Rogers v. Trent , 594 A.2d 32 ( 1991 )

594 A.2d 32 (1991)

Phillip ROGERS,^[*] Petitioner Below, Appellant,
v.
Ruth TRENT and William Trent, Respondents Below, Appellees.

Supreme Court of Delaware.

Submitted: May 14, 1991. Decided: June 12, 1991.

Sheryl Rush-Milstead, Wilmington, for appellant.

Ruth Trent and William Trent, pro se.

Before HORSEY, WALSH, and HOLLAND, JJ.

WALSH, Justice:

This appeal from a decision of the Family Court presents the question of whether the Family Court has the authority to grant visitation rights to a non-parent. The petitioner-appellant, Phillip Rogers ("Rogers"), filed a petition in the Family Court seeking custody of his minor son. The court granted his petition, but also granted visitation rights to the respondents-appellees, Ruth and William Trent (the "Trents"), the child's great-aunt and uncle. Rogers contends the Family Court erred as a matter of law in granting visitation rights to the Trents as non-parents. We find this claim to be without merit.

I

Rogers and his former wife, Debra Wilson ("Wilson"), were married in March, 1981. This union produced two children Andrew, the subject of the current custody dispute, and an older son, Phillip. Rogers and Wilson were separated in 1986 and divorced shortly thereafter.

Initially, both children resided with their mother. Andrew, however, began to experience behavioral problems both at school and at home and was sent to live with Rogers. While residing with his father, Andrew's behavioral problems continued. After three months, he was returned to his mother because Rogers was living with relatives and was unable to provide Andrew with an adequate home. Finally, Andrew's mother placed him with the Trents, her aunt and uncle.

The Trents were granted temporary custody by order of the Family Court and raised Andrew as their own. While under their care, Andrew received counseling and tutorial assistance which helped him overcome many of his behavioral problems. In 1990, Rogers filed a petition in the Family Court seeking custody of Andrew. The Family Court granted Rogers' petition for custody after determining he could provide an adequate home for Andrew. The court also gave the Trents the right to visit with Andrew one weekend each month.

II

Rogers' sole contention on appeal is that the statutory entitlement to visitation applies only to the legal parents of a minor child; therefore, the Family Court erred in granting visitation rights to the Trents. We disagree.

In evaluating a petition for visitation, a court must base its determination upon the "best interest of the child." 13 Del.C. §§ 722 & 728; See Rosemary E.R. v. Michael G.Q., Del.Supr., 471 A.2d 995, 996 (1984). This Court has held that, "the ``best interest of the child' is ... the ultimate test for visitation." Elizabeth A.S. v. Anthony M.S., Del.Supr., 435 A.2d 721, 725 (1981) (emphasis added). Thus, the welfare of the child is the single most important factor in determining visitation rights and must not be subordinated to any other interests.

Rogers argues that the statutory provisions governing the determination of custody and visitation are replete with references to "parents," and that these references act as a limitation on the Family Court's power to grant visitation rights to a non-parent. See 13 Del.C. §§ 727 & 728. We believe, however, that the legislature did not intend to so circumscribe the power of the Family Court. As noted above, the ultimate test for visitation is the "best interest of the child." While sections 727 and 728 provide the basis for a parent's entitlement to visitation, those sections do not exhaust the authority of the Family Court to grant non-parental visitation based on what is best for the child. The record supports the conclusion that Andrew clearly benefitted from his relationship with the Trents. As the Family Court stated, "[the Trents] have helped tremendously in alleviating some of the problems [Andrew] had experienced and have been successful in assuring his adjustment educationally as well as emotionally."

The Family Court is vested with broad discretion to grant visitation in accordance with the "best interest of the child." The task is a difficult one, but the trial court has the "unique opportunity," and advantage of observing the parties and the witnesses. Rosemary E.R. v. Michael G.Q., 471 A.2d at 997. In evaluating the evidence to determine how the welfare of the child will best be served, the court must be sensitive to the emotional trauma implicit in relocating a child of tender years from surroundings in which he or she has advanced and benefitted. While normally this will entail granting custody to one parent and visitation to the other, the Family Court may fashion an alternative visitation scheme involving third parties if it determines it is in the best interests of the child to do so. Such a determination may be particularly appropriate where, as here, the third parties have previously exercised custody under court order because of default or inability on the part of the parents.

In the present case, the Family Court concluded, as a matter of discretion, that it was in the best interest of Andrew to maintain contact with the Trents. Andrew clearly benefitted from the love and affection bestowed upon him by the Trents, and the court thought it appropriate to secure such contact through visitation rights when its prior order granting temporary custody of Andrew to the Trents was superseded by the order granting permanent custody of Andrew to Rogers. This Court will not disturb the Family Court's exercise of discretion absent a clear showing of abuse. Finding no such abuse, we AFFIRM the Family Court's decision to grant visitation rights to the Trents.

NOTES

[*] Pseudonyms for all parties have been adopted to assure confidentiality pursuant to Supreme Court Rule 7(c).