Resource for a Recourse: Online Resource Center for Survivors of Abuse

DELAWARE : Restraining Order & Order of Protection Information

TYPES OF PROTECTIVE ORDERS
BENEFITS
COSTS
VIOLATIONS

Delaware law defines domestic violence as the occurrence of one or more of the following acts of abuse:

actual physical injury or sexual offenses
threatening physical injury or sexual offense
damaging, destroying, or taking property
trespassing
child abuse
kidnapping
unlawful imprisonment
interference with custody
causing fear or emotional distress
any other conduct that a reasonable person would find threatening or harmful

According to Delaware statue § 1041, definitions, you can seek legal protection from acts of "domestic violence" done to you by:

A current or former spouse
A man and woman living together with or without a child of either or both
A custodian and child
Someone with whom you have a child in common
Relatives by blood or marriage who live together in one household
Someone you are related to in any of the following ways:

mothers, fathers
mothers-in-law, fathers-in-law
brothers, sisters
brothers-in-law, sisters-in-law
grandparents, grandchildren
stepmothers, stepfathers
stepchildren

This definition of relationships includes both blood relationships AND relationships by adoption.

Note: Same-sex partners and couples who have dated, but have NOT shared a household or had a child together are NOT eligible to file for Orders of Protection from Abuse in Delaware.

Types of protective orders:

Emergency (ex parte) Orders

If you are in immediate danger of abuse, you may get an Emergency (ex parte) Order by going the nearest Family Court. To obtain an Emergency (ex parte) Order, you need to have a brief court hearing. Your abuser will NOT be present at this hearing.

As soon as possible after the abuse occurs, go to your nearest Family Court, and tell the clerk you want to file for an Order of Protection from Abuse. You will be taken before a Commissioner of the Court the same day or the next day after you report the abuse to the court. The Commissioner will ask you some questions to determine if you are in need of immediate protection.

If the Commissioner decides to sign an Emergency (ex parte) Order granting you relief, you will be given a date for a full hearing. Your abuser WILL be asked to attend this hearing. The Emergency (ex parte) Order is good until the full hearing takes place. This usually happens within 10 days.

Long-term Orders of Protection from Abuse

A Long-term Order of Protection can be issued only after a court hearing where you and the abuser both tell your sides of the story to a judge. You must attend that hearing. If you do not go to the hearing, your emergency order may expire and you will have to start the process over.

A Long-term Order of Protection will last for up to one year. Orders may also be extended for an extra six months, but only after another hearing.

BACK TO TOP

Benefits:

In an Order of Protection from Abuse, a judge may order your abuser to:

Stay away from you
Stay away from your residence, work place, school, day care (you must specifically request these places)
Stop threatening or abusing you
Stop contacting you
Pay child support and spousal support
Pay certain other expenses
Surrender any and all firearms
Attend counseling
Not destroy, sell, or conceal joint property

A judge may also grant you:

Exclusive use of the home or of certain possessions, including the family car, (regardless of who has title to the home or possessions)
Temporary custody of children
Power to decide the conditions of child visitation by the abuser
Any other relief that the judge believes are necessary in order for you to be free from the violence.

All provisions are contingent on the facts of each individual case.

BACK TO TOP

Costs:

There is no cost for an Order of Protection from Abuse. If you choose, you can represent yourself pro se (without a lawyer) throughout the process of seeking the Order. Although you do not need legal counsel to file for one, it may be to your advantage to seek representation, especially if your abuser has obtained a lawyer, and/or when child custody issues are at stake.

BACK TO TOP

Violations:

Call the authorities immediately, even if you think it is a minor violation. It is a crime and contempt of court if the abuser knowingly violates the order in any way. A judge can punish someone for being in contempt of court. Violation of the order is punishable by up to one year in jail and/or a fine of up to $2,300. In addition, the police can arrest him for violation of the order. If convicted, the abuser may be fined or sent to jail.

It is a good idea to write down the name of the responding officer(s) and their badge number in case you want to follow up on your case.

BACK TO TOP