Clarifying Grandparent Third-Party Visitation Under 13 Del. C. § 2412: Evidence and Jurisdictional Standards

Introduction

Burk v. Kurtis (Del. Mar. 24, 2025) presents a landmark delineation of the standards governing third-party (grandparent) visitation under Delaware law. The dispute arises after the death of the child’s father, when paternal grandparents Sarah and Richard Kurtis petitioned the Family Court for visitation rights with their granddaughter. Jan Burk (“Mother”), opposed. Key issues include: (1) whether Delaware retained jurisdiction after Mother’s relocation; (2) the showing required under 13 Del. C. § 2412 to overcome a parental objection; and (3) the application of best-interest factors under 13 Del. C. § 722(a). The Supreme Court of Delaware affirms the Family Court’s grant of visitation, clarifying evidentiary burdens and venue rules in third-party cases.

Summary of the Judgment

The Family Court granted the Kurtises’ petition, finding by clear and convincing evidence that Mother’s objection to visitation was unreasonable, and by a preponderance of the evidence that visitation would not substantially interfere with the parent–child relationship. Applying the best-interest factors of 13 Del. C. § 722(a), the court concluded that visitation served the child’s welfare. On appeal, Mother challenged jurisdiction, credibility findings, the court’s referral to collateral evidence, and the denial of a child interview. The Supreme Court upheld jurisdiction (relying on § 1920’s “significant connections” test), affirmed the Family Court’s credibility determinations and application of § 2412, and found no abuse of discretion.

Analysis

Precedents Cited

• Wife (J.F.V.) v. Husband (O.W.V., Jr.), 402 A.2d 1202 (Del. 1979): Establishes the standard of review for Family Court findings—factual findings will not be disturbed unless clearly erroneous, legal conclusions de novo, and discretionary decisions for abuse of discretion.
• Clark v. Clark, 47 A.3d 513 (Del. 2012): Confirms abuse-of-discretion standard when trial court correctly applies the law to undisputed facts.
• Shimel v. Shimel, 2019 WL 2142066 (Del. May 14, 2019): Reinforces deference to trial-court credibility assessments when witnesses’ testimony is accepted or rejected.
• Beeks v. State, 2015 WL 7756858 (Del. Dec. 1, 2015): Illustrates waiver of venue objections when parties acquiesce below.
• Price v. Division of Family Servs., 2022 WL 10861025 (Del. Oct. 18, 2022): Holds that the decision to interview a child for wishes lies within Family Court discretion.
• Statutes:
  • 13 Del. C. § 2412: Sets the two-step test for third-party visitation (overcoming parental objection; best-interest inquiry).
  • 13 Del. C. § 722(a): Outlines best-interest factors in domestic relations cases.
  • 13 Del. C. § 1920(a): Grants jurisdiction where child and at least one parent maintain significant connections to Delaware.

Legal Reasoning

1. Jurisdiction: The Court held that Delaware had jurisdiction because Mother and Child lived in Delaware when the petition was filed, satisfying § 1920(a). Mother’s later move to Maryland did not divest Delaware of authority, especially after she and the grandparents agreed to venue.

2. Overcoming Parental Objection (§ 2412(a)): The grandparents bore the burden of proving by clear and convincing evidence that Mother’s refusal was unreasonable. The Family Court credited extensive evidence of a longstanding bond predating Mother’s 2019 cut-off and found Mother’s safety concerns not credible after Father’s removal by hospitalization and death.

3. Best-Interest Inquiry (§ 2412(b) & § 722(a)): The court balanced ten enumerated factors—child’s physical/emotional needs, stability, parental capacity, existing relationships—and concluded that continued grandparent contact served the child’s welfare.

4. Evidentiary Disputes: Although Mother challenged the judicial notice of unrelated PFA hearings, the Supreme Court deemed any error harmless because the Family Court’s decision rested on abundant admissible evidence.

5. Child Interview: Denial of Mother’s request to interview the eight-year-old was within the court’s discretion. Given the child’s age and lack of recent contact with grandparents, meaningful input was unlikely and supervised transition was ordered instead.

Impact

Burk v. Kurtis cements several important principles:

1. Venue for grandparent visitation is fixed at petition filing under § 1920(a), even if parties later relocate.
2. Strict adherence to § 2412’s two-step test—clear and convincing proof to override a parent’s objection, followed by a best-interest analysis.
3. Deference to Family Court fact-finding on credibility and to its discretion on child interviews and transitional visitation plans.
4. Judicial notice of unrelated proceedings must not supplant the statutory test; harmless-error review applies.

Future litigants will rely on this decision to frame grandparent visitation petitions: focusing on demonstrable bonds, rebutting safety concerns with concrete changes in circumstances, and respecting jurisdictional timing.

Complex Concepts Simplified

• Clear and Convincing Evidence: A higher burden than “preponderance”—it requires a firm belief that the allegation is highly probable.
• Preponderance of the Evidence: The usual civil standard—more likely true than not (>50%).
• Best-Interest Factors (13 Del. C. § 722(a)): Ten factors including child’s needs, continuity, mental/physical health of parties, and existing relationships.
• Judicial Notice: The court’s ability to accept certain facts without formal proof; limited when objections are sustained and extrinsic evidence is unrelated.
• Venue and Jurisdiction (13 Del. C. § 1920): Focuses on “significant connections” and whether another state has jurisdiction at the time of filing.

Conclusion

Burk v. Kurtis reinforces the careful balance between parental autonomy and third-party rights under Delaware law. By upholding the § 2412 framework and clarifying jurisdictional rules, the Supreme Court ensures consistency and predictability in grandparent visitation disputes. The decision underscores that grandparents may secure visitation only by strict adherence to statutory burdens and that Family Courts enjoy broad discretion in credibility calls, child interviews, and transitional arrangements to protect the child’s welfare.