Mullens v. Kilborne

Summary

The Delaware Supreme Court reversed a Family Court order that vacated a prior custody judgment awarding primary residential placement to the father. The Court held that the father’s 1999 conviction for carrying a concealed deadly weapon was not a violent felony because the offense involved a non-firearm weapon, and remanded for consideration of his expert evaluation regarding the statutory presumption against custody for sex offenders.

Holdings

1. Only firearm offenses under 11 Del. C. § 1442 are designated as violent felonies under 11 Del. C. § 4201(c). Because Mullens's conviction was a class G felony and not the firearm-related class D felony, it was not a violent felony.
2. Because the Family Court incorrectly found that Mullens had been convicted of a violent felony, it erred by refusing to consider his expert evaluation as evidence relevant to rebutting the presumption against custody under 13 Del. C. § 724A.

Questions Presented

1. Whether Mullens's 1999 conviction for carrying a concealed deadly weapon was a violent felony under Delaware law when the conviction was for a class G felony rather than the firearm-related class D felony.
2. Whether the Family Court erred by refusing to consider Mullens's expert evaluation in determining whether he had overcome the presumption against custody under 13 Del. C. § 724A.
3. Whether the Family Court properly vacated its prior custody judgment and awarded Mother sole custody based on its erroneous classification of the 1999 conviction.

Disposition

reversed_and_remanded