Thus, we examine the statutory posture of this case. In 1974, the legislature enacted the Desertion and Support Act, 59 Del. Laws, Ch. 567 (1974), 13 Del. C. § 501 et seq. The 1974 Act repealed what was known as the Bastardy Act, former 13 Del. C. § 1321-1335, and constitutes a complete restatement of the Delaware law as to desertion and support. G. L. v. S. D., Del.Supr., 403 A.2d 1121, 1125 (1979). Under the 1974 Act, a non-support action can be asserted against a putative father either as a civil, 13 Del. C. § 511-516, or as a criminal action, 13 Del. C. § 521-524.
Moreover, this Court has held that proof of paternity is required in an action for child support. See G.L. v. S.D., Del.Supr., 403 A.2d 1121, 1127 (1979). Thus, the issue of paternity was necessarily considered and determined in the original suit.
We hold that the limitation is provided by analogy to the companion criminal Statute in child non-support matters. Failure of a parent to provide support for a necessitous child is a criminal offense under 13 Del. C. § 521.G. L. v. S. D., Del.Supr., 403 A.2d 1121 (1979). The maximum penalty established therein ($500.
10 Am.Jur.2d Bastards § 107 (2d ed. 1963). See, e.g., Walsh v. Palma, 154 Cal.App.3d 290, 201 Cal.Rptr. 142, 145 (1984) (standard is preponderance even though case is brought by district attorney); Shaw v. Seward, 689 S.W.2d 37, 41 (Ky. Ct. App. 1985) (court analyzing the burden of proof issue under due process, concluding that due process only requires a preponderance of the evidence in paternity cases); Minnich v. Rivera, 509 Pa. 188, 506 A.2d 879, 882-83 (1986) (due process only requires a preponderance of the evidence in paternity cases); Domigan v. Gillette, 17 Ohio App.3d 228, 479 N.E.2d 291 (1984) (since Legislature characterized the action as civil, burden is preponderance); Keener v. State, 347 So.2d 398, 401 (Ala. 1977) (though the State brings the action, a paternity proceeding is civil in nature and burden of proof is the same as in any civil case); G.L. v. S.D., 403 A.2d 1121, 1126-27 (Del. 1979); Department of Health v. Smith, 459 So.2d 146, 150 (La. Ct. App. 1984). Therefore, given our Legislature's clear characterization of these proceedings as civil, the appropriate burden of proof is a preponderance of the evidence.
13 Del. C. § 501(c): "The duty to support a child under 18 years of age . . . shall rest equally on both parents." See G.L. v. S.D., Del.Supr., 403 A.2d 1121 (1979). The effect of this statutory change on the parties' agreement is not at issue here.
The Supreme Court has recently held that the normal civil burden of proof by a preponderance of the evidence applies in these proceedings. G. L. v. S. D., Del.Supr., 403 A.2d 1121 (1979). Two issues are raised here: (1) whether the appeals should go directly to the Supreme Court and (2) whether there is a constitutional right to a jury trial of the issue of paternity.