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Know the Laws: Delaware

UPDATED April 11, 2016

Order of Protection from Abuse

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An order of protection from abuse is a civil order that provides protection from harm by a family or household member.  

Steps to get an order of protection from abuse

back to topStep 1: Fill out the necessary forms at the courthouse.

You will find links to the forms you will need at our DE Download Court Forms page, or from the courthouse in your area.  The clerk will provide you with the forms that you need to file.  On the petition, you will be the "petitioner" and the abuser will be the "respondent."  When writing about the incidents of violence, use descriptive language - words like "slapping," "hitting," "grabbing," "threatening," "choking," etc., - that fits your situation.  Include details and dates, if possible.  Be specific.  

You may also have to fill out an information sheet, but you are not required to provide your residence or phone number if it will put you in danger to reveal that information (you can ask that the information be kept confidential).* 

If you need assistance filling out the form, you can ask the clerk for help** or a local domestic violence program may be able to help you. 

Note: Be sure to wait to sign the forms in front of the court clerk since your signature may have to be notarized.

*10 Del.C. § 1042(b)
** 10 Del.C. § 1042(d)

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back to topStep 2: The ex parte hearing

The commissioner will review your petition in order to decide if you will be granted an emergency (ex parte) order (if you asked for one).  If you are granted an emergency (ex parte) order, the order is good until your full hearing, which usually takes place within 15 days (but could be extended and last for up to 30 days).*  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.**

* 10 Del. Code § 1043(d)
** 10 Del. Code § 1044(a)

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back to topStep 3: Service of process

The abuser must be "served," or given papers that tell him/her about the hearing date and your emergency (ex parte) order, if the court gave you one.

Whether or not you are granted an emergency (ex parte) order, the clerk of court will prepare a summons. S/he will order that a copy of the summons and petition be served on the respondent named in the petition.

The court will request law enforcement to serve the papers on the abuser.  There is no charge to have the authorities serve the abuser. Do not try to serve the papers yourself.

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back to topStep 4: The hearing

A judge will set a hearing date, usually within 15 days of filing your petition (although it could be within 30 days if the ex parte order is extended because the respondent couldn't be served or for another reason).*  You must go to the hearing or your emergency (ex parte) order will expire and you will have to start the process over.  At the hearing, you and the abuser will have a chance to present evidence, witnesses, etc., to prove your case. You have the right to bring a lawyer to represent you at the hearing and it is generally best to have a lawyer represent you who is familiar with orders of protection from abuse.  If you show up to court and the abuser has a lawyer and you do not, you may ask the judge for a "continuance" to set a later court date so you can have time to find a lawyer for yourself.  See DE Finding a Lawyer page for legal referrals.  If you are representing yourself, see the Preparing Your Case page for ways you can show the judge that you were abused.

If the abuser has received notice of the hearing, but does not show up, the judge may continue with the hearing or may reschedule the hearing for a future date.  If the judge reschedules the hearing, make sure to ask the clerk if you need to reissue or extend your emergency order (if you have one) so that you will continue to be protected you until the new hearing date.
 
* 10 Del. C. § 1043(d)

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WomensLaw.org would like to thank the Delaware Family Courts for its help in putting together this material.

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