Custody

There is a “rebuttable presumption” that a judge will not award a “perpetrator of domestic violence” any of the following:

• sole custody;
• joint custody; and
• primary residence for the child.¹

A rebuttable presumption means that the judge will assume (presume) that the abusive parent should not get custody or primary residence but the abusive parent can present evidence to change the judge’s mind (overcome the rebuttable presumption). If the rebuttable presumption is overcome, the judge can award that parent custody or primary residence. The abusive parent can overcome the rebuttable presumption if s/he can prove either:

1. There have been no further acts of domestic violence and the perpetrator of domestic violence has done all of the following:
   • 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;
   • successfully completed a program of alcohol or drug abuse counseling if the judge determines that such counseling is appropriate; and
   • proven to the judge that giving custodial or residential responsibilities to the perpetrator of domestic violence is in the best interests of the child; or
2. The judge determines that there are “extraordinary circumstances,” such as evidence demonstrating that 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, exists.²

A perpetuator of domestic violence means someone who has been convicted of committing any of the following crimes against the child at issue in a custody or visitation proceeding, against you (the other parent of the child), or against any other adult or minor child living in the home:

• any felony level offense; or
• any of the following misdemeanor level offenses:
  • assault in the third degree;
  • reckless endangering in the second degree;
  • reckless burning or exploding;
  • unlawful imprisonment in the second degree;
  • unlawful sexual conduct in the third degree;
  • criminal contempt of a 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;
  • child abuse in the third degree.³

¹ 13 Del. C. § 705A(a), (b)
² 13 Del. C. § 705A(c)
³ 13 Del. C. § 703A(b)