CHAPTER 448

FORMERLY

SENATE BILL NO. 317

AS AMENDED BY SENATE AMENDMENT NO. 2

AN ACT TO AMEND TITLES 10, 11 AND 13 OF THE DELAWARE CODE RELATING TO CRIMINAL NON-SUPPORT.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Chapter 5, Title 11 of the Delaware Code by adding the following new §1113;

"Section 1113. Criminal Non-support and Aggravated Criminal Non-support.

(a) A person is guilty of criminal non-support when he she knowingly fails, refuses or neglects to provide the minimal requirements of food, clothing or shelter for his or her minor child. Criminal non-support is a class B misdemeanor unless the person has previously been convicted of the same offense or the offense of aggravated criminal non-support, in which case it is a class A misdemeanor.

(b) A person is guilty of aggravated criminal non-support when, being subject to a support order, he or she is delinquent in meeting, as and when due, the full obligation established by such support order and has been so delinquent for a period of at least four (4) months' duration. Aggravated criminal non-support is a class A misdemeanor, unless any one of the following aggravating factors is present, in which case aggravated criminal non-support is a class G felony:

(1) The person has previously been convicted of aggravated criminal non-support; or

(2) The person has been delinquent in meeting, as and when due, the full obligation established by such support order for eight (8) consecutive months; or

(3) The arrearage is $10,000.00 or more.

(c) In any prosecution for criminal non-support, it is an affirmative defense that the accused has fully complied with a support order that was in effect for the support of the subject person during the time period of the offense charged.

(d) In any prosecution for criminal non-support or aggravated criminal non-support, it is an affirmative defense that the accused was unable to pay or provide support, but the accused's inability to pay or provide support must be the result of circumstances over which he or she had no control. Unemployment or underemployment with justifiable excuse shall constitute a defense to any prosecution for criminal non-support or aggravated criminal non-support. Justifiable excuse may be established where the accused has been involuntarily terminated from his or her employment or otherwise had his or her income involuntarily reduced, and is diligently and in good filial seeking reasonably appropriate employment opportunities under all the circumstances or pursuing self-employment.

(e) It is not a defense to a charge of criminal non-support or aggravated criminal non-support that the person to be supported received support from a source other than the accused.

(f) In any prosecution for criminal non-support or aggravated criminal non-support, payment records maintained by an administrative agency or court through which a support order is payable are prima facie evidence of the support paid or unpaid and the accrued arrearages.

(g) A privilege against disclosure of confidential communications between spouses does not apply to a prosecution for criminal non-support or aggravated criminal non-support, and either spouse shall be competent to testify against the other as to any and all relevant matters.

(h) No civil proceeding in any court or administrative agency shall be a bar to a prosecution for criminal non-support or aggravated criminal non-support.

(i) The court, in its discretion, may order that any fine upon conviction for criminal non-support or aggravated criminal non-support be paid for the support of the person entitled to support. If a support order has been entered, a fine paid pursuant to this subsection shall be applied in accordance with the support order.

(j) The court shall order any person convicted of criminal non-support or aggravated criminal non-support to make restitution to the person entitled to support. The amount of restitution is the arrearages that accrued under a support order during the time period for which the person was convicted of criminal non-support or aggravated criminal non-support, or, if there is no support order, an amount determined to be reasonable by the court.

(k) As used in this Section:

(1) 'Child' means any child, whether over or under the age of majority, with respect to whom a support order exists.

(2) 'Minor child' means any child, natural or adopted, whether born in or out of wedlock, under 18 years of age, or over 18 years of age but not yet 19 years of age if such child is a student in high school and is likely to graduate.

(3) 'Support order' means a judgment, decree or order, whether temporary, final or subject to modification, for the benefit of a child, a spouse or a former spouse or a parent, issued by a court or agency, which provides for monetary support, medical support, health care, arrearages or reimbursement, whether incidental to a proceeding for divorce, judicial or legal separation, separate maintenance, paternity, guardianship, civil protection or otherwise."

Section 2. Amend Chapter 5, Title 13 of the Delaware Code by striking Subchapter III, §§521, 522, 523 and 524 thereof, in their entirety.

Section 3. Amend §922(a)(4), Chapter 9, Title 10 of the Delaware Code by striking said paragraph in its entirety and by substituting in lieu thereof the following:

"(4) Misdemeanor criminal non-support and misdemeanor aggravated criminal non-support under 11 Del. C., Sec. 1113."

Approved July 5, 1996