IN THE SUPREME COURT OF THE STATE OF DELAWARE
JILL NACCARI,1 §
§ No. 572, 2018
Respondent Below, §
Appellant, § Court Below—Family Court
§ of the State of Delaware
v. §
§ File No. CN18-02284
MICHAEL QUAILS, § Petition No. 18-08173
§
Petitioner Below, §
Appellee. §
Submitted: August 23, 2019
Decided: October 24, 2019
Before VAUGHN, SEITZ, and TRAYNOR, Justices.
ORDER
After consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) The appellant, Jill Naccari (“the Mother”), filed this appeal from a
Family Court decision and order, dated October 12, 2018, granting the petition for
visitation filed by Michael Quails (“the Father”). We find no error or abuse of
discretion in the Family Court’s decision. Accordingly, we affirm the Family
Court’s judgment.
1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
(2) The Mother and the Father are the parents of a child born in 2017 (“the
Child”). On March 19, 2018, the Father filed a petition for visitation with the Child
two days a week and every other weekend. The Mother opposed the petition. After
an unsuccessful mediation, the mediator recommended—and the Family Court
approved—an interim visitation order granting the Father non-overnight visitation
every other weekend and one weekly non-overnight dinner with the Child. After a
hearing on October 8, 2018, the Family Court issued a decision granting the Father
visitation with the Child every other weekend. This appeal followed.
(3) 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 novo.3 Factual
findings will not be disturbed on appeal unless they are clearly erroneous and justice
required they be overturned on appeal.4
(4) On appeal, the Mother argues that the Family Court erred by: (i)
granting the Father visitation despite his admitted use of marijuana; (ii ) not granting
emergency relief under Family Court Civil Rules 65.2 and 226; and (ii) violating the
Delaware Child Support Formula. The Mother also appears to raise claims based on
events occurring after issuance of the visitation order or other Family Court
proceedings. Those claims are outside the scope of this appeal.
2
Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).
3
Id.
4
Id.
2
(5) The Family Court must determine visitation “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.”5 The best interest
factors are set forth in 13 Del. C. § 722(a).6 The Family Court carefully considered
§ 728(a) and all of the best interest factors under § 722 in determining that it was in
the best interests of the Child to have visitation with the Father every other weekend.
(6) In reaching this decision, the Family Court took the Father’s admitted
marijuana use into account. The Father claimed that he only occasionally used
marijuana when the Child was not in his care, but the Family Court noted that
marijuana is illegal and stays in the system. To address the Mother’s concerns
regarding Father’s marijuana use, the Family Court required that the Father’s
girlfriend or mother supervise overnight visitation until he could return a clean drug
test. The Mother has not shown that a parent’s marijuana use, by itself, precludes
overnight visitation. The Family Court did not err in granting the Father overnight
5
13 Del. C. § 728(a).
6
The § 722 factors include: (i) the wishes of the parents; (ii) the wishes of the child; (iii) the
interaction of the child with his parents, relatives and any other residents of the household; (iv) the
child’s adjustment to his home, school and community; (v) the mental and physical health of all
individuals involved; (vi) past and present compliance of the parents with their rights and
responsibilities to their child; and (vii) evidence of domestic violence.
3
visitation, subject to certain restrictions as long as he used marijuana, every other
weekend.
(7) The Mother next claims that the Family Court erred in failing to grant
emergency relief under Family Court Civil Rules 65.2 and 226 based on the Father’s
marijuana use. This claim is without merit. Rule 226, which governs preliminary
protective hearings in dependency, abuse, or neglect proceedings instituted by the
Department of Services for Children, Youth, and their Families, does not apply here.
Under Rule 65.2, the Family Court may grant emergency ex parte orders upon the
motion of a party or the Court’s own motion, but the Mother does not identify what
emergency relief was necessary. Assuming that the Mother wanted emergency relief
to keep the Child away from the Father, she has not shown that the Father’s
marijuana use merited such relief.
(8) Finally, the Mother contends that the Family Court violated the
Delaware Child Support Formula. The basis for this claim is unclear. It appears that
the Mother has filed child support petitions, but this appeal arises from the visitation
proceedings. To the extent the Mother claims that she is entitled to child support
from the Father, that claim is outside the scope of this appeal. To the extent Mother
claims that the Delaware Child Support Formula prohibits parents who do not pay
child support from having visitation with their children, she is incorrect.
4
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
5