FORMERLY SENATE BILL NO. 100
AS AMENDED BY SENATE AMENDMENTS NO. 1, 2, 3, 10
AND HOUSE AMENDMENT NO. 3
AN ACT TO ESTABLISH A FAMILY COURT FOR THE STATE OF DELAWARE BY MERGING INTO ONE COURT THE FAMILY COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY AND THE FAMILY COURT OF KENT AND SUSSEX COUNTIES AND TO PROVIDE FOR ITS ORGANIZATION, DUTIES, POWERS, JURISDICTION AND PROCEDURES.
WHEREAS, the Family Court of the State of Delaware in and for New Castle County and the Family Court of Kent and Sussex Counties are distinct and separate entities; and
WHEREAS, it would be to the best interest and welfare of the State of Delaware if the jurisdiction, policies, practices and procedures of these Courts were made uniform and consistent; and
WHEREAS, the establishment of a Family Court for the State of Delaware with State-wide jurisdiction will accomplish the ends desired;
Be it enacted by the General Assembly of the State of Delaware ( two-thirds of all members elected to each branch concurring therein):
Section 1. Chapter 9 and Chapter 11, Title 10, Delaware Code, are hereby repealed and in lieu thereof, a new Chapter 9, Title 10, Delaware Code is hereby enacted to read as follows:
CHAPTER 9. THE FAMILY COURT OF THE STATE OF DELAWARE SUBCHAPTER I, ORGANIZATION, ADMINISTRATION AND OPERATION
For the purpose of this Chapter, unless the context indicates differently
"Adequate Care" means a type and degree of personalized attention that will tend to advance a child's physical, mental, moral, emotional, and general well-being.
"Adult" means a person who has reached his 18th birthday.
"Child" means a person who has not reached his 18th birthday.
"Commissioner" refers to the City of Wilmington Municipal Court Commissioner.
"Court" means The Family Court of the State of Delaware, and "court" refers to other courts of the State of Delaware.
"Custodian" means any person who is charged by law with or who has assumed responsibility for a child's care.
"Delinquent Child" means a child who commits an act which if committed by an adult would constitute a crime or, who is uncontrolled by his custodian or school authorities or who habitually so deports himself as to injure or endanger the morals or health of himself or others.
"Dependent Child" means a child whose custodian is unable to provide him with adequate care.
"Family" means husband and wife; a man and woman cohabiting in a home in which there are children of either or both; custodian and child; or any group of persons related by blood or marriage who are residing in one home under one head.
"Law" means the common law and statutes of this state, the laws of any subdivision thereof, and regulations promulgated by a governmental agency having the force and effect of law.
"Neglected Child" means a child whose custodian refuses to provide him with adequate care.
"Non-Amenable Child" means any child who is not amenable to the rehabilitative processes of the Family Court.
"Relative" means any person within the immediate family, and any grandparent, uncle, aunt or first cousin.
§ 902. Purpose; construction
(a) In the firm belief that compliance with the law by the individual and preservation of the family as a unit are fundamental to the maintenance of a stable, democratic society, the General Assembly intends by enactment of this chapter that one court shall have original state-wide civil and criminal jurisdiction over family and child matters and offenses as set forth herein. The Court shall endeavor to provide for each person coming under its jurisdiction such control, care, and treatment as will best serve the interests of the public, the family, and the offender, to the end that the home will, if possible, remain unbroken and the family members will recognize and discharge their legal and moral responsibilities to the public and to one another.
(b) This Chapter shall be liberally construed that these purposes may be realized.
§903. Court of record; name; sub-titles
This Court shall be a court of record and shall be known as "The Family Court of the State of Delaware." It may be briefly cited as "The Family Court." Its offices, forms, and processes in New Castle County shall be sub-titled "for New Castle County," in Kent County "for Kent County," and in Sussex County "for Sussex County."
§ 904. Court facilities; provided by State
The State of Delaware shall provide for the Court at the County Seat in each County and in such other places as may be designated by the Chief Judge, adequate quarters properly furnished, consistent with the dignity of and suitable for the purposes of the Court.
§ 905. Budget; payment of salaries and expenses
The Court shall operate financially in accordance with its budget as enacted by the General Assembly and within this limit the Secretary of Finance shall pay the Court's salaries and
expenses upon the warrant of the Administrator or an assistant administrator countersigned by the Chief Judge, if available, or, if not, by any Judge.
§906. Judges; selection; designation; qualifications, terms; vacancies; salaries
(a) The Judges of The Family Court of the State of Delaware in and for New Castle County and of The Family Court for Kent and Sussex Counties shall continue to serve as judges of this Court for the remainders of their present terms. The enactment of this Chapter ratifies their respective appointments and confirmations as judges of this Court with state-wide jurisdiction. All further appointments of Judges of this Court from time to time hereafter shall be made by the Governor, by and with the consent of a majority of all the members elected to the Senate. Appointments, including appointments to fill vacancies which may occur during a term, shall be for a term of twelve (12) years.
(b) The Court shall be composed of ten (10) judges of equal judicial authority. One (1) of the judges shall be the Chief Judge, and the remainder shall be Associate Judges.
No more than a majority of one (1) judge shall be members of the same political party.
(c) Appointees shall be duly admitted to the practice of law before the Supreme Court of this State for a period not less than five years prior to their appointment and shall be selected because of their knowledge of the law and interest in and understanding of family and child problems. They shall not practice law during their tenure and may be reappointed.
(d) One of the Judges shall be designated by the Governor as Chief Judge to hold office during the term of his appointment.
(e) All of the judges shall be residents of the State of Delaware for a period of five years immediately prior to their appointment. The Chief Judge may reside in any County of the State of Delaware. After appointment, six (6) of the Associate Judges shall reside in New Castle County; one (1) Associate Judge shall reside in Kent County; one (1) Associate Judge shall reside in
Sussex County; and one (1) Associate Judge shall reside in either Kent or Sussex County.
(f) The Chief Judge of the Family Court shall receive annually as compensation for his services Twenty-six Thousand Dollars ($26,000.00) until July 1, 1971, at which time his annual compensation shall be Twenty-nine Thousand Dollars ($29,000.00) payable by the State. Each Associate Family Court Judge shall receive annually as compensation for his services the sum of Twenty-four Thousand Dollars ($24,000.00) until July 1, 1971, at which time his annual compensation shall be Twenty-seven Thousand Dollars ($27,000.00) payable by the State.
§ 907. Administrative powers and duties of the Court
The Court shall hold meetings when and where called by the Chief Judge or, in his absence, by the senior Associate Judge on duty, but in no event less often than semi-annually. By vote of a majority of its members it shall:
(a) Adopt a seal.
(b) Establish a uniform schedule of deposits, costs, and service fees.
(c) Provide for the safeguarding of the Court's records.
(d) Require employee bonds as shall seem proper.
(e) Make and publish court rules governing policies, processes, practices, and procedures, which shall be uniform throughout the State.
(f) Publish annual reports of the Court's activities, findings, and recommendations.
§908. Chief Judge; powers; duties
The Chief Judge, or in his absence the senior Associate Judge on duty, shall:
(b) Prepare and present to the Budget Director and the General Assembly the estimated budget of the Court for the ensuing fiscal year.
(c) Assign Judges to the several Courts.
(d) Approve the travel and other expenses incurred by the Judges and all employees in the performance of their duties.
(e) Establish, when necessary, a Judge's vacation schedule.
(f) The Chief Judge shall create a Judicial Council for a term of three years which shall be composed of the Chief Judge and two associate judges, both of whom shall be appointed by the Chief Judge, and one of whom shall reside in Kent or Sussex County. No more than a bare majority of the judges on the Judicial Council shall be affiliated with any one major political party. The Judicial Council shall determine the organization and structure of the Court; establish the procedure for appointment and dismissal; the classification, titles, duties, and salaries of the Administrator, the Director of Treatment Services, the respective Chief Supervisors for the Court in each of the three counties, and the personal secretaries of the Administrator and all Judges. All of the aforementioned individuals shall be specifically exempt from the State Merit System. All other employees of the Court shall be included within the State Merit System in accordance with the provisions of Chapter 59, Title 29 of the Delaware Code.
() Establish a procedure for the assignment of cases to the Judges.
(a) Provide for payment of the Court's expenses.
§ 909. Administrator; qualifications; duties
There shall be an Administrator who shall possess an earned bachelor's degree and who shall have three years of supervisory experience in either governmental or private business administration or its equivalent. Under the Chief Judge's Supervision, he shall:
(b) With the director of treatment services, integrate into one harmonious whole the judicial, social, legal, clerical and administrative services of the Court.
() Submit to the Court a proposed budget for the ensuing fiscal year showing the total number of employees needed, classifications of employees and proposed salaries, and other anticipated expenses of the Court.
(a) Prepare the vouchers for salaries and expenses of the Court, which shall be signed by him and countersigned by the Chief Judge, or in the Chief Judge's absence, by any Judge, and forward them to the Secretary of Finance for payment.
(b) Prepare and keep current an inventory of the Court's capital assets.
(1) Regularly and frequently visit the Court in each County. (g) Perform all duties prescribed by the Chief Judge.
§910. Director of Treatment Services; qualification; duties
There shall be a director of treatment services who shall possess an earned post-graduate degree in either criminology, and/or corrections, sociology, psychology, social work, or social sciences; and he shall have had experience in administration and counseling in a judicial or correctional agency. Under the Chief Judge's supervision, he shall:
(a) Be Secretary to the Court in matters that pertain to the Court's probation and counseling services.
() Direct the Court's probation and counseling services and personnel.
(a) With the administrator, integrate into one harmonious whole the judicial, social, legal, clerical and administrative services of the Court.
(e) Develop and maintain a training program for probation and counseling personnel.
(f) Perform all duties prescribed by the Chief Judge.
§911. Supervisors, Probation Officers, Counselors; qualifications; duties
There shall be a Chief Supervisor for the Court in each County who shall possess an earned graduate degree in either criminology, and/or corrections, sociology, psychology or social work, and such other supervisors as shall have an earned graduate degree in social work, and such probation officers, and counselors as deemed necessary who shall possess earned bachelors degrees. Other probation officers and counselors may be appointed by the Chief Judge who shall possess such qualification as the Chief Judge shall prescribe. They shall be conservators of the peace, may serve and return the Court's processes, and shall perform such duties as may be assigned to them.
§912. Clerks of Court; appointment; terms of office, bonds, duties
(a) There shall be a Clerk of Court appointed for the Court in each County and such Deputy Clerks as the Chief Judge deems necessary.
(b) The clerks and deputy clerks of the Court shall give bond to the State in the amount of $200,000 for the clerk and deputy clerks of New Castle County and in the amount of $100,000 for the clerk and deputy clerks of Kent and Sussex Counties to execute faithfully their duties while in office. The State shall bear the cost of the bond premiums required hereunder.
(c) The clerk, or, in his absence, the Deputy Clerk, shall have care of the legal records of the Court which he serves and shall receive all fees, fines, costs, and cash bail arising out of any proceeding in said Court. He shall administer all necessary oaths, enter the judgments, issue commitments and executions to enforce the same, and make up and keep the records of the Court in all cases therein. He shall issue all process under his hand and the seal of the Court, and shall attest the same in the names of the Judges,
or any of them, signing the same by his title of office, and shall tax costs. He may take bail from persons arrested whether or not the Court is in session, subject to revision by a Judge, and shall do all other acts which the Court shall prescribe.
§ 913. Masters; appointment; duties; review
(a) The Chief Judge may appoint, commission and set salaries of suitable persons to act as Masters in the Court, all of whom shall hold office at the pleasure of the Chief Judge and shall be residents of the State of Delaware for at least five years immediately preceding their appointment. The salaries so set shall be a part of the annual budget of the Family Court and shall reflect the educational background, experience and time commitment of the person appointed to such office.
() When requested by the Chief Judge, a Master may hear any matter properly before him and may order the issuance of legal process to compel the attendance of necessary parties and witnesses.
The Master shall announce his conclusion to the parties or to their attorneys; or in the case of a hearing, shall relate to a child, then to a custodian, adult friend, or attorney for the child, or in case there be no custodian, adult friend or attorney for the child, then to a Probation Officer.
The Master shall transmit to the Chief Judge or such Associate Judge as the Chief Judge designates, all papers and records relating to the case, together with his findings and recommendations in writing.
() A review de novo by an Associate Judge designated by the Chief Judge, shall be allowed, provided any above named person petitions in writing for the same within fifteen days from the date of a Master's announcement, as aforesaid, of his findings and recommendations.
In the event that no such hearing is requested within the ten day period aforesaid, the findings and recommendations of the Master, unless they be disapproved in writing by an order of the Chief Judge, shall become the judgment of the Court, with rights of appeal reserved to all parties.
SUBCHAPTER II. JURISDICTION AND POWERS
§921. Exclusive original civil jurisdiction
The Court shall have exclusive original civil jurisdiction in all proceedings in this State concerning:
(a) Any child found in the State who is alleged to be dependent, neglected, or delinquent except as otherwise provided by this Chapter.
(b) Enforcement of any law, petitions and actions respecting the education, protection, control, care, possession, custody, visitation, and support of children.
(c) Judicial consent to employment, medical care, or enlistment into the armed forces of a child when such consent is required by law.
(d) Actions to terminate compulsory school attendance by a child who has not reached his 16th birthday.
(e) Actions brought by a husband, or wife, or any member of a family who has reached his 18th birthday wherein it is alleged some other member of the family is by his conduct imperiling the family relationship and petitions the Court for appropriate relief.
(f) Liability of relatives to support a poor person, 13 Del. C. §501, 31 Del. C. § 2830-2831.
(g) Execution of forms consenting to marriage, 13 Del. C. § 123.
(h) Reciprocal support actions by or against non-residents, 13 Del. C., Chapter 6.
§922. Exclusive original criminal jurisdiction
The Court shall have exclusive original criminal jurisdiction in all proceedings in this State concerning the following, the enumeration of which shall not be construed to exclude jurisdiction otherwise conferred upon the Court:
(a) Ill treatment, abuse, abandonment, or contributing to the delinquency of a child, or any misdemeanor committed against a child.
(b) Offenses, except felonies, committed by one member of a family against another member of the family, and of criminal cases, except felonies, in which one member of a family is complainant against another member of the family.
(c) Offenses, except felonies, in which the defendant is a member of a family and the complainant is a peace officer and the criminal act complained of was committed during a family altercation.
(d) Desertion, neglect, or refusal to support a wife or child, 13 Del. C. § § 502-51 1.
(e) Illegitimacy proceedings, 13 Del. C. § § 1321-1335.
(f) Children of immoral parents, 13 Del. C. § 706.
(g) Aiding a child who escapes from the Department of Health and Social Services, 31 Del. C. 55311.
(It) Cruel treatment and wrongful disposition or employment of children, 11 Del. C. § §431-432, 12 Del. C. §3905.
(i) Abducting a child, 11 Del. C. § 624.
(j) Violations of child labor laws, 19 Del. C. § §501, 511-517.
(k) Placing a resident or bringing a non-resident dependent child into Delaware without consent of the Department of Health and Social Services, 31 Del. C. § § 307, 351, except as provided in the Inter-State Compact for Juveniles.
(1) Sale or delivery of an alcoholic beverage to a child, 4 Del. C. § 904.
(m) Permitting a child to remain where alcoholic beverages are sold, 11 Del. C. § 433.
(n) Furnishing cigarettes to a child, 11 Del. C. 5434.
(o) Permitting a child to be present at games of chance, 11 Del. C. § 670.
(p) Sale of weapons to a child, 24 Del. C. 5903.
(q) Toying with a child, 11 Del. C. 5822.
() Harboring or using a child for sex purposes, 11 Del. C. 5821.
(a) Adultery, 11 Del. C. § 5311-312.
(b) Wife beating, 11 Del. C. 5911.
(c) Incest involving a child or where the offenders are members of a family, 11 Del. C. 5591.
(d) Reciprocal support proceedings against or on behalf of non-residents, 13 Del. C., Chapter 6, where appropriate.
§923. Jurisdiction over matters begun prior to this Chapter
The Court shall have jurisdiction to hear and decide all matters before The Family Court of the State of Delaware in and for New Castle County and The Family Court for Kent and Sussex Counties which had not been disposed of prior to the effective date of this Act.
§924. Concurrent original civil jurisdiction
The Court shall have concurrent jurisdiction to hear writs of habeas corpus or other proceedings brought for the purpose of gaining or retaining the custody of a child or for the purpose of determining whether a child is being unlawfully detained by any person, agency, or institution.
§925. General Jurisdiction
The Court and each Judge shall have authority to: (a) Conserve the peace.
(b) Commit or bind, with or without surety, as a committing magistrate, for appearance at the proper court, persons charged with having violated the law together with material witnesses.
(c) Determine and punish civil and criminal contempt.
(d) Issue process for the exercise of its jurisdiction and require service thereof under pain of contempt.
(e) Receive, hear, and make recommendations concerning matters assigned to it by any state or municipal court. Such recommendations shall be certified to the assigning court.
() Transfer for good cause any proceeding from the Court in one county to the Court in any other county.
(a) Enter, proceed on, and satisfy in the name of the State any forfeited bond.
(b) Sit separately or jointly with any or all other Judges.
() Hear, determine, render, and enforce judgment in any proceeding before the Court.
(a) Assess fees, costs, and fines; or remit them in proper cases.
() After due notice to interested parties, review, revise, or revoke any prior order of the Court with reference to the custody, control, care, support or visitation of any person, or in any proceeding where failure to do so would result in manifest injustice.
(1) Punish for contempt any person who, in order to evade the Court's jurisdiction, removed from the State any child concerning whose possession, custody, or alleged unlawful detention, a writ of habeas corpus or other proceeding has been filed.
(m) Administer oaths and take acknowledgments.
(n) Appoint guardians ad litem.
(o) In any civil action where jurisdiction is otherwise conferred upon the Family Court, it may enter such orders against any party to the action as the principles of equity appear to require.
SUB-CHAPTER III. PROCEDURE
PART A. PROCEEDINGS IN THE INTEREST OF A CHILD
§931. Delinquent child not criminal; prosecution limited
Except as provided in § 938, no child shall be deemed a criminal by virtue of an allegation or adjudication of delinquency, nor shall a child be charged with or prosecuted for a crime in any other court. In this Court the nature of the hearing and all other proceedings shall be in the interest of rather than against the child. Except as otherwise provided, there shall be no proceedings other than appellate proceedings in any court other than this Court in the interest of a child alleged to be dependent, neglected, or delinquent.
Any person having knowledge of a child within the State who appears to be neglected, dependent, or delinquent, may file with the Clerk of the Court a petition in writing setting forth the facts verified by affidavit.
§933. Duties of officer having child in custody; prohibited acts
(a) Any peace officer having taken a child into custody shall immediately notify the custodian of the child that the child has been taken into custody.
(b) After making every reasonable effort to give notice under subparagraph (a), the peace officer:
1. May release the child to his custodian with a brief report of the reason for his apprehension; or
2. Shall take the child directly before the Court if the Court is in session unless a judge of the Court shall direct otherwise; or
3, Shall take the child before a court or Commissioner for disposition in accordance with § 934, if this Court is not in session.
(c) After taking a child into custody, the officer shall, forthwith file with the Court in the county where the child is taken into custody a petition in accordance with § 932 on forms furnished by the Court.
(d) After the child has been taken into custody, the child shall not be held incommunicado for more than two hours or incarcerated in a jail, police station cell, prison, workhouse, or correctional institution except by order of a judge of this Court and except as otherwise provided in this Chapter.
§934. Other courts; issuance of warrants; powers and duties
(a) Any judge of any state or municipal court or any official designated for such purpose may issue a warrant directing a peace officer to take into custody a child alleged to be delinquent,
(b) Any judge of any court of this State, including Justices of the Peace and local alderman, before whom a child is brought by a peace officer:
I. May release the child on his own recognizance, or on that of a person having his care, to appear before the Court when notified so to do.
2, May require the child to furnish reasonable cash or property bail or other surety for his appearance before the Court when notified so to do.
3, May order the child detained in a facility designated by the Department of Health and Social Services provided that the child, after having been given ample opportunity, shall fail to furnish the required bail; and provided that detention appears necessary for the child's or the public's protection; and provided that such detention shall continue only until the next session of the Family Court,
4. Shall notify the person having the care of the child, if his address be known, of the child's having been taken into custody, the reason therefor, and the disposition of the matter.
5. Shall file with this Court forthwith a petition in accordance with § 932 on forms furnished by this Court.
§935. Process; service; return; interim order; investigation
(a) Following commencement of any action concerning a child, the child and his custodian shall be brought into the Court by summons or other process. If no custodian can be located, the child's guardian, or some suitable person (preferably a near relative) appointed by the Court to act in behalf of the child shall be notified to appear.
(b) A summons or other process of the Court may be served by any probation officer, sheriff, county, town, or city constable or police officer within his jurisdiction, either by reading the same to the person to be served, or by delivering a copy thereof to the person or by leaving a copy thereof at his usual place of abode in the presence of an adult person.
(c) The return of such summons or other process with the endorsement of service by the serving officer in accordance herewith shall be sufficient proof thereof.
(d) Where no custodian or interested close relative can be located, the Court may make such interim order as the interest of the child may require.
(e) In delinquency proceedings after the child has been adjudged delinquent and at any time in all other proceedings concerning a child the Court may accept a study relating to the child previously made by any recognized welfare agency, or may order a study made.
§936. Disposition of child pending adjudication; payment for care
Pending adjudication the Court may:
(a) Release a child alleged to be delinquent upon his own recognizance or upon the recognizance of his custodian or near relative, or upon bond with surety, to appear whenever and wherever notified to do so; or, where the required bond is not
provided, detain the child in a facility designated by the Department of Health and Social Services.
(b) Release a child alleged to be dependent or neglected to his custodian; or, where the welfare of the child appears to require such action, place him in the care of the Department of Health and Social Services or any suitable person or agency; provided, however, that if the child is placed with someone other than a relative, the Court shall require an evaluation and report from the Department of Health and Social Services.
(c) Order the person legally liable therefor to pay for the child's care during the period of his placement outside his own home.
(d) Defer proceedings pending further investigation, medical or other examination, or where the interest of a child will thereby be served.
§ 937. Adjudication; disposition following adjudication; effect
(a) Where the evidence supports such holding, the Court may declare a child to be dependent, neglected, or delinquent.
(b) Following adjudication, the Court may:
1. Defer proceedings pending further investigation, medical or other examinations, or where the interest of the child will thereby be served; and, where a child has been adjudged delinquent release him upon his own recognizance or upon the recognizance of his custodian or near relative, or upon bond with surety, to appear whenever and wherever notified to do so; or, where the required bond is not provided, detain him in a facility of the Department of Health and Social Services.
2. Allow a child to remain in his own home with or without Court supervision.
3. Grant custody of a child to any person or agency where satisfactory arrangements can be made but, in the event the child is placed in a home other than the home of a relative, the Court shall require an evaluation and report from the Department of Health and Social Services.
4. Refer the child to the Department of Health and Social Services for protective supervision.
5. Grant custody of a child to the Department of Health and Social Services for foster home placement.
6. Grant the care or custody of a child to any licensed .child-placing agency in this State that will accept the child.
7. Grant the care or custody of a child to any division of the Department of Health and Social Services provided by the State for the care of children.
8. Grant the care or custody of a child to any private institution within or without the State that cares for children, provided satisfactory arrangements can be made.
9. Grant the care or custody of a child to any religious child-caring agency or institution, preferably of the child's religious faith or that of his parents, or either of them, within or without the State provided satisfactory arrangements can be made.
10. Place a delinquent child on probation.
11. Fine a delinquent child.
12. Order a delinquent child to make restitution in whole or in part as the Court in the exercise of judicial discretion determines for injury to the person or property of another caused by the child where the monetary damage can be ascertained.
13. Award custody of a delinquent child to the Department of Health and Social Services.
14. May commit a mentally ill, retarded, or disturbed child for observation or treatment to any appropriate institution within the State, or to any institution without the State which will consent to receive the child.
15. Prescribe such other treatment, punishment, or care as in the opinion of the Court would best serve the needs of the child and society.
(c) No adjudication upon the status of a child shall be deemed a conviction nor shall it be deemed to imply that a child is a criminal except as provided in Section 938 of this Act.
(d) Neither the adjudication nor any evidence given in any case shall be admissible against such child in any future civil or criminal proceeding in any court for any purpose other than a pre-sentence investigation ordered by this or any other court.
§ 938. Proceeding against child as an adult; amenability proceeding; referral to another court
(a) A child shall be proceeded against as an adult where:
I . The acts alleged to have been committed constitute first degree murder, rape, or kidnapping.
2. The child has reached his 16th birthday and is not amenable to the rehabilitative processes available to the Court.
3. The General Assembly has heretofore or shall hereafter so provide.
(b) In all cases specified in (a) the Court shall, upon application, hold a preliminary hearing and, if the facts warrant, thereafter refer the child to the Superior Court or to any other court having jurisdiction over the offense for trial as an adult.
(c) When a child has reached his 16th birthday and is thereafter charged with being delinquent, the Court may, on motion of the Attorney General or upon its own motion, defer further proceedings in the Family Court and conduct a hearing to determine whether the child is amenable to the rehabilitative processes of the Court. In determining whether the child is so amenable, the Court shall take into consideration, among others, the following factors which are deemed to be non-exclusive:
I. Whether, in view of the age and other personal characteristics of the child, the people of Delaware may best be protected and the child may best be made a useful member of society by some form of correctional treatment which the Family Court lacks power to assign; or
2. Whether it is alleged death or serious personal injury was inflicted by the child upon anyone in the course of commission of the offense or in immediate flight therefrom; or
3. Whether the child has been convicted of any prior criminal offense; or
4. Whether the child has previously been subjected to any form of correctional treatment by the Family Court; or
5. Whether it is alleged a dangerous instrument was used by the child; or
6. Whether other participants in the same offense are being tried as adult offenders.
If it decides that the child is amenable, it may proceed to hear the case. If it decides that he is not amenable, it shall refer the child to the Superior Court or to any other court having jurisdiction over the offense for trial as an adult.
PART B. ADULT CRIMINAL PROCEEDINGS
§940. Prosecution of adults; process; bail
(a) Prosecution of a person subject to the jurisdiction of the Court who has reached his 18th birthday prior to the time of the commission of the offense shall be by information only without trial by jury.
(b) A summons or other process may be employed to command the appearance of such person before the Court.
(c) Such person may be released on his own recognizance; or under such bail as the Court may require pending termination of his case; or, in default of bail, he may be committed to the Department of Health and Social Services pending termination of his trial.
§941. Duties of other courts
(a) When any adult shall have been arrested for any offense within the jurisdiction of this Court, the arresting officer may
bring him directly to the Court in the appropriate county if it be in session, unless a Judge of the Court directs otherwise, or, if the Court is not in session, before any other criminal court.
(b) Such court shall inquire into the matter and shall hold the accused on his own recognizance or on bail, with or without surety, and may bind material witnesses for their appearance before this Court at its next session or at such time as they may be notified by this Court to appear; and in default of bail, the accused and material witnesses shall be committed to the Department of Health and Social Services to be delivered to this Court at its next session. All recognizances and bail bonds shall be forthwith forwarded to the Court in the appropriate County.
(c) The accused shall, upon application, be granted a preliminary hearing.
Where the facts warrant the Court may adjudge an adult guilty of the offense charged and may:
(a) Impose the penalty provided by law; or
(b) Suspend the penalty, or any part thereof, and place the person on probation under such terms and conditions as the Court deems proper.
PART C. ADULT PROCEEDINGS
§ 950. Disposition
In any civil action within the jurisdiction of this Court and upon the petition of a person properly before it, the Court may:
(a) Award the custody or possession of a child to any party to the action, establish visitation rights, and, in a proper case, order payment of support for the child.
(b) Order a child's custodian to exercise such care and perform such acts as may be reasonably necessary to insure that the child shall obey the law and receive adequate care.
(c) Consent to a child's employment, or to his enlistment into the armed forces, or to his receiving medical care as may be required by law.
(d) Order a person under a duty to do so to pay through the Court or directly to his wife or to the custodian of his child reasonable support for the wife or child.
(e) In an action to prevent a family member from conduct that imperils the family relationship, order the defendant to desist from the acts complained of, or order individual or family counseling with the court staff or with any appropriate counseling agency, or enter such other order as may be required.
(f) May commit a mentally ill, retarded, or disturbed adult for observation or treatment to any appropriate institution within the State, or to any institution without the State which will consent to receive him.
PART D. APPEALS
(a) From any order, ruling, decision, or judgment of the Court there shall be the right of appeal as provided by law to the Superior Court.
() An appeal shall be taken to the Superior Court of the County in which is located the branch of this Court from whose disposition the appeal is taken.
(a) An appeal shall be taken within 30 days from the date of the disposition, or within such time as provided by law.
(b) The appellant shall give bond to the State of Delaware in such sum, with or without surety, and conditioned as the Court may require.
() No appeal shall stay the execution of an order of this Court unless such stay shall be specifically ordered by this Court in the first instance or by the Superior Court.
§961 Appeals from custody orders
(a) Any order of the Court relative to the custody of any child shall be subject to review.
(b) The child's parent, guardian, next friend or any interested person or agency, at any time within 30 days after the date of such order, upon giving surety for costs as provided in this section, may appeal to the Superior Court.
(c) Any Judge of the Superior Court may rehear the case; and for that purpose shall cause the child to be brought before him, and also the witnesses on behalf of the State and the custodian, and upon such rehearing, the Judge of the Superior Court shall make such order in the matter as he deems proper.
(d) The appeal shall not be allowed unless the parent, guardian, next friend, or interested person or agency shall give bond to the State of Delaware in such amount, and with such surety as is approved by one of the Judges of the Superior Court, conditioned for the payment of the costs of said appeal and rehearing.
() In the case of indigent person, the Court may, in its direction, waive surety for costs upon affidavit by such person that he is without funds and means of prosecuting the appeal.
() The taxing of costs shall be within the discretion of the Judge of the Superior Court who presides at the hearing.
§ 962. Appeals by the State in Family Court cases
(a) An appeal may be taken by the State from the Family
Court to the Superior Court in the following instances:
1. Appeal as of right. The State shall have an absolute right to appeal to the Superior Court a final order of the Family Court where the order constitutes a dismissal of a petition or information or any count thereof or the granting of any motion vacating any verdict or judgment of conviction or delinquency where the order of the Family Court is based upon the invalidity or
construction of the statute upon which the petition or information is founded or where the order is based on lack of jurisdiction of the Family Court over the person or subject matter.
2. Appeal in the discretion of the Superior Court. The State may apply to the Superior Court to permit an appeal to determine a substantial question of law or procedure, and the Superior Court may permit the appeal in its absolute discretion. The Superior Court shall have the power to adopt rules governing the allowance of such an appeal; but, in no event shall the decision or result of the appeal affect the rights of the appellee and he shall not be obligated to defend the appeal, but the Superior Court may require the Public Defender of the State of Delaware to defend the appeal and to argue the cause; provided, however, that if the order appealed from is an order suppressing or excluding substantial and material evidence the Superior Court may permit an interlocutory appeal of any pretrial order, and if the order suppressing such evidence is reversed, the appellee may be subjected to a trial.
(b) The State shall have the same rights of appeal to the Supreme Court of the State of Delaware, as are provided in subparagraph (a) of this section, from an affirmance by the Superior Court of the order of the Family Court which was appealed.
() The appeal or application for appeal shall be filed with the Appellate Court within 30 days from entry of the order appealed from.
(a) "Order" for purposes of this section includes any judgment, order, ruling, decision, memorandum, opinion, or equivalent entry of the Court appealed from which constitutes a fixed determination by such Court.
PART E. MISCELLANEOUS
§970. Examination; treatment; payment
(a) The Court may order any person within its jurisdiction examined by a licensed practitioner in the appropriate field, and if the examiner shall certify that treatment would be in the interest of the examined person and the public, order such treatment.
(b) The Court may, after a reasonable opportunity to be heard, order the examined person, or the person legally liable for his support, to repay the Court for its outlay on his behalf, such sum, in such manner, within his ability, as the Court determines.
§971. Assignment of prosecutors and public defenders
Sufficient prosecutors and public defenders shall be assigned to the Court in each County as are required in the judgment of the Attorney General, the Public Defender and the Court.
§972. Proceedings; privacy; informality
(a) All proceedings before the Court and all records of such proceedings shall be private except to the extent that the Court may consider publication in the public interest except as provided below in subparagraph (b). Proceedings may, within the Court's discretion, be informal, but shall be consistent with decorum and the law.
(b) All records concerning any child shall be made duly available to the Superior Court and the Department of Health and Social Services.
§ 973. Merger; effect on judges; employees; cases; records; prior offenses
(a) Upon the effective date of this Chapter the Family Court of the State of Delaware in and for New Castle County and the Family Court for Kent and Sussex Counties shall be merged into one Family Court and shall not thereafter function as separate Courts.
(b) All persons who are employees of the Family Courts at the time of the merger shall be retained as employees of the merged Court, without diminution of rank, position, authority, or compensation by reason of enactment of this Chapter.
() Any case within the jurisdiction of the Family Court previously adjudicated in any Court which is active at the time of the merger shall be transferred to and be continued in the merged Court, and the records therein shall become the records of the
merged Court, which shall have authority to carry out such orders as were previously made in the case.
(d) No offense committed and no penalty or judgment incurred under the provisions of any law existing prior to the merger shall be affected by any of the provisions of this Chapter.
Section 2. § 974. Severability
If any section, subsection, sentence, phrase or word of this Chapter or circumstances arising out of the application thereof shall be declared unconstitutional under the Constitution of the State of Delaware or of the United States by a state or federal court of competent jurisdiction, the remainder of this Chapter shall be unimpaired and shall continue in full force and effect and proceedings thereunder shall not be affected.
§ 975. Inconsistencies repealed
All acts or parts of acts inconsistent with this Chapter are to the extent of such inconsistency hereby repealed.
Section 3. §976. Effective Date
The provisions of this Act relating to the number and salaries of Family Court judges shall take effect upon the signature of this Act by the Governor. The Governor shall have the power to nominate the new judges and the Senate the power to consider and pass on any such nominations of Family Court judges after the date of such signature. The judges nominated and confirmed shall have the power to take the oath of office and shall be enabled to receive the salary then applicable. The remaining provisions of this Act shall take effect 90 days after the Governor's signature hereof.
Section 4. Title 11, § §2711 and 2712 are hereby repealed; such repeal to take effect 90 days after the signature by the Governor of this Act. Any motion, hearing, proceeding, process or decision made, brought or carried on prior to the effective date of this Act and pursuant to the aforesaid sections hereby repealed, shall continue in full force and effect and shall not be terminated by virtue of the repeal of said sections. Any proceeding dealing with amenability brought on or after the effective date of this Act shall be brought pursuant to the provisions of this Act.
Section 5. The sum of $400,000 is hereby appropriated to the Family Court to effect the purposes of this Act. This Act shall be considered a supplementary appropriation for the fiscal year 1971 and the monies appropriated shall be paid from the General Fund of the State Treasury from monies not otherwise appropriated. Any funds remaining unexpended on June 30, 1972 shall revert to the General Fund.
Approved June 9, 1971.