CHAPTER 400

DESERTION AND SUPPORT

AN ACT TO AMEND CHAPTER 87 OF THE 1935 REVISED CODE OF THE STATE OF DELAWARE, AS AMENDED, CONCERNING THE DESERTION OF, OR FAILURE TO SUPPORT A WIFE OR CHILD; THE NEGLECT OF A CHILD; THE DUTIES OF PROBATION OFFICERS AND THE PROCEEDINGS UPON VIOLATION OF A SUPPORT PROBATION ORDER; ASSIGNMENT OF SALARY OR WAGE; DUTIES OF EMPLOYERS.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of all the Members elected to each House thereof concurring therein):

Section 1. That Chapter 87 of the 1935 Revised Code of the State of Delaware be amended by striking out Paragraph 3527, Section 2 thereof, and by inserting and enacting in lieu thereof a new Paragraph 3527. Section 2, to read as follows:

3527. Sec. 2. DESTITUTE WIFE OR CHILDREN; DESERTION OR FAILURE TO SUPPORT, A MISDEMEANOR; PENALTY; ILLEGITIMATE CHILDREN; DUTY TO SUPPORT:--Any husband who shall, without just cause, desert or wilfully neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitous circumstances, or any parent who shall, without lawful excuse, desert or wilfully neglect his or her legitimate or illegitimate child, "so that such child shall become a 'neglected child' as defined in Section 3 of Chapter 241, Volume 45, Laws of Delaware;" or refuse to provide for the support and maintenance of his or her legitimate or illegitimate child or children, under the age of eighteen years, in destitute or necessitous circumstances, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine, not exceeding five hundred dollars, or by imprisonment with hard labor in such penal or reformatory institution of this State as may be determined upon by the Court, for a period not exceeding one year, or both. It is made the duty of the parent of any illegitimate

child or children, under the age of eighteen years, to provide for the support and maintenance of such illegitimate child or children.

Provided, that in construing the meaning of the term "destitute or necessitous circumstances" as used in this statute, the Court shall consider the health, the relative economic condition, the financial circumstance, the income including the wages, and the earning capacity of the husband and of the wife, and of any child or children involved.

Section 2. That Chapter 87 of the 1935 Revised Code of the State of Delaware be further amended by striking out Paragraph 3532. Section 7 thereof, and by inserting and enacting in lieu thereof a new Paragraph 3532. Section 7, to read as follows:

3532. Sec. 7. PROBATION OFFICERS; DUTIES:--It shall be the duty of the probation officer or officers so appointed to make such investigation, to render such services and to provide such probation as may be required by the Court.

Section 3. That Chapter 87 of the 1935 Revised Code of the State of Delaware be further amended by striking out Paragraph 3533. Section 8 thereof, and by inserting and enacting in lieu thereof a new Paragraph 3533. Section 8 to read as follows:

3533. Sec. 8. VIOLATION OF PROBATION ORDER; PROCEEDINGS UPON; FORFEITED RECOGNIZANCE; PROCEEDS OF, HOW APPLIED:--If the Court, after a hearing on a Rule to Show Cause, be satisfied that the Defendant has violated the terms of the order or any of the terms and conditions of probation imposed on him by the Court by authority of Paragraph 3530, Section 5 hereof as amended, the Court may make the Rule absolute and may forthwith proceed to sentence the Defendant under the original conviction, or may enforce a suspended sentence, if any there be.

In case the Rule to Show Cause be made absolute and the Defendant's recognizance forfeited, and if there be enforcement of the said recognizance by execution or otherwise against the said Defendant or his surety, the sum recovered may, in the discretion of the Court, be paid in whole or in part to the wife, or to

the guardian, custodian or trustee of the minor child or children for whose benefit the order was imposed.

The Court may in its discretion, instead of making the Rule absolute, continue the Rule on such terms and conditions as the Court shall deem proper. The Court may, as a condition for the continuance of the Rule, request the Defendant to assign to the Court such sum certain from his or her periodic wage as shall be necessary to meet the order imposed upon him or her, by the Court; or, if the circumstances make it appear more expedient, the Court may request the Defendant to assign to the Court a fixed percentage, never to exceed fifty percent of his periodic "net" or "take-home" wages, for the purpose of meeting or partially meeting the order imposed upon him or her by the Court.

Wage assignments shall be requested by the Court only in cases where there is a child or children whom the Defendant is legally bound to support. Not more than twenty-five percent of the Defendant's "net" or "take-home" wages shall be requested to be assigned in any case in which there is not more than one child whom the Defendant is legally bound to support; and not more than an additional five percent of the Defendant's "net" or "take-home" wages shall be requested to be assigned for each additional child whom the Defendant is legally bound to support. The Defendant shall have the right in any case to refuse to sign a wage assignment.

In case of any such wage assignment, it shall be the duty of any employer of such Defendant, upon receipt of a certified copy of such wage assignment from the Court, to periodically deduct the sum certain or the fixed percentage stated therein as the case may be, from the "net" or "take-home" wages due such Defendant-employee, and to periodically mail or otherwise deliver such wage deductions to the Court, and to continue to make such periodic wage deductions and to mail or otherwise deliver such periodic payments to the Court so long as said Defendant shall remain employed by said employer, unless said Court shall, prior to the termination of such employment, otherwise order. In any case, and for any given wage period, the employer shall have performed his full duty under this statute, if said employer shall deduct from the Defendant-employee's wages and mail or other-

wise deliver to the Court, a sum equal to fifty percent of the "net" or "take-home" wages due from such employer to such Defendant-employee for the said wage period, notwithstanding the fact that the said fifty percent shall not be equivalent to the sum certain stated in the assignment.

In case any employer shall remit to the Court such wage deductions, by check or money order, it shall be the duty of such employer to make such check or money order payable to "The (here name the Court imposing the order) Court, assignee of (here name the Defendant-employee)," and in every case it shall be the duty of the employer to so identify each remittance as to enable the Court to make proper distributions thereof.

Approved July 1, 1949