IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAN BURK, 1 § § No. 94, 2024 Respondent Below, § Appellant, § Court Below–Family Court § of the State of Delaware v. § § File No. CN22-05138 RICHARD KURTIS and SARAH § Petition No. 22-22504 KURTIS, § § Petitioners Below, § Appellees. §
Submitted: January 10, 2025 Decided: March 24, 2025
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the parties’ briefs and the Family Court record, it
appears to the Court that:
(1) The appellant, Jan Burk (“Mother”), is the mother of a girl, born in July
2015 (the “Child”). Mother and the Child’s father (“Father”) married in 2013,
separated in March 2019, and divorced in January 2021. Father died by apparent
suicide in March 2022. In October 2022, Father’s parents, the appellees, Sarah Kurtis
(“Paternal Grandmother”) and Richard Kurtis (“Paternal Grandfather” and, together
1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). with Paternal Grandmother, “Paternal Grandparents”), petitioned the Family Court
for third-party visitation with the Child (the “Petition”). Mother opposed the
Petition.
(2) The Family Court held a hearing on the Petition over two days on
October 19, 2023, and January 2, 2024. In support of the Petition, Paternal
Grandparents presented evidence of the close relationship they had with the Child
before Mother terminated their access to the Child in December 2019. Specifically,
the evidence showed that Mother, Father, and the Child had resided with Paternal
Grandparents at their home in New Jersey for approximately two-and-one-half years
after the Child’s birth. And, after Mother, Father, and the Child moved out of
Paternal Grandparents’ home and into a nearby condominium, the parties continued
to enjoy a good relationship (even after Mother and Father separated), with the Child
spending several days at Paternal Grandparents’ home every other weekend.
(3) On October 31, 2019, Father, who suffered from mental health
disorders and substance abuse, set fire to the condominium where he had continued
to reside following his separation from Mother. Thereafter, Father entered a
residential mental health treatment program, where he remained until he was
discharged in January 2020. At some point while Father was hospitalized, Mother
obtained a temporary restraining order prohibiting Father from contacting Mother or
2 the Child. 2 However, Mother continued to communicate regularly with Paternal
Grandparents, who continued to see the Child frequently until late December 2019
when Mother—for reasons unknown to Paternal Grandparents—stopped responding
to Paternal Grandparents’ text messages and emails. Nevertheless, Paternal
Grandparents continued to text and email Mother, asking to see the Child. Paternal
Grandparents also mailed letters to the Child with the hope that Mother would read
them to her.
(4) In opposition to the Petition, Mother argued that Paternal Grandparents
had enabled or excused some of Father’s more troubling behaviors. Mother alleged
that Father had—with Paternal Grandparents’ knowledge—forced the Child to eat
live insects and raw meat, dissected live animals in front of the Child, and assaulted
Mother. Paternal Grandfather acknowledged that he was aware that Father had
suggested to the Child that she eat live insects and raw meat and that he considered
the suggestion unorthodox. Similarly, he admitted to hearing that Father had
dissected a live turtle in front of the Child. But Paternal Grandfather observed that
these activities did not take place in Paternal Grandparents’ home and noted that, as
a grandparent, he deferred to Father’s parenting decisions. For her part, Mother
admitted that these incidents took place at the condominium where Mother, Father,
2 A permanent restraining order was entered on September 30, 2020.
3 and the Child were living as a family and that these incidents did not cause her to
leave the marriage. With regard to Mother’s allegation that Paternal Grandparents
had declined to intervene on her behalf when she told them that Father had assaulted
her, they vehemently denied having any such knowledge. Finally, the evidence
showed that (i) following her separation from Father in March 2019, Mother and the
Child lived with Mother’s parents at their home in New Jersey until Mother and the
Child relocated to Delaware with Mother’s boyfriend, and (ii) the Child had not seen
her maternal grandparents since the summer of 2021.
(5) By way of written order issued on February 6, 2024, the Family Court
granted Paternal Grandparents’ petition (the “Order”). Applying the test for third-
party visitation set forth in 13 Del. C. § 2412, the Family Court found that Mother
objected to the Petition, but that Paternal Grandparents had (i) established, by clear
and convincing evidence, that her objection was unreasonable, and (ii)
demonstrated, by a preponderance of the evidence, that granting the Petition would
not substantially interfere with the parent/child relationship. 3 The court then
considered the best-interest factors set forth in 13 Del. C. § 722(a), and concluded
that granting the Petition was in the Child’s best interest. 4 Mother appeals.
3 13 Del. C. § 2412(a). 4 Id. § 2412(b).
4 (6) Our review of a decision of the Family Court extends to a review of the
facts and law, as well as inferences and deductions made by the trial judge. 5 Our
duty is to review the sufficiency of the evidence and to test the propriety of the trial
court’s findings.6 Findings of fact will not be disturbed on appeal unless they are
clearly erroneous.7 If the Family Court correctly applied the law to the facts, we
review its decision for abuse of discretion.8 “When the determination of facts turns
on a question of the credibility and the acceptance or rejection of the testimony of
witnesses appearing before the trier of fact, we will not substitute our opinion for
that of the trier of fact.” 9
(7) On appeal, Mother’s arguments may be fairly summarized as follows:
(i) the Family Court did not have jurisdiction over the Petition because she and the
Child moved to Maryland while the Petition was pending; (ii) Paternal Grandparents
downplayed the seriousness of Father’s mental illness to her and the Child’s
detriment; (iii) the Order improperly referred to evidence outside the record
regarding Mother’s mental health; (iv) the Family Court made improper findings
about Mother’s relationship with her parents; and (v) the Family Court erred when
5 Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979). 6 Id. 7 Id. 8 Clark v. Clark, 47 A.3d 513, 517 (Del. 2012). 9 Shimel v. Shimel, 2019 WL 2142066, at *2 (Del. May 14, 2019).
5 it denied Mother’s motion to interview the Child. None of these arguments merit
reversal.
(8) First, although the Order incorrectly states that Mother was living in
Delaware at the time of the April 19, 2023 case management conference, the Family
Court nevertheless had jurisdiction over the Petition because Mother and the Child
were living in Delaware when the Petition was filed.10 Moreover, and contrary to
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAN BURK, 1 § § No. 94, 2024 Respondent Below, § Appellant, § Court Below–Family Court § of the State of Delaware v. § § File No. CN22-05138 RICHARD KURTIS and SARAH § Petition No. 22-22504 KURTIS, § § Petitioners Below, § Appellees. §
Submitted: January 10, 2025 Decided: March 24, 2025
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the parties’ briefs and the Family Court record, it
appears to the Court that:
(1) The appellant, Jan Burk (“Mother”), is the mother of a girl, born in July
2015 (the “Child”). Mother and the Child’s father (“Father”) married in 2013,
separated in March 2019, and divorced in January 2021. Father died by apparent
suicide in March 2022. In October 2022, Father’s parents, the appellees, Sarah Kurtis
(“Paternal Grandmother”) and Richard Kurtis (“Paternal Grandfather” and, together
1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). with Paternal Grandmother, “Paternal Grandparents”), petitioned the Family Court
for third-party visitation with the Child (the “Petition”). Mother opposed the
Petition.
(2) The Family Court held a hearing on the Petition over two days on
October 19, 2023, and January 2, 2024. In support of the Petition, Paternal
Grandparents presented evidence of the close relationship they had with the Child
before Mother terminated their access to the Child in December 2019. Specifically,
the evidence showed that Mother, Father, and the Child had resided with Paternal
Grandparents at their home in New Jersey for approximately two-and-one-half years
after the Child’s birth. And, after Mother, Father, and the Child moved out of
Paternal Grandparents’ home and into a nearby condominium, the parties continued
to enjoy a good relationship (even after Mother and Father separated), with the Child
spending several days at Paternal Grandparents’ home every other weekend.
(3) On October 31, 2019, Father, who suffered from mental health
disorders and substance abuse, set fire to the condominium where he had continued
to reside following his separation from Mother. Thereafter, Father entered a
residential mental health treatment program, where he remained until he was
discharged in January 2020. At some point while Father was hospitalized, Mother
obtained a temporary restraining order prohibiting Father from contacting Mother or
2 the Child. 2 However, Mother continued to communicate regularly with Paternal
Grandparents, who continued to see the Child frequently until late December 2019
when Mother—for reasons unknown to Paternal Grandparents—stopped responding
to Paternal Grandparents’ text messages and emails. Nevertheless, Paternal
Grandparents continued to text and email Mother, asking to see the Child. Paternal
Grandparents also mailed letters to the Child with the hope that Mother would read
them to her.
(4) In opposition to the Petition, Mother argued that Paternal Grandparents
had enabled or excused some of Father’s more troubling behaviors. Mother alleged
that Father had—with Paternal Grandparents’ knowledge—forced the Child to eat
live insects and raw meat, dissected live animals in front of the Child, and assaulted
Mother. Paternal Grandfather acknowledged that he was aware that Father had
suggested to the Child that she eat live insects and raw meat and that he considered
the suggestion unorthodox. Similarly, he admitted to hearing that Father had
dissected a live turtle in front of the Child. But Paternal Grandfather observed that
these activities did not take place in Paternal Grandparents’ home and noted that, as
a grandparent, he deferred to Father’s parenting decisions. For her part, Mother
admitted that these incidents took place at the condominium where Mother, Father,
2 A permanent restraining order was entered on September 30, 2020.
3 and the Child were living as a family and that these incidents did not cause her to
leave the marriage. With regard to Mother’s allegation that Paternal Grandparents
had declined to intervene on her behalf when she told them that Father had assaulted
her, they vehemently denied having any such knowledge. Finally, the evidence
showed that (i) following her separation from Father in March 2019, Mother and the
Child lived with Mother’s parents at their home in New Jersey until Mother and the
Child relocated to Delaware with Mother’s boyfriend, and (ii) the Child had not seen
her maternal grandparents since the summer of 2021.
(5) By way of written order issued on February 6, 2024, the Family Court
granted Paternal Grandparents’ petition (the “Order”). Applying the test for third-
party visitation set forth in 13 Del. C. § 2412, the Family Court found that Mother
objected to the Petition, but that Paternal Grandparents had (i) established, by clear
and convincing evidence, that her objection was unreasonable, and (ii)
demonstrated, by a preponderance of the evidence, that granting the Petition would
not substantially interfere with the parent/child relationship. 3 The court then
considered the best-interest factors set forth in 13 Del. C. § 722(a), and concluded
that granting the Petition was in the Child’s best interest. 4 Mother appeals.
3 13 Del. C. § 2412(a). 4 Id. § 2412(b).
4 (6) Our review of a decision of the Family Court extends to a review of the
facts and law, as well as inferences and deductions made by the trial judge. 5 Our
duty is to review the sufficiency of the evidence and to test the propriety of the trial
court’s findings.6 Findings of fact will not be disturbed on appeal unless they are
clearly erroneous.7 If the Family Court correctly applied the law to the facts, we
review its decision for abuse of discretion.8 “When the determination of facts turns
on a question of the credibility and the acceptance or rejection of the testimony of
witnesses appearing before the trier of fact, we will not substitute our opinion for
that of the trier of fact.” 9
(7) On appeal, Mother’s arguments may be fairly summarized as follows:
(i) the Family Court did not have jurisdiction over the Petition because she and the
Child moved to Maryland while the Petition was pending; (ii) Paternal Grandparents
downplayed the seriousness of Father’s mental illness to her and the Child’s
detriment; (iii) the Order improperly referred to evidence outside the record
regarding Mother’s mental health; (iv) the Family Court made improper findings
about Mother’s relationship with her parents; and (v) the Family Court erred when
5 Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202, 1204 (Del. 1979). 6 Id. 7 Id. 8 Clark v. Clark, 47 A.3d 513, 517 (Del. 2012). 9 Shimel v. Shimel, 2019 WL 2142066, at *2 (Del. May 14, 2019).
5 it denied Mother’s motion to interview the Child. None of these arguments merit
reversal.
(8) First, although the Order incorrectly states that Mother was living in
Delaware at the time of the April 19, 2023 case management conference, the Family
Court nevertheless had jurisdiction over the Petition because Mother and the Child
were living in Delaware when the Petition was filed.10 Moreover, and contrary to
Mother’s claim on appeal that she “strongly” objected to Delaware having
jurisdiction over the Petition, the parties agreed at the case management conference
that Delaware was the proper venue for the limited purpose of deciding the
Petition.11
(9) We construe Mother’s argument that Paternal Grandparents allegedly
failed to protect Mother and the Child from the seriousness of Father’s mental health
diagnoses as an argument that the Family Court erred when it found that Paternal
Grandparents had established that Mother’s objection to the Petition was
10 See 13 Del. C. § 1920(a) (providing that Delaware has jurisdiction to hear custody matters when another state does not have jurisdiction and the child and at least one parent have significant connections to Delaware). Because Mother and the Child were no longer living in New Jersey when the Petition was filed, New Jersey was not an appropriate venue for third-party-visitation proceedings. 11 See Beeks v. State, 2015 WL 7756858, at *3 (Del. Dec. 1, 2015) (“[A] conscious decision to refrain from objecting at trial as a tactical matter constitutes a waiver that precludes plain error review on direct appeal.”). As the Family Court noted, because Mother and the Child have moved to Maryland, any future petitions regarding custody of or visitation with the Child will need to be filed in Maryland.
6 unreasonable. As the trier of fact, the Family Court was responsible for making
credibility determinations. The court—giving significant weight to the evidence that
showed that Mother continued to have a positive relationship with Paternal
Grandparents following Father’s psychotic episode and hospitalization in the fall of
2019 as well as the fact that Father was no longer able to pose a threat to the Child—
concluded that Mother’s claim that Paternal Grandparents posed a threat to the Child
was not credible. We will not set aside this credibility determination on appeal.
(10) Mother also complains that the Order improperly refers to evidence
introduced before the same Family Court judge in unrelated proceedings. The record
reflects that Paternal Grandparents’ legal counsel attempted to elicit testimony from
Mother regarding a petition for a protection-from-abuse (“PFA”) order that she had
filed against her father, which was, apparently, denied. Mother’s counsel objected
to the relevance of the PFA proceedings, and the Family Court sustained counsel’s
objection. In the Order, however, the Family Court took judicial notice of Mother’s
testimony in the PFA proceedings, the Family Court commissioner’s findings at the
conclusion of Mother’s testimony, and the Family Court’s decision affirming the
commissioner’s findings. Assuming without deciding that the Family Court erred
when it took judicial notice of the unrelated PFA proceedings after it had sustained
Mother’s objection to the relevancy of those proceedings, the Family Court’s error
7 does not warrant reversal because the court correctly applied the test for third-party
visitation to the facts before it.
(11) Mother next argues that the Family Court makes “false and highly
offensive” statements about Mother’s relationship with her parents and that there is
no evidence that her current fiancé is to blame for Mother’s estrangement from her
parents. In its discussion of the best-interest factors, the Family Court pondered
whether Mother’s objection to the Petition might be relevant to factor 5 (the mental
and physical health of the parties) because it seemed that Mother began to isolate
herself from others around the time that she began dating her fiancé. But the Family
Court dismissed the relevance of that theory because there was “no evidence” to
support a finding that Mother was emotionally vulnerable. In this context, the Family
Court’s musings do not constitute reversable error.
(12) Finally, Mother argues that the Family Court erred when it denied her
request that the court interview the Child. The decision to interview a child to
ascertain her wishes lies within the sole discretion of the Family Court.12 The Family
Court did not abuse its discretion here—the Child, who was only eight years old at
the time of the hearing on the Petition, had not seen Paternal Grandparents for years
and was unlikely to be able to contribute in a meaningful way to the court’s third-
12 Price v. Div. of Family Servs., 2022 WL 10861025, at *3 (Del. Oct. 18, 2022).
8 party-visitation analysis. To the extent that Mother has concerns about the Child’s
sudden reintroduction to Paternal Grandparents, the Family Court acknowledged
that a transitional period of supervised visitation would be appropriate.
(13) Having carefully reviewed the parties’ positions and the record on
appeal, we find no error or abuse of discretion in the Family Court’s ruling. The
Family Court correctly applied the law to the facts before it when it determined that
Paternal Grandparents satisfied the standard for third-party visitation under 13 Del.
C. § 2412. We therefore affirm.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court be AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura Justice