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Delaware Family Law on Domestic Violence

Although the precise definition varies from state to state, domestic violence generally encompasses physical or sexual abuse (or the threat of such abuse) committed by one parent against the other parent, a child living in either parent's house, or any other adult living in the child's home. Acts of domestic violence can greatly impact the abuser's family law rights, most notably regarding child custody. This article outlines Delaware's domestic violence law and explains how domestic violence can impact child custody awards.

Code Section

Delaware Code section 1041(2): Domestic Violence

What's Prohibited?

Domestic abuse occurs when abuse is committed against a family member or former spouse.

What Constitutes "Abuse?"

Abuse means conduct that constitutes any of the following:
  • Intentionally or recklessly causing or attempting to cause physical injury or a sexual offense
  • Intentionally or recklessly placing or attempting to place another person in reasonable apprehension of physical injury or a sexual offense
  • Intentionally or recklessly damaging, destroying, or taking the tangible property of another
  • Engaging in a course of alarming or distressing conduct in a manner that is likely to cause fear, emotional distress, or to provoke a violent or disorderly response
  • Trespassing on the property of another when the trespasser has been excluded by a court order
  • Child abuse
  • Unlawful imprisonment, kidnapping, or interference with custody and coercion, or
  • Any other conduct that a reasonable person under the circumstances would find threatening or harmful

Self Defense

Domestic violence doesn't include acts of self-defense by a parent defending either themselves or their child from abuse by the other parent or another adult living in the child's home.

Child Custody and Domestic Violence

Fleeing from domestic violence: If a parent flees from domestic violence and temporarily leaves their child behind, this act isn't considered evidence of abandonment in any child custody or visitation proceeding as long as the child isn't left in immediate danger of serious physical injury.

Presumption against awarding child custody to a domestic violence perpetrator: Courts in Delaware award child custody in accordance with the best interests of the child. Therefore, there is a rebuttable presumption that perpetrators of domestic violence will not be awarded sole or joint custody of a child. However, this presumption is rebuttable, and can be overcome if there have been no further acts of domestic violence and the perpetrator has:

  • Successfully completed an evaluation and counseling program designed for domestic violence offenders
  • Successfully completed alcohol or drug abuse counseling (if the court deems it to be appropriate), and
  • Demonstrates that giving custodial or residential responsibilities to the domestic violence perpetrator is in the best interests of the child

The presumption that domestic violence perpetrators should not be awarded child custody can also be overcome if the court finds extraordinary circumstances that warrant the rejection of the presumption. For example, if there is evidence demonstrating that there isn't a significant risk of future violence.

What happens if both parents have committed acts of domestic violence? In these instances the case is referred to the Division of Family Services for further investigation. The results of this investigation are then presented to the court in order to determine a custody arrangement that is in the best interest of the child.

Additional Resources

State laws change frequently. For case specific information regarding Delaware's family law on domestic violence contact a local family law lawyer or criminal defense attorney.

If you are a domestic violence survivor there is help available for you. During an emergency dial 911, and when you're safe contact the Delaware Coalition Against Domestic Violence.

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