IN THE SUPREME COURT OF THE STATE OF DELAWARE

GORDON HILL,

1

Respondent Below,

Appellant,

v.

CHARLOTTE FOX,

Petitioner Below,

Appellee.

§

§ No. 247, 2023

§

§ Court Below—Family Court

§ of the State of Delaware

§ 

§ File No. CS09-02798

§ Petition Nos. 22-04390

§ 22-11833

§ 

 Submitted: December 8, 2023

 Decided: February 12, 2024

Before TRAYNOR, LEGROW, and GRIFFITHS, Justices.

ORDER

After considering the parties’ briefs and the record on appeal, it appears to the 

Court that: 

(1) The appellant (“Father”) and the appellee (“Mother”) are the parents of 

a child born in 2009 (“Child”). Father filed this appeal from a Family Court order

resolving (i) a petition in which Mother sought to modify a prior Family Court order 

regarding custody, residential placement, and visitation with the Child; and (ii) a 

petition in which Father sought a finding that Mother was in contempt of the prior 

order. For the reasons discussed below, we affirm.

1 The Court previously assigned pseudonyms to the parties under Supreme Court Rule 7(d).
2

(2) The parties have litigated matters relating to custody, residential 

placement, and visitation with the Child since he was born. The Family Court 

entered an order on April 15, 2021, after a trial on the merits (the “2021 Order”). 

The 2021 Order provided that the parties would have joint custody; Mother would 

have primary placement during the school year and Mother and Father would have 

shared placement on an alternating weekly basis during the summer; and Father 

would have visitation every weekend from Friday evening to Sunday evening during 

the school year.

2

(3) On March 4, 2022, Mother filed a petition for an order of protection 

from abuse (“PFA”) against Father. Mother alleged that Father was verbally abusive 

and had recently grabbed the Child by his shirt and threatened to knock him out. 

Mother asserted that the Child had expressed suicidal ideations because of Father’s 

conduct. The court entered a temporary ex parte order prohibiting Father from 

having contact with the Child until the PFA hearing. Following the PFA hearing on 

March 31, 2022, a Family Court Commissioner denied Mother’s PFA petition, 

finding that Mother had failed to prove by a preponderance of the evidence that 

Father had committed an act of abuse.

2 These provisions for custody, residential placement, and visitation were consistent with the 

provisions established by the Family Court in a February 2, 2018 order, after a full hearing on the 

merits on the parties’ cross-petitions to modify custody. The Family Court had also entered an 

order making slight modifications, such as to specify pickup times and locations, on October 22, 

2019.
3

(4) On March 7, 2022, a few days after filing the PFA petition but before 

the PFA hearing, Mother filed a petition to modify the 2021 Order. The petition, 

which Mother filed pro se, alleged that the Child would be mentally or physically 

abused unless the court modified the 2021 Order. Father, who was represented by 

counsel, then filed a petition asserting that Mother was in contempt of the 2021 Order 

because she had not allowed the Child to visit Father on the weekends of April 1 and 

8, 2022.3

(5) Following a case management conference on August 31, 2022, at which 

both parties were represented by counsel, the Family Court scheduled trial for April 

26, 2023. In November 2022, the Family Court granted Father’s counsel’s motion 

to withdraw from the representation. Before trial, Father filed a motion seeking to 

have the Child testify as a witness at trial, rather than having the court conduct a 

child interview as it had in prior disputes between the parties. The court granted the 

motion, directing that the Child would be the first witness so that he could return to 

school after he testified. 

(6) On April 14, 2023, Father filed a motion seeking to exclude the 

testimony of two witnesses—a Division of Family Services (“DFS”) employee and 

the Child’s counselor, Dr. Turley—on the basis that Mother had identified them as 

3 The Child had missed other weekend visits under the temporary ex parte order that was in effect 

while the PFA was pending.
4

witnesses after the deadline for doing so. In response, Mother acknowledged that 

she had provided her witness list after the deadline but argued that the challenged 

witnesses should be permitted to testify because Father was aware of their

involvement. The court denied Father’s motion at the beginning of trial, concluding 

that precluding the challenged witnesses’ testimony would be unwarranted because 

the record reflected that Father was aware of the witnesses’ involvement in the 

Child’s case and treatment. As to Dr. Turley specifically, the Family Court found 

that (i) there had been communications regarding Dr. Turley’s involvement with the 

Child when both of the parties were represented by counsel, including with respect 

to Dr. Turley’s change in employment from one practice to another; (ii) at the 

custody-modification trial in April 2021, Mother had testified that she had enrolled 

the Child in counseling with Dr. Turley after the Child made suicidal statements, and 

Father had stated that he was “glad to hear” that the Child was in counseling; and 

(iii) Dr. Turley’s continued counseling of the Child had been mentioned on the 

record during the August 31, 2022 case-management conference, in which Father 

had participated.

(7) During the full-day trial on April 26, 2023, the Family Court heard 

testimony from the Child, Dr. Turley, a DFS employee, Mother, and Father. The 

court admitted into evidence various documents, including certain notes in the 

Child’s handwriting; the Child’s report cards dated August 15, 2022, and March 9, 
5

2023; the transcript of the March 2022 PFA hearing; Dr. Turley’s notes from 

meetings with the Child between January 2021 and June 2022; posts from Mother’s 

Facebook accounts or those of her family members; texts between Mother and Father 

and between the Child and Father; documents reflecting Father’s relationship with 

the Child, such as Father’s Day cards; and an article that Father submitted entitled 

“How the Family Court System Fails Black Fathers—and How You Can Help.” The 

court admitted many of the exhibits at Father’s request and over Mother’s objection.

(8) On June 26, 2023, the Family Court entered an order granting Mother’s 

petition to modify the 2021 Order. Applying 13 Del. C. § 729(c)(1), the court 

determined that Mother had established that continued enforcement of the 2021 

Order would endanger the Child’s physical health and significantly impair his 

emotional development. The court found that the teenaged Child was fearful of and 

resistant to having contact with Father, as evidenced in part by the Child’s demeanor 

on the stand and his testimony regarding an incident around the beginning of March 

2022. During that incident, according to the Child, Father went “on a rant” about 

Mother not loving the Child and only using him for child-support money. Father 

then grabbed the Child by the shirt and threatened to beat the Child up if he told 

Mother what Father had said. The court found that Dr. Turley’s testimony 

corroborated that the Child feared contact with Father. Dr. Turley testified that he

and the Child had discussed difficulties in the Child’s relationship with Father during 
6

counseling sessions in 2021 and 2022, during which the Child frequently became 

tearful and emotional and expressed fear and resistance to visiting with Father.4 The 

court ordered that the parties would continue to have joint legal custody and Mother 

would continue to have primary residential placement. The court modified Father’s 

visitation, however, ordering that Father’s future contact with the Child would occur 

in a therapeutic setting, with the assistance of either Dr. Turley or another 

professional selected according to a procedure set forth in the order. The order 

further provided that if the parties were unable or unwilling to participate in a 

therapeutic reunification or visitation program, then Father’s visitation with the 

Child would occur at Mother’s discretion, taking into consideration the Child’s best 

interests, including his wishes. 

(9) As to Father’s contempt petition, the Family Court declined to find 

Mother in contempt of the 2021 Order. The court stated that Father had the burden 

of establishing by a preponderance of the evidence that (i) a valid court order was in 

4

In its decision, the Family Court also quoted a letter that it received from Father shortly after 

trial. In the letter, which was addressed to the Family Court judge in this case and the Chief Judge,

Father wrote, among other things, that the Child “is to have NO MORE CONTACT with me at 

all. UNDER NO circumstance!! After the lies and disrespect he displayed yesterday he is not MY 

SON!! I’m making this very clear. If I was the only parent he thought he had left the State don’t 

contact me put him in foster care or adoption . . .” File No. CS09-02798, Petition Nos. 22-04390, 

22-11833, Custody Modification Contempt/Rule to Show Cause Decision and Order, at 28 (Del. 

Fam. Ct. June 26, 2023). Father argues on appeal that the Family Court erred by sending a copy 

of the letter to Mother and her counsel. His contention is without merit, as the Family Court did 

not err by providing a party with a copy of ex parte correspondence that it received from an 

opposing party. Moreover, although the court noted the receipt of the letter and quoted its contents

in its decision, the court did not treat the letter as a concession by Father or give it any particular 

weight.
7

effect; (ii) Mother had notice of and the ability to abide by the order; and (iii) Mother 

nevertheless violated the order in a meaningful way.5 The court concluded that 

Mother did not have the ability to comply with the visitation provisions of the 2021 

Order, “given [the Child’s] age and clearly expressed fear and resistance to visitation

with Father,” and therefore had not violated the order in a meaningful way.6

(10) In his appeal to this Court, Father argues that the Family Court erred by 

(i) failing to apply the best-interests factors under 13 Del. C. § 722; (ii) denying a 

motion for recusal that Father filed in November 2022; and (iii) relying on 

inconsistent, insufficient, and inadmissible evidence.

(11) On appeal, this Court reviews the Family Court’s factual and legal 

determinations as well as its inferences and deductions.7 We review legal rulings de 

novo.

8

 Findings of fact will not be disturbed unless they are clearly erroneous and 

justice requires that they be overturned.9 On issues of witness credibility, we will 

not substitute our judgment for that of the trier of fact.10 “The judgment of the Family 

Court must be affirmed when the inferences and deductions upon which it is based 

are supported by the record and are the product of an orderly and logical deductive 

5

Id. at 30 (Del. Fam. Ct. June 26, 2023) (citing Transperfect Global, Inc. v. Pincus, 278 A.3d 630, 

644–45 (Del. 2022); In re Hurley, 257 A.3d 1012, 1018 (Del. 2021)).

6

Id. at 31.

7 Long v. Div. of Family Servs., 41 A.3d 367, 370 (Del. 2012).

8

Id.

9 Mundy v. Devon, 906 A.2d 750, 752 (Del. 2006).

10 Dawson v. Dawson, 2020 WL 236636, at *2 (Del. Jan. 14, 2020).
8

process.”11 If the Family Court correctly applied the law, then our standard of review 

is abuse of discretion.12 

(12) Father argues that the Family Court erred by considering only whether 

continued enforcement of the 2021 Order would endanger the Child’s physical 

health or significantly impair his emotional development, rather than applying a 

best-interests analysis. The “overriding policy purpose” of Delaware’s laws 

governing child custody, placement, and visitation is to “provid[e] stability and 

continuity in the child’s home life” by “provid[ing] for the best interests of the child 

on a continuing, but non-disruptive, basis.”13 In furtherance of this goal, the 

Delaware Code establishes various standards for the Family Court to apply to 

petitions to modify its prior orders. Determining the applicable standard depends 

upon (i) how much time has passed since entry of the prior order, (ii) which aspect 

of the arrangement—custody, primary residence, or visitation—the petition seeks to 

modify, and (iii) whether the prior order was entered by consent or after a full 

hearing on the merits. 

11 Mundy, 906 A.2d at 752–53.

12 Jones v. Lang, 591 A.2d 185, 186 (Del. 1991).

13 Friant v. Friant, 553 A.2d 1186, 1189, 1191 (Del. 1989) (internal quotation omitted); see also

Bates v. Bates, 2015 WL 2147191, at *1 n.2 (Del. May 6, 2015) (quoting Friant for the proposition 

that “courts should be careful not to unsettle custody matters affecting a child’s life too frequently

because of the ‘overriding policy purpose of the Delaware child custody laws, i.e., to provide for 

the best interests of the child on a continuing, but non-disruptive, basis’” (emphasis in Bates)).
9

(13) When a party files an application for modification (i) within two years 

of a prior order that (ii) concerns legal custody or the child’s primary residence, and 

(iii) was entered after a full hearing on the merits, Section 729(c)(1) provides that 

the Family Court shall not modify the prior order “unless it finds, after a hearing, 

that continuing enforcement of the prior order may endanger the child’s physical 

health or significantly impair such child’s emotional development.”14 Section 

729(c)(1) therefore establishes a “heightened standard,” as compared to the bestinterests standard, for such petitions.

15

(14) Under 13 Del. C. § 729(a), “[a]n order concerning visitation may be 

modified at any time if the best interests of the child would be served thereby in 

accordance with the standards set forth in § 728(a) of this title.”16 Section 728(a) 

provides:

The Court shall determine, whether the parents have joint legal custody 

of the child or 1 of them has sole legal custody of the child, with which 

parent the child shall primarily reside and a schedule of visitation with 

the other parent, consistent with the child’s best interests and maturity, 

which is designed to permit and encourage the child to have frequent 

and meaningful contact with both parents unless the Court finds, after 

a hearing, that contact of the child with 1 parent would endanger the 

child’s physical health or significantly impair such child's emotional 

development. The Court shall specifically state in any order denying 

14 13 Del. C. § 729(c)(1); Brown v. Branch, 2016 WL 6156194, at *2 (Del. Oct. 21, 2016).

15 See Gonzalez v. Devlin, 792 A.2d 188, 2002 WL 272327, at *2 (Del. Feb. 20, 2002) (TABLE)

(“[w]hile this ‘heightened standard’ applies to petitions for modification filed within two years of 

the prior order, the ‘best interests of the child’ standard applies to petitions for modification filed 

beyond the two-year period.”).

16 13 Del. C. § 729(a).
10

or restricting a parent's access to a child the facts and conclusions in 

support of such a denial or restriction.17

Section 722 sets forth factors for the court to consider when determining the best 

interests of a child.18

(15) The Family Court applied the correct standard in this case. Mother’s

petition sought to modify the 2021 Order, which was entered after a hearing on the 

merits less than two years earlier. Under the 2021 Order, the parties had joint legal 

custody; Mother had primary residential placement during the school year and the 

parties had shared placement during the summer; and Father had weekend visitation 

during the school year. Mother sought to eliminate Father’s contact with the Child—

that is, she sought to modify the residential placement and visitation provisions of 

the prior order by obtaining primary placement for the full year and eliminating

Father’s visitation. Accordingly, under Section 729(c)(1), the Family Court was 

required to make a “threshold determination that continuing enforcement of the prior

custody/residential placement order may endanger the child’s physical health or 

significantly impair his . . . emotional development.”

19

 Then, because Mother sought 

an arrangement that would eliminate or severely restrict Father’s contact with the 

17 Id. § 728(a).

18 Id. § 722(a).

19 Tatum v. Yost, 931 A.2d 438, 2007 WL 2323791, at *2 (Del. Aug. 15, 2007) (TABLE).
11

Child, the same heightened standard applied to the court’s determination of what 

contact Father should have going forward.20

(16) Father cites this Court’s decision in Tatum v. Yost21 in support of his 

argument that the Family Court erred by not conducting a best-interests analysis. In 

Tatum, the prior order provided the father with primary residential placement of the 

parties’ children and the mother with visitation; the mother sought modification to 

provide “full custody and residential placement” for the mother and “liberal 

visitation” for the father or, in the alternative, shared residential placement.

22

 This 

Court held that the Family Court erred by modifying the prior order without 

explicitly applying the best-interests factors.23 Under the circumstances in Tatum, 

after the court determined under Section 729(c) that the prior order should be 

modified, the best-interests standard governed the determination of which parent 

should be awarded primary residential placement.

24

 In contrast, Mother sought an 

20 See 13 Del. C. § 728(a) (providing that the court shall determine “with which parent the child 

shall primarily reside and a schedule of visitation with the other parent, consistent with the child’s 

best interests and maturity, which is designed to permit and encourage the child to have frequent 

and meaningful contact with both parents unless the Court finds, after a hearing, that contact of 

the child with 1 parent would endanger the child’s physical health or significantly impair such 

child’s emotional development”); see also id. § 729(a) (“[a]n order concerning visitation may be 

modified at any time if the best interests of the child would be served thereby in accordance with 

the standards set forth in § 728(a) of this title.”).

21 931 A.2d 438, 2007 WL 2323791 (Del. Aug. 15, 2007) (TABLE).

22 Id. at *1.

23 Id. at *2–3.

24 See id. at *2 (“[w]hen deciding residential custody, or when otherwise making a substantial 

change in a child’s living arrangement, the Family Court is required to determine what is in the 

best interests of the child.” (citing 13 Del. C. § 722)); see also Bordy v. Radia, 2020 WL 4360785, 

at *2 (Del. Aug. 5, 2020) (affirming Family Court decision that modified, within two years, a prior 
12

order that would not permit Father to have frequent and meaningful contact with the 

Child. The Family Court therefore did not commit reversible error by applying the 

“heightened standard”25 that required Mother to prove that contact with Father would 

“endanger the child’s physical health or significantly impair [his] emotional 

development.”26

(17) Father next argues that the Family Court erred by denying Father’s 

motion for recusal. On November 4, 2022, Father filed a motion arguing that none 

of the Family Court judges and commissioners in Sussex County should have any 

further contact with the case because every decision of the court since the parties 

began litigating in 2009 allegedly reflected bias. The Family Court judge applied 

Rule 2.11(A) of the Delaware Judges’ Code of Judicial Conduct and Los v. Los27 and 

denied the motion, finding that she did not have any subjective bias or prejudice 

order under which placement of the children alternated weekly between the father and the mother, 

who lived in different states, to provide for primary residential placement with the mother and 

standard visitation with the father, after applying 13 Del. C. § 729(c)(1) and the best-interests 

factors).

25 See Gonzalez, 2002 WL 272327, at *2 (describing the standard requiring a showing of 

endangerment of physical health or significant impairment to emotional development as a 

“heightened standard” as compared to the best-interests standard).

26 13 Del. C. § 728(a); see also id. at § 729(a) (permitting modification of an order concerning 

visitation at any time “if the best interests of the child would be served thereby in accordance with 

the standards set forth in § 728(a) of this title”).

27 595 A.2d 381 (Del. 1991).
13

against Father and that he had not alleged facts that created an objective appearance 

of bias.28

(18) When deciding whether recusal is appropriate, a trial judge must 

undertake the two-step analysis set forth in Los. That analysis includes both a 

subjective and an objective test. First, the judge must determine whether she is 

subjectively satisfied that she can hear the case free of bias or prejudice concerning 

the party seeking recusal.29 Second, if the judge subjectively believes that she has 

no bias, the judge must determine whether there nevertheless is an appearance of 

bias sufficient to cause objective doubt as to the judge’s impartiality.30 On appeal, 

this Court reviews the judge’s analysis of the subjective test for abuse of discretion 

and reviews application of the objective test de novo.

31

 

(19) In its order denying the motion for recusal, the Family Court judge cited 

Los and concluded that she was satisfied that she could proceed with the case free of 

bias or prejudice and that there was no appearance of bias sufficient to cause doubt 

28 The Family Court judge denied the motion as moot to the extent that it argued for recusal of 

judges that had presided over past matters and deferred to the commissioners to the extent that the 

motion sought their recusal in matters to which the commissioners were assigned.

29 Los, 595 A.2d at 384–85.

30 Id. at 385. See also Gattis v. State, 955 A.2d 1276, 1281 (Del. 2008) (“The first step requires 

the judge to be subjectively satisfied that she can proceed to hear the cause free of bias or prejudice 

concerning that party. Even if the judge is satisfied that she can proceed to hear the matter free of 

bias or prejudice, the second step requires the judge to examine objectively whether the 

circumstances require recusal because there is an appearance of bias sufficient to cause doubt as 

to the judge’s impartiality.” (quoting Jones v. State, 940 A.2d 1, 18 (Del. 2007))).

31 Gattis, 955 A.2d at 1281, 1285.
14

as to the judge’s impartiality. The record does not support a conclusion that the 

Family Court judge abused her discretion by finding that she was not subjectively 

biased, nor do we find an objective appearance of impropriety.32 We therefore affirm

the Family Court’s denial of the motion for recusal. 

(20) Finally, after careful consideration of the record, we have determined 

that the Family Court’s factual findings were supported by the record and that the 

court did not abuse its discretion by determining that Father’s future contact with the 

Child should occur in a therapeutic setting. The teenaged Child testified at Father’s 

request and expressed his fear of having contact with Father, and Dr. Turley’s 

testimony corroborated the Child’s testimony. Moreover, Dr. Turley testified that 

immediate, unsupervised contact with Father would likely “vastly accelerate” the 

Child’s emotional fears and opined that reintroducing contact between Father and 

the Child should occur in a “therapeutic environment,” such as a program of 

“reunification therapy.”33 “When the determination of facts turns on a question of 

the credibility and the acceptance or rejection of the testimony of witnesses 

appearing before the trial court, we will not substitute our opinion for that of the trier 

of fact.”34 Father’s disagreement with the Family Court’s factual findings is not a 

32 Cf. Tower v. Fowler, 220 A.3d 257, 2019 WL 5095825, at *2 (Del. Oct. 10, 2019) (TABLE) 

(“The fact that Tower disagrees with the court’s factual findings is not a basis for reversal and the 

record does not support Tower’s contention that the Family Court’s decision was the result of the 

judge’s bias or prejudice.”).

33 Transcript of April 26, 2023 Hearing, at 165–67.

34 Tower, 2019 WL 5095825, at *2.
15

basis for reversal.35 The record contains sufficient evidence, including the Child’s 

testimony and that of his therapist, to support the Family Court’s determination that 

continued contact with Father as provided in the 2021 Order would significantly 

impair the Child’s emotional development and that Mother was not in contempt of 

the 2021 Order.36 

(21) We therefore conclude that the Family Court’s decision should be 

affirmed. To the extent that Father and the Child have made therapeutic progress 

toward reunification, “[a]n order concerning visitation may be modified at any time 

if the best interests of the child would be served thereby in accordance with the 

standards set forth in § 728(a) of this title.”37

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

Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow

Justice

35 Id.

36 Brown v. Branch, 150 A.3d 275, 2016 WL 6156194, at *4 (Del. Oct. 21, 2016) (TABLE). 

37 13 Del. C. § 729(a).