A Commissioner or Judge presides over every hearing in the Delaware Family Court, depending on the type of filing. The Commissioners hear a multitude of petitions and motions each year. The most common include: petition for child support or a petition to modify child support, petition for order of protection from abuse or a motion to modify an order of protection from abuse, and a motion for temporary visitation. After your hearing, you will receive a written decision issued by the Commissioner. If you do not agree with the Commissioner's decision, you may have a right to appeal it. Your appeal is called a "Request for Review of Commissioner's Order".
ELIGIBILITY: To be eligible to file an appeal, you must have appeared in Family Court and had a contested hearing. If the parties reached an agreement or you failed to appear for your hearing, you cannot file a Request for Review of Commissioner's Order.
FORMAT: In the Request for Review of Commissioner's Order, you will list all of your objections to the Commissioner's Order. You may use Form 455 on the Family Court website, if unrepresented.
TIMING: The timing for your appeal is also important. There is a filing deadline for the Request for Review of Commissioner’s Order. Your opponent also has a deadline to file a response.
COST: When considering whether to file an appeal, cost is always a consideration. The filing fee plus the appealing party must pay to have a transcript of the underlying hearing prepared. The cost for the transcript depends on the length of the hearing.
LEGAL STANDARD: A Judge will consider your written objections. If the Commissioner's decision is considered a final order, then the judge will use a de novo standard. "De novo" means to start from the beginning or anew in Latin. The Judge may accept or reject the Commissioner's decision in whole or part. The Judge may receive further evidence or remand the case back to the Commissioner with instructions. If the Commissioner's Order is an interim decision, then the judge will only reconsider the decision where it is shown that the Commissioner's Order is based upon findings of fact that are clearly erroneous, contrary to law, or an abuse of discretion. 10 Del. C. § 915(d) and Family Court Civil Procedure Rule 53.1.
Consider scheduling an initial consultation with a family law attorney who specializes in this area to discuss your options.