father

6
regarding the deterioration of the parties’ ability to co-parent following the January

hearing. Father testified that Mother told him that she would refuse to co-parent

with him or attend any of the Child’s events or activities. Although Mother had

moved out of Ms. Lowinger’s home, she was still residing in New Jersey. Mother

also continued to visit Delaware during the weeks that the Child was in Father’s care,

but she was not exercising her ROFR to visit the Child. When visiting Delaware,

Mother continued to stay at the house where Mr. Colleton resides. Father also

testified that the Child was in need of surgery to insert ear tubes because of the

Child’s persistent ear infections. In April, Mother had refused to consent to the

operation, citing the desire to obtain a second opinion that Mother had, to date, not

yet obtained. The court took judicial notice of Mother’s complaint filed in federal

district court and concluded that Mother’s complaint in that court had not removed

the child-custody action from the Family Court.

11. At the conclusion of the hearing, the court granted Father’s request for

an emergency ex parte order awarding temporary physical placement of the Child to

Father and allowing Mother to have supervised weekly visitation with the Child at

the Georgetown Visitation Center. On July 7, 2022, the court granted Father

exclusive decision-making authority regarding the Child’s need for ear-tube surgery

and any follow-up treatment (the “Surgery Order”). Mother filed a motion for

7
reconsideration of the Surgery Order, claiming that the administration of general

anesthesia posed a grave threat to the Child’s health. The court denied the motion.

12. On October 20, 2022, the Family Court entered an order awarding the

parties joint legal custody, giving Father primary placement of the Child and final

decision-making authority with regard to the Child’s medical care and education,

and establishing a visitation schedule for Mother.2 The court also granted in part

Father’s petition for a rule to show cause, finding that Father had established that

Mother had violated the Custody Agreement by (i) changing the visitation schedule

before she relocated to the New York City area in May 2021, and (ii) failing to give

Father notice that she intended to use an alternate caregiver while the Child was in

her custody on seven occasions. Finally, the court ordered Mother to reimburse

Father for the attorneys’ fees and costs that he incurred in connection with the

petition for a rule to show cause. As part of its ruling, the court ordered the parties

to “continue to abide by the February 22, 2021 Custody Agreement, in all other

respects not inconsistent” with its decision.

13. By Memorandum Opinion and Order dated November 8, 2022, the

United States District Court for the District of Delaware sua sponte remanded the

case to the Family Court for lack of subject matter jurisdiction.3

2
The court also found that Mother’s visits with the Child no longer needed to be supervised.
3
App. to Reply Br. at A296–304.
8
 14. Father filed a timely motion to reargue the Family Court’s decision,

asking that the court’s decision be amended to (i) clarify that the decision does not

include the ROFR provision contained in the Custody Agreement, (ii) change the

visitation-exchange location, and (iii) clarify when visitation exchanges are to take

place during the Child’s summer vacation. On January 23, 2023, the Family Court

granted the motion to reargue to clarify that the ROFR provision of the Custody

Agreement no longer was a part of the parties’ custody arrangement and that

visitation exchanges during the Child’s summer vacation would take place on

Tuesdays. The Family Court denied the motion to reargue to the extent that Father

sought to change the visitation-exchange location. Finally, on January 24, 2023, the

Family Court ordered Mother to reimburse Father for reasonable attorneys’ fees in

the amount of $2,090.00. Mother then filed this appeal.

15. Our review of a decision of the Family Court extends to the facts and

law, as well as inferences and deductions made by the trial judge.4 Our duty is to

review the sufficiency of the evidence and to test the propriety of the findings.5

Findings of fact will not be disturbed on appeal unless they are determined to be

clearly erroneous.6 We will not substitute our opinion for the inferences and

4
Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979).
5
Id.
6
Id.
9
deductions of the trial judge if they are supported by the record.7 If the Family Court

correctly applied the law to the facts, we review its decision for abuse of discretion.8

16. After a custody consent order has been entered by the Family Court, it

may be modified at any time in accordance with the best-interests standards set forth

in 13 Del. C. § 722(a).9 The Family Court must tailor its custody order to “permit

and encourage the child to have frequent and meaningful contact with both parents”

unless it finds that the child’s contact with one parent would endanger the child’s

physical health or impair her emotional development.10

17. On appeal, Mother raises four arguments: (i) the Family Court had no

jurisdiction to consider the pending petitions after Mother removed the action to

federal district court; (ii) the Family Court lacked subject-matter jurisdiction because

the Child’s home state is New Jersey; (iii) the Family Court erroneously shifted the

burden of proof from Father to Mother; and (iv) there was no basis to support the

Family Court’s findings of contempt and award of attorneys’ fees. Mother’s

arguments are without merit.

18. Mother first argues that her filing of the “Notice of Petition; and,

Verified Petition for Warrant of Removal with Criminal Complaint upon Human

7
Id.
8
Clark v. Clark, 47 A.3d 513, 517 (Del. 2012).
9
13 Del. C. § 729(b).
10
13 Del. C. § 728(a).
10
Trafficking; Claim for Civil Damages” in federal district court divested the Family

Court of jurisdiction to consider Father’s petitions. There are several flaws in

Mother’s argument. First, a defendant may remove a civil action to federal court

only if the federal court would have original jurisdiction to hear the matter in the

first instance.11 The courts have long held that federal courts will not exercise

jurisdiction over child-custody matters.12 Indeed, the District Court concluded that

it lacked subject-matter jurisdiction and remanded this case to the Family Court for

precisely that reason.13 Second, a notice of removal of a civil action must be filed

within 30 days of its receipt by the defendant.14 Here, Mother was served with both

the petition for a rule to show cause and the petition for custody modification in May

2021—well over a year before she attempted to remove the matter to federal court.

Simply put, Mother’s attempt to remove this matter to federal court was without

merit because the federal court clearly lacked jurisdiction to hear this case and the

11
See 28 U.S.C. § 1441(a) (“Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such action is pending.”).
12
Thomas v. Martin-Gibbons, 857 F. App’x 36, 38 (2d Cir. 2021) (“As a general matter, the
domestic relations exception provides that federal courts will not exercise subject matter
jurisdiction where a federal court is asked to . . . award custody of a child.” (internal quotation
marks and citation omitted)).
13
App. to Reply Br. at A299–301.
14
28 U.S.C. § 1446(b).
11
notice of removal was untimely. Under these circumstances, the notice of removal

did not divest the Family Court of its jurisdiction to rule on the pending petitions.15

19. Mother next argues that the Family Court lacked subject-matter

jurisdiction over the custody modification proceeding because New Jersey is the

Child’s home state. Because Mother did not raise this argument below, we review

it for plain error.16 We find no such error here. Under the Uniform Child Custody

Jurisdiction and Enforcement Act, the Delaware Family Court has jurisdiction over

a custody action if Delaware is the Child’s home state.17 It is undisputed that the

Child, who was born in Delaware in April 2019, had been living in Delaware for six

consecutive months before Father filed his petition for custody in March 2020, and

continued to live in Delaware (with both parents) until the Family Court entered the

15
ClipperJet Inc. v. Tyson, 251 Cal. Rptr. 3d 34, 40 (2019) (holding state court not deprived of
jurisdiction where notice of removal was frivolous or duplicative); McDonald v. Zions First Nat’l
Bank, N.A., 348 P.3d 957, 962 (Colo. App. 2015) (holding state court “is not deprived of
jurisdiction where a party's notice of removal to a federal court indicates, on its face and as a matter
of law, that the party's attempt to remove the case was without the slightest color of right or merit”);
In connection with this argument, Mother claims that the Family Court judge must be recused from
any further proceedings related to the parties’ custody arrangement. Because Mother failed to
raise this argument to the Family Court in the first instance, we review it for plain error. Supr. Ct.
R. 8. We find no plain error here. The Family Court judge’s determination that the court had
jurisdiction to entertain the pending petitions was not evidence of extra-judicial bias against
Mother requiring recusal. See Los v. Los, 595 A.2d 381, 384–85 (Del. 1991) (“To be disqualified
the alleged bias or prejudice of the judge must stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the judge learned from his participation in the
case.” (internal quotation marks and citation omitted)).
16
Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review;
provided, however, that when the interests of justice so require, the Court may consider and
determine any question not so presented.”).
17
13 Del. C. § 1920(a).
12
Custody Agreement as a court order on February 22, 2021.18 Accordingly, the

Family Court had (and has) continuing and exclusive jurisdiction over the

modification of the Custody Agreement provided either the Child or at least one

parent continues to live in Delaware throughout these proceedings.19 Because Father

has continued to reside in Delaware, the Family Court had jurisdiction to modify the

Custody Agreement.

20. Third, Mother contends that the Family Court improperly shifted the

burden of proof to her when it was Father who sought modification of the Custody

Agreement. In essence, Mother argues that it was not in the Child’s best interests to

modify the Custody Agreement. Under 13 Del. C. § 722, which lists eight factors

to guide the court’s analysis, the Family Court is required to determine legal custody

in accordance with the Child’s best interests.20 The weight accorded each factor will

be different in any given proceeding, and “[i]t is quite possible that the weight of

one factor will counterbalance the combined weight of all other factors and be

outcome determinative in some situations.”21 Here, the Family Court carefully

considered all the Section 722 factors and found that four of the factors—factor three

18
See 13 Del. C. § 1902(7) (defining the “home state” for a child older than six months as “the
state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive
months immediately before the commencement of a child custody proceeding”).
19
13 Del. C. § 1921(a).
20
See 13 Del. C. § 722(a) (“The Court shall determine the legal custody and residential
arrangements for a child in accordance with the best interests of the child.”).
21
Fisher v. Fisher, 691 A.2d 619, 623 (Del. 1997).
13
(the Child’s interaction with her parents, grandparents, and any persons who may

significantly affect the Child’s best interests), factor four (the Child’s adjustment to

her home, school, and community), factor five (the mental and physical health of all

individuals involved), and factor six (the parties’ past and present compliance with

their parental rights and responsibilities to the Child)—weighed in favor of awarding

Father primary placement of the Child. The court found the remaining factors either

irrelevant or neutral. Because Mother sought to relocate the Child to New Jersey,

the Family Court also considered the factors enumerated in 13 Del. C. § 73422 and

found that they did not support relocation. The record reflects that the Family Court

considered the relevant factors and made factual findings that are supported by the

record. We find no abuse of discretion in the Family Court’s decision to award

primary placement of the Child to Father.

21. Finally, Mother claims that the Family Court erred by finding Mother

in contempt of court for failing to comply with the terms of the Custody Agreement

and directing her to compensate Father for the attorneys’ fees he incurred filing the

petition for a rule to show cause. Mother essentially argues that Father’s entire

petition was frivolous because the court found that Father had not proven certain

allegations contained therein. We have reviewed the record carefully and are

22
13 Del. C. § 734 (identifying factors to be considered when a party proposes the relocation of a
child for a period of 60 days or more involving a move outside of Delaware).
14
satisfied that the court’s conclusion was amply supported by the evidence. The

Family Court therefore did not abuse its discretion by directing Mother to reimburse

Father for the fees he incurred to pursue the petition.23

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

Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow
Justice

23
See Tanner v. Allen, 149 A.3d 1026, 2016 WL 6135339, at *2 (Del. Oct. 21, 2016) (TABLE)
(noting that the Family Court has broad discretion to award attorney fees and costs).
15