Kirby v. Perkins: Delaware Supreme Court Clarifies Best-Interests Analysis and Limits Reliance on Third-Party Funding in School-Choice Custody Disputes

1. Introduction

Kirby v. Perkins, Supreme Court of Delaware, No. 371, 2024 (Aug. 6, 2025), concerns a post-divorce custody disagreement over a minor child’s kindergarten placement. Andrew Kirby (“Father”) and Tatum Perkins (“Mother”) previously stipulated that their child would attend Holy Cross, a local private school, “as soon as practicable.” When Mother instead enrolled the child in Lake Forest North, a public school, Father sought enforcement of the stipulation; Mother counter-petitioned to modify custody.

The Family Court vested Mother with academic decision-making authority, prompting Father’s appeal and an initial Supreme Court remand instructing the Family Court to conduct a comprehensive best-interests analysis under 13 Del. C. § 722 and to reconsider whether Holy Cross remained “practicable.” On remand, the Family Court again sided with Mother. The present opinion affirms that decision and, in doing so, articulates several important principles for Delaware custody law, chiefly:

A promise by a non-party (here, the paternal grandfather) to fund private schooling does not, by itself, resolve “practicability” concerns because such a promise is unenforceable against the non-party.
Section 722’s eight statutory factors remain the analytical touchstone even when the specific dispute (school choice) means some factors carry little weight.
Admission of a child’s out-of-court statement and judicial interviews under 13 Del. C. § 724 are discretionary; excluding them will not warrant reversal absent prejudice.
Use of judicial notice under D.R.E. 201 must relate to undisputed facts, but harmless error will not upset a custody determination grounded in ample record evidence.

2. Summary of the Judgment

The Supreme Court of Delaware (Justices Valihura, Traynor, and Griffiths) unanimously affirmed the Family Court’s order granting Mother sole authority over school decisions and denying Father’s rule to show cause. Key holdings include:

The Family Court properly applied § 722, finding four factors favoring Mother, four neutral, and none favoring Father.
Excluding the child’s hearsay statement and declining to interview the child under § 724(d) was within the Family Court’s discretion and, even if erroneous, not outcome-determinative.
The Family Court effectively determined that adherence to the original stipulation (Holy Cross) was no longer in the child’s best interests, thereby satisfying § 729’s threshold for modification.
Judicial notice of secondary sources did not impermissibly contradict record testimony and, regardless, any error was harmless.

The judgment thus cements the Family Court’s latitude in holistic best-interests assessments and signals caution in weighting third-party financial pledges.

3. Analysis

3.1 Precedents Cited

Morrisey v. Morrisey, 45 A.3d 102 (Del. 2012) – Reiterated that a movant must show an existing custody provision is not in the child’s best interests before modification.
Price v. DFS, 286 A.3d 504 (Del. 2022) – Confirmed the discretionary nature of § 724 child interviews.
Maureen F.G. v. George W.G., 445 A.2d 934 (Del. 1982) – Earlier authority deeming child interviews permissive.
Tribbitt v. Tribbitt, 963 A.2d 1128 (Del. 2008) – Cited by Father; distinguished because the objectionable judicial notice there did displace expert evidence.

These precedents shaped the Court’s approach: they confirmed the procedural framework (§§ 722, 724, 729) and defined the appellate standard (abuse of discretion / harmless error) governing evidentiary and best-interests determinations.

3.2 Legal Reasoning

Best-Interests Framework – The Court re-emphasized that § 722 governs all custody determinations, even narrow schooling disputes. The Family Court’s factor-by-factor evaluation—favoring Mother on four factors and finding none favoring Father—supplied sufficient findings.
Modification Threshold under § 729 – Although the Family Court did not recite § 729 verbatim, it implicitly concluded the prior stipulation was inconsistent with the child’s best interests. The Supreme Court accepted an implied finding where the record showed Mother met her burden.
Third-Party Funding Does Not Guarantee Practicability – The Court expressly noted that a grandparent’s voluntary funding pledge is unenforceable; therefore, reliance on such funding poses a risk to stability and is a legitimate factor against private-school placement.
Discretion over Child’s Statements (§ 724) – Because Father failed to give “reasonable notice” and the hearing schedule was expedited, the Family Court acted within its discretion in excluding the statement and declining an interview.
Judicial Notice (D.R.E. 201) – Even assuming arguendo that notice was imperfect, the secondary materials concerned national public-school metrics, not the disputed academic standards testimony, rendering any error harmless.

3.3 Impact of the Judgment

School-Choice Disputes – Family Court judges must still ground decisions in § 722, but they are free to weigh additional educational, logistical, and financial realities. Promises by grandparents or other non-parties will carry diminished weight.
Drafting Custody Agreements – Attorneys should incorporate enforcement mechanisms (e.g., escrow, trust) if private-school attendance depends on third-party contributions; otherwise, “as soon as practicable” clauses are vulnerable.
Evidentiary Strategy – Litigants should give timely notice of any child statements or seek interviews early; failure may foreclose these avenues on appeal.
Appellate Scrutiny – The opinion reinforces that harmless error doctrine applies robustly in custody appeals; appellants must demonstrate prejudice, not merely procedural missteps.

4. Complex Concepts Simplified

Best-Interests Factors (§ 722) – Delaware lists eight factors (parents’ wishes, child’s wishes, relationships, adjustment, health, compliance with parental duties, domestic violence, criminal history). Courts weigh them qualitatively—no mathematical formula.

§ 724 Child Statements – Allows hearsay statements by children if (1) advance notice is given and (2) the child may be interviewed. Judges decide whether admitting the statement or conducting the interview aids their analysis.

§ 729 Modification Standard – Any existing custody order can be changed only if the court first finds it no longer serves the child’s best interests, then fashions a new order that does.

Judicial Notice (D.R.E. 201) – Courts may recognize universally known or easily verifiable facts (e.g., calendar dates, census data) without formal proof but must give parties a chance to contest the propriety if asked.

“Practicability” – In custody contexts, refers broadly to whether a proposed arrangement is feasible given logistics, finances, and the parents’ circumstances. An unenforceable financial pledge renders an arrangement impracticable.

5. Conclusion

Kirby v. Perkins strengthens Delaware jurisprudence on two fronts. First, it confirms that Family Court judges retain wide discretion to synthesize § 722’s statutory factors with real-world considerations like unenforceable funding promises. Second, it delineates the limits of evidentiary and judicial-notice challenges on appeal: unless alleged errors demonstrably alter the outcome, they will not overturn a considered best-interests ruling.

The decision signals to practitioners that private-school stipulations must be undergirded by reliable, enforceable financing and that expedited schedules do not relax notice requirements for child testimony. Ultimately, the ruling prioritizes stability and realism over aspirational agreements, anchoring Delaware custody law firmly in the practical welfare of the child.