      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.


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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




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