Family Court and Juvenile Criminal Charges

No matter how hard you work to raise your child, the fact remains that most kids' teenage years are a period of temporary insanity. All it takes is one wrong decision, one bad choice of friends or one thoughtless act without regard to consequences and any child can end up being charged with a "criminal" offense in the Family Court. The first thing that parents need to realize, when faced with this situation, is that just because this happens to your child does not automatically mean that you have been a bad parent. It does not meant that a Family Court Judge will haul before him/her and chastise your parenting skills. It does not mean that you will be humiliated in the eyes of your neighbors. It does mean, however, that you must understand the Family Court Judicial System and delinquency proceedings in that Court if you are so unfortunate.

Under Delaware law, if a child under 18 commits an offense (other than certain serious felonies) that could have been prosecuted as a criminal offense if it had been committed by an adult (18 or over) the State will file a Delinquency Petition in the Family Court naming the child as the Respondent, which is a fancy word for Defendant. The first thing you need to know about Family Court delinquency proceedings is that under Delaware law, they are specifically not criminal in nature but are civil proceedings. Importantly, under Delaware law, except in very limited circumstances, "no child shall be deemed a criminal by virtue of an allegation or adjudication of delinquency, nor shall a child be prosecuted for a crime in any other Court. In [the Family Court] the nature of the hearing and all other proceedings shall be in the interest of, rather than against the child. In short, even if your child is found to be "delinquent" in these proceedings, he has not been convicted of a criminal offense and if asked, in the future, if the child has a criminal record or has ever been convicted of a criminal offense, the truthful answer is "no".

Under Delaware law, as a general rule, all proceedings before the Family Court in juvenile delinquency matters are private and not open to the public. The main exception to this rule of confidential proceedings is that any proceeding where the offense charged would otherwise be classified as a felony must be open to the public. In addition, whenever a child is arrested, convicted or acquitted for an offense that would otherwise be a felony if committed by an adult or a serious misdemeanor, if the child is older than 13, the Family Court will release the name and address of the child and the name of the child's parents upon request by the news media. As a practical matter, except in the most sensational cases, the news media generally pays very little attention to matters in delinquency proceedings in the Family Court.

Another important protection for juveniles in a Family Court delinquency proceeding is that under Delaware law, if a child has been adjudged delinquent and three years have passed with no further offense, the child or his/her parents may petition the Family Court to enter an Order expunging or erasing the fact of the delinquency finding from the child's Record to include the fact of the child's arrest. If a child under 18 wishes to enlist in the Armed Forces, a petition for expungement may be made at any time after adjudication of delinquency. In this regard, children have a clear advantage over adults that have been convicted of an offense in that adults cannot receive an expungement unless they are acquitted of the crime with which they are charged.

If police arrest a juvenile (again, a child under the age of 18) the police must take the child to Court immediately for an initial appearance to set bail. Although there is no requirement that parents must be present during the interrogation of a juvenile, our Supreme Court has indicated that it is preferable to have a parent present. In addition, the police are required under Delaware law to immediately notify the child's parents if the child is taken into custody. As a practical matter, police agencies I have dealt with, always want to ask the parents' permission to speak with the child. Do not give that permission until after you and your child have had an opportunity to speak with a lawyer.

As noted above, delinquency proceedings are "in the interest of the child" and are specifically are not criminal under Delaware law. However, and this is to the benefit of the child, these proceedings are treated as criminal for the purpose of assuring that your child enjoys certain rights that would be afforded him if he/she were an adult. Thus, a delinquency finding must be made beyond a reasonable doubt with the burden of proof on the State. Any trial is conducted before a Judge or Commissioner of the Family Court and no delinquency finding will be made unless guilt is proven beyond a reasonable doubt. The prosecutor, or State, has the burden of proof and the allegedly delinquent child need not prove anything. The child is entitled to the assistance of a lawyer during the delinquency proceeding and is entitled to insist that the State produce witnesses to support its case. These witnesses are, of course, subject to cross-examination.

If your child is found to be "delinquent" after a trial, what happens next? The next step of the process is disposition or sentencing. Under Delaware law the Family Court has a wide range of discretion in deciding what should be done with your child. For the most part, the Court will be guided by your child's best interest in deciding what sentence to impose. One of the things that the Court may do is Order the child to be incarcerated in juvenile facilities in the State of Delaware. This incarceration can be indefinite but normally may continue only until the child's 18th birthday. Far more likely, unless the offense involved is very serious, is a placement on probation for a period of time subject to certain conditions such as no contact with the victim of the alleged offense, no commission of any further offenses, and a nightly curfew. In addition, the child may be required to pay restitution for any damage caused by his/her acts.

If the child has previously been adjudicated delinquent by the Family Court of one or more offenses that would have been a felony if committed by an adult and subsequently commits an offense within 12 months which would otherwise be a felony, the child will be required to serve, at least, a six month period of incarceration in a youth facility in the State of Delaware.

I noted above that normally a child is proceeded against as a juvenile in the Family Court if he/she is under 18 years of age. This rule is subject to certain exceptions. First, if the child is alleged to have committed any felony and then turns 18 before the Family Court decides the matter, the child's case will be transferred to the Superior Court for further proceedings against the child as an adult. Next, if the child is alleged to have committed certain very serious felonies such as murder, rape or kidnapping or if the child has previously been found delinquent in the Family Court of what would otherwise have been a felony offense, the child has now reached 16 and the current charges are based on allegations of certain very serious felony provisions of the law, or, if the child has been found "not amenable" to the rehabilitation processes in Family Court, the child's delinquency case will be transferred to Superior Court for further proceedings against him/her as an adult. In certain cases, even when a case is transferred to the Superior Court from the Family Court in cases involving serious criminal allegations, the Superior Court has some authority to transfer the case back to Family Court for further proceedings against the child as a child in a delinquency setting.

Under certain limited circumstances, where a child has been found delinquent for offenses occurring before he/she turns 18 the Family Court may continue to exercise jurisdiction over the child for purposes of disposition past the age of 18 until the child reaches the age of 21. This extended jurisdiction will permit the Court to continue to incarcerate a juvenile if necessary, although this continued incarceration needs to be reviewed by the Court at six month intervals after the juvenile's 18th birthday.

In light of all of the additional procedural rights that the juvenile has once facing a delinquency petition in the Family Court, it is almost always preferable to be in Family Court as opposed to being in Superior Court as an adult criminal Defendant.

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