Criminal Cases in the Family Court
Additional information can be found in Chapter 9 of the Delaware Code.
You can expect the following court process in criminal cases before Family Court. This process applies to all offenders (juvenile & adult).
Under Delaware law, charges may be brought by a complaint. A complaint is a written statement of the alleged key facts that forms the charges. Complaints are appropriate for Family Court when the defendant is less than 18 years old or when it is alleged that an adult has committed a misdemeanor crime against a child or family member. Complaints appropriate for Family Court may be filed in Family Court itself or in a Justice of the Peace Court for Family Court. A complaint filed in a Justice of the Peace Court for Family Court will be sent to Family Court.
To file a complaint in Family Court a person completes a Complaint and Warrant, Charge Sheet, and Affidavit of Probable Cause and swears to the facts in the paperwork in front of a Clerk of Court or judicial officer. The person filing charges must show a photo ID to the Clerk. Anyone who needs help may ask to see an intake worker to help him/her. In New Castle County and in Sussex County, a person must bring with him/her a copy of a police report about the alleged crime. In Kent County the intake worker will have the police officer to come to the Court to help the person file the charges. There is no fee to file criminal charges. A judicial officer reviews the completed paperwork. If the judicial officer finds there is probable cause to believe that a crime has occurred and that the person charged has committed it, the judicial officer will issue a summons or a warrant. A person charged with a crime is called a "defendant".
If a summons is issued, the defendant will be notified by mail to appear in Family Court for a hearing. If a defendant fails to appear after the summons is sent, or there is a reasonable cause to believe the defendant will not appear, the Court will issue a warrant.
A warrant is sent to the police so they can arrest the defendant. Upon arrest, the police may bring the defendant before either a Justice of the Peace Court or Family Court for a bail hearing. The bail hearing may be done at the Court or conducted by videophone from the police agency. At the bail hearing a judicial officer will set bail and might set conditions for release (e.g. no contact with the victim). If bail is set at a Justice of the Peace Court, the defendant may be ordered to have a bail review hearing in Family Court the next day. The defendant will be detained at a correctional facility until the next court hearing unless bail is posted. Cash bail is not necessary in some cases. If released the defendant must obey all conditions for release. Failure to obey the conditions of release may result in more charges.
All defendants have a right to an attorney. A person who wants an attorney but cannot afford one should contact the Office of Defense Services to see if they qualify for an appointed attorney. Adult qualifications are based on financial eligibility and whether or not the offense carries the possibility of incarceration. Per the Office of Defense Services policy, all juveniles automatically qualify for representation. Additional information about the Office of Defense Services may be found at http://publicdefender.delaware.gov/. Defendants are informed of the charges and of their rights at arraignment hearings. At an arraignment hearing each defendant may enter a plea
Defendants who plead not guilty are scheduled for either a case review or a trial. Defendants may plead guilty either at a case review or at trial. If defendants plead guilty or are found guilty, a judicial officer will sentence them. Judicial officers impose sentence upon the defendant immediately or at a later time. The Attorney General's Office may offer an alternative to defendants which will enable them to avoid prosecution and possible conviction. Such tactics are commonly referred to as diversionary services.
Adult Process
Family Court has criminal jurisdiction over adults who allegedly commit misdemeanors against children and over adults who allegedly commit misdemeanors against other members of their family. Family Court also has misdemeanor jurisdiction over offenses committed between former spouses, persons cohabitating together holding themselves out as a couple, and persons living separate and apart with a child in common. This includes, but is not limited to, domestic violence, child abuse, criminal non-support and aggravated criminal non-support.
Adult defendants must obey all bail conditions while criminal charges are pending. Frequently the defendant will be ordered to have no contact with the alleged victim(s) and the victim's family. In some cases, adult defendants must arrange to live elsewhere until further order of the Court or until the case is resolved in some fashion. In these cases, the defendant may be required to use a third party to retrieve necessary personal belongings from their home and assist them to see their children. In some cases, adult defendants will not be allowed to have contact with their children by court order. The defendant or the Attorney General may apply to the Court to have the bail and conditions modified.
Some defendants may qualify (see 10 Del. C. sec 1024) to avoid conviction by agreeing to and abiding by certain conditions. One such condition is completing the First Offender's Domestic Violence Diversion Program (FOP). Those who choose to enter the First Offender's Program must enter a plea of guilty to the offense. The Court will not enter a judgment of guilt. With the consent of the defendant, the Court may defer formal sentencing and place the offender on probation for one year. The Court will set special conditions. These conditions may include counseling, restitution, or no contact with the victim. When the terms and conditions of probation are satisfied, Family Court will dismiss the charges against the offender. There will be no finding of guilt and no conviction. If the offender violates any term or condition of probation, a violation of probation hearing will be held. If the offender fails to appear for the hearing or a judicial officers finds that the offender violated probation, the judicial officer will find the offender guilty on the original charges and will proceed with sentencing.
Sentences may include costs, fines, restitution, community service, probation, removal from home, house arrest, incarceration, among others. An offender can be incarcerated for a maximum of up to one year on each offense.
Juvenile Process
Juveniles, under the age of 18, are not considered "criminals", except as specified in [see 10 Del. C. § 1010]. Family Court operates in the best interest of the juvenile. A custodian, guardian, or other suitable person (preferably a near relative) appointed by the Court must come to all hearings with juveniles. When no such person can be found, the Court may make a temporary order regarding the welfare of the child.
Under certain conditions Family Court may hold a juvenile in detention or other placement. Before deciding to keep a juvenile in secure detention, judicial officers must consider all other legal options. When a juvenile is detained, a detention review hearing with attorneys must be held within 14 business days of the initial detention hearing. If a juvenile is not released, a detention review hearing must be held from that point forward at least every 21 days.
The juvenile must have a hearing no later than 30 days from the date of detention. If the hearing is not held and if the juvenile files a motion in Court, the Court has, at most, 72 hours to set a hearing date unless the Court grants a continuance for just cause. The Court may wait to schedule further proceedings until further investigations (i.e. medical, psychological, etc.) are completed or when, for some other cause, the interest of the juvenile will be served.
In some cases, juveniles with serious charges will be transferred to Superior Court to be tried as adults [See 10 Del. C. § 921(2) a & b, 1002, 1010].
The Court may refer a juvenile to Arbitration when the juvenile does not have a previous criminal record and is charged with appropriate offenses. This gives first offenders a chance to avoid possible conviction. During Arbitration the hearing officer will discuss the charges with the juvenile and parents, the victim, complainant, and police officer. The Arbitration Officer may order the juvenile to obey certain conditions, such as community service, restitution, or substance-abuse education. If the juvenile fulfills the conditions and does not receive more charges, the charges will be dismissed after a specified period.
The Attorney General's Office may offer a chance to a juvenile to avoid prosecution and possible conviction if the juvenile agrees to follow special conditions. Juveniles who successfully complete the Drug Court program have their charges dismissed. Other examples of special conditions are enrollment in programs like the Teen Court and the Kent Center for Community Justice.
When a judicial officer finds that a juvenile has committed an offense, the judicial officer will sentence the juvenile. The sentence may include costs, fines, restitution, community service, probation, removal from the home, suspension of driver's license, house arrest, incarceration, or other forms of treatment, rehabilitation or care [See 10 Del. C. § 1009 (c-e)]. In certain situations the Court may order a judgment against the parents for restitution of up to $5,000.00. Under Delaware law, if a juvenile is found guilty of committing a felony and, within the next 12 months, commits a second felony, then the Court must commit the juvenile to the Department of Services for Children, Juvenile, and their Families for at least six months of institutional confinement.
Normally, juveniles do not remain subject to the jurisdiction of Family Court past their 19th birthday. However, in some cases, the Attorney General's Office may request Family Court to keep jurisdiction over a juvenile up to age 21 or until they are discharged by the Court.
Truancy Process
If you have entered a plea of or been found "guilty" of truancy (failure to send a child to school) or if you have entered a plea of or been found "responsible" of truancy (failure to attend school), you are now active in the "case review" portion of the Truancy Court intervention process. Please visit the Truancy Court page for complete information related to Truancy Process in the Family Court.
