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UNDERSTANDING THE PROTECTION FROM ABUSE PROCESS
What is an Order of Protection From Abuse?
An Order of Protection From Abuse is an
order of Family Court ordering someone to stop abusing another person,
and may include other relief, such as ordering the abuser to stay away
from the person being abused. Abuse is defined as any threatening or harmful
conduct including serious emotional harm.
Who can file for Protection from Abuse?
| A member of a protected class which includes; |
A. |
Family as that term is defined in 10 Del. C. §9109, regardless, however, of the state of residence of the parties; |
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Or |
B. |
Former spouses, a man and a woman cohabitating together with or without a child of either or both, or a man and a woman living separate or apart with a child in common, and persons who are or were involved in a substantive dating relationship. |
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| What is abuse? |
| Pursuant to 10 Del. C. §1041 Abuse means conduct which constitutes the following: |
A. |
Intentionally or recklessly causing or attempting to cause physical injury, or a sexual offense as defined in 11 Del. C. §761. |
B. |
Intentionally or recklessly placing or attempting to place another person in reasonable apprehension of physical injury or sexual offense to such person or another. |
C. |
Intentionally or recklessly damaging, destroying or taking the tangible property of another person. |
D. |
Engaging in the course of alarming or distressing conduct in a manner which is likely to cause fear or emotional distress or to provoke a violent or disorderly response. |
E. |
Trespassing on or in property of another person or on or in property from which the trespasser has been excluded by court order. |
F. |
Child Abuse as defined in 16 Del. C. Chapter 9. |
G. |
Unlawful imprisonment, kidnapping, interference with custody and coercion as defined in Title 11. |
H. |
Any other conduct which a reasonable person under the circumstances would find threatening or harmful. |
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| What is a PFA Rule to Show Cause Hearing? |
A PFA Rule to Show Cause hearing is a review hearing before a Family Court Commissioner in which a PFA Respondent would need to show cause as to why he/she has or has not followed through with the recommendations of the DVCC certified agency. If the Respondent has followed through with the recommendations of the DVCC certified treatment, the Respondent shall provide the appropriate documentation at the PFA Rule to Show Cause Hearing. See the frequently asked questions section for more information on this topic. |
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IF YOU WANT TO FILE FOR AN ORDER OF PROTECTION FROM ABUSE
How does someone file for an Order of Protection from Abuse?
You do not need an attorney to seek
an Order of Protection. Court staff will help you with the necessary forms
and volunteers from a Victim Advocacy Program
may also be available to help.
Go to the Family Court between the hours
of 8:30 am and 4:30 pm, Monday through Friday. If you believe that you
are in immediate danger of abuse, you may ask for an emergency (ex parte)
hearing that same day. If you will be asking the Court for an emergency
(ex parte) hearing, you should go to the Family Court early in
the day, but not later than 4:30 p.m.
Ask the clerk for a Protection
From Abuse Petition (form #450). If you are asking for an emergency
(ex parte) hearing, also ask the clerk for the Affidavit
for Emergency Hearing Form. Fill in
all the blanks on both forms. Give enough facts for the Court to know
how you are being abused and whether you are in immediate danger. A Court
staff person will ask you some questions. Be specific with your answers.
What happens at an emergency ex parte hearing?
If the Court decides to give you an emergency
hearing, you will be taken before a Commissioner of the Court the same
day or the next day, and the Commissioner will ask some questions. If
the Commissioner decides to sign an Emergency (ex parte) Order
granting you relief, you will be given a date for a full hearing which
the respondent will be asked to attend. Your emergency (ex parte)
order will last until the full hearing takes place.
What happens on the hearing day?
Consent process
On the day of the full hearing, the respondent
will be asked by a Court staff person if he/she is willing to have a Consent
Order entered. If the respondent is willing to have a Consent Order entered,
he/she does not have to admit that there was any abuse and the Court does
not decide if there was any abuse, but will enter an Order for some or
all of the relief requested.
If the Respondent agrees to the relief,
you and the respondent will go into the courtroom and tell the Commissioner.
The Commissioner will ask you some questions to make sure you both understand
the Consent Order. The signed Consent Order will be given to both of you
that same day.
Hearing
If the Respondent does not agree to a Consent
Order, the Judicial Officer will conduct a hearing. The petitioner and
the respondent will each be given a chance to present their side of the
story and any evidence that they may have. If witnesses are going to be
called to help tell the story, the person calling the witness must ask
the Court to subpoena the witness. You may also use such things as photographs
and tape recordings. You are not usually allowed to use doctors' or police
reports unless the doctor or police person is present.
The Judicial Officer may ask both the petitioner
and the respondent questions. At the end of the hearing, the Judicial
Officer will decide whether he or she believes that abuse occurred. If
so, an Order of Protection will be signed and copies will be given to
both the petitioner and the respondent.
What do Orders of Protection usually say?
Orders of Protection from Abuse may provide
for any or all of the following relief:
- No more abuse
- No contact with the Petitioner
- Petitioner may be given exclusive use of the home or of certain possessions
- Temporary custody
- Conditions of Visitation
- Child support or support for the Petitioner
- Payment of expenses
- Surrender of firearms
- Counseling
- Any other relief that might help prevent future violence
How long does an Order of Protection From Abuse usually last?
Orders of Protection can last up to one
year and can be extended for an extra six months following another hearing.
(To request an extension, you must file a motion.)
The Order remains valid and effective even
if the petitioner and respondent get back together. The Order can only
be changed after another hearing.
The effectiveness of a PFA Order depends
on the fact that the petitioner will not attempt to contact the respondent
or attempt to reconcile without asking the Court to change or set aside
the Order.
IF YOU ARE THE RESPONDENT...
How do Respondents know when a Protection from Abuse petition is filed
against them?
If you are named as a respondent in a Protection
from Abuse petition, you will personally receive a copy of the petition
and a summons notifying you of the date, time and place for the full hearing.
If the petitioner has been given an Emergency (ex parte) Order,
you will be given a certified copy of that Order at the same time. The
Emergency (ex parte) order stays in effect until after the full
hearing is over and you must obey it as you would any court Order.
What happens if someone disobeys an Order of Protection from Abuse?
The violation of an Order of Protection
is a crime punishable by up to one year in jail and/or a fine of up to
$2,300. If a respondent disobeys an Order of Protection, he or she is
subject to arrest and, if convicted, may be fined or sent to jail.
A petitioner who believes an Order has
been violated can call the police or may go to Family Court to report
the violation.
A PFA Order is effective even if the petitioner
contacts the respondent or wants to reconcile. A respondent must do what
the Order says, no matter what the petitioner does, or asks the respondent
to do, unless the Court modifies or vacates the Order.
Can Orders of Protection From Abuse be changed or withdrawn?
The party who wants to change an Order of
Protection in some way may file with Family Court a form called a Motion
to Modify/Extend or Vacate a Protection from Abuse Order (form # 456).
The motion form and assistance is available at the Resource Center in
the Family Court buildings in Kent and Sussex Counties and at Family Court
Intake in the New Castle County Courthouse.
The Court may modify a non-consent order
only if the party asking for the modification proves that there is a good
reason for the change. The Court may modify a consent order if both parties
agree or if the respondent has been found in contempt of the consent order.
Can I appeal the Court's decision?
Orders entered by a Commissioner may be
appealed to a Judge of the Family Court by filing a form called an Appeal
from a Commissioner's Order. Appeals from Commissioner's orders must be
filed with the Family Court within ten (10) days of the order. Orders
entered by a Judge may be appealed to the Delaware Supreme Court. A Notice
of Appeal form must be filed within thirty (30) days of the Family Court
Judge's order.
What happens after the Order of Protection From Abuse expires?
The relief given in an Order of Protection
is only in effect for up to one year (unless extended for an additional
six months). To get permanent relief, either party may file for custody,
visitation, child or spousal support, or divorce and property division.
Forms for these petitions are available from the Clerk of the Family Court.
Help and Support is available from the following
sources. For additional services, please see the service
provider listing.
Family Court:
New Castle County 255-0300
Kent County 672-1000
Sussex County 855-7400
24-hour Domestic Violence Hotlines:
New Castle County 762-6110
Kent & Sussex Counties 422-8058
New Castle County Crisis Hotline 761-9100
Kent & Sussex Crisis Hotline (800) 262-9800
Child Abuse Hotline (800) 292-9582
Victim Advocacy Programs:
New Castle County 255-0420
Kent County 672-1075
Sussex County 856-5843
Delaware Coalition Against Domestic Violence (800) 701-0456
Domestic Violence Coordinating Council 255-0405
Attorney General:
New Castle County 255-0112
Kent County 739-4211
Sussex County 856-5353
Legal Services:
New Castle County 478-8680
Kent County 674-8500
Sussex County 856-0038
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