Submitted: March 23, 2018
Below-Family Court of the State of Delaware File No.
CK08-01263 Petition No. 15-05215
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. Valihura, Justice
17th day of May 2018, upon consideration of the
opening briefand the record on appeal, it appears to 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 Court erred as a matter of fact and
law in vacating its prior judgment. Accordingly, we reverse.
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,  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.
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 evidence that
Father had rebutted the presumption against custody and
placement under 13 Del. C. §
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. 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
parties' daughter. 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
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. 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.
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 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
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.