Submitted: August 23, 2019
Below-Family Court of the State of Delaware File No.
CN18-02284 Petition No. 18-08173
VAUGHN, SEITZ, and TRAYNOR, Justices.
Collins J. Seitz, Jr. Justice.
consideration of the parties' briefs and the record on
appeal, it appears to the Court that:
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.
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.
This Court's review of a Family Court decision includes a
review of both the law and the facts. Conclusions of law are
reviewed de novo. Factual findings will not be disturbed
on appeal unless they are clearly erroneous and justice
required they be overturned on appeal.
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.
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." The best interest factors are set forth in
13 Del. C. § 722(a). 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.
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
visitation, subject to certain restrictions as long as he
used marijuana, every other weekend.
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.
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 ...