Kirby v. Perkins

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANDREW KIRBY,1 §
§ No. 371, 2024
Respondent Below, §
Appellant, § Court Below—Family Court
§ of the State of Delaware
v. §
§ File No. CK20-02161
TATUM PERKINS, § Petition Nos. 24-11972,
§ 24-08596
Petitioner Below, §
Appellee. §

Submitted: July 2, 2025
Decided: August 6, 2025

Before VALIHURA, TRAYNOR, and GRIFFITHS, Justices.

ORDER

After consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:2

(1) Appellant Andrew Kirby (“Father”) and Appellee Tatum Perkins

(“Mother”) entered into a stipulated custody order (the “Custody Agreement”)

providing that their minor child (“Child”) would attend Holy Cross school “as soon

as practicable.”3 After Father found out that Mother had enrolled Child at Lake

1
The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
2
We draw the facts from our previous order remanding this action to the Family Court, see Dkt.
21 [hereinafter Supr. Ct. Order], as well as the Family Court’s order on remand, Dkt. 23
[hereinafter Order on Remand].
3
Supr. Ct. Order at 2.
Forest North school, he petitioned the Family Court to issue a rule to show cause

against Mother, alleging that she had not complied with the Custody Agreement.4

Mother responded by filing a petition to modify the Custody Agreement.5 The

Family Court held a consolidated hearing on the petitions. The hearing took place a

month before the school year was to begin. The evidence presented at the hearing

primarily focused on whether Holy Cross (a local private school) was academically

superior to Lake Forest North (a local public school). Father wanted Child to attend

Holy Cross. Mother wanted Child to attend Lake Forest North. The court later

issued its first order modifying the Custody Agreement and vesting Mother with

academic decision-making authority for Child’s kindergarten year.6 In its order, the

court found that it was not “practicable” to send Child to Holy Cross due to Mother’s

financial limitations and travel constraints.7 Father appealed to this Court.

(2) We remanded to the Family Court to reconsider the petitions. We said

that “where Child’s school attendance is at issue, some of the statutory [best

interests] factors may be of questionable utility. But that does not excuse the court

from considering other factors relevant to Child’s best interests for kindergarten. At

a minimum, the Family Court was required to meaningfully evaluate Child’s best

4
Id. at 3.
5
Id.
6
Id. at 4–5.
7
Id.

2
interests by considering all relevant factors.”8 The Family Court did not refer to 13

Del. C. § 729 for modifying custody orders or 13 Del. C. § 722’s best interests

factors.9 We also found that the Family Court did not adequately explain its

conclusion that it was not “practicable” for Child to attend Holy Cross, so we

requested that the court “again consider the Custody Agreement in its analysis on

remand.”10 We directed the court to either reconsider the petitions on the existing

record or hear additional evidence and reconsider the petitions. We retained

jurisdiction.

(3) The Family Court opted to hold an additional hearing that lasted two

days, with testimony coming from the parties, paternal grandfather, and the principal

of Holy Cross. The court then issued its decision modifying the Custody Agreement.

The court first evaluated Child’s best interests under Section 722’s best interests

factors based on the evidence from the hearing. It found that four factors favored

Mother’s position,11 four were neutral,12 and none favored Father’s position. The

8
Id. at 8 (internal citations and quotation marks omitted).
9
Id.
10
Id. at 9.
11
Factors one (wishes of the parents), three (interaction of the child with the parents and other
family members), four (the child’s adjustment to home, school, and community), and six (parents’
compliance with rights and responsibilities to their child) favored Mother’s position. Order on
Remand at 2–6; see also 13 Del. C. § 722(a).
12
Factors two (wishes of the child), five (mental and physical health of all involved), seven
(evidence of domestic violence), and eight (criminal history) were neutral. Order on Remand at
2–6; see also 13 Del. C. § 722(a).

3
court vested Mother with authority to “make school-related decisions for the

child.”13 The court denied Father’s rule to show cause petition.14

(4) In reaching its conclusions, the court found that Mother was present in

Child’s everyday life and was better able to articulate Child’s likes and dislikes. As

to Father, the court found the opposite. Father had not been as present in Child’s

life and the paternal grandfather had much more interaction with Child than Father

did. In the end, the court found that Father was unable to introduce any compelling

evidence about his relationship with Child.

(5) In addition to the enumerated best interests factors, the Family Court

also considered other relevant factors in reaching its conclusion. The court gave

weight to the Custody Agreement; compared the similarities and differences in

public and private education; weighed the credibility of Father’s answers to leading

questions provided by his attorney; and considered paternal grandfather’s unfounded

allegations of racial discrimination at Lake Forest North.15 Also of note, the court

stated that, because paternal grandfather demonstrated that he would cover the costs

of Holy Cross, the “practicability” problem had been resolved.16 But the court

further noted that paternal grandfather was not bound by an order of the Family

13
Order on Remand at 16.
14
Id.
15
Id. at 6–13.
16
Id. at 7.

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Court. Because paternal grandfather was not bound, he could change course on his

commitment to pay school costs at any moment, leaving Mother with no avenue to

compel his compliance.17

(6) The court concluded its holistic analysis by contrasting Child’s

relationships with Mother and Father: “Mother demonstrated a greater commitment

to [Child]’s best interest. She is more engaged with [Child] in general and more

involved in [Child]’s education. Father’s various proposals for school attendance

sounded more of strategy th[a]n sincerity. Mother shall be empowered to make the

decisions about school attendance if the parents are unable to agree.”18

(7) After the Family Court issued its order, the parties submitted

simultaneous supplemental submissions in this Court. Mother asks that we affirm.

Father asks that we reverse and remand. He raises three issues. First, that the Family

Court erred in its best interests analysis because it excluded an out-of-court statement

by Child and denied Father’s request to interview Child. Second, that the court erred

in its consideration of the Custody Agreement because the court did not find that

attending Holy Cross—as stated in the Custody Agreement—was not in Child’s best

interests. And last, that the court improperly relied on sources not presented at the

hearing.

17
Id. at 6.
18
Id. at 14.

5
(8) First, Father attempted to introduce an out-of-court statement by Child

during the hearing. The Family Court denied that request because Father’s attorney

did not provide the statement to Mother “reasonably” in advance of the hearing.

Father contends that this is error because Mother had time to review the statement

before the second day of the hearing, which was weeks later. He also contends that

it was error for the court to deny his request to interview Child about that statement.

Father presumably wanted the court to consider Child’s statement to establish that

Section 722(a)(2)—the child’s wishes—favored him.

(9) To introduce Child’s out-of-court statement into evidence, Father must

meet the criteria under 13 Del. C. § 724(d). Section 724(d) states that “[a]n out-of-

court statement made by a child may be admitted into evidence by the Court if

reasonable notice of the intention to offer the out-of-court statement is given to all

parties and: (1) The child is available to be interviewed[.]” Section 724(d) is

permissive, not mandatory, and is applied under the sound discretion of the trial

court.19 Here, the court found that, due to the expedited nature of the remand

schedule, Mother was not provided reasonable notice under Section 724(d). Apart

from the reasonable notice issue, the court declined to interview Child because it

19
See Price v. Div. of Fam. Servs., 286 A.3d 504, 2022 WL 10861025, at *3 n.12 (Del. Oct. 18,
2022) (TABLE) (stating that the Family Court has “discretion to interview the Child” and further
stating that Section 724 is “permissive”); Maureen F.G. v. George W.G., 445 A.2d 934, 936 (Del.
1982) (“[T]he statute relating to interviewing the child who is subject to a custody proceeding is
permissive and not mandatory.”).

6
stated that the interview would be little help for the issues the court had to decide.

The court found the child’s-wishes factor to be neutral because no evidence was

presented.20 Even if the court had admitted the statement and found that factor

favored Father, the Family Court would have found only one of the enumerated

factors in Section 722 favored Father’s position. In other words, the outcome would

not have changed. This is not reversible error.

(10) Next, Father correctly notes that to modify a custody order, the court

must first find the custody order is not in the best interests of the child and then make

the change reflecting what is in the best interests of the child. 21 He contends that

the Family Court never determined that attending Holy Cross was not in the best

interests of Child, so the court could not modify the Custody Agreement. We

disagree.

(11) The court’s analysis touches on four reasons that, taken together,

establish that Mother carried her burden. First, Mother is heavily involved in Child’s

life, and Father is less involved. Second, although Holy Cross students performed

better on standardized testing, standardized testing scores are not the only

consideration in deciding what is in Child’s best interests. Third, although the

20
Order on Remand at 3.
21
See Morrisey v. Morrisey, 45 A.3d 102, 106 (Del. 2012) (“The [custody agreement is] relevant
under the best interest of the child test analysis because the moving party must show that the
existing agreement is currently not in the best interest of the child. If the movant fails to meet this
burden then the modification is not appropriate and the agreement should be enforced as written.”).

7
“practicability” issue had been resolved by paternal grandfather’s willingness to pay

for Holy Cross, the Family Court cannot compel paternal grandfather to pay for Holy

Cross, which could leave Mother in a quandary of covering the costs of Holy Cross.

Fourth, in making credibility determinations, the court found that Father struggled

to justify his preferred school choice because his attorney had to ask him leading

questions to elicit testimony regarding the purported perks of attending Holy Cross.

Although the Family Court could have stated its burden analysis in clearer terms, we

are satisfied that Mother carried her burden.

(12) Last, Father argues that the Family Court improperly took judicial

notice of secondary sources—not raised during the hearing—under Delaware Rule

of Evidence 201 to cast aside the Holy Cross principal’s testimony regarding

standardized testing scores.

(13) The Family Court did not use the complained-of secondary sources to

contradict the Holy Cross principal’s testimony. The principal testified that Holy

Cross’s standardized testing aligns with State common core standards. In its order,

the Family Court stated that there “is no logical basis for comparing the [Holy Cross]

assessments with the assessments administered by the state of Delaware. It is a false

equivalence.”22 The Family Court did not rely on the complained-of secondary

sources for this statement. Instead, those sources are cited later when the Family

22
Order on Remand at 8.

8
Court discussed Delaware’s public-school-system rank among other States, as well

as other factors that can correlate with student success. The court did not contradict

the Holy Cross principal’s testimony with its own secondary sources. That

testimony and those sources touch on distinct topics.23 And even if we agreed with

Father that the court did not properly take judicial notice of the secondary sources

under DRE 201,24 the court’s statements stemming from those sources were not so

central to its decision as to rise to reversible error.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED.

BY THE COURT:

/s/ N. Christopher Griffiths
Justice

23
Father also relies on this Court’s decision in Tribbitt v. Tribbitt, where we reversed the Family
Court for relying on its own “internet search” and discrediting expert testimony regarding hourly
wage estimates in a property division and alimony dispute. 963 A.2d 1128, 1130–31 (Del. 2008).
Tribbitt is different. In this case, the Family Court’s “false equivalence” statement is not tied to
its reliance on the secondary sources.
24
DRE 201(b)(2) states that the court “may judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” DRE 201(e) states: “On timely request, a party is entitled to
be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the
court takes judicial notice before notifying a party, the party, on request, is still entitled to be
heard.”

9