Can a parent who committed violence get sole or joint custody?
There is a “rebuttable presumption” that a judge will not award a “perpetrator of domestic violence” any of the following:
- sole custody;
- joint custody; and
- primary residence for the child.1
A rebuttable presumption means that the judge will assume (presume) that the abusive parent should not get custody or primary residence but the abusive parent can present evidence to change the judge’s mind (overcome the rebuttable presumption). If the rebuttable presumption is overcome, the judge can award that parent custody or primary residence. The abusive parent can overcome the rebuttable presumption if s/he can prove either:
- There have been no further acts of domestic violence and the perpetrator of domestic violence has done all of the following:
- 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;
- successfully completed a program of alcohol or drug abuse counseling if the judge determines that such counseling is appropriate; and
- proven to the judge that giving custodial or residential responsibilities to the perpetrator of domestic violence is in the best interests of the child; or
- The judge determines that there are “extraordinary circumstances,” such as evidence demonstrating that 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, exists.2
A perpetuator of domestic violence means someone who has been convicted of committing any of the following crimes against the child at issue in a custody or visitation proceeding, against you (the other parent of the child), or against any other adult or minor child living in the home:
- any felony level offense; or
- any of the following misdemeanor level offenses:
- assault in the third degree;
- reckless endangering in the second degree;
- reckless burning or exploding;
- unlawful imprisonment in the second degree;
- unlawful sexual conduct in the third degree;
- criminal contempt of a 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;
- child abuse in the third degree.3
1 13 Del. C. § 705A(a), (b)
2 13 Del. C. § 705A(c)
3 13 Del. C. § 703A(b)
Who can get custody or visitation? Can relatives or other adults get visitation?
Generally, at least one of the child’s parents is entitled to custody and/or visitation. Both parents have the right to request visitation, and judges try to grant this, unless it would harm the child’s physical health or emotional development.1
If a judge determines that the child is neglected, or if it is in the child’s best interest, then s/he may grant guardianship to another person or to the Department of Services for Children, Youth and their Families.2
In addition, a non-parent, usually a relative of the child, can ask to be appointed as a legal guardian and can seek custody as well if the child is being neglected.2 Even if a guardian is appointed, the parents still have the right to have contact with the child and also have financial responsibility for the child.3 The Department of Services for Children, Youth and their Families can also seek full custody if the child is being abused and is in danger.4
Also, any other adult can request visitation so long as s/he meets the following requirements:
- s/he has a substantial and positive prior relationship with the child; or
- s/he is a grandparent, aunt, uncle or adult sibling of the child.5
Through a guardian ad litem, children can also request visitation with a sibling (including half-siblings) or with other adults. To get visitation with an adult, the following must apply:
- The adult consents to visitation with the child and;
- The adult:
- Has a substantial and positive prior relationship with the child; or
- Is a grandparent, aunt, uncle or adult sibling of the child.5
A judge will decide all of this based on what s/he thinks is in the best interests of the child.
1 13 Del. C. § 728
2 13 Del. C. § 2330
3 13 Del. C. § 2331
4 13 Del. C. § 2512
5 13 Del. C. § 2410
I am the child's relative. Can I get custody of the child?
A non-parent can ask to be appointed as a legal guardian if the child is being neglected. The court must find that it is in the best interest of the child that he/she should have a guardian appointed.1 Being legal guardian is similar to having custody, but is not exactly the same thing since the parents still have some rights and responsibilities for the child.
A blood relative, foster parent or parent may also request permanent guardianship over a child in certain situations.2 This is more like establishing custody, but is legally different.
“Custody” in Delaware is for parents. Parents include birth parents, adoptive parents, and “de facto” parents, which means any person who has acted like a parent to the child, with the consent of the child’s actual parents.3
1 13 Del. C. § 2330
2 13 Del. C. § 2353
3 13 Del. C. § 8-201