Delaware Amenability Hearings: How to Fight a Juvenile's Transfer to Adult Superior Court
When a child faces serious charges in Delaware, the state may try them as an adult. Through an 'Amenability Hearing,' your defense attorney can fight to keep the case in the juvenile Family Court to focus on rehabilitation rather than prison. Use our directory to find a lawyer immediately.
There is nothing more terrifying for a parent than hearing that the state intends to prosecute their child as an adult. The Delaware juvenile justice system is built around the idea of rehabilitation-giving young people the tools, therapy, and structure they need to turn their lives around. The adult system, on the other hand, is built primarily on punishment. If a juvenile's case is transferred to the Delaware Superior Court, they face the exact same harsh prison sentences and permanent felony records as a grown adult.
In Delaware, the legal battle over which court will hear the case centers on an "Amenability Hearing" (or a "Reverse Amenability Hearing"). This is arguably the most critical moment in your child's legal journey. Whether your family lives in New Castle, Kent, or Sussex County, the laws governing these transfers are highly complex and heavily dependent on psychological evidence and prior legal history. This procedural guide will explain how mandatory and discretionary waivers work, the importance of psychological evaluations, and the step-by-step process of fighting for your child's future.
Mandatory vs. Discretionary Waivers in Delaware
The decision to transfer a minor out of Family Court is not always up to the judge. The Delaware Code outlines specific rules based on the child's age and the severity of the alleged offense.
Mandatory Transfers
Under Del. Code Ann. tit. 10, § 1010, certain extreme charges require that the juvenile be tried as an adult. Specifically, under Del. Code Ann. tit. 10, § 1010(a)(5), minors aged 12 to 15 can be proceeded against as adults exclusively for four offenses: Murder in the First Degree, Murder in the Second Degree, Rape in the First Degree, or Rape in the Second Degree. Juveniles under 16 cannot be tried as adults for firearm offenses. Mandatory adult Superior Court prosecution for designated severe firearm offenses applies only once a youth has reached their 16th birthday.
Discretionary Waivers
For many other serious felony charges, the state prosecutor has the discretion to ask the Family Court judge to transfer the case to adult court. Under Del. Code Ann. tit. 10, § 1010(a), discretionary transfer procedures (amenability hearings) for offenses such as robbery, assault, or felony drug offenses apply only to juveniles aged 16 or older. For children under 16, transfer for these offenses is barred by law. In discretionary transfer hearings for eligible 16- and 17-year-olds, the state carries the burden to prove that the child is not amenable to the rehabilitative processes of the Family Court.
The 'Reverse Amenability' Process
If your child was charged with a serious offense that automatically placed them in the adult Superior Court, all is not lost. Defense attorneys utilize a process known as "Reverse Amenability" under Del. Code Ann. tit. 10, § 1011. Your lawyer will file a formal motion asking the Superior Court judge to send the case back down to the Family Court. To win a reverse amenability hearing, the defense must convince the adult court judge that the child's age, mental state, and lack of severe prior record make them a prime candidate for juvenile rehabilitation, rather than adult incarceration.
The Required Psychological Evaluations
Amenability hearings rely heavily on expert testimony. The court will not just take your word that your child is a "good kid who made a mistake." Your attorney will typically hire an independent adolescent psychologist to conduct a comprehensive evaluation. This evaluation will assess the child's cognitive development, trauma history, impulse control, and responsiveness to therapy. The expert's written report and live testimony are often the deciding factors in whether a judge believes the child can be successfully rehabilitated before they "age out" of the juvenile system at 18 or 19.
Weighing the Child's Prior Family Court Record
When deciding on amenability, a Delaware judge looks closely at the child's past. If this is the child's first offense, the chances of keeping the case in Family Court are much higher. However, if the child has a lengthy prior record, has repeatedly violated juvenile probation, or has escaped from a juvenile detention facility (like the Ferris School), the prosecutor will argue that the juvenile system has already exhausted its resources and failed to rehabilitate the minor. A strong defense lawyer must provide a compelling narrative as to why past interventions failed and why a new rehabilitative approach will succeed.
Step-by-Step Guide to the Amenability Hearing Process
Fighting a transfer requires aggressive preparation and a deep understanding of adolescent psychology.
Step 1: Filing the Motion
Depending on where the charges were originally filed, your attorney will draft a Motion for Reverse Amenability in the Delaware Superior Court, Wilmington or vigorously object to the state's Motion to Transfer in the Delaware Family Court, Wilmington.
Step 2: The Psychological Evaluation
Your lawyer will schedule a forensic psychological evaluation. The child will undergo hours of interviews and testing. You, as parents, will also likely be interviewed about the child's upbringing, school performance, and home environment.
Step 3: Gathering Mitigation Evidence
Your legal team will gather school records, IEPs, letters of support from coaches or clergy, and medical records to build a "mitigation packet" that paints a complete picture of your child's life and potential for growth.
Step 4: The Evidentiary Hearing
The judge will hold a formal hearing. The state will argue the facts of the crime, highlighting its violence or sophistication. Your attorney will present the psychological expert, the mitigation evidence, and argue that the interests of justice and the child's future demand rehabilitation in the juvenile system.
How Much Does it Cost in Delaware?
Amenability hearings are extremely high-stakes and require immense legal and expert labor. Retaining a private juvenile defense attorney for a major felony involving an amenability hearing can cost between $5,000 and $15,000. Additionally, hiring a private forensic psychologist to conduct the required evaluation and testify in a Delaware court typically costs an extra $3,000 to $6,000. If you cannot afford these fees, the Office of Defense Services, Wilmington provides public defenders who frequently handle these exact hearings.
How Long Does the Process Take?
The amenability process stalls the actual trial while the court decides which system has jurisdiction. Coordinating psychological evaluations and finding available court dates in the Superior or Family Court can take anywhere from 3 to 6 months. During this waiting period, if the charges are severe, the juvenile may be held in a secure youth detention facility.
Family Court vs. Adult Superior Court
| Feature | Delaware Family Court (Juvenile) | Delaware Superior Court (Adult) |
|---|---|---|
| Primary Goal | Rehabilitation and treatment. | Punishment and public safety. |
| Maximum Confinement | Generally until age 19 (sometimes 21 for severe cases). | Can be decades or life in prison. |
| Public Record | Records are heavily sealed and confidential. | Convictions are public and permanent. |
| Jury Trial | No (Bench trial by judge only). | Yes (Right to a trial by a jury of peers). |
Frequently Asked Questions (FAQ)
What happens if we lose the reverse amenability hearing?
If the judge denies the motion, the case remains in the adult Superior Court. Your child will be prosecuted as an adult and face the same statutory penalties and mandatory minimums as an adult offender.
Can the victim speak at an amenability hearing?
Yes. In Delaware, victims have the right to be present and can provide statements to the court detailing how the alleged crime impacted their lives, which the judge will consider when making a decision.
Will my child be sent to an adult prison before trial?
Generally, no. Even if charged as an adult, minors under 18 are typically held in juvenile detention centers (like the New Castle County Detention Center) pending trial to keep them separated from adult inmates.
Can an amenability decision be appealed?
Generally, an amenability or transfer decision is an interlocutory order that cannot be appealed immediately prior to trial. However, under Del. Code Ann. tit. 10, § 1011(e), if the Superior Court denies a motion to transfer to Family Court and the juvenile subsequently enters a plea of guilty or nolo contendere, the defendant has the statutory right to directly appeal the denial of transfer to the Delaware Supreme Court within 30 days of sentencing, and this right of appeal cannot be waived as part of any plea agreement.
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