Phyllis C. Batchelder v. David D. Batchelder

This is a child custody case between Father and Mother, divorced
since 1997, concerning their eleven-year-old daughter. Both parents had joint legal
custody with the child residing primarily with Mother. Father had extensive
visitation. Mother decided to move to North Carolina and requested a visitation
modification in the Family Court. Father filed an answer denying that it was in the
child's best interest to relocate to North Carolina and seeking physical custody.

Mother claims two errors on appeal. First, Mother asserts she was
denied the proper notice that the hearing would consider permanent custody of the
child and not merely a modification of visitation. Mother claims this lack of notice
amounted to a due process violation. Second, Mother asserts that the Family Court
failed to conduct the necessary best interest of the child analysis.

This Court's review of appeals from the Family Court extends to
review of the facts and law as well as to a review of the inferences and deductions
made by the judge.1 This Court will not disturb findings of fact unless they are
clearly wrong and justice requires they be overturned.2 This Court will not
substitute its own opinion for the inferences and deductions made by the trial judge if they are supported by the record and are the product of an orderly and logical
deductive process.3 Issues of law are reviewed de novo.

Mother's first argument lacks merit. Father specifically requested
permanent physical custody of the child in his Answer. Although the notice from
the Family Court was called "Petition for Modification of Visitation," Mother had
adequate notice that Family Court would address physical custody of the child.

Mother's second argument, however, requires reversal. The Family
Court judge listed all the factors of 13 Del. C. § 722 and specifically addressed five
of the seven factors. However, the judge did not discuss factors six and seven on
which Mother did present some evidence. The judge did not evaluate Father's
choice not to exercise his full five weeks summer visitation and weeknight visits
with the child, nor the vague allegations of Father's abuse of Mother during the
marriage (factors six and seven, respectively).

While it is not automatic grounds for reversal if the Family Court does
not explicitly discuss all the factors so long as "a fair reading of the decision below
demonstrates implicit application of the statutory factors in the court's effort to
reach a decision on modification that accords with the best interests of the child."5
Mother here elicited testimony on factors six and seven of the analysis during the hearing. A fair reading makes it impossible to determine whether the Family Court
judge included those issues in his analysis. This fact prevents us from concluding
that the decision demonstrated an "implicit" application of the factors. Therefore,
this matter is reversed and remanded with a request that the Family Court judge
specify, address and weigh factors six and seven in his decision.

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Click the case caption above for the full text of the court's opinion.

NOW, THEREFORE, IT IS ORDERED, that the judgment of the Family
Court is REVERSED and REMANDED for further proceedings consistent with
this Order. Jurisdiction is retained.

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Digested by K. Morlan