§ 2729 — Failure to send; affirmative defense; penalties

(a) If a charge is filed against a parent for a violation of § 2702 of this title, the court shall determine whether the evidence establishes beyond a reasonable doubt that the parent has violated the section.

(b) In the prosecution of a parent for a violation of § 2702 of this title, it shall be an affirmative defense that the parent has made substantial and reasonable efforts to comply with the compulsory attendance requirements of § 2702 but is unable to cause the child to attend school. It shall also be an affirmative defense that the parent does not have legal custody of the student. Other affirmative defenses may be permitted as required in the interests of justice. If the court determines the affirmative defense is valid it shall dismiss the complaint against the parent and the school may file a complaint against the student pursuant to § 2730 of this title.

(c) This section shall not apply to a parent whose child is receiving instruction pursuant to § 2703 of this title, to children exempted from compulsory attendance requirements pursuant to § 2705 of this title, or whose children are in compliance with school attendance requirements.

(d) A parent who is determined to have violated § 2702 of this title is guilty of an unclassified misdemeanor and shall be sentenced as follows:

(1) For a first offense, a fine of not less than $25 nor more than $300, or imprisonment for not more than 10 days or both;

(2) For a second offense, a fine of not less than $50 nor more than $500, or imprisonment for not more than 20 days or both;

(3) For a third or subsequent offense, a fine of not less than $230 nor more than $1,150, or imprisonment for not more than 30 days or both.

(e) To the extent possible the fine shall be commensurate with the number of days the student was absent from school without valid excuse.

(f) The court may order the parent to perform unpaid community service in lieu of a fine. The court may require that all or part of the service may be performed for a public school district.

(g) The court may also order as conditions of release prior to judgment or as conditions of sentence upon conviction such conditions as the court considers necessary to obtain compliance with school attendance requirements. These conditions include but are not limited to the following:

(1) Verifying the child’s attendance with the school;

(2) Meeting with school officials;

(3) Taking the child to school;

(4) Taking the child to the bus stop;

(5) Attending school with the child;

(6) Undergoing medical, psychological or psychiatric evaluations and following the evaluator’s recommendations;

(7) Undergoing an evaluation for drug, alcohol, or other substance abuse and following the evaluator’s recommendations; and

(8) Taking the child for medical, psychological or psychiatric evaluation or for drug, alcohol or other substance abuse evaluation and following the evaluator’s recommendations.

(h) Upon conviction, the name and address of the parent and a summary of the disposition of any offenses for which the parent was convicted shall be reported by the Court to the Division of Family Services of the Department of Services for Children, Youth and Their Families and to the Division of Social Services of the Department of Health and Social Services.

(i) The provisions of § 4218 of Title 11 (probation before judgment) shall apply to a parent charged with violation of § 2702 of this title.

Legislative History

72 Del. Laws, c. 346, § 14 ; 73 Del. Laws, c. 301, § 2 ; 75 Del. Laws, c. 107, § 2