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140 Cards in this Set

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OJ of Family Court
i. Dependent / neglected children
ii. Delinquent Children except
1. those who are, by statute, under the jurisdiction of another court in the State (1st or 2nd murder or rape; unlawful sexual intercourse 1st ; assault 1st; robbery 1st kidnapping 1st; or any attempt to commit these crimes)
iii. Enforcement of statutes re: education, protection, control, visitation, possession, custody, care or support of children.
iv. Judicial Consent to employment, medical care, or enlistment in the armed services of a child where such consent is req’d by law.
v. Actions to terminate compulsory school attendance for kids under 16.
vi. Actions where a family member, the Division of Family Services (DVS) or licensed youth service agency alleges that conduct of a child, parent, custodian, or family member imperils a family relationship or imperils the morals, health, maintenance, or care of a child.
vii. Liability of relatives to support a poor person
viii. Execution of forms consenting to marriage of minor
ix. Reciprocal support proceedings by or against non-residents of the State
x. Any child charged w/ delinquency under Title 21 (Motor Vehicle) or Title 10 § 927 (Motor Vehicle Violations)
xi. All proceedings relating to divorce & annulment
xii. Education of handicapped & enforcement of rights guaranteed to handicapped, gifted, or talented children.
Concurrent Jurisdiction
i. WRITS OF HABEAS CORPUS: For the purposes of gaining or retaining custody or to determine if child is being unlawfully detained by any person, agency, or institution.
AMENABILITY
Upon motion of the Court, the AG, or whenever a kid has reached 14th bday & charged under 10 Del. C. §1009(c)(5), the Court shall hold a hearing and if the facts warrant, refer the child to Superior Court. If the Court finds the child amenable, the FC may proceed with the case. Child shall be proceeded against as an adult where
1. 1st or 2nd deg. murder; 1st or 2nd rape; assault 1st, robbery 1st, or kidnapping 1st or attempt of any of these.
2. The kid isn’t “amenable to the rehabilitative process available to the Court”
3. Kid has been previously adjudicated delinquent of 1 or more offenses that would be considered felonies if kid had been tried as an adult, kid is 16 or older, and current allegations are one of:
a. Conspiracy 1st
b. Rape 3rd
c. Arson 1st
d. Burglary 1st
e. Trafficking in Marijuana, cocaine, illegal drugs methamphetamine, LSD, or designer drugs, or
f. Any attempt for any of the above
REVERSE AMENABILITY
transferring a case from Superior to FC when
1. Superior has jurisdiction over a kid, then AG can transfer case to FC if it’s AG’s opinion that “the interest of justice would be best served.”
2. W/in 30 days of Δ’s arraignment, Superior will hold a hearing and consider
a. Nature of present offense & extent & nature of Δ’s prior record
b. Nature of past treatment and rehabilitative efforts & the nature of Δ’s response, if any
c. Whether the interests of society & Δ would be best served by trial in FC or in Superior.
Divorce & Ancillary Relief Jurisdiction
i. JURISDICTION: either H or W, when action is commenced, must live in DE, or be stationed in DE (military), for 6 continuous months or more immediately before filing
1. Divorce
2. Annulment
3. Actions associated w/ divorce & annulment
Grounds for Divorce
1. irretrievable breakdown & impossible to reconcile
a. Voluntary separation
b. Separation caused by incompatibility
c. Separation caused by R’s misconduct
d. Separation caused by R’s mental illness
Separation
1. WHAT DOES SEPARATION MEAN AND WHAT ARE GROUNDS?
a. Must live “separate and apart” for 6 months or more before FC rules on the petition for divorce.
b. Don’t need 6 mos. pd if there’s “MISCONDUCT” or DV.
i. MISCONDUCT:
1. Adultery
2. Bigamy
3. Conviction of crimes whose sentence might be for 1+ years
4. Related physical or oral abuse to P or kids living in home
5. Habitual illegal drug use, other incapacitating substances
6. And/or other serious offenses destructive to marriage
Separate & Apart
c. SEPARATE & APART – you can still live together but just have separate bedrooms and no sex unless sex happens during a “bona fide effort to achieve reconciliation prior to divorce”
d. NO SHARING ROOMS AND NO SEX during the 30 DAY period immediately preceding the day FC hears the petition for divorce.
When divorces are contested
3. MOST DIVORCES ARE UNCONTESTED – but where they are, the only defenses shall be the failure to establish
a. Marriage of parties
b. Jurisdictional requirements
c. That marriage is irretrievably broken or
d. Lack of misconduct due to condonation, recrimination, insanity, & lapse of time.
DE IS A NO-FAULT STATE
so FC won’t consider misconduct in determining ancillary relief.
DIVORCE PETITION MUST BE VERIFIED
BY P
Contents of Petition
a. Age, occupation & residence incl. county & how long you’ve lived in the state
b. R’s address where he’s most likely to get mail or statement that you can’t ascertain it w/ reas. diligence
c. Date of marriage – where, when registered
d. Date of separation
e. Names & addresses of all kids
f. Is W pregnant?
g. Any prior matrimonial proceedings b/w the parties
h. Allegation of irretrievable breakdown & how it is characterized (or averments for annulment under § 1506)
i. Relief requested
j. Filed in the county where either P or R lives w/ the Clerk of the Court & filing fee.
WHEN CAN PETITION BE FILED?
Any time after parties separate (as long as one of them lived in DE for 6 mos)
a. But, FC won’t rule until the parties have been separated for 6 mos.
b. Interim relief shall be available to the parties by filing of Motion.
WHAT TO INCLUDE IN PRAYER FOR RELIEF
a. Interim relief
b. Alimony
c. Property disposition
d. Resumption of maiden name
e. Cost & attorney’s fees
f. Child support
g. Custody and/or Visitation
9. WHAT’S REQUIRED WHEN KIDS ARE INVOLVED:
a. AFFIDAVIT OF CHILDREN’S RIGHTS: P needs to add an Affidavit, signed by P, showing that P has read or has been advised of the children’s rights.
Service on R
a. After the petition is filed, FC gets jurisdiction by one of these ways
i. FC Clerk issues Summons & Service upon R by Sheriff or
ii. Personal delivery of Summons, Petition, and any Affidavit to R
iii. Appearance of R – either personal or by executing & filing affidavit of appearance
iv. Appearance of Counsel for R – w/ or w/o issuance of Summons.
11. SERVICE VIA PUBLICATION NOTICE
a. If P says that it’s unlikely that FC will get jurisdiction, or that efforts to get jurisdiction have failed, FC can get jurisdiction by mailing an publication, or by publication only, whether R is a resident or non-resident of DE.
Preliminary Injunction
when divorce petition is filed, both parties are issued a preliminary injunction that enjoins them from
1. transferring, encumbering, concealing, or disposing of any property
a. Except in usual course of business or for necessities of life
b. & parties must notify each other of any proposed extraordinary expenditure and account to FC for them after the preliminary injunction becomes effective.
2. Being a disturbance to the other party
3. Taking any natural or adoptive kid they share from DE w/o prior written consent of the parties or permission of FC
4. Using credit cards or otherwise incurring any debt that the other party may be liable for except in connection w/ the marital litigation or necessities.
When does prelim. injunciton become effective?
a. P – upon filing petition
b. R – upon service of a copy of the petition
c. Failure to abide by it can result in a contempt finding.
i. FC HAS JURISDICTION OVER CRIMINAL & CIVIL CONTEMPT
1. DIRECT CRIMINAL CONTEMPT – (these occur in the FC’s presence): court can adjudicate these summarily and enter compensatory awards or purgeable fines through civil proceedings.
2. NO INDIRECT CONTEMPT – (these occur out of FC’s presence): although FC can’t adjudicate indirect contempts summarily, civil contempts & certain other indirect contempts are sanctionable through civil proceedings.
3. CRIMINAL CONTEMPT – requires Due Process.
Motion for Interim Order
in divorce petition or by separate Motion, either party can move for interim orders like temporary alimony, restraining a party from encumbering, transferring, or concealing property except usu. course of business or for necessities; excluding a party from the family home; child support; and custody and/or visitiation.
What can R to in response to a preliminary injunction?
vi. R CAN – file verified response, move, or otherwise plead in Answer to petition, and can Counterclaim for divorce w/in 20 days after service.
Property Owenership & Prelim. Inj.
vii. PROPERTY OWNERSHIP – TBE property automatically converts to TIC upon divorce, w/ ea. retaining an undivided ½ interest. The joint ownership of property held during marriage as TICs or as JTs isn’t affected by the divorce.
Custody & Visitation
i. HOW ARE CUSTODY PROCEEDINGS COMMENCED? Parent files petition seeking custody of the kid in the county where the kid is a permanent resident or where the child is found.
ii. NOTICE - shall be given to the kid’s parent, guardian, and custodian. They can appear and be heard and can file a responsive pleading.
iii. COURT APPOINTED ATTORNEY – FC can appoint an attorney to represent child if it’s in kid’s best interest.
iv. PRELIMINARY INJUNCTION – gets issued against both parties and enjoins them from removing their shared kids out of DE w/o prior written consent or permission from FC.
1. WHEN IS IT EFFECTIVE?
a. AGAINST P – when the petition for custody or visitation is filed
b. AGAINST R - upon Service of the copy of the petition
UNIFORM CHILD CUSTODY JURISDICTION ACT (“UCCJEA”)
– outlines procedures to avoid jurisdictional conflicts which may arise b/w different courts.
1. Applies to initial determinations of custody & to modifications
2. Under UCCJEA, 4 prongs give DE jurisdiction
a. Home state
b. Best interests (significant connection plus substantial evidence)
c. Emergency
d. Default.
3. A court that has jurisdiction may decline to exercise its jurisdiction.
vi. While multiple courts may have jurisdiction, only one may exercise jurisdiction.
vii. Parental Kidnapping Prevention Act (“PKPA”) applies directly to custody modification proceedings and indirectly to initial custody determinations.
1. It’s a federal statute that controls in the event of a conflict b/w federal and state law.
viii. Unless otherwise stated in the Title, there’s a presumption that no kid should live w/ someone who’s engaged in DV.
ix. EVIDENCE OF PAST OR PRESENT DV – whether or not it’s committed in the child’s presence, the FC must consider this when deciding custody in accordance w/ best interest standard.
x. PARENT/CUSTODIAN/GUARDIAN’S CRIMINAL HISTORY – or criminal history of anyone else living in the house (even if guilty pleas or no contest or convictions) shall be considered a factor when determining child’s best interest.
FC’S DETERMINATION OF THE PROPER FORUM FOR ANY FUTURE LITIGATION
this should be determined by the FC when one party files petition involving custody or visitation
Child Support
if kid is under 18 parents have duty to support them
i. 2 WAYS TO GET IT
1. PROCEEDINGS MAY BE INSTITUTED IN ACCORDANCE WITH THE RULES ADOPTED BY FC OR
2. UPON A PETITION
a. Here, P alleges that Δ owes P a duty of support and has refused or failed to provide such support.
ii. No responsive pleading required to petition for child support.
iii. Δ has due process right to appointed counsel in a civil contempt proceeding brought by State for violation of support order when there is a possibility of incarceration.
TERMINATION OF PARENTAL RIGHTS
i. A petition for termination of parental rights may be filed by
1. a parent,
2. a blood relative,
3. the DFS or
4. a licensed agency in the county where the P resides
5. county where the organization having legal care, custody, or control of the kid is located
6. or county where the kid is located.
ii. Grounds
1. consent
2. failure to plan
3. abandonment
4. commission of a felony offense with a child victim
Adoption
i. WHO CAN ADOPT?
1. PREREQUISITES
a. 21 years or older
b. A social study must be completed prior to adoption.
c. Hearings are not required but may be ordered
ii. THE CHILD
1. Must be “legally free for adoption”
a. Kid’s parental rights must have been terminated or
b. The child’s parent(s) must consent.
iii. SEPARATE PROCEDURES FOR ADULT ADOPTION
GUARDIANSHIP OF A CHILD
i. FC has authority to grant, modify, and/or terminate guardianship.
1. DEFINITIONS §2303
a. GUARDIAN AD LITEM – an individual appointed by the FC to represent the best interest of a child, whether or not that reflects the wishes of the child, who by his/her appointment shall be a party to the child welfare proceeding.
b. GUARDIAN – a nonparent or an agency charged with caring for a child during the child’s minority
2. Parents can voluntarily consent to guardianship
GROUNDS FOR GUARDIANSHIP OF THE CHILD
a. FC must find for each parent, prior to granting guardianship:
i. Parent voluntarily consents to guardianship
ii. After a hearing on the merits, by clear & convincing evidence:
1. Child is dependent and/or neglected; &
2. In the best interests of the child for the guardianship to be granted.
b. If kid 14 or older, FC must find that kid consents to guardianship.
c. If elements in subsection (a) are met, FC will figure out how much contact, information, and/or visitation the parent will have with the child. FC will use best interest of the child standard.
4. DUTIES & RIGHTS OF PARENTS
a. During guardianship, parent has right to visitation, contact, and information.
b. Parent shall have the primary responsibility to financially support the child.
TERMINATION OR MODIFICATION OF GUARDIANSHIP ORDER
a. TERMINATED FOR
i. Child’s death
ii. Guardian’s death
iii. Adoption of child
iv. Where kid reaches 18
v. As otherwise Ordered by the FC
b. MODIFIED IF
i. In kid’s best interest or
ii. If kid no longer dependent or neglected, & in best interest of kid
POWERS & DUTIES OF THE KID’S GUARDIAN
a. Same as a parent except a guardian is not liable to 3rd persons for the kid’s acts
b. FC can limit guardian’s powers in its discretion.
WHO CAN BE A PERMANENT GUARDIAN?
i. Blood relatives or foster parents of the kid can petition for perm. guardianship.
b. Court shall grant a permanent guardianship if it finds by clear and convincing evidence that
i. One of the statutory grounds for termination of parental rights in §1103(a) of this title aren’t met
ii. Adoption isn’t possible or appropriate
iii. Permanent guardianship is in the best interest of the child
iv. The proposed permanent guardian
1. Is emotionally, mentally, physically, and financially suitable to become the permanent guardian;
2. Is a foster parent(s) who has been caring for the kid for at least 6 mos at the time of filing the petition OR is a blood relative
3. Has expressly committed to remain the permanent guardian and assume the rights and responsibilities for the kid for the duration of the kid’s minority and
4. has demonstrated an understanding of the financial implications of becoming a permanent guardian.
v. If kid 14 or over, that he consents to the guardianship and
vi. If the proposed permanent guardian is a foster parent(s)
1. Kid is at least 12 years old or
2. Proposed permanent guardian is the permanent guardian of 1 of the child’s siblings or
3. The kid receives substantial gov’t benefits for a serious physical and/or mental disability which would no longer be available to the child if parental rights were terminated and/or if the child was adopted.
c. IF ABOVE STANDARD IS MET: FC will determine nature & extent of any contact, info., and/or visitation b/w the parent & child.
i. Parents can voluntarily consent to the permanent guardianship if above std. is met
ii. Duties and rights of parents are essentially the same as §2331
PROTECTION FROM ABUSE CIVIL PROCEEDINGS: Def. of Abuse
1. ABUSE is conduct that’s
a. Intentionally or recklessly causing or attempting to cause physical injury or a sexual offense as defined in 11 Del. C. § 761 (sex crimes statutes)
b. Intentional or recklessly placing or attempting to place another person in reasonable apprehension of physical injury or sexual offense to such other person
c. Intentional/reckless damaging, destroying or taking the tangible property of another
d. Engaging in a course of alarming/distressing conduct in a manner likely to cause fear or emotional distress or to provoke a violent or disorderly response.
e. Trespassing on or in property of another, or on or in property from which the trespasser has been excluded by Court order
f. Child abuse, defined as any physical injury to a child by those responsible for the care, custody and control of the child, through unjustified force as defined in Ch. 9 of Title 16, emotional abuse, torture, criminally negligent treatment, sexual abuse, exploitation, maltreatment or mistreatment.
g. Unlawful imprisonment, kidnapping, interference with custody and coercion or
h. Any other conduct which a reasonable person under the circumstances would find threatening or harmful.
Def. of Domestic Violence
2. DV means abuse perpetrated by one member against another member of the following protected classes
a. FAMILY
i. Immediate familial relationship including spouse
ii. Man & Woman cohabitating in home where there is a child of either or both
iii. Siblings
iv. In-laws
v. Grandparents and
vi. Step-family relationships (step-parents & step-siblings)
b. OTHER PROTECTED CLASSES
i. Former spouses
ii. Man & woman cohabitating together with or without a child of either or both or
iii. A man and a woman living separate and apart with a child in common
c. P
i. A person who is a member of a protected class and files a petition alleging DV against such person or against such person’s minor kid or an infirm adult
ii. The Division of Child Protective Services acting in the interest of a minor child and files a petition alleging DV or
iii. The Division of Adult Protective Services acting in the interest of an infirm adult and files a petition alleging DV.
d. PROTECTIVE ORDER – means an order issued by the Court to a R restraining the R from committing DV against the P, or a person in whose interest a petition is brought, and may include such measures as are necessary in order to prevent DV.
e. R – means the person alleged in the petition to have committed the DV.
PROCEDURE FOR COMMENCEMENT OF PROTECTION FROM ABUSE ACTION §1042
1. A request for relief from DV is initiated by the filing of a verified petition by the P.
2. The P doesn’t have to say address, place of residence, school or employment or the address or place where the P’s child or children receive child care or attend school, if it’s alleged that disclosure of this info would endanger the P. However, the Court may require the P to reveal in confidence a current address or place of residence for the purpose of determining jurisdiction or venue.
3. A petition for a protective order may be filed in any county where the P resides, the R resides, the alleged DV occurred, or where the P is temporarily located away from the residence to avoid DV.
PFA Order: Ex parte orders and emergency hearings
1. P can request emergency protective order by
a. Filing affidavit or verified pleading
b. Allege there is an immediate & present danger
c. Of DV to the
i. P,
ii. P’s minor child or
iii. An infirm adult
2. Emergency hearing on an Ex parte basis: means w/o notice to the R if
a. P certifies in writing
i. The efforts, if any, which have been made to give notice to R or
ii. The reasons supporting the claim that notice should not be required
3. Time
a. Ex parte emergency hearings will be held:
i. w/in 24 hrs. of the filing of the petition or
ii. the next day that the Court is in session
b. All other emergency hearings:
i. An “expedited” hearing w/in 10 calendar days after petition filed
IF EX PARTE ORDER ISSUED
a. Full hearing will occur w/in 10 days.
b. Court can extend this time as needed, but not to exceed 30 days, to effectuate service of the order where necessary to provide protection.
5. COURT WILL GRANT RELIEF PURSUANT (BUT NOT LIMITED) TO §1045 IF:
a. FC finds, by A POE, that the alleged DV has occurred or
b. If R CONSENTS to entry of a protective order
6. IF R NOT PRESENT FOR THE HEARING OR IF HEARING IS EX PARTE
a. Any protective order issued shall be served immediately upon the R in accordance with §1065.
b. A certified copy of the Order shall also be given to the P after the hearing before leaving the court house.
c. If Order recites that R was there for the hearing, then further Service is waived and proof of service of the Order is not necessary
i. In this case, R must get copy of Order before leaving the Court house.
NONEMERGENCY HEARINGS §1044
1. Court orders a hearing w/in 30 days of receiving a petition for a protective order
2. If FC finds by POE that alleged DV has occurred, or if R consents to entry of protective order, FC grants relief incl., but not ltd. to, §1045.
3. Service of the protective order and provisions of copies to the parties shall take place in accordance with the PFA statute.
Relief that FC may grant after considering a Petition for a protective order
1. FC May grant the following after it considers a petition for a protective order:
a. Restrain R from committing §1041 acts of DV
b. Restrain R from attempting to contact or contacting P
c. Grant exclusive possession of the residence to P regardless of whose name title/lease is under
i. “Such relief shall not affect title to any real property”
d. Order that P gets temporary possession of SPECIFIED personal property solely OR jointly owned by R or P
e. Grant temporary custody of any kids the parties may have to P or to another family member & provide for visitation w/ R, if appropriate, including 3rd party supervision if necessary.
f. Order R to pay support for P and/or kids incl. temporary housing costs
g. Order R to pay P or any other family member monetary compensation for losses suffered as a direct result of DV committed by R, incl, e.g.
i. Medical & counseling $
ii. Loss of earnings or other support
iii. Cost of repair / replacement of property damaged or taken
iv. Travel expenses
v. Litigation costs, incl. attorney’s fees
Order can be extended or modified for up to 6 months upon Motion by either party.
a. Hearings on these Motions w/in 30 days after proof of service on R is filed.
b. Motions may be heard on an emergency basis if field in accordance w/ § 1043
c. Orders only extended if Court finds, by POE, there has been DV since entry of Order, a violation of the Order, consent of the parties, or good cause shown.
Only the FC shall modify Order issued under §1045 & parties’ reconciliation shall have no effect on the validity of any provision of such Order.
a. Protective Order can be modified or rescinded during the term of the order upon Motion, after notice to all parties affected and a hearing.
b. Subsequent support, visitation, and custody Orders entered by Court supersede relevant provisions in PFA on these issues; no need for modification of PFA Order.
5. FC can modify a PFA Consent Order w/o prior consent of parties where there’s a finding of contempt against R or “upon substantial change of circumstances.”
ENFORCEMENT; SANCTIONS FOR VIOLATION OF ORDER § 1046
1. FC may direct that pleadings and orders filed/issued under this section be served upon R by Sheriff or Sheriff’s deputy or by any person authorized by statute or court rule to serve process.
2. Copy of the protective order shall be
a. Entered into Delaware Justice Information System (“DELJIS”) by the Court on or before the next business day.
i. This constitutes Notice to all law enforcement agencies of the Order
b. Sent immediately to DE law enforcement agency in whose jurisdiction the petitioner resides and/or where the abuse occurred.
c. Order is fully enforceable in any County in DE
ARREST & PC FOR VIOLATION OF ORDER
a. Police must arrest, w or w/o a warrant, anyone whom police have PC to believe violated
i. protective order issued in DE or
ii. a valid foreign protection order
iii. & who has Notice or knowledge of the protective order
b. Presentation of a protective order that identifies the protected person and the R and, on its face is currently in effect, constitutes PC to believe a protective order exists.
i. If none presented, police may consider other info. in determining whether there’s pC to believe that a protective order exists.
c. PC for Arrest
i. Established by a good faith reliance on information contained in DELGIS
IF POLICE FIND THAT R HASN’T BEEN NOTIFIED OR SERVED W/ PROTECTIVE ORDER
a. It can’t be enforced and
b. Police shall inform R of this and
c. Allow R a reasonable opportunity to comply w/ the order before enforcing the Order.
WHAT HAPPENS TO R IF HE’S ARRESTED FOR PC VIOLATION OF A PROTECTIVE ORDER?
a. Police must take R to FC
b. If FC isn’t in session, he’s taken to nearest JP Court.
c. Bail is determined by considering whether Δ has previously violated a protective order.
6. All protective orders issued under this section shall state that violations may result in
a. A finding of contempt
b. Criminal Prosecution and
c. Imprisonment or fine or both.
CHILD PROTECTION FROM DV ACT
i. PURPOSE – obvious
ii. DV: includes but is not ltd to physical/sexual abuse/threats of physical/sexual abuse & any other offense against the person committed by 1 parent against the other parent, against any kid living in either parent’s house, or against any other adult living in the kid’s home.
1. DV DOES NOT INCLUDE
a. Reasonable acts of self-defense by 1 parent for self protection
b. Or in order to protect kid from abuse or threats of abuse by the other parent or other adult living in the kid’s home.
PERPETRATOR OF DV
anyone who’s been convicted of committing the following in DE, or any comparable offense in any other jurisdiction, against the kid at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:
a. Any felony level offense
b. Assault 3rd
c. Reckless endangering 2nd
d. Reckless burning or exploding
e. Unlawful imprisonment 2nd
f. Unlawful sexual contact 3rd
g. Criminal contempt of FC protective order based on assault/other physical abuse, threat of assault/other physical abuse or any other actions placing the P in immediate risk of fear of bodily harm.
FLEEING FROM DV
if a parent flees from DV & temporarily leaves the kid behind and the kid is NOT left in immediate danger of serious physical injury, it shall NOT be considered evidence of DV.
REBUTTABLE PRESUMPTION – that no perpetrator of DV is granted custody or residence of any kid
1. There’s a rebuttable presumption that no perpetrator of DV shall be awarded sole or joint custody of any kid.
2. There’s also a rebuttable presumption that no kid shall primarily reside with a perpetrator of DV
3. (1) and (2) shall be overcome if
a. there have not been any further acts of DV &
b. the perpetrator of DV has
i. Successfully completed evaluation & counseling program for perpetrators of family violence that was conducted by a public or private agency or a certified mental health professional
ii. Successfully completed a program of alcohol or drug abuse counseling if FC determines that such counseling is appropriate and
iii. Demonstrated that giving custody or residence responsibilities to the perpetrator of DV is in the best interests of the child.
Overcoming the rebuttable presumption re: perpetrator of DV & custody
4. Presumption can also be overcome only if a judicial officer finds “EXTRAORDINARY CIRCUMSTANCES” that warrant the rejection of the presumption i.e.
a. Evidence showing that there’s no significant risk of future violence against any adult or minor child living in the home or any other family member including any ex-spouse.
Where BOTH parents are perpetrators of DV
a. Case shall be referred to the Division of Family Services for investigation.
b. FC shall decide custody & residence pursuant to kid’s best interest.
EVIDENCE OF DV
1. FC shall consider past & present acts of DV, regardless if they were committed in child’s presence or not, as a relevant factor in determining the legal custody & residential arrangements in accordance w/ kid’s best interests.
Counseling for DV situations
1. If FC awards sole or joint custody or primary residence to a parent who has a history of committing acts of DV, that parent shall be ordered to
a. Complete a program of evaluation & counseling designed specifically for perpetrators of family violence & conducted by a public or private agency or a certified mental health professional.
b. FC may also order parent to attend alcohol/drug abuse treatment & any other appropriate counseling
DV & MODIFICATION OF ORDERS
1. Visitation – can be modified at any time if necessary to protect the safety of kid or kid’s parent in light of acts of DV that have occurred since the entry of the most recent visitation order.
2. Custody – can be modified any time if a parent who has sole or joint custody has committed acts of DV since the entry of the most recent custody order
a. WHEN FC CAN’T CONSIDER NONCOMPLIANCE IN DETERMINING MODIFICATION OF CUSTODY
i. In determining whether a custody award should be modified, the FC can’t consider noncompliance with an existing custody or visitation order as noncompliance if such noncompliance was caused by the parent’s attempt at self-protection or protection of the kid from acts of DV committed since the entry of the Court’s most recent custody or visitation order.
IF FC FINDS, BY POE, SEXUAL ABUSE – VISITATION PROHIBITED
1. FC prohibits all visitation until FC holds a hearing and finds that supervised visitation wouldn’t harm kid’s physical, psychological, or emotional well-being. Factors FC will consider:
a. Did abusive parent successfully complete a treatment program of evaluation & counseling designed specifically for perpetrators of sexual abuse & conducted by a public or private agency or a certified mental health professional.
b. Did abusive parent successfully complete program of alcohol/drug abuse counseling
c. Any testimony by a mental health professional who is the therapist for the abused child
d. Any testimony by a mental health professional who is the therapist for the abusive parent and
e. Whether supervised visitation is in kid’s best interest.
2. Nothing in this section precludes FC from denying visitation under “other appropriate circumstances,” incl. denying such visitation under an ex parte or other emergency Order.
When are mediation conferences prohibited?
1. FC Mediation Conferences are prohibited if
a. FC has already found that a party has committed an act of DV or
b. Either party has been ordered to stay away or have no contact w/ the other party
c. Unless if victim of DV who is represented by counsel requests such mediation
COMMENCEMENT OF ACTION – RULE 3
i. PETITION – action commenced by filing w/ Clerk an original plus a copy of a petition, complaint or statement of claim.
ii. VERIFICATION – every pleading req’d to be verified shall be under oath/affirmation that it’s true as to acts by petitioner and believed to be true as to acts of others.
PROCESS – RULE 4
i. ISSUANCE OF SUMMONS – Clerk shall issue Summons & deliver it w/ a copy of Petition for Service to Sheriff of County or Counties specified or to a person specifically appointed by FC to Serve it.
ii. SERVICE OF PROCESS
1. SERVICE UPON REGULAR PERSON
a. deliver copy of Summons & Petition to R personally or
b. leave copies at R’s dwelling or usual place of abode
c. W/ some person of suitable age & discretion residing therein or
d. Deliver copies thereof to an agent authorized by appointment or by law to receive Service of Process
2. SERVICE UPON INFANT UNDER 18 (Where the infant has a parent, custodian, or guardian [p/c/g] in DE)
a. By Service upon the p/c/g in the same manner as upon a regular person if p/c/g is an individual.
b. If trustee or guardian is corporation – in the same as upon a corporation
c. If no p/c/g, by service in the same manner as upon a regular person & must serve an adult with whom the infant resides or has place of abode
3. SERVICE UPON INCOMPETENT (Where such person has trustee or guardian [t/g] in DE)
a. By service on t/g in the same manner as a regular person
b. Or in same manner as upon a corporation, if t/g is a corporation
c. If no t/g, by service in the same manner as upon a regular person & must serve adult with whom the infant resides or has place of abode.
RETURN OF PROCESS
1. Summons is returnable 20 days after it’s issued.
2. Process that can’t be served shall be returned on the return day & state why couldn’t be served
3. Failure to make return or proof of service shall not affect validity of service.
NOTICE
1. After party or attorney has been served w/ Summons and/or has entered appearance, Notice of time, date & place of any proceeding can be
a. given in Court or
b. sent by ordinary 1st class mail to the last known address of the parties, or
c. served personally or
d. communicated in any such other reasonable manner as the Court may direct.
SERVICE & FILING OF PLEADINGS & OTHER PAPERS – RULE 5
i. SERVICE – WHEN REQUIRED
1. Every order required by its terms to be served
2. Every pleading subsequent to the original petition
3. Every paper relating to discovery required to be served upon a party
4. Every written Motion other than one which may be heard ex parte
5. Every written Notice, Appearance, Demand, Designation of Record on Appeal and
6. Other similar papers
7. No Service required on parties in default for failure to appear unless new or add’l claims for relief.
WHEN A PARTY FILES PETITION TO MODIFY CHILD SUPPORT ORDER & WANTS MODIFICATION TO BE RETROACTIVE
1. P required to mail a copy of the Petition for Modification to R at the last known address of R by registered or certified mail, return receipt requested.
2. Note: Service by regular mail for prospective Modifications ok; but must be certified or registered mail for retroactive modification of child support. If Notice is served by registered/certified mail, any modification will be effective from the date such Notice was given.
APPEARANCE OF PARTY
1. R may appear though not served w/ Summons. Can make appearance by
a. Serving & filing of Notice
b. Service or filing of any Motion or Pleading purporting to be responsive to or affecting the Petition or
c. Appearing personally at any Court Mediation Conference, Hearing, or Trial in the action
ATTORNEY’S APPEARANCE
limited to representation w/ respect to a specific Petition filed & shall terminate when the time for appeal has elapsed from the final Order entered by the FC.
i. FILING – all papers filed after the Petition that are required to be served on a party shall be filed w/ FC w/in a reas. time after Service thereof, except that filing of Discovery & its production after Service shall be governed by Rule 26(e).
ii. PROOF OF SERVICE OF PAPERS (CERTIFICATE OF SERVICE) – unless otherwise ordered, no Pleading or other paper, required by Rule to be served by the party filing the paper shall be filed unless the original has
1. an endorsement of a Receipt of Service of Copy by all parties required to be served or shall have
2. Affidavit showing Service was made & how it was made or shall be
3. Accompanied by Certificate of Attorney of Record showing Service has been made & how
TIME – RULE 6
1. COMPUTATIONS
a. PETITION – 20 days to file Answer
i. If Petition was mailed – R gets 3 additional days
ii. If R’s Answer includes a Counterclaim – P has 20 days to Reply to Counterclaim
b. MOTION – 10 days to respond
c. WHEN DOES THE CLOCK START – on the day after the event or act from which the designated period begins to run.
d. WHEN DOES THE LAST DAY NOT COUNT – if it’s a Saturday, Sunday, or legal holiday
e. WHERE TIME PERIOD IS LESS THAN 7 DAYS – Weekends or legal holidays are not counted
WHEN CAN FC ENLARGE/EXTEND FILING DEADLINES?
FC has discretion if party can show “good cause”
a. PARTY REQUESTS EXTENSION
i. BEFORE ORIGINAL DEADLINE – then with or without Motion or Notice, the FC can Order the period enlarged or
ii. AFTER ORIGINAL DEADLINE PASSES – then upon Motion the FC can “permit act to be done where failure to act was a result of excusable neglect.”
ADDITIONAL TIME AFTER SERVICE BY MAIL
Whenever a party has a right or is required to do some act/take some proceedings w/in a prescribed period after being Served & Service is by mail, 3 days shall be added to the period unless the time period is prescribed by Statute.
WHEN FC CAN’T EXTEND TIME PERIOD
a. Motion for New Trial
b. Motion to Alter or Amend Judgment
c. Motion for Reargument
d. Motion for Relief From Judgment (on grounds other than clerical mistakes)
PLEADINGS & MOTIONS – RULE 7
i. PLEADINGS ALLOWED
1. Petition
2. Answer
3. Reply to Counterclaim
4. Answer to Crossclaim
5. 3rd Party Complaint
6. 3rd Party Answer
MOTIONS
1. Applications to FC for Orders should be made by Motion. Unless it’s made during hearing, it should be made in writing & shall state with particularity the grounds & relief or the Order it wishes to be entered.
a. Must attach Notice & Proposed Form of Order with Motion
b. Must attach Affidavit / other material if the Motion is based upon particular facts.
2. If any part of the Motion is opposed by any party, then the opposing party has 10 days after they get Served w/ the Motion to file a written response & Proposed Form of Order.
3. Although either party may request oral argument or a Motion or an Evidentiary Hearing, FC Judge may
a. decide Motion on the moving papers w/o further Notice to either party or
b. May enter an Interim Order based on the moving papers subject to modification at later hearing if requested.
4. Motions should be signed in accordance w/ Rule 11
GENERAL RULES OF PLEADING – RULE 8
i. Pleadings setting forth claims for relief shall contain
1. short & plain statement of claim showing pleader is entitled to relief &
2. demand for judgment for the relief to which the pleader claims entitlement
ii. Answer shall be required in all civil actions EXCEPT child support & Petition for PFA
AFFIRMATIVE DEFENSES
1. Accord & Satisfaction
2. Arbitration & Award
3. Discharge in Bankruptcy
4. Duress
5. Estoppel
6. Failure of Consideration
7. Fraud
8. Illegality
9. Laches
10. License
11. Payment
12. Release
13. Res Judicata
14. Statute of Frauds
15. Statute of Limitations
16. Waiver
SIGNING OF PLEADINGS – RULE 11
i. SIGNATURE
1. all Pleadings, Motions & Papers shall be signed by
a. Attorney of Record or
b. by the unrepresented party.
2. If a paper isn’t signed
a. it will be stricken unless it’s corrected promptly after the omission is communicated to the attorney or to the party
ii. VERY IMPORTANT: REPRESENTATIONS TO COURT
1. Attorney’s signature is a certification that he’s read it to the best of his knowledge, info., and belief after reasonable inquiry that
a. It’s not presented for any improper purpose i.e. harass or cause unnecessary delay or needless increase in cost of litigation
b. It’s well-grounded in fact & is warranted by existing law or by non-frivolous argument for the extension, modification or reversal of existing law or the establishment of new law and
c. The allegations and other factual contentions have evidentiary support or are likely to after a reasonable opportunity for further investigation or discovery
iii. SANCTIONS – If FC determines that a paper is signed in violation of this Rule, the Court, upon Motion of any party or on it’s own, will impose sanctions which may include
1. Order to pay penalty into FC
2. Order to pay some or all of other party’s reasonable attorney’s fees and expenses incurred due to violation
DEFENSES & OBJECTIONS – RULE 12: When & How Presented
i. WHEN PRESENTED – R serves Answer w/in 20 days of Service of Petition & Summons
ii. HOW PRESENTED – every defense shall be asserted in a responsive pleading if one is required EXCEPT these may, at the option of the pleader, be made by Motion
1. Lack of Jurisdiction Over Subject Matter
2. Lack of Jurisdiction Over Person
3. Improper Venue
4. Insufficiency of Process [defects in paper itself]
5. Insufficiency of Service of Process [defects in actual Service]
6. Failure to State a Claim Upon Which Relief Can be Granted
7. Failure to Join a Party Under Rule 19
8. A Motion making any of these defenses shall be made before Pleading if a further Pleading is permitted.
MOTION FOR JUDGMENT ON THE PLEADINGS
1. not a regular practice in FC
MOTION FOR MORE DEFINITE STATEMENT
1. if Pleading is so vague/ambiguous that party can’t reasonably be required to frame a responsive pleading, the party can file a Motion for a More Definite Statement. It must point out “defects complained of and defects desired.” If FC grants it, then the party has 10 days to comply, or FC may strike the pleading.
MOTION TO STRIKE
1. Court can order insufficient defense or any redundant, immaterial, impertinent or scandalous matter stricken from any pleading
a. Upon Motion by any party before responding to a pleading or
b. If no responsive pleading is permitted by these Rules, upon Motion made by a party w/in 20 days after being Served w/ the Pleading or
c. Upon FC’s own initiative at any time
CONSOLIDATION OF DEFENSES IN MOTIONS
1. a party who makes Motion under this Rule may join with it any other Motions “herein provided for and then available”
2. If a Motion omits any defense or objection then available which the Rule permits to be raised by Motion, the party can’t thereafter make a Motion based on a defense or objection omitted.
WAIVER OR PRESERVATION OF CERTAIN DEFENSES
1. WAIVABLE DEFENSES – (2) thru (5) above are waived
a. If omitted from a Motion or
b. If it is neither made by Motion nor included in responsive Pleading or Amendment thereof
2. NON-WAIVABLE DEFENSES – 6, 7, & Objection of Failure to State a Legal Defense to a Claim may be made
a. In any pleading or order under Rule 7(a) or
b. By Motion for Judgment on the Pleadings or
c. At trial on merits
LACK OF SUBJECT MATTER JURISDICTION
– FC can always dismiss for this reason.
COUNTERCLAIM & CROSSCLAIM – RULE 13
i. COMPULSORY COUNTERCLAIM - It’s any claim which the pleading party has against any opposing party which arises out of the same incident/occurrence & which does not require the presence of 3rd parties over whom the Court doesn’t have jurisdiction.
1. Such a claim need not be so stated if at the time the action was commenced the claim was the subject of another pending action.
ii. PERMISSIVE COUNTERCLAIMS - claims against the opposing party which do not arise out of the same transaction / occurrence that is the subject matter of the opposing party’s claim.
iii. CROSSCLAIMS - It’s any claim against a co-party which arises from the same transaction / occurrence. The Court may order separate trials & judgments with regard to Crossclaims & Counterclaims.
AMENDED & SUPPLEMENTAL PLEADINGS – RULE 15
i. PARTY CAN AMEND ONCE AS A MATTER OF COURSE – any time before a responsive pleading is Served
1. IF NO RESPONSIVE PLEADING IS REQUIRED & ACTION HASN’T BEEN PLACED ON THE TRIAL CALENDAR – then w/in 20 days of the Service of his original pleading, he can amend
2. AFTER TIME PERIOD ELAPSES – only by leave of Court or written consent of the adverse party.
*******PRETRIAL PROCEDURE; FORMULATING ISSUES, MEDIATION, PRETRIAL CONFERENCE – RULE 16
i. SUPPORT PLEADINGS; MEDIATION; FINANCIAL REPORT – RULE 16(A)
1. ALL PROCEEDINGS REQUESTING CHILD SUPPORT OR SPOUSAL SUPPORT – MEDIATION
a. Held by a FC Staff Mediator
b. Identify specific areas at issue
c. Attempt an amicable settlement of all issues on permanent or interim basis
d. Attorneys can participate at their election
e. No trial before judicial officer until after mediation process unless FC, upon application of either party or Court Mediator, or upon its own Motion, Orders otherwise.
WHEN A MEDIATION CONFERENCE SHALL NOT BE HELD
a. If it’s an action alleging contempt where previously filed action against R for contempt was resolved by Order, other than an Order of Dismissal.
b. If it’s a PFA, the parties bypass Mediation
c. (a) and (b) shall be scheduled initially for trial before a judicial officer
CONTINUANCE REQUESTS OF SUPPORT MEDIATION CONFERENCES
a. Must be made in a timely manner
b. In writing to FC Staff Mediator
c. Must contain necessary information including
i. Opposing party’s position on the request and
ii. Reasons for the request
d. These requests can be made by letter and not a Motion.
IF PARTIES AGREE TO RESOLUTION AT MEDIATION
a. Parties enter into a Consent Order
b. This can’t be appealed
IF PARTIES DON’T AGREE TO RESOLUTION AT MEDIATION
Interim Order gets entered by a Judicial Officer
WHAT HAPPENS AT END OF MEDIATION
a. Permanent Consent Order or
b. Temporary Consent Order or
c. Interim Order
PRIOR TO SUPPORT/MODIFICATION MEDIATION - RULE 16(A) FINANCIAL REPORT
a. Each party must complete Rule 16(a) Financial Report
b. This is used to apply the Melson Formula
ORDER FOR DISCOVERY
a. Judicial Officer may enter Order for Discovery as appropriate.
b. If it’s appropriate, a party can initiate Discovery w/o prior Court approval required under Rule 26(a) by completing Rule 16(c) Financial Report required for ancillary matters for divorce.
CUSTODY & VISITATION PROCEEDINGS; MEDIATION – RULE 16(B)
1. Custody trials can’t be scheduled before a Judge until parties complete Mediation unless FC Orders that the proceeding be referred to a Judge.
a. Mediation is automatically bypassed w/ the entry of a PFA2. INFORMAL PROCESS
a. w/o adherence to normal Court procedure or DRE
b. Nothing said by parties during conference can be used against them in subsequent proceedings.
IF NO RESOLUTION AT CUSTODY MEDIATION
a. Mediator recommends an Interim Contact Schedule
i. Visitation by non-custodial parent ev. other weekend (Friday, 6p – Sunday, 6p & ½ all major holidays)
b. Mediator’s Recommendation shall be reviewed by Judge
i. IF JUDGE APPROVES – it becomes an Interim Order of Contact w/o Prejudice to either party, pending a full hearing before a Judge.
ii. IF JUDGE DOES NOT APPROVE – a hearing before Judge shall be scheduled on an expedited basis.
PROPERTY DIVISION, ALIMONY, ATTORNEY’S FEES & COSTS; ANCILLARY PRE-TRIAL CONFERENCE; FINANCIAL REPORT – RULE 16(C)
1. After entry of Divorce Decree, P requesting Ancillary Relief must
a. complete Rule 16(c) Financial Report
b. Send original, notarized copy to R w/in 30 days of the granting of final Divorce Decree and
c. Advise FC, in writing, that this has been done.
2. Then, R must
a. Complete report
b. Send original to FC Clerk and
c. Send copy to P w/in 30 days of receipt.
3. NOTE: if party doesn’t ask for Ancillary Relief in the Petition, Response, or by separate Motion before the Divorce Decree gets entered, FC CAN’T retain jurisdiction over these matters
If P doesn’t seek Ancillary Relief, R requesting such relief shall
a. Complete report
b. Forward original copy to P w/in 30 days final Divorce Degree was granted and
c. Advise FC in writing that this has been done.
d. Then, P shall complete the document & deliver original to FC Clerk and forward copy to R w/in 30 days of receipt.
5. Requests for Ancillary Relief shall be set for pretrial conference, and a pretrial conference won’t be held until the parties have completed & filed a Rule 16(c) Financial Report.
iv. IF A PARTY DOESN’T COMPLY WITH THIS RULE then sanctions including, but not limited to the following may result:
1. Acceptance of properly submitted information to exclusion of contrary evidence by non-complying party
2. Assessment of attorneys’ fees against non-complying party
3. Default Judgment for Relief Requested
v. IF BOTH FAIL TO COMPLY – will result in a dismissal, with prejudice, of all applications for ancillary relief
PRETRIAL CONFERENCE – RULE 16(D)
i. FC, upon Motion of any party or upon its own Motion may Order attorneys and/or parties to appear before a judicial officer for pretrial conference to consider issues, stipulations of fact, and witnesses
ii. Attorneys and/or parties are expected to be thoroughly familiar with the case in order to expedite pre-trial and trial of case.
iii. FC may enter Pretrial Order that limits issues for trial and controls subsequent course of the action.
ARBITRATION – RULE 16.1
i. Voluntary & binding arbitration avail. in all matters involving property division, spousal support & alimony – no appeal.
ii. Arbitration unavailable in PFA, custody, or visitation proceedings.
iii. Initiated by filing Stipulation indication election by parties to proceed
iv. Parties can select Arbitrator by mutual agreement or FC provides parties w/ 3 alternative names of Arbitrators and each party strikes one.
v. DE Uniform Rules of Evidence are a guide to admissibility of evidence.
vi. Parties must submit Arbitrator’s Final Order to FC as Stipulation & Order of parties.
DIVORCING & SEPARATING PARENTS EDUCATION PROGRAM – RULE 16.2 & 13 DEL. C. § 1507
i. RULE 16.2
1. Program required for parents & kids involved in Custody & Visitation proceedings. Both parties & kids b/w 8-16 at the time of filing shall participate w/ either parent.
2. P must submit original copy of Certificate of Completion to FC prior to the scheduling of a Custody or Visitation proceeding before a Judicial Officer.
3. Requirement may be waived by FC Order upon showing of good cause by filing a Motion.
4. Requests for priority scheduling and Interim Orders may be granted by FC before program is completed, however, requirements of Rule must be met before final hearing before Judicial Officer is scheduled.
5. If both parties fail to comply with the Rule it may result in Dismissal w/ Prejudice of the Application before the FC.
DIVORCING & SEPARATING PARENTS EDUCATION PROGRAM – RULE 16.2 & 13 DEL. C. § 1507
ii. 13 DEL. C. § 1507
1. For Divorce Actions where there’s living kids of the marriage up to 17 yrs old, FC requires both parties to participate in a parent education course unless upon Motion the FC determines that the participation is unnecessary.
2. At least 4 hours of instruction
3. Litigant w/ history of DV must be Ordered to participate in a separate & more intensive course which shall include education regarding DV, its prevention, and its effect upon kids.
4. Parties don’t have to attend the same course.
SUBSTITUTION OF PARTIES – RULE 25
i. DEATH & CUSTODY
1. if a party dies during pending custody action
a. the surviving spouse will get custody of the child.
b. Surviving spouse isn’t entitled to support from the deceased spouse.
ii. DEATH & DIVORCE
1. if a party dies before Divorce Decree is entered
a. it is as if the Divorce Petition was never filed, and
b. the surviving spouse will take under the decedent’s will as a surviving spouse
2. If Divorce Decree has been issued
a. Decedent’s estate is substituted for the deceased party
b. Surviving spouse must file Motion for substitution of decedent’s estate or the action is Dismissed.
c. Surviving spouse is not entitled to alimony from the estate of the deceased spouse.
DEPOSITIONS & DISCOVERY – RULE 26
i. MOTION REQUIRED – no formal Discovery can be conducted w/o FC Order following a Motion therefore, except for Depositions of the parties & Requests for Production.
ii. Motion for Discovery must specify w/ particularity the need therefore. The responding party has 10 days from Service of the Motion for Discovery to file a written objection
iii. When Discovery is permitted, the parties can obtain by
1. Deposition upon oral examination or written questions
2. Written interrogatories
3. Production of documents or things or
4. Permission to enter upon land or property for inspection
5. Physical and Mental examinations and
6. Requests for Admissions
PHYSICAL, MENTAL & OTHER EXAMINATION OF PERSONS – RULE 35
i. FC can Order a party or kid to submit to physical or mental examination when mental or physical condition is in controversy.
ii. This is most commonly used in Custody Proceedings.
FAILURE TO MAKE DISCOVERY – RULE 37
i. FC may require party or deponent who prevented Discovery to pay
1. Attorney’s fees and
2. Reasonable expenses incurred by the other party in obtaining the Order to Compel Discovery
CONTINUANCE – RULE 40
i. Motions for Continuance must be made in timely manner & in writing to the Judicial Officer assigned to hear the case. It shall contain:
1. Statement of the original filing date of the Petition
2. Position of opposing counsel on the request, or if there’s no opposing counsel, position of the opposing party
3. # of times the case has been scheduled for hearing
4. Reasons why request is being made and
5. If the reason involves a conflict with a case scheduled in another Court, then it must state
a. Which other Court
b. Case Name
c. Date that the case was scheduled in the other Court
6. FC Judge has the discretion to grant the request consistent with interests of justice. Priority is given to criminal cases over civil cases, and to constitutional courts over statutory courts.
ii. 2 Important Cases to Note: Not every denial of a continuance violates Due Process; decisions with regard to continuances are w/in the discretion of the Judicial Officer.
1. Powell v. State, Del.1975: party appealed FC decision on grounds that FC violated his DP by refusing to continue trial. The issue was that he waited until one week before trial to subpoena his witnesses, and only one of his witnesses showed up for trial. Here, the DESC remanded the case to FC to 1) permit him to made a proffer of the testimony he expected his witnesses to present and 2) for the FC to evaluate whether that testimony would have influenced the FC’s decision.
2. Constango v. Press, Del.1998: DESC affirmed a decision of the FC where the FC denied a continuance request because it found that the testimony of a witness who was absent at trial was “duplicative of evidence already in the record and did not warrant reversal of prior decision not to continue trial.”
DISMISSAL OF ACTIONS – RULE 41
i. VOLUNTARY – can be done by P w/o Order of FC
1. by filing a Notice of Dismissal at any time before entry of appearance by the adverse party or
2. by filing a Stipulation of Dismissal signed by all parties who have appeared in the Action
ii. INVOLUNTARY – R may, by Motion, move for Dismissal of an action or any claim for failure of P to prosecute or comply w/ Rules or Court Order
iii. DISMISSAL FOR FAILURE TO PROSECUTE – in action pending in FC for more than a year w/o any proceedings, Clerk may mail parties a Notice that the action will be dismissed if no proceedings are taken w/in 30 days.
TYPE OF TRIAL; RECORD – RULE 42.2 [READ W/ RULE 90.1]
i. Unless otherwise required, all hearings of trials shall be conducted privately by the Court w/o a jury. Only people allowed in courtroom are parties & attorneys representing them. FC may also permit people having a direct interest in the proceeding or whose presence otherwise accords w/ the public interest.
ii. Sequestration of Ws normally allowed
iii. WHAT GETS RECORDED?
1. All hearings, trials, and teleconferences
2. Sidebar & chamber conferences during trial are recorded unless Judicial Officer determines in advance that neither evidentiary nor substantive issues are involved.
3. Private interviews w/ kids at the request of a party.
VERY IMPORTANT: FINDINGS BY COURT, CONCLUSIONS, REASONS; GUIDELINES & STANDARDS IN PROPERTY DISTRIBUTION, ALIMONY & CHILD SUPPORT – RULE 52
i. PROPERTY DISTRIBUTION CASES – FC Shall
1. Act upon request of either party
2. Make findings as to value of marital property, incl. the identity & value of each significant item & figure out who has title
3. Determine how marital property shall be apportioned or assigned to ea. spouse
4. The party making the request is required to prove, by a POE, the reasons why it should be so awarded, to whom, and the value to be assigned.
5. Court shall apply 13 Del. C. §1513 factors to determine how to divide property
a. After deciding, FC shall make such Order as necessary to implement its conclusions, regardless of who’s name an item is titled under
b. Award property as titled if the party making the request doesn’t meet the requisite burden of proof
6. Upon divorce, property held by a former H&W as TBE automatically converts to TIC b/w the former spouses w/ ea retaining an undivided ½ interest.
7. Joint ownership of property held during the marriage as TIC or JT isn’t affected by divorce.
VERY IMPORTANT: FINDINGS BY COURT, CONCLUSIONS, REASONS; GUIDELINES & STANDARDS IN PROPERTY DISTRIBUTION, ALIMONY & CHILD SUPPORT – RULE 52
1. FC Shall include in any decision
a. Facts supporting determination of dependency
b. Amount of ea. payment
c. Frequency of ea. payment (usually monthly)
d. Length of time payments shall continue, and
e. Relevant Statutory factors as outlined in 13 Del. C. §1512
2. Person getting alimony must be dependent. The ability of the other party to pay, while still being able to meet his own needs, is a factor the Court considers in determining alimony.
3. Person is eligible for alimony for a period not to exceed 50% of the length of the marriage, unless a party was married for 20 years or longer, in which case there’s no time limit for eligibility.
4. Obligation to pay future alimony is terminated upon death of either party or remarriage, or cohabitation of the party getting alimony.
VERY IMPORTANT: FINDINGS BY COURT, CONCLUSIONS, REASONS; GUIDELINES & STANDARDS IN PROPERTY DISTRIBUTION, ALIMONY & CHILD SUPPORT – RULE 52
iii. CHILD SUPPORT CASES – the FC Shall consider
1. Each support obligor’s net income
2. Absolute minimum amount of income ea. support obligor must retain to function at maximum productivity
3. # of support obligor’s dependents
4. Primary child support needs & primary support obligation of each obligor
5. Available net income for a Standard of Living Adjustment (“SOLA”) to be paid by each support obligor after meeting their own primary needs & those of dependents.
6. ***FC USES MELSON FORMULA: operates as a rebuttable presumption in all child support cases, and is only considered after the mathematical calculation is made.
IMPORTANT! PROPOSED FINDINGS OF FACT & CONCLUSIONS – RULE 52(D)
1. At least 7 days before trial in any ancillary action ea. party or counsel must submit to Court its proposed findings & conclusions, incl. supporting reasons re: all material elements of case.
2. Each proposed finding of fact shall contain a brief reference to evidence to be offered in support of that finding.
3. Submission shall include a proposed Form of Order
FAILURE TO FILE SUBMISSIONS
1. FC may continue the hearing sua sponte
2. adopt the findings, conclusions and Order of the complying party
3. impose attorney’s fees and costs on the offending party
4. preclude offending party from presentation of claims, defenses, or introduction of evidence or
5. other sanctions or Orders as the FC deems just
6. Manerchia v. Bowers, Del.Fam.Ct.1996: H’s attorney did not file 52(d) submission until less than 2 business days prior to trial. W moved to strike submission. Court granted W’s Motion and allowed W to file a Motion for Attorney’s Fees.
NEW TRIALS & REARGUMENTS – RULE 59
i. NEW TRIAL – granted to any or all parties in the interest of justice. FC can open judgment, take add’l testimony, and direct entry of new judgment. Party must show up at initial hearing to request new trial.
1. TIME & PROCEDURE
a. Must be served & filed no later than 10 days after Entry of Judgment
b. Briefly & distinctly state grounds
c. Opposing party may Answer w/in 10 days after Service of Motion or Requests for Review of Commissioner’s Orders.
d. 3 day mail rule doesn’t apply to time periods that are prescribed by Statute, such as Motions for New Trials, Motions to Alter or Amend Judgment, Motions for Reargument, or Motions for Relief From Judgment on other grounds other than clerical mistakes.
2. ON INITIATIVE OF COURT
a. Not later than 10 days after Entry of Judgment, FC may of its own initiative, Order a new trial. After parties have Notice & Opportunity to be heard, FC may grant Motion for New Trial for reasons not stated in Motion
MOTION TO ALTER OR AMEND JUDGMENT
shall be served & filed w/in 10 days after Entry of Judgment
REARGUMENTS
served & filed w/in 10 days after Entry of Opinion or Decision & shall distinctly state grounds. Other party may Answer w/in 10 days after service. Court will determine from Motion & Answer whether Reargument will be granted.
RULE TO SHOW CAUSE
1. This is an appropriate remedy when one party isn’t complying with a Court Order.
a. P files the Petition for Rule to Show Cause setting forth allegations & relief requested & must serve R
b. R has 20 days to Answer
i. The Petition directs R to show reasons why he hasn’t complied w/ the terms of the Court Order.
c. Sanctions may include a finding of contempt
RELIEF FROM JUDGMENT OR ORDER – RULE 60
i. FC can correct clerical & mathematical errors arising from oversight or omission at any time of its own initiative or on Motion of any party.
ii. On Motion & upon such terms as are just, FC may relieve a party or legal representative from a Final Judgment, Order or Proceeding for these reasons:
1. Mistake, inadvertence, surprise, or excusable neglect
2. Newly discovered evidence with by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)
3. Fraud, misrepresentation or other misconduct of an adverse party
4. The judgment is void
5. Judgment has been satisfied, released, or discharged or a prior Judgment upon which it’s based has been reversed or otherwise vacated, or it’s no longer equitable that the Judgment should have prospective application or
6. Any other reason justifying relief from the operation of the judgment
7. Such Motion doesn’t affect finality of judgment or suspend its operation.
RELIEF FROM JUDGMENT OR ORDER – RULE 60: 3 Cases
1. Tsipouras, Del.1996: DESC found that FC abused its discretion by denying H’s Motion for Relief from Default Judgment where H showed that if his Motion were granted, the outcome of the action may have been different and there was nothing to indicate that W would be prejudiced if his Motion were granted. Also, Notice to H didn’t mention W’s Petition regarding H’s alleged contempt and consequently, Notice to H wasn’t meaningfully or reasonably calculated to advise H of the nature of the action & H never had an opportunity for a hearing on the merits of the contempt allegation
2. C v. C, Del.Fam.Ct.1996: After failing to file Answer to Divorce Petition, party filed a Rule 60(b) Motion for Relief From Judgment requesting FC to retain ancillary jurisdiction. As H didn’t object, FC allowed party to make claims for alimony & attorney’s fees in light of prior holdings. Here, W was not permitted to file late Answer to contest date of separation.
3. Talley, Del.Fam.Ct.1996: H filed Answer to Divorce Petition & counterclaims more than 20 days after Service of Petition but failed to appear for uncontested divorce hearing. H then filed Motion for Relief From Judgment, alleging he would be prejudiced by a finding of marital misconduct. The claim for prejudice was unsupported and FC noted that H essentially was requesting FC to reopen the Divorce b/c H failed to follow FC Rules. FC denied H’s Motion as he didn’t allege grounds upon which relief could be granted.
STAYS BY TRIAL COURT AND ON APPEAL – RULE 62
i. There are no automatic Stays
ii. In its discretion, Court may stay execution of any or all proceedings to enforce a judgment pending disposition of Motion for New Trial, Motion to Alter or Amend Judgment, or Motion for Relief From Judgment. Stays pending appeal are governed by the DE Constitution & by the Rules of the Appellate Court.
INJUNCTIONS – RULE 65
i. Upon filing of Petition for Divorce or Annulment, preliminary injunction is issued against both parties, enjoining them from concealing or disposing of marital property except in the usual course of business or for necessities; disturbing the peace of the other party; removing a child from the Court’s jurisdiction; and using credit cards or otherwise incurring any debt except in connection with marital litigation or for necessities.
ii. Except as otherwise provided in 13 Del. C. §1509, no other preliminary injunction shall be issued w/o notice to adverse party.
EMERGENCY & INTERIM ORDERS – RULE 65.2
i. FC may enter an Emergency Ex Parte Order upon Motion of any party or upon the Court’s own Motion. Such Orders can be entered w/o Notice only where FC determines that immediate and irreparable harm will result.
1. Immediate & Irreparable Harm – means immediate threat to health & safety of child due to serious physical abuse to child or other household member, or deprivation of food, clothing, or medical attention, or child removed from State in violation of Statute or Court Order.
ii. No ex parte Order shall be extended beyond 10 days w/o a hearing which affords the adverse party an opportunity to be heard, unless extended by the Court for good cause shown.
iii. Applications for interim financial relief or temporary custody, not of emergency nature, shall be made by Motion and determined by FC on Affidavits or Verified Pleadings, or after hearing if FC requires one. After entry of Interim Order, either party may request evidentiary hearing.
iv. Affidavits for priority or early scheduling of hearing shall be made by Motion and may be considered by FC in chambers w/o parties or counsel after Service accomplished, Notice of Motion given, & time for response has expired. Affidavits & Verified Pleadings must state nature of controversy, relief sought at priority hearing, and facts upon which FC may conclude that substantial & irreparable harm will result w/o priority scheduling.
JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE; CONTEMPT – RULE 70
i. FC HAS AUTHORITY TO TRANSFER LEGAL TITLE
1. If FC directs a party to execute a conveyance of land or to deliver deeds or other docs. or to perform any other specific act & a party fails to do so in the time specified, FC can direct the act to be done at the cost of disobedient party by the Clerk or by some other FC appointed person.
a. The party entitled to performance makes an Application to the FC, and the Clerk may issue a writ of attachment or sequestration against property of the disobedient party to compel obedience to the judgment if permitted by law.
b. FC can also, in proper cases, adjudge the party in contempt.
c. If real or personal property is w/in the jurisdiction of FC, and if permitted by law, the FC may also, in lieu of directing a conveyance, enter a Judgment divesting the title of any party & vesting it in others & such Judgment has the effect of a conveyance executed in due form of law.
APPEALS – RULES 72-76
i. APPEALS GO TO DESC
1. Party requesting appeal must pay deposit to defray fees & costs in preparing record for appeal, including an estimated amount for preparation of Certified Transcript of lower court testimony. Standard of Review is abuse of discretion.
2. 30-day time limit to file appeal is jurisdictional requirement and can’t be enlarged. If appeal filed after 30 day period, there’s no jurisdiction to hear the appeal.
3. Appeals from certain boards to FC are governed by Statute and by FC Rules.
4. In criminal cases, appeals involving adults are de novo to Superior Court. Appeals involving juvenile Δs are to DESC
FC & DUTIES OF CLERK – RULE 77
i. The FC is always open! FC may at any time enter an Order, including a final Order.
TRANSFER OF ACTION B/W COUNTIES – RULE 87.2
i. People can file Petitions with the FC in any county in DE. If action is commenced in a county other than one where R lives, or in a Custody or Child Support case, where the kids are located, FC can on its own Motion or by Motion of a party, transfer the case to the FC in the county of the R’s residence, or if it’s a Custody or Child Support case, where kids are located.
ii. Transfers can also happen when
1. R moves, or in Custody action, if kids’ location changes to another county during pendency of action or
2. other proceedings involving R are pending in FC in another county or
3. disposition of action by FC in one county directs care or supervision of any party by FC in another county or
4. as otherwise directed by Judge in original county.
ALLOWANCE OF ATTORNEY’S FEES – RULE 88
i. In every case where there’s a legal or equitable basis therefore, FC may assess a party the reasonable attorney’s fees of any other party.
ii. Where attorney’s fees are requested the attorney must submit to FC an Affidavit stating
1. time & effort expended
2. itemization of services rendered
3. relevant hourly rates
4. itemization of disbursements claimed
5. any sums received or that will be received w/ respect to legal services and/or disbursements and
6. any information that will enable FC to properly weigh the relevant factors set forth in the Rules of Professional Conduct.
iii. Relevant Statutes also have provisions for awarding attorney fees – 13 Del. C. § 1515
iv. Note: award of attorney’s fees in favor of opposing party may be justified only where it’s determined that the petitioning party has brought proceedings in bad faith or under fraudulent conditions. However, court costs incl. expert witness fees, may be assessed against losing party, regardless of good faith.
RECORDS; PRIVACY – RULE 90.1
i. All records of proceedings before FC are private and can’t be opened for anyone but
1. FC & its Staff
2. Parties & their attorneys
3. Other courts & public agencies or
4. Person specifically approved by FC b/c the have legitimate interest in records.
ii. Certain cases, such as Termination of Parental Rights, by Statute must be held before FC privately & are presumptively closed proceedings. Only the parties and essential FC Staff are permitted in such hearings.
TRANSCRIPTS – RULE 90.3
i. Upon payment of required fee, party to any proceeding in FC is entitled to a transcript of such proceeding
ii. Beeghly, Del.1996: where party requested each & every recording of each and every proceeding in a case; file indicated over 285 docket entries; party failed to pay required fee; and failed to comply w/ FC Rules, FC did not abuse its discretion to deny party’s request.
COMPLAINT – RULE 101
i. In accordance w/ the authority of 13 Del. C. §1508(h), the original Summons shall be returned 20 days after it’s issued unless the Complaint has 13 Del. C §1508(b) allegations, and if it does, it can be returned after 30 days. An alias Summons shall be returnable 30 days after it’s issued.
ii. Original Petitions for Divorce or Annulment shall contain, as an exhibit to the Petition, a certified copy of the certificate of marriage. If it’s not in English, need to submit a certified translation
iii. Each original petition for Divorce or Annulment shall include a designation by P, if it’s uncontested, if P would like to proceed w or w/o a hearing pursuant to 13 Del. C. §1517 so long as all requirements to proceed w/o a hearing have been met.
iv. 2 conformed copies of Complaint should be filed w/ original.
v. Prayer for Ancillary Relief permitted by 13 Del. C. Chapter 15 may be included in the Petition, Answer or Motion where appropriate to the action. Must also comply w/ Rule 16 & relevant statutory requirements.
vi. Where there is prayer for child custody, party shall file Affidavit giving information under oath as to child as required by 13 Del. C. §1909
vii. When there’s Prayer for Property Division, Alimony, Attorney’s Fees and/or costs, Rule 16(c) shall be applicable & compliance is required.
viii. Any other paper req’d in proceedings involving a child shall be filed w/ the proper pleading & Clerk of FC shall appraise the bar in writing, in advance, of any such required filing.
SCHEDULING DIVORCE & ANNULMENT – RULE 104.1
i. Contested Divorce & Annulment proceedings must be heard by FC at time convenient for FC & parties
ii. Only P has to appear at uncontested divorce & annulment proceedings (UDA). UDA proceedings are heard on regular schedule set by FC.
iii. Unless R has entered an appearance, an Affidavit of nonmilitary service shall be presented at hearing & filed in action.
iv. When P requests hearing in Petition for Divorce or Annulment, FC Clerk shall schedule the petition for an uncontested Divorce hearing w/o requiring further request.
v. When P has requested to proceed w/o an UDA hearing, FC Clerk shall send P a Notice once the case becomes trial ready. A case is deemed trial ready once any applicable period of separation has passed, the R has been served, the applicable Parent Education requirements have been satisfied. P then has 20 days from the date on the Notice of Trial Readiness to file a Request to Proceed W/o a Hearing and Affidavit in Support of the Request w/ FC. If no Request & Affidavit are filed w/in 20 days of the date of the Notice of Trial Readiness, the FC Clerk shall schedule the petition for an UDA hearing.
vi. Once an UDA hearing has been scheduled, P may request to have his Petition decided w/o a hearing by filing a Request to Proceed w/o a Hearing and Affidavit in Support of the Request as long as the Request and Affidavit are flied at least 7 days prior to the date of the scheduled UDA hearing.
vii. A Request to Proceed w/o a Hearing shall be accompanied by an Affidavit in support thereof, a copy of either the Notice of Trial Readiness or Notice of Hearing issued by the FC, and a verification that a copy has been served on R.
SCHEDULING DIVORCE & ANNULMENT – RULE 104.1: The Affidavit in Support of Request to Proceed w/o Hearing shall
1. reaffirm the Petition
2. verify Service of Process on R
3. Verify military status of R & advise whether R has filed an Answer or a Waiver of his rights under the Servicemembers Civil Relief Act.
4. affirm any applicable periods of separation under Title 13, Chapter 15 and
5. Affirm that the parties haven’t occupied the same bedroom or had sexual relations w/ each other w/in the last 30 days.
SCHEDULING DIVORCE & ANNULMENT – RULE 104.1: Misc
ix. Motions are heard at time scheduled by FC
x. UDA proceedings shall be heard in each county on a regular schedule set by FC. The FC may, prior to any regular divorce day, set a different or special hearing day.
xi. Either party in a contested action can notify Clerk in writing that action is ready for hearing & request that a hearing be scheduled. A copy of such notice shall be given to opposing counsel if the opposing party is represented or to the opposing party if not represented. A hearing will be scheduled and Notice of the date & time thereof given to each attorney and party.
xii. To schedule an uncontested action for hearing on any regular hearing day, P or attorney shall, at least 7 days before, notify the Clerk in writing that a hearing is requested for a specific day. (this next sentence is wrong) “A copy of the Notice shall be given to R’s attorney, if the R is not represented if an answer has been filed” p. 46 of FC outline
DECREES OF DIVORCE & ANNULMENT – RULE 104.2
i. Decree of Divorce shall be final immediately upon entry, subject to the right of appeal. The decree may incorporate by reference a prenuptial or postnuptial agreement pursuant to a separate stipulation executed by parties or their attorneys following commencement of action & approved by FC.
REVIEW OF COMMISSIONER’S ORDERS - 10 DEL. C. § 915 & RULE 53.1: WHAT CAN A FC COMMISSIONER DO?
i. Hear any civil case w/in FC jurisdiction
ii. Conduct criminal hearings i.e. juvenile detention hrgs & adult bail hrgs
iii. Compel attendance of necessary parties & witnesses
iv. Administer hearings
v. Take acknowledgments, Affidavits & Depositions
vi. Examine the parties & witnesses
vii. Pass upon all questions of competency of witnesses & admissibility of evidence
viii. Require the production of all books, papers, writings, vouchers & other documents applicable thereto
ix. Grant adjournments & extensions of time
x. Accept pleas to any offense w/in FC jurisdiction
xi. Appoint counsel to represent indigent Δs
xii. Sentence for criminal misdemeanors, criminal violations, criminal violations of probation and criminal contempt of court, whether the person has pleaded guilty to or has been convicted of 1 or more of the above offenses or whether the person has been adjudicated delinquent as a result of acts which would constitute a felony, if committed by an adult
xiii. Impose sanctions, including incarceration for civil contempt
REVIEW OF COMMISSIONER’S ORDERS - 10 DEL. C. § 915 & RULE 53.1: COMMISSIONER’S ORDER, INCLUDING EMERGENCY EX PARTE ORDERS SHALL BE AN ENFORCEABLE ORDER OF THE COURT
i. Interim or Final Order of Commissioner may be appealed to FC Judge by any party except in a party in default of appearance before Commissioner. No appeal of Commissioner’s decision directly to DESC.
ii. Any party, except a party in default of appearance before a Commissioner, may appeal a Final Order of a Commissioner to a Judge of the FC by filing & Serving written objections to such Order, as provided by FC Rules w/in 10 days from date of Commissioner’s Order.
1. Judge of FC shall make a de novo determination of those portions of the Commissioner’s Order to which objection is made, based upon findings of fact that are clearly erroneous, contrary to law, or an abuse of discretion.
2. A FC Judge may accept, reject, or modify in whole or in part the Commissioner’s Order.
3. FC Judge may also receive further evidence or recommit the matter to the Commissioner w/ instruction.
iii. Any party except a party in default of appearance before a Commissioner may appeal an Interim Order of a Commissioner to a FC Judge by filing & serving written objections w/in 10 days from date of Order.
1. Judge of FC may reconsider any Interim Order of a Commissioner, where it’s shown that the Commissioner’s Order is based upon findings of fact that are clearly erroneous, contrary to law, or an abuse of discretion.
iv. W/in 10 days of Commissioner’s Order, party must file written objections which set forth w/ particularity the basis for each objection. Party filing the written objections must Serve the other party.
v. Party filing appeal must have transcript prepared of proceeding before Commissioner, unless all parties agree to statement of facts. Upon request, FC may agree to accept electronic recording if objecting party is proceeding in forma pauperis.
REVIEW OF COMMISSIONER’S ORDERS - 10 DEL. C. § 915 & RULE 53.1: de novo review
c. FC shall make de novo determination based on record below. Party may request in writing that add’l evidence be permitted.
i. FC can only accept add’l evidence if it finds
1. It’s newly discovered evidence which by due diligence couldn’t have been discovered in time to present to Commissioner or
2. The circumstances justify reopening the record in the interest of justice
ii. Judge may accept, reject, or modify, in whole or in part, the Commissioner’s Order. Judge may recommit matter to Commissioner w/ instruction.
iii. Judge can decide matter based on written objections and transcript alone, w/o a hearing.
d. A party failing to comply with Rules shall be subject to dismissal of appeal.
e. No appeal of the Commissioner’s Order shall stay execution of the Order unless such stay is specifically ordered by a Judge of the Court
i. NOTE: the objections must be specific. A review of Commissioner’s Order is a review on the record. Judge may hold hearing but isn’t required to. Requests for review can be dismissed for failure to comply w/ Rules, such as failure to pay the transcript dees.
CHILD DEPENDENCY (can’t care for kid due to no fault of your own), NEGLECT (can care for kid but don’t want to) & ABUSE PROCEEDINGS: When and What to file
1. These shall be filed in either JP Court or FC.
2. Written Petition w/ facts verified by Affidavit in accordance w/ 10 Del. C. § 1003
3. Petitions filed in JP Court are transferred to FC.
ii. Petition may be field by Division of Child Protective Services or any other agency or person having knowledge of circumstances of child dependency, neglect, or abuse.
iii. Copy of petition shall be served on R pursuant to Rule 4
iv. When emergency removal of kid from home or other emergency relief is sought & parental consent isn’t obtained or isn’t available, Judge of FC shall promptly read the petition & grant custody of the kid to the Division of Child Protective Services or to kid’s relative upon the establishment of PC to believe that kid is in actual physical, mental, or emotional danger or there’s a substantial imminent risk thereof. Reasonable efforts must be made to prevent or eliminate the need for removal of a kid, and proposed placement must be the least disruptive alternative to the kid. (Rule 210). [This is similar to Rule 65.2 governing emergency order requests.]
v. Petitions alleging dependency/neglect/abuse that aren’t emergencies are scheduled for mediation. Emergency petitions bypass mediation and are reviewed by a judicial officer
Dependency & Neglect Hearings: PRELIMINARY HEARING / PC HEARING – RULE 212
i. Where there’s emergency removal or other emergency relief, a PC hearing occurs w/in 10 days in front of a Judicial Officer & he determines if PC exists to believe that kid continues to be in actual physical, mental, or emotional danger or that there’s a substantial imminent risk thereof.
1. PC finding can be based on hearsay & R may introduce evidence and XEX Ws presented by P.
ii. IF PC DOES EXIST
1. then, the custody order in effect shall continue, pending an adjudicatory hearing in accordance w/ the statute.
2. Party to a Custody Order shall have a right to request a review by Court during pendency of order, provided the facts set forth in petition are sufficient to warrant a change in the existing order. Division of Child Protective Services shall provide FC & R w/ a service & treatment plan 15 days after PC hearing.
iii. IF NO PC – Petition is dismissed w/o prejudice and kid is returned to R.
Dependency & Neglect Hearing: Asjudicatory Hearing
c. ADJUDICATORY HEARING – RULE 213
i. If PC exists, an adjudicatory hearing on the petition shall be scheduled & heard by FC 30 days from date of the entry of the preliminary protective order unless R waives his right to one and agrees to continued custody of the child w/ the Department of Services for Children, Youth, and their Families.
Dependency & Neglect Hearings: APPOINTMENT OF COUNSEL – RULE 207
i. A R determined by FC to be indigent may have counsel appointed by FC at any stage of the child dependency, neglect and abuse proceedings.
ii. NOTE: DESC has determined that Due Process under both US Constitution & DE Constitution require the appointment of counsel at the State’s expense to represent indigent parent when the dependency & neglect petition is filed.
Dependency & Neglect Hearings: COURT APPOINTED SPECIAL ADVOCATE – RULE 204
i. FC can appoint a Court-Appointed Special Advocate (“CASA”) for child upon request of parties or on its own Motion, to conduct an independent investigation of the circumstances of a case. The CASA makes recommendations to the Court as to the best interest of the kid.
OJ of Family Court continued
xiii. Actions re: appeals from administrative decisions of the Division of Child Support Enforcement (DCSE)
xiv. Actions by persons formerly married seeking interest in or disposition of jointly titled real property acquired during their marriage where it wasn’t disposed of by agreement or 13 Del. C .§1513 ancillary proceedings.
1. 3 things
a. FC uses equitable principles to divide property unless there’s a signed written agreement
b. If no written agreement, FC won’t consider factors enumerated in 13 Del. C. § 1513.
c. Party does not have to request this relief in Petition for Divorce.
2. Note on TBE & TIC: when divorce decree is issued, property held by married couple as TBE is converted to property held as TIC (i.e., owners have ½ interest in property). Party has right to petition for partition under statute.
xv. Parental notice of abortion proceedings
xvi. Charges of delinquency under Title 11, 16, or 21 that would otherwise be in original jurisdiction of FC will fall within original criminal jurisdiction of the Superior Court if the charges may be joined properly with a felony pending against the same child in Superior Court, as determined pursuant to the relevant rules of the Superior Court.
xvii. Actions concerning child support liens pursuant to Title 13, § 519 of the Delaware Code.
Relief that FC may grant after considering a petition for Protective Order - 2
h. Order R to temporarily relinquish R’s firearms & to refrain from buying / getting add’l firearms for duration of Order
i. Prohibit R from transferring, encumbering, concealing, or otherwise disposing of specified property owned or leased by the parties
j. Order R, P and other protected class members individually or as a group to participate in treatment or counseling programs
k. Grant any other reasonable relief necessary or appropriate to prevent or reduce the likelihood of future DV.
2. Any relief under this section can’t exceed a period of 1 year, except that it can be modified or extended by a further Order of the FC as described below.