Prior posts have explored the best interest factors that the Family Court must consider in connection with a petition for custody or visitation. If a parent is incarcerated, however, the Court must also consider the factors set forth in 13 Del. C. § 728(d). That subsection provides:
(d) Before entering an order for visitation to be conducted in a correctional facility the Court shall in addition to other relevant factors consider the following:
- The parent seeking visitation in a correctional facility had a substantial and positive relationship with the child prior to incarceration;
- The nature of the offense for which the parent seeking visitation is incarcerated;
- Whether the victim of the offense is the child, a sibling of the child, stepsibling, half sibling, parent, stepparent, grandparent, guardian or custodian of the child; and
- Whether the child seeks a relationship with the incarcerated parent.
In the recent appeal in Scott v. Kraft, No. 78, 2015 (Sept. 15, 2015), the Delaware Supreme Court was asked to determine if the Family Court abused its discretion when it denied incarcerated father, Evan Scott, visitation with his young daughter. The Family Court decision stated:
After hearing the testimony and for the reasons announced on the record, and after consideration of 13 Del. C. § 728(d), the Court cannot find that it is in [the Child's] best interest to have visits in a prison setting. [The Child] has no memories of [Father] as he was incarcerated when she was six months old. He is incarcerated on drug related charges. The conditions under which the visits will occur do not enhance the relationship between [the Child] and Father. Id. at 3.
The Supreme Court affirmed the Family Court decision, concluding that the trial court's application of Section 728 was appropriate and the findings were the product of an orderly and logical deductive process.
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