Domestic violence is a terrible reality for some families in Delaware. Sometimes, if one parent commits an act of domestic violence against their child or their child’s other parent, the child’s other parent will leave the relationship and seek custody of the child.
The child’s other parent fears for the child’s safety. They may also fear that the parent who committed the act of violence could be awarded custody of the child, despite the abuse. Is this a possibility in Delaware?
Can a parent who committed domestic violence get custody?
In Delaware, child custody decisions must be based on the best interests of the child. One major factor that will be considered when determining the child’s best interests is whether a parent committed an act of domestic violence.
In Delaware, there is a rebuttable presumption that a parent who commits an act of domestic violence cannot be awarded primary physical custody of their child. This means that the assumption that the perpetrator of the abuse should not have custody of their child is considered true unless the perpetrator of the abuse can prove otherwise.
Overcoming the rebuttable presumption
Under Delaware law, the parent who committed the abuse can only overcome the presumption that they should not be awarded custody if they can prove the following.
First, no further acts of abuse must have occurred. Second, the parent who committed the abuse must successfully complete an evaluation and counseling program.
Third, the parent who committed the abuse must successfully complete drug and/or alcohol abuse counseling if the court deems it necessary. Fourth, the parent who committed the abuse must be able to show that it is in the best interests of the child for them to have custodial rights.
What if a parent harms the child after the child custody order is issued?
If a parent already has custody of the child or visitation with the child, and that parent commits an act of domestic violence, the child’s other parent can seek a modification of the current custody order.
Courts are not quick to modify child custody orders for just any reason. Often, there must be a substantial change in circumstances. However, modifications are deemed necessary if the child’s safety is at risk due to domestic violence.
Noncompliance with an existing child custody order can be an issue in some child custody modification cases. However, noncompliance with an existing order is not considered in a modification case if it was due to a parent’s attempt to protect themselves or their child from the violent acts of the child’s other parent.
Domestic violence is a grim situation, and it is essential that the child’s safety is maintained. This may mean that except under extraordinary circumstances, the parent who perpetrates the abuse should not have custody of the child. This can be established in the initial child custody order, or it can be established in a modified order should future acts of violence occur.
