Governor John Carney recently signed House Bill 141 into law.  The Bill amends Section 1042 of Title 10 of the Delaware Code regarding protection from abuse proceedings by creating a new subsection (f).  This subsection permits the Family Court to interview a child outside of the presence of the parties.  Specifically, the Bill provides:

1042. Commencement of action; procedure.

(f) The Court may examine a child outside the presence of the parties for the purpose of obtaining the child’s testimony and ascertaining the truth of a matter asserted by a party to the proceeding. The Court may permit counsel to be present at the examination, and to also examine the child. The Court may permit a party who is not present for the examination to submit questions of fact for the Court to use in ascertaining the testimony of the child. The Court shall cause a record of the examination to be made and it shall be made a part of the record in the case.

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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.

 

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.

 

 

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.

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.

Parent-childJohn F. Kennedy said “children are the world’s most valuable resource and its best hope for the future.”  He was right.  In Delaware, volunteer attorneys or volunteer advocates have the privilege of representing our most valuable resource in Family Court proceedings through the Office of the Child Advocate and the Court Appointed Special Advocate Program.  Senate Bill 188, which was passed by the General Assembly, will bring both programs under one office.   Specifically,

This bill transfers the Court Appointed Special Advocate Program to the Office of the Child Advocate creating one office in this State that provides legal representation to children. The bill updates the law to reflect the practices of the Office of the Child Advocate, including ensuring that the child is the party to the proceeding once legal counsel is appointed, that every child is provided legal representation, that the wishes of the child are a significant factor in the legal representation, and that the child’s rights are explained to him or her. Finally, this bill allows the Office of the Child Advocate to assist other Courts of this State in the rare instances where they need legal representation of a child, and will enable OCA to begin to establish volunteer attorney pools to assist in other areas of the law regarding children.

The Bill becomes effective on March 5, 2017.

AppealThe appeal in the case of Jones v. Jones focuses on alimony and the question of whether certain expenses are reasonable. In this particular case, the conduct of the alimony obligor was a significant consideration.

Mr. Jones (“Husband”) was dissatisfied with the Family Court Order awarding his former wife, Ms. Jones (“Wife”), alimony. Seeking relief, he filed an appeal. The Supreme Court rejected most of his arguments but explored one related to medical expenses. Specifically, the Court remand the case back to the Family Court so that the Family Court could explain how it concluded that Wife’s out of pocket medical expenses of $300 per month and her monthly health insurance expense of $715 were reasonable.

On remand, the Family Court conducted a hearing to expand the record. At that hearing, Wife testified that the cost of COBRA insurance through Husband’s employer was $715 per month. Wife also testified that due to Husband’s failure to pay alimony as ordered she was unable to pay for the COBRA insurance. As a result, Wife was receiving medical benefits through Medicaid. She also testified to out of pocket medical expenses of $143.57 per month. Husband did not dispute that he failed to pay alimony. Based on this record, the Family Court held that Husband should not be able to benefit from his refusal to pay alimony and found the $715 monthly expense for medical insurance to be a reasonable expense even though Wife was receiving benefits through Medicaid. The Court also found $143.57 per month for out of pocket medical expenses to be reasonable.

The Supreme Court agreed with the Family Court’s conclusion that Husband should not benefit from his refusal to pay alimony.  The Court affirmed the finding that Wife’s medical expense of $715 per month and her out of pocket medical expenses of $143.57 per month are reasonable.

The Supreme Court Order 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 recently announced amendments to Rules 5, 72, and 302 of the Family Court Rules of Civil Procedure. The amendments, which become effective January 9, 2017, may be read in their entirety here. The Court described the amendments as follows:

Rule 5 governing the service of process and filing of pleadings in Family Court has been amended to reflect a change in the law regarding the certified mail requirement for retroactive modification of child support obligations. The prior law allowed for a modification of a child support obligation to be retroactive only to the date the modification petition had been delivered to the responding party by certified mail. Otherwise, any modification could only be effective the date of the hearing or mediation conference. The new statute eliminates the certified mail requirement and allows modification back to the regular mailing date (plus 3 days) to the responding party. Rule 5 is being changed to remove reference to certified mail as a prerequisite to retroactivity.

Rule 72 governing administrative appeals from the child support agency has been amended to recognize the change in name of the Division of Child Support Enforcement (DCSE) to the Division of Child Support Services (DCSS).

Rule 302 governing income attachments for child support obligations has been amended to reflect a change in the law in those cases where there is a past due child support balance and no payment has been received for at least one month. The previous law allowed DCSS to impose a payment on past due support of 10% of the current support, or at least $5, if a person had not made a payment for 90 days. The new law increased the allowable payment to 20% of the current support, or at least $20, if a person has not made a payment within one calendar month. The change from 90 days to one calendar month reflects the change in child support accounting practices over the years from weekly to monthly, and a desire for a more aggressive remedy that can be imposed without requiring the parties to appear in court.

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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 date of the filing of a petition for modification of a custody order can be important for many reasons.  For example, it sets the burden of proof.  It can also provide parameters for the arguments at trial.  Consider the recently decided case of  Newman v. Newman, No. 119, 2016 (Nov. 29, 2016).

Michael Newman and Sarah Newman are the parents of two children.  After their divorce in 2010 the Newman’s were party to a series of child custody orders. These orders include a stipulation entered on January 26, 2011, a stipulation dated August 7, 2012 (“2012 Order”) and an order dated March 20, 2013 (“2013 Order”), which was entered after a hearing on the merits. The 2013 Order provided that the parties would have joint legal custody and shared residential placement of their children.  A short time later, on August 27, 2014, Mr. Newman filed a petition to modify the 2013 Order.  The Family Court held a hearing on his petition.  Both parties appeared for the hearing and provided testimony. In addition, the Court interviewed the children. In its twenty-six-page opinion dated February 15, 2016 (“2016 Order”), the Family Court denied Mr. Newman’s petition. Mr. Newman appealed the 2016 Order.

AppealIn his appeal Mr. Newman raised two arguments.  First, he appeared to argue that the Family Court erred in its ruling because it did not enforce a provision of the 2012 Order.  The Supreme Court dispatched that argument concluding that “[a]ny issues related to the 2012 custody order are moot … because the 2012 judgment was superseded by the 2013 order and the 2016 order, which is currently before the Court on appeal.”      Id. at *3.

Mr. Newman also argued that with regard to the 2016 Order the Family Court erred when it did not accept his evidence that Ms. Newman had been evicted from several properties, her utilities had been cut off with some frequency, that she was causing the children stress by making false allegations in custody proceedings and that the children’s grades were declining. Id. at *3. This argument was similarly unsuccessful.

The Supreme Court noted that because Mr. Newman’s petition was filed within two years of the entry of the 2013 Order Delaware law provides that the Family Court “shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child’s physical health or significantly impair his or her emotional development.” Id. at *3 – 4.  The Supreme Court was mindful that based on the evidence presented at the hearing the Family Court found that,

 

[a]lthough [Ms. Newman] had moved several times in a short period, she had never been homeless or subjected the Children to inappropriate housing arrangements. The court noted that, while both parties cared for the Children, their joint conduct contributed to the Children’s feelings of anxiety and their fluctuating grades. In ordering the parties to maintain joint custody with shared residential placement, the Family Court gave great weight to the Children’s expressed wishes to continue the existing custody arrangement so that they could spend equal time with both of their parents.

Id. at 5.

The Court held that the Family Court’s findings were supported by the record. Further, the Court held that the Family Court properly applied the law to the facts of the case in reaching the conclusion that Mr. Newman did not meet his burden to establish that continued enforcement of the March 2013 Order endangered the children’s physical health or significantly threatened their emotional development.

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.

 

Background

Family Court SealMr. Davis and Ms. Davis are the parents of two children.  On February 14, 2016, Mr. Davis was personally served with a petition for custody of the children at an address provided by Ms. Davis.  As provided in Family Court Civil Rule 16, the case was then scheduled for mediation.  On February 23, 2016, the Family Court issued a notice to Mr. Davis, which was addressed to him at the same address where he received service of the petition for custody. The notice advised that mediation was scheduled for March 17, 2016 at 10:00 a.m.  A short time later, on March 4, 2016, Mr. Davis filed an answer to the petition for custody. In his answer Mr. Davis listed a different address than the one where he was served with the petition. On March 17, 2016, Ms. Davis appeared for mediation but Mr. Davis did not. As a result, the Family Court entered a default judgment in favor of Ms. Davis. Mr. Davis then filed his appeal appealed. In his appeal Mr. Davis argued that the Family Court erred in issuing a default judgment because he did not receive notice of the scheduled mediation. Davis v. Davis, No. 197, 2016 (Nov. 14, 2016).

Appeal

Supreme CourtIn its review of the record below the Supreme Court noted that it contained the envelope with the mediation notice, which was returned to the Family Court marked “Moved Left No Address, Unable to Forward, Return to Sender.” Id. at *3. The Court also noted that Mr. Davis’s answer listed a different address than the one used on the notice. In its Order reversing and remanding the Family Court’s Order the Supreme Court stated:

‘[D]efault judgments are typically inappropriate when important rights are at stake and there has been a lack of adequate notice to the party.’ The record reflects that the [Mr. Davis] did not receive the mediation notice. Under these circumstances, we conclude that the Family Court abused its discretion in entering a default judgment against [Mr. Davis].

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.