IN THE SUPREME COURT OF THE STATE OF DELAWARE
JONATHAN MULLENS,1 §
§ No. 370, 2017
Respondent Below- §
Appellant, §
§
v. § Court Below—Family Court
§ of the State of Delaware
TIFFANY KILBORNE, §
§ File No. CK08-01263
Petitioner Below- § Petition No. 15-05215
Appellee. §
Submitted: March 23, 2018
Decided: May 21, 2018
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
This 17th day of May 2018, upon consideration of the opening brief2
and the record on appeal, it appears to the Court that:
(1) The appellant, Jonathan Mullens (“Father”), filed this appeal
from the Family Court’s judgment dated August 16, 2017, which vacated,
sua sponte, its February 20, 2017 judgment awarding primary residential
custody of the parties’ minor daughter to Father. Having reviewed Father’s
arguments on appeal and the record below, we conclude that the Family
1
The Court assigned pseudonyms to the parties under Supreme Court Rule 7(d).
2
The appellee, Tiffany Kilborne (“Mother”), did not file an answering brief on appeal.
The Clerk of the Court, therefore, informed the parties that the matter would be
considered solely on the basis of Father’s opening brief and the record below.
Court erred as a matter of fact and law in vacating its prior judgment.
Accordingly, we reverse.
(2) The parties are the parents of one daughter, who was born on
January 23, 2007. On December 16, 2008, the parties entered a consent
agreement providing for joint custody with Father having primary residential
placement. Mother’s visitation was to occur upon agreement of the parties.
On February 24, 2015, Mother filed a petition for modification of custody.
The Family Court appointed counsel to represent Mother. Father appeared
pro se. After a hearing, the Family Court considered the best interest factors
of 13 Del. C. § 722, including Father’s prior criminal history,3 and
determined that it was in the child’s best interests for Father to retain
primary residential placement. But, the Court granted Mother visitation
every other weekend and at holidays, as well as extended visitation in the
summer.
(3) On June 20, 2017, the Family Court issued an order informing
the parties that it had reconsidered, sua sponte, its award of primary
residential placement with Father. The Family Court stated that it had
allowed Father, a registered sex offender, to have custody without any
3
The Family Court acknowledged that Father is a registered Tier II sex offender as a
result of a 1993 guilty plea (when Father was a teenager) and that Father had a later
weapons charge.
2
evidence that Father had rebutted the presumption against custody and
placement under 13 Del. C. § 724A.4
(4) After a hearing on August 16, 2017, the Family Court issued an
order vacating its February 20, 2017 custody order awarding Father primary
residential placement. The Family Court noted that Father had pled guilty to
unlawful sexual contact in 1993 and, as a result, was a registered Tier II sex
offender. The Family Court also noted that Father pled guilty in 1999 to a
charge of carrying a concealed deadly weapon. The Family Court held that
as a result of his 1999 conviction of a violent felony, Father could not rebut
the presumption against custody set forth in 13 Del. C. § 724A.5 Thus, the
Family Court refused to consider the expert evaluation that Father submitted
as evidence to rebut the presumption against him having custody of the
4
Subchapter II of Chapter 7A of Title 13 of the Delaware Code, entitled Child Protection
From Sex Offenders Act, became effective on July 31, 2007, more than a decade after
Father was placed on the sex offender registry. 13 Del. C. § 724A(a) provides that “there
shall be 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.” This Court has noted that
the rebuttable presumption of Section 724A is a “true rule of evidence and its only effect
is to shift the burden of producing evidence.” Division of Family Services v. O’Bryan,
164 A.3d 58, 63 (Del. 2017).
5
13 Del. C. § 724A(b) provides that the presumption against custody may be overcome
if: (1) there is no criminal sentencing order prohibiting it; and (2) there have been no
further “sexual offenses or criminal acts of violence;” and (3) the sex offender is in
compliance with any applicable terms of probation; and (4) the sex offender has
successfully completed a sex offender’s program; and (5) the sex offender has completed
substance abuse counseling if court-ordered to do so; and (6) the best interests of the
child would be served by giving residential or custodial responsibilities to, or visitation
with, the sex offender.
3
parties’ daughter.6 The Family Court vacated its prior order, awarded
Mother sole custody of the child, and ordered that Father could only have
supervised visitation. Father appeals that ruling.
(5) In his opening brief on appeal, Father contends, among other
things, that the Family Court erred in holding that he had been convicted of a
violent felony in 1999. Father contends that he pled guilty in 1999 to
carrying a concealed deadly weapon under 11 Del. C. § 1442, which was
designated a class G felony because the weapon in question was not a
firearm.7 Father asserts that, under 11 Del. C. § 4201(c), a conviction for
carrying a concealed deadly weapon is only designated as a violent felony if
the deadly weapon was a firearm.
(6) Father is correct. Only firearm offenses under 11 Del. C. §
1442 are designated as violent felonies by 11 Del. C. § 4201. Father’s
criminal history reflects that he was convicted of a class G felony and not
the more serious class D felony under Section 1442. Thus, the Family Court
erred in finding that Father had been convicted of a violent felony in 1999
and that, therefore, the Family Court was not required to consider Father’s
6
As interpreted by the Family Court, the rebuttable presumption under Section 724A(a)
becomes irrebuttable under Section 724A(b)(2) if, after being placed on the sex offender
registry, the offender is convicted of any felony designated as a “violent felony” under 11
Del. C. § 4201(c). While we question the Family Court’s interpretation of Section
724A(b)(2), we need not resolve that issue for the purposes of this appeal.
7
Under 11 Del. C. § 1442, a conviction for carrying a concealed deadly weapon is
elevated to a class D felony if the deadly weapon is a firearm.
4
expert evaluation in determining if he had overcome the presumption of
Section 724A. Accordingly, we conclude that this matter must be remanded
to the Family Court for further consideration, on a priority basis, of Father’s
expert evaluation.
NOW, THEREFORE, IT IS ORDERED that the decision of the
Family Court is REVERSED. The matter is REMANDED to the Family
Court for further proceedings consistent with this Order. Jurisdiction is not
retained.
BY THE COURT:
/s/ Karen L. Valihura
Justice
5