Opinion
No. 146, 2002
Submitted: September 27, 2002
Decided: November 27, 2002
Court Below-Family Court of the State of Delaware, in and for New Castle County File No. CN00-06767
Before WALSH, HOLLAND, and BERGER, Justices.
ORDER
This 27th day of November 2002, upon consideration of the parties' briefs, it appears to the Court that:
(1) The appellant, Tayo Omowunmi (the "Father"), filed this appeal from a Family Court order dated February 19, 2002. The Family Court's order granted the petition of Nicole Draper (the "Mother") seeking sole custody of the parties' minor daughter. The Family Court noted that the Father had been notified of the scheduled custody hearing and had failed to contact "this Court with any indication that he would be unable to attend due to his incarceration, or requesting any other relief." The Family Court did not rule on the issue of visitation but instead held, "Father is free to file his own Petition for Visitation at any point in the future."
(2) The Father raises one issue in his opening brief on appeal. He contends that the Family Court, knowing the Father was incarcerated in New Jersey, abused its discretion by holding the custody hearing in the Father's absence. The Father contends that he requested a continuance prior to the hearing.
In support of this contention, the Father attaches to his brief a copy of a motion for a continuance dated February 9, 2002. The motion does not have the Family Court's stamp on it, nor does the Father offer any other evidence that he, in fact, mailed the motion to the Family Court. Indeed, the docket does not reflect that the Family Court ever received the Father's motion.
(3) We conclude that the issue of whether the Father requested a continuance should be considered by the Family Court, after the parties have had an opportunity to present evidence on this point. Although it appears that the Family Court never docketed a request for a continuance, there would be strong support for the Father's claim if he could provide evidence from the New Jersey prison authorities, or other third parties, to establish that the request was mailed.
NOW, THEREFORE, IT IS ORDERED that this matter be REMANDED for consideration of the Father's claim that he requested a continuance of the custody hearing. The Family Court should report its findings of fact and conclusions of law to this Court within sixty days. Jurisdiction is retained. Supr. Ct. R. 19(c).