J. E. G. v. A. T. C.

Full title: J. E. G. v. A. T. C.

Court: Family Court of Delaware

Date published: Dec 2, 2022

No. CN12-06615 (Del. Fam. Dec. 2, 2022)

Opinion

CN12-06615

12-02-2022

J. E. G. v. A. T. C.

Felice Glennon Kerr, Judge

Petition No.: 22-13600

LETTER DECISION AND ORDER

Felice Glennon Kerr, Judge

Dear Mr. G------ and Ms. C------:

The Court reviewed the relevant statutes and has determined as a matter of law the Court cannot order any visitation for J------ E. G------("Father") while he is in prison. According to 13 Del. C. §728(e), "The Court shall not enter an order requiring visitation in a correctional facility if the person incarcerated is a sex offender unless the requirements of subchapter II of Chapter 7A of this title are met." Pursuant to Subchapter II of Chapter 7A, there is a rebuttable presumption which prohibits an order providing for unsupervised visitation when the party seeking visitation is a Tier II or III sex offender.¹ In the present case, Father is a Tier II Sex Offender. The presumption can be overcome if Father can meet six requirements.² One of those requirements is that "there have been no further sex offenses or criminal acts of violence."³ Father's sex offense conviction which caused him to be registered as a sex offender was in 2000. Since that date he has had three convictions for "violent" crimes including two robbery convictions from 2012 and 2018 and one assault in the second-degree conviction in 2018 ⁴ As a result he cannot rebut the presumption.

1 13 Del. C. 724A(a)

2 13 Del. C. 724A(b)

3 13 Del C. 724A(b)(2)

4 Petitioner's DELJIS record

The only logical reading of 13 Del. C. §728(e) is the Court is prohibited from ordering any visitation in this case as it is not possible to rebut the presumption as a matter of law. If the drafters wished to allow sex offenders who are unable to rebut the presumption to have supervised visitation in a correctional facility, there would be no purpose for 13 Del. C. §728(e) as the Court already had the ability to order supervised visitation in a prison if the requirements of 13 Del. C. §728(d) ⁵ warranted such visitation. The only way to read §728(e) is as an additional limitation specific to incarcerated sex offenders requiring a rebuttal of the presumption which cannot be done in this case.

5 13 Del. C. §728(d) sets forth 4 factors the Court must consider in determining whether to order visitation in a correctional facility.

As this Petition cannot be Granted as a matter of law, there is no purpose to having a hearing, moreover, such a hearing that could be emotionally distressful for the parties. Therefore, the Petition is DISMISSED. The hearing is removed from the Court's calendar.

IT IS SO ORDERED, that the Petition for Visitation is DISMISSED.