Del. P.J.I. Crim. No. 11.1113(b)(2)

CRIMINAL NON-SUPPORT OF A MINOR CHILD

In order to find Defendant guilty of Aggravated Criminal Non-Support of a

Minor Child, you must find the State has proved the following two (2) elements

beyond a reasonable doubt:

(1) Defendant was subject to a support order for the benefit of [child]; and

(2) Defendant was delinquent in making timely and full payments under the

support order for a period of at least 8 consecutive months' duration.

It is not a defense the [child/person] subject to the benefit of the support order

also received support from a source other than Defendant.

[if applicable]

[You may infer the payment records maintained by (administrative

agency/court), through which the support order was payable, are proof of the support

paid or unpaid and the accrued arrearages.]

[if applicable:]

In this case, Defendant has asserted the affirmative defense of Full Compliance

with a Support Order to the charge of Criminal Non-Support. In order to establish this

affirmative defense, Defendant must prove the following element by a preponderance

of the evidence:

Defendant fully complied with a support order that was in effect for the benefit

of [person] during the time period of the charged offense charged.

[if applicable:]

In this case, Defendant has asserted the affirmative defense of Inability to Pay

or Provide Support to the charge of Criminal Non-Support. In order to establish this

affirmative defense, Defendant must prove the following element by a preponderance

of the evidence:

Due to circumstances over which Defendant had no control, Defendant was

unable to pay or provide support during the time period charged in the offense.

Unemployment or under-employment, with a justifiable excuse, constitutes a

defense. A justifiable excuse may be proved if Defendant was involuntarily

terminated from Defendant’s employment or otherwise had Defendant’s income

involuntarily reduced, and where Defendant was diligently and in good faith seeking

reasonably appropriate employment under all the circumstances or was pursuing self-employment.

Proof by a preponderance of the evidence means proof something is more

likely than not. It means certain evidence, when compared to the evidence opposed

to it, has the more convincing force and makes you believe something is more likely

true than not. Preponderance of the evidence does not depend on the number of

witnesses. If the evidence supporting the existence of the defense is evenly balanced,

then Defendant has not proved the existence of the defense by a preponderance of the

evidence, and you must find against Defendant on that point. The state has no burden

to present any evidence on this matter.

If after considering all of the evidence, you find this affirmative defense is

established by a preponderance of the evidence, then you must find Defendant not

guilty of Criminal Non-Support. Even if Defendant has not met this burden of proof

for this particular affirmative defense, you must find Defendant not guilty of Criminal

Non-Support if you find the State has not met its burden of proving its case beyond a

reasonable doubt.

“Child” means any child, whether over or under the age of majority, with

respect to whom a support order exists.

"Minor child" means any child, natural or adopted, whether born in or out of

wedlock, who is under the age of 18. The term also includes a child who is over the

age of 18 but not yet 19, if such child is a student in high school and is likely to

graduate.

"Support order" means any judgment, decree or order, whether temporary, final

or subject to modification, issued by a court or agency, for the benefit of a child,

spouse, former spouse, or a parent. The order must require Defendant to provide

monetary or medical support, health care, arrearages, or reimbursement. The order

may be in connection with a proceeding for divorce, judicial or legal separation,

separate maintenance, paternity, guardianship, civil protection, or any other matter.