Recently, there has been some discussion in the news regarding a potential uptick in domestic violence. Here are some frequently asked questions concerning domestic violence and Protection from Abuse (“PFA”) Orders.
1. What is domestic violence?
In Delaware, domestic violence is defined by statute under 10 Del. C. 1041. “Domestic Violence” is abuse perpetrated against a family member or an intimate partner. This definition is fairly broad, encompassing those in a substantive dating relationship and those with children in common. “Abuse,” is also defined under 10 Del. C. 1041, and is broadly defined as follows:
“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 § 761 of Title 11;
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 a 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 Chapter 9 of Title 16;
g. Unlawful imprisonment, kidnapping, interference with custody and coercion, as defined in Title 11; or
h. Any other conduct which a reasonable person under the circumstances would find threatening or harmful
2. What should I do if I am a victim of domestic violence?
First, you should take steps to protect yourself and your children,, such as, but not limited, calling the police. Second, you should contact an attorney. Third, you should take steps to protect and preserve evidence, such as photographs, text messages, recordings, medical documents and the like.
3. What is a PFA?
A PFA is a civil restraining order that prevents an actual or alleged perpetrator of domestic violence from contacting the victim, usually for a period of a year. Exceptions to the no-contact order are often included to allow parties to communicate regarding children in common and joint finances. Violating a PFA Order is a crime. A PFA Order may also contain provisions for other relief on a temporary basis, including possession of a home and/or vehicle, support for a spouse or child, and custody.
4. How does the PFA process work?
The process begins with a petitioner filing a PFA Petition claiming that they have been a victim of domestic violence. Often, the petitioner will seek an ex parte order, which is an order obtained without notifying the other party or affording them the opportunity to respond based upon a likelihood of immediate and irreparable harm. Because the other side is not notified nor given a chance to respond, these orders can only last for a brief period of time—usually two weeks or less. An ex parte order, like a final PFA Order, can make provisions for custody, support, and temporary possession of the family home. Usually about two weeks after the PFA filing, there will be a final hearing. At that point, the petitioner can dismiss their petition, negotiate a consent PFA or other type of agreement, or have a hearing on the merits. If the parties consent to a PFA or if one is issued after a hearing, matters concerning support, custody, and possession of the home cannot last for more than one year.
5. What is the difference between a consent PFA and a PFA issued after a hearing?
While a consent PFA is enforceable in the same manner that a PFA issued after a hearing is, a consent PFA does not make specific findings that abuse did or did not occur. On the other hand, the Court does make factual and legal determinations that abuse did or did not occur if a hearing is held.
