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Legal Information: Delaware

Restraining Orders

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Updated: 
April 5, 2019

What 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.1  

1 10 Del. C. § 1041(1),(2) 

What 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.1

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 years2 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.3

You may also file to extend your order.4  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?

1 10 Del. C. §§ 1043, 1044(a)
2 10 Del C. § 1045(b)
3 10 Del C. § 1045(b),(f)
4 10 Del C. § 1045(c)

What protections can I get in an order of protection from abuse?

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 (Note: The judge can order the police to search for and take the respondent’s firearms if you can describe: what type of gun s/he has; where it is located; and​ how s/he has used or threatened to use a gun against you or how you fear that s/he might);
    • attend counseling; and
    • not destroy, sell, or conceal joint property.1

    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.1

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

    1 10 Del.C. § 1045

    If the abuser lives in a different state, can I still get an order against him/her?

    When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.

    There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:

    1. The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
    2. One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
    3. If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.

    However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.

    You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.

    Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.