IN THE SUPREME COURT OF THE STATE OF DELAWARE

RAYMOND C. ANDERSON
, 1
Respondent

- Below
, Appellant,

v.

ANGELA R. ANDERSON
,
Petitioner

- Below Appellee. § § No. 55, 2014 § § § Court Below : Family Court § of the State of Delaware, § in and for Kent County § File No. C K03

- 07039 § Pet. No. 1 3

- 22355 § §

Submitted: Ju ne 6, 2014 Decided: August 21 , 2014

Before STRIN E
, Chief Justice, HOLLAND , and RIDGELY
, Justices.

O R D E R

This 21st day of August 2014
, upon consideration of the parties’ briefs and

the record on appeal, it appears to the Court that:
(1) The appellant, Raymond Anderson ( “ the Father ” )
, filed this appeal

from the Family Court’s order granting the parties joint legal custody of the ir
minor son with primary residentia l placement with the appellee, Angela Anderson
(“ the Mo the r”). On appeal, the Father assert s that the Family Court erred in not
allowing him to participate in the custody hearing by telephone. He also
challenges the Mo the r’s credibility and asserts that it is not in his son’s best

1 The Court previously assigned pseudonyms to the parties.2

interests to live with the Mo the r. We find no basis on the record before us to

overturn the Family Court’s judgment . Accordingly, we affirm.
(2) The record reflects that the Mo the r filed a pet ition for modification of
custody in July 2013

. 2 At the time, the parties’ son was ten years old and was
living with the Father in Louisiana under a default custody order entered in 2009.

The Mo the r a sserted in her petition that the Father was not attent ive to the ir son’s

emotional and medical needs and that, because of the Father ’s work schedule, the ir
son was spending more time with the Father ’s mo the r. The Father did not file a

response to the Mo the r’s petition. On January 17, 2014, the Family Court held a
hearing on the Mo the r’s petition. The Mo the r appeared at the hearing. The Father

did not. At the conclusion of the hearing, the Family Court held, based on the

Mo the r’s uncontroverted testimony, that it was in the child’s best inter est s for the
parties to share joint custody with the Mo the r having primary residential
placement. This appeal followed.
(3) In his opening brief, the Father contends , among o the r things, that he

wrote to the Family Court before the scheduled custody heari ng to request if he
could participate by telephone. He attaches a copy of an undated letter he
allegedly sent to the Family Court expressing a desire to attend the hearing by

teleconference because he lived in Tennessee and could not afford to take time o ff

2 Mo the r also requested an emergency ex parte order for custody, which the Family Court denied.3

from work and travel to Delaware. The Father asserts that he called Family Court
several times to find out if his request was received and whe the r it had been
granted. He contends that Family Court personnel informed him that the court

would contact h im. The Father also asserts in his opening brief that the Mo the r is

not credible
, that it is not in his son’s best interests to live with the Mo the r , and that
his son was doing well in school in Tennessee

. (4) We are not in a position, however, to make a factual determination

about whether the Father ’s non

- participation at the hearing was the result, as he
alleges, of an error by the Family Court staff or the Father ’s own lack of diligence

.
Nor can we make factual determinations as to the Mother’s credib ility or the best

interests of the child

. Th e factual issue s raised in the Father’s opening brief were
not presented to the Family Court in the first instance and, therefore, are not
properly a part of the record that can be considered by this Court on ap peal. 3

Rather, th ese issue s must be presented to and determined by the Family Court in
the first instance through a motion to reopen the judgment by the Father under
Rule 60(b) , which must be properly supported by facts justifying relief from the

default judgment (e.g., by attaching a sworn affidavit of his version of events)

. 4

3 See Del. Supr. Ct. R. 9; Delaware Elec. Co

- op., Inc. v. Duphily , 703 A.2d 1202, 1207 (Del. 1997) (holding that materials not offered into evidence and considered by the trial court are not part of the record on appeal).

4 See Fam. Ct. Civ. R. 60(b) (2013).4

(5) In so ruling, we recognize that the circumstances of this case are
unusual because the life of the parties’ son, who was living with t he Father in
Tennessee, has been fundame ntally altered on the basis of a default judgment
entered following a hearing at which on ly the Mother’s side of the story was
considered and there was no independent representation of the child’s interests. If
the reasons for the Father’s failure to appe ar at the hearing are as the Father
alleges, then a default judgment was inappropriate because the determination of the
best interests of the child should have been made after a hearing at which the
Father could be present by teleconference to present his side of the story. On the

limited record properly before us
, however, the hearing below was properly
noticed and the Father did not appear.

NOW, THE REFORE, IT IS ORDERED that the judgment of the Family

Court is AFFIRMED

.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice