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Legal Statutes: Delaware

UPDATED April 12, 2017

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Subchapter I. Child Protection from Domestic Violence Act

back to top§ 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 counseling 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 counseling if the Court determines that such counseling 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.

(e) Notwithstanding other provisions of this title, including the rebuttable presumption set forth in this section, where a Court has determined by at least a preponderance of the evidence, that the perpetrator of domestic violence has subjected any child to death or near death injuries, as that term is defined in § 301 of Title 31, the Court shall not award joint or sole custody to the perpetrator of domestic violence, nor permit the perpetrator of domestic violence to exercise custodial or residential responsibilities, nor permit any visitation between the perpetrator of domestic violence and any child, without considering expert testimony from a certified mental health professional that such a custodial, residential or visitation arrangement is in the child's best interests. If such a custodial, residential or visitation arrangement is determined to be in the child's best interests, the Court shall then apply the remaining factors set forth in subsection (c) of this section.
69 Laws 1994, ch. 309, § 4; 76 Laws 2007, ch. 174, § 4, eff. July 31, 2007.