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Know the Laws: Delaware

UPDATED April 11, 2016

Order of Protection from Abuse

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An order of protection from abuse is a civil order that provides protection from harm by a family or household member.  

Basic information

back to topWhat is the legal definition of abuse in Delaware?

This section defines domestic violence for the purposes of getting an order of protection from abuse.  Delaware law defines "domestic violence" as the occurrence of one or more of the following acts of "abuse" between family or household members:

  • causing or attempting to cause actual physical injury or a sexual offense;
  • placing or attempting to place you in fear of physical injury or a sexual offense being committed against you or another person;
  • damaging, destroying, or taking property;
  • engaging in a course of alarming or distressing conduct that is likely to cause fear or emotional distress or cause a violent or disorderly response;
  • trespassing;
  • child abuse (as defined by law);
  • kidnapping;
  • unlawful imprisonment;
  • interference with custody; or
  • any other conduct that a reasonable person would find threatening or harmful.*  

* 10 Del. C. § 1041(1),(2) 

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back to topWhat types of orders of protection from abuse are there? How long do they last?

There are two types of order of protection from abuse:

Emergency (ex parte) order. If you are in immediate danger of abuse, you can ask for an emergency (ex parte) order when you apply for an order of protection.  Ex parte means that the order can be issued without prior notice to the abuser and without the abuser being present. The commissioner may ask you some questions to determine if you are in need of immediate protection. If you get the order, it will last until your full hearing, which is usually within 15 days.  The court can extend an ex parte order as needed, but not for more than 30 days.  Note: If the court does not grant you an emergency (ex parte) order, you may still be given a court date for a full hearing scheduled within the next 30 days.*

Order of protection from abuse. A long-term order of protection from abuse can be issued only after a court hearing where you and the abuser have the chance to both be present and present evidence to the judge.  Most of the protections will last for up to 1 year.  However, if the order includes a term that the abuser cannot commit acts of domestic violence against you and/or cannot contact or attempt to contact you, these can last for up to 2 years** or longer (even permanently) if:

  1. the length of the order is necessary to prevent further acts of domestic violence; and
  2. the judge finds that aggravating circumstances exist. "Aggravating circumstances" include any of the following:
  • the abuser caused you physical injury or serious physical injury or s/he exposed any of your family or household members to such injuries;
  • the abuser used a deadly weapon or dangerous instrument against you;
  • there is a history of repeated violations of prior protective orders by the abuser;
  • the abuser has been convicted of a crime against you in the past; or
  • the abuser committed any other acts of abuse that causes the judge to believe that there is an immediate and ongoing danger to you or any member of your family or household.***

You may also file to extend your order.****  For the order to be extended, there must be a hearing and certain factors must be met.  To read more about what you'd have to prove to get your order extended, go to How do I change, extend, or cancel my order of protection?

* 10 Del. C. §§ 1043, 1044(a)
** 10 Del C. § 1045(b)
*** 10 Del C. § 1045(b),(f)
**** 10 Del C. § 1045(c)

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back to topHow can an order of protection from abuse help me?

In an order of protection from abuse, a judge may order the abuser to:

  • Stay away from you;
  • Stay away from your residence, work place, school, day care (you may have to specifically request these places);
  • Stop threatening or abusing you;
  • Stop contacting you;
  • Pay child support and spousal support;
  • Pay certain other expenses;
  • Surrender any and all firearms (and the judge can order the police to search for and take the respondent's firearms if you can describe what type of gun he has and where it is AND if he has used or threatened to use a gun against you or you fear that he might);
  • Attend counseling; and
  • Not destroy, sell, or conceal joint property.

A judge may also grant you:

  • Exclusive use of the home or of certain possessions, including the family car, (regardless of who has title to the home or possessions);
  • Temporary custody of children;
  • Power to decide the conditions of child visitation by the abuser; and
  • Any other relief that the judge believes are necessary in order for you to be free from the violence.*

Whether a judge orders any or all of the above depends on the facts of your case.

* 10 Del.C. § 1045

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Who can get an order of protection from abuse

back to topWho can file for an order of protection from abuse?

You can file a petition for yourself, your minor child, or on behalf of an adult who is impaired.*  To be eligible for an order of protection from abuse, an act of abuse must have been committed against you (or your minor child or the impaired adult) by:

  • a current or former spouse;
  • someone with whom you were "cohabitating" (living together as a couple, with or without a child in common);
  • your custodian; 
  • your child;
  • someone with whom you have or had a "substantive" dating relationship;
  • someone with whom you have a child in common, even if you don't live together;
  • someone you are related to by blood or marriage with whom you live (together in one household); or
  • someone you are related to in any of the following ways:
    • mother, father
    • mother-in-law, father-in-law
    • brother, sister
    • brother-in-law, sister-in-law
    • grandparent, grandchild
    • stepmother, stepfather
    • child, stepchild, daughter-in-law, son-in-law.**

This definition of relationships includes both blood relationships and relationships by adoption.  Also, it does not matter if a parent's parental rights were legally terminated.**  For example, if your mother's rights were terminated but she was abusing you, you could still file for an order of protection against her.

* 10 Del.C. § 1041(3)
** 10 Del.C. §§ 1041(2); 901(12)

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back to topCan I get an order of protection from abuse against a same-sex partner?

In Delaware, you may apply for an order of protection from abuse against a current or former same-sex partner as long as the relationship meets the requirements listed in Who can get an order of protection from abuse?  You must also be the victim of an act of abuse, which is explained here What is the legal definition of abuse in Delaware?

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back to topCan I get an order of protection from abuse if I'm a minor?

Under Delaware law, a minor is a person under 18 years of age.  If you are a minor you can get an Order of Protection by having your parent, legal guardian or child protection services file for an order on your behalf.*

* 10 Del. C. §§ 1041(3)(b), 1043(a)

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back to topHow much does it cost? Do I need a lawyer?

Nothing. There is no filing fee to get an Order of Protection from Abuse.

Although you do not need a lawyer to file for an Order of Protection from Abuse, it may be to your advantage to seek legal counsel. This is especially important if your abuser has obtained a lawyer. Even if your abuser does not have a lawyer, it is recommended that you contact a lawyer to make sure that your legal rights are protected.

If you cannot afford a lawyer but want one to help you with your case, you can find information on legal assistance and domestic violence organizations on the DE Finding a Lawyer page under the Where to Find Help tab at the top of this page.  In addition, the domestic violence organizations in your area and/or court staff may be able to answer some of your questions or help you fill out the necessary court forms.  You will find contact information for courthouses on the DE Courthouse Locations page.

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Steps to get an order of protection from abuse

back to topStep 1: Fill out the necessary forms at the courthouse.

You will find links to the forms you will need at our DE Download Court Forms page, or from the courthouse in your area.  The clerk will provide you with the forms that you need to file.  On the petition, you will be the "petitioner" and the abuser will be the "respondent."  When writing about the incidents of violence, use descriptive language - words like "slapping," "hitting," "grabbing," "threatening," "choking," etc., - that fits your situation.  Include details and dates, if possible.  Be specific.  

You may also have to fill out an information sheet, but you are not required to provide your residence or phone number if it will put you in danger to reveal that information (you can ask that the information be kept confidential).* 

If you need assistance filling out the form, you can ask the clerk for help** or a local domestic violence program may be able to help you. 

Note: Be sure to wait to sign the forms in front of the court clerk since your signature may have to be notarized.

*10 Del.C. § 1042(b)
** 10 Del.C. § 1042(d)

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back to topStep 2: The ex parte hearing

The commissioner will review your petition in order to decide if you will be granted an emergency (ex parte) order (if you asked for one).  If you are granted an emergency (ex parte) order, the order is good until your full hearing, which usually takes place within 15 days (but could be extended and last for up to 30 days).*  If the court does not grant you an emergency (ex parte) order, you may still be given a court date for a full hearing scheduled within the next 30 days.**

* 10 Del. Code § 1043(d)
** 10 Del. Code § 1044(a)

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back to topStep 3: Service of process

The abuser must be "served," or given papers that tell him/her about the hearing date and your emergency (ex parte) order, if the court gave you one.

Whether or not you are granted an emergency (ex parte) order, the clerk of court will prepare a summons. S/he will order that a copy of the summons and petition be served on the respondent named in the petition.

The court will request law enforcement to serve the papers on the abuser.  There is no charge to have the authorities serve the abuser. Do not try to serve the papers yourself.

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back to topStep 4: The hearing

A judge will set a hearing date, usually within 15 days of filing your petition (although it could be within 30 days if the ex parte order is extended because the respondent couldn't be served or for another reason).*  You must go to the hearing or your emergency (ex parte) order will expire and you will have to start the process over.  At the hearing, you and the abuser will have a chance to present evidence, witnesses, etc., to prove your case. You have the right to bring a lawyer to represent you at the hearing and it is generally best to have a lawyer represent you who is familiar with orders of protection from abuse.  If you show up to court and the abuser has a lawyer and you do not, you may ask the judge for a "continuance" to set a later court date so you can have time to find a lawyer for yourself.  See DE Finding a Lawyer page for legal referrals.  If you are representing yourself, see the Preparing Your Case page for ways you can show the judge that you were abused.

If the abuser has received notice of the hearing, but does not show up, the judge may continue with the hearing or may reschedule the hearing for a future date.  If the judge reschedules the hearing, make sure to ask the clerk if you need to reissue or extend your emergency order (if you have one) so that you will continue to be protected you until the new hearing date.
 
* 10 Del. C. § 1043(d)

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After the hearing

back to topWhat should I do when I leave the courthouse?

  • Make several copies of the protective order as soon as possible.
  • Keep a copy of the order with you at all times.
  • Inform your employer, domestic violence advocate, minister, clergy, family members, and/or your closest friends that you have a protective order in effect.
  • Leave copies of the order at your work place, at your home, at the children's school or daycare, in your car, with a sympathetic neighbor, and so on.
  • Give a copy to the security guard or person at the front desk where you live and/or work.
  • Give a copy of the order to anyone who is named in and protected by the order.
  • If the court has not given you an extra copy for your local law enforcement agency, take one of your extra copies and deliver it to them.
  • One week after court, call your local law enforcement offices to make sure they have received copies of the order.
  • Take steps to safety plan, including changing your locks and your phone number.

Ongoing safety planning is important after receiving the order. Women can do a number of things to increase their safety during violent incidents, when preparing to leave an abusive relationship, and when they are at home, work, and school. Many batterers obey protective orders, but some do no. It is important to build on the things you have already been doing to keep yourself safe.

Click on the following link for suggestions on Staying Safe. (You can access the safety planning information any time from the WomensLaw.org Home page.) In addition, advocates at local resource centers can assist you in designing a safety plan and can provide other forms of support. To find a shelter or an advocate at a local program, please visit the DE State and Local Programs page under the Where to Find Help tab at the top of this page.

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back to topI was not granted an order of protection from abuse. What are my options?

Orders entered by a Commissioner may be appealed to a Judge of the Family Court by filing a form called an "Appeal from a Commissioner's Order". Appeals from Commissioner's orders must be filed with the Family Court within ten (10) days of the order.

Orders entered by a Judge may be appealed to the Delaware Supreme Court. A "Notice of Appeal" form must be filed within thirty (30) days of the Family Court Judge's Order.

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back to topWhat can I do if the abuser violates the order?

It is important to recognize the limitations of an Order of Protection from Abuse. You must be vigilant in enforcing the order's provisions by reporting every violation to the police or the court.

Call the police, even if you think it is a minor violation. It is a crime and contempt of court if the abuser knowingly violates the order in any way. A judge can punish someone for being in contempt of court. Violation of the order is punishable by up to one year in jail and/or a fine of up to $2,300. In addition, the police should arrest him for violation of the order. If convicted, the abuser may be fined or sent to jail.

It is a good idea to write down the name of the responding officer(s) and their badge number in case you want to follow up on your case.*

* 10 Del. C. § 1046.

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back to topHow do I change, extend, or cancel my order of protection?

Changing / canceling an order
Either you or the respondent may apply to the family court to have an order of protection from abuse changed by filling out a court form requesting the modification. You can get the form from the clerk's office.

The court can modify a non-consent order (an order that was issued by the judge after a hearing) only if the party asking for the modification (you or the abuser) proves that there is a good reason for the change. The court can modify a consent order if both parties agree.*

Extending an order
You can file a motion to extend your order before your original order expires and a hearing date will be set for both you and the abuser to appear in court.  The order can be extended for a time period determined by the judge.  However, for the judge to extend your order, one of the following must happen at the hearing:

  • the judge determines that:
    • domestic violence has occurred since you got the original order;
    • a violation of the order has occurred; or
    • you prove that there is other "good cause" (a good reason) to extend the order; or
  • the respondent consents to the extension of the order.** 

You can find some of the forms you need through the DE Download Court Forms page on this website.

* See the Delaware State Courts website
** 10 Del. C. § 1045(c)

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back to topWhat happens if I move?

Your Order of Protection from Abuse is good no matter where you go in your state. In addition, it can be enforced even if you move to another state. If you move, your order must be given full faith and credit in any other state, territorial or tribal court .* That means that your order will be good wherever you go.

Some states require that you register your order with them before it is effective. If you move, call the clerk of court in your new area. Tell the clerk that you have an Order of Protection from Abuse from Delaware, and ask if you need to register it with them.

Note: For information on enforcing a military protection order (MPO) off the military installation or enforcing a civil protection order (CPO) on a military installation, please see our Military Protective Orders page.

* 18 U.S.C. Secs. 2265 and 2266
** 10 Del. C. § 1049B

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WomensLaw.org would like to thank the Delaware Family Courts for its help in putting together this material.

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