# Del. Fam. Ct. Crim. R. 5: Rule 5. Initial appearance before the committing magistrate > Delaware · Court rules · In force URL: https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R5 ## Section - **Citation:** Del. Fam. Ct. Crim. R. 5 - **Heading:** Rule 5. Initial appearance before the committing magistrate - **Jurisdiction:** Delaware - **Kind:** Court rules - **Status:** In force - **Text as of:** August 14, 2026 - **Source:** Compiled text - **Location:** Delaware Court Rules / Family Court / Family Court Criminal Rules / Del. Fam. Ct. Crim. R. 5 ## Text (a) Taking an adult into custody. (1) Initial appearance. Any peace officer taking into custody, with or without a warrant, an adult charged with an offense within the original jurisdiction of this Court may take the person apprehended without unreasonable delay before: (a) the nearest available Justice of the Peace; or (b) the court out of which the warrant issued, all in accordance with the command of the warrant. When apprehension is made without a warrant, a complaint shall be filed forthwith which shall comply with the requirements of Rule 4(a) with respect to the showing of probable cause. (2) Statement by the committing magistrate. The adult charged shall not be called upon to plead. The committing magistrate shall inform the adult of the charge and of any affidavit filed therewith, of the right to retain counsel, of the right to request the assistance of the Public Defender if indigent, and of the general circumstances under which pretrial release may be secured. The committing magistrate shall inform the adult charged that the adult is not required to make a statement and that any statement made may be used against that adult. The committing magistrate shall allow the adult charged reasonable time and opportunity to consult counsel and shall admit the adult to bail with appropriate conditions of continued release that may include a requirement to appear in this Court at a specified time for a review of bail, as provided by statute or in these Rules. (3) Records. After concluding the proceeding the committing magistrate shall transmit forthwith to the Clerk of the Court for the proper county all papers in the proceeding and any bail taken. adult to bail with appropriate conditions of continued release that may include a requirement to appear in this Court at a specified time for a review of bail, as provided by statute or in these Rules. (3) Records. After concluding the proceeding the committing magistrate shall transmit forthwith to the Clerk of the Court for the proper county all papers in the proceeding and any bail taken. (4) Bond review hearing. If the adult charged or any adult material witness shall have been committed to a facility of the Department of Adult Correction in default of bail, by a committing magistrate, such person shall be delivered to this Court at its next session to review the bond fixed by such committing magistrate and this Court may (1) approve the bond, or (2) fix new bond in a greater or lesser amount, or (3) require different surety, or (4) release such person on own recognizance without surety, or (5) make such other disposition as may be appropriate. When conducting review hearings, the Court shall comply with the Special Rule of Criminal Procedure for Pretrial Release. (b) Taking a child into custody. (1) Duties of peace officer. Any peace officer who takes a child into custody shall immediately attempt to notify the child’s custodian of this fact. Without unreasonable delay after apprehending a child without a warrant a peace officer shall: (a) release the child to the child’s custodian with a brief report of the reason for the apprehension; or Release. (b) Taking a child into custody. (1) Duties of peace officer. Any peace officer who takes a child into custody shall immediately attempt to notify the child’s custodian of this fact. Without unreasonable delay after apprehending a child without a warrant a peace officer shall: (a) release the child to the child’s custodian with a brief report of the reason for the apprehension; or (b) take the child before a court for the purpose of filing a complaint. Rule 5(b)(1)(a) and (b) notwithstanding, if the apprehension is on an outstanding warrant, without unreasonable delay the peace officer shall take the child charged before the court to which the warrant is to be returned. In the event a child is not taken before this Court or another court by a peace officer, the peace officer shall forthwith file with this Court the original and one copy of the complaint. (2) Duties of other courts. Upon a child being brought before a court other than this Court by a peace officer, such court shall immediately attempt to notify the child’s custodian of the child’s presence and the reason for being there and, thereafter: (a) may release the child to the custodian to appear before this Court at a time to be established by this Court; or (b) may require bail for the child’s appearance before this Court; or (c) may order the child detained in a facility of the Department of Services for Children, Youth and Their Families provided: stodian of the child’s presence and the reason for being there and, thereafter: (a) may release the child to the custodian to appear before this Court at a time to be established by this Court; or (b) may require bail for the child’s appearance before this Court; or (c) may order the child detained in a facility of the Department of Services for Children, Youth and Their Families provided: (i) the child fails to furnish bail after having been given ample opportunity to do so; and (ii) detention appears necessary pursuant to Rule 5.1; and (iii) such detention shall continue only until the next session of this Court; and (iv) the child’s custodian, if the address be known, be notified of the disposition of the matter. In the event a child is not detained, the Court shall transmit forthwith to the Clerk of Court for the proper county all papers in the proceeding and any bail taken. In the event a child is detained in default of bond, the child shall be brought before this Court for a detention hearing at its next session. The court which commits a child to detention shall forthwith file with this Court the original of such complaint and cause 2 copies of the complaint to be delivered to the detention facility, along with the child’s commitment and a statement as to whether the child’s custodian was notified of the commitment to detention, and, if not, the efforts made to do so. The detention facility shall thereafter forward a copy of such complaint and statement to this Court at the time of said child’s detention hearing. If the child’s custodian was not notified at the time of the child’s commitment to detention, the detention facility shall attempt to do so immediately and if they are unable to do so, the Court shall, at the time of the detention hearing, be advised of that fact and the efforts made. History. Amended Oct. 4, 2022, effective Jan. 1, 2023. ## Nearby sections - [Del. Fam. Ct. Crim. R. 1 Rule 1. Scope; title; effective date; definitions; application of terms](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R1.md) - [Del. Fam. Ct. Crim. R. 2 Rule 2. Purpose and construction](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R2.md) - [Del. Fam. Ct. Crim. R. 3 Rule 3. Commencement of action](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R3.md) - [Del. Fam. Ct. Crim. R. 4 Rule 4. Warrant or summons upon complaint](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R4.md) - [Del. Fam. Ct. Crim. R. 5 Rule 5. 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The information and petition](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R7.md) - [Del. Fam. Ct. Crim. R. 7.1 Rule 7.1. Cases transferred from the Court of Common Pleas for New Castle](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R7_1.md) - [Del. Fam. Ct. Crim. R. 8 Rule 8. Joinder of offenses and of persons charged](https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R8.md) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SRULES_DE_DEFAMCRIM_R5. Check the current official text before relying on it. Not legal advice.