Background
Caitlyn Brown appealed a March 27, 2026 Family Court order that granted custody of her children to Kenneth Tucker “on a very temporary basis” and scheduled a review hearing for June 17, 2026. Brown filed her notice of appeal on April 15, 2026, seeking review of that order.
The Delaware Supreme Court’s Senior Court Clerk issued a notice to show cause why the appeal should not be dismissed, flagging Brown’s failure to comply with Supreme Court Rule 42, which governs interlocutory appeals. Brown responded by arguing the merits of her appeal but did not address the threshold question of whether the order was interlocutory and whether she had satisfied Rule 42’s requirements.
The Court’s Holding
The Delaware Supreme Court dismissed the appeal. The court held that the Family Court’s March 27 order was interlocutory — not a final judgment — because it did not finally resolve the merits of the appellee’s petition for custody modification and explicitly contemplated a future review hearing.
Under settled Delaware law, an order is a final judgment only when it “leaves nothing for future determination or consideration.” Because Brown failed to comply with Rule 42 before appealing an interlocutory order, the Supreme Court lacked jurisdiction to hear the appeal. The court dismissed the appeal under Supreme Court Rule 29(b), while noting that Brown retains the right to appeal once the Family Court issues a final order in the custody-modification proceedings.
Key Takeaways
- A temporary custody order that schedules a future review hearing is interlocutory, not a final judgment, and cannot be appealed as of right in Delaware.
- Delaware Supreme Court Rule 42 must be satisfied before the court has jurisdiction to review any interlocutory order; arguing the merits on appeal does not cure the procedural defect.
- A party who loses an interlocutory custody ruling is not without remedy — they must either seek Rule 42 certification or wait for a final order from the Family Court.
Why It Matters
This brief order is a practical reminder for family law practitioners in Delaware that temporary or “pendente lite” custody orders — however significant their immediate impact on a parent — typically do not qualify as final, appealable judgments. Filing a premature notice of appeal without Rule 42 certification wastes time and resources and leaves the appellant in the same position, still subject to the Family Court’s temporary order while the appellate clock has run.
The decision reinforces the Delaware Supreme Court’s strict adherence to finality requirements as a predicate to appellate jurisdiction, consistent with long-standing precedent in Werb v. D’Alessandro and Julian v. State. Counsel handling emergency custody matters should carefully evaluate whether an order truly disposes of all issues before pursuing an appeal — or comply with Rule 42’s interlocutory certification process if immediate review is genuinely warranted.