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.

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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 lspoltore@foxrothschild.com.

Family Court SealFamily Court has not yet moved to the electronic filing system used by other Delaware Courts.  However, effective today, June 1, 2017, attorneys and litigants in Family Court may request to receive orders issued in all their civil matters by encrypted email rather than U.S. mail.  To do so attorneys may complete and file Family Court Form 613 and litigants may complete Family Court Form 614.

 

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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 lspoltore@foxrothschild.com.

 

By the President of the United States of America

A Proclamation

During the month of May, we observe National Foster Care Month and we celebrate those who have opened their homes and their hearts to children in need and those who have devoted their careers to serving America’s foster youth.

Americans throughout the country are serving their communities as foster parents, mentors, respite care providers, and volunteers.  In the last year alone, America’s foster families opened their homes and hearts to more than 300,000 young people.

But we can do more.  Every child deserves a safe and supportive family.  Ensuring that children grow up with the opportunity to reach their full potential is a top priority of my Administration.  For thousands of children whose biological families are unable to support them, foster families provide a secure and nurturing environment that is essential for a successful start in life.

Foster families serve young people from all walks of life, from infants awaiting adoption, to children seeking reunification with their families and teens in need of safe havens from negative influences.  In many cases, they offer our Nation’s most at-risk children a second chance at the American Dream.

A tremendous demand exists for foster parents and families across the country.  Together as a Nation, we must raise awareness about this need and inspire volunteers to step forward and invest in the lives of our Nation’s youth through our foster care system.

NOW, THEREFORE, I, Donald J. Trump, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim May 2017 as National Foster Care Month.  I call upon all Americans to observe this month by taking time to help children and youth in foster care and to recognize the commitment of those who touch their lives, particularly celebrating their foster parents and other caregivers.

IN WITNESS WHEREOF, I have hereunto set my hand this twenty-eighth day of April, in the year of our Lord two thousand seventeen, and of the Independence of the United States of America the two hundred and forty-first.

 DONALD J. TRUMP

For more information on foster care in Delaware, please contact the Department of Services for Children, Youth and their Families.

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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 lspoltore@foxrothschild.com.

 

 

 

Family Court SealThe Delaware Constitution, Delaware Code and the court rules specify whether Family Court matters are open or closed to the public.  If a matter is closed, generally only the parties, their legal counsel, and their witnesses are allowed to be present.  The Court understands, however, that litigation can be stressful.  In some cases, the presence of a someone to provide moral and/or emotional support can be helpful to a litigant.  To that end, the Court recently created a process to assist litigants in requesting the attendance of a support person in closed proceedings.  Additional information on the support person process can be found here.

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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 lspoltore@foxrothschild.com.

CASA-logoPrior posts have addressed the important role of child advocates in Family Court.  CASAs, or Court Appointed Special Advocates, are one example of the wonderful advocates who volunteer their time to represent Delaware’s children in Family Court.

Across Delaware, over 200 volunteer Court Appointed Special Advocates (CASAs) build close relationships with and serve as one-on-one advocates for children in foster care. The CASA program recruits and specially trains these volunteers from the community, who are then appointed as advocates by a Family Court Judge. The CASA is appointed to work in conjunction with the child’s attorney to represent the child’s best interests.

CASA Volunteers are selected, trained, supervised and evaluated by Program Coordinators from the CASA staff. CASA volunteers commit to spending at least one year:

1. establishing a strong, stable connection with assigned child(ren),

2.  gathering information and making recommendations to the court about the child’s best interest, and

3.  advocating to make sure the child receives needed services. Too often, a CASA volunteer is the only consistent adult in the life of the child.

The advantages of having CASA volunteers include high quality advocacy, better service to children, cost effectiveness and efficiency. Children with a CASA benefit in countless ways. They are more likely to be placed in a safe, permanent home; more likely to receive better services; and more likely to have fewer placement changes.

The Office of the Child Advocate recently announced that more CASAs are needed. For more information on how to become a volunteer, please visit the Office of the Child Advocate website at http://courts.delaware.gov/childadvocate, call the CASA office at the Office of the Child Advocate (302) 255-1731 or 255-1730, or email: megan.caudell@state.de.us.

To all the men and women who already serve as CASA volunteers, thank you for all you do!

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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 lspoltore@foxrothschild.com.

 

 

The Delaware Family Court decides custody and visitation actions based on the best interests of a child. To make that determination the Court must consider specific factors listed in Section 722 of Title 13. In addition, the Court may consider any other relevant information. What is relevant is a case-by-case analysis. For public figures like Alex Jones public statements or their public persona could be relevant. A recent post by Aaron Weems, a Partner in our Blue Bell, Pennsylvania office, examines the nexus between public personality and custody cases in more detail.  It is well worth reading.

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leslie_SpoltoreLeslie 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 lspoltore@foxrothschild.com.

123rf.com
123rf.com

For many children the best part of summer is summer camp. Camps can provide the opportunity to learn everything from computer skills to surfing.  And, as the saying goes, summer camp is the place where strangers become friends and friendships last forever.

For many divorced or separated parents, planning to send a child to summer camp requires additional consideration in order to coordinate schedules.  To that end, many custody orders provide timelines for discussing plans or selecting contact weeks.  Under the current Delaware Contact Guidelines,  the parent whose choice it is to select contact weeks over the summer must give the other parent written notice of his/her summer week selection between March 1st and April 1st.  Although April 1st is rapidly approaching, it is not too late to consider summer camps.  One helpful resource is The News Journal, which has published a list of summer camps in Delaware.

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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 lspoltore@foxrothschild.com.

 

 

“Medical divorce” is a term coined some years ago to describe a divorce obtained for medical reasons. More specifically, according to a recent article by George Diepenbrock, researchers defined “medical divorce” as

an instance where one partner becomes diagnosed with a degenerative disease, such as early onset dementia. The couple could drain its assets, including retirement savings, to pay for treatment. However, some couples instead choose to divorce to shield one person’s assets. The sick partner would eventually qualify for Medicaid.

A study by two University of Kansas economists suggests there may be a link between the expansion of Medicaid under the Affordable Care Act (“ACA”) and a reduction in the number of medical divorces. The expansion under the ACA increased Medicaid coverage to include adults younger than 65 with incomes of up to 138 percent of the poverty guideline without consideration of their assets.  Donna Ginther, professor of economics, and David Slusky, assistant professor of economics, compared divorce rates prior to and after the expansion. They found that states that expanded Medicaid under the ACA experienced a “5.6 percent decrease in the prevalence of divorce among people ages 50-64, compared with those states that did not expand.” Given the policy change affecting the states that expanded Medicaid, the professors determined it is reasonable to assume that a reduction in medical divorces accounted for the decrease.

This reduction, however, may be short lived depending on any legislative changes enacted by Congress. The article notes that Professors Ginther and Slusky believe “that research on how certain policy changes – including potential reintroduction of asset tests for eligibility – have influenced individuals’ lives can be valuable as Congress considers how to move forward with the nation’s health care system.”

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leslie_SpoltoreLeslie 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 lspoltore@foxrothschild.com.

 

 

1040 Tax Form with Refund Check and Cash.

Divorcing couples may face a number of questions at tax time.  Prior posts on this blog have highlighted some issues that are worth mentioning again:

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leslie_SpoltoreLeslie 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 lspoltore@foxrothschild.com.

Syd with tennis ballAlaska recently enacted legislation authorizing judges to consider the well-being of animals and to allow judges to assign joint custody of pets. The Providence Journal has reported that Rhode Island is now considering similar legislation. Representative Charlene Lima recently introduced a bill that would require judges to consider the best interests of pets when deciding who gets custody of them in a divorce.

The First State is generally pet friendly. In fact, the Animal League Defense Fund ranked Delaware 15th in the nation for animal protection in 2016. However, as noted in my prior post, pets are considered to be personal property in a divorce here. We will have to wait to see if Delaware will follow the lead of Alaska and Rhode Island to change the status of our pets.  Stay tuned!

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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 lspoltore@foxrothschild.com.