2006 Delaware Code - CHAPTER 7A — CHILD PROTECTION FROM DOMESTIC VIOLENCE ACT

§ 701A. Title.

This chapter shall be known as and may be cited as the "Child Protection From Domestic Violence Act". (69 Del. Laws, c. 309, § 4.)

§ 702A. Purpose.

The purpose of this chapter is to protect children from domestic violence and the harm caused by experiencing domestic violence in their homes. (69 Del. Laws, c. 309, § 4.)

§ 703A. Definitions.

(a) "Domestic violence" includes but is not limited to physical or sexual abuse or threats of physical or sexual abuse and any other offense against the person committed by 1 parent against the other parent, against any child living in either parent's home, or against any other adult living in the child's home. "Domestic violence" does not include reasonable acts of self-defense by 1 parent for self-protection or in order to protect the child from abuse or threats of abuse by the other parent or other adult living in the child's home.

(b) "Perpetrator of domestic violence" means any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:

(1) Any felony level offense;

(2) Assault in the third degree;

(3) Reckless endangering in the second degree;

(4) Reckless burning or exploding;

(5) Unlawful imprisonment in the second degree;

(6) Unlawful sexual contact in the third degree; or

(7) Criminal contempt of Family Court protective order based on an assault or other physical abuse, threat of assault or other physical abuse or any other actions placing the petitioner in immediate risk or fear of bodily harm. (69 Del. Laws, c. 309, § 4; 70 Del. Laws, c. 186, § 1.)

§ 704A. Fleeing from domestic violence.

For purposes of this title, it shall not be considered evidence of abandonment in any child custody or visitation proceeding if a parent flees from domestic violence and temporarily leaves the child behind, as long as that child is not left in immediate danger of serious physical injury. (69 Del. Laws, c. 309, § 4; 70 Del. Laws, c. 186, § 1.)

§ 705A. Rebuttable presumption against custody or residence of minor child to perpetrator of domestic violence.

(a) Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no perpetrator of domestic violence shall be awarded sole or joint custody of any child.

(b) Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no child shall primarily reside with a perpetrator of domestic violence.

(c) The above presumptions shall be overcome if there have been no further acts of domestic violence and the perpetrator of domestic violence has: (1) successfully completed a program of evaluation and counselling designed specifically for perpetrators of family violence and conducted by a public or private agency or a certified mental health professional; and (2) successfully completed a program of alcohol or drug abuse counselling if the Court determines that such counselling is appropriate; and (3) demonstrated that giving custodial or residential responsibilities to the perpetrator of domestic violence is in the best interests of the child. The presumption may otherwise be overcome only if a judicial officer finds extraordinary circumstances that warrant the rejection of the presumption, such as evidence demonstrating that there exists no significant risk of future violence against any adult or minor child living in the home or any other family member, including any ex-spouse.

(d) In those cases in which both parents are perpetrators of domestic violence, the case shall be referred to the Division of Family Services of the Department of Services for Children, Youth and their Families for investigation and presentation of findings. Upon consideration of such presentation, and all other relevant evidence, including but not limited to, evidence about the history of abuse between the parents and evidence regarding whether 1 parent has been the primary aggressor in the household, the Court shall decide custody and residence pursuant to the best interests of the child. (69 Del. Laws, c. 309, § 4.)

§ 706A. Evidence of domestic violence.

(a) Any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the Court in determining the legal custody and residential arrangements in accordance with the best interests of the child.

(b) If sole or joint custody is awarded to, or if primary residence of a child is placed with, a party notwithstanding evidence that the party has committed acts of domestic violence against the other parent, against the child or against any other person living in the child's household, the Court shall make specific written findings in support of the decision to award custody or primary residence to that party. (69 Del. Laws, c. 309, § 4.)

§ 707A. Counselling.

If the Court awards sole or joint custody or primary residence to a parent who has a history of committing acts of domestic violence, that parent shall be ordered to complete a program of evaluation and counselling designed specifically for perpetrators of family violence and conducted by a public or private agency or a certified mental health professional. That parent may also be ordered to attend alcohol or drug abuse treatment and any other counselling that may be appropriate. (69 Del. Laws, c. 309, § 4.)

§ 708A. Visitation.

Notwithstanding the other provisions of this title, in all cases in which the Court finds by a preponderance of the evidence that 1 of the child's parents has committed an act of domestic violence against the child, against the other parent or against any other person living in the child's household the Court shall determine a schedule, location and conditions for visitation that best protects the child and the victim of domestic violence from further violence. (69 Del. Laws, c. 309, § 4.)

§ 709A. Modification of orders.

Notwithstanding other provisions of this title:

(1) An order concerning visitation may be modified at any time if necessary to protect the safety of the child or the child's parent in light of acts of domestic violence that have occurred since the entry of the most recent visitation order.

(2) A custody order may be modified at any time if a parent who has sole or joint custody has committed acts of domestic violence since the entry of the most recent custody order.

(3) In determining whether a custody award should be modified, the Court shall not consider noncompliance with an existing custody or visitation order or noncompliance with the duties and responsibilities under § 727 of this title if such noncompliance was caused by the parent's attempt at self-protection or protection of the child from acts of domestic violence committed since the entry of the Court's most recent custody or visitation order. (69 Del. Laws, c. 309, § 4; 70 Del. Laws, c. 186, § 1.)

§ 710A. Sexual abuse.

If the Court finds by a preponderance of the evidence that a parent has sexually abused a child, the Court shall prohibit all visitation and contact between the abusive parent and the child until such time as the Court finds, after a hearing, that supervised visitation would not harm, endanger or impair the child's physical, psychological or emotional well-being. In determining whether such visitation may be appropriate, the Court should consider all relevant factors, including:

(1) Whether the abusive parent has successfully completed a treatment program of evaluation and counselling that is specifically designed for sexual abusers and is conducted by a public or private agency or a certified mental health professional;

(2) Whether the abusive parent has successfully completed a program of alcohol or drug abuse counselling;

(3) Any testimony by a mental health professional who is the therapist for the abused child;

(4) Any testimony by a mental health professional who is the therapist for the abusive parent; and

(5) Whether supervised visitation is in the child's best interests. Nothing in this section shall preclude the Court from denying visitation under other appropriate circumstances, including denying such visitation under an ex parte or other emergency order. (69 Del. Laws, c. 309, § 4; 70 Del. Laws, c. 186, § 1.)

§ 711A. Ordered mediation prohibited.

Notwithstanding any other provision of law to the contrary, Family Court mediation conferences shall be prohibited in any child custody or visitation proceeding in which 1 of the parties has been found by a court, whether in that proceeding or in some other proceeding, to have committed an act of domestic violence against the other party or if either party has been ordered to stay away or have no contact with the other party, unless a victim of domestic violence who is represented by counsel requests such mediation. (69 Del. Laws, c. 309, § 4.)