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Legal Information: Delaware

Restraining Orders

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Updated: 
April 5, 2019

What is a lethal violence protective order?

A lethal violence protective order is an order issued by a Justice of the Peace Court or a Superior Court that keeps a person (the “respondent”) from doing any of the following with a firearm:

  • controlling;
  • owning;
  • buying;
  • having;
  • having access to; or
  • receiving.1

The purpose of a lethal violence protective order is to keep the respondent from hurting him/herself or others with a firearm.2

110 Del. Code § 7701(3)
2 10 Del. Code § 7701(6)

What protections can I get in a lethal violence protective order?

In either an emergency or a nonemergency lethal violence protective order, a judge can order that the respondent:

  • give up any firearms or ammunition s/he owns, has, or can access to law enforcement or another person (a “designee”);
  • submit to a search by law enforcement looking for firearms or ammunition; and
  • not live with anyone who owns, has, or has access to any firearms or ammunition.1

110 Del. Code § 7704(d)

Who can file for a lethal violence protective order?

You can file for a nonemergency lethal violence protective order if the respondent poses a danger of causing physical injury to himself/herself or others by controlling, owning, buying, having, having access to, or receiving a firearm. Additionally, to file for a nonemergency lethal violence protective order you must be:

  • the respondent’s “family member”; or
  • a law enforcement officer.1

Only a law enforcement officer can file for an emergency lethal violence protective order. You can read more about the difference between the two in What types of orders are there? How long do they last?

“Family members” include:

  • a current or former spouse;
  • someone with whom the respondent was “cohabitating” (living together as a couple, with or without a child in common);
  • a custodian;
  • a child;
  • someone with whom the respondent has or had a “substantive” dating relationship;
  • someone with whom the respondent has a child in common, even if they don’t live together;
  • someone related to by the respondent by blood or marriage who lives with the respondent together in one household; or
  • someone related to the respondent 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; or
    • child, stepchild, daughter-in-law, son-in-law.2

All of the relationships listed above include both blood relationships and relationships formed through adoption.2

1 10 Del. Code § 7701(4)
2 10 Del. Code §§ 1041(2); 901(12)

What types of orders are there? How long do they last?

There are two types of lethal violence protective orders: emergency lethal violence protective orders and nonemergency lethal violence protective orders.

Emergency lethal violence protective orders: An emergency lethal violence protective order must be requested by a law enforcement officer in a Justice of the Peace Court. An emergency order is issued ex parte. Ex parte means that the respondent is not notified beforehand and is not present at the hearing. A justice of the peace can issue an emergency lethal violence protective order when s/he finds that the respondent poses an immediate and present danger of causing physical injury to him/herself or others by owning, buying, or having access to a firearm. If a justice of the peace issues an emergency order, there must be a full hearing in Superior Court within 15 days. Emergency orders can be extended until the respondent can be served, but emergency lethal violence protective order can only last for up to 45 days.1

Nonemergency lethal violence protective orders: A law enforcement officer or the respondent’s family member can request a nonemergency lethal violence protective order in a Superior Court. A judge can issue a nonemergency lethal violence protective order after the respondent has notice of the case and the opportunity to participate in a court hearing. The judge must find that the respondent poses an immediate and present danger of causing physical injury to him/herself or others by owning, buying, or having access to a firearm. Nonemergency orders can last for up to one year.2

Note: The respondent can request a hearing to end a nonemergency lethal violence protective order once within the one-year period that the order is effective.3 The petitioner who filed for the order can also request to renew a nonemergency order before it expires. See Can I renew a lethal violence protective order? for more information.

1 10 Del. Code § 7703(a), (b), (f)
2 10 Del. Code § 7704(a), (b), (j)
3 10 Del. Code § 7705(a)