IN THE SUPREME COURT OF THE STATE OF DELAWARE
KARL R. JARVIS,1 § § No. 105, 2020 Petitioner Below, § Appellant, § Court Below—Family Court § of the State of Delaware v. § § File No. CN19-01993 DONNA MOLE and DAVID BAND, § Petition No. 19-07069 § Respondents Below, § Appellees. §
Submitted: September 18, 2020 Decided: November 12, 2020
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
After consideration of the parties’ briefs and the record below, it appears to
the Court that:
(1) The petitioner below-appellant, Karl R. Jarvis (“the Former Step-
Grandfather”), filed this appeal from a Family Court order, dated February 21, 2020,
denying his petition for third-party visitation. For the reasons set forth below, we
affirm the Family Court’s judgment.
(2) The child (“the Child”), who was born in 2015, is the son of Donna
Mole (“the Mother”) and David Band (“the Father”). The Former Step-Grandfather
1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). is the former husband of the Child’s maternal grandmother (“the Grandmother”).
The Mother and Child spent time at the residence of the Grandmother and Former
Step-Grandfather during their marriage and divorce proceedings.
(3) On March 8, 2019, the Former Step-Grandfather filed a petition for
third-party visitation. The Mother opposed the petition. After the Former Step-
Grandfather and the Mother failed to appear for mediation, the Family Court
dismissed the petition. The Former Step-Grandfather moved to reopen the matter,
alleging that he was hospitalized at the time of the mediation. The Family Court
granted the motion over the Mother’s objection.
(4) The Family Court held hearings on the Former Step-Grandfather’s
petition on November 8, 2019 and November 25, 2019. The Family Court heard
testimony from the Former Step-Grandfather, his daughter, the Mother, and the
Father. The Former Step-Grandfather presented testimony and evidence that he
spent substantial time with the Child while he and the Grandmother shared the same
residence, bought Christmas presents for the Child, set up a college fund for the
Child, and named the Child in his will. The Mother and the Father objected to
Former Step-Grandfather having visitation with the Child. They claimed he did not
previously have a substantial relationship with the Child. The Mother also objected
to visitation because the Former Step-Grandfather often called her dumb or stupid,
sometimes in the Child’s presence. According to the Former Step-Grandfather, he
2 would tell the Mother that her actions were dumb or stupid. The Mother presented
evidence that the Former Step-Grandfather called the police multiple times between
May 2018 and January 2019 to have her removed from the residence he shared with
the Grandmother because she (and on one occasion the Child) was too noisy and she
was not supposed to stay there under a July 2018 Family Court order in the divorce
proceedings. In the calls, the Former Step-Grandfather said he could not speak with
the Mother or Grandmother.
(5) On February 21, 2020, the Family Court denied the Former Step-
Grandfather’s petition. The Family Court found that that the Former Step-
Grandfather had a substantial and positive relationship with the Child, but that the
Former Step-Grandfather had not demonstrated, by clear and convincing evidence,
that the parents’ objections to visitation were unreasonable. This appeal followed.
(6) On appeal, the Former Step-Grandfather argues that the Family Court
erred by failing to analyze the best-interest factors under 13 Del. C. § 722 and by
determining that the Former Step-Grandfather did not meet his burden of proving,
by clear and convincing evidence, that the parents’ objections to visitation were
unreasonable.
3 (7) 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.4 To obtain
third-party visitation, the Former Step-Grandfather first had to establish he had a
substantial and positive prior relationship with the Child.5 Because the parents
objected to visitation, the Former Step-Grandfather also had to prove that: (i)
visitation was in the Child’s best interests under 13 Del. C. § 722;6 (ii) the parents’
objections were unreasonable by clear and convincing evidence; and (iii) visitation
would not substantially interfere with the parent/child relationship by a
preponderance of the evidence.7
(8) After concluding that the Former Step-Grandfather had shown he had
a substantial and positive previous relationship with the Child and that the parents’
testimony to the contrary was not credible, the Family Court held that the Former
Step-Grandfather had not shown, by clear and convincing evidence, that the parents’
2 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006). 3 Id. 4 Id. 5 13 Del. C. § 2410(a)(1). 6 13 Del. C. § 2412(a)(1). The best-interest 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; (vii) evidence of domestic violence; and (viii) the criminal history of any party or resident of the household. 13 Del. C. § 722. 7 13 Del. C. § 2412(a)(2)(d). 4 objections to visitation were unreasonable. The Former Step-Grandfather is correct
that the Family Court did not conduct a best-interest analysis under 13 Del. C. § 722.
According to the Family Court, this was “not a best interest analysis as to” the Child,
“and were that the case, the Court would likely reach a different conclusion.”8 If the
Family Court was suggesting that a consideration of the § 722 best-interest factors
is not part of the third-party visitation analysis, that would be erroneous.
(9) But we do not believe that is what the Family Court meant to suggest.
The Family Court laid out the appropriate standard for third-party visitation in its
order.9 The later reference to the best-interest analysis is better read as the Family
Court’s recognition—inartfully expressed—that it could not grant visitation unless
the Former Step-Grandfather satisfied all of the relevant criteria under § 2412.10
Even if the best-interest factors weighed in favor of the Former Step-Grandfather’s
petition as the Family Court suggested, the Family Court still could not grant
visitation unless the Former Step-Grandfather also showed, by clear and convincing
evidence, that the parents’ objections to visitation were unreasonable, and by a
preponderance of the evidence, that visitation would not substantially interfere with
the parents’ relationship with the Child.11 In other situations involving multi-
8 Order at 15 (Del. Fam. Ct. Feb. 21, 2020). 9 Id. at 12-13 & n.8. 10 Grant v. Grant, 173 A.3d 1051, 1053 (Del. 2017) (“The court may grant third-party visitation only if all three statutory requirements are met.”). 11 13 Del. C. § 2412(a)(2)(d); Grant, 173 A.3d at 1057.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
KARL R. JARVIS,1 § § No. 105, 2020 Petitioner Below, § Appellant, § Court Below—Family Court § of the State of Delaware v. § § File No. CN19-01993 DONNA MOLE and DAVID BAND, § Petition No. 19-07069 § Respondents Below, § Appellees. §
Submitted: September 18, 2020 Decided: November 12, 2020
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
After consideration of the parties’ briefs and the record below, it appears to
the Court that:
(1) The petitioner below-appellant, Karl R. Jarvis (“the Former Step-
Grandfather”), filed this appeal from a Family Court order, dated February 21, 2020,
denying his petition for third-party visitation. For the reasons set forth below, we
affirm the Family Court’s judgment.
(2) The child (“the Child”), who was born in 2015, is the son of Donna
Mole (“the Mother”) and David Band (“the Father”). The Former Step-Grandfather
1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d). is the former husband of the Child’s maternal grandmother (“the Grandmother”).
The Mother and Child spent time at the residence of the Grandmother and Former
Step-Grandfather during their marriage and divorce proceedings.
(3) On March 8, 2019, the Former Step-Grandfather filed a petition for
third-party visitation. The Mother opposed the petition. After the Former Step-
Grandfather and the Mother failed to appear for mediation, the Family Court
dismissed the petition. The Former Step-Grandfather moved to reopen the matter,
alleging that he was hospitalized at the time of the mediation. The Family Court
granted the motion over the Mother’s objection.
(4) The Family Court held hearings on the Former Step-Grandfather’s
petition on November 8, 2019 and November 25, 2019. The Family Court heard
testimony from the Former Step-Grandfather, his daughter, the Mother, and the
Father. The Former Step-Grandfather presented testimony and evidence that he
spent substantial time with the Child while he and the Grandmother shared the same
residence, bought Christmas presents for the Child, set up a college fund for the
Child, and named the Child in his will. The Mother and the Father objected to
Former Step-Grandfather having visitation with the Child. They claimed he did not
previously have a substantial relationship with the Child. The Mother also objected
to visitation because the Former Step-Grandfather often called her dumb or stupid,
sometimes in the Child’s presence. According to the Former Step-Grandfather, he
2 would tell the Mother that her actions were dumb or stupid. The Mother presented
evidence that the Former Step-Grandfather called the police multiple times between
May 2018 and January 2019 to have her removed from the residence he shared with
the Grandmother because she (and on one occasion the Child) was too noisy and she
was not supposed to stay there under a July 2018 Family Court order in the divorce
proceedings. In the calls, the Former Step-Grandfather said he could not speak with
the Mother or Grandmother.
(5) On February 21, 2020, the Family Court denied the Former Step-
Grandfather’s petition. The Family Court found that that the Former Step-
Grandfather had a substantial and positive relationship with the Child, but that the
Former Step-Grandfather had not demonstrated, by clear and convincing evidence,
that the parents’ objections to visitation were unreasonable. This appeal followed.
(6) On appeal, the Former Step-Grandfather argues that the Family Court
erred by failing to analyze the best-interest factors under 13 Del. C. § 722 and by
determining that the Former Step-Grandfather did not meet his burden of proving,
by clear and convincing evidence, that the parents’ objections to visitation were
unreasonable.
3 (7) 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.4 To obtain
third-party visitation, the Former Step-Grandfather first had to establish he had a
substantial and positive prior relationship with the Child.5 Because the parents
objected to visitation, the Former Step-Grandfather also had to prove that: (i)
visitation was in the Child’s best interests under 13 Del. C. § 722;6 (ii) the parents’
objections were unreasonable by clear and convincing evidence; and (iii) visitation
would not substantially interfere with the parent/child relationship by a
preponderance of the evidence.7
(8) After concluding that the Former Step-Grandfather had shown he had
a substantial and positive previous relationship with the Child and that the parents’
testimony to the contrary was not credible, the Family Court held that the Former
Step-Grandfather had not shown, by clear and convincing evidence, that the parents’
2 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006). 3 Id. 4 Id. 5 13 Del. C. § 2410(a)(1). 6 13 Del. C. § 2412(a)(1). The best-interest 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; (vii) evidence of domestic violence; and (viii) the criminal history of any party or resident of the household. 13 Del. C. § 722. 7 13 Del. C. § 2412(a)(2)(d). 4 objections to visitation were unreasonable. The Former Step-Grandfather is correct
that the Family Court did not conduct a best-interest analysis under 13 Del. C. § 722.
According to the Family Court, this was “not a best interest analysis as to” the Child,
“and were that the case, the Court would likely reach a different conclusion.”8 If the
Family Court was suggesting that a consideration of the § 722 best-interest factors
is not part of the third-party visitation analysis, that would be erroneous.
(9) But we do not believe that is what the Family Court meant to suggest.
The Family Court laid out the appropriate standard for third-party visitation in its
order.9 The later reference to the best-interest analysis is better read as the Family
Court’s recognition—inartfully expressed—that it could not grant visitation unless
the Former Step-Grandfather satisfied all of the relevant criteria under § 2412.10
Even if the best-interest factors weighed in favor of the Former Step-Grandfather’s
petition as the Family Court suggested, the Family Court still could not grant
visitation unless the Former Step-Grandfather also showed, by clear and convincing
evidence, that the parents’ objections to visitation were unreasonable, and by a
preponderance of the evidence, that visitation would not substantially interfere with
the parents’ relationship with the Child.11 In other situations involving multi-
8 Order at 15 (Del. Fam. Ct. Feb. 21, 2020). 9 Id. at 12-13 & n.8. 10 Grant v. Grant, 173 A.3d 1051, 1053 (Del. 2017) (“The court may grant third-party visitation only if all three statutory requirements are met.”). 11 13 Del. C. § 2412(a)(2)(d); Grant, 173 A.3d at 1057. 5 element standards that a movant must satisfy to obtain relief, this Court has held that
it is unnecessary to consider all of the elements if one of the required elements is
unsatisfied.12
(10) The Former Step-Grandfather contends that the absence of a best-
interest analysis deprived the Family Court of the necessary context to evaluate the
reasonableness of the parents’ objections to visitation, but the Family Court’s order
denying visitation rebuts this claim. In the order, the Family Court reviewed the
testimony and other evidence offered by the parties in support of their positions.
This evidence encompassed many of the best-interest factors, including the parents’
wishes, the interaction of the Child with his relatives, the mental and physical health
of the parties, and the parents’ criminal histories. The Family Court did not lack a
sufficient context to evaluate the parents’ objections to visitation.
(11) Finally, the Family Court did not err in concluding that the Former
Step-Grandfather failed to show, by clear and convincing evidence, that the parents’
objections to visitation were unreasonable. In concluding that the Mother’s
objections to visitation were not clearly unreasonable, the Family Court recognized
the strained relationship between the Mother and the Former Step-Grandfather,
which included their inability to communicate with each other and the Former Step-
12 See, e.g., State v. Reyes, 155 A.3d 331, 354-55 (Del. 2017) (recognizing that it was unnecessary to consider two of three elements necessary for a Brady violation because the movant failed to establish the third element of prejudice). 6 Grandfather making negative comments to and about the Mother. This strained, or
one might say toxic, relationship, was further illustrated by the Former Step-
Grandfather’s calls to police, at least one of which was based on the Child crying
and was made at night when it was not in the Child’s best interest to be awoken and
removed from the home. The record supports the Family Court’s findings.
(12) In dismissing the Family Court’s findings as insufficient to deny
visitation, the Former Step-Grandfather fails to acknowledge that he had the burden
of proving, by clear and convincing evidence, that the parents’ objections to
visitation were unreasonable. The Family Court did not err in concluding that he
did not meet this burden. “[T]o protect parents’ constitutional liberty interest [in
making decisions concerning the care of their children], courts must grant ‘special
weight’ to parents’ views on visitation and their children’s best interests.”13 Having
carefully considered the parties’ positions and the record on appeal, we conclude
that the Family Court’s denial of the Former Step-Grandfather’s petition for third-
party visitation should be affirmed.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Family
Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura__________________ Justice
13 Grant, 173 A.3d at 1053 (quoting Troxel v. Granville, 530 U.S. 57, 69 (2000)). 7