How Domestic Violence Affects Child Custody in Delaware

Find out more about domestic violence and how it may affect custody outcomes in Delaware.

The Center for Disease Control estimates that one in every four women will be a victim of domestic violence at some point in her life. Victims of abuse often choose not to call the police, but rightfully speak up about their abuse when child custody is at stake. Courts generally consider domestic violence a very important factor when deciding whether to grant parents custody.

This article will explain how Delaware defines domestic violence and how it affects custody decisions. If you have additional questions after reading this article, you should consult a local family law attorney for help.

Child Custody in Delaware

When deciding how divorced or separated parents will share responsibilities for a child, Delaware judges make two main rulings: “legal custody,” or which parent makes medical, educational and other major decisions for the child, and “physical custody,” or where the child lives the majority of the time (In Delaware, legal custody is also referred to as simply “custody,” while physical custody is called “residence”). For more information, see Child Custody in Delaware: Best Interests of the Child.

Delaware law provides a list of factors that judges can consider when deciding legal and physical custody:

  • both parents’ wishes
  • the child’s wishes
  • the child’s relationship with grandparents, siblings, and others living in their parents’ households
  • the child and parents’ physical and mental health
  • the child’s relationship to school and community
  • parents’ compliance with previous court orders
  • any criminal history of people living in each parent’s household, and
  • any evidence of domestic violence by either parent.

Domestic Violence: an Overview

In Delaware, domestic violence includes physical or sexual abuse, or threats of physical or sexual abuse, committed by a parent against another parent, child, or other person living in the child’s home. Abuse or threats of abuse in a household qualifies as domestic violence, even if there are no injuries and no one calls the police. Self-defense isn’t considered domestic violence.

What to Do When There is Domestic Violence

There are a number of resources for victims of domestic violence in Delaware. The Delaware Coalition Against Domestic Violence provides useful information on its website and a 24-hour hotline. The state of Delaware has aDomestic Violence Coordinating Council that can provide assistance to victims. You can also access contact information for local resources for victims of domestic violence here.

If you are in immediate fear of your safety, you should call 911. If you are in fear of future violence in your household, you should contact your local Victim Advocacy Program about getting an “Order of Protection From Abuse,” which will order an abuser to stay away from you and any minor children. You do not need an attorney to get an order of protection.

To get an order of protection, go to the Family Court between 8:30 and 4:30, Monday through Friday, and ask the clerk for a “Protection From Abuse Petition.” You’ll speak with a judge, who can issue a temporary protection order that same day and set another date for a hearing, where your abuser will have to appear. The temporary protection order will last until the date of your hearing. If, at the hearing, the judge believes your safety is at risk, he or she can issue another order of protection that requires your abuser to stay away from you and your child for a year, or face up to a year in jail and a fine of up to $2300.

Impact of Domestic Violence on Custody Decisions

In Delaware, courts start with a presumption that a parent who has committed domestic violence doesn’t get sole custody or joint custody (shared custody) of any child. This means that if a parent has a criminal history of domestic violence or if the court decides at a hearing that a parent has committed domestic violence, the other parent will usually get legal and physical custody (custody and residence) of the child.

The court considers domestic violence when making custody decisions, whether the child witnessed the violence or not.

A parent who has committed domestic violence can only get custody of a child if all of the following requirements are met:

  • the parent completes a domestic violence program with a public or private agency or a certified mental health professional
  • the parent completes drug or alcohol counseling, if the judge believes it’s needed, and
  • the judge believes that it’s in the best interests of the child for that parent to have custodial responsibilities.

Also, if a parent has caused another child’s death or near death, that parent will get no visitation whatsoever unless he or she meets all of the above requirements and a certified mental health expert testifies before the judge that it is in the best interests of the child for that parent to have visitation.

If both parents have committed domestic violence, the case is referred to the Delaware Division of Family Services, who will conduct an investigation. The court can give primary or sole custody to one parent if the Division of Family Services finds that the other parent was the primary aggressor of the violence (person who generally caused the abuse).

A parent who is denied custody or visitation because of domestic violence still has the right to receive the child’s school and medical records.

Supervised Visitation

When any parent who has committed domestic violence is granted visitation with a child, the judge must also consider and arrange a schedule, location and other conditions for visitation that will protect the child and victim of abuse from any future violence – such arrangement may include the possibility of “supervised visitation,” where all visits between the abusive parent and child are monitored by a third party.

If supervised visitation is mandated, a judge can also order the parent who has committed domestic violence to pay for a supervisor to be present for any visitation periods.

Termination of Parental Rights

In severe cases of domestic violence, a judge can decide that it is in the child’s best interests to end the parent-child relationship; this is called a “termination of parental rights.”

A judge won’t consider terminating parental rights unless a parent has put a child in circumstances that could cause serious injury or death, has committed a felony against the child, been convicted of child-trafficking charges, or another extreme act of domestic violence.

If you have other specific questions about domestic violence and child custody in Delaware, contact a local family law attorney for advice.

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