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Statutes: Delaware

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Statutes: Delaware

Updated: 
April 8, 2020

Current through ch. 236 of the 150th General Assembly (2019-2020). Please check to make sure there have not been any legislative changes since this time. You can find all of Delaware’s statutes listed on the Delaware.gov website.

Title 10. Courts and Judicial Procedures

Updated: 
April 8, 2020

Part 1. Organization, Powers, Jurisdiction and Operation of Courts

Updated: 
April 8, 2020

Chapter 9. THE FAMILY COURT OF THE STATE OF DELAWARE

Updated: 
April 8, 2020

Subchapter I. Organization, Administration and Operation

Updated: 
April 8, 2020

§ 901. Definitions

Updated: 
April 8, 2020

For the purpose of this chapter, unless the context indicates differently:

(1) “Abuse” or “abused child” means that a person:

a. Causes or inflicts sexual abuse on a child; or

b. Has care, custody or control of a child, and causes or inflicts:

1. Physical injury through unjustified force as defined in § 468 of Title 11;

2. Emotional abuse;

3. Torture;

4. Exploitation; or

5. Maltreatment or mistreatment.

(2) “Adult” means a person who has reached his or her eighteenth birthday.

(3) “Care, custody and control” or “those responsible for care, custody and control” shall mean a person or persons in a position of trust, authority, supervision or control over a child. It may include:

a. A parent, guardian, or custodian;

b. Other members of the child’s family or household, meaning persons living together permanently or temporarily without regard to whether they are related to each other and without regard to the length of time or continuity of such residence, and it may include persons who previously lived in the household such as paramours of a member of the child’s household;

c. Any person who, regardless of whether a member of the child’s household, is defined as family or relatives in this section or as an adult individual defined in § 351 of Title 31;

d. Persons temporarily responsible for the child’s well-being or care such as a health-care provider, aide, teacher, instructor, coach, sitter, day care or child care provider, or any other person having regular direct contact with children through affiliation with a school, church, or religious institution, health-care facility, athletic or charitable organization or any other organization whether such a person is compensated or acting as a volunteer; or

e. Any person who has assumed control of or responsibility for the child.

For the purpose of investigation of child abuse, dependency or neglect, the Department of Services for Children and Their Families (DSCYF) may investigate any allegation of child abuse, dependency or neglect committed by persons identified herein, but shall only be responsible for the investigation of intrafamilial and institutional child abuse, dependency or neglect. Where the DSCYF is not responsible for the investigation of such child abuse or neglect, it shall immediately refer such report to the appropriate police authorities or child protective services agencies within or without the State.

(4) “Child” means a person who has not reached his or her eighteenth birthday.

(5) “Court” means the Family Court of the State of Delaware, and “court” refers to other courts of the State.

(6) “Custodian” means any person who is charged by law with or who has assumed responsibility for a child’s care.

(7) “Delinquent child” means a child who commits an act which if committed by an adult would constitute a crime.

(8) “Dependency” or “dependent child” means that a person:

a. Is responsible for the care, custody, and/or control of the child; and

b. Does not have the ability and/or financial means to provide for the care of the child; and

1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health care, medical care or other care necessary for the child’s emotional, physical or mental health, or safety and general well-being; or

2. The child is living in the home of an “adult individual” who fails to meet the definition of “relative” in this section on an extended basis without an assessment by DSCYF, or its licensed agency; or

3. The child has been placed with a licensed agency which certifies it cannot complete a suitable adoption plan.

In making a finding of dependency under this section, consideration may be given to dependency, neglect, or abuse history of any party.

(9) “DSCYF” or “Department” means the Department of Services for Children, Youth and Their Families.

(10) “Emotional abuse” means threats to inflict undue physical or emotional harm, and/or chronic or recurring incidents of ridiculing, demeaning, making derogatory remarks or cursing.

(11) “Exploitation” means taking advantage of a child for unlawful or unjustifiable personal or sexual gain.

(12) “Family” means spouses; a couple cohabitating in a home in which there is a child of either or both; custodian and child; or any group of persons related by blood or marriage who are residing in 1 home under 1 head or where 1 is related to the other by any of the following degrees of relationship, both parties being residents of this State:

a. Mother;

b. Father;

c. Mother-in-law;

d. Father-in-law;

e. Brother;

f. Sister;

g. Brother-in-law;

h. Sister-in-law;

i. Son;

j. Daughter;

k. Son-in-law;

l. Daughter-in-law;

m. Grandfather;

n. Grandmother;

o. Grandson;

p. Granddaughter;

q. Stepfather;

r. Stepmother;

s. Stepson;

t. Stepdaughter.

The relationships referred to in this definition include blood relationships without regard to legitimacy and relationships by adoption.

(13) “Institutional child abuse or neglect” is child abuse or neglect which has occurred to a child in the DSCYF’s custody and/or placed in a facility, center or home operated, contracted or licensed by the DSCYF.

(14) “Intrafamilial child abuse or neglect” is any child abuse or neglect committed by:

a. A parent, guardian, or custodian;

b. Other members of the child’s family or household, meaning persons living together permanently or temporarily without regard to whether they are related to each other and without regard to the length of time or continuity of such residence, and it may include persons who previously lived in the household such as paramours of a member of the child’s household;

c. Any person who, regardless of whether a member of the child’s household, is defined as family or a relative in this section or as an adult individual as defined in § 351 of Title 31.

(15) “Law” means the common law and statutes of this State, the laws of any subdivision thereof, and regulations promulgated by a governmental agency having the force and effect of law.

(16) “Mistreatment” or “maltreatment” are behaviors that inflict unnecessary or unjustifiable pain or suffering on a child without causing physical injury. Behaviors included will consist of actions and omissions, ones that are intentional and ones that are unintentional.

(17) “Necessary care” means a type and degree of personalized attention that will tend to advance a child’s physical, mental, emotional, moral and general well-being.

(18) “Neglect” or “neglected child” means that a person:

a. Is responsible for the care, custody, and/or control of the child; and

b. Has the ability and financial means to provide for the care of the child; and

1. Fails to provide necessary care with regard to: food, clothing, shelter, education, health, medical or other care necessary for the child’s emotional, physical, or mental health, or safety and general well-being; or

2. Chronically and severely abuses alcohol or a controlled substance, is not active in treatment for such abuse, and the abuse threatens the child’s ability to receive care necessary for that child’s safety and general well-being; or

3. Fails to provide necessary supervision appropriate for a child when the child is unable to care for that child’s own basic needs or safety, after considering such factors as the child’s age, mental ability, physical condition, the length of the caretaker’s absence, and the context of the child’s environment.

In making a finding of neglect under this section, consideration may be given to dependency, neglect, or abuse history of any party.

(19) “Nonamenable child” means any child who is not amenable to the rehabilitative processes of the Family Court.

(20) “Relative” means any person within the immediate family, and any grandparent, uncle, aunt, first cousin, great-grandparent, grandaunt or granduncle, half brother or half sister.

(21) “Sexual abuse” means any act against a child that is described as a sex offense in § 761(h) of Title 11.

(22) “Truancy” or “truant” shall refer to a pupil enrolled in grades kindergarten through 12 inclusive who has been absent from school without valid excuse, as defined in rules and regulations of the district board of education of the school district in which the pupil is or should be enrolled pursuant to the provisions of Title 14, or in the case of a pupil enrolled in a charter school, by the board of directors of the charter school, with the approval of the State Board of Education, for more than 3 days or the equivalent thereof during a given school year.

§ 902. Purpose; construction

Updated: 
April 8, 2020

(a) In the firm belief that compliance with the law by the individual and preservation of the family as a unit are fundamental to the maintenance of a stable, democratic society, the General Assembly intends by enactment of this chapter that 1 court shall have original statewide civil and criminal jurisdiction over family and child matters and offenses as set forth herein. The court shall endeavor to provide for each person coming under its jurisdiction such control, care, and treatment as will best serve the interests of the public, the family, and the offender, to the end that the home will, if possible, remain unbroken and the family members will recognize and discharge their legal and moral responsibilities to the public and to one another.

(b) This chapter shall be liberally construed that these purposes may be realized.

§ 903. Court of record; name; subtitles

Updated: 
April 8, 2020

This Court shall be a court of record and shall be known as “the Family Court of the State of Delaware.” It may be briefly cited as “the Family Court.” Its offices, forms, and processes in New Castle County shall be subtitled “for New Castle County,” in Kent County “for Kent County,” and in Sussex County “for Sussex County.”

Subchapter II. Jurisdiction and Powers

Updated: 
April 8, 2020

§ 921. Exclusive original civil jurisdiction

Updated: 
April 8, 2020

The Court shall have exclusive original civil jurisdiction in all proceedings in this State concerning:

(1) Any child found in the State who is alleged to be dependent, neglected, abused or delinquent except as otherwise provided in this chapter;

(2)a. Any child charged in this State with delinquency by having committed any act or violation of any laws of this State or any subdivision thereof, except murder in the first or second degree, rape in the first degree, rape in the second degree, unlawful sexual intercourse in the first degree, assault in the first degree, robbery in the first degree, (where such offense involves the display of what appears to be a deadly weapon or involves the representation by word or conduct that the person was in possession or control of a deadly weapon or involves the infliction of serious physical injury upon any person who was not a participant in the crime, and where the child has previously been adjudicated delinquent of 1 or more offenses which would constitute a felony were the child charged under the laws of this State), kidnapping in the first degree, or any attempt to commit said crimes; any child 16 years of age or older charged with violation of Title 21, except as provided in paragraph (16) of this section or § 927 of this title; or any other crime over which the General Assembly has granted or may grant jurisdiction to another court.

b. Any child charged in this State with delinquency by having committed, after reaching his or her sixteenth birthday, murder in the second degree, manslaughter, robbery in the second degree, attempted murder (first or second degree), home invasion, burglary in the first degree or arson in the first degree; provided, however, that such child shall, after his or her first appearance in the Court, be given a hearing as soon as practicable to determine his or her amenability to the processes of the Court. The Court shall give immediate notice of such hearing in writing to the Department of Justice and to the child’s custodian, near relative, attorney or other interested person, if known, and then the Court shall proceed in accordance with the provisions of § 1010 of this title. The Attorney General or 1 of his or her deputies shall be present at any such hearing.

Superior Court shall retain jurisdiction for purposes of sentencing and all other postconviction proceedings if any judge or jury shall find the child guilty of a lesser included crime following a trial or plea of guilty in any prosecution for 1 of the crimes specifically defined in this subsection or for any crime where the child has been transferred to the Superior Court by the Family Court pursuant to § 1010 of this title;

(3) Enforcement of any law of this State or any subdivision or any regulation promulgated by a governmental agency, or any petitions or actions, for the education, protection, control, visitation, possession, custody, care, or support of children; provided however, that the Justice of the Peace Court shall have original and exclusive jurisdiction over truancy matters as set forth in Chapter 27 of Title 14, and the Family Court shall assume exclusive jurisdiction over those matters transferred or appealed from the Justice of the Peace Court in accordance with §§ 2731 and 2732 of Title 14;

(4) Judicial consent to employment, medical care, or enlistment in the armed services of a child when such consent is required by law;

(5) Actions to terminate compulsory school attendance by a child who has not attained his or her sixteenth birthday;

(6) Actions and proceedings wherein:

a. A member of a family alleges that some other member of the family is by their conduct imperiling any family relationship and petitions the Court for appropriate relief.

b. The Division of Child Protective Services or a licensed youth service agency alleges that the conduct of a child, or of the parents or custodians, or members of a family, imperils any family relationship or imperils the morals, health, maintenance or care of a child and petitions the Court for appropriate relief; provided, however, that where a parent, to ensure the safety or welfare of the child, fails to cause the child to attend school, such parent has not imperiled the family relationship, nor has imperiled the morals, health, maintenance or care of the child.

c. In such actions and proceedings the Court may make such adjudications and dispositions as appear appropriate;

(7) Liability of relatives to support a poor person under § 501 of Title 13, and §§ 2830 and 2831 of Title 31;

(8) Execution of forms consenting to marriages under § 123 of Title 13;

(9) Reciprocal support proceedings by or against nonresidents under Chapter 6 of Title 13;

(10) Any child in the State under the age of 16 years charged with delinquency by having committed a violation of any provision of Title 21; and any child in the State 16 years of age or older charged with having violated any of the provisions specified in § 927 of this title;

a. The court having jurisdiction of violations of Title 21, not covered above, shall not proceed, except to continue the case, without the presence of a custodian, near relative, attorney or other interested person.

b. Any judge of a court of proper jurisdiction, if the judge determines the existence of circumstances beyond the violation of Title 21, which indicates that the child 16 or 17 years old may be dependent, neglected or delinquent, shall, in addition to hearing the violation of Title 21, cause a complaint to be filed charging dependency, neglect or delinquency.

c. Any sentence imposed against any child 16 or 17 years old by a court having jurisdiction of the offenses in Title 21, except those offenses within the jurisdiction of the Family Court, shall be limited to a fine and costs. No court shall detain a child 16 years of age or older in a jail or adult correctional institution or jail pending trial on any violation of Title 21. Any child pending trial shall, in the default of bail, be detained only in a juvenile correctional facility.

d. Any child 16 or 17 years old who fails or refuses to pay a fine imposed by a court having jurisdiction of the offenses in Title 21, except those offenses within the jurisdiction of the Family Court, and after exhaustion of all other legal remedies for collection provided by the State, shall be charged with delinquency and referred to the Family Court;

(11) All proceedings relative to divorce and annulment under Chapter 15 of Title 13;

(12) Actions concerning the education of the handicapped and the enforcement of rights guaranteed by Chapter 31 of Title 14;

(13) Actions concerning appeals from administrative decisions of the Division of Child Support Services, in accordance with the Delaware Administrative Procedures Act, Chapter 101 of Title 29;

(14) Petitions by persons formerly married to each other seeking an interest in or disposition of jointly titled real property, where such property was not disposed of (i) by agreement of the parties, or (ii) by virtue of ancillary proceedings pursuant to § 1513 of Title 13. In dividing said property the Family Court shall apply equitable principles unless there is a written agreement signed by the parties regarding the disposition of said property. Unless there is a written agreement signed by the parties the Family Court shall not consider the factors enumerated in § 1513 of Title 13. This paragraph shall apply to all actions filed after July 11, 1989;

(15) Proceedings relative to parental notice of abortion under subchapter VIII, Chapter 17 of Title 24;

(16) Notwithstanding any provision of this title to the contrary, charges of delinquency based upon an alleged violation of any provision of Title 11, 16 or 21 which would otherwise be within the original civil jurisdiction of Family Court shall instead be within the original criminal jurisdiction of Superior Court if said charges may be joined properly with a felony pending against the same child in Superior Court, as determined pursuant to the relevant rules of the Superior Court;

(17) Actions concerning child support liens pursuant to § 519 of Title 13;

(18) Child Protection Registry proceedings pursuant to Chapter 9 of Title 16;

(19) Proceedings for a change of name pursuant to § 5901(b) of this title.

§ 922. Exclusive and concurrent original criminal jurisdiction

Updated: 
April 8, 2020

(a) Except as provided in subsections (b), (c), (d) and (e) of this section, the Court shall have exclusive original criminal jurisdiction in all proceedings in this State concerning the following, the enumeration of which shall not be construed to exclude jurisdiction otherwise conferred upon the Court:

(1) Ill treatment, abuse, abandonment or contributing to the delinquency of a child, or any misdemeanor committed against a child;

(2) Offenses, except felonies, committed:

a. By 1 member against another member of the family;

b. Between former spouses;

c. Persons cohabitating together who are holding themselves out as a couple, with or without a child in common; or

d. Persons living separate and apart with a child in common.

(3) Offenses, except felonies, in which the defendant is a member of a family and the complainant is a peace officer and the criminal act complained of was committed during a family altercation;

(4) Misdemeanor criminal nonsupport and misdemeanor aggravated criminal nonsupport under § 1113 of Title 11;

(5) Illegitimacy proceedings under 13 Del. C. §§ 1321-1335 of Title 13 [repealed];

(6) Children of immoral parents under § 706 of Title 13 [repealed];

(7) Aiding a child who escapes from the Department of Services for Children, Youth and Their Families under § 5311 of Title 31;

(8) Cruel treatment and wrongful disposition or employment of children under § 1102 of Title 11;

(9) Interference with custody of a child under § 785 of Title 11;

(10) Placing a resident or bringing a nonresident dependent child into Delaware without consent of the Department of Services for Children, Youth and Their Families under §§ 307, 351 of Title 31, except as provided in the Interstate Compact for Juveniles;

(11) Sale or delivery of an alcoholic beverage to a child under § 904 of Title 4;

(12) Permitting a child to remain where alcoholic beverages are sold under § 1106 of Title 11;

(13) Permitting a child to be present where gambling activity is maintained or conducted under § 1106 of Title 11;

(14) Sale of weapons to a child under § 903 of Title 24;

(15) Sexual assault on a child under § 761 of Title 11;

(16) Intra-family offenses against the person under §§ 601, 602, 611 of Title 11;

(17) Incest under § 766 of Title 11;

(18) Reciprocal support proceedings against or on behalf of nonresidents under Chapter 6 of Title 13, where appropriate;

(19) Unlawful sexual contact in the third degree against a child under § 767 of Title 11;

(20) Violation of a protective order under § 1271A of Title 11;

(21) Offenses involving the reporting of new hires under § 1156A of Title 30.

(b) The Court shall have concurrent criminal jurisdiction with the Justice of the Peace Court in all proceedings concerning alleged curfew violations under former §§ 39-14 through 39-16 of the Wilmington Code [see now §§ 36-97 and 36-98 of the Wilmington Code].

(c) The Court shall have concurrent criminal jurisdiction with the Justice of the Peace Courts in all proceedings concerning alleged curfew violations pursuant to any municipal ordinance.

(d) Notwithstanding the provisions of paragraphs (a)(1)-(a)(3), (a)(17) and (a)(20) of this section, if offenses or criminal cases within the exclusive original jurisdiction of Family Court otherwise may be joined properly with a felony within the jurisdiction of Superior Court, such offenses or criminal cases shall be within the jurisdiction of Superior Court.

(e) Notwithstanding the provisions of paragraphs (a)(1)-(a)(3), (a)(17) and (a)(20) of this section, if offenses or criminal cases within the exclusive jurisdiction of the Family Court and in which the defendant is an adult otherwise may be joined properly with a criminal case or other offense that is within the jurisdiction of the Court of Common Pleas, such offenses or criminal cases shall be within the jurisdiction of the Court of Common Pleas, except that this subsection shall not apply to offenses or criminal cases involving felonies.

§ 924. Concurrent original civil jurisdiction

Updated: 
April 8, 2020

The Court shall have concurrent jurisdiction to hear writs of habeas corpus or other proceedings brought for the purpose of gaining or retaining the custody of a child or for the purpose of determining whether a child is being unlawfully detained by any person, agency, or institution.

§ 925. General jurisdiction

Updated: 
April 8, 2020

The Court and each Judge shall have authority to:

(1) Conserve the peace;

(2) Commit or bind, with or without surety, as a committing magistrate, for appearance at the proper court, persons charged with having violated the law together with material witnesses and impose conditions as set forth in § 1021 of this title;

(3) Determine and punish civil and criminal contempt;

(4) Issue process for the exercise of its jurisdiction and require service thereof under pain of contempt;

(5) Receive, hear, and make recommendations concerning matters assigned to it by any state or municipal court. Such recommendations shall be certified to the assigning court;

(6) Transfer for good cause any proceeding from the Court in one county to the Court in any other county;

(7) Enter, proceed on, and satisfy in the name of the State any forfeited bond, provided however, that the proceeds of any bond forfeited for a party’s failure to appear in any civil or criminal child support proceeding shall be paid over to the payee of the child support order and applied to the child support account;

(8) Sit separately or jointly with any or all other Judges;

(9) Hear, determine, render, and enforce judgment in any proceeding before the Court;

(10) Assess fees, costs, and fines; or remit them in proper cases;

(11) After due notice to interested parties, review, revise, or revoke any prior order of the Court with reference to the custody, control, care, support or visitation of any person, or in any proceeding where failure to do so would result in manifest injustice;

(12) Punish for contempt any person who, in order to evade the Court’s jurisdiction, removed from the State any child concerning whose possession, custody, or alleged unlawful detention, a writ of habeas corpus or other proceeding has been filed;

(13) Administer oaths and take acknowledgments;

(14) Appoint guardians ad litem;

(15) In any civil action where jurisdiction is otherwise conferred upon the Family Court, it may enter such orders against any party to the action as the principles of equity appear to require.

(16) To appoint guardians of the person over minors under 18 years of age;

(17) Appoint attorneys and/or Court-Appointed Special Advocates to serve as guardians ad litem to represent the best interests of a child in any child welfare proceeding;

(18) Determine and enter disposition for alleged violations of probation by juveniles in accordance with the procedures established at § 4334 of Title 11. The term Commissioner or any probation counselor as used in § 4334 of Title 11 shall include the appropriate member of the Department of Services for Children, Youth and Their Families;

(19) Decide appeals from administrative hearings of substantiated cases of abuse or neglect made pursuant to 16 Del. C. § 902A(d), and to decide appeals made pursuant to 16 Del. C. § 902A(g) for orders of administrative expungement of substantiation for the purpose of no longer reporting an individual’s name pursuant to 11 Del. C. § 8563(b);

(20) In a civil proceeding involving the welfare of a minor child or the safety of a party, require any party or any other resident of the party’s household or other person with regular direct access to the child, to submit to a state and federal background check.

a. The background check shall consist of:

1. A report of the individual’s entire criminal history record from the Delaware State Police or a statement from the Delaware State Police that the State Police Central Repository contains no such information relating to that person.

2. A report of the individual’s entire federal criminal history record pursuant to the Federal Bureau of Investigation appropriation of Title II of Public Law 92-544. The Division of State Police shall be the intermediary for the purposes of this paragraph.

3. A certification from the Department of Services for Children, Youth and Their Families as to whether the individual is named in the Central Register as the perpetrator of a report of child abuse.

b. Costs associated with obtaining said criminal history information and child abuse registry information shall be borne by the State.

c. The court at any stage in the proceeding may take judicial notice of any report, record or certification described in this paragraph (20).

Subchapter III. Procedure

Updated: 
April 8, 2020

Part C. Adult Proceedings

Updated: 
April 8, 2020

§ 1031. Disposition

Updated: 
April 8, 2020

In any civil action within the jurisdiction of this Court and upon the petition of a person properly before it, the Court may:

(1) Award the custody or possession of a child to any party to the action, establish visitation rights, and, in a proper case, order payment of support for the child;

(2) Order a child’s custodian to exercise such care and perform such acts as may be reasonably necessary to insure that the child shall obey the law and receive necessary care;

(3) Consent to a child’s employment, or to enlistment into the armed forces, or to receiving medical care as may be required by law;

(4) Order a person under a duty to do so to pay through the Court or the Division of Child Support Services or directly to the spouse/ex-spouse or to the custodian of the child reasonable support for the spouse and/or child. And in such cases as the Court may deem appropriate enter an order of final judgment as to any past due support which judgment shall not be subject to subsequent modification by the Court;

(5) In an action to prevent a family member from conduct that imperils the family relationship, order the defendant to desist from the acts complained of, or order individual or family counseling with the court staff or with any appropriate counseling agency, or enter such other order as may be required;

(6) May commit an adult with a mental disorder or incapacity, or intellectual disability for observation or treatment to any appropriate institution within the State, or to any institution without the State which will consent to receive the person.

(7) Repealed.

Part D. Protection From Abuse Proceedings.

Updated: 
April 8, 2020

§ 1041. Definitions

Updated: 
April 8, 2020

The following terms shall have the following meanings:

(1) “Abuse” means conduct which constitutes the following:

a. Intentionally or recklessly causing or attempting to cause physical injury or a sexual offense, as defined in § 761 of Title 11;

b. Intentionally or recklessly placing or attempting to place another person in reasonable apprehension of physical injury or sexual offense to such person or another;

c. Intentionally or recklessly damaging, destroying or taking the tangible property of another person;

d. Engaging in a course of alarming or distressing conduct in a manner which is likely to cause fear or emotional distress or to provoke a violent or disorderly response;

e. Trespassing on or in property of another person, or on or in property from which the trespasser has been excluded by court order;

f. Child abuse, as defined in Chapter 9 of Title 16;

g. Unlawful imprisonment, kidnapping, interference with custody and coercion, as defined in Title 11; or

h. Any other conduct which a reasonable person under the circumstances would find threatening or harmful.

(2) “Domestic violence” means abuse perpetrated by 1 member against another member of the following protected classes:

a. Family, as that term is defined in § 901(12) of this title, regardless, however, of state of residence of the parties, or whether parental rights have been terminated; or

b. Former spouses; persons cohabitating together who are holding themselves out as a couple, with or without a child in common; persons living separate and apart with a child in common; or persons in a current or former substantive dating relationship. For purposes of this paragraph, neither a casual acquaintanceship nor ordinary fraternization between 2 individuals in business or social contexts shall be deemed to constitute a substantive dating relationship. Factors to consider for a substantive dating relationship may include the length of the relationship, or the type of relationship, or the frequency of interaction between the parties.

(3) “Petitioner” means:

a. A person who is a member of a protected class and files a petition alleging domestic violence against such person or against such person’s minor child or an adult who is impaired;

b. The Division of Child Protective Services acting in the interest of a minor child and files a petition alleging domestic violence; or

c. The Division of Adult Protective Services acting in the interest of an adult who is impaired and files a petition alleging domestic violence.

(4) “Protective order” means an order issued by the court to a respondent restraining said respondent from committing domestic violence against the petitioner, or a person in whose interest a petition is brought, and may include such measures as are necessary in order to prevent domestic violence.

(5) “Respondent” means the person alleged in the petition to have committed the domestic violence.

§ 1042. Commencement of action; procedure

Updated: 
April 8, 2020

(a) A request for relief from domestic violence is initiated by the filing of a verified petition by the petitioner, or by the Division of Child Protective Services or the Division of Adult Protective Services, asking the court to issue a protective order against the respondent.

(b) The petitioner need not reveal an address, place of residence, school or employment or the address or place where the petitioner’s child or children receive child care or attend school, if it is alleged that disclosure of this information would endanger the petitioner. However, the Court may require the petitioner to reveal in confidence a current address or place of residence for the purpose of determining jurisdiction or venue.

(c) A petition for a protective order may be filed in any county where the petitioner resides, the respondent resides, the alleged domestic violence occurred, or where the petitioner is temporarily located away from the residence to avoid domestic violence.

(d) Forms and instructions for initiating a proceeding under this part shall be available from the Clerk of the Court. Assistance from court staff or court volunteers shall be available during business hours to assist the parties with all papers which may be filed in connection with a proceeding under this part. Any assistance or information provided by court staff or court volunteers under this part does not constitute the practice of law.

(e) All forms and instructions developed for use by the parties to a proceeding under this part shall contain simple, understandable language.

(f) The Court may examine a child outside the presence of the parties for the purpose of obtaining the child’s testimony and ascertaining the truth of a matter asserted by a party to the proceeding. The Court may permit counsel to be present at the examination, and to also examine the child. The Court may permit a party who is not present for the examination to submit questions of fact for the Court to use in ascertaining the testimony of the child. The Court shall cause a record of the examination to be made and it shall be made a part of the record in the case.

§ 1043. Ex parte orders and emergency hearings

Updated: 
April 8, 2020

(a) A petitioner may request an emergency protective order by filing an affidavit or verified pleading alleging that there is an immediate and present danger of domestic violence to the petitioner or to a minor child of the petitioner or to an adult who is impaired.

(b) An emergency protective order may be issued on an ex parte basis, that is, without notice to the respondent, where the petitioner certifies in writing the efforts, if any, which have been made to give notice to the respondent or the reasons supporting the claim that notice should not be required.

(c) An emergency hearing held on an ex parte basis shall be held the same day that the petition is filed or the next day that the Court is in session. All other emergency hearings shall be scheduled for an expedited hearing within 15 calendar days after the petition is filed.

(d) In any case in which an ex parte protective order has been issued, a full hearing shall be held within 15 days. The Court may extend an ex parte order as needed, but not to exceed 30 days, to effectuate service of the order or where necessary to continue protection.

(e) If the Court finds by a preponderance of the evidence that the alleged domestic violence has occurred, or if the respondent consents to entry of a protective order, the Court shall grant any appropriate relief, including, but not limited to, the relief set forth in § 1045 of this title.

(f) In those cases where the respondent is not present for the hearing, or where the hearing is held ex parte, any protective order issued shall be served immediately upon the respondent, in accordance with § 1065 of this title. A certified copy of the order shall also be given to the petitioner after the hearing, before leaving the courthouse. If the order recites that the respondent appeared in person before the Court, the necessity for further service is waived and proof of service of the order is not necessary; in those cases, the respondent shall be given a copy of the order before leaving the courthouse.

§ 1044. Nonemergency hearings

Updated: 
April 8, 2020

(a) Upon receipt of a petition for a protective order, the Court shall order a hearing within 30 days.
(b) If the Court finds by a preponderance of the evidence that the alleged domestic violence has occurred, or if the respondent consents to entry of a protective order, the Court shall grant any appropriate relief, including, but not limited to, the relief set forth in § 1045 of this title.
(c) Service of the protective order, as well as provision of copies to the parties, shall take place in accordance with § 1043(f) of this title.

§ 1045. Relief available; duration of orders, modification and termination

Updated: 
April 8, 2020

(a) After consideration of a petition for a protective order, the Court may grant relief as follows:
(1) Restrain the respondent from committing acts of domestic violence, as defined in § 1041 of this title;
(2) Restrain the respondent from contacting or attempting to contact the petitioner;
(3) Grant exclusive possession of the residence or household to the petitioner or other resident, regardless of in whose name the residence is titled or leased. Such relief shall not affect title to any real property;
(4) Order that the petitioner be given temporary possession of specified personal property solely or jointly owned by respondent or petitioner, including but not limited to, motor vehicles, checkbooks, keys and other personal effects;
(5) Grant temporary custody of the children of the parties to the petitioner or to another family member. Either party may request visitation at any time during the proceeding. The Court may provide for visitation by separate interim visitation order pursuant to Title 13, which order shall be binding upon and enforceable against both parties. Such interim visitation order may include third-party supervision of any visitation, if necessary, in accordance with Chapters 7 and 19 of Title 13;
(6) Order the respondent to pay support for the petitioner and/or for the parties’ children, in accordance with Chapter 5 of Title 13, including temporary housing costs;
(7) Order the respondent to pay to the petitioner or any other family member monetary compensation for losses suffered as a direct result of domestic violence committed by the respondent, including medical, dental and counseling expenses, loss of earnings or other support, cost of repair or replacement of real or personal property damaged or taken, moving or other travel expenses and litigation costs, including attorney’s fees;
(8) Order the respondent to temporarily relinquish to the sheriff, constable or to a police officer the respondent’s firearms and to refrain from purchasing or receiving additional firearms for the duration of the order;
(9) Prohibit the respondent from transferring, encumbering, concealing or in any way disposing of specified property owned or leased by parties;
(10) Order the respondent, petitioner and other protected class members, individually and/or as a group, to participate in treatment or counseling programs;
(11) Issue an order directing any law-enforcement agency to forthwith search for and seize firearms of the respondent upon a showing by the petitioner that the respondent has possession of a firearm, and
a. Petitioner can describe, with sufficient particularity, both the type and location of the firearm or firearms; and
b. Respondent has used or threatened to use a firearm against the petitioner, or the petitioner expresses a fear that the respondent may use a firearm against them;
(12) Grant any other reasonable relief necessary or appropriate to prevent or reduce the likelihood of future domestic violence.
(b) Relief granted under this section shall be effective for a fixed period of time not to exceed 1 year, except that relief granted under paragraphs (a)(1) and (a)(2) of this section may be entered for a fixed period of time not to exceed 2 years, unless a longer period of time is ordered pursuant to subsection (c) or (f) of this section.
(c) An order issued under this part may be extended, or terms of the order modified, upon motion of either party. Hearings on such motions shall be scheduled within 30 days after proof of service on the respondent is filed. Such motions may be heard on an emergency basis if filed in accordance with § 1043 of this title. Orders may be extended only after the Court finds by a preponderance of the evidence that domestic violence has occurred since the entry of the order, a violation of the order has occurred, if the respondent consents to the extension of the order or for good cause shown.
(d) Only the Court shall modify an order issued under this part and the reconciliation of the parties shall have no effect on the validity of any of the provisions of such an order. The protective order may be modified or rescinded during the term of the order upon motion, after notice to all parties affected and a hearing.
(e) Any subsequent support, custody or visitation order entered by the Court in any proceeding brought pursuant to Title 13 shall supersede any relevant provisions regarding those issues which are included in a protection from abuse order, without the need to modify such protective order.
(f) Notwithstanding any provision of this section to the contrary, upon a finding that aggravating circumstances exist, the Court may grant no contact relief pursuant to paragraphs (a)(1) and (a)(2) of this section for as long as reasonably necessary to prevent further acts of abuse or domestic violence, up to and including the entry of a permanent order of the Court. An order entered pursuant to this subsection may only be modified or amended upon motion of a party for good cause shown. For purposes of this subsection, aggravating circumstances shall mean physical injury or serious physical injury to the petitioner caused by the respondent; the use of a deadly weapon or dangerous instrument against the petitioner by the respondent; a history of repeated violations of prior protective orders by the respondent; prior convictions for crimes against the petitioner by the respondent; the exposure of any member of the petitioner’s family or household to physical injury or serious physical injury by the respondent; or any other acts of abuse which the Court believes constitute an immediate and ongoing danger to the petitioner or any member of the petitioner’s family or household.

§ 1046. Enforcement; sanctions for violation of order

Updated: 
April 8, 2020

(a) The Court may direct that pleadings and orders filed or issued under this part be served upon the respondent by the Sheriff or the Sheriff’s deputy or by any person authorized by statute or court rule to serve process.

(b) A copy of a protective order granted under this part shall be entered into the Delaware Justice Information System by the Court on or before the next business day. Entry into the Delaware Justice Information System constitutes notice to all law-enforcement agencies of the existence of the order. The order is fully enforceable in any county of the State.

(c) A law enforcement officer shall arrest, with or without a warrant, any individual whom the officer has probable cause to believe has violated a protective order issued under this part or a valid foreign protection order under Part E of this subchapter and who has notice or knowledge of the protective order. Presentation of a protective order that identifies both the protected person and the respondent and, on its face, is currently in effect constitutes probable cause to believe that a protective order exists. The protective order may be either in tangible form or stored in DELJIS or other electronic medium if it is retrievable in perceivable form. Probable cause for arrest may be established by a good faith reliance on information contained in DELJIS. If a protective order is not presented, the law enforcement officer may consider other information in determining whether there is probable cause to believe that a protective order exists.

(d) If a law enforcement officer determines that an otherwise valid protective order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent, and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.

(e) The individual arrested shall be taken immediately before the Family Court. If the Family Court is not in session, the arrested person shall be taken before the nearest justice of the peace. In determining the amount of any bail, the justice of the peace or judicial officer shall take into consideration whether the defendant has previously violated a protective order.

(f) A law enforcement officer is immune from civil and criminal liability for an act or omission arising out of the enforcement of a protective order or the detention or arrest of an alleged violator of a protective order if the act or omission was done in a good faith effort to comply with this part or in good faith reliance on information contained in DELJIS.

(g) The provisions of this section apply to the enforcement of foreign protection orders under Part E of this subchapter.

(h) All protective orders issued under this part shall state that violations may result in:

(1) A finding of contempt;

(2) Criminal prosecution; and

(3) Imprisonment or fine or both.

(i) It shall be unlawful for a respondent to knowingly violate a protective order. Violations shall be punishable as a class A misdemeanor. Nothing in this subsection shall preclude the filing of a civil contempt petition by the petitioner for violations of a protective order issued under this part.

§ 1047. Nonpreclusion of remedies

Updated: 
April 8, 2020

Nothing in this part shall preclude a petitioner or law enforcement officer from filing criminal charges when probable cause exists.

§ 1048. Jurisdiction

Updated: 
April 8, 2020

The Family Court shall have jurisdiction of proceedings under this part.

Part E. Interstate Enforcement of Domestic Violence Protection Orders

Updated: 
April 8, 2020

§ 1049. Title

Updated: 
April 8, 2020

This part may be cited as the Uniform Interstate Enforcement of Domestic Violence Protection Orders Act.

§ 1049A. Definitions

Updated: 
April 8, 2020

In this part:

(1) “Foreign protection order” means a protection order issued by a tribunal of another state.

(2) “Issuing state” means the state whose tribunal issues a protection order.

(3) “Mutual foreign protection order” means a foreign protection order that includes provisions in favor of both protected individuals seeking enforcement of the order and the respondents.

(4) “Protected individual” means an individual protected by a protection order.

(5) “Protection order” means an injunction or other order issued by a tribunal under the domestic violence or family violence laws of the issuing state to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to another individual. The term includes an injunction or other order issued under the antistalking laws of the issuing state.

(6) “Respondent” means the individual against whom enforcement of a protection order is sought.

(7) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders.

(8) “Tribunal” means a court, agency or other entity authorized by law to issue or modify a protection order.

(9) “Court” means the Family Court of the State of Delaware.

§ 1049B. Judicial enforcement of order

Updated: 
April 8, 2020

(a) A person authorized by the law of this State to seek enforcement of a protection order may seek enforcement of a valid foreign protection order in the Court. The Court shall enforce the terms of the order, including terms that provide relief that the Court would lack power to provide but for this section. The Court shall enforce the order whether the order was obtained by independent action or in another proceeding if it is an order issued in response to a complaint, petition or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the Court shall follow the procedures of this State for the enforcement of protection orders.

(b) The Court may not enforce a foreign protection order issued by the tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.

(c) The Court shall enforce the provisions of a valid foreign protection order which govern custody and visitation if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state.

(d) A foreign protection order is valid if it:

(1) Identifies the protected individual and the respondent;

(2) Is currently in effect;

(3) Was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and

(4) Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order, or in the case of an order ex parte, the respondent was given notice and had an opportunity to be heard within a reasonable time after the order was issued, consistent with the rights of the respondent to due process.

(e) A foreign protection order valid on its face is prima facie evidence of its validity.

(f) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.

(g) The Court may enforce provisions of a mutual foreign protection order which favor a respondent only if:

(1) The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and

(2) The tribunal of the issuing state made specific findings in favor of the respondent.

§ 1049C. Nonjudicial enforcement of order

Updated: 
April 8, 2020

(a) Any individual may register a foreign protection order in this State. To register a foreign protection order an individual shall present a certified copy of the order to the Court.

(b) Upon receipt of a foreign protection order, the Court shall register the order in accordance with this section. After the order is registered, the Court shall furnish to the individual registering the order a certified copy of the registered order.

(c) The Court shall register an order upon presentation of a copy of a protection order which has been certified by the issuing State. A registered foreign protection order that is inaccurate or is not currently in effect must be corrected or removed from the registry in accordance with the law of this State.

(d) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that to the best of the protected individual’s knowledge, the order is currently in effect.

(e) A foreign protection order registered under this part may be entered in any existing state or federal registry of protection orders in accordance with applicable law.

(f) A fee may not be charged for the registration of a foreign protection order.

§ 1049D. Registration of order

Updated: 
April 8, 2020

(a) Any individual may register a foreign protection order in this State. To register a foreign protection order an individual shall present a certified copy of the order to the Court.

(b) Upon receipt of a foreign protection order, the Court shall register the order in accordance with this section. After the order is registered, the Court shall furnish to the individual registering the order a certified copy of the registered order.

(c) The Court shall register an order upon presentation of a copy of a protection order which has been certified by the issuing State. A registered foreign protection order that is inaccurate or is not currently in effect must be corrected or removed from the registry in accordance with the law of this State.

(d) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that to the best of the protected individual’s knowledge, the order is currently in effect.

(e) A foreign protection order registered under this part may be entered in any existing state or federal registry of protection orders in accordance with applicable law.

(f) A fee may not be charged for the registration of a foreign protection order.

§ 1049E. Immunity

Updated: 
April 8, 2020

This State or a local governmental agency or a law enforcement officer, prosecuting attorney, clerk of court or any state or local governmental official acting in an official capacity is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with this part.


§ 1049F. Other remedies

Updated: 
April 8, 2020

A protected individual who pursues remedies under this part is not precluded from pursuing other legal or equitable remedies against the respondent.


Part F. Uniform Recognition and Enforcement of Canadian Domestic-Violence Protection Orders Act

Updated: 
April 8, 2020

§ 1049H. Definitions

Updated: 
April 8, 2020

As used in this part:

(1) “Canadian domestic-violence protection order” means a judgment or part of a judgment or order issued in a civil proceeding by a court of Canada under law of the issuing jurisdiction which relates to domestic violence and prohibits a respondent from doing 1 or more of the following:

a. Being in physical proximity to a protected individual or following a protected individual.

b. Directly or indirectly contacting or communicating with a protected individual or other individual described in the order.

c. Being within a certain distance of a specified place or location associated with a protected individual.

d. Molesting, annoying, harassing, or engaging in threatening conduct directed at a protected individual.

(2) “Court” means the Family Court of this State.

(3) “Domestic protection order” means an injunction or other order issued by the Court which relates to domestic or family violence laws to prevent an individual from engaging in violent or threatening acts against, harassment of, direct or indirect contact or communication with, or being in physical proximity to another individual.

(4) “Issuing court” means the court that issues a Canadian domestic-violence protection order.

(5) “Law-enforcement officer” means an individual authorized by law of this State other than this part to enforce a domestic protection order.

(6) “Person” means an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity.

(7) “Protected individual” means an individual protected by a Canadian domestic-violence protection order.

(8) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(9) “Respondent” means an individual against whom a Canadian domestic-violence protection order is issued.

(10) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes a federally-recognized Indian tribe.

§ 1049I. Enforcement of Canadian domestic-violence protection order by law-enforcement officer

Updated: 
April 8, 2020

(a) If a law-enforcement officer determines under subsection (b) or (c) of this section that there is probable cause to believe a valid Canadian domestic-violence protection order exists and the order has been violated, the officer shall enforce the terms of the Canadian domestic-violence protection order as if the terms were in an order of the Court. Presentation to a law-enforcement officer of a certified copy of a Canadian domestic-violence protection order is not required for enforcement.

(b) Presentation to a law-enforcement officer of a record of a Canadian domestic-violence protection order that identifies both a protected individual and a respondent and on its face is in effect constitutes probable cause to believe that a valid order exists.

(c) If a record of a Canadian domestic-violence protection order is not presented as provided in subsection (b) of this section, a law-enforcement officer may consider other information in determining whether there is probable cause to believe that a valid Canadian domestic-violence protection order exists.

(d) If a law-enforcement officer determines that an otherwise valid Canadian domestic-violence protection order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall notify the protected individual that the officer will make reasonable efforts to contact the respondent, consistent with the safety of the protected individual. After notice to the protected individual and consistent with the safety of the individual, the officer shall make a reasonable effort to inform the respondent of the order, notify the respondent of the terms of the order, provide a record of the order, if available, to the respondent, and allow the respondent a reasonable opportunity to comply with the order before the officer enforces the order.

(e) If a law-enforcement officer determines that an individual is a protected individual, the officer shall inform the individual of available local victim services.

§ 1049J. Enforcement of Canadian domestic-violence protection order by the Court

Updated: 
April 8, 2020

(a) The Court may issue an order enforcing or refusing to enforce a Canadian domestic-violence protection order on application of 1 of the following:

(1) A person authorized by law of this State other than this part to seek enforcement of a domestic protection order.

(2) A respondent.

(b) In a proceeding under subsection (a) of this section, the Court shall follow the procedures of this State for enforcement of a domestic protection order. An order entered under this section is limited to the enforcement of the terms of the Canadian domestic-violence protection order as described in § 1049H of this title.

(c) A Canadian domestic-violence protection order is enforceable under this section if all of the following apply:

(1) The order identifies a protected individual and a respondent.

(2) The order is valid and in effect.

(3) The issuing court had jurisdiction over the parties and the subject matter under law applicable in the issuing court.

(4) The order was issued after 1 of the following:

a. The respondent was given reasonable notice and had an opportunity to be heard before the court issued the order.

b. In the case of an ex parte order, the respondent was given reasonable notice and had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the right of the respondent to due process.

(d) A Canadian domestic-violence protection order valid on its face is prima facie evidence of its enforceability under this section.

(e) A claim that a Canadian domestic-violence protection order does not comply with subsection (c) of this section is an affirmative defense in a proceeding seeking enforcement of the order. If the Court determines that the order is not enforceable, the Court shall issue an order that the Canadian domestic-violence protection order is not enforceable under this section and § 1049I of this title and may not be registered under § 1049K of this title.

(f) This section applies to enforcement of a provision of a Canadian domestic-violence protection order against a party to the order in which each party is a protected individual and respondent only if both of the following apply:

(1) The party seeking enforcement of the order filed a pleading requesting the order from the issuing court.

(2) The issuing court made specific findings that entitled the party to the enforcement sought.

§ 1049K. Registration of Canadian domestic-violence protection order

Updated: 
April 8, 2020

(a) An individual may register a Canadian domestic-violence protection order in this State. To register the order, the individual must present a certified copy of the order to the Court.

(b) On receipt of a certified copy of a Canadian domestic-violence protection order, the Court shall register the order in accordance with this section.

(c) An individual registering a Canadian domestic-violence protection order under this section shall file an affidavit stating that, to the best of the individual’s knowledge, the order is valid and in effect.

(d) After a Canadian domestic-violence protection order is registered under this section, the Court shall provide the individual registering the order a certified copy of the registered order.

(e) A Canadian domestic-violence protection order registered under this section may be entered in a state or federal registry of protection orders in accordance with law.

(f) An inaccurate, expired, or unenforceable Canadian domestic-violence protection order may be corrected or removed from the registry of protection orders maintained in this State in accordance with law of this State other than this part.

(g) A fee may not be charged for the registration of a Canadian domestic-violence protection order under this section.

(h) Registration in this State or filing under law of this State other than this part of a Canadian domestic-violence protection order is not required for its enforcement under this part.

Part IV. Special Proceedings

Updated: 
April 8, 2020

Chapter 77. Lethal Violence Protective Order

Updated: 
April 8, 2020

§ 7701. Definitions

Updated: 
April 8, 2020

As used in this section:

(1) “Firearm” means as defined in § 222 of Title 11.

(2) “Law-enforcement officer” means as defined in § 222 of Title 11.

(3) “Lethal violence protective order” means an order issued by the Justice of the Peace Court or Superior Court prohibiting and enjoining a person from controlling, owning, purchasing, possessing, having access to, or receiving a firearm.

(4) “Petitioner” means either of the following:

a. A family member of the respondent as defined in § 901 of this title or a member of the class defined in § 1041(2)b. of this title.

b. A law-enforcement officer who files a petition alleging that the respondent poses a danger of causing physical injury to self or others by controlling, owning, purchasing, possessing, having access to or receiving a firearm.

(5) “Physical injury” means as defined in § 222 of Title 11.

(6) “Respondent” means the individual who is alleged to pose a danger of causing physical injury to self or others by controlling, owning, purchasing, possessing, having access to or receiving a firearm.

§ 7702. Commencement of action; procedure

Updated: 
April 8, 2020

(a) A petitioner may request relief under § 7703 or § 7704 of this title by filing an affidavit or verified petition.

(b) A petition for a lethal violence protective order must be filed in the county where the respondent resides.

(c) Forms and instructions for initiating a proceeding under this section must be available from the Justice of the Peace Court’s office and the Superior Court Prothonotary’s office.

(d) All forms and instructions developed for use by the parties to a proceeding under this chapter must contain simple, understandable language.

§ 7703. Emergency hearings

Updated: 
April 8, 2020

(a) A law-enforcement officer may request an emergency lethal violence protective order by filing an affidavit or verified petition in Justice of the Peace Court that does both of the following:

(1) Alleges that respondent poses an immediate and present danger of causing physical injury to self or others by controlling, purchasing, owning, possessing, controlling, purchasing, having access to, or receiving a firearm.

(2) Identifies the location of any firearms it is believed that the respondent currently owns, possesses, has access to, or controls.

(b) The following procedures govern an emergency proceeding:

(1) The Justice of the Peace Court shall hear a request for an order under this section within 24 hours of the filing of the affidavit or verified petition.

(2) The law-enforcement officer has the burden of demonstrating by a preponderance of the evidence that a respondent poses an immediate and present danger of causing physical injury to self or others by owning, possessing, controlling, purchasing, having access to, or receiving a firearm.

(3) The respondent does not have the right to be heard or to notice that the law-enforcement officer has sought an order under this section.

(c) The Justice of the Peace Court may adopt additional rules governing proceedings under this section.

(d) If the Justice of the Peace Court finds by a preponderance of the evidence that the respondent poses an immediate and present danger of causing physical injury to self or others by owning, possessing, controlling, purchasing, having access to, or receiving a firearm, the Court shall issue an emergency lethal violence protective order requiring the respondent to relinquish to a law enforcement agency receiving the Court’s order any firearms or ammunition owned, possess, or controlled by the respondent. The Court may also do any of the following through its order:

(1) Prohibit the respondent from residing with another individual who owns, possesses, or controls firearms or ammunition. Nothing in this section may be construed to impair the rights, under the Second Amendment to the United States Constitution or Article I, § 20 of the Delaware Constitution, of an individual who is not subject to the Court’s order.

(2) Direct a law enforcement agency having jurisdiction where the respondent resides or the firearms or ammunition are located to immediately search for and seize any firearms or ammunition owned, possessed, or controlled by the respondent.

(e) The Justice of the Peace Court shall direct that an emergency lethal violence protective order issued under this section be served immediately upon the respondent by personal service, any form of mail, or in any manner directed by the Court, including publication, if other methods of service have failed or deemed to have been inadequate. The Court shall give a certified copy of the order to the law-enforcement officer after the hearing and before the petitioner leaves the courthouse.

(f) If the Justice of the Peace Court issues an emergency lethal violence protective order under this section, the Superior Court must hold a full hearing in compliance with § 7704 of this title within 15 days. The Justice of the Peace Court or the Superior Court may extend an emergency order as needed to effectuate service of the order or where necessary to ensure the protection of the respondent or others, but the duration of the order may not exceed 45 days.

§ 7704. Nonemergency hearings

Updated: 
April 8, 2020

(a) A petitioner may request a lethal violence protective order by filing an affidavit or verified petition in the Superior Court that does both of the following:

(1) Alleges that the respondent poses a danger of causing physical injury to self or others by controlling, owning, purchasing, possessing, having access to, or receiving a firearm.

(2) Identifies the location of any firearms it is believed that the respondent currently owns, possesses, has access to, or controls.

(b) The following procedures govern a nonemergency proceeding:

(1) The respondent has the right to be heard.

(2) If a hearing is requested, it must be held within 15 days of the filing of an affidavit or verified petition under subsection (a) of this section, unless extended by the Court for good cause shown.

(3) If a hearing is held, the respondent has the right to notice of the hearing, to present evidence, and to cross-examine adverse witnesses.

(4) The petitioner has the burden of proving by clear and convincing evidence that the respondent poses a danger of causing physical injury to self or others by controlling, owning, purchasing, possessing, having access to, or receiving a firearm.

(c) The Superior Court may adopt additional rules governing proceedings under this section.

(d) If the Superior Court finds by a clear and convincing evidence that the respondent poses an immediate and present danger of causing physical injury to self or others by owning, possessing, controlling, purchasing, having access to, or receiving a firearm, the Court shall issue a lethal violence protective order requiring the respondent to relinquish to a law-enforcement agency receiving the Court’s order any firearms or ammunition owned, possess, or controlled by the respondent. The Court may also do any of the following through its order:

(1) Allow the respondent to voluntarily relinquish to a law enforcement agency receiving the Court’s order any firearms or ammunition owned, possessed, or controlled by the respondent.

(2) Allow the respondent to relinquish firearms or ammunition owned, possessed, or controlled by the respondent to a designee of the respondent. A designee of the respondent must not reside with the respondent and must not be a person prohibited under § 1448 of Title 11. The designee must affirm to the Court and the Court must find that the designee of the respondent will keep firearms or ammunition owned, possessed, or controlled by the respondent out of the possession of the respondent.

(3) Prohibit the respondent from residing with another individual who owns, possesses, or controls firearms or ammunition. Nothing in this section may be construed to impair the rights, under the Second Amendment to the United States Constitution or Article I, § 20 of the Delaware Constitution, of an individual who is not subject to the Court’s order.

(4) Direct a law enforcement agency having jurisdiction where the respondent resides or the firearms or ammunition are located to immediately search for and seize any firearms or ammunition owned, possessed, or controlled by the respondent.

(5) Prohibit the respondent from residing with another individual who owns, possesses, or controls firearms or ammunition. Nothing in this section may be construed to impair or limit the rights, under the Second Amendment to the United States Constitution or Article I, § 20 of the Delaware Constitution, of an individual who is not subject to the Court’s order.

(6) Direct a law enforcement agency having jurisdiction where the respondent resides or the firearms or ammunition are located to immediately search for and seize any firearms or ammunition owned, possessed, or controlled by the respondent,

(e) If the Superior Court finds that there is not clear and convincing evidence to support the issuance of a lethal violence protective order, the Court shall not issue a lethal violence protective order, and shall vacate any emergency lethal violence protective order then in effect.

(f) If the Superior Court issues a lethal violence protective order under this section, the court shall inform the respondent that the respondent is entitled to 1 hearing to request a termination of the order under § 7705 of this title, and shall provide the respondent with a form to request such a hearing.

(g) If a respondent is not present for a hearing under this section, the Superior Court shall direct that a lethal violence protective order issued be served immediately upon the respondent by personal service, any form of mail, or in any manner directed by the Court, including publication if other methods of service have failed or deemed to have failed or deemed to have been inadequate.

(h) The Superior Court shall give a certified copy of the order to the petitioner and respondent after the hearing and before the petitioner and respondent leave the courthouse.

(i) Any party in interest aggrieved by a decision of the Superior Court under this section may appeal the decision to the Supreme Court.

(j) Relief granted under this section shall be for a fixed period of time not to exceed 1 year.

§ 7705. Termination and renewal

Updated: 
April 8, 2020

(a) A respondent subject to a lethal violence protective order issued under § 7704 of this title, or renewed under subsection (b) of this section, may submit 1 written request at any time during the effective period of the order for a hearing to terminate the order.

(1) The Superior Court must provide notice to all parties and a hearing before the Court may terminate the order.

(2) The respondent must prove by clear and convincing evidence that the respondent does not pose a danger of causing physical injury to self or others by controlling, owning, purchasing, possessing, having access to, or receiving a firearm.

(3) If the Superior Court finds after a hearing that the respondent has met the burden imposed by paragraph (a)(2) of this section, the Court shall terminate the order.

(b) A petitioner may request a renewal of a lethal violence protective order at any time within 3 months before the expiration of a lethal violence protective order issued under § 7704 of this title or this subsection.

(1) The Superior Court must provide notice to all parties and a hearing before the Court may renew an order issued under § 7704 of this title or this subsection.

(2) The petitioner must prove by clear and convincing evidence that the respondent continues to pose a danger of causing physical injury to self or others in the near future by controlling, owning, purchasing, possessing, having access to, or receiving a firearm.

(3) If the Superior Court finds after a hearing that the respondent has met the burden imposed by paragraph (b)(2) of this section, the Court shall renew the lethal violence protective order.

(4) The Superior Court is to set the duration of the renewed lethal violence protective order, up to 1 year. The order remains in effect unless terminated under subsection (a) of this section, renewed under this subsection, or expired and not renewed.

§ 7706. Return and disposal of firearms

Updated: 
April 8, 2020

If an order issued under this chapter is vacated under § 7704 (e) of this title, terminated under § 7705(a) of this title, or expired and is not renewed, the law enforcement agency shall return to the respondent any firearms or ammunition taken from the respondent under this chapter unless otherwise prohibited under § 1448 of Title 11.

§ 7707. Limitation on liability

Updated: 
April 8, 2020

(a) Nothing in this chapter precludes a petitioner or law-enforcement officer from removing firearms under other authority or filing criminal charges when probable cause exists.

(b) A law enforcement officer, who in good faith does not seek a lethal violence protective order under this chapter, is immune from civil liability.

(c) A law enforcement agency is immune from civil or criminal liability for any damage or deterioration of firearms stored or transported under this section. This subsection does not apply if the damage or deterioration occurred as a result of recklessness, gross negligence, or intentional misconduct by the law enforcement agency or federally-licensed firearms dealer.

§ 7708. Sanctions

Updated: 
April 8, 2020

(a) Any person who violates a lethal violence protection order may be guilty of criminal contempt under § 1271A of Title 11.

(b) Any person who swears falsely, as defined by § 1224 of Title 11, in an affidavit or verified pleading under § 7702, § 7703, or § 7704 of this title, a written request to terminate or renew a lethal violence protective order under § 7705 of this title, or in any court hearing under § 7703, § 7704, or § 7705 may be guilty of perjury under § 1221, § 1222 or § 1223 of Title 11.

Title 11. Crimes and Criminal Procedure

Updated: 
April 8, 2020

Part I. Delaware Criminal Code

Updated: 
April 8, 2020

Chapter 2. GENERAL PROVISIONS CONCERNING OFFENSES

Updated: 
April 8, 2020

§ 222. General definitions

Updated: 
April 8, 2020

Currentness
When used in this Criminal Code:
(1) “Building,” in addition to its ordinary meaning, includes any structure, vehicle or watercraft. Where a building consists of 2 or more units separately secured or occupied, each unit shall be deemed a separate building.
(2) “Controlled substance” or “counterfeit substance” shall have the same meaning as used in Chapter 47 of Title 16.
(3) “Conviction” means a verdict of guilty by the trier of fact, whether judge or jury, or a plea of guilty or a plea of nolo contendere accepted by the court.
(4) “Dangerous instrument” means any instrument, article or substance which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury, or any disabling chemical spray, as defined in paragraph (6) of this section or any electronic control devices including but not limited to a neuromuscular incapacitation device designed to incapacitate a person.
(5) “Deadly weapon” includes a “firearm”, as defined in paragraph (12) of this section, a bomb, a knife of any sort (other than an ordinary pocketknife carried in a closed position), switchblade knife, billy, blackjack, bludgeon, metal knuckles, slingshot, razor, bicycle chain or ice pick or any “dangerous instrument”, as defined in paragraph (4) of this section, which is used, or attempted to be used, to cause death or serious physical injury. For the purpose of this definition, an ordinary pocketknife shall be a folding knife having a blade not more than 3 inches in length.
(6) “Disabling chemical spray” includes mace, tear gas, pepper spray or any other mixture containing quantities thereof, or any other aerosol spray or any liquid, gaseous or solid substance capable of producing temporary physical discomfort, disability or injury through being vaporized or otherwise dispersed in the air, or any cannister, container or device designed or intended to carry, store or disperse such aerosol spray or such gas or solid.
(7) “Defraud” means to acquire a gain or advantage by fraud.
(8) “Drug” means any substance or preparation capable of producing any alteration of the physical, mental or emotional condition of a person.
(9) “Elderly person” means any person who is 62 years of age or older. Thus, the terms “elderly person” and “person who is 62 years of age or older” shall have the same meaning as used in this Code or in any action brought pursuant to this Code.
(10) “Electronic control device” is a device designed to incapacitate a person, including but not limited to a neuromuscular incapacitation device.
(11) “Female” means a person of the female sex.
(12) “Firearm” includes any weapon from which a shot, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, whether operable or inoperable, loaded or unloaded. It does not include a BB gun.
(13) “Fraud” means an intentional perversion, misrepresentation or concealment of truth.
(14) “Law” includes statutes and ordinances. Unless the context otherwise clearly requires, “law” also includes settled principles of the common law of Delaware governing areas other than substantive criminal law.
(15) “Law-enforcement officer” includes police officers, the Attorney General and the Attorney General’s deputies, agents of the State Division of Alcohol and Tobacco Enforcement, agents employed by a state, county or municipal law-enforcement agency engaged in monitoring sex offenders, correctional officers, probation and parole officers, state fire marshals, municipal fire marshals that are graduates of a Delaware Police Academy which is accredited/authorized by the Council on Police Training, sworn members of the City of Wilmington Fire Department who have graduated from a Delaware Police Academy which is authorized/accredited by the Council on Police Training, environmental protection officers, enforcement agents of the Department of Natural Resources and Environmental Control, and constables. A sheriff or deputy sheriff shall be considered a “law-enforcement officer” when acting upon a specific order of a judge or commissioner of Superior Court. Sheriffs and deputy sheriffs shall not have any arrest authority. However, sheriffs and deputy sheriffs may take into custody and transport a person when specifically so ordered by a judge or commissioner of Superior Court.
(16) “Lawful” means in accordance with law or, where the context so requires, not prohibited by law.
(17) “Male” means a person of the male sex.
(18) “Mental illness” means any condition of the brain or nervous system recognized as a mental disease by a substantial part of the medical profession.
(19) “Narcotic drug” shall have the same definition as contained in § 4701(27) of Title 16.
(20) “Oath or affirmation,” for the purpose of warrants, can be made via videophone, telephone, secure electronic means or in person.
(21) “Person” means a human being who has been born and is alive, and, where appropriate, a public or private corporation, a trust, a firm, a joint stock company, a union, an unincorporated association, a partnership, a government or a governmental instrumentality.
(22) “Physical force” means any application of force upon or toward the body of another person.
(23) “Physical injury” means impairment of physical condition or substantial pain.
(24) “Public transit operator” means a person in control or in charge of a transportation vehicle for public use, in exchange for a fee or charge, offered by any railroad, street railway, traction railway, motor bus, or trolley coach. Specifically excluded are:
a. Transportation to and from any school or school-sponsored event when such transportation is under the regulation of the Department of Education; and
b. Transportation to and from a church, synagogue or other place of worship;
c. Shuttle-type transportation provided by business establishments without charge to customers of the businesses offering such shuttle transportation between fixed termini; and
d. Limousine services.
(25) “Serious mental disorder” means any condition of the brain or nervous system recognized as defective, as compared with an average or normal condition, by a substantial part of the medical profession.
(26) “Serious physical injury” means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ, or which causes the unlawful termination of a pregnancy without the consent of the pregnant female.
(27) “Telephone,” in addition to its ordinary meaning, includes any computer (as defined in § 931 of this title) or any other electronic device which is actually used to engage in a wire communication (as defined in § 2401(20) of this title) with any other telephone, computer or electronic device.
(28) “Therapeutic abortion” means an abortion performed pursuant to subchapter IX of Chapter 17 of Title 24.
(29) “Unlawful” means contrary to law or, where the context so requires, not permitted by law. It does not mean wrongful or immoral.
(30) “Vehicle” includes any means in or by which someone travels or something is carried or conveyed or a means of conveyance or transport, whether or not propelled by its own power.

Chapter 5. SPECIFIC OFFENSES

Updated: 
April 8, 2020

Subchapter II. Offenses Against the Person

Updated: 
April 8, 2020

Subpart A. Assaults and Related Offenses

Updated: 
April 8, 2020

§ 601. Offensive touching; unclassified misdemeanor; class A misdemeanor

Updated: 
April 8, 2020

(a) A person is guilty of offensive touching when the person:

(1) Intentionally touches another person either with a member of his or her body or with any instrument, knowing that the person is thereby likely to cause offense or alarm to such other person; or

(2) Intentionally strikes another person with saliva, urine, feces or any other bodily fluid, knowing that the person is thereby likely to cause offense or alarm to such other person.

(b) When charged with a violation of paragraph (a)(2) of this section, the defendant shall be tested for diseases transmittable through bodily fluids, the cost of such tests to be assessed as costs upon conviction. The results of such tests shall be provided only to the Attorney General, the victim of the offense, the defendant and the Department of Correction’s medical care provider.

(c) Any violation of paragraph (a)(1) of this section shall be an unclassified misdemeanor. Notwithstanding the above, any violation of paragraph (a)(1) of this section shall be a class A misdemeanor when the victim is acting in the lawful performance of the victim’s duty as one of the following: law-enforcement officer, hospital or nursing home employee, physician, medical professional, ambulance attendant, emergency medical technician, Delaware State Fire Police Officer, correctional officer, volunteer firefighter or full-time firefighter. Any violation of paragraph (a)(2) of this section shall be a class A misdemeanor.

§ 602. Menacing; unclassified misdemeanor

Updated: 
April 8, 2020

(a) A person is guilty of menacing when by some movement of body or any instrument the person intentionally places another person in fear of imminent physical injury.

Menacing is an unclassified misdemeanor.

(b) A person is guilty of aggravated menacing when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury. Aggravated menacing is a class E felony.

§ 603. Reckless endangering in the second degree; class A misdemeanor

Updated: 
April 8, 2020

(a) A person is guilty of reckless endangering in the second degree when:

(1) The person recklessly engages in conduct which creates a substantial risk of physical injury to another person; or

(2) Being a parent, guardian or other person legally charged with the care or custody of a child less than 18 years old, the person knowingly, intentionally or with criminal negligence acts in a manner which contributes to or fails to act to prevent the unlawful possession and/or purchase of a firearm by a juvenile. It shall be an absolute defense to this paragraph if the person charged had a lock on the trigger and did not tell or show the juvenile where the key to the trigger lock was kept. It shall also be an absolute defense to this paragraph if the person had locked the firearm in a key or combination locked container and did not tell or show the juvenile where the key was kept or what the combination was.

(b) Reckless endangering in the second degree is a class A misdemeanor.

§ 604. Reckless endangering in the first degree; class E felony

Updated: 
April 8, 2020

A person is guilty of reckless endangering in the first degree when the person recklessly engages in conduct which creates a substantial risk of death to another person.

Reckless endangering in the first degree is a class E felony.

§ 605. Abuse of a pregnant female in the second degree; class C felony

Updated: 
April 8, 2020

(a) A person is guilty of abuse of a pregnant female in the second degree when in the course of or in furtherance of the commission or attempted commission of assault third degree or any violent felony against or upon a pregnant female, or while in immediate flight therefrom, the person recklessly and without her consent causes the unlawful termination of her pregnancy.

(b) It is no defense to a prosecution under this section that the person was unaware that the victim was pregnant.

(c) Prosecution under this section does not preclude prosecution under any other section of the Delaware Code. Abuse of a pregnant female in the second degree is a class C felony.

§ 606. Abuse of a pregnant female in the first degree; class B felony

Updated: 
April 8, 2020

(a) A person is guilty of abuse of a pregnant female in the first degree when in the course of or in furtherance of the commission or attempted commission of assault third degree any violent felony against or upon a pregnant female, or while in immediate flight therefrom, the person intentionally and without her consent causes the unlawful termination of her pregnancy.

(b) It is no defense to a prosecution under this section that the person was unaware that the victim was pregnant.

(c) Prosecution under this section does not preclude prosecution under any other section of the Delaware Code. Abuse of a pregnant female in the first degree is a class B felony.

§ 611. Assault in the third degree; class A misdemeanor

Updated: 
April 8, 2020

A person is guilty of assault in the third degree when:

(1) The person intentionally or recklessly causes physical injury to another person; or

(2) With criminal negligence the person causes physical injury to another person by means of a deadly weapon or a dangerous instrument.

Assault in the third degree is a class A misdemeanor.

§ 612. Assault in the second degree; class D felony

Updated: 
April 8, 2020

(a) A person is guilty of assault in the second degree when:

(1) The person recklessly or intentionally causes serious physical injury to another person; or

(2) The person recklessly or intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(3) The person intentionally causes physical injury to a law-enforcement officer, a volunteer firefighter, a full-time firefighter, emergency medical technician, paramedic, fire police officer, fire marshal, correctional officer, a sheriff, a deputy sheriff, public transit operator, a code enforcement constable or a code enforcement officer who is acting in the lawful performance of duty. For purposes of this subsection, if a law-enforcement officer is off duty and the nature of the assault is related to that law-enforcement officer’s official position, then it shall fall within the meaning of “official duties” of a law-enforcement officer; or

(4) The person intentionally causes physical injury to the operator of an ambulance, a rescue squad member, licensed practical nurse, registered nurse, paramedic, or licensed medical doctor while such person is performing a work-related duty; or

(5) The person intentionally causes physical injury to any other person while such person is rendering emergency care; or

(6) The person recklessly or intentionally causes physical injury to another person who is 62 years of age or older; or

(7) The person intentionally assaults a law-enforcement officer while in the performance of the officer’s duties, with any disabling chemical spray, or with any aerosol or hand sprayed liquid or gas with the intent to incapacitate such officer and prevent the officer from performing such duties; or

(8) The person intentionally, while engaged in commission of any crime enumerated in this chapter, assaults any other person with any disabling chemical spray, or with any aerosol or hand sprayed liquid or gas with the intent to incapacitate the victim; or

(9) The person intentionally causes physical injury to any state employee or officer when that employee or officer is discharging or attempting to discharge a duty of employment or office; or

(10) The person recklessly or intentionally causes physical injury to a pregnant female. It is no defense to a prosecution under this subsection that the person was unaware that the victim was pregnant; or

(11) A person who is 18 years of age or older and who recklessly or intentionally causes physical injury to another person who has not yet reached the age of 6 years. In any prosecution of a parent, guardian, foster parent, legal custodian or other person similarly responsible for the general care and supervision of a child victim pursuant to this paragraph, the State shall be required to prove beyond a reasonable doubt the absence of any justification offered by § 468(1) of this title. In any prosecution of a teacher or school administrator pursuant to this paragraph, the State shall be required to prove beyond a reasonable doubt the absence of any justification offered by § 468(2) of this title; or

(12) The person recklessly or intentionally causes physical injury to a law-enforcement officer, security officer, fire police officer, fire fighter, paramedic, or emergency medical technician in the lawful performance of their duties by means of an electronic control device shall be a class C felony.

(b) It is no defense, for an offense under paragraph (a)(6) of this section, that the accused did not know the person’s age or that the accused reasonably believed the person to be under the age of 62.

(c) It is no defense, for an offense under paragraph (a)(11) of this section, that the accused did not know the person’s age or that the accused reasonably believed the person to be 6 years of age or older.

(d) Assault in the second degree is a class D felony.

§ 613. Assault in the first degree; class B felony

Updated: 
April 8, 2020

(a) A person is guilty of assault in the first degree when:

(1) The person intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(2) The person intentionally disfigures another person seriously and permanently, or intentionally destroys, amputates or disables permanently a member or organ of another person’s body; or

(3) The person recklessly engages in conduct which creates a substantial risk of death to another person, and thereby causes serious physical injury to another person; or

(4) While engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any felony, the person intentionally or recklessly causes serious physical injury to another person; or

(5) The person intentionally causes serious physical injury to a law-enforcement officer, a volunteer firefighter, a full-time firefighter, emergency medical technician, paramedic, fire police officer, fire marshal, public transit operator, a code enforcement constable or a code enforcement officer who is acting in the lawful performance of duty; or

(6) The person intentionally causes serious physical injury to the operator of an ambulance, a rescue squad member, licensed practical nurse, registered nurse, paramedic, licensed medical doctor or any other person while such person is rendering emergency care; or

(7) The person intentionally causes serious physical injury to another person who is 62 years of age or older.

(b) It is no defense, for an offense under paragraph (a)(7) of this section, that the accused did not know the person’s age or that the accused reasonably believed the person to be under the age of 62.

(c) Assault in the first degree is a class B felony.

§ 614. Abuse of a sports official; class G felony; class A misdemeanor

Updated: 
April 8, 2020

(a) A person is guilty of abuse of a sports official whenever the person intentionally or recklessly commits the following acts against a sports official who is acting in the lawful performance of duty:

(1) Reckless endangering in the second degree, as set forth in § 603 of this title; or

(2) Assault in the third degree, as set forth in § 611 of this title; or

(3) Terroristic threatening, as set forth in § 621 of this title; or

(4) Criminal mischief, as set forth in § 811 of this title.

(b) For purposes of this section, the words “sports official” shall mean any person who serves as a registered, paid or volunteer referee, umpire, line judge or acts in any similar capacity during a sporting event. For purposes of this section, the words, “lawful performance of duty” means the time immediately prior to, during and/or immediately after the sporting event.

(c) Whoever violates subsection (a) of this section shall be guilty of a class A misdemeanor. Upon conviction for a second or subsequent offense under this section, such person shall be guilty of a class G felony. Notwithstanding Chapter 42 of this title, such person shall be fined not less than $1,000 nor more than $2,350. In addition to the fines imposed by this subsection, any person who is guilty of abuse of a sports official shall be prohibited from participating in and/or attending any organized sporting event for a period of not less than 3 months nor more than 12 months.

(d) Except as provided in § 922 of Title 10, and notwithstanding any other provision of law to the contrary, the Court of Common Pleas shall have original jurisdiction to hear, try and finally determine any violation of this section, and any other misdemeanor violation of any offense set forth in this title which was allegedly committed during the same incident. Prosecution under this section shall not preclude a separate charge, conviction and sentence for any other crime set forth in the Code.

§ 621. Terroristic threatening

Updated: 
April 8, 2020

(a) A person is guilty of terroristic threatening when that person commits any of the following:

(1) The person threatens to commit any crime likely to result in death or in serious injury to person or property;

(2) The person makes a false statement or statements:

a. Knowing that the statement or statements are likely to cause evacuation of a building, place of assembly, or facility of public transportation;

b. Knowing that the statement or statements are likely to cause serious inconvenience; or

c. In reckless disregard of the risk of causing terror or serious inconvenience; or

(3) The person commits an act with intent of causing an individual to believe that the individual has been exposed to a substance that will cause the individual death or serious injury.

(b) Any violation of paragraph (a)(1) of this section shall be a class A misdemeanor except where the victim is a person 62 years of age or older, in which case any violation of paragraph (a)(1) of this section shall be a class G felony. Any violation of paragraph (a)(2)a. of this section shall be a class E felony. Any violation of paragraph (a)(2)b. or c. of this section shall be a class G felony unless the place at which the risk of serious inconvenience or terror is created is a place that has the purpose, in whole or in part, of acting as a daycare facility, nursery or preschool, kindergarten, elementary, secondary or vocational-technical school, or any long-term care facility in which elderly persons are housed, in which case it shall be a class F felony. Any violation of paragraph (a)(3) of this section shall be a class F felony. Notwithstanding any provision of this subsection to the contrary, a first offense of paragraph (a)(2) of this section by a person 17 years old or younger shall be a class A misdemeanor.

(c) In addition to the penalties otherwise authorized by law, any person convicted of an offense in violation of paragraph (a)(2) of this section shall:

(1) Pay a fine of not less than $1,000 nor more than $2,500, which fine cannot be suspended; and

(2) Be sentenced to perform a minimum of 100 hours of community service.

(d) In addition to the penalties otherwise authorized by law, any person convicted of an offense in violation of paragraph (a)(3) of this section shall pay a fine of not less than $2,000, which fine cannot be suspended.

§ 625. Unlawfully administering drugs; class A misdemeanor

Updated: 
April 8, 2020

A person is guilty of unlawfully administering drugs when, for a purpose other than lawful medical or therapeutic treatment, the person intentionally causes stupor, unconsciousness or other alteration of the physical or mental condition of another person by administering to the other person, without consent, a drug.

Unlawfully administering drugs is a class A misdemeanor.

§ 628. Vehicular assault in the second degree; class B misdemeanor

Updated: 
April 8, 2020

A person is guilty of vehicular assault in the third degree when, while in the course of driving or operating a motor vehicle, the person’s criminally negligent driving or operation of said vehicle causes physical injury to another person.

Vehicular assault in the third degree is a class B misdemeanor.

Subpart D. Sexual Offenses

Updated: 
April 8, 2020

§ 761. Definitions generally applicable to sexual offenses

Updated: 
April 8, 2020

(a) “Cognitive disability” means a developmental disability that substantially impairs an individual’s cognitive abilities including, but not limited to, delirium, dementia and other organic brain disorders for which there is an identifiable pathologic condition, as well as nonorganic brain disorders commonly called functional disorders. “Cognitive disability” also includes conditions of mental retardation, severe cerebral palsy, and any other condition found to be closely related to mental retardation because such condition results in the impairment of general intellectual functioning or adaptive behavior similar to that of persons who have been diagnosed with mental retardation, or such condition requires treatment and services similar to those required for persons who have been diagnosed with mental retardation.

(b) “Cunnilingus” means any oral contact with the female genitalia.

(c) “Fellatio” means any oral contact with the male genitalia.

(d) “Object” means any item, device, instrument, substance or any part of the body. It does not mean a medical instrument used by a licensed medical doctor or nurse for the purpose of diagnosis or treatment.

(e) “Position of trust, authority or supervision over a child” includes, but is not limited to:

(1) Familial, guardianship or custodial authority or supervision; or

(2) A teacher, coach, counselor, advisor, mentor or any other person providing instruction or educational services to a child or children, whether such person is compensated or acting as a volunteer; or

(3) A babysitter, child care provider, or child care aide, whether such person is compensated or acting as a volunteer; or

(4) A health professional, meaning any person who is licensed or who holds himself or herself out to be licensed or who otherwise provides professional physical or mental health services, diagnosis, treatment or counseling which shall include, but not be limited to, doctors of medicine and osteopathy, dentists, nurses, physical therapists, chiropractors, psychologists, social workers, medical technicians, mental health counselors, substance abuse counselors, marriage and family counselors or therapists and hypnotherapists, whether such person is compensated or acting as a volunteer; or

(5) Clergy, including but not limited to any minister, pastor, rabbi, lay religious leader, pastoral counselor or any other person having regular direct contact with children through affiliation with a church or religious institution, whether such person is compensated or acting as a volunteer; or

(6) Any law-enforcement officer, as that term is defined in § 222 of this title, and including any person acting as an officer or counselor at a correctional or counseling institution, facility or organization, whether such person is compensated or acting as a volunteer; or

(7) Any other person who because of that person’s familial relationship, profession, employment, vocation, avocation or volunteer service has regular direct contact with a child or children and in the course thereof assumes responsibility, whether temporarily or permanently, for the care or supervision of a child or children.

(f) “Semen” means fluid produced in the male reproductive organs, which may include spermatozoa.

(g) “Sexual contact” means:

(1) Any intentional touching by the defendant of the anus, breast, buttocks or genitalia of another person; or

(2) Any intentional touching of another person with the defendant’s anus, breast, buttocks, semen, or genitalia; or

(3) Intentionally causing or allowing another person to touch the defendant’s anus, breast, buttocks or genitalia which touching, under the circumstances as viewed by a reasonable person, is intended to be sexual in nature. “Sexual contact” shall also include touching when covered by clothing.

(h) “Sexual intercourse” means:

(1) Any act of physical union of the genitalia or anus of 1 person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight. Ejaculation is not required. This offense encompasses the crimes commonly known as rape and sodomy; or

(2) Any act of cunnilingus or fellatio regardless of whether penetration occurs. Ejaculation is not required.

(i) “Sexual offense” means any offense defined by §§ 763 through 780, 783(4), 783(6), 783A(4), 783A(6), 787(b)(3), 787(b)(4), 1100A, 1108 through 1112B, 1335(a)(6), 1335(a)(7), 1352(2), and 1353(2), and 1361(b) of this title.

(j) “Sexual penetration” means:

(1) The unlawful placement of an object, as defined in subsection (d) of this section, inside the anus or vagina of another person; or

(2) The unlawful placement of the genitalia or any sexual device inside the mouth of another person.

(k) “Without consent” means:

(1) The defendant compelled the victim to submit by any act of coercion as defined in §§ 791 and 792 of this title, or by force, by gesture, or by threat of death, physical injury, pain or kidnapping to be inflicted upon the victim or a third party, or by any other means which would compel a reasonable person under the circumstances to submit. It is not required that the victim resist such force or threat to the utmost, or to resist if resistance would be futile or foolhardy, but the victim need resist only to the extent that it is reasonably necessary to make the victim’s refusal to consent known to the defendant; or

(2) The defendant knew that the victim was unconscious, asleep or otherwise unaware that a sexual act was being performed; or

(3) The defendant knew that the victim suffered from a cognitive disability, mental illness or mental defect which rendered the victim incapable of appraising the nature of the sexual conduct or incapable of consenting; or

(4) Where the defendant is a health professional, as defined herein, or a minister, priest, rabbi or other member of a religious organization engaged in pastoral counseling, the commission of acts of sexual contact, sexual penetration or sexual intercourse by such person shall be deemed to be without consent of the victim where such acts are committed under the guise of providing professional diagnosis, counseling or treatment and where at the times of such acts the victim reasonably believed the acts were for medically or professionally appropriate diagnosis, counseling or treatment, such that resistance by the victim could not reasonably have been manifested. For purposes of this paragraph, “health professional” includes all individuals who are licensed or who hold themselves out to be licensed or who otherwise provide professional physical or mental health services, diagnosis, treatment or counseling and shall include, but not be limited to, doctors of medicine and osteopathy, dentists, nurses, physical therapists, chiropractors, psychologists, social workers, medical technicians, mental health counselors, substance abuse counselors, marriage and family counselors or therapists and hypnotherapists; or

(5) The defendant had substantially impaired the victim’s power to appraise or control the victim’s own conduct by administering or employing without the other person’s knowledge or against the other person’s will, drugs, intoxicants or other means for the purpose of preventing resistance.(l) A child who has not yet reached that child’s sixteenth birthday is deemed unable to consent to a sexual act with a person more than 4 years older than said child. Children who have not yet reached their twelfth birthday are deemed unable to consent to a sexual act under any circumstances.

§ 762. Provisions generally applicable to sexual offenses

Updated: 
April 8, 2020

(a) Mistake as to age.–Whenever in the definition of a sexual offense, the criminality of conduct or the degree of the offense depends on whether the person has reached that person’s sixteenth birthday, it is no defense that the actor did not know the person’s age, or that the actor reasonably believed that the person had reached that person’s sixteenth birthday.

(b) Gender.–Unless a contrary meaning is clearly required, the male pronoun shall be deemed to refer to both male and female.

(c) Separate acts of sexual contact, penetration and sexual intercourse. –Nothing in this title precludes a defendant from being charged with separate offenses when multiple acts of sexual contact, penetration or intercourse are committed against the same victim.

(d) Teenage defendant.–As to sexual offenses in which the victim’s age is an element of the offense because the victim has not yet reached that victim’s sixteenth birthday, where the person committing the sexual act is no more than 4 years older than the victim, it is an affirmative defense that the victim consented to the act “knowingly” as defined in § 231 of this title. Sexual conduct pursuant to this section will not be a crime. This affirmative defense will not apply if the victim had not yet reached that victim’s twelfth birthday at the time of the act.

§ 763. Sexual harassment; unclassified misdemeanor

Updated: 
April 8, 2020

A person is guilty of sexual harassment when:

(1) The person threatens to engage in conduct likely to result in the commission of a sexual offense against any person; or

(2) The person suggests, solicits, requests, commands, importunes or otherwise attempts to induce another person to have sexual contact or sexual intercourse or unlawful sexual penetration with the actor, knowing that the actor is thereby likely to cause annoyance, offense or alarm to that person.

Sexual harassment is an unclassified misdemeanor.

§ 764. Indecent exposure in the second degree; unclassified misdemeanor

Updated: 
April 8, 2020

(a) A male is guilty of indecent exposure in the second degree if he exposes his genitals or buttocks under circumstances in which he knows his conduct is likely to cause affront or alarm to another person.

(b) A female is guilty of indecent exposure in the second degree if she exposes her genitals, breast or buttocks under circumstances in which she knows her conduct is likely to cause affront or alarm to another person.

Indecent exposure in the second degree is an unclassified misdemeanor.

§ 765. Indecent exposure in the first degree; class A misdemeanor

Updated: 
April 8, 2020

(a) A male is guilty of indecent exposure in the first degree if he exposes his genitals or buttocks to a person who is less than 16 years of age under circumstances in which he knows his conduct is likely to cause affront or alarm.

(b) A female is guilty of indecent exposure in the first degree if she exposes her genitals, breast or buttocks to a person who is less than 16 years of age under circumstances in which she knows her conduct is likely to cause affront or alarm.

Indecent exposure in the first degree is a class A misdemeanor.

§ 767. Unlawful sexual contact in the third degree; class A misdemeanor

Updated: 
April 8, 2020

A person is guilty of unlawful sexual contact in the third degree when the person has sexual contact with another person or causes the victim to have sexual contact with the person or a third person and the person knows that the contact is either offensive to the victim or occurs without the victim’s consent.

Unlawful sexual contact in the third degree is a class A misdemeanor.

§ 768. Unlawful sexual contact in the second degree; class F felony

Updated: 
April 8, 2020

A person is guilty of unlawful sexual contact in the second degree when the person intentionally has sexual contact with another person who is less than 18 years of age or causes the victim to have sexual contact with the person or a third person.

Unlawful sexual contact in the second degree is a class F felony.

§ 769. Unlawful sexual contact in the first degree; class D felony

Updated: 
April 8, 2020

(a) A person is guilty of unlawful sexual contact in the first degree when:

(1) In the course of committing unlawful sexual contact in the third degree or in the course of committing unlawful sexual contact in the second degree, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury to the victim or the person displays what appears to be a deadly weapon or dangerous instrument; or represents by word or conduct that the person is in possession or control of a deadly weapon or dangerous instrument.

(2) Repealed.

(3) The person intentionally has sexual contact with another person who is less than 13 years of age or causes the victim to have sexual contact with the person or a third person.

(b) Unlawful sexual contact in the first degree is a class D felony.

§ 770. Rape in the fourth degree; class C felony

Updated: 
April 8, 2020

(a) A person is guilty of rape in the fourth degree when the person:

(1) Intentionally engages in sexual intercourse with another person, and the victim has not yet reached that victim’s sixteenth birthday; or

(2) Intentionally engages in sexual intercourse with another person, and the victim has not yet reached that victim’s eighteenth birthday, and the person is 30 years of age or older, except that such intercourse shall not be unlawful if the victim and person are married at the time of such intercourse; or

(3) Intentionally engages in sexual penetration with another person under any of the following circumstances:

a. The sexual penetration occurs without the victim’s consent; or

b. The victim has not reached that victim’s sixteenth birthday.

(b) Paragraph (a)(3) of this section does not apply to a licensed medical doctor or nurse who places 1 or more fingers or an object inside a vagina or anus for the purpose of diagnosis or treatment or to a law-enforcement officer who is engaged in the lawful performance of his or her duties.

Rape in the fourth degree is a class C felony.

§ 771. Rape in the third degree; class B felony

Updated: 
April 8, 2020

(a) A person is guilty of rape in the third degree when the person:

(1) Intentionally engages in sexual intercourse with another person, and the victim has not reached that victim’s sixteenth birthday and the person is at least 10 years older than the victim, or the victim has not yet reached that victim’s fourteenth birthday and the person has reached that person’s nineteenth birthday and is not otherwise subject to prosecution pursuant to § 772 or § 773 of this title; or

(2) Intentionally engages in sexual penetration with another person under any of the following circumstances:

a. The sexual penetration occurs without the victim’s consent and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury or serious mental or emotional injury to the victim; or

b. The victim has not reached that victim’s sixteenth birthday and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury or serious mental or emotional injury to the victim.

(b) Paragraph (a)(2) of this section does not apply to a licensed medical doctor or nurse who places 1 or more fingers or an object inside a vagina or anus for the purpose of diagnosis or treatment, or to a law-enforcement officer who is engaged in the lawful performance of his or her duties.

(c) Notwithstanding any law to the contrary, in any case in which a violation of subsection (a) of this section has resulted in the birth of a child who is in the custody and care of the victim or the victim’s legal guardian or guardians, the court shall order that the defendant, as a condition of any probation imposed pursuant to a conviction under this section, timely pay any child support ordered by the Family Court for such child.

(d) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code.

Rape in the third degree is a class B felony.

§ 772. Rape in the second degree; class B felony

Updated: 
April 8, 2020

(a) A person is guilty of rape in the second degree when the person:

(1) Intentionally engages in sexual intercourse with another person, and the intercourse occurs without the victim’s consent; or

(2) Intentionally engages in sexual penetration with another person under any of the following circumstances:

a. The sexual penetration occurs without the victim’s consent and during the commission of the crime, or during the immediate flight following the commission of the crime, or during an attempt to prevent the reporting of the crime, the person causes serious physical injury to the victim; or

b. The sexual penetration occurs without the victim’s consent, and was facilitated by or occurred during the course of the commission or attempted commission of:

1. Any felony; or

2. Any of the following misdemeanors: reckless endangering in the second degree; assault in the third degree; terroristic threatening; unlawfully administering drugs; unlawful imprisonment in the second degree; coercion or criminal trespass in the first, second or third degree; or

c. The victim has not yet reached that victim’s sixteenth birthday and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person causes serious physical injury to the victim; or

d. The sexual penetration occurs without the victim’s consent and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person displays what appears to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon or dangerous instrument; or

e. The victim has not yet reached that victim’s sixteenth birthday and during the commission of the crime, or during the immediate flight from the crime, or during an attempt to prevent the reporting of the crime, the person displays what appears to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon or dangerous instrument; or

f. The sexual penetration occurs without the victim’s consent, and a principal-accomplice relationship within the meaning set forth in § 271 of this title existed between the defendant and another person or persons with respect to the commission of the crime; or

g. The victim has not yet reached that victim’s twelfth birthday, and the defendant has reached that defendant’s eighteenth birthday.

(b) Nothing in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code.

(c) Notwithstanding any provision of this title to the contrary, the minimum sentence for a person convicted of rape in the second degree in violation of this section shall be 10 years at Level V.

Rape in the second degree is a class B felony.

§ 773. Rape in the first degree; class A felony

Updated: 
April 8, 2020

(a) A person is guilty of rape in the first degree when the person intentionally engages in sexual intercourse with another person and any of the following circumstances exist:

(1) The sexual intercourse occurs without the victim’s consent and during the commission of the crime, or during the immediate flight following the commission of the crime, or during an attempt to prevent the reporting of the crime, the person causes physical injury or serious mental or emotional injury to the victim; or

(2) The sexual intercourse occurs without the victim’s consent and it was facilitated by or occurred during the course of the commission or attempted commission of:

a. Any felony; or

b. Any of the following misdemeanors: reckless endangering in the second degree; assault in the third degree; terroristic threatening; unlawfully administering drugs; unlawful imprisonment in the second degree; coercion; or criminal trespass in the first, second or third degree; or

(3) In the course of the commission of rape in the second, third or fourth degree, or while in the immediate flight therefrom, the defendant displayed what appeared to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon or dangerous instrument; or

(4) The sexual intercourse occurs without the victim’s consent, and a principal-accomplice relationship within the meaning set forth in § 271 of this title existed between the defendant and another person or persons with respect to the commission of the crime; or

(5) The victim has not yet reached that victim’s twelfth birthday, and the defendant has reached that defendant’s eighteenth birthday.

(b) Nothing contained in this section shall preclude a separate charge, conviction and sentence for any other crime set forth in this title, or in the Delaware Code.

(c) Notwithstanding any law to the contrary, a person convicted of rape in the first degree shall be sentenced to life imprisonment without benefit of probation, parole or any other reduction if:

(1) The victim had not yet reached that victim’s sixteenth birthday at the time of the offense and the person inflicts serious physical injury on the victim; or

(2) The person intentionally causes serious and prolonged disfigurement to the victim permanently, or intentionally destroys, amputates or permanently disables a member or organ of the victim’s body; or

(3) The person is convicted of rape against 3 or more separate victims; or

(4) The person has previously been convicted of unlawful sexual intercourse in the first degree, rape in the second degree or rape in the first degree, or any equivalent offense under the laws of this State, any other state or the United States.

Rape in the first degree is a class A felony.

Subpart E. Kidnapping and Related Offenses

Updated: 
April 8, 2020

§ 781. Unlawful imprisonment in the second degree; class A misdemeanor

Updated: 
April 8, 2020

A person is guilty of unlawful imprisonment in the second degree when the person knowingly and unlawfully restrains another person.

Unlawful imprisonment in the second degree is a class A misdemeanor.

§ 782. Unlawful imprisonment in the first degree; class G felony

Updated: 
April 8, 2020

A person is guilty of unlawful imprisonment in the first degree when the person knowingly and unlawfully restrains another person under circumstances which expose that person to the risk of serious physical injury.

Unlawful imprisonment in the first degree is a class G felony.

§ 783. Kidnapping in the second degree; class C felony

Updated: 
April 8, 2020

A person is guilty of kidnapping in the second degree when the person unlawfully restrains another person with any of the following purposes:

(1) To hold the victim for ransom or reward; or

(2) To use the victim as a shield or hostage; or

(3) To facilitate the commission of any felony or flight thereafter; or

(4) To inflict physical injury upon the victim, or to violate or abuse the victim sexually; or

(5) To terrorize the victim or a third person; or

(6) To take or entice any child less than 18 years of age from the custody of the child’s parent, guardian or lawful custodian;

and the actor voluntarily releases the victim alive, unharmed and in a safe place prior to trial.

Kidnapping in the second degree is a class C felony.

§ 783A. Kidnapping in the first degree; class B felony

Updated: 
April 8, 2020

A person is guilty of kidnapping in the first degree when the person unlawfully restrains another person with any of the following purposes:

(1) To hold the victim for ransom or reward; or

(2) To use the victim as a shield or hostage; or

(3) To facilitate the commission of any felony or flight thereafter; or

(4) To inflict physical injury upon the victim, or to violate or abuse the victim sexually; or

(5) To terrorize the victim or a third person; or

(6) To take or entice any child less than 18 years of age from the custody of the child’s parent, guardian or lawful custodian;

and the actor does not voluntarily release the victim alive, unharmed and in a safe place prior to trial.

Kidnapping in the first degree is a class B felony.

§ 785. Interference with custody; class G felony; class A misdemeanor

Updated: 
April 8, 2020

A person is guilty of interference with custody when:

(1) Being a relative of a child less than 16 years old, intending to hold the child permanently or for a prolonged period and knowing that the person has no legal right to do so, the person takes or entices the child from the child’s lawful custodian; or

(2) Knowing that the person has no legal right to do so, the person takes or entices from lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or an institution.

Interference with custody is a class A misdemeanor except that if the person who interferes with the custody of a child thereafter causes the removal of said child from Delaware, it is a class G felony.

Subpart F. Coercion

Updated: 
April 8, 2020

§ 791. Acts constituting coercion; class A misdemeanor

Updated: 
April 8, 2020

A person is guilty of coercion when the person compels or induces a person to engage in conduct which the victim has a legal right to abstain from engaging in, or to abstain from engaging in conduct in which the victim has a legal right to engage, by means of instilling in the victim a fear that, if the demand is not complied with, the defendant or another will:

(1) Cause physical injury to a person; or

(2) Cause damage to property; or

(3) Engage in other conduct constituting a crime; or

(4) Accuse some person of a crime or cause criminal charges to be instituted against a person; or

(5) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or

(6) Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense; or

(7) Use or abuse the defendant’s position as a public servant by performing some act within or related to the defendant’s official duties, or by failing or refusing to perform an official duty in such manner as to affect some person adversely; or

(8) Perform any other act which is calculated to harm another person materially with respect to that person’s health, safety, business, calling, career, financial condition, reputation or personal relationships.

Coercion is a class A misdemeanor.

Subchapter III. Offenses Involving Property

Updated: 
April 8, 2020

Subpart B. Criminal Trespass and Burglary

Updated: 
April 8, 2020

§ 820. Trespassing with intent to peer or peep into a window or door of another; class B misdemeanor

Updated: 
April 8, 2020

A person is guilty of trespassing with intent to peer or peep into a window or door of another when the person knowingly enters upon the occupied property or premises of another utilized as a dwelling, with intent to peer or peep into the window or door of such property or premises and who, while on such property or premises, otherwise acts in a manner commonly referred to as “Peeping Tom.” Any person violating this section may be referred by the court to the Delaware Psychiatric Center for examination and for treatment. Justices of the peace shall have concurrent jurisdiction of violations of this section.

Trespassing with intent to peer or peep into a window or door of another is a class B misdemeanor.

§ 821. Criminal trespass in the third degree; a violation

Updated: 
April 8, 2020

A person is guilty of criminal trespass in the third degree when the person knowingly enters or remains unlawfully upon real property.

Criminal trespass in the third degree is a violation.

§ 822. Criminal trespass in the second degree; unclassified misdemeanor

Updated: 
April 8, 2020

A person is guilty of criminal trespass in the second degree when the person knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner manifestly designed to exclude intruders.

Criminal trespass in the second degree is an unclassified misdemeanor.

§ 823. Criminal trespass in the first degree; class A misdemeanor

Updated: 
April 8, 2020

A person is guilty of criminal trespass in the first degree when the person knowingly enters or remains unlawfully in a dwelling or building used to shelter, house, milk, raise, feed, breed, study or exhibit animals.

Criminal trespass in the first degree is a class A misdemeanor.

§ 824. Burglary in the third degree; class F felony

Updated: 
April 8, 2020

A person is guilty of burglary in the third degree when the person knowingly enters or remains unlawfully in a building with intent to commit a crime therein.

Burglary in the third degree is a class F felony.

§ 825. Burglary in the second degree; class D felony

Updated: 
April 8, 2020

(a) A person is guilty of burglary in the second degree when the person knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein.

(b) A person is guilty of burglary in the second degree when the person knowingly enters or remains unlawfully in a building with intent to commit a crime therein and where the person is armed with explosives or a deadly weapon or where the person causes physical injury to any other person who is not a participant in the crime.

Burglary in the second degree is class D felony.

§ 826. Burglary in the first degree; class C felony

Updated: 
April 8, 2020

(a) A person is guilty of burglary in the first degree when the person knowingly enters or remains unlawfully in an occupied dwelling with intent to commit a crime therein.

(b) A person is guilty of home invasion burglary first degree if the elements of subsection (a) of this section are met and in effecting entry or when in the dwelling or immediate flight therefrom, the person or another participant in the crime engages in the commission of, or attempts to commit, any of the following felonies:

(1) Robbery in the first or second degree;

(2) Assault in the first or second degree;

(3) Murder in the first or second degree;

(4) Manslaughter;

(5) Rape in any degree;

(6) Kidnapping in the first or second degree;

(c) Burglary in the first degree is a class C felony. A person convicted of burglary in the first degree shall receive a minimum sentence of 1 year at Level V.

(d) Notwithstanding any provision of this section or Code to the contrary, where a person is convicted of burglary in the first degree pursuant to subsection (a) of this section and who either (1) is armed with explosives or a deadly weapon; or (2) causes physical injury to any person who is not a participant in the crime, burglary in the first degree is a class B felony.

(e) Notwithstanding any provision of this section or Code to the contrary, any person convicted of home invasion burglary first degree as defined in subsection (b) of this section, shall receive a minimum sentence of 6 years at Level V.

(f) The sentencing provisions applicable to this section apply to the attempted burglary in the first degree as well as attempted home invasion burglary in the first degree.

(g) It is no defense that the accused did not know that the dwelling was occupied at the time of entry.

Subpart D. Theft and Related Offenses

Updated: 
April 8, 2020

§ 854. Identity theft; class D felony

Updated: 
April 8, 2020

(a) A person commits identity theft when the person knowingly or recklessly obtains, produces, possesses, uses, sells, gives or transfers personal identifying information belonging or pertaining to another person without the consent of the other person and with intent to use the information to commit or facilitate any crime set forth in this title.

(b) A person commits identity theft when the person knowingly or recklessly obtains, produces, possesses, uses, sells, gives or transfers personal identifying information belonging or pertaining to another person without the consent of the other person, thereby knowingly or recklessly facilitating the use of the information by a third person to commit or facilitate any crime set forth in this title.

(c) For the purposes of this section, “personal identifying information” includes name, address, birth date, Social Security number, driver’s license number, telephone number, financial services account number, savings account number, checking account number, payment card number, identification document or false identification document, electronic identification number, educational record, health care record, financial record, credit record, employment record, e-mail address, computer system password, mother’s maiden name or similar personal number, record or information.

(d) Identity theft is a class D felony.

(e) When a person is convicted of or pleads guilty to identity theft, the sentencing judge shall order full restitution for monetary loss, including documented loss of wages and reasonable attorney fees, suffered by the victim.

(f) Prosecution under this section does not preclude prosecution or sentencing under any other section of this Code.

§ 854A. Identity theft passport; application; issuance

Updated: 
April 8, 2020

(a) The Office of the Attorney General, in cooperation with any law-enforcement agency, may issue an identity theft passport to a person who is a victim of identity theft in this State and who has filed a police report citing that such person is a victim of a violation of § 854 of this title. A person who has filed with a law-enforcement agency a police report alleging identity theft may apply for an identity theft passport through any law-enforcement agency. The agency shall send a copy of the application and the supporting police report to the Office of the Attorney General. After processing the application and police report, the Office of the Attorney General may issue to the victim an identity theft passport in the form of a card or certificate which may include photo identification.

(b) A victim of identity theft may present that victim’s identity theft passport issued under subsection (a) of this section to the following:

(1) A law-enforcement agency to help prevent the victim’s arrest or detention for an offense committed by someone other than the victim who is using the victim’s identity;

(2) Any of the victim’s creditors to aid in a creditor’s investigation and establishment of whether fraudulent charges were made against accounts in the victim’s name or whether accounts were opened using the victim’s identity;

(3) A consumer reporting agency, as defined in § 603(f) of the federal Fair Credit Reporting Act (15 U.S.C. § 1681a(f)), which must accept the passport as an official notice of a dispute and must include notice of the dispute in all future reports that contain disputed information caused by the identity theft.

(c) Acceptance or rejection of an identity theft passport presented by the victim to a law-enforcement agency or creditor pursuant to paragraph (b)(1) or (2) of this section is at the discretion of the law-enforcement agency or creditor. In making a decision for acceptance or rejection, a law-enforcement agency or creditor may consider the surrounding circumstances and available information regarding the offense of identity theft pertaining to the victim.

(d) An application made with the Office of the Attorney General pursuant to subsection (a) of this section, including any supporting documentation, is confidential criminal justice information, is not a public record, and is specifically exempted from public disclosure under the Freedom of Information Act, Chapter 100 of Title 29. However, the Office of the Attorney General may provide access to applications and supporting documentation filed pursuant to this section to other criminal justice agencies in this or another State.

(e) The Office of the Attorney General shall adopt regulations to implement this section. The regulations must include a procedure by which the Office of the Attorney General is reasonably assured that an identity theft passport applicant has an identity theft claim that is legitimate and adequately substantiated.

Subpart I. Other Frauds and Cheats

Updated: 
April 8, 2020

§ 907. Criminal impersonation; class A misdemeanor

Updated: 
April 8, 2020

A person is guilty of criminal impersonation when the person:

(1) Impersonates another person and does an act in an assumed character intending to obtain a benefit or to injure or defraud another person; or

(2) Pretends to be a representative of some person or organization and does an act in a pretended capacity with intent to obtain a benefit or to injure or defraud another person; or

(3) Pretends to be a public servant, or wears or displays without authority any identification, uniform or badge by which a public servant is lawfully distinguished or identified.

Criminal impersonation is a class A misdemeanor.

Subchapter VI. Offenses Against Public Administration

Updated: 
April 8, 2020

Subpart F. Offenses Relating to Judicial and Similar Proceedings

Updated: 
April 8, 2020

§ 1271A. Criminal contempt of a domestic violence protective order; class A misdemeanor; class F felony

Updated: 
April 8, 2020

(a) A person is guilty of criminal contempt of a domestic violence protective order when the person knowingly violates or fails to obey any provision of a protective order issued by: the Family Court; a court of any state, territory, or Indian nation in the United States, as long as such violation or failure to obey occurred in Delaware; or a court of Canada, as long as such violation or failure to obey occurred in Delaware.

(b) Criminal contempt of a domestic violence protective order is a class A misdemeanor, unless any of the elements set forth in subsection (c) of this section are met, in which case the offense shall be a class F felony.

(c) A person is guilty of felony criminal contempt of a domestic violence protective order if:

(1) Such contempt resulted in physical injury; or

(2) Such contempt involved the use or threatened use of a deadly weapon.

(d) A person found guilty of criminal contempt of a domestic violence protective order shall receive a minimum sentence of 15 days incarceration if:

(1) Such contempt resulted in physical injury; or

(2) Such contempt involved the use or threatened use of a deadly weapon; or

(3) The defendant was convicted of criminal contempt of a domestic violence protective order under this section on 2 or more occasions prior to this violation.

(e) The minimum sentence shall not be subject to suspension and no person subject to the minimum sentence shall be eligible for probation, parole, furlough or suspended custody during said sentence.

Subchapter VII. Offenses Against Public Health, Order and Decency

Updated: 
April 8, 2020

Subpart A. Riot, Disorderly Conduct and Related Offenses

Updated: 
April 8, 2020

§ 1311. Harassment; class A misdemeanor

Updated: 
April 8, 2020

(a) A person is guilty of harassment when, with intent to harass, annoy or alarm another person:

(1) That person insults, taunts or challenges another person or engages in any other course of alarming or distressing conduct which serves no legitimate purpose and is in a manner which the person knows is likely to provoke a violent or disorderly response or cause a reasonable person to suffer fear, alarm, or distress;

(2) Communicates with a person by telephone, telegraph, mail or any other form of written or electronic communication in a manner which the person knows is likely to cause annoyance or alarm including, but not limited to, intrastate telephone calls initiated by vendors for the purpose of selling goods or services;

(3) Knowingly permits any telephone under that person’s control to be used for a purpose prohibited by this section;

(4) In the course of a telephone call that person uses obscene language or language suggesting that the recipient of the call engage with that person or another person in sexual relations of any sort, knowing that the person is thereby likely to cause annoyance or alarm to the recipient of the call; or

(5) Makes repeated or anonymous telephone calls to another person whether or not conversation ensues, knowing that person is thereby likely to cause annoyance or alarm.

(b) Harassment is a class A misdemeanor.

§ 1312. Stalking; class G felony, class F felony, class C felony

Updated: 
April 8, 2020

(a) A person is guilty of stalking when the person knowingly engages in a course of conduct directed at a specific person and that conduct would cause a reasonable person to:

(1) Fear physical injury to himself or herself or that of another person; or

(2) Suffer other significant mental anguish or distress that may, but does not necessarily, require medical or other professional treatment or counseling.

(b) A violation of subsection (a) of this section is a class G felony.

(c) Stalking is a class F felony if a person is guilty of stalking and 1 or more of the following exists:

(1) The person is age 21 or older and the victim is under the age of 14; or

(2) The person violated any order prohibiting contact with the victim; or

(3) The victim is age 62 years of age or older; or

(4) The course of conduct includes a threat of death or threat of serious physical injury to the victim, or to another person; or

(5) The person causes physical injury to the victim.

(d) Stalking is a class C felony if the person is guilty of stalking and 1 or more of the following exists:

(1) The person possesses a deadly weapon during any act; or

(2) The person causes serious physical injury to the victim.

(e) Definitions.–The following terms shall have the following meaning as used in this section:

(1) “Course of conduct” means 3 or more separate incidents, including, but not limited to, acts in which the person directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveys, threatens, or communicates to or about another, or interferes with, jeopardizes, damages, or disrupts another’s daily activities, property, employment, business, career, education, or medical care. A conviction is not required for any predicate act relied upon to establish a course of conduct. A conviction for any predicate act relied upon to establish a course of conduct does not preclude prosecution under this section. Prosecution under this section does not preclude prosecution under any other section of the Code.

(2) “A reasonable person” means a reasonable person in the victim’s circumstances.

(f) Notwithstanding any contrary provision of § 4205 of this title, any person who commits the crime of stalking by engaging in a course of conduct which includes any act or acts which have previously been prohibited by a then-existing court order or sentence shall receive a minimum sentence of 6 months incarceration at Level V. The first 6 months of said period of incarceration shall not be subject to suspension.

(g) Notwithstanding any contrary provision of § 4205 of this title, any person who is convicted of stalking within 5 years of a prior conviction of stalking shall receive a minimum sentence of 1 year incarceration at Level V. The first year of said period of incarceration shall not be subject to suspension.

(h) In any prosecution under this law, it shall not be a defense that the perpetrator was not given actual notice that the course of conduct was unwanted; or that the perpetrator did not intend to cause the victim fear or other emotional distress.

(i) In any prosecution under this section, it is an affirmative defense that the person charged was engaged in lawful picketing.

(j) This section shall not apply to conduct which occurs in furtherance of legitimate activities of law-enforcement, private investigators, security officers or private detectives as those activities are defined in Chapter 13 of Title 24.

§ 1335. Violation of privacy; class A misdemeanor; class G felony

Updated: 
April 8, 2020

(a) A person is guilty of violation of privacy when, except as authorized by law, the person:

(1) Trespasses on property intending to subject anyone to eavesdropping or other surveillance in a private place; or

(2) Installs in any private place, without consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place; or

(3) Installs or uses outside a private place any device for hearing, recording, amplifying or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy there; or

(4) Intercepts without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation; or

(5) Divulges without the consent of the sender and the receiver the existence or contents of any message by telephone, telegraph, letter or other means of communicating privately if the accused knows that the message was unlawfully intercepted or if the accused learned of the message in the course of employment with an agency engaged in transmitting it.

(6) Tape records, photographs, films, videotapes or otherwise reproduces the image of another person who is getting dressed or undressed or has that person’s genitals, buttocks or her breasts exposed, without consent, in any place where persons normally disrobe including but not limited to a fitting room, dressing room, locker room or bathroom, where there is a reasonable expectation of privacy. This paragraph shall not apply to any acts done by a parent or guardian inside of that person’s dwelling, or upon that person’s real property, when a subject of victim of such acts is intended to be any child of such parent or guardian who has not yet reached that child’s eighteenth birthday and whose primary residence is in or upon the dwelling or real property of the parent or guardian, unless the acts done by the parent or guardian are intended to produce sexual gratification for any person in which case this paragraph shall apply; or

(7) Secretly or surreptitiously videotapes, films, photographs or otherwise records another person under or through that person’s clothing for the purpose of viewing the body of or the undergarments worn by that other person; or

(8) Knowingly installs an electronic or mechanical location tracking device in or on a motor vehicle without the consent of the registered owner, lessor or lessee of said vehicle. This paragraph shall not apply to the lawful use of an electronic tracking device by a law-enforcement officer, nor shall it apply to a parent or legal guardian who installs such a device for the purpose of tracking the location of a minor child thereof; or

(9) Knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a visual depiction of a person who is nude, or who is engaging in sexual conduct, when the person knows or should have known that the reproduction, distribution, exhibition, publication, transmission, or other dissemination was without the consent of the person depicted and that the visual depiction was created or provided to the person under circumstances in which the person depicted has a reasonable expectation of privacy.

a. For the purposes of the introductory paragraph of this paragraph (a)(9), paragraphs (a)(9)b., and (a)(9)d. of this section:

1. “Nude” means any 1 or more of the following uncovered parts of the human body, or parts of the human body visible through less than opaque clothing:

A. The genitals;

B. The pubic area;

C. The buttocks;

D. Any portion of the female breast below the top of the areola.

2. “Personally identifiable information” means any information about a person that permits the physical or online identifying or contacting of a person. The term includes either a person’s face or a person’s first and last name or first initial and last name in combination with any 1 or more of the following:

A. A home or other physical address, including street name and name of a city or town;

B. An e-mail address;

C. A telephone number;

D. Geolocation data;

E. Any other identifier that permits the physical or online identifying or contacting of a person.

3. “Sexual conduct” means actual or simulated:

A. Sexual contact;

B. Sexual intercourse;

C. Sexual penetration;

D. Masturbation;

E. Bestiality;

F. Sadism;

G. Masochism; or

H. Explicit representations of the defecation or urination functions.

4. “Sexual contact” means any touching by 1 person of the uncovered anus, breast, buttocks, or genitalia of another person or any touching of a person with the uncovered anus, breasts, buttocks or genitalia of another person.

5. “Sexual intercourse” means any act of physical union of the genitalia or anus of a person with the mouth, anus, or genitalia of another person.

6. “Sexual penetration” means the placement of an object inside the anus or vagina of a person or the placement of a sexual device inside the mouth of a person.

7. “Visual depiction” shall have the meaning as used in § 1100 of this title.

b. A person who has, within the context of a private or confidential relationship, consented to the capture or possession of a visual depiction of the person when nude or when engaging in sexual conduct retains a reasonable expectation of privacy with regard to the reproduction, distribution, exhibition, publication, transmission, or other dissemination of the visual depiction beyond that relationship.

c. For the purposes of this paragraph (a)(9), each of the following shall be an aggravating factor and shall be alleged in the charging information or indictment and constitute an element of the offense:

1. The actor knowingly obtains such visual depictions without the consent of the person depicted.

A. A violation of this paragraph (a)(9)c.1. occurs when a person commits a theft as provided for in § 841, § 842, § 843, or § 844 of this title or obtains such visual depictions by committing unauthorized access to a computer system as provided for in § 932 of this title or by unauthorized access to electronic mail or an electronic mail service provider as defined in § 931 of this title.

B. A violation of this paragraph (a)(9)c.1. consistent with § 932 of this title is subject to the venue provision in § 940 of this title.

2. The actor knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates such visual depictions for profit.

3. The actor knowingly maintains an Internet website, online service, online application, or mobile application for the purpose of reproducing, distributing, exhibiting, publishing, transmitting, or otherwise disseminating such visual depictions.

4. The actor knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates such visual depictions with the intent to harass, annoy, or alarm the person depicted and such conduct would cause a reasonable person to suffer significant mental anguish or distress.

5. The actor pairs such visual depiction with personally identifiable information of the person depicted.

d. For purposes of this paragraph (a)(9), the fact the actor committed this offense within 5 years of a prior conviction for a violation of this paragraph (a)(9) shall be an aggravating factor for sentencing purposes only and, therefore, this fact is not to be alleged in the charging information or indictment and does not constitute an element of the offense.

e. In addition to when the consent of the person depicted is given, the introductory paragraph of this paragraph (a)(9) and paragraph (a)(9)b. of this section do not apply to any of the following:

1. When the visual depiction is of an individual less than 18 years of age and does not violate § 1108, § 1109, or § 1111 of this title, or any similar provision of this title, and the reproduction, distribution, exhibition, publication, transmission, or other dissemination is not for commercial purposes.

2. When the visual depiction is reproduced, distributed, exhibited, published, transmitted, or otherwise disseminated in the course of lawful and common practices of a law-enforcement officer, the reporting of unlawful conduct, legal proceedings, or medical treatment procedures.

3. When the person depicted has consented to the reproduction, distribution, exhibition, transmission, or other dissemination of the visual depiction for commercial purposes.

4. When the person depicted has voluntarily appeared nude in public or voluntarily engages in sexual conduct in public.

5. When the reproduction, distribution, exhibition, publication, transmission, or other dissemination serves a legitimate public purpose.

f. Nothing within this paragraph (a)(9) shall be construed to impose liability on an interactive computer service, as defined in 47 U.S.C. § 230(f)(2), or an information service or telecommunications service, as defined in 47 U.S.C. § 153, for content provided by the actor or another person.

(b) This section does not apply to:

(1) Overhearing of messages through a regularly installed instrument on a telephone party line or an extension or any other regularly installed instrument or equipment; or

(2) Acts done by the telephone company or subscribers incident to the enforcement of telephone company regulations or subscriber rules relating to the use of facilities; or

(3) Acts done by personnel of any telephone or telegraph carrier in the performance of their duties in connection with the construction, maintenance or operation of a telephone or telegraph system; or

(4) The divulgence of the existence of any message in response to a subpoena issued by a court of competent jurisdiction or a governmental body having subpoena powers; or

(5) Acts done by police officers as provided in §§ 1336 [repealed] and 1431 of this title.

(c) Any violation of paragraph (a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(8), or (a)(9) of this section shall be a class A misdemeanor. Any violation of paragraph (a)(6), (a)(7), (a)(9)c., or (a)(9)d. of this section shall be a class G felony.

Subpart E. Offenses Involving Deadly Weapons and Dangerous Instruments

Updated: 
April 8, 2020

§ 1448. Possession and purchase of deadly weapons by persons prohibited; penalties

Updated: 
April 8, 2020

(a) Except as otherwise provided in this section, the following persons are prohibited from purchasing, owning, possessing, or controlling a deadly weapon or ammunition for a firearm within the State:

(1) Any person having been convicted in this State or elsewhere of a felony or a crime of violence involving physical injury to another, whether or not armed with or having in possession any weapon during the commission of such felony or crime of violence;

(2) Any person who meets any of the following:

a. Has been involuntarily committed for a mental condition under Chapter 50 of Title 16 , unless the person can demonstrate that the person is no longer prohibited from possessing a firearm under § 1448A(l) of this title.

b. For a crime of violence, has been found not guilty by reason of insanity or guilty but mentally ill, including any juvenile who has been found not guilty by reason of insanity or guilty but mentally ill, unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm under § 1448A(l) of this title.

c. For a crime of violence, has been found mentally incompetent to stand trial, including any juvenile who has been found mentally incompetent to stand trial, unless there has been a subsequent finding that the person has become competent, or unless such person can demonstrate that he or she is no longer prohibited from possessing a firearm under § 1448A(l) of this title.

d. Is the subject of an order of relinquishment issued under § 1448C of this title.

(3) Any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug or central nervous system depressant or stimulant as those terms were defined prior to the effective date of the Uniform Controlled Substances Act in June 1973 or of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16;

(4) Any person who, as a juvenile, has been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony, unless and until that person has reached their twenty-fifth birthday;

(5) Any juvenile, if said deadly weapon is a handgun, unless said juvenile possesses said handgun for the purpose of engaging in lawful hunting, instruction, sporting or recreational activity while under the direct or indirect supervision of an adult. For the purpose of this subsection, a “handgun” shall be defined as any pistol, revolver or other firearm designed to be readily capable of being fired when held in 1 hand;

(6) Any person who is subject to a Family Court protection from abuse order (other than an ex parte order), but only for so long as that order remains in effect or is not vacated or otherwise terminated, except that this paragraph shall not apply to a contested order issued solely upon § 1041(1)d., e., or h. of Title 10, or any combination thereof;

(7) Any person who has been convicted in any court of any misdemeanor crime of domestic violence. For purposes of this paragraph, the term “misdemeanor crime of domestic violence” means any misdemeanor offense that:

a. Was committed by a member of the victim’s family, as “family” is defined in § 901 of Title 10 (regardless, however, of the state of residence of the parties); by a former spouse of the victim; by a person who cohabited with the victim at the time of or within 3 years prior to the offense; by a person with a child in common with the victim; or by a person with whom the victim had a substantive dating relationship, as defined in § 1041 of Title 10, at the time of or within 3 years prior to the offense; and

b. Is an offense as defined under § 601, § 602, § 603, § 611, § 614, § 621, § 625, § 628A, § 763, § 765, § 766, § 767, § 781, § 785 or § 791 of this title, or any similar offense when committed or prosecuted in another jurisdiction; or

(8) Any person who, knowing that he or she is the defendant or co-defendant in any criminal case in which that person is alleged to have committed any felony under the laws of this State, the United States or any other state or territory of the United States, becomes a fugitive from justice by failing to appear for any scheduled court proceeding pertaining to such felony for which proper notice was provided or attempted. It is no defense to a prosecution under this paragraph that the person did not receive notice of the scheduled court proceeding.

(9) Any person, if the deadly weapon is a semi-automatic or automatic firearm, or a handgun, who, at the same time, possesses a controlled substance in violation of § 4763, or § 4764 of Title 16.

(10) Except for ‘‘antique firearms’’, any validly seized deadly weapons or ammunition from a person prohibited as a result of a felony conviction under Delaware law, federal law or the laws of any other state, or as otherwise prohibited under this subsection (a) of this section may be disposed of by the law enforcement agency holding the weapon or ammunition, pursuant to § 2311 of this title.

a. ‘‘Antique firearm’’ means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily restored to a firing condition.

b. A person prohibited under this section has the burden of proving that the subject firearm is an antique firearm as defined in paragraph (a)(10)a. of this section subject to an exemption under this section and § 2311 of this title.

(11) Any person who is subject to a lethal violence protection order, issued under § 7704 of Title 10, but only for so long as that order remains in effect or is not vacated or otherwise terminated under Chapter 77 of Title 10;

(b) Any prohibited person as set forth in subsection (a) of this section who knowingly possesses, purchases, owns or controls a deadly weapon or ammunition for a firearm while so prohibited shall be guilty of possession of a deadly weapon or ammunition for a firearm by a person prohibited.

(c) Possession of a deadly weapon by a person prohibited is a class F felony, unless said deadly weapon is a firearm or ammunition for a firearm, and the violation is one of paragraphs (a)(1)-(8) of this section, in which case it is a class D felony, or unless the person is eligible for sentencing pursuant to subsection (e) of this section, in which case it is a class C felony. As used herein, the word “ammunition” shall mean 1 or more rounds of fixed ammunition designed for use in and capable of being fired from a pistol, revolver, shotgun or rifle but shall not mean inert rounds or expended shells, hulls or casings.

(d) Any person who is a prohibited person solely as the result of a conviction for an offense which is not a felony shall not be prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm if 5 years have elapsed from the date of conviction.

(e)(1) Notwithstanding any provision of this section or Code to the contrary, any person who is a prohibited person as described in this section and who knowingly possesses, purchases, owns or controls a firearm or destructive weapon while so prohibited shall receive a minimum sentence of:

a. Three years at Level V, if the person has previously been convicted of a violent felony;

b. Five years at Level V, if the person does so within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or

c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony.

(2) Any person who is a prohibited person as described in this section because of a conviction for a violent felony and who, while in possession or control of a firearm in violation of this section, negligently causes serious physical injury to or the death of another person through the use of such firearm, shall be guilty of a class B felony and shall receive a minimum sentence of:

a. Four years at Level V; or

b. Six years at Level V, if the person causes such injury or death within 10 years of the date of conviction for any violent felony or the date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, whichever is the later date; or

c. Ten years at Level V, if the person has been convicted on 2 or more separate occasions of any violent felony.

d. Nothing in this paragraph shall be deemed to be a related or included offense of any other provision of this Code. Nothing in this paragraph shall be deemed to preclude prosecution or sentencing under any other provision of this Code nor shall this paragraph be deemed to repeal any other provision of this Code.

(3) Any sentence imposed pursuant to this subsection shall not be subject to the provisions of § 4215 of this title. For the purposes of this subsection, “violent felony” means any felony so designated by § 4201(c) of this title, or any offense set forth under the laws of the United States, any other state or any territory of the United States which is the same as or equivalent to any of the offenses designated as a violent felony by § 4201(c) of this title.

(4) Any sentence imposed for a violation of this subsection shall not be subject to suspension and no person convicted for a violation of this subsection shall be eligible for good time, parole or probation during the period of the sentence imposed.

(f)(1) Upon conviction, any person who is a prohibited person as described in paragraph (a)(5) of this section and who is 15 years of age or older is declared a child in need of mandated institutional treatment and shall, for a first offense, receive a minimum sentence of 6 months of Level V incarceration or institutional confinement, and shall receive a minimum sentence of 1 year of Level V incarceration or institutional confinement for a second and each subsequent offense, which shall not be subject to suspension. Any sentence imposed pursuant to this subsection shall not be subject to §§ 4205(b) and 4215 of this title.

(2) The penalties prescribed by this subsection and subsection (g) of this section shall be imposed regardless of whether or not the juvenile is determined to be amenable to the rehabilitative process of the Family Court pursuant to § 1010(c) of Title 10 or any successor statute.

(g) In addition to the penalties set forth in subsection (f) of this section herein, a person who is a prohibited person as described in paragraph (a)(5) of this section and who is 14 years of age or older shall, upon conviction of a first offense, be required to view a film and/or slide presentation depicting the damage and destruction inflicted upon the human body by a projectile fired from a gun, and shall be required to meet with, separately or as part of a group, a victim of a violent crime, or with the family of a deceased victim of a violent crime. The Division of Youth Rehabilitative Service, with the cooperation of the Division of Forensic Science and the Violent Crimes Compensation Board, shall be responsible for the implementation of this subsection.

§ 1448C. Civil procedures to relinquish firearms or ammunition

Updated: 
April 8, 2020

(a) For the purposes of this section:

(1) “Ammunition” means as defined in § 1448(c) of this title.

(2) “Dangerous to others” means that by reason of mental condition there is a substantial likelihood that the person will inflict serious bodily harm upon another person within the reasonably foreseeable future. This determination must take into account a person’s history, recent behavior, and any recent act or threat.

(3) “Dangerous to others or self” means as “dangerous to others” and “dangerous to self” are defined in this subsection.

(4) “Dangerous to self” means that by reason of mental condition there is a substantial likelihood that the person will sustain serious bodily harm to oneself within the reasonably foreseeable future. This determination must take into account a person’s history, recent behavior, and any recent act or threat.

(5) “Law enforcement agency” means an agency established by this State, or by any county or municipality within this State, to enforce criminal laws or investigate suspected criminal activity.

(b) If, after October 30, 2018, a law enforcement agency receives a written report about an individual under § 5402 or § 5403 of Title 16, the law enforcement agency shall determine if there is probable cause that the individual is dangerous to others or self and in possession of firearms or ammunition.

(1)a. If the law enforcement agency determines that there is probable cause that the individual is dangerous to others or self and in possession of firearms or ammunition, the law enforcement agency shall do both of the following:

1. Immediately seek an order from the Justice of the Peace Court that the individual relinquish any firearms or ammunition owned, possessed, or controlled by the individual.

2. Immediately refer the report under § 5402 or § 5403 of Title 16 and its investigative findings to the Department of Justice.

b. In making the probable cause determination under paragraph (b)(1)a. of this section, a law enforcement agency must determine if the individual is subject to involuntary commitment under §§ 5009, 5011, or 5013 of Title 16. If the individual is subject of involuntary commitment, the law enforcement agency may not seek an order under this paragraph (b)(1).

(2) The Department of Justice may, upon review of the report and the law enforcement agency’s investigative findings, petition the Superior Court for an order that the individual relinquish any firearms or ammunition owned, possessed, or controlled by the individual. The Department of Justice must file 1 of the following with the Superior Court within 30 days after the entry of the Justice of the Peace Court’s order under paragraph (d)(1) of this section:

a. A petition under this paragraph (b)(2).

b. A petition requesting additional time to file a petition under this paragraph (b)(2) for good cause shown.

1. If the Superior Court denies the Department of Justice’s request for additional time to file a petition under this paragraph (b)(2)b., the Department of Justice has either the remainder of the 30 days provided by this paragraph (b)(2) or 7 days from the date of the Superior Court’s denial, whichever is longer, to file a petition with Superior Court under this paragraph (b)(2).

2. If the Superior Court approves the Department of Justice’s request for additional time to file a petition under this paragraph (b)(2)b., the Court may not grant the Department more than 15 days to file the petition from the date of the Court’s approval.

(3) If the Department of Justice does not file a petition with Superior Court under paragraph (b)(2) of this section within the timeframes under paragraph (b)(2) of this section, the Justice of the Peace Court’s order is void and a law enforcement agency holding the firearms or ammunition of the individual subject to the order must return the firearms or ammunition to the individual.

(c)(1) The following procedures govern a proceeding under paragraph (b)(1)a. of this section:

a. The Justice of the Peace Court shall immediately hear a request for an order under paragraph (b)(1)a. of this section.

b. The law enforcement agency has the burden of demonstrating that proof by a preponderance of the evidence exists to believe that the individual subject to a report under § 5402 or § 5403 of Title 16 is dangerous to others or self and in possession of firearms or ammunition.

c. The individual does not have the right to be heard or to notice that the law enforcement agency has sought an order under paragraph (b)(1)a. of this section.

(2) The following procedures govern a proceeding under paragraph (b)(2) of this section:

a. The individual has the right to be heard.

b. If a hearing is requested, it must be held within 15 days of the Department of Justice’s filing of the petition under paragraph (b)(2) of this section, unless extended by the Court for good cause shown.

c. If a hearing is held, the individual has the right to notice of the hearing, to present evidence, and to cross examine adverse witnesses.

d. If a hearing is held, the hearing must be closed to the public and testimony and evidence must be kept confidential, unless the individual requests the hearing be public.

e. If a hearing is held, the hearing must be on the record to allow for appellate review.

f. The Department of Justice has the burden of proving by clear and convincing evidence that the individual is dangerous to others or self.

(3)a. The Justice of the Peace Court may adopt additional rules governing proceedings under paragraph (b)(1)a. of this section.

b. The Superior Court may adopt additional rules governing proceedings under paragraph (b)(2) of this section.

(d)(1) If the Justice of the Peace Court finds, by a preponderance of the evidence, that an individual is dangerous to others or self, the Court shall order the individual to relinquish any firearms or ammunition owned, possessed, or controlled by the individual. The Court may do any of the following through its order:

a. Require the individual to relinquish to a law-enforcement agency receiving the Court’s order any firearms or ammunition owned, possessed, or controlled by the individual.

b. Prohibit the individual from residing with another individual who owns, possesses, or controls firearms or ammunition. Nothing in this section may be construed to impair or limit the rights, under the Second Amendment to the United States Constitution or article I, § 20 of the Delaware Constitution, of an individual who is not the subject of the Court’s order of relinquishment.

c. Direct a law-enforcement agency having jurisdiction where the individual resides or the firearms or ammunition are located to immediately search for and seize any firearms or ammunition owned, possessed, or controlled by the individual.

(2) If the Superior Court finds by clear and convincing evidence that an individual is dangerous to others or self, the Court shall order the individual to relinquish any firearms or ammunition owned, possessed, or controlled by the individual. The Court may do any of the following through its order:

a. Require the individual to relinquish to a law-enforcement agency receiving the Court’s order any firearms or ammunition owned, possessed, or controlled by the individual.

b. Allow the individual to voluntarily relinquish to a law-enforcement agency receiving the Court’s order any firearms or ammunition owned, possessed, or controlled by the individual.

c. Allow the individual to relinquish firearms or ammunition owned, possessed, or controlled by the individual to a designee of the individual. A designee of the individual must not reside with the individual and must not be a person prohibited under § 1448 of this title. The Court must find that the designee of the individual will keep firearms or ammunition owned, possessed, or controlled by the individual out of the possession of the individual.

d. Prohibit the individual from residing with another individual who owns, possesses, or controls firearms or ammunition. Nothing in this section may be construed to impair or limit the rights, under the Second Amendment to the United States Constitution or article I, § 20 of the Delaware Constitution, of an individual who is not the subject of the Court’s order of relinquishment.

e. Direct a law-enforcement agency having jurisdiction where the individual resides or the firearms or ammunition are located to immediately search for and seize firearms or ammunition of the individual if the Department of Justice shows that the individual has ownership, possession, or control of a firearm or ammunition.

(e)(1) An individual subject to the Superior Court’s order of relinquishment may petition the Relief from Disabilities Board for an order to return firearms or ammunition under § 1448A(l) of this title.

(2) If the basis for relinquishment under this section is removed by the Relief from Disabilities Board established by § 1448A(l) of this title, any firearms or ammunition taken from the individual must be restored in a timely manner without the additional requirement of petitioning under § 1448A(l) of this title.

(f) Any party in interest aggrieved by a decision of the Superior Court’s order of relinquishment under this section may appeal the decision to the Supreme Court.

(g)(1) The State Police and the Department of Justice shall work with county and municipal law enforcement agencies and the Department of Health and Social Services, and its Division of Substance Abuse and Mental Health, to develop appropriate internal policies and regulations to ensure that personnel who act under this section are trained on appropriate mental health risk assessment procedures and to look for histories of violence.

(2) The Supreme Court, Superior Court, Justice of the Peace Court, Department of Justice, State Police, State Bureau of Identification, Delaware Criminal Justice Information System Board of Managers, and the Department of Health and Social Services may promulgate rules and regulations to carry out the purposes of this section, § 1448(a)(2) of this title, and §§ 5402 and 5403 of Title 16.

Part II. Criminal Procedure Generally

Updated: 
April 8, 2020

Chapter 41. Fines, Costs, Penalties and Forfeitures

Updated: 
April 8, 2020

4121. Community notification of sex offenders on probation, parole, conditional release or release from confinement

Updated: 
April 8, 2020

(a) When used in this subchapter:

(1) “Community notification” means notice which is provided by any method devised specifically to notify members of the public who are likely to encounter a sex offender. Methods of notification may include, but not be limited to, door-to-door appearances, mail, electronic mail, telephone, fax, newspapers or notices, or any combination thereof, to schools, licensed day care facilities, public libraries, any other organization, company or individual upon request, and other accessible public facilities within the community. “Community notification” also includes notice provided through an alert system added to the Delaware State Police Sex Offender Registry Internet Web Site that allows governmental agencies, public officials (such as county or municipal Executives, Mayors, Commissioners, or Council Members), and members of the general public to register to receive updates by geographical region whenever a sex offender is added to, deleted from, or has any change in status on the registry created pursuant to § 4120 of this title. Community notification shall include where possible all information required to be included in the searchable records pursuant to paragraph (a)(3) of this section.

(2) “Conviction” and “convicted” shall include, in addition to their ordinary meanings, adjudications of delinquency and persons who enter a plea of guilty, or are found guilty but mentally ill or not guilty by reason of insanity, as provided in § 401 of this title.

(3) “Searchable records available to the public” means records regarding every sex offender who has been convicted and who is thereafter designated to Risk Assessment Tier II or III pursuant to this section. Such records shall also include the last verified addresses for the offender, and shall identify the specific sex offense or offenses for which the offender was convicted, the date or dates of the convictions and all information required for registration pursuant to § 4120(d)(2) of this title as is practicable given the method of community notification, except that relationship to the victim shall not be a searchable record and age of victim shall be searchable only by age ranges birth to 11 years, 12 to 15 years, 16 to 17 years, and 18 and above. The records may also include other information designated for public access by the Superintendent of the Delaware State Police. Exempt from the records are the identity of the victims, the Social Security number of the offender, and arrests that did not result in conviction. The public access records shall include a warning that information should not be used to unlawfully injure, harass, or commit a crime against any individual named in the registry or residing or working at any reported address. The warning shall note that any such action could result in civil or criminal penalties. These records shall be searchable by the name of the sex offender, by suitable geographic criteria, and by as many other required data elements as is technically feasible. These records shall be made available upon request through police agencies, public libraries, public schools and the Internet. The records shall be maintained by the Superintendent of the Delaware State Police, as set forth in § 4120 of this title, and elsewhere in this section. They shall be updated as often as practicable, but not less than every 3 months.

(4) “Sex offender” means any person who is, or has been:

a. Convicted of any of the offenses specified in §§ 765 through 780, § 787(b)(3)-(4), § 1100A, §§ 1108 through 1112B, § 1335(a)(6), § 1335(a)(7), § 1352(2), § 1353(2) or § 1361(b) of this title, or of any attempt or conspiracy to commit any of the aforementioned offenses; or

b. Any juvenile who is adjudicated delinquent of any offense which would constitute any of the offenses set forth in paragraph (a)(4)a. of this section if that juvenile delinquent had been charged as an adult; or

c. Convicted or adjudicated delinquent of any offense specified in the laws of another state, commonwealth, territory, or other jurisdiction of the United States requiring registration in that jurisdiction, or a conviction or adjudication in any foreign government, which is the same as, or equivalent to, any of the offenses set forth in paragraph (a)(4)a., (a)(4)b. or (a)(4)d. of this section; or convicted of any federal or military offense enumerated in 42 U.S.C. § 16911(5)(A)(iii) and (iv); or

d. Convicted or adjudicated delinquent of a violation of § 783(4) or § 783(6) or § 783A(4) or § 783A(6) of this title; or

e. Charged by complaint, petition, information or indictment with any of the offenses set forth in paragraph (a)(4)a., (a)(4)b., (a)(4)c. or (a)(4)d. of this section, and who thereafter pleads guilty to any offense included in the originally charged offense, as provided in § 206 of this title, if the person is thereafter designated as a sex offender by the sentencing judge pursuant to subsection (c) of this section; or

f. Convicted or adjudicated delinquent of any of the offenses set forth in paragraph (a)(4)a., (a)(4)b., (a)(4)c. or (a)(4)d. of this section, or of any offense which is the same as or equivalent to such offenses as the same existed and were defined under the laws of this State existing at the time of such conviction; or

g. Any person convicted after June 27, 1994, of a violation of § 764 of this title if the person had previously been convicted of the same offense or any other offense set forth in this paragraph, and the previous conviction occurred within 5 years of the date of the conviction for the current offense.

(b) Upon a person’s conviction or adjudication of delinquency or at the time of sentencing for any offense set forth in paragraph (a)(4)a., (a)(4)b., (a)(4)d., (a)(4)e., (a)(4)f., or (a)(4)g. of this section, the court shall inform the person that the person shall be designated as a sex offender and that a Risk Assessment Tier will be assigned to that person by the court, unless pursuant to § 4123 of this title, the Family Court has not required a juvenile adjudicated delinquent of a sex offense to register.

(c) Following the sentencing of a person convicted or adjudicated delinquent for any offense described in paragraph (a)(4)e. of this section, or following a finding by the sentencing court that the person has violated the terms of that person’s own probation or parole as set forth in paragraph (a)(4)f. of this section, the sentencing court shall assign the defendant to the Risk Assessment Tier applicable for the originally charged offense, unless pursuant to § 4123 of this title, the Family Court has not required a juvenile adjudicated delinquent of a sex offense to register.

(d) Sex offenders shall be assigned to a Risk Assessment Tier as follows, unless pursuant to § 4123 of this title, the Family Court has not required a juvenile adjudicated delinquent of a sex offense to register:

(1) Risk Assessment Tier III.–Any sex offender convicted or adjudicated delinquent of any of the following offenses shall be designated by the court to Risk Assessment Tier III:

a. Rape in the first degree, rape in the second degree, rape in the third degree if the offense involved a child under the age of 13 or the offense involved force or threat of physical violence, or was without consent, unlawful sexual contact in the first degree, unlawful sexual intercourse in the first or second degree, unlawful sexual penetration in the first or second degree, unlawful sexual contact in the first degree, sexual abuse of a child by a person in a position of trust, authority or supervision in the first degree, sexual abuse of a child by a person in a position of trust, authority or supervision in the second degree if the offense involved a child under the age of 13, continuous sexual abuse of a child, sexual exploitation of a child, trafficking in persons where the victim is under the age of 13 or the offense involved sexual servitude of a minor through force or threat of force, sexual extortion if the offense involved force or threat of force, dangerous crime against a child if the offense involved force or the threat of force; or

b. Kidnapping in the first or second degree, if a purpose of the crime was to take or entice any child less than 18 years of age from the custody of the child’s parent, guardian, or lawful custodian, where the defendant is not a parent, step parent, or guardian of the victim, to inflict physical injury upon the victim, or to violate or abuse the victim sexually; or

c. Federal offenses found at 18 U.S.C. § 2241, § 2242, § 2244, or any comparable military offense specified by the Secretary of Defense under § 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. § 951 note); or

d. Any attempt or conspiracy to commit any of the offenses set forth in paragraph (d)(1)a. or (d)(1)b. of this section; or

e. Any offense specified in the laws of another state, any territory of the United States or any foreign government, which is the same as, or equivalent to, any offense set forth in paragraphs (d)(1)a. through (d)(1)e. of this section; or

f. Upon motion of the State, any person convicted of any felony set forth in §§ 761 through 777 or §§ 1108through 1112A of this title which is not otherwise set forth in paragraphs (d)(1)a. through (d)(1)c. of this section, if the victim of the offense had not yet reached that victim’s sixteenth birthday at the time of the crime, and if the sentencing court determines by a preponderance of the evidence, after it weighs all relevant evidence which bears upon the particular facts and circumstances of the offense and the character and propensities of the offender, that public safety will be enhanced by assigning the offender to Risk Assessment Tier III.

(2) Risk Assessment Tier II.–Any sex offender convicted or adjudicated delinquent of any of the following offenses shall be designated by the court to Risk Assessment Tier II:

a. Rape in the third degree unless the offense involved a child under 12 or the offense involved force or the threat of physical violence, rape in the fourth degree, sexual abuse of a child by a person in a position of trust, authority or supervision in the second degree unless the offense involved a child under 12, unlawful sexual contact in the second degree, unlawful sexual intercourse in the third degree, unlawful sexual penetration in the third degree, sexual extortion unless the offense involved force or the threat of force, bestiality, dangerous crime against a child unless the offense involved force or the threat of force, unlawfully dealing in child pornography, possession of child pornography, providing obscene materials to a person under the age of 18, sexual solicitation of a child, trafficking in persons where the offense involved sexual servitude of a minor aged 13 to 17 years old unless the offense involved force or threat of force, promoting prostitution in the second degree, promoting prostitution in the first degree; or

b. Federal offenses found at 18 U.S.C. § 2243, § 2244, § 2251, § 2251A, § 2252, § 2252A, § 2260, § 2421, § 2422(b), § 2423(a); or

c. Any comparable military offense specified by the Secretary of Defense under § 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. § 951 note); or

d. Any attempt or conspiracy to commit any of the offenses set forth in paragraph (d)(2)a. of this section; or

e. Any offense specified in the laws of another state, the United States, any territory of the United States or any foreign government, which is the same as, or equivalent to, any of the offenses set forth in paragraph (d)(2)a. and b. of this section; or

f. Upon motion of the State, any person convicted of any offense set forth in §§ 761 through 767 or §§ 1108through 1111 or § 1321(5) or § 1352(2) or § 1353(2) of this title which is not otherwise specified in this paragraph, or in paragraph (d)(1) of this section, if the sentencing court determines by a preponderance of the evidence after it weighs all relevant evidence which bears upon the particular facts and circumstances or details of the commission of the offense and the character and propensities of the offender, that public safety will be enhanced by assigning the offender to Risk Assessment Tier II; or

g. Any person described in paragraph (a)(4)f. of this section.

(3) Risk Assessment Tier I.–Any sex offender not otherwise designated to Risk Assessment Tier II or III in accord with paragraphs (d)(1) and (2) of this section shall be designated by the court to Risk Assessment Tier I. Moreover, offenders convicted of the following federal offenses shall register under Tier I: 18 U.S.C. § 1591; § 1801; § 2252(CP) [sic]; § 2252B; § 2252C; § 2422(a); § 2423(b), (c); § 2424; § 2425; or any comparable military offense specified by the Secretary of Defense under § 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. § 951note).

(4) Notwithstanding any provision of this section to the contrary, any sex offender who has previously been convicted of any offense set forth in paragraph (d)(1) or paragraph (d)(2) of this section and who is thereafter convicted of any second or subsequent offense set forth in paragraph (d)(1) or paragraph (d)(2) of this section shall be designated to Risk Assessment Tier III.

(5) Notwithstanding any provision in this section to the contrary, any sex offender who has previously been convicted of any offense set forth in paragraph (d)(3) of this section and who is thereafter convicted of an offense which would otherwise result in a designation to Risk Assessment Tier I shall be designated to Risk Assessment Tier II if the conviction for the subsequent offense occurred within 5 years of the previous conviction.

(6) Notwithstanding any provision in this section or in § 4120 of this title to the contrary, any person who would otherwise be designated as a sex offender pursuant to this section and to § 4120 of this title may petition the sentencing court for relief from such designation, and from all obligations imposed by this section and § 4120 of this title if:

a. The Tier II or Tier III offense for which the person was convicted was a misdemeanor and the victim was not a child under 13 years of age; and

b. The person has not previously been convicted of a violent felony, or any other offense set forth in paragraph (a)(4) of this section, or of any offense specified in the laws of another state, the United States or any territory of the United States, or any offense in a foreign jurisdiction which is the same as, or equivalent to, such offenses; and

c. The sentencing court determines by a preponderance of the evidence that such person is not likely to pose a threat to public safety if released from the obligations imposed by this section, and by § 4120 of this title.

Notwithstanding anything in this paragraph to the contrary, no person designated as a Tier II or Tier III sex offender shall be afforded relief from designation as a sex offender if the victim of any of the offenses for which the person was convicted were less than 12 years old at the time of the crime, unless the person was also less than 18 years old at the time of the crime in which case the prohibition set forth in this sentence shall not apply. Any person seeking relief from designation as a sex offender under this paragraph shall file a petition with the sentencing court prior to sentencing requesting such relief. The petition shall be granted or denied by the sentencing court after it weighs all relevant evidence which bears upon the particular facts and circumstances of the offense, and the character and propensities of the offender.

(7) In any case in which the State seeks to have the offender designated to a Risk Assessment Tier higher than the presumptive tier, the motion required by this subsection shall be filed by the State before sentencing, provided that such a motion shall be unnecessary if any written plea agreement relating to the conviction clearly informs the defendant of the State’s intention to request a higher Tier designation.

(e)(1) Any person designated as a sex offender who is required to register pursuant to this section shall comply with the registration provisions of § 4120 of this title as follows:

a. For life, if the sex offender is designated to Risk Assessment Tier III, or if the person is designated to Risk Assessment Tier I or II, and has previously been convicted of any of the offenses specified in paragraph (a)(4)a., (a)(4)c. or (a)(4)d. of this section;

b. For 25 years following the sex offender’s release from Level V custody, or for 25 years following the effective date of any sentence to be served at Level IV or below, if the person is designated to Risk Assessment Tier II, and is not otherwise required to register for life pursuant to this subsection, except that any time spent at any subsequent period of Level V custody shall not be counted against such 25-year period; or

c. For 15 years following the sex offender’s release from Level V custody, or for 15 years following the effective date of any sentence to be served at Level IV or below, if the person is designated to Risk Assessment Tier I, and is not otherwise required to register for life pursuant to this subsection, except that any time spent at any subsequent period of Level V custody shall not be counted against such 15-year period.

(2) Notwithstanding any provision in this section to the contrary:

a. Any sex offender designated to Risk Assessment Tier III may petition to the Superior Court for redesignation to Risk Assessment Tier II if 25 years have elapsed from the last day of any Level IV or V sentence imposed at the time of the original conviction, or from the date of sentencing if no Level IV or V sentence was imposed, and the offender has successfully completed an appropriate sex offender treatment program certified by the State, has not been convicted of any crime (other than a motor vehicle offense) during such time. If the offender has been convicted of any subsequent offense (other than a motor vehicle offense) or has been otherwise found to have violated the terms of any probation, parole or conditional release relating to the sentence originally imposed following the conviction for the underlying sex offense, no petition or redesignation shall be permitted until 25 years have elapsed from the date of the subsequent conviction or finding of a violation, during which time no additional convictions or findings of violation can have occurred. Notwithstanding any provision of this section or § 4120 of this title to the contrary, any sex offender who is redesignated from Risk Assessment Tier III to Risk Assessment Tier II shall continue to comply with the registration and re-registration requirements imposed by § 4120(g) upon Tier III offenders for life. Any re-designation from Risk Assessment Tier III to Risk Assessment Tier II shall not release the offender from the requirement of lifetime registration or address verification every 90 days pursuant to § 4120(g)(1)(a) of this title [repealed] and paragraph (e)(1) of this section.

b. Any sex offender designated to Risk Assessment Tier II may petition the Superior Court for redesignation to Risk Assessment Tier I if the victim was not a child under 18 years of age and 10 years have elapsed from the last day of any Level IV or V sentence imposed at the time of the original conviction, or from the date of sentencing if no Level IV or V sentence was imposed, and the offender has successfully completed an appropriate sex offender treatment program certified by the State and has not been convicted of any crime (other than a motor vehicle offense) during such time. If the offender has been convicted of any subsequent offense (other than a motor vehicle offense) or has been otherwise found to have violated the terms of any probation, parole or conditional release relating to the sentence originally imposed following the conviction for the underlying sex offense, no petition or redesignation shall be permitted until 10 years have elapsed from the date of the subsequent conviction or finding of violation, during which time no additional convictions or findings of violation can have occurred.

c. Any sex offender designated to Risk Assessment Tier I may petition the Superior Court for relief from designation as a sex offender, and from all obligations imposed pursuant to this section and § 4120 of this title, if 10 years have elapsed from the last day of any Level IV or V sentence imposed at the time of the original conviction, or from the date of sentencing if no Level IV or V sentence was imposed, and if the offender has successfully completed an appropriate sex offender treatment program certified by the State and has not been convicted of any crime (other than a motor vehicle offense) during such time. If the offender has been convicted of any subsequent offense (other than a motor vehicle offense) or has been otherwise found to have violated the terms of any probation, parole or conditional release relating to the sentence originally imposed following the conviction for the underlying sex offense, no petition or redesignation shall be permitted until 10 years have elapsed from the date of the subsequent conviction or finding of violation, during which time no additional convictions or findings of violation can have occurred.

d. The Superior Court shall not grant a petition for redesignation or relief filed pursuant to this subsection unless:

1. The sex offender establishes, by a preponderance of the evidence, that the public safety no longer requires preservation of the original designation; and

2. The Court provides the Attorney General with notice of the petition and with a reasonable period of time to be heard upon the matter.

e. When considering a petition for redesignation, the Court shall weigh all the relevant evidence which bears upon the character and propensities of the offender, and the facts and circumstances of that offender’s prior offenses. The Court may in its discretion hold a hearing on the petition. If the Court grants the petition, it shall promptly notify the Sex Offender registry.

(f) Whenever a sex offender is released, discharged or paroled from any Level IV or V or other custodial institution after that sex offender has completed a Level IV or V sentence imposed following a conviction for any offense specified in paragraph (a)(4) of this section, the agency having custody over the sex offender at the time of the release, discharge or parole shall provide written notice of the release, discharge or parole to the Superintendent of the Delaware State Police, to the chief law-enforcement officer having jurisdiction over the offender’s intended residence, to the original arresting law-enforcement agency and to the Attorney General. Such notice shall be provided not more than 90 days, and not less than 45 days, prior to the offender’s release, discharge or parole. The notice shall include, but is not limited to, the sex offender’s legal name, and any previously used names, aliases or nicknames, and the age, gender, race and physical characteristics of the sex offender, a photograph of the offender taken within 90 days of that offender’s release, along with any other known identifying factors, the person’s offense history and that person’s place of anticipated future residence, school and/or employment. The notice shall also include a statement of any relevant conditions of release, discharge, parole or probation applicable to the offender. Additionally, the form shall identify or describe that offender’s relationship to the victim. Notwithstanding any law, rule or regulation to the contrary, no person shall be released from any Level V facility unless and until that person has made a good faith effort to cooperate with the appropriate authorities pursuant to this section except that no such person shall be held at Level V pursuant to this subsection beyond the maximum period of such custody originally ordered by the sentencing court. The notice required by this subsection shall be required whenever the offender is released from any Level V facility to any Level IV facility, and again when such offender is released from the Level IV facility.

(g) Whenever a sex offender is sentenced to a period of probation at Level III or below, or is required to pay a fine in any amount following a conviction for any offense specified in paragraph (a)(4) of this section, the sentencing court shall provide the notice specified in subsection (f) of this section to the entities specified therein. This subsection shall not apply whenever a sex offender is sentenced to serve a portion of that sex offender’s sentence at Level IV or Level V, unless such sentence is suspended in its entirety. Notice pursuant to this subsection shall be provided within 3 business days of sentencing.

(h) Upon receipt of the notice specified in subsections (f) and (g) of this section, the Attorney General shall use any reasonable means to notify the victim or victims of the crime or crimes for which the sex offender was convicted of the release or sentencing unless the victim has requested not to be notified. Such notice may include any information provided pursuant to subsections (f) and (g) of this section.

(i) When a sex offender assigned to Risk Assessment Tier II or III provides registration information as provided by § 4120 of this title, the chief law-enforcement officer of the local jurisdiction where the offender intends to reside, or the Superintendent of the State Police if no local police agency exists, shall provide public notification as follows:

(1) For sex offenders assigned to Risk Assessment Tier II, notification shall consist of searchable records available to the public, and may also consist of community notification pursuant to paragraph (l)(3) of this section; or

(2) For sex offenders assigned to Risk Assessment Tier III, notification shall consist of searchable records available to the public as well as community notification.

(3) For sex offenders assigned to Tier II or III, notice shall be given to any school the offender plans to attend and/or to the chief law-enforcement officer of the local jurisdiction where the offender plans to study or be employed.

(j) A complete register of all persons convicted of any of the offenses specified in paragraph (a)(4) of this section, who are thereafter designated sex offenders pursuant to this section, shall be created, maintained and routinely updated and audited by the Delaware State Police. The register shall be immediately accessible by the use of DELJIS computer by all law-enforcement agencies. The register shall be searchable by the name of the sex offender and by suitable geographic criteria.

(k) Notwithstanding any law, rule or regulation to the contrary, if after the exercise of due diligence by the sex offender, the offender is unable to secure an anticipated place of future residence, for the purposes of this subsection the offender shall be designated as “homeless.” “Homeless persons” must report their habitual locale, park or locations during the day and night, public buildings, restaurants, and libraries frequented. The term “homeless” shall also include any person who anticipates a future place of residence in or at any temporary homeless shelter or other similar place of temporary residence for 7 or more days. The fact that a sex offender has secured an anticipated place of future residence at a homeless shelter or other similar place of temporary residence shall be reported by the court or agency having custody of the offender, along with the name and address of the shelter or residence as required by subsections (h) and (i) of this section, but such information shall not be included in any public notification required or permitted by subsection (i) or subsection (j) of this section, except that such information shall be provided to the agency, organization or entity having supervisory or operational authority over such shelter or similar place of temporary residence. Notwithstanding any law, rule or regulation to the contrary, any sex offender who is designated as “homeless” pursuant to this section shall verify the sex offender’s own registration information as follows:

(1) A Tier III sex offender designated as “homeless” shall appear in person at locations designated by the Superintendent of the Delaware State Police to verify all registration information every week following the date of completion of the initial registration form;

(2) A Tier II sex offender designated as “homeless” shall appear in person at locations designated by the Superintendent of the Delaware State Police to verify all registration information every 30 days following the date of completion of the initial registration form;

(3) A Tier I sex offender designated as “homeless” shall appear in person at locations designated by the Superintendent of the Delaware State Police to verify all registration information every 90 days following the date of completion of the initial registration form.

(l)(1) All elected public officials, public employees and public agencies are immune from civil liability for any discretionary decision to release relevant information unless it is shown that the official, employee or agency acted with gross negligence or in bad faith. The immunity provided under this section applies to the release of relevant information to other employees, officials or public agencies as well as to the general public.

(2) There shall be no civil legal remedies available as a cause of action against any public official, public employee or public agency for failing to release information as authorized in this section.

(3) Any information contained in searchable records available to the public may be used in any manner by any person or by any public, governmental or private entity, organization or official, or any agent thereof, for any purpose consistent with the enhancement of public safety.

(m) Notwithstanding any law, rule or regulation to the contrary, upon a finding of probable cause that a sex offender has failed to comply with any provision of § 4120 of this title, the sex offender may be designated to Risk Assessment Tier III until such time as the agency or court to which the sex offender is obligated to provide notice determines that the sex offender is again in compliance with § 4120 of this title. In such cases, the agency or court which investigates the alleged noncompliance shall, upon a finding of probable cause that a violation has occurred, immediately notify the Superintendent of the Delaware State Police that a violation of the provisions of § 4120 of this title has occurred and that, as a result, the sex offender is redesignated to Risk Assessment Tier III until such time as the offender complies fully with § 4120 of this title. The agency or court shall also immediately notify the Superintendent of the Delaware State Police when the sex offender is again in compliance with § 4120 of this title, at which time the sex offender will be returned to that sex offender’s originally designated Risk Assessment Tier.

(n) Notwithstanding any provision of this section to the contrary, any sex offender convicted of any offense specified in paragraph (a)(4)c. of this section shall be designated to a Risk Assessment Tier by the court. The designation shall be in accord with the provisions of subsection (d) of this section.

(o) When a sex offender is designated to a Risk Assessment Tier pursuant to this section, that fact shall be made a part of any written or electronic sentencing order produced by the sentencing court, and shall be entered into the DELJIS system by the sentencing court. The agency responsible for registering the offender shall have the information entered into the DELJIS system for any offender designated pursuant to subsection (n) of this section.

(p) Any agency responsible for complying with this section shall be permitted to promulgate reasonable regulations, policies and procedures to implement this statute. Such rules, regulations, policies and procedures shall be effective and enforceable upon their adoption by the agency, and shall not be subject to Chapter 11 or Chapter 101 of Title 29.

(q) This section shall be effective notwithstanding any law, rule or regulation to the contrary.

(r) Any sex offender who knowingly or recklessly fails to comply with any provision of this section shall be guilty of a class G felony.

(s) Subject to § 4122 of this title, this section shall apply to all persons convicted.

(t)(1) If a school, school district or licensed child care provider receives community notification, the community notification must be placed in a binder and kept in the administrative office available to view upon request by adults and juveniles with adult supervision. No community notification may be removed from the binder unless the school or child care provider is notified of an address change informing them that the offender has moved from the community. The school, school district or licensed child care provider shall notify parents and staff frequently through their regular communications of the availability and location of the community notification binder.

(2) The physical posting of community notifications in public school buildings and licensed child care facilities is prohibited.

(3) Schools shall ensure that students are taught personal safety and awareness skills in an age-appropriate manner consistent with the Delaware Health Education Curriculum Framework.

(u) Notwithstanding any provision of this section or title to the contrary, any Tier III sex offender being monitored at Level IV, III, II or I, shall as a condition of their probation, wear a GPS locator ankle bracelet paid for by the probationer. The obligation to pay for the GPS locator ankle bracelet shall not apply to any juvenile who is adjudicated delinquent and designated a Tier III sex offender pursuant to this title.

(v) If any provision of this subchapter or any amendment hereto, or the application thereof to any person, thing or circumstances is held invalid, such invalidity shall not affect the provisions or application of this subchapter or such amendments that can be given effect without the invalid provisions or application, and to this end the provisions of this subchapter and such amendments are declared to be severable.

Chapter 24. Wiretapping, Electronic Surveillance and Interception of Communications

Updated: 
April 8, 2020

Subchapter I. Electronic Surveillance and Interception of Communications

Updated: 
April 8, 2020

§ 2402. Interception of communications generally; divulging contents of communications, violations of chapter

Updated: 
April 8, 2020

(a) Prohibited acts.–Except as specifically provided in this chapter or elsewhere in this Code no person shall:

(1) Intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, oral or electronic communication;

(2) Intentionally disclose or endeavor to disclose to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this chapter; or

(3) Intentionally use or endeavor to use the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this chapter.

(b) Penalties for violation of subsection (a) of this section.–Any person who violates subsection (a) of this section shall be guilty of a class E felony and be fined not more than $10,000.

(c) Lawful acts.–It is lawful:

(1) For an operator of a switchboard or an officer, employee or agent of a provider of wire or electronic communication service whose facilities are used in the transmission of wire or electronic communication to intercept, disclose or use such communication in the normal course of employment while engaged in any activity that is necessarily incident to the rendition of such person’s service or to the protection of the rights or property of the provider of that service, except that a provider of wire communications service to the public may not utilize service observing or random monitoring except for mechanical or service quality control checks.

(2) For a provider of wire or electronic communication service, its officers, employees and agents, landlords, custodians or other persons to provide information, facilities or technical assistance to persons authorized by federal or State law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, if the provider, its officers, employees or agents, landlord, custodian or other specified person has been provided with a court order signed by an authorizing judge directing the provision of information, facilities or technical assistance.

a. An order as prescribed by this paragraph shall set forth the period of time during which the provision of the information, facilities or technical assistance is authorized and specify the information, facilities or technical assistance required.

b. A provider of wire or electronic communication service, its officers, employees or agents, or landlord, custodian or other specified person may not disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order under this paragraph, except as may otherwise be required by legal process and then only after prior notification to the judge who granted the order, if appropriate, or the Attorney General of this State or the Attorney General’s designee. Any unauthorized disclosure shall render the person liable for compensatory damages.

c. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees or agents, or landlord, custodian or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order issued pursuant to this chapter.

(3) For an investigative or law-enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law-enforcement officer in such investigation pursuant to a court order issued by the Superior Court pursuant to § 2407 of this title to intercept a wire, oral or electronic communication in order to provide evidence of the commission of the offenses including racketeering, murder, kidnapping, human trafficking, gambling, robbery, bribery, extortion, dealing in narcotic drugs or dangerous drugs, dealing in central nervous system depressant or stimulant drugs, controlled substances or counterfeit controlled substances, prison escape, jury tampering, stalking, any felony involving risk of physical injury to a victim or any conspiracy or solicitation to commit any of the foregoing offenses or which may provide evidence aiding in the apprehension of the perpetrator of any of the foregoing offenses.

(4) For a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitutions or laws of the United States, this State or any other state or any political subdivision of the United States or this or any other state.

(5) For a law-enforcement officer in the course of the officer’s regular duty to intercept an oral communication, if:

a. The law-enforcement officer initially detained 1 of the parties and overhears a conversation;

b. The law-enforcement officer is a party to the oral communication;

c. Both parties to the oral communication are present in a law-enforcement facility where there is notice to occupants that such communications are monitored;

d. The law-enforcement officer has been identified as a law-enforcement officer to the other party to the oral communication prior to any interception; or

e. The oral interception is being made as part of a video tape recording.

(6) For an officer, employee or agent of a government emergency communications center to intercept a wire, oral or electronic communication where the officer, agent or employee is a party to a conversation concerning an emergency.

(7) For law-enforcement personnel or those acting under their direction to utilize body wires to intercept oral communications in the course of a criminal investigation when the law-enforcement personnel or a person acting under their direction is a party to the communication. Communications intercepted by such means may be recorded and may be used against the defendant in a criminal proceeding.

(8) For a person:

a. To intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;

b. To intercept any radio communication that is transmitted:

1. By any station for the use of the general public or that relates to ships, aircraft, vehicles or persons in distress;

2. By any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, readily accessible to the general public;

3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band or general mobile radio services; or

4. By any marine or aeronautical communications system;

c. To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment to the extent necessary to identify the source of the interference; or,

d. For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted.

(9) To use a pen register or trap and trace device.

(10) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider or another provider furnishing service toward the completion of the wire or electronic communication or a user of that service, from fraudulent, unlawful or abusive use of the service.

(11) For a person acting under color of law and employed for such purpose by the Department of Correction to intercept an electronic or oral communication of any individual confined to a State correctional facility. At the direction of the Commissioner of Correction or the Commissioner’s designee, a person performing an official investigation into suspected criminal activity may monitor and intercept the incoming and outgoing electronic communication of any individual incarcerated in a State correctional facility. The Department may also employ devices to monitor any incarcerated individual’s incoming and outgoing electronic communication for words or phrases that would justify further investigation. The Department shall not monitor or intercept any communication between an individual confined in a State correctional facility and that individual’s attorney.

(d) Divulging contents of communications.–Except as provided in this subsection, a person or entity providing an electronic communication service to the public may not intentionally divulge the contents of any communication (other than one to the person or entity providing the service, or an agent of the person or entity) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.

(1) A person or entity providing electronic communication service to the public may divulge the contents of a communication:

a. As otherwise authorized by federal or state law;

b. To a person employed or authorized, or whose facilities are used, to forward the communication to its destination; or

c. That were inadvertently obtained by the service provider and that appear to pertain to the commission of a crime, if the divulgence is made to a law-enforcement agency.

(2) Unless the conduct is for the purpose of direct or indirect commercial advantage or private financial gain, conduct that would otherwise be an offense under this subsection is not an offense if the conduct consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted:

a. To a broadcasting station for purposes of retransmission to the general public; or

b. As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls.

(e) Penalties for divulging contents of communications.–Whoever violates subsection (d) of this section shall:

(1) Except as otherwise provided in this subsection, be guilty of a class F felony and fined not more than $10,000.

(2) For any offense that is a first offense:

a. Which was not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; and

b. Which involved a wire or electronic communication that was a radio communication that was not scrambled or encrypted; and

c. Which involved a communication that was not the radio portion of a cellular telephone communication, a public land mobile radio service communication or a paging service communication;

be guilty of a class A misdemeanor.

(3) For any offense that is a first offense:

a. Which was not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; and

b. Which involved a wire or electronic communication that was a radio communication that was not scrambled or encrypted; and

c. Which involved a communication that was the radio portion of a cellular telephone communication, a public land mobile radio service communication or a paging service communication;

be guilty of an unclassified misdemeanor.

(f) Civil liability for violations of § 2402 or § 2403 of this title.–A person who engages in conduct in violation of § 2402 or § 2403 of this title is subject to suit by the federal government or by the State in a court of competent jurisdiction, if the communication is:

(1) A private satellite video communication that is not scrambled or encrypted and the conduct in violation of § 2402 or § 2403 of this title is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or

(2) A radio communication that is transmitted on frequencies allocated under Subpart D of Part 74 [47 C.F.R. § 74.401 et seq.] of the Rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of § 2402 or § 2403 of this title is not for a tortious or illegal purpose or for purpose of direct or indirect commercial advantage or private commercial gain.

(g) Injunctive relief–Civil penalties.–The State is entitled to appropriate injunctive relief in an action under this subsection if the violation is the person’s first offense under paragraph (e)(1) of this section and the person has not been found liable in a prior civil action under § 2409 of this title. However, in any action under this subsection, if the violation is a second or subsequent offense under paragraph (e)(1) of this section or if the person has been found liable in a prior civil action under § 2409 of this title, the person is subject to a mandatory civil fine of not less than $400. The Court may use any means within its authority to enforce an injunction issued under this subsection and shall impose a civil fine of not less than $500 for each violation of an injunction issued under this subsection.

Chapter 42. Classification of Offenses; Sentences

Updated: 
April 8, 2020

§ 4205. Sentence for felonies

Updated: 
April 8, 2020

(a) A sentence of incarceration for a felony shall be a definite sentence.

(b) The term of incarceration which the court may impose for a felony is fixed as follows:

(1) For a class A felony not less than 15 years up to life imprisonment to be served at Level V except for conviction of first degree murder in which event § 4209 of this title shall apply.

(2) For a class B felony not less than 2 years up to 25 years to be served at Level V.

(3) For a class C felony up to 15 years to be served at Level V.

(4) For a class D felony up to 8 years to be served at Level V.

(5) For a class E felony up to 5 years to be served at Level V.

(6) For a class F felony up to 3 years to be served at Level V.

(7) For a class G felony up to 2 years to be served at Level V.

(c) In the case of the conviction of any felony, the court shall impose a sentence of Level V incarceration where a minimum sentence is required by subsection (b) of this section and may impose a sentence of Level V incarceration up to the maximum stated in subsection (b) of this section for each class of felony.

(d) Where a minimum, mandatory, mandatory minimum or minimum mandatory sentence is required by subsection (b) of this section, such sentence shall not be subject to suspension by the court.

(e) Where no minimum sentence is required by subsection (b) of this section, or with regard to any sentence in excess of the minimum required sentence, the court may suspend that part of the sentence for probation or any other punishment set forth in § 4204 of this title.

(f) Any term of Level V incarceration imposed under this section must be served in its entirety at Level V, reduced only for earned “good time” as set forth in § 4381 of this title.

(g) No term of Level V incarceration imposed under this section shall be served in other than a full custodial Level V institutional setting unless such term is suspended by the court for such other level sanction.

(h) The Department of Correction, the remainder of this section notwithstanding, may house Level V inmates at a Level IV work release center or halfway house during the last 180 days of their sentence; provided, however, that the first 5 days of any sentence to Level V, not suspended by the court, must be served at Level V.

(i) The Department of Correction, the remainder of this section notwithstanding, may grant Level V inmates 48-hour furloughs during the last 120 days of their sentence to assist in their adjustment to the community.

(j) No sentence to Level V incarceration imposed pursuant to this section is subject to parole.

(k) In addition to the penalties set forth above, the court may impose such fines and penalties as it deems appropriate.

(l) In all sentences for less than 1 year the court may order that more than 5 days be served in Level V custodial setting before the Department may place the offender in Level IV custody.

Title 13. Domestic Relations

Updated: 
April 8, 2020

Chapter 1. MARRIAGE

Updated: 
April 8, 2020

§ 101. Void and voidable marriages

Updated: 
April 8, 2020

(a) A marriage is prohibited and void between a person and his or her ancestor, descendant, brother, sister, half brother, half sister, uncle, aunt, niece, nephew or first cousin.

(b) A marriage is prohibited, and is void from the time its nullity is declared by a court of competent jurisdiction at the instance of the innocent party, if either party thereto is:

(1)-(5) [Repealed.]

(6) Divorced, unless a certified copy of the divorce decree (last decree if such person has been divorced more than once) or a certificate of such divorce from the clerk of the court granting the divorce is inspected by the clerk of the peace to whom such person makes application for a marriage license, and unless such person may in other respects lawfully marry; and, if such decree or certificate cannot be obtained, the Resident Judge of the county where such license is desired or the person designated by the Resident Judge to grant such certificates as may be accepted under this paragraph may grant a certificate of the facts as stated by the applicant and the certificate may, for the purposes of this chapter, be accepted in lieu of a certified copy of a divorce decree;

(7) On probation or parole from any court or institution, unless such person first files with the clerk of the peace to whom such person makes application for a marriage license a written consent to such person’s proposed marriage from the chief officer of such court or institution or from someone who is appointed by such officer to give such consent, and unless in other respects the applicant may lawfully marry.

(c) [Repealed.]

(d) A marriage obtained or recognized outside the State between persons prohibited by subsection (a) of this section shall not constitute a legal or valid marriage within the State.

(e) For all purposes of the laws of this State, two persons of the same gender who are parties to a legal union other than a marriage (whether designated as a civil union, a domestic partnership or another relationship) established in another jurisdiction shall be afforded and shall be subject to the same rights, benefits, protections, responsibilities, obligations and duties as are afforded and imposed upon married spouses (whether derived from statutes, administrative rules or regulations, court rules, governmental policies, common law, court decisions, or any other provisions or sources of law, including in equity) if:

(1) such legal union was validly entered into in such other jurisdiction;

(2) such legal union would not be prohibited as a marriage by reason of subsection (a) of this section; and

(3) such legal union affords and imposes on such individuals under the laws of the jurisdiction establishing such union substantially the same rights, benefits, protections, responsibilities, obligations and duties as a marriage.

Chapter 5. DESERTION AND SUPPORT

Updated: 
April 8, 2020

Subchapter I. Duty to Support

Updated: 
April 8, 2020

§ 501. Duty to support minor child; duty to support child over 18 years of age

Updated: 
April 8, 2020

(a) The duty to support a child under the age of 18 years, whether born in or out of wedlock, rests primarily upon the child’s parents.

(b) Where the parents are unable to provide a minor child’s minimum needs, a stepparent or a person who cohabits in the relationship of husband and wife with the parent of a minor child shall be under a duty to provide those needs. Such duty shall exist only while the child makes residence with such stepparent or person and the marriage or cohabitation continues.

(c) The duty to support a child under 18 years of age, whether born in or out of wedlock, shall rest equally upon both parents.

(d) Both parents have a duty to support their child over 18 years of age if such child is a student in high school and is likely to graduate. This duty ends when the child receives a high school diploma or attains age 19, whichever event first occurs.

Chapter 7. PARENTS AND CHILDREN

Updated: 
April 8, 2020

Subchapter I. General Provisions

Updated: 
April 8, 2020

§ 701. Rights and responsibilities of parents; guardian appointment

Updated: 
April 8, 2020

(a) The father and mother are the joint natural guardians of their minor child and are equally charged with the child’s support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other concerning such child’s custody or any other matter affecting the child. If either parent should die, or abandon his or her family, or is incapable, for any reason, to act as guardian of such child, then, the custody of such child devolves upon the other parent. Where the parents live apart, the Court may award the custody of their minor child to either of them and neither shall benefit from any presumption of being better suited for such award.

(b) This section shall not affect the laws of this State relative to the appointment of a guardian of the property of a minor, or the appointment of a third person as a guardian of the person of the minor where the parents are unsuitable or where the child’s interests would be adversely affected by remaining under the natural guardianship of his or her parents or parent.

Subchapter II. Custody Proceedings

Updated: 
April 8, 2020

§ 721. Commencement of proceedings; venue; notice; pleadings; attorney for child; removal from jurisdiction; considerations

Updated: 
April 8, 2020

(a) A child custody proceeding is commenced in the Family Court of the State, or as otherwise provided by law, by a parent filing a petition seeking custody of the child in the county where the child is permanently a resident or where he or she is found.

(b) Notice of a child custody proceeding shall be given to the child’s parent, guardian and custodian, who may appear and be heard and may file a responsive pleading. The Court may, upon a showing of good cause, permit the intervention of other interested parties.

(c) The Court may, in the interest of the child, appoint an attorney to represent the child in the proceedings. A fee for an attorney so appointed shall be allowed as part of the costs of the proceeding.

(d) Upon the filing of a petition for custody or visitation, a preliminary injunction shall be issued against both parties to the action, enjoining them from removing any natural or adopted child of the parties then residing in Delaware from the jurisdiction of this Court without the prior written consent of the parties or the permission of the Court. The preliminary injunction shall be effective against the petitioner upon the filing of the petition for custody or visitation and upon the respondent upon service of a copy of the petition.

(e) A custody proceeding between parents shall be determined in accordance with §§ 722, 729 and Chapter 7A of this title, whichever shall apply.

§ 722. Best interests of child

Updated: 
April 8, 2020

(a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including:

(1) The wishes of the child’s parent or parents as to his or her custody and residential arrangements;

(2) The wishes of the child as to his or her custodian(s) and residential arrangements;

(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child’s best interests;

(4) The child’s adjustment to his or her home, school and community;

(5) The mental and physical health of all individuals involved;

(6) Past and present compliance by both parents with their rights and responsibilities to their child under § 701 of this title;

(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and

(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.

(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child’s primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.

§ 723. Temporary orders

Updated: 
April 8, 2020

(a) A party to a custody or visitation proceeding may move for a temporary custody or visitation order. An application for temporary custody or visitation shall be accompanied by an affidavit setting forth the factual basis for the motion or application with particularity. The Court may issue a temporary custody or visitation order without requiring notice to the other party and without a hearing only if it finds on the basis of the affidavit or other evidence that irreparable harm may result to the minor child if such an order is not issued without notice to the other interested parties or any opportunity by them to be heard. In the event such an order is entered, a copy of the order shall be served upon all other interested parties as soon as practicable and they shall have an opportunity to be heard in opposition to the application as soon as practicable.

(b) If a custody and/or visitation proceeding commenced in the absence of a petition for divorce or annulment is dismissed, any temporary custody or visitation order shall be vacated.

§ 724. Interviews

Updated: 
April 8, 2020

(a) The Court may interview the child in chambers to ascertain the child’s wishes as to his or her custodian and may permit counsel to be present at the interview. The Court shall, at the request of a party, cause a record of the interview to be made and it shall be made part of the record in the case.

(b) The Court may seek the advice of professional personnel whether or not they are employed on a regular basis by the Court. The advice given may be in writing and shall for good cause shown be made available by the Court to counsel of record, parties and other expert witnesses upon request, but shall otherwise be considered confidential and shall be sealed and shall not be open to inspection, except by order of the Court. Counsel may call for cross-examination any professional personnel consulted by the Court.

(c) The Court may, sua sponte or upon request of any party including the child, interview a child on the record regarding any factual statements pertaining to the matter before the Court. Any party may request to submit questions to the judicial officer to be asked of the child. Where all parties are represented, the Court may upon request permit counsel for the parties to observe the interview if, in the opinion of the Court, their presence will not adversely affect the welfare or well-being of the child. The Court may permit any person to be present during the interview whose presence, in the opinion of the Court, contributes to the welfare or well-being of the child. All parties to the matter shall be entitled to review the recorded interview in its entirety. Upon request, the Court may provide an oral or written summary of the interview to the parties.

(d) An out-of-court statement made by a child may be admitted into evidence by the Court if reasonable notice of the intention to offer the out-of-court statement is given to all parties and:

(1) The child is available to be interviewed pursuant to subsection (c) of this section, and the statement touches upon the matter before the Court; or

(2) The child’s out-of-court statement is shown to possess particularized guarantees of trustworthiness, and the child is found by the Court to be unavailable to be interviewed on any of these grounds:

a. The child’s death;

b. The child’s absence from the jurisdiction;

c. The child’s total failure of memory;

d. The child’s refusal to comply with subsection (c) of this section;

e. The child’s physical or mental disability;

f. The existence of a privilege involving the child;

g. The child’s incompetence, including the child’s inability to communicate about the matter before the Court due to fear or a similar reason; or

h. Substantial likelihood that the child would suffer emotional trauma from being interviewed as set forth in subsection (c) of this section.

(e) The Court shall support with findings on the record any rulings pertaining to the child’s unavailability and the trustworthiness of the out-of-court statement admitted pursuant to subsection (d) of this section. In determining whether a statement possesses particularized guarantees of trustworthiness under paragraph (d)(2) of this section, the Court may consider, but is not limited to considering, the following factors:

(1) The child’s personal knowledge of the event;

(2) The age and maturity of the child;

(3) Certainty that the statement was made, including the credibility of the person testifying about the statement;

(4) Any apparent motive the child may have to falsify or distort the event, including bias, corruption or coercion;

(5) The timing of the child’s statement;

(6) Whether more than 1 person heard the statement;

(7) Whether the child was suffering pain or distress when making the statement;

(8) Whether the child’s young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child’s knowledge and experience;

(9) Whether the statement has a “ring of verity,” has internal consistency or coherence and uses terminology appropriate to the child’s age;

(10) Whether the statement is spontaneous or directly responsive to questions;

(11) Whether the statement is suggestive due to improperly leading questions.

(f) This section shall in no way limit the admissibility of any statement under other Court rules or statutes governing admissibility. This section shall apply to all proceedings governed by this title as well as to all proceedings set forth in subchapter II of Chapter 9 of Title 16.

§ 726. Hearings

Updated: 
April 8, 2020

(a) The Court without a jury shall determine questions of law and fact. All hearings and trials shall be conducted in private but the Court may admit any person who has a direct and legitimate interest in the particular case or a legitimate educational or research interest in the work of the Court.

(b) If the Court finds it necessary to protect the child’s welfare, that the record of any interview, report, investigation or testimony in a custody proceeding be kept secret, the Court shall make an appropriate order sealing the record.

(c) The Court may tax as costs the payment of necessary travel and other expenses incurred by any person whose presence at the hearing the Court deems necessary to determine the best interests of the child.

§ 727. Custody

Updated: 
April 8, 2020

(a) Whether the parents have joint legal custody or 1 parent has sole legal custody of a child, each parent has the right to receive, on request, from the other parent, whenever practicable in advance, all material information concerning the child’s progress in school, medical treatment, significant developments in the child’s life, and school activities and conferences, special religious events and other activities in which parents may wish to participate and each parent and child has a right to reasonable access to the other by telephone or mail. The Court shall not restrict the rights of a child or a parent under this subsection unless it finds, after a hearing, that the exercise of such rights would endanger a child’s physical health or significantly impair his or her emotional development.

(b) Any custody order entered by the Court may include the following provisions:

(1) Granting temporary joint or sole custody for a period of time not to exceed 6 months in duration to give the parents the opportunity of demonstrating to the satisfaction of the Court their ability and willingness to cooperate with the custodial arrangement ordered. Following a timely review of this temporary order by the Court either at the end of this temporary period or sooner upon the application of any party to the proceeding, the Court shall have the authority to continue or modify the temporary order on a permanent basis.

(2) Counseling of the parents, and their child if appropriate, by a public or private agency approved by the Court to help the parents develop the necessary skills to deal effectively with the major as well as daily decisions involving their child under the custodial arrangement ordered, to continue until such time as the Court is advised in writing by the agency that such counseling is no longer required. Counseling expenses may be assessed by the Court as a cost of the proceeding.

(c) Any custody order entered by the Court shall include a contact schedule by the child with both parents which shall control absent parental modification by written agreement.

(d) Any custody order entered when 1 or both parents is a member of the armed forces, including the National Guard, and is being deployed, shall be an interim order, modifiable upon the return of the Armed Forces member to the United States or termination of service.

§ 728. Residence; visitation; sanctions

Updated: 
April 8, 2020

(a) The Court shall determine, whether the parents have joint legal custody of the child or 1 of them has sole legal custody of the child, with which parent the child shall primarily reside and a schedule of visitation with the other parent, consistent with the child’s best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child’s physical health or significantly impair his or her emotional development. The Court shall specifically state in any order denying or restricting a parent’s access to a child the facts and conclusions in support of such a denial or restriction.

(b) The Court shall encourage all parents and other persons to foster the exercise of a parent’s joint or sole custodial authority and the maintenance of frequent and meaningful contact, in person, by mail and by telephone, between parents and children unless an order has been entered pursuant to subsection (a) of this section denying or restricting such contact. If the Court finds, after a hearing, that a parent has violated, interfered with, impaired or impeded the rights of a parent or a child with respect to the exercise of joint or sole custodial authority, residence, visitation or other contact with the child, the Court shall order such person to pay the costs and reasonable counsel fees of the parent applying for relief under this section. The Court shall also impose 1 or more of the following remedies or sanctions:

(1) Extra visitation with the child to enable the child to make up any wrongfully denied visitation with a parent;

(2) A temporary transfer of custody or primary residence or both of the child to a parent applying for relief under this section for up to 30 days without regard to the factors set forth in § 729 of this title;

(3) A surcharge to be assessed against the parent with rights of visitation with the child or children for his or her unilateral failure, without just cause and/or without sufficient notice, to comply with the visitation schedule. Failure to comply consists of more than minimal violations, such as, but not limited to, slight alterations in the times for visitation. The amount of the surcharge shall be up to 10 percent of the visiting parent’s monthly child support obligation for each violation and shall be payable to the parent with whom the child or children resides or children reside;

(4) A fine in the discretion of the Court; or

(5) A term of imprisonment if a person is found to be in contempt of prior orders of the Court.

In addition, the Court may impose such other sanctions or remedies as the Court deems just and proper to ensure the maintenance in the future of frequent and meaningful contact between parent and child and participation by both parents in the child’s upbringing if the parents have joint legal custody.

(c) A parent of a child who believes it to be in the best interests of a child for the custodial authority, visitation or communication between a parent and a child as established by a prior Court order or written agreement of the parties to be modified may apply to the Court for such modification, and the Court may grant such an application if it finds after application of the standards set forth in subsection (a) of this section that the best interests of the child would be served by ordering such a modification. The filing of an application under this subsection by any person shall not be a defense in an action brought against any person under subsection (b) of this section unless the Court has entered an appropriate order allowing such conduct prior to the occurrence of the conduct complained of in the action brought under subsection (b) of this section.

(d) Before entering an order for visitation to be conducted in a correctional facility the Court shall in addition to other relevant factors consider the following:

(1) The parent seeking visitation in a correctional facility had a substantial and positive relationship with the child prior to incarceration;

(2) The nature of the offense for which the parent seeking visitation is incarcerated;

(3) Whether the victim of the offense is the child, a sibling of the child, stepsibling, half sibling, parent, stepparent, grandparent, guardian or custodian of the child; and,

(4) Whether the child seeks a relationship with the incarcerated parent.

(e) The Court shall not enter an order requiring visitation in a correctional facility if the person incarcerated is a sex offender unless the requirements of subchapter II of Chapter 7A of this title are met.

(f) The Court shall not enter an order requiring visitation in a correctional facility if the person incarcerated has been adjudicated of committing murder in the first or second degrees.

§ 729. Modification of prior orders

Updated: 
April 8, 2020

(a) An order concerning visitation may be modified at any time if the best interests of the child would be served thereby in accordance with the standards set forth in § 728(a) of this title.

(b) An order entered by the Court by consent of all parties, an interim order or a written agreement between the parties concerning the legal custody of a child or his or her residence may be modified at any time by the Court in accordance with the standards set forth in § 722 of this title.

(c) An order entered by the Court after a full hearing on the merits concerning the legal custody of a child or his or her primary residence may be modified only as follows:

(1) If the application for modification is filed within 2 years after the Court’s most recent order concerning these matters, the Court shall not modify its prior order unless it finds, after a hearing, that continuing enforcement of the prior order may endanger the child’s physical health or significantly impair his or her emotional development.

(2) If the application for modification is filed more than 2 years after the Court’s most recent order concerning these matters, the Court may modify its prior order after considering:

a. Whether any harm is likely to be caused to the child by a modification of its prior order, and, if so, whether that harm is likely to be outweighed by the advantages, if any, to the child of such a modification;

b. The compliance of each parent with prior orders of the Court concerning custody and visitation and compliance with his or her duties and responsibilities under § 727 of this title including whether either parent has been subjected to sanctions by the Court under § 728(b) of this title since the prior order was entered; and

c. The factors set forth in § 722 of this title.

§ 730. Petition to modify custody

Updated: 
April 8, 2020

A party seeking to modify a custody order shall file a verified petition setting forth facts supporting the requested modification.

§ 731. Attorney's fees

Updated: 
April 8, 2020

The Court from time to time, after considering the legal and factual basis for the action, the results obtained, the financial resources of the parties, and such other factors as the Court deems just and equitable, may order a party to pay all or part of the cost to another party of maintaining or defending any proceedings under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of such proceedings. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his or her name.

§ 732. Procedural rights

Updated: 
April 8, 2020

Each party to a proceeding under this chapter (including the child, if counsel or a guardian ad litem for the child has been appointed by the Court) shall possess all the procedural rights which those parties would have heretofore possessed in any proceeding brought pursuant to this chapter in the Superior Court of this State, including, but not limited to, the following:

(1) Right to institute and retain complete control of the suit;

(2) Right to select counsel; and

(3) Right to appeal to the Supreme Court of this State on the record from interlocutory or final orders, such appeals to be in the form and manner provided by the Rules of the Supreme Court.

§ 733. Stepparent custody in certain circumstances

Updated: 
April 8, 2020

Notwithstanding that there is a surviving natural parent, upon the death or disability of the custodial or primary placement parent, the Court, at the request of the stepparent shall continue the placement of the child(ren) with the stepparent pending a hearing on the merits, provided the child(ren) has resided with the stepparent immediately prior to the death or disability of the custodial or primary placement parent. Where the child(ren) has so resided with the stepparent the Court shall apply the provisions of § 722 of this title and may grant permanent custody or primary physical placement to the stepparent. If the Court grants custody or primary placement of the child(ren) to the stepparent, the stepparent shall have all of the rights and obligations of a parent until such time as the parent no longer has custody or primary placement of the child(ren).

Chapter 7A. CHILD PROTECTION FROM DOMESTIC VIOLENCE AND SEX OFFENDERS ACT

Updated: 
April 8, 2020

Subchapter I. Child Protection from Domestic Violence Act

Updated: 
April 8, 2020

§ 701A. Title

Updated: 
April 8, 2020

This chapter shall be known as and may be cited as the “Child Protection From Domestic Violence Act”.

§ 702A. Purpose

Updated: 
April 8, 2020

The purpose of this chapter is to protect children from domestic violence and the harm caused by experiencing domestic violence in their homes.

§ 703A. Definitions

Updated: 
April 8, 2020

(a) “Domestic violence” includes but is not limited to physical or sexual abuse or threats of physical or sexual abuse and any other offense against the person committed by 1 parent against the other parent, against any child living in either parent’s home, or against any other adult living in the child’s home. “Domestic violence” does not include reasonable acts of self-defense by 1 parent for self-protection or in order to protect the child from abuse or threats of abuse by the other parent or other adult living in the child’s home.

(b) “Perpetrator of domestic violence” means any individual who has been convicted of committing any of the following criminal offenses in the State, or any comparable offense in another jurisdiction, against the child at issue in a custody or visitation proceeding, against the other parent of the child, or against any other adult or minor child living in the home:

(1) Any felony level offense;

(2) Assault in the third degree;

(3) Reckless endangering in the second degree;

(4) Reckless burning or exploding;

(5) Unlawful imprisonment in the second degree;

(6) Unlawful sexual contact in the third degree; or

(7) Criminal contempt of 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.

§ 704A. Fleeing from domestic violence

Updated: 
April 8, 2020

For purposes of this title, it shall not be considered evidence of abandonment in any child custody or visitation proceeding if a parent flees from domestic violence and temporarily leaves the child behind, as long as that child is not left in immediate danger of serious physical injury.

§ 705A. Rebuttable presumption against custody or residence of minor child to perpetrator of domestic violence

Updated: 
April 8, 2020

(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.

§ 706A. Evidence of domestic violence

Updated: 
April 8, 2020

(a) Any evidence of a past or present act of domestic violence, whether or not committed in the presence of the child, is a relevant factor that must be considered by the court in determining the legal custody and residential arrangements in accordance with the best interests of the child.

(b) If sole or joint custody is awarded to, or if primary residence of a child is placed with, a party notwithstanding evidence that the party has committed acts of domestic violence against the other parent, against the child or against any other person living in the child’s household, the court shall make specific written findings in support of the decision to award custody or primary residence to that party.

§ 707A. Counseling

Updated: 
April 8, 2020

If the court awards sole or joint custody or primary residence to a parent who has a history of committing acts of domestic violence, that parent shall be ordered to complete 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. That parent may also be ordered to attend alcohol or drug abuse treatment and any other counseling that may be appropriate.

§ 708A. Visitation

Updated: 
April 8, 2020

Notwithstanding the other provisions of this title, in all cases in which the court finds by a preponderance of the evidence that 1 of the child’s parents has committed an act of domestic violence against the child, against the other parent or against any other person living in the child’s household the court shall determine a schedule, location and conditions for visitation that best protects the child and the victim of domestic violence from further violence.

§ 709A. Modification of orders

Updated: 
April 8, 2020

Notwithstanding other provisions of this title:

(1) An order concerning visitation may be modified at any time if necessary to protect the safety of the child or the child’s parent in light of acts of domestic violence that have occurred since the entry of the most recent visitation order.

(2) A custody order may be modified at any time if a parent who has sole or joint custody has committed acts of domestic violence since the entry of the most recent custody order.

(3) In determining whether a custody award should be modified, the court shall not consider noncompliance with an existing custody or visitation order or noncompliance with the duties and responsibilities under § 727 of this title if such noncompliance was caused by the parent’s attempt at self-protection or protection of the child from acts of domestic violence committed since the entry of the court’s most recent custody or visitation order.

§ 711A. Ordered mediation prohibited

Updated: 
April 8, 2020

Notwithstanding any other provision of law to the contrary, Family Court mediation conferences shall be prohibited in any child custody or visitation or support proceeding in which 1 of the parties has been found by a court, whether in that proceeding or in some other proceeding, to have committed an act of domestic violence against the other party or if either party has been ordered to stay away or have no contact with the other party, unless a victim of domestic violence who is represented by counsel requests such mediation.

Chapter 8. UNIFORM PARENTAGE ACT

Updated: 
April 8, 2020

Subchapter II. Parent-Child Relationship

Updated: 
April 8, 2020

§ 8-201. Establishment of parent-child relationship

Updated: 
April 8, 2020

(a) The mother-child relationship is established between a woman and a child by:

(1) The woman’s having given birth to the child, unless she is not the intended parent pursuant to a gestational carrier arrangement;

(2) An adjudication of the woman’s maternity;

(3) Adoption of the child by the woman;

(4) A determination by the court that the woman is a de facto parent of the child; or

(5) The woman’s intending to be the mother of a child born pursuant to a gestational carrier arrangement; or

(6) The woman’s having consented to assisted reproduction by another woman under subchapter VII of this chapter which resulted in the birth of the child.

(b) The father-child relationship is established between a man and a child by:

(1) An unrebutted presumption of the man’s paternity of the child under § 8-204 of this title;

(2) An effective acknowledgment of paternity by the man under subchapter III of this chapter, unless the acknowledgment has been rescinded or successfully challenged;

(3) An adjudication of the man’s paternity;

(4) Adoption of the child by the man;

(5) The man’s having consented to assisted reproduction by a woman under subchapter VII of this chapter which resulted in the birth of the child; or

(6) A determination by the court that the man is a de facto parent of the child1

(c) De facto parent status is established if the Family Court determines that the de facto parent:

(1) Has had the support and consent of the child’s parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;

(2) Has exercised parental responsibility for the child as that term is defined in § 1101 of this title; and

(3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

Chapter 15. DIVORCE AND ANNULMENT

Updated: 
April 8, 2020

§ 1502. Purpose; construction

Updated: 
April 8, 2020

This chapter shall be liberally construed and applied to promote its underlying purposes, which are:

(1) To promote the amicable settlement of disputes that have arisen between parties to a marriage;

(2) To mitigate the potential harm to spouses and their children caused by the process of legal dissolution of marriage;

(3) To make the law of divorce more effective for dealing with the realities of matrimonial experience by making irretrievable breakdown of the marriage relationship the sole basis for divorce;

(4) To permit dissolution of a marriage where the marriage is irretrievably broken despite the objections of an unwilling spouse;

(5) To award alimony under this chapter to a dependent party but only during the continuance of such dependency;

(6) To award alimony in appropriate cases so as to encourage parties to become self-supporting;

(7) [Repealed.]

§ 1503. Definitions

Updated: 
April 8, 2020

(a) The Court shall enter a decree of annulment of a marriage entered into under any of the following circumstances:

(1) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity, or because of the influence of alcohol, drugs or other incapacitating substances;

(2) A party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not, at the time the marriage was solemnized, know of the incapacity;

(3) A party was less than legal age, if the marriage was not confirmed by such party after reaching legal age;

(4) One party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage;

(5) One or both parties entered into the marriage under duress exercised by the other party, or a third party, whether or not such other party knew of such exercise of duress;

(6) One or both parties entered into the marriage as a jest or dare; or

(7) The marriage is prohibited and void or voidable as provided in § 101 of this title.

(b) A decree of annulment may be sought by any of the following persons, and a petition therefor must be filed within the times specified below, but in no event may a decree of annulment be sought after the death of either party to the marriage, except as provided in this section:

(1) For the reasons set forth in either paragraph (a)(1), (4), (5) or (6) of this section, by either party to the marriage who was aggrieved by the condition or conditions, or by the legal representative of the party who lacked capacity to consent, no later than 90 days after petitioner obtained knowledge of the described condition.

(2) For the reason set forth in paragraph (a)(2) of this section, by either party no later than 1 year after petitioner obtained knowledge of the described condition.

(3) For the reason set forth in paragraph (a)(3) of this section, by the underaged party, his or her parent or guardian, no later than 1 year after the date the marriage was entered into.

(4) A decree of annulment for the reason set forth in paragraph (a)(7) of this section may be sought by either party, by the legal spouse in case of bigamous, polygamous or incestuous marriages, by the appropriate state official, or by a child of either party at any time prior to the death of either party or prior to the final settlement of the estate of either party and the discharge of the personal representative, executor or administrator of the estate, or prior to 6 months after an order of distribution is made under Chapter 23 of Title 12.

(c) Children born of an annulled marriage are legitimate. Marriages annulled under this section shall be so declared as of the date of the marriage.

(d) The provisions of this chapter relating to the property rights of spouses are applicable to annulment.

(e) “Separation” as defined in § 1503(7) of this title is inapplicable to annulment proceedings; and a petition may be filed whenever a circumstance exists as defined by, and within the time limit specified in, this section.

§ 1504. Jurisdiction; residence; procedure

Updated: 
April 8, 2020

(a) The Family Court of the State has jurisdiction over all actions for divorce and annulment of marriage where either petitioner or respondent, at the time the action was commenced, actually resided in this State, or was stationed in this State as a member of the armed services of the United States, continuously for 6 or more months immediately preceding the commencement of the action. Notwithstanding the immediately preceding sentence, in addition to any other basis for jurisdiction it may otherwise have, the Family Court of this State has jurisdiction over all proceedings for divorce and annulment of same-gender marriages that are solemnized in this State or created by conversion of civil unions pursuant to the laws of this State, notwithstanding that the domicile or residency of the petitioner and the respondent are not in this State, if the jurisdiction of domicile or residency of the petitioner and/or the respondent does not by law affirmatively permit such a proceeding to be brought in the courts of that jurisdiction. If neither of the parties to a same-gender marriage solemnized in this State or created by conversion of a civil union pursuant to the laws of this State reside in this State, any petition for divorce or annulment of such marriage shall be filed in the county in which one or both of such parties last resided in this State.

(b) The procedure in divorce and annulment shall conform to the rules of the Court where the same do not contravene this title.

§ 1505. Divorce; marriage irretrievably broken and reconciliation improbable; defenses; efforts at reconciliation

Updated: 
April 8, 2020

(a) The Court shall enter a decree of divorce whenever it finds that the marriage is irretrievably broken and that reconciliation is improbable.

(b) A marriage is irretrievably broken where it is characterized by:

(1) Voluntary separation; or

(2) Separation caused by respondent’s misconduct; or

(3) Separation caused by respondent’s mental illness; or

(4) Separation caused by incompatibility.

(c) Previously existing defenses to divorce of condonation, connivance, recrimination, insanity and lapse of time are preserved but only with respect to marriages characterized under paragraph (b)(2) of this section.

(d) The only defense to a divorce action shall be the failure to establish either:

(1) The marriage of the parties; or

(2) Jurisdictional requirements of § 1504 of this title; or

(3) That the marriage is irretrievably broken; or

(4) A defense permitted under subsection (c) of this section because of the characterization of the marriage under paragraph (b)(2) of this section.

(e) Bona fide efforts to achieve reconciliation prior to divorce, even those that include, temporarily, sleeping in the same bedroom and resumption of sexual relations, shall not interrupt any period of living separate and apart, provided that the parties have not occupied the same bedroom or had sexual relations with each other within the 30-day period immediately preceding the day the Court hears the petition for divorce.

§ 1506. Annulment

Updated: 
April 8, 2020

(a) The Court shall enter a decree of annulment of a marriage entered into under any of the following circumstances:

(1) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity, or because of the influence of alcohol, drugs or other incapacitating substances;

(2) A party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not, at the time the marriage was solemnized, know of the incapacity;

(3) A party was less than legal age and did not have the consent of his or her parents or guardian or judicial approval as provided by law;

(4) One party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage;

(5) One or both parties entered into the marriage under duress exercised by the other party, or a third party, whether or not such other party knew of such exercise of duress;

(6) One or both parties entered into the marriage as a jest or dare; or

(7) The marriage is prohibited and void or voidable as provided in § 101 of this title.

(b) A decree of annulment may be sought by any of the following persons, and a petition therefor must be filed within the times specified below, but in no event may a decree of annulment be sought after the death of either party to the marriage, except as provided in this section:

(1) For the reasons set forth in either paragraph (a)(1), (4), (5) or (6) of this section, by either party to the marriage who was aggrieved by the condition or conditions, or by the legal representative of the party who lacked capacity to consent, no later than 90 days after petitioner obtained knowledge of the described condition.

(2) For the reason set forth in paragraph (a)(2) of this section, by either party no later than 1 year after petitioner obtained knowledge of the described condition.

(3) For the reason set forth in paragraph (a)(3) of this section, by the underaged party, his or her parent or guardian, no later than 1 year after the date the marriage was entered into.

(4) A decree of annulment for the reason set forth in paragraph (a)(7) of this section may be sought by either party, by the legal spouse in case of bigamous, polygamous or incestuous marriages, by the appropriate state official, or by a child of either party at any time prior to the death of either party or prior to the final settlement of the estate of either party and the discharge of the personal representative, executor or administrator of the estate, or prior to 6 months after an order of distribution is made under Chapter 23 of Title 12.

(c) Children born of an annulled marriage are legitimate. Marriages annulled under this section shall be so declared as of the date of the marriage.

(d) The provisions of this chapter relating to the property rights of spouses are applicable to annulment.

(e) “Separation” as defined in § 1503(7) of this title is inapplicable to annulment proceedings; and a petition may be filed whenever a circumstance exists as defined by, and within the time limit specified in, this section.

§ 1507. Petition for divorce or annulment

Updated: 
April 8, 2020

(a) A petition for divorce or annulment of marriage shall be captioned:

IN THE FAMILY COURT OF THE STATE OF DELAWARE

IN AND FOR … COUNTY

In re the Marriage of

………………………………………………………,

Petitioner,

AND

No…………, 20…
………………………………………………………,

Respondent.

<PETITION FOR DIVORCE (OR ANNULMENT)>

(b) The petition shall be verified by petitioner and shall set forth:

(1) The age, occupation and residence (including county in Delaware) of each party and length of residence in the State, showing compliance with the jurisdictional requirements of subsection (a) of § 1504 of this title;

(2) Address where it is most likely that mail will be received by respondent, or that no such address can be ascertained with reasonable diligence;

(3) Under proper circumstances, that it is unlikely that jurisdiction can be acquired over respondent other than by mailing or publication of notice as provided in § 1508 of this title;

(4) If respondent is a foreign national or has resided in a foreign country within 2 years prior to the filing of the petition, the address of a representative (preferably the nearest) of such foreign country in the United States;

(5) The date of the marriage and the place at which it was registered;

(6) The date on which the parties separated;

(7) The names, ages and addresses of all living children of the marriage and whether the wife is pregnant;

(8) Whether there have been any prior matrimonial proceedings between the parties and, if so, the date, name and place of the court, and the disposition of the same;

(9) An allegation that the marriage is irretrievably broken and how it is characterized; or if the petition is for annulment, averment of the applicable circumstances specified in subsection (a) of § 1506 of this title and that the petition has been filed within the applicable time limit recited in subsection (b) of § 1506 of this title;

(10) Any other relevant facts;

(11) Relief prayed for.

(c) The petition shall be filed either in the county wherein petitioner resides or the county wherein respondent resides.

(d) The petition shall be filed with the Clerk of the Court, along with such deposit to cover costs as the Court may fix, and a praecipe instructing the Clerk how service is to be made or jurisdiction otherwise sought or acquired over respondent.

(e) A petition for divorce may be filed at any time following the separation of the parties if the requirements of § 1504(a) of this title have been satisfied although no ruling shall be made to determine whether to grant a divorce until after the parties have been separated for 6 months; provided, however, that relief under § 1509 of this title shall be available to the parties during the interim.

(f) The relief prayed for under paragraph (b)(11) of this section may include, where appropriate under the facts and law, in addition to a prayer for a decree of divorce or annulment, prayers for other relief that may be available under this chapter, including, without limitation, prayers for interim relief (§ 1509 of this title), alimony (§ 1512 of this title), property disposition (§ 1513 of this title), resumption of prior name (§ 1514 of this title), and costs and attorneys’ fees (§ 1515 of this title).

(g) In any case where there are living children of the marriage, the petitioner shall submit with the petition an affidavit signed by the petitioner showing that the petitioner has read or has been advised of the following children’s rights, which shall be set forth in full in said affidavit:

(1) The right to a continuing relationship with both parents.

(2) The right to be treated as an important human being, with unique feelings, ideas and desires.

(3) The right to continuing care and guidance from both parents.

(4) The right to know and appreciate what is good in each parent without 1 parent degrading the other.

(5) The right to express love, affection and respect for each parent without having to stifle that love because of fear of disapproval by the other parent.

(6) The right to know that the parents’ decision to divorce was not the responsibility of the child.

(7) The right not to be a source of argument between the parents.

(8) The right to honest answers to questions about the changing family relationships.

(9) The right to be able to experience regular and consistent contact with both parents and the right to know the reason for any cancellation of time or change of plans.

(10) The right to have a relaxed, secure relationship with both parents without being placed in a position to manipulate one parent against the other.

(h) In any case where there are living children of the marriage up to the age of 17, the Court shall order that the parties pay for and participate in a “Parenting Education Course” unless the Court, upon motion, determines that participation in the course is deemed not necessary. The “Parenting Education Course” shall be a course which is certified by the Department of Services for Children, Youth and Their Families to meet the goal of educating divorce litigants on the impact on children of the restructuring of families. The course, in order to be certified by the Department of Services for Children, Youth and Their Families, shall consist of at least 4 hours of instruction and at a minimum provide instruction regarding the following items:

(1) Information on the developmental stages of children;

(2) Adjustment of children to parental separation;

(3) Dispute resolution and conflict management;

(4) Guidelines for visitation;

(5) Stress reduction in children; and

(6) Cooperative parenting.

A litigant who has a demonstrable history of domestic violence shall be ordered to participate in a separate and more intensive course which shall include, at a minimum, the topics required in paragraphs (h)(1) through (6) of this section and education regarding domestic violence, its prevention and its effect upon children.

Parties do not have to attend the same course.

§ 1509. Preliminary injunction; interim orders pending final hearing

Updated: 
April 8, 2020

(a) Upon the filing of a petition for divorce or annulment, a preliminary injunction shall be issued against both parties to the action, enjoining them from:

(1) Transferring, encumbering, concealing or in any way disposing of any property except in the usual course of business or for the necessities of life, and requiring the parties to notify the other of any proposed extraordinary expenditures and to account to the Court for all extraordinary expenditures after the preliminary injunction becomes effective; provided, however, that:

a. Subject to the provisions of subsection (a)(1), this section shall not preclude a party from taking any action which will affect the disposition of property as a result of such party’s death. Such action shall be effective upon written notice (hereinafter the “Notice”) to the other party to the divorce or annulment proceeding.

b. If a party dies before entry of a final decree of divorce or annulment, any action affecting the disposition of property as a result of the party’s death, which was taken by the party after a preliminary injunction under this section was issued, shall be voidable, to the extent deemed appropriate, in the discretion of a court of competent jurisdiction, unless the parties have otherwise agreed in writing.

c. If any party to a divorce or annulment proceeding dies between the time of entry of the final decree of divorce or annulment and the final resolution of all pending ancillary issues, then:

1. In the case of “marital property,” as that term is defined in § 1513(b) of this title, there shall be a rebuttable presumption that the interests of a former spouse in such property shall be superior to the interests of any third-party claimant, payee or beneficiary in such property; and

2. In the case of property that is not “marital property,” as that term is defined in § 1513(b) of this title, there shall be a rebuttable presumption that the interests of any third party claimant, payee or beneficiary in such property shall be superior to the interests of the former spouse in such property.

d. For purposes of this subsection:

1. The Notice shall include a description of all property that will be affected in the event of the party’s death, including specific contact information for the individuals or entities who will administer any property that will be affected, including, but not limited to, any trustees, individuals, or other entities administering insurance, accounts or property interests governed by transfer on death provisions, annuities, individual retirement accounts, stock options and qualified or non-qualified employee benefit plans;

2. The Notice shall include language similar to the following: “This Notice is being given to you as required under subsection (a)(1) of Section 1509 of Title 13 of the Delaware Code”; and

3. The Notice shall be delivered to the other party in any manner, including, but not limited to, certified or registered mail, to the last known address of the other party or the other party’s attorney in the divorce or annulment proceeding. Said notice shall be effective on the first to occur of the date of delivery or, in the case of delivery by certified or registered mail, the date of the first attempted delivery;

e. Notice shall be required under this subsection for the purpose of allowing the party receiving the Notice an opportunity to:

1. Protect that party’s rights under paragraphs (a)(1)a. and (a)(1)c. of this section in the event of the death of the other party to the divorce or annulment proceeding.

2. Take action to dispose of property under such party’s control as a result of his or her death as authorized under this section.

(2) Molesting or disturbing the peace of the other party;

(3) Removing any natural or adopted child of the parties then residing in Delaware from the jurisdiction of this Court without the prior written consent of the parties or the permission of the Court;

(4) Utilizing credit cards or otherwise incurring any debt for which the other party is or may be liable except in connection with the marital litigation or necessities of life for the benefit of the party or the parties’ minor children.

The preliminary injunction shall be effective against the petitioner upon the filing of the petition for divorce or annulment. The preliminary injunction shall be effective against the respondent upon the first to occur of the following: service of a copy of the petition; the entry of appearance by the respondent or an attorney for the respondent; the filing of a responsive pleading in the action by the respondent or an attorney for the respondent; or any other written acknowledgment of the filing of the petition for divorce or annulment by the respondent or the respondent’s attorney.

(b) Petitioner in the petition for divorce or annulment, or by motion filed simultaneously with the petition, or either party by motion filed after the filing of the petition, may move for 1 or more of the following interim orders:

(1) For temporary alimony for himself or herself;

(2) Restraining a party from transferring, encumbering, concealing, or in any way disposing of any property except in the usual course of business, for the necessities of life, or as authorized under paragraph (a)(1) of this section and, if so restrained, requiring that party to notify the moving party of any proposed extraordinary expenditures and to account to the Court for all extraordinary expenditures made after the order is issued;

(3) Enjoining a party from molesting or disturbing the peace of the other party;

(4) Excluding a party from the family home or from the home of the other party even though such party has a legal or equitable interest in the same, upon a showing that physical or emotional harm might otherwise result;

(5) Requiring a party to make available to his or her spouse designated personal property and/or fixtures, even though titled in such party’s name alone or jointly with someone else, upon such terms and conditions as the Court may impose;

(6) Requiring 1 party to pay such sum to the other party as deemed necessary to defray the other party’s expenses in conducting the proceedings;

(7) For support of a child under Chapter 5 of this title;

(8) For custody and/or visitation of a child under Chapter 7 of this title.

(c) A motion shall be accompanied by an affidavit setting forth the factual basis for the motion and any amounts of money requested. The Court may issue any of the above orders solely or collectively without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury would result to the moving party if an order were not issued until the time for responding has elapsed.

(d) Where appropriate under the facts and law, relief afforded a party under paragraphs (b)(1), (3), (4) and/or (5) of this section may be continued and/or included in the relief granted under § 1518(b) of this title.

§ 1511. Response; counterclaim; prayers; reply to counterclaim

Updated: 
April 8, 2020

(a) Respondent may file a verified response, move or otherwise plead in answer to the petition, and may counterclaim for divorce or annulment against petitioner, within 20 days after personal service, receipt of service by mail, appearance personally or by counsel, or the date of publication of notice.

(b) Respondent may seek an award of interim relief under § 1509 of this title, alimony where appropriate under § 1512 of this title, disposition of property, attorney’s fees, resumption of former name or any other relief available to a petitioner.

(c) Petitioner may reply, move or otherwise plead in response to a counterclaim for divorce or annulment within 20 days after service of the counterclaim.

(d) For good cause shown, the Court may extend the time stipulated for responding to the petition or a counterclaim.

(e) In any case where there are living children of the marriage, the respondent shall submit with the response, or other responsive pleading, an affidavit signed by the respondent showing that the respondent has read or been advised of the children’s rights set forth in § 1507(g) of this title, which rights shall be set forth in full in said affidavit.

§ 1512. Alimony in divorce and annulment actions; award; limitations

Updated: 
April 8, 2020

(a) The Court may award interim alimony to a dependent party during the pendency of an action for divorce or annulment.

(b) A party may be awarded alimony only if he or she is a dependent party after consideration of all relevant factors contained in subsection (c) of this section in that he or she:

(1) Is dependent upon the other party for support and the other party is not contractually or otherwise obligated to provide that support after the entry of a decree of divorce or annulment;

(2) Lacks sufficient property, including any award of marital property made by the Court, to provide for his or her reasonable needs; and

(3) Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that he or she not be required to seek employment.

(c) The alimony order shall be in such amount and for such time as the Court deems just, without regard to marital misconduct, after consideration of all relevant factors, including, but not limited to:

(1) The financial resources of the party seeking alimony, including the marital or separate property apportioned to him or her, and his or her ability to meet all or part of his or her reasonable needs independently;

(2) The time necessary and expense required to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment;

(3) The standard of living established during the marriage;

(4) The duration of the marriage;

(5) The age, physical and emotional condition of both parties;

(6) Any financial or other contribution made by either party to the education, training, vocational skills, career or earning capacity of the other party;

(7) The ability of the other party to meet his or her needs while paying alimony;

(8) Tax consequences;

(9) Whether either party has foregone or postponed economic, education or other employment opportunities during the course of the marriage; and

(10) Any other factor which the Court expressly finds is just and appropriate to consider.

(d) A person shall be eligible for alimony for a period not to exceed 50% of the term of the marriage with the exception that if a party is married for 20 years or longer, there shall be no time limit as to his or her eligibility; however, the factors contained in subsection (c) of this section shall apply and shall be considered by the Court.

(e) Any person awarded alimony has a continuing affirmative obligation to make good faith efforts to seek appropriate vocational training, if necessary, and employment unless the Court specifically finds, after a hearing, that it would be inequitable to require a person awarded alimony to do so:

(1) At any time, due to

a. A severe and incapacitating mental or physical illness or disability or

b. His or her age, or

(2) Immediately, after consideration of the needs of a minor child or children living with him or her.

(f) A party who has in writing before, during or after the marriage waived or released his or her right to alimony shall have no remedy under this section.

(g) Unless the parties agree otherwise in writing, the obligation to pay future alimony is terminated upon the death of either party or the remarriage or cohabitation of the party receiving alimony. As used in this section, “cohabitation” means regularly residing with an adult of the same or opposite sex, if the parties hold themselves out as a couple, and regardless of whether the relationship confers a financial benefit on the party receiving alimony. Proof of sexual relations is admissible but not required to prove cohabitation. A party receiving alimony shall promptly notify the other party of his or her remarriage or cohabitation.

§ 1513. Disposition of marital property; imposition of lien; insurance policies

Updated: 
April 8, 2020

(a) In a proceeding for divorce or annulment, the Court shall, upon request of either party, equitably divide, distribute and assign the marital property between the parties without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors including:

(1) The length of the marriage;

(2) Any prior marriage of the party;

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties;

(4) Whether the property award is in lieu of or in addition to alimony;

(5) The opportunity of each for future acquisitions of capital assets and income;

(6) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker, husband, or wife;

(7) The value of the property set apart to each party;

(8) The economic circumstances of each party at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the party with whom any children of the marriage will live;

(9) Whether the property was acquired by gift, except those gifts excluded by paragraph (b)(1) of this section;

(10) The debts of the parties; and

(11) Tax consequences.

(b) For purposes of this chapter only, “marital property” means all of the following:

(1) All property acquired by either party subsequent to the marriage, except any of the following:

a. Property acquired by an individual spouse by bequest, devise, or descent or by gift, except gifts between spouses, provided the gifted property is titled and maintained in the sole name of the donee spouse, or a gift tax return is filed reporting the transfer of the gifted property in the sole name of the donee spouse or a notarized document, executed before or contemporaneously with the transfer, is offered demonstrating the nature of the transfer.

b. Property acquired in exchange for property acquired prior to the marriage.

c. Property excluded by valid agreement of the parties.

d. The increase in value of property acquired prior to the marriage.

(2) All jointly-titled real property acquired by the parties prior to their marriage, unless excluded by valid agreement of the parties. For purposes of this paragraph, “jointly-titled real property” includes joint tenancy, tenancy in common, and any other form of co-ownership.

(c) All property acquired by either party subsequent to the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in paragraphs (b)(1)a. through d. of this section. Property transferred by gift from 1 spouse to the other during the marriage is marital property.

(d) The Court may also impose a lien or charge upon the marital property assigned to a party as security for the payment of alimony or other allowance or award for the other party.

(e) The Court may also direct the continued maintenance and beneficiary designations of existing policies insuring the life of either party. The Court’s power under this subsection shall extend only to policies originally purchased during the marriage and owned by or within the effective control of either party.

(f) The Court may order a party to execute and deliver any deed, document or other paper necessary to effectuate an order entered under this chapter, and if the party so ordered fails to do what he or she has been ordered to do, the Court, in addition to any penalty or sanction it may decide to impose upon that party for such disobedience, may direct the Clerk of the Court to do what the party was ordered to do, and such performance by the Clerk shall be as effective as the performance of the party would have been.

§ 1514. Resumption of maiden or former name

Updated: 
April 8, 2020

The Court, upon the request of a party by pleading or motion, may order that such party resume a maiden or former name.

§ 1515. Attorneys’ fees

Updated: 
April 8, 2020

The Court from time to time after considering the financial resources of both parties may order a party to pay all or part of the cost to the other party of maintaining or defending any proceeding under this title and for attorneys’ fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after the entry of judgment. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his or her name.

§ 1519. Modification or termination of decree or order; termination of alimony; enforcement of alimony order

Updated: 
April 8, 2020

(a) A decree or separate order entered under § 1518 of this title may be modified or terminated only as follows:

(1) Support for a child, only as provided in Chapter 5 of this title, or otherwise;

(2) Custody and/or visitation of a child, only as provided in Chapter 7 of this title, or otherwise;

(3) Property disposition, only upon a showing of circumstances that would justify the opening or vacation of a judgment under the Rules of the Superior Court of this State;

(4) Alimony or any other relief awarded, only upon a showing of real and substantial change of circumstances.

(b) Unless otherwise agreed by the parties in writing and expressly provided in the decree, the obligation to pay future alimony is terminated upon the death of either party or the remarriage of the party receiving alimony.

(c) Any alimony order entered pursuant to § 1512 of this title shall be enforced in this State exclusively by the Family Court in the county wherein the respondent resides or is found, or in the county where petitioner resides if respondent does not reside and cannot be found in this State, regardless of whether such petitioner was the petitioner or the respondent in the divorce action, and such Family Court, on proper showing of either of such petitioner or such respondent or on its own motion, may modify or terminate support obligations formerly decreed by the Superior Court.

§ 1520. Independence of provisions of decree or temporary order

Updated: 
April 8, 2020

If a party fails to comply with a provision of a decree or temporary order, the obligation of the other party to make alimony payments is not suspended; but he or she may move the Court to grant an appropriate order.

CHAPTER 19. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Updated: 
April 8, 2020

Subchapter II. Jurisdiction

Updated: 
April 8, 2020

§ 1920. Initial child custody jurisdiction

Updated: 
April 8, 2020

(a) Except as otherwise provided in § 1923 of this title, a court of this State has jurisdiction to make an initial child custody determination only if:

(1) This State is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 1926 or § 1927 of this title; and

a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

b. Substantial evidence is available in this State concerning the child’s care, protection, training, and personal relationships;

(3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under § 1926 or § 1927 of this title; or

(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3) of this subsection.

(b) Subsection (a) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.

(c) Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.

§ 1923. Temporary emergency jurisdiction

Updated: 
April 8, 2020

(a) A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under §§ 1920-1922 of this title a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under §§ 1920-1922 of this title. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under §§ 1920-1922 of this title, a child custody determination made under this section becomes a final determination if it so provides and this State becomes the home state of the child.

(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under §§ 1920-1922 of this title, any order issued by a court of this State under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under §§ 1920-1922 of this title. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.

(d) A court of this State which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of a state having jurisdiction under §§ 1920-1922 of this title, shall immediately communicate with the other court. A court of this State which is exercising jurisdiction pursuant to §§ 1920-1922 of this title, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of another state under a statute similar to this section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

Chapter 23. GUARDIANSHIP OF A CHILD

Updated: 
April 8, 2020

Subchapter I. Definitions and Jurisdiction

Updated: 
April 8, 2020

§ 2302. Definitions

Updated: 
April 8, 2020

For the purposes of this chapter, unless the context indicates differently:

(1) “Abuse” or “abused child” is as defined in § 901 of Title 10.

(2) “Adult” means a person who has reached his or her 18th birthday.

(3) “Best interests” is as defined in § 722 of this title.

(4) “Child” or “children” means persons who have not reached their 18th birthday.

(5) “Court” means the Family Court.

(6) “Department” or “DSCYF” means the Department of Services for Children, Youth and Their Families.

(7) “Dependency” or “dependent child” is as defined in § 901 of Title 10.

(8) “Division” means the Division of Family Services of the Department of Services for Children, Youth and Their Families.

(9) “Foster parent” means an individual or couple who has been approved by DSCYF or a licensed agency to provide foster care in exchange for foster care payments provided by DSCYF or a licensed agency.

(10) “Guardian” means a nonparent or an agency charged with caring for a child during the child’s minority.

(11) “Guardian ad litem” means an individual appointed by the Court to represent the best interests of a child, whether or not that reflects the wishes of the child, who by that individual’s appointment shall be a party to the child welfare proceeding.

(12) “Neglect” or “neglected child” is as defined in § 901 of Title 10.

(13) “Parent” is as defined by § 8-201 of this title.

(14) “Parental responsibilities” means the care, support and control of the child in a manner that provides for the child’s necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.

(15) “Permanency” means the safe, stable, custodial environment in which a child is raised and the life-long relationship that child establishes with a nurturing caregiver.

(16) “Relative” shall have the same meaning as used in § 901 of Title 10.

Subchapter II. General Procedures for Appointment of Guardians

Updated: 
April 8, 2020

§ 2320. Persons eligible to petition for guardianship

Updated: 
April 8, 2020

Unless otherwise specified in this chapter, any adult person or persons may petition the Family Court for a guardianship order regarding a child not his, hers or theirs. Unless otherwise specified in this chapter, DSCYF, the Division, a licensed agency, the guardian ad litem or a hospital that has an interest in the health, education or welfare of a child or children may petition the Family Court for a guardianship order so long as the proposed guardian or guardians consent to the appointment.

§ 2321. Consent by parent

Updated: 
April 8, 2020

Unless otherwise provided by this chapter, the parent or parents may voluntarily consent to the guardianship.

Subchapter III. Guardian of the Child

Updated: 
April 8, 2020

§ 2330. Grounds for guardianship of the child

Updated: 
April 8, 2020

(a) Prior to granting an order for guardianship under this chapter, the Court shall find for each parent the following:

(1) The parent voluntarily consents to the guardianship; notwithstanding the consent, if the child is in DSCYF custody, the Court shall also determine whether guardianship is the appropriate permanency plan for the child and whether it is in the best interest of the child for the guardianship to be granted; or

(2) After a hearing on the merits, by a preponderance of the evidence that petitioner has established:

a. The child is dependent, neglected or abused and the reasons therefore; and

b. It is in the best interests of the child for the guardianship to be granted.

(b) When more than one petition for guardianship regarding the same child or children has been filed, and the elements of subsection (a) are met regarding the parents, the Court shall determine which petition, if any, is granted based upon the best interests of the child.

(c) When a guardianship petition is filed against a current guardian, and the elements of subsection (a) are met regarding the parents, the Court shall determine whether the petition shall be granted based upon the best interests of the child.

(d) If the child is 14 years of age or older, the Court shall determine whether the child consents to the guardianship, and if the child opposes, if just cause still requires the guardianship to be granted.

(e) If the Court determines that the elements of subsection (a) of this section have been met, the Court shall also determine by a preponderance of evidence the nature and extent, if any, of any contact, sharing of information, and/or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard.

§ 2331. Duties and rights of parents

Updated: 
April 8, 2020

(a) While a guardianship is in effect, the parent shall have the following rights:

(1) Visitation, contact and information, to the extent delineated in the guardianship order issued by the Court. A parent may petition the Court for specific enforcement of provisions of the order relating to contact, visitation or information; and

(2) Inheritance by and from the child.

(b) The parent shall have the primary responsibility to support the child financially.

(c) In the event the income and assets of the parent qualify the child for governmental benefits, the benefits may be conferred upon the child with payment to be made to the guardian. The provision of necessities by the guardian shall not disqualify the child for any benefit or entitlement.

(d) If the child has been in the custody of DSCYF immediately prior to the granting of a guardianship order, DSCYF shall have no further duty of support or care for the child after establishment of the guardianship unless DSCYF agrees in writing to that support.

Subchapter V. Permanent Guardianships for Children

Updated: 
April 8, 2020

§ 2353. Standard for permanent guardianship

Updated: 
April 8, 2020

(a) The Court shall grant a permanent guardianship if it finds by clear and convincing evidence that:

(1) One of the statutory grounds for termination of parental rights as set forth in § 1103(a) of this title has been met;

(2) Adoption of the child is not possible or appropriate;

(3) Permanent guardianship is in the best interests of the child;

(4) The proposed permanent guardian:

a. Is emotionally, mentally, physically and financially suitable to become the permanent guardian;

b. Is a foster parent or guardian who has been caring for the child for at least 6 months or held guardianship for at least 6 months at the time of the filing of the petition or is a relative;

c. Has expressly committed to remain the permanent guardian and assume the rights and responsibilities for the child for the duration of the child’s minority; and

d. Has demonstrated an understanding of the financial implications of becoming a permanent guardian;

(5) If the child is age 14 or over, the child consents to the guardianship or, if the child does not consent, just cause why the guardian should be appointed; and

(6) If the proposed permanent guardian is a foster parent or parents:

a. The child is at least 12 years of age; or

b. The proposed permanent guardian is the permanent guardian of 1 of the child’s siblings; or

c. The child receives substantial governmental benefits for a serious physical and/or mental disability which would no longer be available to the child if parental rights were terminated and/or if the child was adopted.

(b) If the Court determines that the elements of subsection (a) of this section have been met, the Court shall then also determine by a preponderance of evidence, the nature and extent, if any, of any contact, sharing of information, and/or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard.

(c) The parent or parents may voluntarily consent to the permanent guardianship provided the elements of subsection (a) of this section are met.

Chapter 24. THIRD PARTY VISITATION

Updated: 
April 8, 2020

Subchapter I. General Provisions

Updated: 
April 8, 2020

§ 2401. Intent and purpose

Updated: 
April 8, 2020

(a) The General Assembly hereby declares that there is a need for a clear statutory framework for the proper procedures and requirements for visitation between children and persons other than their parents. The General Assembly further declares that, with the exception of Department of Services for Children, Youth and their Families (DSCYF), guardianship as set forth in Chapter 23 of this title is the appropriate legal authority for persons who wish to pursue legal custodial and guardianship rights over a child for which they are not the parent.

(b) This chapter shall be liberally construed so that these purposes may be realized. To that extent, modification of any orders pertaining to visitation involving persons other than parents that were entered under previous versions of the Code shall now be considered under this chapter. Modification of any orders pertaining to custody involving persons other than parents that were entered under previous versions of the Code shall now be considered under Chapter 23 of this title.

§ 2402. Definitions

Updated: 
April 8, 2020

For the purposes of this chapter, unless the context indicates differently:

(1) “Abuse” or “abused child” is as defined in § 901 of Title 10;

(2) “Adult” is as defined in § 901 of Title 10;

(3) “Best interests” is determined in accordance with § 722 of this title;

(4) “Child” is as defined in § 901 of Title 10;

(5) “Court” or “court” is as defined in § 901 of Title 10;

(6) “Department” or “DSCYF” is as defined in § 901 of Title 10;

(7) “Dependency” or “dependent child” is as defined in § 901 of Title 10;

(8) “Guardian ad litem” is as defined in § 2302 of this title;

(9) “Guardian” is as defined in § 2302 of this title;

(10) “Licensed agency” is as defined in § 901 of this title;

(11) “Neglect” or “neglected child” is as defined in § 901 of Title 10;

(12) “Parent” is as defined in § 2302 of this title;

(13) “Relative” is as defined in § 901 of Title 10.

§ 2403. Jurisdiction and venue

Updated: 
April 8, 2020

(a) The Family Court shall have jurisdiction over proceedings under this chapter to grant, modify and/or terminate third party visitation orders.

(b) A petition for third party visitation under this chapter may be filed in the Family Court of any of the following counties:

(1) The county in which the organization or persons, having legal or physical care, custody, or control of the child is located; or

(2) The county in which the child resides.

(c) The provisions of §§ 722, 724, 728(d)-(f) and of the title Chapter 7A of this title shall be applicable to proceedings filed under this chapter.

§ 2404. Hearing procedure and notice requirements

Updated: 
April 8, 2020

(a) When a petition is filed under this chapter, the Court shall set a date for a hearing on the petition, and shall cause notice of time, place and purpose of the hearing to be served as required in this section.

(b) Notice of the time, place and purpose of the hearing shall be served upon the parent or parents, guardian or guardians, person or persons, DSCYF, or licensed agency holding parental rights at the respondent’s last known address or to the address received in the petition.

(c) If the Court shall find that personal service within the State cannot be accomplished upon a party, the petitioner shall cause notice to be published in a newspaper of general circulation in the county where the respondent is most likely to be residing.

(d) Personal service at any time prior to the hearing shall be sufficient to confer jurisdiction upon the Court.

(e) Notice provided pursuant to this section shall constitute conclusive evidence of service and a hearing will then proceed at the time and date set, with or without the appearance of the parent or parents, guardian or guardians, person or persons, Department, or licensed agency holding parental rights so notified.

§ 2405. Sanctions

Updated: 
April 8, 2020

The Court may impose such sanctions or remedies as the Court deems just and proper to ensure compliance with orders entered pursuant to this chapter, including but not limited to:

(1) Extra visitation or contact with the child when it is in the child’s best interest to do so;

(2) The payment of costs and reasonable counsel fees of the person applying for relief under this section;

(3) A fine in the discretion of the Court; or

(4) A term of imprisonment if a person is found to be in contempt of prior orders of the Court.

§ 2406. Confidentiality of proceedings

Updated: 
April 8, 2020

All proceedings under this chapter and all records of such proceedings shall be held before the Court privately, except for reasons found sufficient to the Court, a hearing in any particular case may be made open to the public.

§ 2407. Appeals

Updated: 
April 8, 2020

Appeal from any order or decree entered under this chapter shall lie to the state Supreme Court. No appeal shall lie from any order or decree under this chapter unless taken within 30 days from the date of such order or decree.

Subchapter II. Third Party Visitation Proceedings

Updated: 
April 8, 2020

§ 2410. Persons eligible to petition for third party visitation

Updated: 
April 8, 2020

(a) Unless otherwise specified in this chapter, any adult person or persons may file a petition for a third-party visitation order regarding a child not his, hers, or theirs against the child’s guardians, parents, or DSCYF, provided that the adult person or persons can establish that the adult person or persons petitioning for visitation:

(1) Has a substantial and positive prior relationship with the child; or

(2) Is a grandparent, aunt, uncle or adult sibling of the child.

(b) Unless otherwise specified in this chapter, a guardian ad litem may petition for a third-party visitation order on behalf of the child against the child’s guardian, parent, and/or DSCYF if:

(1) The adult person with whom visitation is sought consents to visitation with the child and;

(2) The adult person with whom visitation is sought:

a. Has a substantial and positive prior relationship with the child; or

b. Is a grandparent, aunt, uncle or adult sibling of the child.

(c) Any child, through a guardian ad litem, may file a petition seeking visitation with any other child with whom they have at least 1 parent in common.

(d) Notwithstanding subsections (a) through (c) of this section, if a parent’s rights have been terminated in the child with whom a parent seeks third-party visitation, the terminated parent and the terminated parent’s relatives are prohibited from filing for third-party visitation unless:

(1) More than 3 years have passed since the termination of parental rights order was entered and the child has not been adopted; or

(2) The adoptive parent, if there is only 1 adoptive parent, or both adoptive parents have previously entered into a written notarized agreement or court-approved agreement for continued visitation and a copy of the agreement is attached to the petition.

§ 2411. Contents of third party visitation petition

Updated: 
April 8, 2020

Every petition for third party visitation with a child filed under this chapter shall be verified and contain:

(1) Name and place of residence of the petitioner or petitioners;

(2) Name, sex, and date of birth of the child;

(3) A statement regarding the eligibility requirements set forth in § 2410 of this title;

(4) The name and address of the mother and the name and address of the father, alleged father, and/or presumed father. If either the name and/or address of any parent is not known, the petition shall include detailed information setting forth the efforts made to locate the parent;

(5) The name and last known address of the person or persons or organization holding parental rights, custody, and/or guardianship of the child; and

(6) A statement setting forth the grounds for visitation in § 2412 of this title.

§ 2412. Grounds for persons obtaining third party visitation with a child

Updated: 
April 8, 2020

(a) Prior to granting a third party visitation order the Court shall, find after a hearing on the merits, or accept the agreement of the parties that:

(1) Third party visitation is in the child’s best interests; and,

(2) One of the following as to each parent:

a. The parent consents to the third party visitation;

b. The child is dependent, neglected or abused in the parent’s care;

c. The parent is deceased; or

d. The parent objects to the visitation, however the Court having given special weight to the parent’s objection finds the visitation will not substantially interfere with the parent/child relationship.

Notwithstanding the above, if the child has 2 parents and the child is not dependent, neglected or abused in either parent’s care, visitation may not be granted where both parents object.

(b) Prior to granting an order for third party visitation between children, the Court shall find after a hearing on the merits, or accept the agreement of the parties, that the visitation is in the best interests of all children subject to the petition.

§ 2413. Modification of orders granting third party visitation

Updated: 
April 8, 2020

An order granting third party visitation may be modified at any time if the best interests of any child subject to the order would be served by modification.

Chapter 25. DSCYF CUSTODY

Updated: 
April 8, 2020

Subchapter II. Dscyf Custody Proceedings

Updated: 
April 8, 2020

§ 2512. Grounds for DSCYF custody; preliminary injunction

Updated: 
April 8, 2020

(a) When emergency custody or other emergency relief is sought by DSCYF, the Court may issue an ex parte order awarding emergency custody to DSCYF and order removal of a child from the home upon the establishment that:

(1) Continuation in the home is contrary to the welfare of the child; and

(2) Probable cause exists to believe that:

a. A child continues to be in actual physical, mental or emotional danger or there is a substantial imminent risk thereof or;

b. Immediate or irreparable harm may result to the child if such an order is not issued.

(b) Prior to granting an adjudicatory order for DSCYF custody, the Court shall find after a hearing on the merits, or accept the agreement of the parties, that:

(1) As to each parent, the child is dependent, neglected or abused;

(2) It is in the child’s best interests to be in DSCYF custody.

(c) Should the elements of subsection (b) of this section be met, the Court shall also determine after a hearing on the merits or accept the agreement of the parties, the nature and extent, if any, of any contact, sharing of information and/or visitation between the parent and the child. In making such a determination, the Court shall apply the best interests of the child standard set forth in § 722 of this title, unless Chapter 7A or section § 728 (d)-(f) of this title apply.

Title 16. Health and Safety

Updated: 
April 8, 2020

Part V. Mental Health

Updated: 
April 8, 2020

Chapter 54. Mental Health Services Providers

Updated: 
April 8, 2020

§ 5402. Duty of mental health services providers to take precautions against threatened patient violence; duty to warn

Updated: 
April 8, 2020

(a) A person may not bring a cause of action against a mental health services provider, institution, agency, or hospital, and legal liability may not be imposed, for the inability of a mental health services provider, institution, agency, or hospital to prevent harm to person or property caused by a patient unless both of the following are met:

(1) The patient has communicated to the mental health services provider, institution, agency, or hospital an explicit and imminent threat to kill or seriously injure a clearly identified victim, or to commit a specific violent act or to destroy property under circumstances which could easily lead to serious personal injury or death, and the patient has an apparent intent and ability to carry out the threat.

(2) The mental health services provider, institution, agency, or hospital fails to take the precautions specified in subsection (b) of this section in an attempt to prevent the threatened harm.

(b) Any duty owed by a mental health services provider, institution, agency, or hospital to take reasonable precautions to prevent harm threatened by a patient is discharged, as a matter of law, if the mental health services provider, institution, agency, or hospital, in a timely manner, does both of the following:

(1) Notifies a law enforcement agency having jurisdiction where the potential victim resides, or notifies a law enforcement agency having jurisdiction where the patient resides, and communicates the threat of death or serious bodily injury to the clearly identified victim.

(2) Arranges for the patient’s immediate voluntary or involuntary hospitalization, in an inpatient or outpatient program.

(c) If a patient has explicitly threatened to cause serious harm to a person or property, or a mental health services provider, institution, agency, or hospital otherwise concludes that the patient is likely to do so or is dangerous to others or dangerous to self, as these terms are defined in § 5001 of this title, and the mental health services provider, institution, agency, or hospital, for the purpose of reducing the risk of harm, discloses any confidential communication made by or relating to the patient, a person may not bring cause of action, either criminal or civil, against the mental health services provider, institution, agency, or hospital for making such disclosure.

(d) Repealed by 81 Laws 2018, ch. 232, § 5.

§ 5403. Discretionary disclosures to law enforcement

Updated: 
April 8, 2020

(a) A mental health service provider, institution, agency, or hospital may disclose confidential communications made by or relating to a patient to law enforcement if the mental health service provider, institution, agency, or hospital concludes that the patient is dangerous to others or dangerous to self, as these terms are defined in § 1448C(a) of Title 11, regardless of whether the patient has made explicit threats against an identifiable victim.

(b) A person may not bring a cause of action, either criminal or civil, against a mental health services provider, institution, agency, or hospital for making a communication to law enforcement under this section.