Family Court in Delaware: What Survivors Need to Know (Custody, Visitation & PFAs)

In Delaware, the Family Court has unified jurisdiction over divorce, custody, and protection orders.¹ For survivors, the most critical piece of legislation is 13 Del. C. § 705A, which provides statutory protection against abusers gaining control over children.

Whether you are in Wilmington, Dover, or Georgetown, the law remains the same. This guide explains how to navigate the system safely.

1. The "Rebuttable Presumption" (Section 705A)

This is the single most important law for custody cases involving violence in Delaware.

• The Law: Under Title 13, Section 705A of the Delaware Code, if the Court finds that a parent has perpetrated domestic violence against the other parent or the child, there is a rebuttable presumption that it is NOT in the child's best interests for that parent to have sole or joint custody.²

• What this means: If you prove the abuse, the judge starts with the assumption that you should have custody.

• How the Abuser Rebuts It: To overcome this, the abuser must prove they have successfully completed a "family violence intervention program" (certified batterer's intervention), remain sober (if substances were involved), and that custody is safe for the child.

2. Protection From Abuse (PFA) Orders

A PFA is a civil order issued by the Family Court.³

• Ex Parte PFA: If you are in immediate danger, you can file for an emergency PFA. A Commissioner can sign this immediately without the abuser present. It lasts until the full hearing (usually within 10-15 days).

• Consent Agreements: Many PFA cases end in a "Consent Order" (an agreement) rather than a trial.⁴ Be careful: Do not agree to a PFA "without a finding of abuse" if you plan to rely on Section 705A later for custody. Consult a lawyer before signing.

• Relief Available: A PFA can grant you temporary custody, exclusive use of the home, temporary child support, and force the abuser to surrender firearms.

3. Mediation: You Should Be Exempt

Delaware Family Court requires mediation for almost all custody cases before you see a judge.

• The Exception: If there is a current PFA in place or a history of domestic violence, you are generally exempt from mediation.

• Action Item: When you file your custody petition (or answer one), check the box indicating domestic violence. If court staff schedules mediation, contact them immediately to request a waiver or safety protocols (separate rooms).

4. Child Support (The Melson Formula)

Delaware uses the Melson Formula to calculate child support.

• Primary Support Allowance: This ensures the child's basic needs are met first.

• Standard of Living Adjustment (SOLA): If the paying parent earns more, they pay a percentage of that excess to ensure the child shares in their standard of living.⁵

• PFA Support: You do not have to wait for a separate support hearing. You can request temporary child support as part of your PFA hearing.

5. Address Confidentiality Program (ACP)

• What it is: Delaware’s ACP allows survivors of domestic violence, sexual assault, or stalking to keep their home address secret.⁶

• How it works: You are assigned a substitute address (a PO Box) that you use for all public records (DMV, schools, court documents). The state forwards your mail to you.

• Eligibility: You must typically move to a new location unknown to the abuser to qualify.

Frequently Asked Questions (FAQ)

Q1: Can I move out of state with my child?

Not without permission. Delaware has strict laws on relocation. Under the Model Relocation Act principles used by the court, you generally need the other parent's consent or a court order to move. Moving without it can result in a "contempt" finding. Exception: If you flee for safety, file a PFA or custody petition immediately upon arriving in the safe place explaining why you fled.

Q2: Do I need a lawyer for a PFA hearing?

It is strongly recommended. While you can represent yourself (pro se), PFA hearings follow formal rules of evidence. If you lose, it is hard to appeal. Community Legal Aid Society, Inc. (CLASI) and DVLS (Domestic Violence Legal Services) provide free representation to qualifying survivors.

Q3: Does emotional abuse count for Section 705A?

It is harder to prove, but yes. Delaware defines domestic violence broadly. However, the statutory presumption against custody is most easily triggered by physical injury, threats of physical injury, or sexual abuse. "Coercive control" is increasingly recognized as a factor in the "Best Interests" analysis.

Q4: Can I use recordings in court?

Be careful. Delaware is a "two-party consent" state for private conversations (where the other person expects privacy).7 Recording a phone call without permission is generally inadmissible and possibly illegal. However, recording a public altercation (like a threat shouted in the street) may be admissible.

Q5: What happens if he violates the PFA?

Call the police. Violation of a PFA (specifically the no-contact or stay-away provisions) is a criminal offense (Class A Misdemeanor or Class G Felony). The police can arrest the abuser immediately.

Q6: What is a "Commissioner" vs. a "Judge"?

• Commissioner: Usually hears PFA cases and initial support matters. Their orders are legally binding.

• Judge: Hears appeals from Commissioners and handles complex divorce/custody trials.

References & Resources

• Domestic Violence Legal Services (DVLS): 302-658-5208 (Legal help).

• Community Legal Aid Society, Inc. (CLASI): 302-575-0660.

• Delaware Coalition Against Domestic Violence (DCADV): dcadv.org.

• Family Court Call Center: 302-255-0300 (New Castle).

• Legislation: Delaware Code Title 13, § 705A (Custody Presumption), Title 10, § 1041 (PFA Act).