Criminal Cases in the Family Court
Additional information can be found in Chapter
9 of the Delaware
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.
Defendants have a right to an attorney. A person who wants an attorney
but cannot afford one should contact the Public Defender's Office to see
if they qualify for a public defender. 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
MORE ON JUVENILE PROCESS || MORE
ON ADULT PROCESS
return to top
Family Court has criminal jurisdiction over adults who allegedly commit
misdemeanors against children. Family Court also has jurisdiction over
adults who allegedly commit misdemeanors against other members of their
family. 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
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.
return to top
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. One such condition could be enrollment in the Drug Court program.
Juveniles who agree to participate in the Drug Court must be evaluated
for substance abuse and follow all treatment recommendations. In addition,
they will undergo random drug screens and will appear before the Drug
Court judge at least once a month. 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.
return to top