Appeal-300x300The Sex Offenders Act is found in Chapter 7A of Title 13 of the Delaware Code.  Section 724A of the Sex Offenders Act imposes a rebuttable presumption “that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child.”  In the case of Division of Family Services v. Mark O’Bryan, No. 175, 2016 (May 31, 2017) the Division of Family Services (“DFS”) presented a single issue to the Delaware Supreme Court – whether the Sex Offenders Act and its rebuttable presumption operate outside of Family Court custody proceedings.  (In the interest of full disclosure, I should note that I was involved in this appeal. George R. Tsakataras, Esquire, Achille C. Scache, Esquire and I were appointed to serve as amicus curiae to file a supplemental answering brief in opposition to DFS.)

The facts as described by the Delaware Supreme Court are as follows:

“The facts of this case are essentially undisputed. Mark O’Bryan lives in Delaware with his wife, their daughter, and his wife’s two daughters. They lived together as a family for over eight years. O’Bryan is the sole financial provider for the family. On January 13, 2016, O’Bryan’s wife hit and scratched him during an argument. O’Bryan called the police to de-escalate the situation. The police ended up filing criminal charges only against O’Bryan’s wife. Although not involved in the altercation, one of O’Bryan’s stepdaughters (then age 17) and his biological daughter (then age 2) were present during the incident. Because the children were witnesses to the fight, DFS conducted a follow up investigation. DFS learned as part of its investigation that O’Bryan was a Tier II sex offender because of his 2002 guilty plea to rape fourth degree. DFS went to the family home on February 3, 2016, and told O’Bryan that, based on his status as a Tier II sex offender, and children living in the home, O’Bryan had to leave. O’Bryan left the family home that night. The next day, O’Bryan filed a petition in the Family Court to return home. The Family Court granted the petition on an ex parte basis pending a hearing scheduled for February 9, 2016. At the February 9 hearing, DFS argued that the Sex Offenders Act prohibited O’Bryan from primarily residing with any child unless he rebutted the statutory presumption. O’Bryan, his wife, and a DFS representative testified at the hearing. His wife testified that she wanted her husband to return home, and that she had no concern about him being around her or her children.  O’Bryan admitted that if the Act applied, he was unable to rebut the presumption because he did not complete his sex offender therapy. The Family Court judge asked the DFS witness whether there were concerns about the children’s safety. The DFS witness testified that DFS had ‘no proof of anything’ and had ‘no reason to believe that anything specifically ha[d] happened to these kids other than there had been domestic violence in their presence.’ O’Bryan also was not under any restrictions as a Tier II sex offender, such as restrictions limiting his contact with children.  Id. at 1 – 3.

The Family Court granted O’Bryan’s petition to return home stating,

“13 Del. C. § 724A does not on its face provide for the removal of a parent from the home of an intact family, nor can the Court conclude that the legislature intended for the statute to apply in such a manner. Section 724A merely creates a presumption that a sex offender parent will not be awarded custody, primary residency[,] or unsupervised visitation by the Court, without first rebutting the presumption. The Court is not awarding any type of custody or residency in instances where there is no dispute between parents or between a parent and DFS. In instances where there is no ongoing custody issue, the registered party is not required to rebut the presumption and there actually is no forum in which to apply the presumption ”  Id.

The Delaware Supreme Court affirmed the Family Court’s decision and agreed that the statute does not provide a basis for DFS to remove a parent from an intact home. The Court concluded “that the General Assembly intended that the Act and its rebuttable presumption to operate only when the Family Court determines custody, residency, and visitation as part of a Family Court custody proceeding.” The Court explained that “DFS does have broad authority to bring custody proceedings under another chapter of Title 13 if it believes a child or children must be protected. That statute— Chapter 25 of Title 13—encompasses situations where DFS believes a child is in danger of being sexually violated. But, in those proceedings, DFS has the burden of persuasion, and the presumption in § 724A does not apply. DFS has not brought an action under Chapter 25, even though the sex offender status of a parent or guardian may be relevant in a petition for custody under that Chapter.” Id. at 10 – 11.

The decision may be read in its entirety here.


Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or