CHAPTER 174

FORMERLY

SENATE BILL NO. 133

AN ACT TO AMEND TITLE 13 OF THE DELAWARE CODE RELATING TO PARENTS AND CHILDREN.

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

Section 1. Amend §728(f), Title 13 of the Delaware Code by inserting the following after the word “incarcerated” and by striking the remainder of the section:

“is a sex offender unless the requirements of Subchapter II of Chapter 7A of this Title are met.”

Section 2. Amend the Title of Chapter 7A, Title 13 of the Delaware Code by inserting the words “and Sex Offenders” between the words “Violence” and “Act”.

Section 3. Amend Chapter 7A, Title 13 of the Delaware Code by creating a Subchapter I before Section 701A to read as follows:

“Subchapter I – Child Protection from Domestic Violence Act”

Section 4. Amend Section 705A, Title 13 of the Delaware Code by inserting a new subsection (e) to read as follows:

“(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).”

Section 5. Amend §710A, Title 13 of the Delaware Code by striking it in its entirety.

Section 6. Amend Chapter 7A, Title 13 of the Delaware Code by adding a new Subchapter II to read as follows:

“Subchapter II – Child Protection from Sex Offenders Act

§721A. Title.

This subchapter shall be known as and may be cited as the ‘Child Protection from Sex Offenders Act.’

§722A. Purpose.

The purpose of this subchapter is to protect children from sex offenders by presuming that it is not in the best interests of a child to be placed in a custodial, residential or unsupervised visitation arrangement with a sex offender, regardless of whether the sex offender’s victim was an adult or a child.

Nothing in this subchapter shall preclude the court from denying custody, residency or visitation under other appropriate circumstances, including denying same under an ex parte or other emergency order.

§723A. Definitions.

For the purposes of this subchapter, a ‘sex offender’ refers to any person designated by the courts of this state as a Risk Assessment Tier II or III sex offender under §4121 of Title 11 of the Delaware Code, or a person designated and treated as such by a court or a jurisdiction outside of Delaware, regardless of whether the sex offender’s victim was an adult or a child.

§724A. Rebuttable presumption against unsupervised visitation, custody or residence of a child to a sex offender.

(a) Notwithstanding other provisions of this title, there shall be a rebuttable presumption that no sex offender shall be awarded sole or joint custody of any child, that no child shall primarily reside with a sex offender, and that no sex offender shall have unsupervised visitation with a child.

(b) The above presumptions may be overcome if:

(1) there is not a criminal sentencing order prohibiting same; and

(2) there have been no further sexual offenses or criminal acts of violence; and

(3) the sex offender is in compliance with the terms of probation, if applicable; and

(4) the sex offender has successfully completed an intensive program of evaluation and counseling designed specifically for sex offenders and conducted by a public or private agency or a certified mental health professional, and as a result of such, does not pose a risk to children; and

(5) the sex offender has successfully completed a program of substance abuse counseling if the Court determines such counseling is appropriate; and

(6) the best interests of the child would be served by giving residential or custodial responsibilities for the child or visitation with the child to the sex offender.

(c) Notwithstanding other provisions of this title, where the child who is the subject of the petition is also the victim of the sex offender, the Court shall not award joint or sole custody to the sex offender, nor permit the sex offender to exercise custodial or residential responsibilities, nor permit any visitation, 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 under this subsection to be in the best interests of the child, the Court shall then apply the remaining factors set forth in subsection (b).

(d) In those cases in which more than one party is a sex offender, or where the party currently having custodial rights has permitted the sex offender to exercise residential or custodial responsibilities for the child or have visitation with the child, in violation of a criminal or civil court order, the case shall be referred by the Court to the Division of Family Services of the Department of Services for Children, Youth and Their Families for investigation as to whether the child is abused, dependent or neglected as a result of these circumstances.

(e) If a child is conceived and subsequently born as the result of an act of rape of any degree or unlawful sexual intercourse, in either the first or second degree with the mother, the biological father of said child shall not be permitted visitation privileges under this section. This subsection shall apply only where the father pleads guilty or nolo contender, or is convicted of any degree of rape or unlawful sexual intercourse, in either the first or second degree.

§725A. Findings.

Should the Court grant custody, residential responsibilities or visitation to a sex offender under this subchapter, the Court shall make specific written findings in support of its decision, including any limitations or requirements for further counseling, services or other safeguards necessary to ensure the safety and best interests of the child continue to be served.

§726A. Sexual abuse without a criminal conviction.

In the absence of a criminal conviction, if the Court finds by a preponderance of the evidence that a parent has sexually abused a child, the Court shall prohibit all visitation and contact between that parent and the child, until it considers testimony from a certified mental health professional who is the therapist for the child, as to whether such a custodial, residential or visitation arrangement is in the child’s best interests. If a custodial, residential or visitation arrangement is in the child’s best interests, in determining same, 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, and as a result, does not pose a risk to children;

(2) Whether the abusive parent has successfully completed a program of alcohol or drug abuse counseling if the Court determines such counseling is appropriate; and

(3) Any testimony by a certified mental health professional who is the therapist for the sexually abusive parent.

§727A. Modification of orders.

Notwithstanding other provisions of this title:

(1) An order concerning visitation issued under this subchapter may be modified at any time if it is in the best interests of the child and/or it is necessary to protect the safety of the child.

(2) A custody order under this subchapter may be modified as provided for in §729 of this Title; however, 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 protection of the child from sexual abuse since the entry of the Court’s most recent custody or visitation order.

§728A. 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 is a sex offender.”

Section 7. Amend §728, Title 13, Delaware Code, by deleting subsection (d) in its entirety and by redesignating the remaining subsections accordingly.

Approved July 31, 2007