CHAPTER 309

FORMERLY

SENATE BILL NO. 351

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 13 OF THE DELAWARE CODE RELATING TO CHILD CUSTODY AND VISITATION IN CASES OF DOMESTIC VIOLENCE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 721(e), Chapter 7, Title 13 of the Delaware Code by striking the first sentence of said section in its entirety and inserting in lieu thereof the following:

"A custody proceeding between parents shall be determined in accordance with Section 722, Section 729 and the provisions of Chapter 7A of this Title, whichever shall apply."

Section 2. Amend Section 721(e), Chapter 7, Title 13 of the Delaware Code by striking subsection (2) in its entirety and substituting in lieu thereof the following:

"(2) That the application of the standards set forth in Section 722, Section 729, and the provisions of Chapter 7A of this Title, whichever shall apply, lead the Court to conclude that the child should not be placed in the custody of one of his or her parents."

Section 3. Amend Section 722(a), Chapter 7, Title 13 of the Delaware Code by striking, the and at the end of subsection 722(a)(5), by striking the period (".") at the end of subsection 722(a)(6) and adding "; and" at the end of that subsection, and by adding a new subsection (7) to read as follows:

"(7) Evidence of Domestic Violence as provided for in Chapter 7A of this Title."

Section 4. Amend Title 13 of the Delaware Code by adding a new Chapter 7A thereto to read as follows:

"Chapter 7A. Child Protection From Domestic Violence Act. Section 701A. Title.

Section 702A. Purpose.

Section 703A. Definitions.

Section 704A. Fleeing from domestic violence.

Section 705A. Rebuttable presumption against custody or residence of minor child to perpetrator of domestic violence.

Section 706A. Evidence of domestic violence. Section 707A. Counselling.

Section 708A. Visitation.

Section 709A. Modification of orders. Section 710A. Sexual abuse.

Section 711A. Ordered mediation prohibited. Section 701A. Title.

This Chapter shall be known as and may be cited as the Child Protection From Domestic Violence Act.

Section 702A. Purpose. The purpose of this Chapter is to protect children from domestic violence and the harm caused by experiencing domestic violence in their homes.

Section 703A. Definitions.

(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 one 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 one parent in order to protect himself or herself or his or her 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.

Section 704A. Fleeing From Domestic Violence.

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 his or her child behind, as long as that child is not left in immediate danger of serious physical injury.

Section 705A. Rebuttable Presumption Against Custody Or Residence of Minor Child To Perpetrator of Domestic Violence.

(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: (I) 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.

(a) In those cases in which both parents are Perpetrators of Domestic Violence, the case shall be referred to the Division of FamilyServices 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 one parent has been the primary aggressor in the household, the Court shall decide custody and residence pursuant to the best interests of the child.

Section 706A. Evidence of Domestic Violence.

(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.

(a) 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.

Section 707A. Counseling.

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.

Section 708A. Visitation.

Notwithstanding the other provisions of this Title, in all cases in which the Court finds by a preponderance of the evidence that one 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.

Section 709A. Modification of orders. Notwithstanding other provisions of this Title,

(a) 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.

(b) 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.

(c) In determining whether a custody award should be modified, the Court shall not consider non-compliance with an existing custody or visitation order or non-compliance with the duties and responsibilities under Section 727 of this Title if such non-compliance was caused by the parent's attempt to protect himself or herself or the child from acts of Domestic Violence committed since the entry of the Court's most recent custody or visitation order.

Section 710A. Sexual Abuse.

If the Court finds by a preponderance of the evidence that a parent has sexually abused his or her child, the Court shall prohibit all visitation and contact between the abusive parent and his or her child until such time as the Court finds, after a hearing, that supervised visitation would not harm, endanger, or impair the child's physical, psychological, or emotional well-being. In determining whether such visitation may be appropriate, the Court should consider all relevant factors, including:

(1) whether the abusive parent has successfully completed a treatment program of evaluation and counseling that is specifically designed for sexual abusers and is conducted by a public or private agency or a certified mental health professional;

(2) whether the abusive parent has successfully completed a program of alcohol or drug abuse counseling;

(3) any testimony by a mental health professional who is the therapist for the abused child;

(4) any testimony by a mental health professional who is the therapist for the abusive parent; and

(5) whether supervised visitation is in the child's best interests. Nothing in this section shall preclude the Court
from denying visitation under other appropriate circumstances, including denying such visitation under an ex parte or other emergency order.

Section 711A. Ordered Mediation Prohibited.

Notwithstanding any other provision of law to the contrary, Family Court mediation conferences shall be prohibited in any child custody or visitation proceeding in Which one 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."

Section 5. If any provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable."

Approved July 8, 1994.