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EspañolWhat is the legal definition of abuse in Delaware?
This section defines domestic violence for the purposes of getting an order of protection. Delaware law defines “domestic violence” as when one or more of the following acts of abuse happen between dating partners, family, or household members:
- causing or attempting to cause actual physical injury or a sexual offense;
- placing or attempting to place you in fear of physical injury or a sexual offense being committed against you or another person;
- damaging, destroying, or taking property, including legal documents;
- causing physical injury to a pet or service animal;
- engaging in a course of alarming or distressing conduct that is likely to cause fear or emotional distress or cause a violent or disorderly response, including conduct that is directed towards a pet or service animal;
- trespassing;
- child abuse;
- kidnapping;
- unlawful imprisonment;
- interference with custody;
- human trafficking;
- making or trying to make you financially dependent by:
- keeping “overwhelming” control over your financial resources against your will, including not letting you have access to money or credit cards or forbidding you from going to school or work without a reasonable justification;
- stealing your money or assets, or getting them through fraud;
- using your money or resources for the abuser’s personal gain; or
- keeping (withholding) basic things from you like food, clothing, necessary medications, or shelter;
- doing any of these things to a pet you have a close bond with in order to coerce, control, punish, or intimidate you:
- physically hurting or trying to hurt the pet;
- doing something that is likely to make you fear the pet will be physically hurt; or
- committing the crime of cruelty to animals against the pet; or
- any other acts that a reasonable person would find threatening or harmful.1
1 Del. Code tit. 10, § 1041(1), (2)
What types of orders of protection from abuse are there? How long do they last?
There are two types of order of protection from abuse:
Emergency ex parte order. If you are in immediate danger of abuse, you can ask for an emergency ex parte order when you apply for an order of protection. Ex parte means that the order can be issued without prior notice to the abuser and without the abuser being present. The commissioner may ask you some questions to determine if you are in need of immediate protection. If you get the order, it will last until your full hearing, which is usually within 15 days. The court can extend an ex parte order as needed, but not for more than 30 days. Note: If the court does not grant you an emergency ex parte order, you may still be given a court date for a full hearing scheduled within the next 30 days.1
Order of protection from abuse. A long-term order of protection from abuse can be issued only after a court hearing where you and the abuser have the chance to both be present and present evidence to the judge. Most of the protections will last for up to one year. However, if the order includes a term that the abuser cannot commit acts of domestic violence against you and/or cannot contact or attempt to contact you, these can last for up to two years2 or longer, even permanently, if:
- the length of the order is necessary to prevent further acts of domestic violence; and
- the judge finds that aggravating circumstances exist. “Aggravating circumstances” include any of the following:
- the abuser caused you physical injury or serious physical injury or s/he exposed any of your family or household members to such injuries;
- the abuser used a deadly weapon or dangerous instrument against you;
- there is a history of repeated violations of prior protective orders by the abuser;
- the abuser has been convicted of a crime against you in the past; or
- the abuser committed any other acts of abuse that causes the judge to believe that there is an immediate and ongoing danger to you or any member of your family or household.3
You may also file to extend your order.4 For the order to be extended, there must be a hearing and certain factors must be met. To read more about what you’d have to prove to get your order extended, go to How do I change, extend, or cancel my order of protection?
1 10 Del. C. §§ 1043; 1044(a)
2 10 Del C. § 1045(b)
3 10 Del C. § 1045(b), (f)
4 10 Del C. § 1045(c)
What protections can I get in an order of protection from abuse?
In an order of protection from abuse, a judge may order the abuser to:
- stay away from you;
- stay away from a pet (“companion animal”) that is owned or held by you, the abuser, or a minor child living with you or the abuser;
- not take, transfer, hide, harm, or otherwise get rid of such pet;
- stay away from your residence, workplace, school, and daycare;
- stop threatening or abusing you;
- stop contacting you;
- pay child support and spousal support;
- pay certain expenses;
- attend counseling;
- not destroy, sell, or conceal joint property;
- return legal documents, such as a passport, immigration papers, or Social Security card; and
- surrender any and all firearms or projectile weapons. The judge can also order the police to search for and take the respondent’s firearms or projectile weapons if you can describe:
- what type of guns or weapons the abuser has;
- where they located; and
- how the abuser has used or threatened to use them against you, or why you fear they might.1
A judge may also grant you:
- exclusive use of the home or of certain possessions, including the family car, regardless of whose name the title is in;
- temporary custody of your children with the abuser;
- a temporary visitation order, which could include supervised visitation if necessary;
- exclusive care, custody, or control of any pet (“companion animal”) owned or held by you, the abuser, or a minor child living in your or the abuser’s home; and
- anything else that the judge believes is necessary for you to be free from the violence.1
Whether a judge orders any or all of the above depends on the facts of your case.
1 Del. Code tit. 10, § 1045(a); see Del. Code tit. 11, § 222(13), (28) for the definitions of “firearm” and “projectile weapon”
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.
