KARL v. BLAINE, 178 (Del. 2006)

No. 178, 2006.Supreme Court of Delaware.Submitted: August 25, 2006.
Decided: October 17, 2006.

Family Court of the State of Delaware in and for Sussex County § File No. CS05-02784 Petition No. 05-33609.

Before STEELE, Chief Justice, HOLLAND and RIDGELY,
Justices.

ORDER[1]

MYRON T. STEELE, Chief Justice.

This 17th day of October 2006, upon consideration of the briefs on appeal and the record below, it appears to the Court that:

(1) The respondents-appellants, Karl and Tricia Potter (“parents”), filed an appeal from the Family Court’s March 17, 2006 order establishing a visitation schedule for the petitioner-appellee, Stephanie Blaine (“grandmother”), with the parents’ two minor daughters, Barbara and Kathleen. Because the Family Court’s order constituted an abuse of discretion, we hereby VACATE the judgment of the Family Court and REMAND the matter to the Family Court for further proceedings in accordance with this Order.

(2) Grandmother filed a petition in the Family Court requesting visitation with Barbara and Kathleen. The Family Court record reflects that both parents consistently have opposed grandmother having visitation with the children. A hearing took place in the Family Court on March 17, 2006. Although grandmother was present at the hearing with her counsel, the parents did not appear. The parents, who had moved to Florida prior to the hearing, filed a letter in the Family Court on March 14, 2006 requesting a “continuance or a telephone trial.” The letter stated the following: “. . . [W]e currently reside in . . . Florida. It was mentioned in mediation that my family was in the process of moving [because] my husband got a good career offer that would better support the family. If we are forced to return to Delaware for the trial, more than likely my husband will lose his job. . . .” The Family Court denied the parents’ request without providing any reasons for the denial.[2]

(3) Grandmother was the sole witness to testify at the hearing. At the conclusion of the hearing, the Family Court determined, “for the reasons set forth on the record in open Court,” that grandmother would be permitted visitation with the children on the first week-end of each month and for two weeks during their summer vacation.[3]

(4) In their appeal, the parents claim that the Family Court’s order granting grandmother visitation with Barbara and Kathleen was not in their best interest because grandmother is a stranger to them, grandmother does not know their likes and dislikes, grandmother’s home presents a danger to them, and grandmother would not teach them the proper moral values. The parents also argue that the Delaware statute governing grandparents’ visitation[4] violates due process.

(5) We do not have the benefit of the transcript of the hearing, which presumably would provide the basis for the Family Court’s decision. Even without reviewing the transcript, however, it is troubling that the Family Court would deny the parents’ request for a continuance without providing any reasons and then proceed with the hearing in the parents’ absence, even though it should have been clear not only that both parents objected to grandmother’s request for visitation,[5] but also that the parents were no longer living in the State of Delaware. We conclude that, taken together, these actions constitute an abuse of discretion on the part of the Family Court. The Family Court’s order must be vacated and the matter remanded to the Family Court so that, initially, the matter of the Family Court’s jurisdiction can be considered and, if jurisdiction exists, a hearing can be scheduled with appropriate notice to, and participation by, the parents.

NOW, THEREFORE, IT IS ORDERED that the Family Court’s March 17, 2006 visitation order is VACATED. This matter is hereby REMANDED to the Family Court for further proceedings in accordance with this Order. Jurisdiction is not retained.